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

DATED AND FILED

April 21, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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.
No. 2019AP1257-CR

3

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.
No. 2019AP1257-CR

4

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 
No. 2019AP1257-CR

5

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 
No. 2019AP1257-CR

6

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.