State v. Travis J. Husnik ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 21, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP997-CR Cir. Ct. No. 2008CF526
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
TRAVIS J. HUSNIK,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Brown County:
THOMAS J. WALSH, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Travis Husnik appeals from the denial of his
postconviction motion for additional sentence credit, stemming from his
No. 2021AP997-CR
no-contest pleas to two counts of delivery of cocaine. The issue is whether Husnik
is entitled to dual credit toward his sentence on Count 1 based on the time he
already served on the sentence previously imposed on Count 2. We conclude the
counts did not involve the same course of conduct, and any connection that could
have existed was severed once Husnik began to serve his sentence on Count 2.
We affirm.
BACKGROUND
¶2 Husnik was convicted of two counts of manufacture/delivery of
cocaine, second or subsequent offenses.1 The circuit court sentenced Husnik to an
eight-year term of imprisonment on Count 2, consisting of four years of initial
confinement followed by four years of extended supervision. With respect to
Count 1, the court imposed and stayed a sentence of twenty years and it placed
Husnik on probation for eight years.2
¶3 Husnik appealed, arguing that the circuit court erroneously
calculated his sentence credit by not crediting time served on a previously imposed
sentence in a Kewaunee County cocaine delivery case. We rejected Husnik’s
arguments and affirmed the judgment of conviction.
¶4 After completing the initial confinement portion of his sentence on
Count 2, Husnik was released on extended supervision. Following his release, a
1
Husnik was also charged with battery to a peace officer. We will not further discuss
the battery charge as it is not relevant to Husnik’s sentence credit claim in this matter.
2
The circuit court did not specify whether Count 1 was to be concurrent or consecutive
to any other sentence. When the sentencing court does not state whether the sentence is
consecutive, the law presumes that it is concurrent. See State v. Oglesby, 2006 WI App 95,
¶¶20-21, 292 Wis. 2d 716, 715 N.W.2d 727.
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No. 2021AP997-CR
series of probation and extended supervision holds ensued. Husnik’s Count 1
probation was revoked, and, as a result, his imposed and stayed sentence on
Count 1 then took effect.
¶5 Husnik thereafter filed a motion asking the circuit court to award
him 2,320 days of sentence credit toward Count 1, including “additional sentence
credit toward his Count 1 sentence for all days spent in custody on Count 2.”
Husnik asserted that he was entitled to additional credit on Count 1 for 1,494 days
served on Count 2 because both counts arose from the same “course of conduct,”
and “the factual connection between the custody for the Count 2 offense and the
Count 1 offense was never severed, even though [he] began serving a prison
sentence on Count 2 and probation on Count 1.”
¶6 The circuit court issued a decision and order determining that
Husnik was entitled to a total of 1,073 days of sentence credit on Count 1,
consisting of 602 days of presentence custody for Count 1 for the time he spent in
custody until his sentencing in the Kewaunee County case, and 471 days of
sentence credit “for the time he spent in custody in connection with his many
probation violations in connection with Count 1.” However, the court denied
Husnik’s request for the 1,494 additional days of sentence credit for the time he
spent serving his sentence on Count 2. Relying on State v. Beets, 124 Wis. 2d
372, 369 N.W.2d 382 (1985), the court determined that “[o]nce Husnik started
serving his sentence for Count 2, his custody was solely in connection with
Count 2. Any connection between Count 1 and Count 2 was severed once Husnik
started to serve his sentence for Count 2.” Husnik now appeals.
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No. 2021AP997-CR
DISCUSSION
¶7 In his briefs on appeal, Husnik does not challenge the circuit court’s
credit computation and award of 1,073 days of credit based on his presentence
custody or probation holds. Furthermore, the State did not cross-appeal the court’s
decision to grant 1,073 days of credit. Accordingly, the issue before us concerns
the court’s denial of Husnik’s request to apply an additional 1,494 days he served
in custody on Count 2 toward his sentence on Count 1.
¶8 We affirm for two reasons. First, Husnik is not entitled to receive
sentence credit on Count 1 for his imprisonment on Count 2 because Counts 1
and 2 did not involve the same “course of conduct.” Second, once Husnik started
serving his sentence for Count 2, his custody was solely for Count 2. Service of a
sentence on Count 1 did not begin until years later when his probation was
revoked. Any connection that could be assumed between Counts 1 and 2 was
severed once Husnik began to serve his sentence on Count 2.
