State v. Fermanich

• Docket Number: 2021AP462-CR
• Decision Date: 14 June 2023
• Citation: 2023 WI 48
• Parties: State of Wisconsin, Plaintiff-Appellant, v. Michael K. Fermanich, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

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2023 WI 48

State of Wisconsin, Plaintiff-Appellant, v. Michael K. Fermanich, Defendant-Respondent-Petitioner.

No. 2021AP462-CR

Supreme Court of Wisconsin

June 14, 2023

ORAL ARGUMENT: December 12, 2022

REVIEW of a decision of the Court of Appeals. Circuit Court Langlade County L.C. No. 2017CF313: John B. Rhode, Judge

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 402 Wis.2d 309, 974 N.W.2d 895 (2022 - unpublished)

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.

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

BRIAN HAGEDORN, J.

¶1 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 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 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 Court^[2] imposed a $10,000 signature bond. By signing the 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.

¶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 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 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...