State v. Michael K. Fermanich ( 2023 )

2023 WI 48SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP462-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Michael K. Fermanich,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 402 Wis. 2d 309, 974 N.W.2d 895(2022 – unpublished)
OPINION FILED: June 14, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 12, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Langlade
JUDGE: John B. Rhode
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ.,
joined. DALLET, J., filed a concurring opinion. ZIEGLER, C.J.,
filed a dissenting opinion in which REBECCA GRASSL BRADLEY, J.,
joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Colleen Marion, assistant state public defender. There
was an oral argument by Colleen Marion, assistant state public
defender.
For the plaintiff-appellant, there was a brief filed by
Jacob J. Wittwer, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Jacob J. Wittwer, assistant attorney general.
2
2023 WI 48NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP462-CR
(L.C. No. 2017CF313)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v. JUN 14, 2023
Michael K. Fermanich, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ.,
joined. DALLET, J., filed a concurring opinion. ZIEGLER, C.J.,
filed a dissenting opinion in which REBECCA GRASSL BRADLEY, J.,
joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 BRIAN HAGEDORN, J. In the span of approximately two
hours, Michael Fermanich stole and drove three trucks in
Langlade County, eventually driving the third over the border
into Oneida County. The State brought charges first in Oneida
County. The Oneida County Circuit Court imposed cash bail that
Fermanich could not post, so he stayed in jail. Several months
later, while Fermanich remained in the Oneida County Jail, the
No. 2021AP462-CR
State brought charges in Langlade County. The Langlade County
Circuit Court imposed a signature bond. Ultimately, the two
cases were consolidated in Langlade County. Fermanich pled no
contest to three charges——one from Langlade County and two from
Oneida County. The other charges from both counties were
dismissed and read in. Fermanich was eventually sentenced to
concurrent terms on each of the three counts.
¶2 The question before us is whether Fermanich is
entitled to sentence credit on his Langlade County charge for
time served in the Oneida County Jail. We conclude he is. A
defendant is entitled to sentence credit for pre-trial
confinement "for all days spent in custody in connection with
the course of conduct for which sentence was imposed," which
includes "confinement related to an offense for which the
offender is ultimately sentenced." Wis. Stat. § 973.155(1)(a)
(2021-22).1 Under State v. Floyd, pre-trial confinement on a
dismissed and read-in charge relates to an offense for which the
offender is ultimately sentenced. 2000 WI 14, ¶32, 232
Wis. 2d 767, 606 N.W.2d 155, abrogated on other grounds by State
v. Straszkowski, 2008 WI 65, ¶¶89, 95, 310 Wis. 2d 259, 750
N.W.2d 835. Three of Fermanich's Oneida County charges——for
which he was confined pre-trial——were dismissed and read in at
sentencing on the Langlade County charge. Therefore, under
Floyd, confinement on the dismissed and read-in Oneida County
charges relates to the Langlade County charge for which
1All subsequent references to the Wisconsin Statutes are to
the 2021-22 version.
2
No. 2021AP462-CR
Fermanich was ultimately sentenced. Accordingly, he is entitled
to credit on that charge.
I. BACKGROUND
¶3 On September 30, 2017, Michael Fermanich stole three
trucks in Langlade County, one after the other. After stealing
the third truck, he drove it from Langlade County into Oneida
County, where officers eventually arrested him. The whole
affair lasted around two hours.
¶4 In October 2017, the State filed a five-count criminal
complaint against Fermanich in Oneida County: one count of
operating a motor vehicle without the owner's consent; two
counts of attempting to flee or elude an officer; one count of
obstructing an officer; and one count of failure to obey a
traffic officer/signal. The Oneida County Circuit Court imposed
a $10,000 cash bond the same day. Fermanich did not post the
bond, so he was incarcerated in the Oneida County Jail where he
remained for 433 days.
¶5 In December 2017, the State filed a criminal complaint
in Langlade County with three counts: one count of operating a
motor vehicle without the owner's consent——repeater; and two
counts of operating a motor vehicle without the owner's consent—
—joyriding, repeater. In February 2018, while Fermanich
remained in custody in Oneida County, the Langlade County
Circuit Court2 imposed a $10,000 signature bond. By signing the
2 The Honorable John B. Rhode presided.
3
No. 2021AP462-CR
signature bond, Fermanich was free to go for purposes of the
Langlade County charges, but promised to pay the cash amount if
the bail conditions were not satisfied. Again, through all of
this, he was incarcerated in the Oneida County Jail based on his
charges there.
¶6 In October 2018, Fermanich applied to consolidate the
two cases in Langlade County under Wis. Stat. § 971.09(1). Once
the Langlade County Circuit Court approved, the State filed an
amended information that combined all eight charges from both
counties. This fused the two "independent and separate actions"
"into a single action." State v. Rachwal, 159 Wis. 2d 494, 515,
465 N.W.2d 490 (1991).
¶7 Fermanich ultimately pled no contest to three charges:
Count 1, operating a motor vehicle without the owner's consent——
repeater (originally brought in Langlade County); Count 4,
operating a motor vehicle without the owner's consent
(originally brought in Oneida County); and Count 5, attempting
to flee or elude an officer (originally brought in Oneida
County). The State dismissed the other five charges and read
them in at the sentencing hearing.3 Three of those dismissed and
read-in charges were originally brought in Oneida County. In
the end, the circuit court withheld Fermanich's sentence and
placed him on probation for five years.
3Read-in charges are charges that are not prosecuted but
can be considered by the circuit court during sentencing. State
v. Hinkle, 2019 WI 96, ¶10 n.10, 389 Wis. 2d 1, 935 N.W.2d 271.
4
No. 2021AP462-CR
¶8 In 2019 and 2020, however, Fermanich committed several
probation violations and spent time in custody on probation
holds and alternative-to-revocation arrangements. As a result
of violating the conditions of his probation, the circuit court
imposed a sentence of 18 months of initial confinement and 24
months of extended supervision on all three charges, each to run
concurrently, meaning that they are served simultaneously.
¶9 In November 2020, Fermanich filed a motion to modify
the judgment of conviction, asking the circuit court to credit
him with 433 days for time spent in the Oneida County Jail for
all three charges. At that hearing, the parties agreed
Fermanich was entitled to 433 days of credit on the two Oneida
County charges. But the parties disagreed on the credit owed
for the Langlade County charge because Fermanich was "free" on a
signature bond for that offense. The circuit court awarded
Fermanich 433 days of credit on all three charges for time spent
in the Oneida County Jail. The State appealed, and the court of
appeals reversed. See State v. Fermanich, No. 2021AP462-CR,
unpublished slip op. (Wis. Ct. App. Apr. 12, 2022) (per curiam).