I. In connection with the course of conduct
¶9 WISCONSIN STAT. § 973.155(1)(a) (2021-22)3 states: “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 the sentence
was imposed.” As used in this subsection, actual days spent in custody include
both “confinement related to an offense for which the offender is ultimately
sentenced,” or confinement for any other sentence arising out of “the same course
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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No. 2021AP997-CR
of conduct,” which occurs while the offender is awaiting trial, being tried, and
awaiting imposition of sentence. State v. Marcus Johnson, 2007 WI 107, ¶4 n.2,
304 Wis. 2d 318, 735 N.W.2d 505. Time spent in custody also includes time spent
on “a probation, extended supervision or parole hold … placed upon the person for
the same course of conduct as that resulting in the new conviction.”
Sec. 973.155(1)(b).
¶10 To obtain the additional sentence credit requested on Count 1,
Husnik had the burden of showing: (1) he was “in custody” during the relevant
time period; and (2) the custody was “in connection with” the course of conduct
underlying his sentence on Count 1. See State v. Carter, 2010 WI 77, ¶11, 327
Wis. 2d 1, 785 N.W.2d 516. With respect to whether Husnik was “in custody”
during the relevant time period, neither his circuit court motion nor his briefs to
this court demonstrate that he served the 1,494 days on Count 2 that he wants
credited to Count 1. For example, Husnik’s motion did not include the Wisconsin
Department of Corrections’ sentence computation worksheets, which would show
the time that he was credited based on his presentence, sentence, and extended
supervision custody on Count 2. Husnik merely requests that we “remand to the
circuit court to determine the actual number of days spent ‘in custody’ on Count 2
that are to be credited toward Count 1’s sentence.” We decline this request,
however, because Husnik cannot satisfy WIS. STAT. § 973.155(1)’s “in connection
with” the course of conduct requirement.
¶11 “[I]n connection with” the course of conduct sentence credit
requirement involves more than a procedural showing that “the sentences are
concurrent and are imposed at the same time.” See State v. Elandis Johnson,
2009 WI 57, ¶¶2-3, 318 Wis. 2d 21, 767 N.W.2d 207. A defendant can earn
“credit towards a future sentence while serving another sentence only when both
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No. 2021AP997-CR
sentences are imposed for the same specific acts.” See State v. Tuescher, 226
Wis. 2d 465, 471, 475, 595 N.W.2d 443 (Ct. App. 1999).
¶12 Here, the sentences for Counts 1 and 2 were not imposed for the
same specific acts because they involved factually distinct cocaine delivery
offenses. Count 1 alleged that Husnik delivered approximately one ounce of
cocaine to an undercover narcotics investigator at a gas station on October 9,
2007. Count 2 alleged a separate delivery of one ounce of cocaine to the narcotics
investigator at a grocery store parking lot on October 17, 2007. Thus, the two
events occurred eight days apart at two different locations. Husnik’s sentences on
Counts 1 and 2 were not based on the same specific acts.
¶13 Husnik would have this court interpret “course of conduct” broadly
so as to encompass his entire criminal episode. This view is contrary to our
holding in Tuescher, where we interpreted “course of conduct” narrowly. In that
case, we determined that Tuescher’s act of burglary and the act of shooting at
officers as he fled the burglary scene were not based on the same specific acts. Id.
at 475.
¶14 If the defendant in Tuescher was not entitled to dual credit for
multiple crimes that occurred nearly simultaneously, then Husnik is not entitled to
dual credit for two crimes that occurred on two separate dates more than a week
apart and at two separate locations. Husnik’s imposed and stayed sentence on
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No. 2021AP997-CR
Count 1 did not arise from the same course of conduct as the imprisonment served
on Count 2. See id. at 474-75.4
II. Connection severed
¶15 Husnik is not entitled to dual sentence credit for another reason: any
connection between Counts 1 and 2 was severed once Husnik began to serve his
sentence on Count 2. The sentencing on one charge severs the connection
between the custody and the pending charges, unless the acts for which the first
and second sentences were imposed were truly related or identical. See Beets, 124
Wis. 2d at 383.
¶16 The circuit court fashioned Husnik’s sentences on Counts 1 and 2
during the same sentencing proceeding, but the structure of the sentences on the
two counts severed any connection. As mentioned, the court imposed a prison
sentence on Count 2, but the court imposed and stayed the sentence on Count 1
and placed Husnik on probation on that count. “Probation itself is generally not a
sentence,” but “an alternative to sentencing.” See State v. Horn, 226 Wis. 2d 637,
647, 594 N.W.2d 772 (1999). Husnik’s sentence on Count 2 commenced
immediately, whereas Husnik’s sentence on Count 1 was conditional, only
commencing if his probation was revoked. Once Husnik started serving his
sentence on Count 2, his custody was solely in connection with Count 2. The
imposition of the sentence on Count 2 severed any connection that may have
4
To the extent the circuit court implicitly assumed that Counts 1 and 2 arose from the
same course of conduct, it was in error. However, the court properly concluded that Husnik’s
imprisonment on Count 2 severed the connection between his custody and the course of conduct
for which his sentence on Count 1 was imposed. Accordingly, the court correctly determined that
Husnik was not entitled to credit on Count 1 for the 1,494 days of imprisonment time that he
served on Count 2.
