State v. Michael K. Fermanich

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.
April 12, 2022
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. 2021AP462-CR Cir. Ct. No. 2017CF313

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

MICHAEL K. FERMANICH,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Langlade County:
JOHN B. RHODE, Judge. Reversed and cause remanded with directions.

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. The State of Wisconsin appeals from the circuit
court’s grant of 433 days of sentence credit to Michael K. Fermanich on his
No. 2021AP462-CR

conviction for taking and driving a motor vehicle without the owner’s consent in
Langlade County. On the evening of September 30, 2017, Fermanich stole three
trucks from three different locations in Langlade County, taking them for joyrides
in Langlade and Oneida Counties. He was convicted in two consolidated cases on
charges arising from the series of crimes. The court ordered concurrent sentences
on each count and granted Fermanich credit for time served in pretrial custody on
all counts, despite the fact that Fermanich was released on a signature bond in the
Langlade County case during the period of pretrial custody.

¶2 The State argues that Fermanich’s separate acts did not amount to
one “course of conduct” pursuant to WIS. STAT. § 973.155(1)(a) (2019-20),1 and
he is therefore not entitled to sentence credit on the Langlade County conviction
for pretrial custody served solely on the Oneida County charges. For the reasons
that follow, we agree. We therefore reverse the circuit court’s decision granting
sentence credit and remand this matter with instructions to amend the judgment of
conviction to reflect the correct amount of credit that Fermanich is entitled to,
consistent with this opinion.

BACKGROUND

¶3 The facts in this case are not in dispute. According to the criminal
complaint, on the evening of September 30, 2017, Fermanich stole three vehicles
in Langlade County and drove one of the vehicles to Oneida County. The first
vehicle was a truck that was stolen from the Town of Antigo in Langlade County.
Fermanich drove the truck to the Thirsty Bear Pub and abandoned the vehicle. He

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2021AP462-CR

then stole another truck outside the Thirsty Bear Pub and drove it to Fischer’s Bar
in the Town of Parish, also in Langlade County. Fermanich then abandoned the
second truck and stole a third truck outside Fischer’s Bar. He drove the third truck
into Oneida County.

¶4 Law enforcement was alerted to the reports of the stolen vehicles.
Oneida County Sheriff’s Deputy Timothy Johnson eventually located Fermanich
in the third truck and followed him as he “maneuvered through Oneida County.”
According to Johnson, Fermanich “attempt[ed] a sharp turn,” which caused
Fermanich to lose control of the vehicle. Fermanich was apprehended when the
truck went down a steep ditch and into a creek.

¶5 Johnson approached the vehicle and spoke to Fermanich, who
“seemed disoriented and said he was running.” When Johnson inquired who he
was running from, Fermanich replied, “Maybe God.” Fermanich did not know
who owned the truck he was driving, but he told Johnson that it was the third one
he had taken that night.

¶6 Fermanich was subsequently charged in two separate cases, one each
in Oneida and Langlade Counties. On October 1, 2017, he was charged in Oneida
County case No. 2017CF245 with five counts: operating a motor vehicle without
the owner’s consent, two counts of attempting to flee or elude an officer,
obstructing an officer, and failure to obey a traffic officer. Unable to post the cash
bond ordered, Fermanich was held at the Oneida County jail for 433 days while
awaiting disposition of the charges. On December 29, 2017, Fermanich was
charged in Langlade County case No. 2017CF313 with three counts: felony
operating a motor vehicle without the owner’s consent and two counts of
misdemeanor operating a motor vehicle without the owner’s consent (joyriding),

3
No. 2021AP462-CR

all as a repeater. The circuit court imposed a signature bond on all counts in the
Langlade County case.

¶7 The parties reached a plea agreement, and the cases were
consolidated for the purpose of Fermanich’s pleas.2 Fermanich pled to three
counts: (1) Count 1, operating a motor vehicle without the owner’s consent as a
repeater, for taking the first vehicle in Langlade County; (2) Count 4, operating a
motor vehicle without the owner’s consent, for the third vehicle driven in Oneida
County; and (3) Count 5, attempting to flee or elude an officer, in Oneida County.
The remaining counts were dismissed and read in.