We granted Fermanich's petition for review.
II. DISCUSSION
¶10 Wisconsin's sentence credit statute requires circuit
courts to give defendants credit for time spent in custody. See
Wis. Stat. § 973.155(1)(a). It provides:
A convicted offender shall be given credit toward the
service of his or her sentence for all days spent in
5
No. 2021AP462-CR
custody in connection with the course of conduct for
which sentence was imposed. As used in this
subsection, "actual days spent in custody" includes,
without limitation by enumeration, confinement related
to an offense for which the offender is ultimately
sentenced, or for any other sentence arising out of
the same course of conduct . . . .
Id. Application of § 973.155(1)(a) "to a particular set of
facts presents a question of law we review independently."
State v. Kontny, 2020 WI App 30, ¶6, 392 Wis. 2d 311, 943
N.W.2d 923.
¶11 Fermanich argues his crime spree constituted a "course
of conduct" under Wis. Stat. § 973.155(1)(a), entitling him to
credit on the Langlade County charge. He also argues that our
decision in State v. Floyd applies because the confinement on
his dismissed and read-in charges relates to "an offense for
which the offender is ultimately sentenced," here, the Langlade
County charge. 232 Wis. 2d 767, ¶32. We agree with the latter,
and therefore need not reach Fermanich's first argument.
¶12 In Floyd, the defendant was charged with recklessly
endangering safety while armed with a dangerous weapon (among
other charges). Id., ¶2. While free on bond, the police
arrested the defendant for armed robbery. Id., ¶3. He remained
in custody for several months. Id. Eventually, the defendant
pled guilty to the reckless endangerment charge——the charge on
which he posted bond. Id., ¶4. As part of the plea, the State
agreed to dismiss and read in the armed robbery charge for which
he spent time in custody. Id. The court then sentenced the
defendant to five years on the reckless endangerment charge.
Id., ¶6. However, the court declined to grant the defendant
6
No. 2021AP462-CR
credit for the time he spent in custody on the armed robbery
charge. Id., ¶7.
¶13 Before us, the defendant made two arguments, the
second of which is relevant to this case. Id., ¶¶14, 18. His
argument concerned the second sentence of Wis. Stat.
§ 973.155(1)(a), which says that "'actual days spent in custody'
includes . . . confinement related to an offense for which the
offender is ultimately sentenced." Id., ¶¶13, 18. The
defendant maintained that because the sentencing court took his
dismissed and read-in armed robbery charge into account when
sentencing him for reckless endangerment, his confinement on the
armed robbery charge "was related to an offense for which he was
ultimately sentenced." Id., ¶18. We agreed. Id., ¶32.
¶14 We initially found the statute ambiguous because it
could be read to include either dismissed and read-in charges
broadly or only the charge on which a defendant is convicted.
Id., ¶¶18-19. To resolve that ambiguity, we turned to the
statute's history and purpose. Id., ¶¶20-23. We observed that
the statute provided "sentence credit in a wide range of
situations" and "was 'designed to afford fairness' and ensure
'that a person not serve more time than he is sentenced.'" Id.,
¶23 (quoting another source). We also consulted the nature of
read-in charges. Id., ¶¶24-27. At the time, read-ins
constituted "admissions by the defendant to those charges."
Id., ¶25. That made them different from other types of charges
considered by the sentencing court——such as unproven or
7
No. 2021AP462-CR
acquitted offenses——because more weight would be placed on them.
Id., ¶27. The "unique nature of read-in charges" coupled with
the legislative history and purpose of Wis. Stat.
§ 973.155(1)(a) led us to conclude that the legislature intended
the statute to provide credit for read-ins. Id., ¶31.
Therefore, we unanimously held that "pre-trial confinement on a
dismissed charge that is read in at sentencing relates to 'an
offense for which the offender is ultimately sentenced.'" Id.,
¶32. This meant the defendant was entitled to credit.4 Id.
¶15 Applying our decision in Floyd, Fermanich is entitled
to credit on the Langlade County charge.5 Fermanich signed a
A few years after State v. Floyd, 2000 WI 14, 232
4
Wis. 2d 767, 606 N.W.2d 155, we held that read-in charges do not
necessarily require a defendant to admit guilt. State v.
Straszkowski, 2008 WI 65, ¶97, 310 Wis. 2d 259, 750 N.W.2d 835.
We acknowledged that some of our prior cases——such as Floyd——
stated that read-ins constitute admissions. Id., ¶89. But
after consulting the statutory definition of read-in crimes
(which made no mention of admissions), as well as a wide array
of cases on the subject, we concluded that circuit courts should
not "deem the defendant to admit as a matter of law to the read-
in crime for purposes of sentencing." Id., ¶¶59-92. We
withdrew language from prior cases, including Floyd, suggesting
otherwise. Id., ¶95.
In his brief, Fermanich contends he admitted to the charges
when the cases were consolidated. The State does not contest
this point. Thus, neither party argues that Straszkowski
changes the calculus regarding Floyd's application to the facts
of this case, so we do not address it.
Instead of applying Floyd, the dissent contends it should
5
be overruled, which no party asked us to do. See Serv. Emps.
Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946
N.W.2d 35 ("We do not step out of our neutral role to develop or
construct arguments for parties; it is up to them to make their
case.").
8
No. 2021AP462-CR
signature bond on the Langlade County charge, similar to the
personal recognizance bond signed by the defendant in Floyd.
Id., ¶2. But Fermanich spent time in custody on the Oneida
County charges that were dismissed and read in at sentencing,
the same way the defendant in Floyd spent time in custody on the
armed robbery charge that was dismissed and read in at
sentencing. Id., ¶¶3, 6. Thus, per Floyd, Fermanich's
confinement on the Oneida County charges, which were read in at
sentencing, related under Wis. Stat. § 973.155(1)(a) to the
Langlade County charge——the charge for which Fermanich was
ultimately sentenced. Id., ¶32. Fermanich is therefore
entitled to credit on that sentence just as the defendant in
Floyd was entitled to credit on his reckless endangerment charge
for his confinement on the armed robbery charge. Id.
¶16 The State does not ask us to overrule Floyd. Instead,
it argues that Floyd does not control because Fermanich already
received credit for the dismissed and read-in charges when the
circuit court awarded him credit on the two Oneida County
charges for which he was sentenced. The State misreads Floyd.