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No. 2021AP997-CR
existed between that sentence and the stayed sentence on Count 1. Husnik was not
entitled to receive credit toward his sentence on Count 1 for his imprisonment on
Count 2, which began years before his sentence on Count 1 commenced. Husnik
has failed in his burden of showing that he was entitled to dual credit toward his
sentence on Count 1 based on the time he served on Count 2.
¶17 Husnik next argues that “fairness” and a “more inclusive
interpretation” of WIS. STAT. § 973.155(1) should advance his sentence credit
claims. Husnik further asserts that State v. Zahurones, 2019 WI App 57, 389
Wis. 2d 69, 934 N.W.2d 905, “stands for a nuanced application of the Beets
holding—on a case-by-case basis—when necessary to uphold the intent of the
original sentence for multiple offenses that are part of the same course of conduct
under a less narrow interpretation of the term.” Husnik urges that dual credit be
granted even though a defendant began serving the punishment for another charge,
as long as: (1) the sentences are concurrent; (2) all counts occurred as part of the
same course of conduct; (3) the credit prevents the defendant from being forced to
serve more time than his or her sentence calls for; and (4) the credit preserves the
sentencing court’s intent.
¶18 Zahurones is factually distinguishable from Husnik’s case.
Zahurones pled no contest to four counts “arising from a single course of
conduct.” Zahurones, 389 Wis. 2d 69, ¶1. The circuit court placed Zahurones on
probation on three counts and deferred entry of judgment on the fourth count
(Count 2) pending her successful completion of probation. Following violations
of probation, both Zahurones’ probation and the deferred entry of judgment
agreement were revoked, and she received concurrent sentences on all four counts.
Id. Zahurones later sought credit on Count 2 for holds that were placed on her
with respect to her other convictions. Id., ¶2.
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No. 2021AP997-CR
¶19 We granted credit against Zahurones’ sentence on Count 2 for the
time she was in custody on her probation holds for her three other sentences. Id.
We determined that all of the counts arose from the same course of
conduct: police entered Zahurones’ home and found drugs and drug paraphernalia
in her possession, her child was removed from the home and tested positive for
methamphetamine, Zahurones refused to follow the officers’ instructions, and she
resisted arrest. Id., ¶15. Unlike Zahurones’ crimes, Husnik’s cocaine deliveries
more than a week apart and at different locations did not arise out of a single
course of conduct and they are thus factually distinguishable.5
¶20 Contrary to Husnik’s perception, Zahurones did not “[apply] the
sentence credit statute in a way to prevent a seemingly unfair result.” To the
contrary, we observed that Zahurones was entitled to credit under WIS. STAT.
§ 973.155, “regardless of any equitable considerations that the [circuit] court
believed weighed against granting her sentence credit.” Zahurones, 389 Wis. 2d
69, ¶29; see also State v. Friedlander, 2019 WI 22, ¶44, 385 Wis. 2d 633, 923
N.W.2d 849. Section 973.155 is designed to ensure that a person serves neither
more nor less time than the court imposed. See Elandis Johnson, 318 Wis. 2d 21,
¶31. Granting Husnik credit toward his sentence on Count 1, which began years
after his sentence on Count 2 commenced, and which did not arise from the same
5
Husnik also relies upon State v. Ward, 153 Wis. 2d 743, 746, 452 N.W.2d 158(Ct. App. 1989), to argue that because his time was served in connection with more than one
charge and his sentences were concurrent, he is entitled to credit on both charges. Husnik’s
reliance on Ward is again misplaced. Husnik’s citation refers to a section of the Ward opinion
discussing a prior version of WIS JI—CRIMINAL SM-34A. See Ward, 153 Wis. 2d at 746. More
recently, our supreme court criticized this discussion of the paragraph in the Special Materials
referenced in Ward, noting that “[t]his whole paragraph is unfortunate because it is too broad.”
See State v. Elandis Johnson, 2009 WI 57, ¶¶58-59, 318 Wis. 2d 21, 767 N.W.2d 207.
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No. 2021AP997-CR
course of conduct, would frustrate the purpose of § 973.155 as well as the circuit
court’s intent when it imposed Husnik’s sentences on Counts 1 and 2.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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