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Lawsuit: Sentencing error cost Janesville man his job

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staff, Gazette
October 12, 2012

— A Janesville man lost his job and was unlawfully jailed because the state Department of Corrections failed to note he was inaccurately sentenced, according to a federal lawsuit.

In sentencing Christopher Preston in February 2004 for fifth-offense drunken driving, Rock County Judge John Lussow erroneously sentenced Preston to five years probation when the statutory maximum was three years, according to the lawsuit filed Tuesday.

Preston is among hundreds of offenders inaccurately sentenced annually in Wisconsin, according to the lawsuit.

State judges impose enough unlawful and inaccurate sentences to keep a Department of Corrections unit busy fixing them, said Preston's attorney, Jeff Scott Olson of Madison.

One in 10 judgments of conviction—five or six a day—is sent to the department of corrections containing errors in statutes cited, sentencing dates or length of probation, according to the lawsuit.

When they find an error, department of corrections staff are supposed to correct it and notify the court and the probation agent, Olson said. That didn't occur in Preston's case, he said.

Preston, whose probation was supposed to have ended in February 2007, was picked up for his sixth drunken-driving offense in January 2009. Probation agent Tanya Arrowood requested that Preston be locked up on a probation hold while she started the process of revoking his probation, according to the lawsuit.

While in jail, Preston contested his revocation, and in April 2009 an administrative law judge determined that Preston's probation should have ended in February 2007. Had his probation ended lawfully, Preston would have been out on bail after his January 2009 arrest and been able to take a better paying job in Arizona, Olson said. Instead, his probation agent refused Preston's request to leave the state, one of many controls a probation agent has over a client.

While on probation, Preston was subject to home visits, urine screens, psychological exams and polygraph tests and needed his agent's approval to change residences or jobs or to travel.

Olson said he intends to prove department of corrections staff were deliberately indifferent to Preston's unlawful sentence in violation of his Eighth Amendment rights.

Judges have absolute immunity from suit for damages if they make errors, Olson said.

The lawsuit names a Department of Corrections records supervisor and a records worker as defendants.

The Department of Corrections doesn't comment on pending litigation, department spokesman Timothy Le Monds said. He confirmed department staff routinely find errors in judgments of conviction that require notice to a court.



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