COA grants sentence credit claim in recommended decision
State v. Matthew Guy O’Dierno, 2025AP1327, 8/6/26, District IV (recommended for publication); case activity
COA holds that O’Dierno is entitled to sentence credit on new charges for his entire period of pretrial jail custody when a portion of the time was also spent completing a conditional jail sentence.
O’Dierno was serving term of probation and, as a condition of that probation, was on Huber and electronic monitoring in the community when he was arrested on the charges in this case. (¶6). He remained in jail on a $10,000 cash bond in this case. In the probation case, the circuit court revoked O’Dierno’s Huber privileges, and he completed the remaining 118 days of conditional jail time in jail. O’Dierno remained in jail for 89 more days awaiting sentencing in this case. The court granted him 89 days of sentence credit in this case. (¶7).
In the circuit court, the state argued that O’Dierno was not entitled to additional sentence credit for the 118 days because that was part of the sentence in the probation case, citing Riley, which held that the defendant in that case was not entitled to sentence credit for the days he served in custody at the Milwaukee House of Correction as a condition of probation in an unrelated case. (¶8). O’ Dierno argued that he was entitled to a total of 207 days of sentence credit for the time he was in custody from his arrest in this case
until his sentencing, reasoning that that entire period of custody was in connection with this case.
On appeal, O’Dierno repeats his argument, and also specifically argues that Riley does not apply. The facts here are not in dispute. Thus, the question is whether a O’Dierno is entitled to sentence credit for days of presentence custody during which he was also in custody as a condition of probation in an unrelated case, when he was placed and kept in custody as a result of his conduct for which sentence was imposed in this case. COA agrees with O’Dierno that the state’s reliance on Riley is misplaced, and notes that this question appears to be an issue of first impression. (¶16).
COA distinguishes Riley on the basis that there, the defendant had already been ordered to serve the remainder of his term of probationary confinement in jail before he escaped and then picked up new charges. The relevant distinction is that the defendant in Riley would have been in custody before and after the new offense, regardless of whether he committed a new offense. “Here, in contrast, O’Dierno was not in custody serving the original probationary confinement when he committed the new offense, and his return to jail was directly triggered by the new charges. . . . Had the conduct underlying the charges in the new case not occurred, O’Dierno would not have been in custody serving the conditional jail time in the probation case.” (¶18).
COA succinctly rejects the state’s argument that O’Dierno’s “conditional jail status” did not change as a result of his arrest in this case because the sentence credit statute, WIS. STAT. § 973.155(1)(a), concerns “custody” and not “status.” (¶19). Because O’Dierno was not in custody before his arrest in this case, he is entitled to credit for the full period of time in jail regardless of the fact that he completed his conditional jail during 118 of those days because it was “in connection with” his new criminal conduct. (¶20).