Background
Matthew O’Dierno was arrested on new charges on June 17, 2023, while on probation in an unrelated case. In that earlier case, he was serving conditional jail time in the community with full Huber privileges and electronic monitoring. After the new arrest, the Department of Corrections placed him on a probation hold, the circuit court revoked his Huber privileges, and he completed the remaining 118 days of conditional jail time in jail. His probation was not revoked.
After completing that conditional jail time, O’Dierno remained jailed for 89 more days because he did not post the $10,000 cash bond in the new case. At sentencing, the circuit court awarded credit for only those 89 days. Relying on State v. Riley, it denied O’Dierno’s request for credit for the additional 118 days served in jail after his arrest.
The Court’s Holding
The Wisconsin Court of Appeals held that O’Dierno was entitled to sentence credit for all 207 days he spent in custody between his arrest and sentencing. Under Wis. Stat. § 973.155(1)(a), the 118 days served in jail on the probation-case conditional jail term were factually connected to the conduct underlying the new case because the new arrest directly triggered his return to jail.
The court distinguished Riley. In Riley, the defendant was already serving probationary confinement in custody and would have remained confined regardless of the new offense. O’Dierno, by contrast, had been serving his conditional jail term in the community rather than in custody; absent the conduct leading to the new charges, he would not have been returned to jail to serve the remaining 118 days.
Key Takeaways
- Presentence custody may qualify for sentence credit when new criminal conduct directly causes a probationer serving conditional jail time in the community to be returned to jail.
- The relevant inquiry is whether the custody—not merely the defendant’s probationary status—was factually connected to the new offense.
- Riley does not bar credit where the defendant was not already confined and the new charges triggered the jail confinement.
Why It Matters
The decision clarifies that Wisconsin’s sentence-credit statute can cover jail time simultaneously attributable to a probationary condition in an unrelated case when the defendant’s new alleged conduct causes the actual custody. Courts must examine the factual cause of confinement rather than treat an unchanged conditional-jail status as dispositive.
The court modified the judgment to award 207 days of credit, affirmed the judgment as modified, reversed the order denying postconviction relief, and remanded for an amended judgment.