The defendant in Floyd received credit because the confinement
on the armed robbery charge became related to the reckless
endangerment charge when the circuit court considered them
together at the sentencing hearing. Id. The same applies here.
The dismissed and read-in Oneida County charges were considered
alongside the Langlade County charge for which the circuit court
ultimately sentenced Fermanich. Therefore, Floyd does control
9
No. 2021AP462-CR
the outcome here and Fermanich is entitled to credit for the 433
days he spent in the Oneida County Jail on the Langlade County
charge.
III. CONCLUSION
¶17 Fermanich was in custody in the Oneida County Jail for
offenses in that county. At sentencing, three of those offenses
were dismissed and read in alongside three counts he pled no
contest to, one of which originated in Langlade County. Under
Floyd, pre-trial confinement on a dismissed and read-in charge
relates to an offense for which the offender is ultimately
sentenced. Id. Applied here, that means that the confinement
on the dismissed and read-in Oneida County charges related to
the Langlade County charge. Fermanich is therefore entitled to
credit on that charge for time spent in custody in the Oneida
County Jail.
By the Court.—The decision of the court of appeals is
reversed.
10
No. 2021AP462-CR.rfd
¶18 REBECCA FRANK DALLET, J. (concurring). One
September night, Michael Fermanich stole three trucks in
Langlade County, one after the other, before crashing the third
into a creek in neighboring Oneida County. For this less than
two hour episode, Fermanich racked up numerous charges which
were filed in separate cases in the two counties. Unable to
post bail on the Oneida County charges, Fermanich spent 433 days
in pre-trial custody in the Oneida County Jail. Eventually, all
of the pending charges were consolidated into a single case in
Langlade County, and Fermanich pleaded no contest to three
offenses1: (1) operating a motor vehicle without the owner's
consent in Langlade County, (2) operating a motor vehicle
without the owner's consent in Oneida County, and (3) fleeing
and eluding in Oneida County. The circuit court sentenced
Fermanich to 18 months of initial confinement and 24 months of
extended supervision for each of these counts,2 with the
sentences to be served concurrently.
¶19 The central question in this case is how much sentence
credit Fermanich is due on count one——operating a motor vehicle
without the owner's consent in Langlade County. The answer to
that question is important because everyone agrees that
Fermanich is entitled to 433 days of credit against his
The remaining five counts were dismissed and read in at
1
sentencing.
As explained in the majority opinion, the circuit court
2
initially withheld sentence and placed Fermanich on probation.
See majority op., ¶7. After several probation violations, the
circuit court revoked probation and imposed this sentence. Id.,
¶8.
1
No. 2021AP462-CR.rfd
sentences on both of his Oneida County convictions for the time
he spent in pre-trial custody in Oneida County. Given that the
circuit court imposed concurrent sentences, that credit would be
meaningless if Fermanich is not entitled to the same credit
against the sentence on his Langlade County conviction. He
would have to serve 433 additional days in prison.
¶20 To decide Fermanich's entitlement to sentence credit
we should begin with the text of the relevant statute, Wis.
Stat. § 973.155(1)(a). That statute says that "[a] convicted
offender shall be given credit toward the service of his or her
sentence for all days spent in custody in connection with the
course of conduct for which sentence was imposed." Id.(emphasis added). Section 973.155(1)(a) doesn't define "course
of conduct," but it is a common phrase with a familiar meaning.
It simply refers to two or more acts, connected to each other by
a common purpose or intention.3 Many statutes define the phrase
similarly. See, e.g., Wis. Stat. § 940.32(1)(a) ("'Course of
conduct' means 2 or more acts carried out over time, however
short or long, that show a continuity of purpose.");
§ 947.013(1)(a) ("'Course of conduct' means a pattern of conduct
composed of a series of acts over a period of time, however
short, evidencing a continuity of purpose."); see also
3 See, e.g., Course, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/course (defining
"course" as "accustomed procedure or normal action," "an ordered
process or succession," and "the act or action of moving in path
from point to point"); Conduct, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/conduct (describing
conduct as an "act, manner, or process of carrying on")
2
No. 2021AP462-CR.rfd
§ 943.204(1)(b) (incorporating the definition in § 947.013(1)(a)
by reference).
¶21 Although § 973.155(1)(a) doesn't expressly incorporate
these definitions, they all mirror the way an ordinary person
might use the phrase "course of conduct" when applied to a
series of criminal acts. For example, if someone robs a bank
and flees the scene, leading the police on a high speed chase,
one might refer to those acts together as a "course of conduct."
While the theft and the fleeing are different acts that might
support different criminal charges, they are nevertheless part
of a single course of conduct because they are united by a
common purpose——stealing from the bank.
¶22 So too for Fermanich's actions. He stole three
different trucks from three different locations in Langlade
County. The police finally caught up with him in Oneida County.
While fleeing from the police, he crashed the third stolen
truck. Fermanich's purpose was stealing trucks, and his one-
after-the-other-after-the-other crime spree is a classic example
of a course of conduct. As the circuit court correctly put it,
"[t]his was all the same course of conduct. It happened on the
same day within a short period of time. The only reason we're
dealing with this issue is because it happened to spill over a
county line."
¶23 Given that Fermanich's actions were all part of the
same course of conduct, he is entitled to the same credit
against his sentences on all three counts under § 973.155(1)(a).
As explained previously, defendants are entitled to credit for
3
No. 2021AP462-CR.rfd
pre-trial custody "in connection with the course of conduct for
which sentence [is] imposed." Id. In other words, if a
defendant is held in pre-trial custody for an offense that is
part of a broader course of conduct, he is entitled to credit
for that time so long as he is ultimately convicted of an
offense that is also part of that same course of conduct. That
is what happened here. The 433 days Fermanich "spent in
custody" were for driving a stolen vehicle from Langlade County
into Oneida County and using it to flee and obstruct officers.
Id. This conduct was part of the same "course of conduct for
which sentence was imposed"——stealing trucks in Langlade County,
driving one into Oneida County, and, when caught, fleeing from
the police. Id. Therefore, Fermanich is entitled to credit.