¶8 The circuit court withheld sentence and imposed five years’
probation on all counts. The court also imposed thirty days of jail time on Count 1
as a condition of probation. The judgment of conviction listed 433 days of pretrial
sentence credit on Count 4 but not on Counts 1 or 5.

¶9 Fermanich’s probation was ultimately revoked,3 and he was returned
to the circuit court for sentencing. The court imposed concurrent sentences of
eighteen months’ initial confinement and twenty-four months’ extended
supervision on each of the three counts. Fermanich filed a motion the day before
the sentencing hearing, requesting that his judgment of conviction be modified to
reflect that the 433 days of sentence credit for his pretrial detention be applied

2
Oneida County case No. 2017CF245 was dismissed. The State filed an amended
Information in Langlade County case No. 2017CF313, which added the five charges from the
Oneida County case as Counts 4 through 8.
3
According to the record, Fermanich committed several probation violations in 2019 and
2020, and he spent time in custody on probation holds and two agreements to serve conditional
time as an alternative to revocation.

4
No. 2021AP462-CR

against all counts. The State objected to his request, arguing that the 433 days
“would apply to Counts 4 and 5, but [do] not apply to Count 1.” Both parties
agreed, however, that Fermanich was entitled to an additional 198 days of credit
for probation holds and extra conditional jail time. The court ordered the 198 days
of credit4 but scheduled a hearing to address the remaining credit issue.

¶10 Before the hearing, the Department of Corrections (DOC) sent the
circuit court a letter, stating its belief that Fermanich was entitled to additional
credit. According to DOC, Fermanich was entitled to 236 days of credit on
Count 1, which included 205 days for probation holds and conditional time and
thirty-one days5 for the conditional jail time originally imposed. DOC also
determined that Fermanich was entitled to 638 days of credit on Count 4, which
included the 433 days of credit originally ordered in addition to the 205 days for
probation holds and conditional time. In its letter, DOC did not address Count 5
or Fermanich’s request for 433 days of credit on Count 1.

¶11 At the hearing, the only dispute was whether Fermanich was entitled
to 433 days of credit against his sentence on Count 1.6 Citing to State v.
Tuescher, 226 Wis. 2d 465, 595 N.W.2d 443 (Ct. App. 1999), the State argued

4
The circuit court mistakenly applied the 198 days to Count 1 only.
5
DOC concluded that Fermanich was entitled to thirty-one days of credit for the thirty
days of conditional jail time imposed on Count 1 because he was in custody from December 6,
2018, to January 5, 2019. See State v. Antonio Johnson, 2018 WI App 2, ¶8, 379 Wis. 2d 684,
906 N.W.2d 704 (2017) (a defendant is due a day of credit for any portion of a day spent in
custody). The parties agree that the circuit court failed to order credit for the thirty-one days on
Count 1. See State v. Gilbert, 115 Wis. 2d 371, 340 N.W.2d 511 (1983) (offender entitled to
sentence credit for jail time served as condition of probation).
6
The parties agreed with DOC’s calculation on Count 4—638 days of credit—but also
agreed that the same credit was due on Count 5. The parties also agreed with DOC that
Fermanich was entitled to at least 236 days of credit on Count 1.

5
No. 2021AP462-CR

that the credit was unavailable on Count 1—the Langlade County count—because
the Oneida County pretrial custody was not in connection with the “course of
conduct” for which Fermanich was sentenced in Count 1. Fermanich claimed that
“course of conduct” refers to the “factual connection” between the sentences, and
“he was ultimately sentenced in his Langlade case for the same specific acts that
led to his custody in the Oneida County Jail.”

