June 26, 2023 – A criminal defendant is entitled to a sentence credit for time served on a related charge that is dismissed but read in at his or her sentencing, the Wisconsin Supreme Court has ruled (5-2) in State v. Fermanich, 2023 WI 48 (June 14, 2023).
Justice Brian Hagedorn wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Patience Roggensack, Justice Rebecca Dallet, and Justice Jill Karofsky. Justice Dallet filed a concurrence. Chief Justice Annette Ziegler dissented, joined by Justice Rebecca Bradley.
One night in September 2017, in the span of two hours, Michael Fermanich stole three trucks in Langlade County. Each truck was owned by a different person.
Fermanich drove the third truck from Langlade County into Oneida County, where the police arrested him.
In October 2017, the Oneida County District Attorney charged Fermanich with five counts:
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 on Fermanich. Fermanich failed to post bail, so he sat in the Oneida County jail for 433 days.
In December 2017, the Langlade County District Attorney charged Fermanich with three counts: 1) one count of operating a motor vehicle without the owner’s consent, repeater; and 2) two counts of operating a motor vehicle without the owner’s consent – joyriding, repeater.
After Fermanich moved to consolidate the cases under Wis. Stat. section 971.09, the state filed an amended information. The amended information combined the eight charges against Fermanich into a single action.
Fermanich then pled guilty to three charges:
operating a motor vehicle without the owner’s consent (originally brought in Langlade County);
operating a motor vehicle without the owner’s consent (originally brought in Oneida County); and
attempting to flee or elude and officer (originally brought in Oneida County).
The State dismissed the other five charges but read them in at Fermanich’s sentencing hearing. Three of the read-in charges were originally filed in Oneida County.
The circuit court placed Fermanich on probation for five years and withheld his sentence.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
After Probation Violations, Prison
After Fermanich committed several probation violations, the circuit court sentenced him to 18 months of initial confinement and 24 months of extended supervision, to run concurrently.
In November 2020, Fermanich filed a motion to modify the judgment of conviction. He asked the circuit court to give him credit against initial confinement portion of his sentence for the 433 days he’d spent in the Oneida County jail on the three charges that he’d pled guilty to.
The circuit court granted Fermanich’s motion.
The State appealed, arguing that the 433 days should not apply to the count in Fermanich’s plea that was originally filed in Langlade County, because he was free on signature bond for that offense.
The Wisconsin Court of Appeals reversed the circuit court. Fermanich appealed.
Floyd is Squarely on Point
Justice Hagedorn explained that supreme court precedent, State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W. 2d 155, mandated that Fermanich be given credit on the Langlade County charge.
“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,” Hagedorn wrote.
Under section 973.155(1)(a), Hagedorn explained, Fermanich’s confinement on the Oneida County charges that were read in at sentencing related to the Langlade County charge on which Fermanich was sentenced.
The state argued that Floyd didn’t apply because Fermanich had already received credit when the circuit court gave him credit for the 433 days served on the two Oneida County charges that he pled guilty to.
But Justice Hagedorn explained that the state had misread 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,” Hagedorn wrote. “The same applies here.”
Concurrence: Spree Was Part of ‘Couse of Conduct’
In her concurrence, Justice Dallet argued that the phrase “course of conduct” in section 973.155(1)(a) should be interpreted so that the statute applied to give Fermanich credit for the Langlade County charge.
“Fermanich’s purpose was stealing trucks, and his one-after-the-other crime spree is a classic example of a course of conduct,” Dallet wrote.
Dissent: Floyd Should be Overruled
In her dissent, Chief Justice Ziegler wrote that Floyd was “entirely disconnected from the statutory text.”
The Langlade County charge that the majority’s decision gave Fermanich credit for, Ziegler argued, wasn’t connected to his custody in Oneida County.
Each of Fermanich’s truck thefts, Chief Justice Ziegler argued, was a separate offense; therefore, the thefts were not a “course of conduct” under section 971.155(1)(a).
Floyd’s holding was “absurd,” Ziegler argued, and the supreme court should overrule the case.
“It is impossible to grant sentence credit for read-in charges,” Chief Justice Ziegler wrote. “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.”
Ziegler argued that the fact that “actual 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,” means that the statute distinguishes between a broader course of conduct and a course of conduct underlying a specific offense.
That made sense, Chief Justice Ziegler reasoned, because multiple statutory offenses can arise out of a single course of conduct.
That several of the Langlade County charges were read in at Fermanich’s sentencing was immaterial, Ziegler argued.
“It is simply not the case that considering the defendant’s conduct at the sentencing stage means the sentence was imposed for that conduct,” Chief Justice Ziegler wrote.