¶24 This interpretation of § 973.155(1)(a)
straightforwardly applies its text and furthers the statute's
purpose——"to afford fairness by ensuring 'that a person [does]
not serve more time than that for which he is sentenced.'" See
State v. Johnson, 2007 WI 107, ¶70, 304 Wis. 2d 318, 735
N.W.2d 505 (quoting State v. Beets, 124 Wis. 2d 372, 379, 369
N.W.2d 382 (1985)). Nevertheless, cases interpreting
§ 973.155(1)(a) have strayed a long way from its text. Since at
least the court of appeals' decision in State v. Tuescher, 226
Wis. 2d 465, 595 N.W.2d 443 (Ct. App. 1999) and our decision in
State ex rel. Thorson v. Schwarz, 2004 WI 96, 274 Wis. 2d 1, 681
N.W.2d 914, courts have rejected a reading of § 973.155(1)(a)'s
"course of conduct" language that would cover all parts of "the
same criminal episode." Tuescher, 226 Wis. 2d at 471. Instead,
4
No. 2021AP462-CR.rfd
they read § 973.155(1)(a) to apply only to time a defendant
spends in custody in connection with "the specific 'offense or
acts' embodied in the charge for which the defendant is being
sentenced." Tuescher, 226 Wis. 2d at 471 (quoting another
source); see also Schwarz, 274 Wis. 2d 1, at ¶31 (discussing
Tuescher's interpretation of the phrase). Under this
interpretation, if my hypothetical bank robber were held in pre-
trial custody only on a charge of fleeing the police, he would
not receive any sentence credit for that time if he were
ultimately convicted and sentenced only for the bank robbery.
¶25 There are many reasons to reject this overly narrow
interpretation. For starters, it reads the words "course of"
out of § 973.155(1)(a). If the legislature intended for credit
to be available only for "the specific 'offense or acts'" for
which the defendant is being sentenced, see Tuescher, 226
Wis. 2d at 471 (quoting another source), then it could easily
have written a statute entitling defendants to credit only "for
all days spent in custody in connection with the conduct for
which sentence was imposed." See § 973.155(1)(a). But the
legislature did not do so. Moreover, by using the phrase
"course of conduct," the legislature focused the sentence-credit
inquiry directly on the factual relationship between the conduct
for which a defendant was in custody and the conduct for which
sentence was imposed. See id.; see also State v. Carter, 2010
WI 77, ¶56, 327 Wis. 2d 1, 785 N.W.2d 516 (explaining that "it
is the factual connection between custody and the conduct for
which sentence is imposed that is controlling"). The analysis
5
No. 2021AP462-CR.rfd
required by § 973.155(1)(a)'s text is thus at odds with Tuescher
and Schwarz's narrow focus on just "the specific 'offense or
acts' embodied in the charge for which the defendant is being
sentenced." Tuescher, 226 Wis. 2d at 471 (quoting another
source); see also Schwarz, 274 Wis. 2d 1, at ¶31.
¶26 We should therefore consider realigning our
interpretation of § 973.155(1)(a) with its text in an
appropriate case. But we need not do so here because, as the
majority opinion correctly explains, our decision in Floyd
governs.4 Floyd makes clear that Fermanich is entitled to the
sentence credit he seeks under a different part of
§ 973.155(1)(a). See State v. Floyd, 2000 WI 14, ¶32, 232
Wis. 2d 767, 606 N.W.2d 155, abrogated on other grounds by State
v. Straszkowski, 2008 WI 65, ¶¶89, 95, 310 Wis. 2d 259, 750
N.W.2d 835. I therefore join the majority opinion in full and
respectfully concur.
4 Moreover, the parties did not ask us directly to revisit
our precedent.
6
No. 2021AP462-CR.akz
¶27 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). We
accepted this case for review in order to determine the meaning
of the phrase "all days spent in custody in connection with the
course of conduct for which sentence was imposed" under Wis.
Stat. § 973.155(1)(a), Wisconsin's sentence credit statute. But
the majority neglects to answer this question. The majority
instead rests its decision on a precedent that is entirely
disconnected from the statutory text. The result is that
Fermanich receives credit for time spent in custody toward a
sentence that has no connection to his previous custody, based
on offenses for which he was neither convicted nor sentenced.
¶28 This case involves Fermanich's series of motor vehicle
thefts, which occurred in both Langlade and Oneida counties on a
single night. He was subsequently held in custody for the
Oneida County charges but posted bond on the Langlade County
charges, meaning his custody was unrelated to those charges.
Fermanich later pled no contest to one of the Langlade County
counts and two of the Oneida County counts. The remaining
charges were read in at sentencing.
¶29 Wisconsin Stat. § 973.155(1)(a) entitles a convicted
defendant to sentence credit "for all days spent in custody in
connection with the course of conduct for which sentence was
imposed." Although Fermanich is entitled to credit for the
Oneida County counts, he is not entitled to credit for the
Langlade County counts because his custody in Oneida County was
not connected to the conduct underlying the Langlade County
counts. Fermanich's separate offenses also do not constitute
1
No. 2021AP462-CR.akz
the same "course of conduct." The conduct underlying each
offense occurred at a different time, in a different place,
using different acts than were required to prove the other
offenses. His Langlade County conduct was not connected to his
custody, so he is not entitled to sentence credit toward any
Langlade County count.
¶30 The majority, however, reaches the opposite
conclusion. It does so based not on the language of the
statute, but instead on the erroneous conclusion in State v.
Floyd that a defendant is entitled to sentence credit based on
read-in charges. This directive is absurd and must be
overruled. It is impossible to grant sentence credit for read-
in charges because defendants are not sentenced for read-in
charges. Floyd deals with this hurdle by granting credit toward
a sentence even if the sentence is not imposed for conduct
connected to the defendant's custody. Floyd's result is flatly
at odds with the language of Wis. Stat. § 973.155, and we should
bring clarity to this area of law by overruling it. Because the
majority fails to do so, I respectfully dissent.
I. FACTUAL BACKGROUND
¶31 On September 30, 2017, Michael Fermanich committed a
series of crimes. He stole three trucks, one after the other,
in Langlade County. He stole the first truck in the Town of
Antigo. After driving that truck to the Town of Peck, Fermanich
abandoned it and proceeded to steal a second truck. He drove
that second truck to the Town of Parish, where he abandoned that
2
No. 2021AP462-CR.akz
truck and stole a third. The trucks were each owned by separate
individuals.
¶32 After stealing the third truck, Fermanich drove into
Oneida County. He led officers on a pursuit throughout Oneida
County before losing control of the stolen truck and running it
off the road into a ditch. He was arrested and charged in
Oneida County with five offenses, each involving conduct that
took place in Oneida County: operating a motor vehicle without
the owner's consent contrary to Wis. Stat. § 943.32(2), two
counts of attempting to flee or elude an officer contrary to
Wis. Stat. § 346.04(3), obstructing an officer contrary to Wis.