¶12 The circuit court granted Fermanich’s motion for 433 days of
sentence credit on Count 1. The court first observed that “the state of the case law
in this situation is a mess in the State of Wisconsin.” Although the court
acknowledged that “[t]hese were separate crimes in a separate county,” it
concluded that “[t]his was all the same course of conduct. It happened on the
same day within a short period of time.” According to the court, “both sides are
right,” but it explained that it was deciding in favor of Fermanich because if its
decision were reversed on appeal, Fermanich “would have already served the
sentence. And that always troubles [the court] when that happens.” The court
amended the judgment of conviction, granting Fermanich 638 days of credit on all
three counts. The State appeals.

DISCUSSION

¶13 This case requires us to apply the sentence credit statute, WIS. STAT.
§ 973.155, to a particular set of facts, which presents a question of law that we
review de novo. State v. Kontny, 2020 WI App 30, ¶6, 392 Wis. 2d 311, 943
N.W.2d 923. We will, however, uphold the circuit court’s findings of fact unless
clearly erroneous. Id. “Tallying and awarding sentence credit originated as a
matter of equal protection.” State v. Obriecht, 2015 WI 66, ¶23, 363 Wis. 2d 816,
867 N.W.2d 387 (citing Klimas v. State, 75 Wis. 2d 244, 249, 249 N.W.2d 285

6
No. 2021AP462-CR

(1977)). Accordingly, “[s]entence credit is designed to afford fairness so that a
person does not serve more time than that to which he or she is sentenced.” Id.

¶14 Determining the proper amount of sentence credit requires
application of WIS. STAT. § 973.155 to undisputed facts. Section 973.155(1)(a)
provides, in pertinent part:

(1)(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.

Thus, a defendant is entitled to sentence credit if (1) the defendant “was ‘in
custody’ for the period under consideration” and (2) that “custody was ‘in
connection with the course of conduct for which sentence was imposed.’”
Obriecht, 363 Wis. 2d 816, ¶25 (citation omitted).

¶15 “To qualify as time spent ‘in connection with’ the course of conduct
giving rise to a sentence, a period of custody must be ‘factually connected with the
course of conduct for which sentence was imposed.’” State v. Zahurones, 2019
WI App 57, ¶14, 389 Wis. 2d 69, 934 N.W.2d 905 (quoting State v. Elandis
Johnson, 2009 WI 57, ¶3, 318 Wis. 2d 21, 767 N.W.2d 207). The presentence
custody’s connection to “the sentence imposed must be factual; a mere procedural
connection will not suffice.” Elandis Johnson, 318 Wis. 2d 21, ¶33. “The term

7
No. 2021AP462-CR

‘course of conduct,’ in turn, refers to the specific offense or acts embodied in the
charge for which the defendant is being sentenced.” Zahurones, 389 Wis. 2d 69,
¶14 (citing Tuescher, 226 Wis. 2d at 471-72).

¶16 In this case, there is no dispute that Fermanich was “in custody”
during the time period at issue; thus, we must consider only whether the custody
was “in connection with the course of conduct for which sentence was imposed.”
On appeal, the State argues that Fermanich is not entitled to the additional
sentence credit on Count 1, as Fermanich’s Oneida County custody was not “in
connection with” the specific acts for which he was sentenced on Count 1. We
agree.

¶17 In support of its position, the State relies on State v. Gavigan, 122
Wis. 2d 389, 362 N.W.2d 162 (Ct. App. 1984), and Tuescher. In Gavigan, this
court denied the defendant sentence credit for time spent on one sentence before a
later sentence was imposed and ordered to be served concurrently. Gavigan, 122
Wis. 2d at 391. There, the defendant stole money from a bowling alley and the
next day led law enforcement on a high-speed chase. Id. at 390. He was charged
separately with the robbery and fleeing an officer. He later pled to the fleeing an
officer count and was ordered to serve six months’ imprisonment. Id. Gavigan
was subsequently tried and convicted of the robbery and sought 107 days of credit
against the robbery sentence for time served on the fleeing sentence. Id. at 391.
The defendant argued on appeal “that the robbery and fleeing charges are closely
related enough to constitute a ‘course of conduct.’” Id. at 393. We disagreed,
concluding that the fleeing charge “arose from a separate and unrelated incident”
from the robbery and was not “in connection with his leaving the robbery scene.”
Id. at 394-95.

