COA denies sentence credit for time spent serving later-vacated reconfinement sentence in decision recommended for publication
State v. Steven F. Zastrow, 2025AP2024, 7/21/26, District III (recommended for publication); case activity
Relying on Beets, COA concludes that Zastrow is not entitled to credit against a consecutive sentence for the time he spent serving a reconfinement sentence that was later vacated.
Zastrow appeals an order denying his postconviction motion for additional sentence credit. The procedure here is a bit messy, but we’ll try to keep the summary short.
Zastrow was on extended supervision in 2018, when he was charged in this case with various counts including burglary. DOC also placed a hold on Zastrow and began revocation proceedings for his extended supervision. (¶¶4-5). After 301 days of pretrial custody and the ES hold, his ES was revoked and he was returned to prison to serve a reconfinement sentence. Zastrow went to trial around the same time in the current case, the jury found him guilty of all counts, and he was sentenced to consecutive time after he began his reconfinement sentence. (¶6).
Zastrow appealed both the revocation of his ES and the convictions in this case. The circuit court granted Zastrow’s postconviction motion for a new trial and vacated the convictions in this case. (¶7). Based in part on the order vacating the convictions in this case, DHA ultimately vacated the order revoking Zastrow’s extended supervision and released him from prison. He had spent 1,275 days serving the reconfinement sentence. (¶8).
In 2025, a jury again found Zastrow guilty of several counts in this case. The circuit court again sentenced Zastrow consecutive to any other sentence. (¶9). The court awarded him sentence credit for the period of time preceding his revocation from ES and return to prison, as well as the period of time Zastrow was in jail on this case after his reconfinement order had been vacated, a total of 334 days on the burglary count and 320 days on the counts. (¶10). Zastrow then moved for an additional 1,275 days of sentence credit for the time he spent in custody serving his reconfinement sentence, and the circuit court denied his motion. (¶¶11-12).
Zastrow appeals the denial of the 1,275 days of sentence credit. COA begins by applying the sentence credit statute, WIS. STAT. § 973.155 and case law interpreting statute. (¶¶13-16). It concludes that Zastrow was initially in custody in connection with the course of conduct for which sentences were imposed on both this case and the reconfinement. (¶17). Further, pursuant to State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985), Zastrow’s return to prison on the reconfinement sentence severed the connection between his custody and the conduct for which Zastrow was sentenced in this case. (¶18). Zastrow acknowledges Beets, but argues that the rule ultimately does not apply because when DHA vacated his reconfinement, the severance of the factual connection between the custody served after his revocation and the charges in this case became “null and void” just like the vacated revocation—it effectively never existed. (¶23).
For this argument, Zastrow relies on State v. Lamar, 2011 WI 50, 334 Wis. 2d 536, 799 N.W.2d 758. (¶23). COA summarizes Lamar (¶¶24-26), and holds that its language that a vacated sentence was “nullified and no longer in effect” has no application to Zastrow’s case, because “this case is controlled by the Beets rule that once a defendant starts serving a revocation sentence in one case, it severs the factual connection in another case.” COA concludes that Lamar does not address or overrule Beets, and thus, “the fact that the DHA vacated his revocation did nothing to change the nature of Zastrow’s custody during the period between” his return to prison and the order vacating his reconfinement, “which remained solely in connection with his sentences in the forgery cases.” (¶27).
Next, COA addresses and rejects Zastrow’s “attempt to distinguish his case from” State v. Harrison, 2020 WI 35, 391 Wis. 2d 161, 942 N.W.2d 310. (¶28). COA explains that, “In Harrison, our supreme court referred to Lamar’s statement on vacated sentences when addressing whether the defendant in that case was entitled to sentence credit for his extended supervision in two cases after serving sentences in two unrelated cases that were vacated.” Zastrow asserts that here, in contrast to Harrison, there is a clear factual connection “between the course of conduct for which Zastrow was originally revoked and for which he was sentenced in this case.” COA reasons that it does not matter that the initial period of custody was in connection with this case because once he was returned to prison for his reconfinement sentence, the factual connection was severed under Beets. (¶31).
COA also distinguishes State v. Obriecht, 2015 WI 66, ¶25, 363 Wis. 2d 816, 867 N.W.2d 387, which held that a defendant who had not received all the sentence credit that could be applied to his sentence when that sentence was first imposed could receive the remaining available credit when his parole was revoked. (¶35). However, Obriecht did not hold that custody credit must be applied to a separate confinement period in a different case, and the period of custody there was always in connection with the sentence in question–the connection had not been severed. (¶37). Thus, COA recognizes that if Zastrow were revoked from ES again (in the first set of cases), he would be entitled to the 1,275 days of credit there. (¶38).
In conclusion, the court summarizes as follows:
the well-established sentence credit principle in Beets defeats Zastrow’s claim that he is entitled to an additional 1,275 days of sentence credit. Namely, the factual connection between Zastrow’s custody for the forgery cases and the custody for the charges in this case was severed upon revocation of his extended supervision and return to prison to continue serving his sentences in the forgery cases. This treatment of his sentence credit is not impacted by the fact that the DHA ultimately vacated the revocation of his extended supervision.
(¶39).