Stat. § 946.41(1), and failure to obey a traffic officer or
signal contrary to Wis. Stat. § 346.04(2t). He was held in the
Oneida County jail on cash bail.
¶33 Two months later, on January 29, 2018, Fermanich was
charged in Langlade County with one count of taking and driving
a motor vehicle without the owner's consent contrary to Wis.
Stat. § 943.23(2), and two counts of operating a vehicle without
the owner's consent contrary to Wis. Stat. § 943.23(3). Each
offense involved conduct that took place in Langlade County.
Fermanich made his initial appearance in Langlade County and
signed a $10,000 signature bond on February 6, 2018. As the
majority correctly observes, "[b]y signing the signature bond,
Fermanich was free to go for purposes of the Langlade County
charges." Majority op., ¶5.
¶34 The cases were consolidated, and the State amended the
Langlade County information to include the Oneida County
3
No. 2021AP462-CR.akz
charges. At a plea and sentencing hearing in Langlade County
circuit court on December 6, 2018, Fermanich pled no contest to
one of the Langlade County charges (count 1) and two of the
Oneida County charges (counts 4 and 5). All other counts were
dismissed and read in at sentencing. The circuit court withheld
sentencing, imposed five years' probation, and concluded
Fermanich was entitled to 433 days of sentence credit on counts
4 and 5 for the time he spent in the Oneida County jail if
probation was later revoked.
¶35 In 2020, Fermanich's probation was revoked, and the
circuit court imposed a sentence consisting of 18 months'
initial confinement and 24 months' extended supervision. The
circuit court imposed this same sentence for each of the three
counts to be served concurrently. The issue is whether
Fermanich's 433 days of sentence credit for the time spent in
the Oneida County jail applies against his sentences for all
three counts or just the counts arising out of Fermanich's
conduct in Oneida County, counts 4 and 5.1
II. STANDARD OF REVIEW
¶36 The question in this case "presents a straightforward
issue of statutory interpretation that we review de novo."
Backus v. Waukesha Cnty., 2022 WI 55, ¶8, 402 Wis. 2d 764, 976
N.W.2d 492. "[W]e have repeatedly held that statutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
1 The parties agree that Fermanich is entitled to 433 days
of credit on counts 4 and 5.
4
No. 2021AP462-CR.akz
inquiry.'" State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
"Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." Id. "Therefore, statutory language is interpreted in
the context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or
unreasonable results." Id., ¶46. Legislative history may be
"consulted to confirm or verify a plain-meaning interpretation."
Id., ¶51.
III. ANALYSIS
¶37 Unlike the majority, I begin with the essential task
of attempting to find meaning in the statutory text. See id.,
¶44 ("It is, of course, a solemn obligation of the judiciary to
faithfully give effect to the laws enacted by the legislature,
and to do so requires a determination of statutory meaning.").
I then explain that Wis. Stat. § 973.155's plain meaning does
not entitle Fermanich to credit on count 1. Finally, I discuss
Floyd and conclude it should be overruled because its ruling is
directly contrary to the language of the statute Floyd purported
to interpret.
A. Wisconsin Stat. § 973.155(1)(a)'s Proper Interpretation
¶38 Fermanich argues he is entitled to 433 days of
sentence credit on count 1 because his confinement in Oneida
5
No. 2021AP462-CR.akz
County was "in connection with the course of conduct for which
sentence was imposed" under Wis. Stat. § 973.155(1)(a),
Wisconsin's sentence credit statute. According to Fermanich,
this is so because "all three counts arose from a single course
of conduct." The State argues the counts did not arise from the
same "course of conduct." Instead, the phrase "course of
conduct" means "the 'specific acts' or offense for which
sentence was imposed." Because Fermanich was never in custody
for the same specific acts for which sentence was imposed on
count 1, the State argues Fermanich is not entitled to 433 days
of credit on count 1.
¶39 Wisconsin Stat. § 973.155(1), Wisconsin's sentence
credit statute, provides in relevant part:
(a) A convicted offender shall be given credit
toward the service of his or her sentence for all days
spent in custody in connection with the course of
conduct for which sentence was imposed. As used in
this subsection, "actual days spent in custody"
includes, without limitation by enumeration,
confinement related to an offense for which the
offender is ultimately sentenced, or for any other
sentence arising out of the same course of conduct,
which occurs:
1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of
sentence after trial.
(b) The categories in par. (a) and sub. (1m)
include custody of the convicted offender which is in
whole or in part the result of a probation, extended
supervision or parole hold under s. 302.113(8m),
302.114(8m), 304.06(3), or 973.10(2) placed upon the
person for the same course of conduct as that
resulting in the new conviction.
6
No. 2021AP462-CR.akz
The statute is remarkably uncomplicated. A convicted defendant
receives sentence credit for "all days spent in custody." Those
days spent in custody must be "in connection with the course of
conduct for which sentence was imposed." If a defendant was in
custody for a course of conduct, and later sentenced for that
same course of conduct, the defendant receives credit.
¶40 The question this case presents is what constitutes a
"course of conduct." One need look no further than the
statutory text to find the answer: "course of conduct" refers
to the conduct underlying the offense for which the defendant is
convicted and sentenced. We know this based on the statute's
definition of "actual days spent in custody." After stating the
"actual days spent in custody" must be "in connection with the
course of conduct for which sentence was imposed," the statute
restates and clarifies this requirement. "[A]ctual days spent
in custody" includes "confinement related to an offense for
which the defendant is ultimately sentenced, or for any other
sentence arising out of the same course of conduct." Wis. Stat.
§ 973.155(1)(a).
¶41 "[A]ctual days spent in custody" therefore includes
confinement related to either the "offense" or the "course of
conduct" for which the defendant was ultimately sentenced. This
language draws a distinction between a "course of conduct" and
an "offense," which makes sense because the same conduct can
give rise to multiple statutory offenses. This reality is well
recognized in the law generally. As we have stated in the area
of double jeopardy:
7
No. 2021AP462-CR.akz
[T]his court was one of many state courts signifying
the distinction between acts and offenses by stating:
"'The test is not whether the defendant has already
been tried for the same act, but whether he has been
put in jeopardy for the same offense.'" State v.
Brooks, 215 Wis. 134, 140, 254 N.W. 374 (1934)
(quoting Morey v. Commonwealth, 108 Mass. 433, 434
(1871)). The same distinction between acts and
offenses has long been noted by scholars and treatise
writers addressing the double jeopardy questions posed
by multiple prosecutions. E.g., I Wharton's Criminal
Law 509 (11th ed. 1912) ("Same act may constitute two
or more offenses which are distinct from each
other.").
