State v. Wyatt William Kontny

2020 WI App 30

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1257-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WYATT WILLIAM KONTNY,

DEFENDANT-APPELLANT.

Opinion Filed: April 21, 2020
Submitted on Briefs: March 10, 2020
Oral Argument:

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Erica L.Bauer, Appleton.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul, attorney general, and Donald V. Latorraca,
assistant attorney general.
2020 WI App 30

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 21, 2020
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. 2019AP1257-CR Cir. Ct. No. 2018CF74

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WYATT WILLIAM KONTNY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marinette County: JAMES A. MORRISON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 STARK, P.J. Wyatt Kontny appeals a judgment of conviction and an
order denying his postconviction motion seeking one day of additional sentence
No. 2019AP1257-CR

credit under WIS. STAT. § 973.155 (2017-18).1 Kontny argues he is entitled to 162
days of sentence credit instead of 161 days because he should have been granted
credit for the date of his arrest, during which he spent fourteen minutes in custody.
The circuit court denied Kontny’s motion for additional sentence credit, concluding
Kontny was barred from seeking additional credit because he had stipulated to 161
days of sentence credit during his sentencing hearing.

¶2 On appeal, the State concedes the circuit court erred by concluding
that Kontny’s stipulation to the amount of sentence credit during his sentencing
hearing barred him from seeking additional credit following his conviction. The
State also concedes that Kontny was entitled to one day of credit for the date of his
arrest, even though he was in custody for only fourteen minutes that day. The State
argues, however, that Kontny is nevertheless entitled to only 161 days of sentence
credit because he is not entitled to any credit for the date on which he was sentenced.
We agree with the State that a defendant’s sentencing date should not be included
when calculating the amount of sentence credit to which the defendant is entitled.
We therefore affirm Kontny’s judgment of conviction and the order denying his
postconviction motion, albeit on different grounds than those relied upon by the
circuit court. See State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793
N.W.2d 920 (2010) (court of appeals may affirm a circuit court’s decision on
different grounds).

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2019AP1257-CR

BACKGROUND

¶3 Kontny was arrested on April 23, 2018, at 11:46 p.m. Cash bail was
set at $10,000. Kontny was unable to post bail and therefore remained in custody
until his sentencing hearing on October 1, 2018. At sentencing, the parties agreed
that Kontny was entitled to 161 days of sentence credit. In explaining that amount,
Kontny’s trial attorney stated Kontny had been in custody “since April 24th.” In
accordance with the parties’ agreement, the circuit court granted Kontny 161 days
of sentence credit.

¶4 Kontny subsequently filed a postconviction motion seeking one day
of additional sentence credit. In his motion, Kontny alleged he was arrested on April
23, 2018, and remained in custody until his sentencing on October 1. Kontny argued
he was “entitled to one day of credit toward his sentence for every calendar day
from April 23, 2018 to October 1, 2018, including the first and last calendar day,”
for a total of 162 days. The circuit court denied Kontny’s motion. The court entered
the following notation regarding the motion in its electronic case management
system: “DENIED- amount agreed on the record[;] it is binding.”

¶5 Kontny filed a motion for reconsideration of the circuit court’s
decision. The motion included a police report, which confirmed that Kontny was
arrested at 11:46 p.m. on April 23, 2018. The court denied Kontny’s reconsideration
motion. The court found that Kontny “was arrested on April 23, 2018.” However,
the court stated “the amount of sentence credit agreed to at the time of sentencing is
binding.” Kontny now appeals, arguing the court erred by denying his request for
one additional day of sentence credit.

3
No. 2019AP1257-CR

DISCUSSION

¶6 The application of the sentence credit statute, WIS. STAT. § 973.155,
to a particular set of facts presents a question of law that we review independently.
See State v. Hintz, 2007 WI App 113, ¶5, 300 Wis. 2d 583, 731 N.W.2d 646. In so
doing, however, we will uphold any factual findings made by the circuit court unless
they are clearly erroneous. Id.

