State v. Michael K. Fermanich

2023 WI 48, 991 N.W.2d 340, 407 Wis. 2d 693

• Court: Wisconsin Supreme Court
• Decided: June 14, 2023
• Docket: 2021AP000462-CR
• Status: Published

Opinion

2023 WI 48

SUPREME 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REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 402 Wis. 2d 309, 974 N.W.2d 895 (2022 – unpublished)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 48 NOTICE 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

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

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 285

8 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

imposed." "[T]wo conditions must be met in order for a

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