State v. Hansen, 2001 WI 53, ¶29, 243 Wis. 2d 328, 627
N.W.2d 195 (footnote omitted). Recognizing this distinction,
the statute provides credit for confinement that is related to
either the "offense" for which the defendant is sentenced or the
"course of conduct" for which the defendant is sentenced.
Because a single "course of conduct" can give rise to multiple
"offense[s]," the statute ensures the defendant receives credit
regardless of the specific statutory offense for which the
defendant is ultimately sentenced. It does so by providing
credit based on the "course of conduct" underlying the offense,
as opposed to providing credit based on the offense alone. This
makes clear that when the statute says "course of conduct," it
is referring to the conduct underlying the offense for which the
defendant is sentenced.
¶42 Wisconsin Stat. § 973.155's legislative history and
our precedent support this plain meaning. We previously
examined the statute's legislative history in State v.
Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988). We began by
discussing Klimas v. State, 75 Wis. 2d 244, 249 N.W.2d 2858
No. 2021AP462-CR.akz
(1977), which we decided before the legislature first enacted
the sentence credit statute. In Klimas, "[t]his court
specifically invited the legislature's attention to the existing
federal law, 18 U.S.C.A. sec. 3568. We stated that the federal
law being 'simple and . . . just' had much to recommend . . . ."
Boettcher, 144 Wis. 2d at 91 (alterations in original) (quoting
Klimas, 75 Wis. 2d at 251). A month after we made this
recommendation, the legislature followed suit. Id. It enacted
§ 973.155 using the very same wording that exists today. § 9,
ch. 353, Laws of 1977.
¶43 Our review of legislative history revealed that Wis.
Stat. § 973.155 is rooted "in the federal sentence-credit
statute, 18 U.S.C. sec. 3568,[2] and in the Model Penal Code sec.
2 The sentence of imprisonment of any person convicted
of an offense shall commence to run from the date on
which such person is received at the penitentiary,
reformatory, or jail for service of such sentence.
The Attorney General shall give any such person credit
toward service of his sentence for any days spent in
custody in connection with the offense or acts for
which sentence was imposed. As used in this section,
the term 'offense' means any criminal offense, other
than an offense triable by court-martial, military
commission, provost court, or other military tribunal,
which is in violation of an Act of Congress and is
triable in any court established by Act of Congress.
If any such person shall be committed to a jail or
other place of detention to await transportation to
the place at which his sentence is to be served, his
sentence shall commence to run from the date on which
he is received at such jail or other place of
detention.
No sentence shall prescribe any other method of
computing the term.
18 U.S.C. § 3568 (1977).
9
No. 2021AP462-CR.akz
7.09" and that "our legislature intended a statute with the same
meaning." Id. at 92–93. A report in the legislative drafting
file explained:
If enacted, the Bill would clarify a currently unclear
and chaotic area of the law . . . and would bring
Wisconsin law into conformity with the recommended
minimum criminal justice sentencing standards of the
American Bar Association, Section 7.09 of the American
Law Institute's Model Penal Code, federal criminal
sentencing procedures as set forth in 18 U.S.C.
s. 3568 and the laws of many other states.
Id. at 92 (quoting Wisconsin Legislative Council Report No. 6 to
the 1977 Legislature: Legislation Relating to Credit for Time
in Jail, 2). We also observed that the federal statute uses
similar language to § 973.155. "[E]ach uses the language, 'in
connection with,'——in the state statute, 'in connection with the
course of conduct for which sentence was imposed,' and in the
federal statute, 'in connection with the offense or acts for
which sentence was imposed.'" Id. at 93. "We perceive[d] no
meaningful difference between" the two statutes. Id. The
Model Penal Code similarly used the phrase, "the crime for which
such sentence is imposed," and "[t]he comments note that
'obviously,' if the detention were for the 'same series of acts
as the sentence,' presentence credit would not depend on their
being the same crime in a narrow sense." Id. at 97-98. Based
on this review of the text and the legislative history, we
arrived at an interpretation that confirms the plain meaning
explained above and illustrates the distinction between an
"offense" and a "course of conduct":
[I]t would appear that the drafters of the Wisconsin
statute, who acknowledged their use of the MPC as a
10
No. 2021AP462-CR.akz
model, simply avoided the problem inherent in the
MPC's use of the phrase, "for the crime for which such
sentence is imposed." Thus, in order to make clear
that the defendant is entitled to credit for time
served pretrial, even if he is ultimately convicted of
a different crime than that charged, the drafters of
the Wisconsin statute hit upon the idea of referring
to the defendant's objectionable behavior as a "course
of conduct." In this way, there could be no argument
that a defendant who was charged with rape, but
convicted of assault, should not get his full
presentence credit. Instead, because both the rape
charge and the assault conviction arose out of the
"same course of conduct," he clearly was entitled to
credit.
Id. at 98. This confirms that "course of conduct" refers to the
conduct underlying the offense for which sentence was imposed.
¶44 The court of appeals later relied on our decision in
Boettcher in a case that presented the same question as the
present case. State v. Tuescher, 226 Wis. 2d 465, 595
N.W.2d 443 (Ct. App. 1999), involved a defendant who
"burglarized a restaurant while armed with a shotgun" and,
"[w]hen police confronted [the defendant] as he left the
restaurant, he exchanged gunfire with them and wounded an
officer." Id. at 467. He was charged and sentenced for
attempted second-degree intentional homicide, attempted burglary
while armed, and possession of a firearm by a felon. Id. at
467-68. He "received 224 days credit on each of the three
concurrent sentences for time he spent in custody prior to
sentencing." Id. at 468. The attempted homicide conviction was
eventually overturned, and the defendant later pled guilty to
the lesser charge of first-degree reckless injury. Id. The
issue was whether the defendant was entitled to credit for the
11
No. 2021AP462-CR.akz
time spent "serving the other two sentences" but not "serving a
sentence for the shooting of the police officer." Id.
¶45 Resolving that issue, like in the present case,
"turn[ed] on our interpretation of the phrase 'course of
conduct' in [Wis. Stat.] § 973.155." Id. at 470. The defendant
argued he was entitled to credit because "his burglary and
firearm possession sentences 'arise out of the same course of
conduct' for which the reckless injury sentence was imposed."