8
No. 2021AP462-CR

¶18 Likewise, in Tuescher, we concluded that the defendant was not
entitled to credit for time in custody “serving sentences imposed for other criminal
acts.” Tuescher, 226 Wis. 2d at 467. There, the defendant burglarized a
restaurant while armed with a shotgun. Id. He exchanged gunfire with law
enforcement and wounded an officer. Id. He was found guilty after a jury trial of
attempted second-degree intentional homicide, attempted burglary, and possession
of a firearm by a felon. Id. Later, the defendant’s sentence on the attempted
homicide charge was vacated, and he pled guilty to first-degree reckless injury.
Id. at 468. He sought sentence credit for the time served after the court vacated
the attempted homicide conviction to the date of his plea, arguing that the shooting
of the officer and the burglary and possession charges were in the “same course of
conduct” and constituted a “criminal episode.” Id. at 470-71.

¶19 We denied the sentence credit, adopting a narrower interpretation of
the phrase “course of conduct.” In reaching that conclusion, we relied on
Gavigan. We acknowledged that the multiple offenses at issue in the case were
“more closely related than those in Gavigan,” but we denied that “this difference
is significant under [WIS. STAT. §] 973.155.” Tuescher, 226 Wis. 2d at 475. We
observed that “Wisconsin cases interpreting the phrase ‘course of conduct’ support
the State’s position that under § 973.155, one sentence does not arise from the
same course of conduct as another sentence unless the two sentences are based on
the same specific acts.” Tuescher, 226 Wis. 2d at 475, 479 (emphasis added).

¶20 In this case, we agree with the State that Fermanich was in custody
on Counts 4 and 5 for a different course of conduct than that for which sentence
was imposed on Count 1. As the State aptly observes, “[t]hese were separate
specific acts—they were committed in different locations at different specific
times targeting different trucks owned by different individuals—and thus

9
No. 2021AP462-CR

constituted two different ‘course[s] of conduct for which sentence was imposed.’”
See WIS. STAT. § 973.155(1)(a). The specific act or offense for which sentence
was imposed on Count 1 was taking and driving the first truck in Langlade
County, a charge for which Fermanich posted a signature bond. The Oneida
County custody was connected to the specific offenses Fermanich committed in
that county, including taking and driving the third stolen truck into Oneida County
(Count 4) and attempting to elude an officer (Count 5). Notably, Fermanich could
have reflected and stopped his conduct before he drove the third vehicle from
Langlade County into Oneida County and then attempted to elude an officer.
Because the Oneida County custody was not in connection with the specific acts
for which sentence was imposed on Count 1, Fermanich is not entitled to 433 days
of credit against Count 1 for that custody.

¶21 Fermanich’s arguments to the contrary are not persuasive. First,
Fermanich argues that the 433 days of pretrial custody were factually connected to
Count 1 because he was arrested “for the entirety of his conduct on that day.”
According to Fermanich, he “was arrested on September 30, 2017, after taking
three vehicles, one after the other, before trying to evade police and being
arrested…. Law enforcement became aware of what was happening after the first
vehicle was taken and after that, were in continuous pursuit of Mr. Fermanich.”
Thus, Fermanich contends that his charges all arose out of a continuous course of
conduct; however, Fermanich is mistaken.

