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Court orders county to give driver hearing

A Pierce County judge may have been hasty in failing to give a man convicted of drunken driving, sixth offense, credit in each of two cases for time he was held in jail.

Troy Thomas Brummer, 36, Hager City, appealed Judge Robert Wing's decision denying a hearing on Brummer's request for sentence credit.

In a decision filed Tuesday, the District III Court of Appeals sent the case back to county court for a hearing on Brummer's motion.

According to background in the decision, on Jan. 3, 2006, Brummer was arrested for operating while intoxicated, sixth offense. At the time, he was on probation for his fifth OWI conviction, which was also a Pierce County case. Brummer avoided probation revocation on the fifth case by going through alcohol and drug treatment in a secure detention facility. He was released from custody July 7, 2006.

On Sept. 22, 2006, Brummer missed a court hearing for his sixth OWI case and a warrant was issued for his arrest. A month later, a second warrant was issued in the fifth-offense case because Brummer failed to keep an appointment with his probation agent.

On April 19, 2007, he was arrested in Minnesota after driving without a license. He was extradited to Wisconsin and held in the Dunn County Jail for Pierce County.

On Sept. 10, 2007, he was sentenced, after revocation in the fifth-offense case, to three years in prison and three years of extended supervision, and given credit for the jail time from his April 19 arrest to his Sept. 10 sentencing.

On Dec. 14, 2007, Brummer pleaded guilty to OWI, sixth offense. He was sentenced to two years in prison, followed by three years of extended supervision to run concurrent with the fifth-offense sentence.

The judge held the issue of sentence credit open.

On Jan. 8, 2008, Judge Wing issued a written order determining Brummer was entitled to 280 days of sentence credit. But the judge didn't give sentence credit for the time between Brummer's arrest on April 19 and his Sept. 10, 2007, sentencing in the fifth-offense case.

In March 2008, Brummer filed a motion seeking sentence credit for the time between his arrest and sentencing in the fifth-offense case. He alleged, among other things, the warrant issued in the sixth-offense case was in effect from Sept. 22, 2006, until Sept. 10, 2007, when he was sentenced for the fifth offense.

He claims he was in custody relative to both cases.

Judge Wing denied Brummer's motion without holding a hearing. The judge concluded Bummer shouldn't be given credit when he may have been in custody because of a Minnesota criminal charge, may have been in custody for a probation hold in another case or couldn't show his arrest was related to the warrant issued in this case.

The appeals court ruling says Wisconsin law gives a defendant sentence credit "for all days spent in custody in connection with the course of conduct for which sentence was imposed..."

The court concluded, "While the facts surrounding Brummer's custody in Minnesota from the time of arrest until his extradition to Wisconsin are unclear, Brummer's motion alleged that, once in Wisconsin, he was held in Dunn County 'for Pierce County'."

The court agreed: "This is a Pierce County case. While there was another Pierce County case, the fifth-offense case, for which Brummer was awaiting sentencing, the existence of a bench warrant in this case suggests he was also being held in connection with this case."