Id. Relying in part on our decision in Boettcher, the court of
appeals disagreed. It concluded, even though the defendant's
offenses "were committed virtually simultaneously," the
sentences did not arise from the same course of conduct because
the sentences were not "based on the same specific acts."3 Id.
at 475. The acts underlying the offenses——burglarizing the
restaurant and shooting an officer——were different, so they did
not constitute the same "course of conduct."
¶46 We embraced Tuescher's interpretation of "course of
conduct" five years later in State ex rel. Thorson v. Schwarz,
2004 WI 96, 274 Wis. 2d 1, 681 N.W.2d 914. Thorson involved a
defendant who was convicted of attempted second-degree sexual
assault and false imprisonment, and sentenced to 13 years in
The court of appeals also relied on its earlier decision
3
in State v. Gavigan, 122 Wis. 2d 389, 362 N.W.2d 162 (Ct. App.
1984), where it concluded a robbery and later act of fleeing the
police, though "closely related," were not the same "course of
conduct." Id. at 393. See also State v. Beets, 124
Wis. 2d 372, 381-83, 369 N.W.2d 382 (1985) (approving of Gavigan
and stating "it is clear that, unless the acts for which the
first and second sentences are imposed are truly related or
identical, the sentencing on one charge severs the connection
between the custody and the pending charges").
12
No. 2021AP462-CR.akz
prison. Id., ¶2. "Shortly before his scheduled release, the
State commenced an action to commit [the defendant] as a
sexually violent person pursuant to Chapter 980. Thus, instead
of being released from custody, [the defendant] was transferred
to the Wisconsin Resource Center (WRC) for further evaluation."
Id., ¶3. A jury declined to commit the defendant, and he was
released on parole. Id., ¶4. He later violated parole and was
incarcerated for ten months. Id., ¶6. The defendant sought
sentence credit for the time at the WRC awaiting the Chapter 980
trial. Id., ¶7.
¶47 We concluded the defendant was not entitled to
sentence credit for the time spent at the WRC because it was not
"in connection with the course of conduct for which sentence was
imposed."4 Id., ¶30. We began by recognizing that "[t]he phrase
'course of conduct' was explicitly construed by the court of
appeals in Tuescher" as meaning "the specific 'offense or acts'
embodied in the charged for which the defendant is being
sentenced," not a mere "criminal episode." Id., ¶31 (quoting
Tuescher, 226 Wis. 2d at 471). We then applied Tuescher's
definition, concluding the defendant "was not detained for the
specific offense that caused his original conviction. Rather,
the filing of a Chapter 980 petition was the reason for his
detention." Id., ¶34.
4 We also concluded the defendant was not entitled to credit
because he was not "in custody" for purposes of the sentence
credit statute. State ex rel. Thorson v. Schwarz, 2004 WI 96,
¶29, 274 Wis. 2d 1, 681 N.W.2d 914.
13
No. 2021AP462-CR.akz
¶48 The case now before the court presents one of those
rare circumstances where nearly every data point leads to the
same answer. The statutory text, the legislative history, and
the case law all converge on one interpretation of "course of
conduct" under Wis. Stat. § 973.155. It means the conduct
underlying the offense for which the defendant was sentenced——or
as Tuescher put it, "the specific 'offense or acts' embodied in
the charge for which the defendant is being sentenced."5
Tuescher, 226 Wis. 2d at 471.
B. Application to This Case
¶49 Applying this straightforward definition of "course of
conduct," it is clear that Fermanich is not entitled to credit
on count 1, which relates to an offense Fermanich committed in
Langlade County. "[T]wo conditions must be met in order for a
defendant to receive sentence credit: (1) the defendant must
have been 'in custody' for the period in question; and (2) the
period 'in custody' must have been 'in connection with the
course of conduct for which the sentence was imposed.'"
Thorson, 274 Wis. 2d 1, ¶15 (quoting Wis. Stat.
§ 973.155(1)(a)).
5One should not confuse "specific acts" with "specific
act." Often there are multiple acts, as opposed to just one
act, which are required to establish a statutory offense, such
as conspiracy. See Wis. Stat. § 939.31. This is why Wis. Stat.
§ 973.155(1) uses "course of conduct" rather than "conduct."
This rule is sensible and easy to apply. It merely
requires comparing the conduct underlying the offense for which
the defendant was sentenced and the conduct connected to the
defendant's custody. There is no need to engage in a vague,
subjective inquiry into the defendant's purpose.
14
No. 2021AP462-CR.akz
¶50 It is undisputed that Fermanich was "in custody" for
433 days. The only issue is whether that custody was "in
connection with the course of conduct for which the sentence was
imposed." It was not. Fermanich's custody was in connection
with only the Oneida County charges, not count 1——the Langlade
County charge. He failed to post cash bail on the Oneida County
charges, meaning he was "in custody" for purposes of those
charges. But his custody was unrelated to any of the Langlade
County charges. Fermanich "was incarcerated in the Oneida
County Jail based on his charges there," not based on count 1.
Majority op., ¶5. He signed a signature bond and was therefore
"free to go for purposes of the Langlade County charges." Id.¶51 Fermanich's argument that the conduct underlying all
of the charges is the same "course of conduct" clearly fails
under Wis. Stat. § 973.155's clear meaning. A "course of
conduct" is the conduct underlying the offense for which
sentence was imposed. Fermanich was sentenced for three
offenses: count 1, operating a vehicle without the owner's
consent in Langlade County; count 4, operating a vehicle without
the owner's consent in Oneida County; and count 5, fleeing and
eluding an officer in Oneida County. The conduct underlying
count 1 is not the same as the conduct underlying the Oneida
County counts. Fermanich took a truck in Langlade County
without the owner's permission and operated it in Langlade
County. The other counts involve different acts, namely
operating the truck at a different point in time and eluding law
enforcement. The conduct underlying count 1 occurred at a
15
No. 2021AP462-CR.akz
different time, in a different place, using different acts than
were required to prove the other offenses. It is a different
"course of conduct."
¶52 As a result, because the conduct underlying count 1 is
not the same "course of conduct" as the conduct underlying the
other counts, and because Fermanich's custody was not in
connection with count 1 due to the signature bond, he is not
entitled to sentence credit on count 1.
C. State v. Floyd
¶53 This case presents the opportunity to bring clarity to
the law. The majority declines this opportunity, instead
applying State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606
N.W.2d 155, which erroneously held "that Wis. Stat. § 973.155(1)
requires sentence credit for confinement on charges that are
dismissed and read in at sentencing." Id., ¶1. This approach
endorses an "unclear and chaotic" sentencing regime much like
what the legislature sought to avoid when it enacted Wis. Stat.
§ 973.155.