¶7 The purpose of WIS. STAT. § 973.155 is to prevent a defendant from
serving more time than is required under his or her sentence. State v. Elandis
Johnson, 2009 WI 57, ¶31, 318 Wis. 2d 21, 767 N.W.2d 207. The statute therefore
provides 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.” Sec. 973.155(1)(a). Specifically, an offender is
entitled to sentence credit for time spent in custody “[w]hile the offender is awaiting
trial,” “[w]hile the offender is being tried,” and “[w]hile the offender is awaiting
imposition of sentence after trial.” Sec. 973.155(1)(a)1.-3.

¶8 In his postconviction motion, Kontny argued he was entitled to one
additional day of sentence credit for the date of his arrest—April 23, 2018. The
circuit court denied Kontny’s motion, reasoning that Kontny was barred from
seeking additional sentence credit because he had agreed at sentencing that he was
entitled to only 161 days of credit. On appeal, the State concedes the court’s
reasoning in this regard was erroneous. We agree with that concession.

¶9 An award of sentence credit under WIS. STAT. § 973.155 is
“mandatory.” State v. Carter, 2010 WI 77, ¶51, 327 Wis. 2d 1, 785 N.W.2d 516.
“A sentencing court must give credit accorded by statute because ‘a person [may]
not serve more time than that for which he [or she] is sentenced.’” Id. (citation

4
No. 2019AP1257-CR

omitted; first alteration in Carter). The plain language of § 973.155(1)(a) mandates
that an 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.” Nothing in § 973.155 authorizes the parties to agree to an
amount of sentence credit that differs from the amount to which the defendant is
entitled under the statute. We therefore agree with both Kontny and the State that
an agreement between the parties as to the proper amount of sentence credit—even
if adopted by the circuit court during the sentencing hearing—does not prevent a
defendant from later arguing in a postconviction motion that the amount of sentence
credit awarded by the court was erroneous.

¶10 The State also concedes on appeal that Kontny was entitled to one day
of sentence credit for the date of his arrest. The circuit court found that Kontny was
arrested on April 23, 2018. The record supports that finding, as it shows that Kontny
was arrested at 11:46 p.m. on that date. We have previously held that a defendant
“is entitled to a day of sentence credit for each calendar day during which he [or
she] spent at least part of the day in custody.” State v. Antonio Johnson, 2018 WI
App 2, ¶8, 379 Wis. 2d 684, 906 N.W.2d 704 (2017). Accordingly, the defendant
in Antonio Johnson was entitled to one day of sentence credit for a calendar day on
which he spent less than one hour in custody. Id., ¶¶3, 8. Similarly, in this case,
Kontny is entitled to one day of sentence credit for April 23, 2018, even though he
was in custody for only fourteen minutes that day.

¶11 Nevertheless, we agree with the State that Kontny is entitled to a total
of only 161 days of sentence credit. As the State correctly observes, Kontny’s
argument that he is entitled to 162 days of sentence credit rests on the assumption
that he is entitled to one day of credit for October 1, 2018, the date on which he was
sentenced. However, under WIS. STAT. § 973.15(1), “all sentences commence at

5
No. 2019AP1257-CR

noon on the day of sentence.” The sentence credit statute, in turn, provides that an
offender is entitled to sentence credit for all days spent in custody “[w]hile the
offender is awaiting imposition of sentence after trial.” WIS. STAT.
§ 973.155(1)(a)3. (emphasis added).

¶12 Reading these statutes together, we conclude a defendant is not
entitled to sentence credit for the date on which he or she is sentenced. The statutory
language “awaiting imposition of sentence” does not include the date of sentencing
because that is the date a defendant’s sentence begins. As such, the date of
sentencing is counted toward the service of the defendant’s sentence. If a defendant
also received sentence credit for the date of his or her sentencing, the defendant
would receive double credit for that day. That result would be absurd, and we must
interpret statutes so as to avoid absurd results.2 See State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.

¶13 Accordingly, we conclude Kontny is not entitled to sentence credit for
October 1, 2018—the date he was sentenced. Because Kontny is entitled to only
161 days of sentence credit, the circuit court properly denied his postconviction
motion.

By the Court.—Judgment and order affirmed.

2
In his reply brief, Kontny asserts the State’s argument that he is not entitled to sentence
credit for the date of sentencing is insufficiently developed because the State did not cite any legal
authority in support of that argument. However, as explained above, the relevant statutes support
the State’s position. We therefore reject Kontny’s assertion that the State’s argument is
insufficiently developed.

6