¶22 As an initial matter, to the extent Fermanich is arguing that his
custody is factually related because his arrest was for the entirety of his conduct
on that evening, we note that WIS. STAT. § 973.155(1)(a) does not direct us to
consider the basis for a convicted offender’s arrest. Instead, we are to consider the
“days spent in custody in connection with the course of conduct for which

10
No. 2021AP462-CR

sentence was imposed.” See § 973.155(1)(a). Further, as the State recognizes, an
arrest appears to provide only a procedural, rather than factual, connection
between offenses. See Elandis Johnson, 318 Wis. 2d 21, ¶33. In addition,
Fermanich provides no authority for his argument that we must consider law
enforcement’s continuous pursuit as determinative of whether his acts were part of
the same course of conduct.

¶23 Finally, in Tuescher, we rejected an identical argument that a
defendant was entitled to credit against all convictions arising from his actions
because they were all part of a single “criminal episode.” There, we considered
this broader reading and discarded it in favor of a narrower interpretation of
“course of conduct” to mean “the specific ‘offense or acts’ embodied in the charge
for which the defendant is being sentenced.” Tuescher, 226 Wis. 2d at 471.

¶24 Fermanich argues that the State’s reliance on Tuescher and Gavigan
is misplaced because, in this case, the dispute relates to his pretrial credit, while
those cases involved time spent in custody between the commencement of one
sentence and the commencement of another. We disagree. We see neither any
reason nor any language in the statute indicating that the interpretation of “course
of conduct” under WIS. STAT. § 973.155(1) would apply differently based on
whether the custody was pretrial or otherwise. Further, the language in Tuescher
has been applied in other contexts. See, e.g., State ex rel. Thorson v. Schwarz,
2004 WI 96, ¶¶1, 31, 274 Wis. 2d 1, 681 N.W.2d 914 (applying Tuescher’s
interpretation of the phrase “course of conduct” to a pretrial situation).

¶25 Fermanich also argues that denying him credit on Count 1 would
effectively deprive him of credit on Counts 4 and 5 because the sentences were
imposed concurrently. Fermanich claims, citing to State v. Ward, 153 Wis. 2d

11
No. 2021AP462-CR

743, 746, 452 N.W.2d 158 (Ct. App. 1989), that “[i]f a person is in custody in
connection with more than one charge, and the charges result in concurrent
sentences, the defendant is entitled to credit on each sentence.”

¶26 Our supreme court explicitly rejected this argument in Elandis
Johnson. There, the court explained that “Ward demonstrates that when a
defendant spends time in presentence custody and the reason for that presentence
custody is ‘in connection with the course of conduct for which sentence was
imposed,’ then the time spent in presentence custody must be credited against the
ultimate sentence imposed.” Elandis Johnson, 318 Wis. 2d 21, ¶65 (citing Ward,
153 Wis. 2d at 744-45). Nevertheless, “Ward also demonstrates that, in order for
time in presentence custody to be credited to the sentence imposed, there must be
a factual connection between the presentence custody and the sentence.” Elandis
Johnson, 318 Wis. 2d 21, ¶66 (citing Ward, 153 Wis. 2d at 744). Further,
WIS JI—CRIMINAL SM-34A (2017) acknowledges that there will be “situations
where the periods of time for which credit is due on unrelated concurrent
sentences will not line up with each other. Some credit will be due on one
sentence and a different amount of credit will be due on another.” See also
Elandis Johnson, 318 Wis. 2d 21, ¶63 (quoting WIS JI—CRIMINAL SM-34A
(1995) for the same proposition). Here, there is no factual connection between the
course of conduct giving rise to Fermanich’s pretrial custody on Counts 4 and 5
and the sentence imposed on Count 1.