¶54 Floyd involved a defendant who "was charged with
recklessly endangering safety while armed with a dangerous
weapon, carrying a concealed weapon, fourth-degree sexual
assault, disorderly conduct, and criminal trespass." Id., ¶2.
"He was released on a $3,500 personal recognizance bond," but
was subsequently re-arrested for a later armed robbery. Id.,
¶¶2-3. Unable to post bond, he remained in custody. Id., ¶3.
As part of a plea agreement, the State dismissed the armed
robbery charge and instead filed a felony bail jumping charge.
16
No. 2021AP462-CR.akz
Id., ¶4. The defendant "pled guilty to both the original
reckless endangerment charge and the felony bail jumping charge
with the understanding that all remaining charges, including the
armed robbery charge, would be dismissed and read in at
sentencing." Id. At sentencing, defense counsel asked that the
court grant 217 days of credit against all sentences for the
time the defendant spent in custody after his second arrest.
Id., ¶7.
¶55 From there, the resolution should have been simple.
The defendant's custody was never in connection with the
reckless endangerment charge because he posted bond on that
charge. His later custody was in connection with only the
felony bail jumping charge. Therefore, the defendant in Floyd
should have received credit toward his sentence for bail jumping
but not reckless endangerment.
¶56 But Floyd searched for ambiguity rather than meaning
in Wis. Stat. § 973.155. Floyd concluded the phrase "offense
for which the offender is ultimately sentenced" was ambiguous.
Id., ¶18. According to Floyd, it was possible to read the
statute either as "allow[ing] credit only on the charge for
which the offender is convicted" or as "includ[ing] credit for a
read-in offense upon which the sentence ultimately might be
based." Id., ¶19 (emphasis added). Based on § 973.155's
perceived purpose, and with a brief nod to the rule of lenity,
the court concluded it does permit credit for dismissed and
read-in offenses. Id., ¶¶31-32.
17
No. 2021AP462-CR.akz
¶57 Floyd made several important errors, and the majority
compounds those errors by applying it today. Most importantly,
Floyd skipped the essential work of attempting to find meaning
in the statute and summarily declaring it ambiguous. "[A]n
offense for which the offender is ultimately sentenced" is clear
as day: a sentence which is imposed for that offense. Wis.
Stat. § 973.155(1)(a). It is elementary that a court has no
ability to impose a sentence unattached to any offense for which
the court found the defendant guilty. Absent any independent
conviction, a defendant cannot be sentenced for a read-in
charge. As Floyd recognized, but apparently disregarded, "[a]n
offender does not run the risk of consecutive or concurrent
sentences based on read-in charges and, in that respect, is not
formally sentenced on these charges." Id., ¶26. It is simply
not the case that considering the defendant's conduct at the
sentencing stage means the sentence was imposed for that
conduct. That has never been the law. Austin v. State, 49
Wis. 2d 727, 732, 183 N.W.2d 56 (1971) ("Under our read-in
procedure, the defendant does not plead to any charges and
therefore is not sentenced on any of the read-in charges but
such admitted uncharged offenses are considered in sentencing
him on the charged offense.") (also referencing "[t]he English
practice of 'taking into account' [which] allowed consideration
of uncharged offenses at the request of the accused and, like
the Wisconsin practice, there was no conviction in respect to
such offenses"); cf. Witte v. United States, 515 U.S. 389, 399
(1995) ("[U]se of evidence of related criminal conduct to
18
No. 2021AP462-CR.akz
enhance a defendant's sentence for a separate crime within the
authorized statutory limits does not constitute punishment for
that conduct within the meaning of the Double Jeopardy
Clause.").
58 Second, Floyd applied credit to offenses that were
neither connected to any custody nor part of the same course of
conduct as offenses that were connected to custody.
Understandably, the defendant in Floyd did not ask for credit
toward his sentence for the read-in charge; he was not sentenced
for a read-in charge, so no such sentence existed. He instead
asked for credit toward his sentence for reckless endangerment.
Because Floyd concluded the defendant should receive credit
based on the read-in charges, but there was no sentence
accompanying those read-in charges, the court applied the credit
anywhere it could. The only option was the sentence for
reckless endangerment because the defendant already received
credit toward his sentence for bail jumping. But the defendant
was never in custody in connection with the conduct underlying
the reckless endangerment charge. He posted bail after his
initial arrest, meaning he was not in custody. Nor was the
conduct underlying the reckless endangerment charge part of the
course of conduct forming the basis for his later custody——
felony bail jumping.6
Floyd correctly concluded the same, characterizing the
6
connection between the reckless endangerment and bail jumping
offenses as procedural rather than factual. State v. Floyd,
2000 WI 14, ¶¶14-17, 232 Wis. 2d 767, 606 N.W.2d 155.
19
No. 2021AP462-CR.akz
¶59 In short, Wis. Stat. § 973.155(1)(a) entitles a
convicted offender to credit "for all days spent in custody in
connection with the course of conduct for which sentence was
imposed." "[T]wo conditions must be met in order for a
defendant to receive sentence credit: (1) the defendant must
have been 'in custody' for the period in question; and (2) the
period 'in custody' must have been 'in connection with the
course of conduct for which the sentence was imposed.'"
Thorson, 274 Wis. 2d 1, ¶15 (quoting Wis. Stat.
§ 973.155(1)(a)). Contrary to the statute, Floyd required that
sentence credit be granted toward the defendant's sentence for
reckless endangerment even though the defendant's custody was
not "in connection with the course of conduct for which the
sentence was imposed." In this case, blindly and unquestionably
applying Floyd, as the majority does, results in Fermanich
receiving credit toward his sentence based on a period spent in
custody that has no connection to that sentence. Floyd mandates
that sentence credit be awarded in a manner directly at odds
with the statutory text, and it must be overruled to restore
clarity, consistency, and sensibility to sentence credit
determinations.
IV. CONCLUSION
¶60 Wisconsin Stat. § 973.155(1) sets forth a simple and
understandable method for granting defendants sentence credit
for time served. If an offender was in custody in connection
with the conduct underlying the offense for which he was
ultimately sentenced, then the offender receives credit for that
20
No. 2021AP462-CR.akz
time spent in custody. Floyd upended this system by granting
credit based on offenses for which a defendant was neither
convicted nor sentenced, and applying that credit toward a
sentence disconnected from any time spent in custody. Because
the majority's decision to adhere to this erroneous precedent
completely strays from clear statutory language, I respectfully
dissent.
¶61 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
21
No. 2021AP462-CR.akz
1