¶27 Fermanich next argues that he “cannot be denied credit on Count 1
based on the fact he was on a signature bond on that count.” He points to our
decision in Zahurones. There, the defendant was on a signature bond on Count 2,
but she remained in custody on probation holds on the remaining counts.
Zahurones, 389 Wis. 2d 69, ¶¶15, 18. The state argued that the “custody during

12
No. 2021AP462-CR

the probation holds was not ‘in connection with’ the course of conduct for which
[Zahurones] was sentenced on Count 2 because [she] was technically ‘free’ on a
signature bond” on that count. Id., ¶18. We disagreed with the state’s position,
observing that both this court and the Wisconsin Supreme Court have upheld
sentence credit under those circumstances, and we concluded the same course of
conduct gave rise to all charges in that case.7 Id. Here, as the State explains, it is
not arguing that “Fermanich is not entitled to credit just because he was on a
signature bond.” Fermanich is being denied sentence credit on Count 1 because
his custody was not connected to the course of conduct for which sentence was
imposed.8

7
We note that Fermanich also relies on the facts of State v. Zahurones, 2019 WI App
57, ¶14, 389 Wis. 2d 69, 934 N.W.2d 905, in support of his position, calling it “instructive.” We
disagree and find Zahurones distinguishable. There, we concluded that the periods of custody
during which Zahurones was on probation holds for Counts 1, 2, 3, and 5 were “factually
connected with the course of conduct for which she was sentenced on Count 2.” Id., ¶15. We
explained,

Critically, Counts 1, 2, 3, and 5 each arose from the same course
of conduct. Namely, on July 3, 2015, police entered Zahurones’
home and found drugs and drug paraphernalia in her possession;
Zahurones’ child was removed from the home and tested
positive for methamphetamine, to which she was likely exposed
due to Zahurones’ drug use and possession; and Zahurones
refused to follow the officers’ instructions and resisted arrest.

Id. As the State identifies, the state in Zahurones did not dispute the “course of conduct” issue,
so the holding in that case is of little value here.
8
Fermanich also makes an undeveloped argument in a footnote of his brief citing to
State v. Carter, 2010 WI 77, 327 Wis. 2d 1, 785 N.W.2d 516. He notes that “[c]learly, the
charges were related in this case,” but he claims that “sentence credit is owed even where charges
are unrelated so long as the charge at issue is part of the reason for the custody.” In Carter, the
defendant was charged in Wisconsin with a crime, and a warrant was issued. Id., ¶¶58-59. The
defendant was then arrested in Illinois on unrelated charges and the Wisconsin warrant. Id., ¶62.
Our supreme court determined that “a factual connection exist[ed] between the defendant’s
presentence custody in Illinois and the Wisconsin sentence imposed” because “the defendant was
arrested and taken into custody in Illinois on the basis of the outstanding Wisconsin felony
warrant.” Id., ¶78.
(continued)

13
No. 2021AP462-CR

¶28 Finally, Fermanich argues that under our supreme court’s decision in
State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, abrogated on
other grounds by State v. Straszkowski, 2008 WI 65, 310 Wis. 2d 259, 750
N.W.2d 835, he is entitled to credit for the time spent in custody on his read-in
charges. This argument is also unavailing. In Floyd, the court adopted a bright-
line rule 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 (citation omitted). Here, the remaining five counts in Fermanich’s
amended Information were dismissed and read in at sentencing. This included two
counts from the Langlade County case and three counts from the Oneida County
case. Unlike in Floyd, Fermanich received credit for custody associated with the
dismissed and read-in charges. Fermanich served no time in custody on the two
dismissed and read-in Langlade County counts, and he received credit on Counts 4
and 5 for the time served on the dismissed and read-in Oneida County counts.
Therefore, he received credit for all time spent on the dismissed and read-in
counts.

¶29 As a final matter, the parties agree that Fermanich is entitled to
thirty-one days of sentence credit for the conditional jail time imposed at the
original sentencing on Count 1. Accordingly, we reverse and remand with
directions to amend the judgment of conviction to remove 433 days of credit and
add thirty-one days of credit on Count 1.

While the State does not argue that Fermanich is not entitled to the sentence credit
because he was on a signature bond, the State does note that “the existence of the signature bond
dooms Fermanich’s argument under [Carter] that, even if his custody was not connected to
Count 1, the custody was still ‘in part’ the result of the Langlade County case. It was not;
Fermanich was on a signature bond in that case.” We agree.

14
No. 2021AP462-CR

By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

15