### COURT OF APPEALS DECISION DATED AND FILED April 12, 2022

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 W IS . S TAT . § 808.10 and R ULE 809.62.
Appeal No. 2021AP462
- CR Cir. Ct. No. 2017CF313 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN , P LAINTIFF - A PPELLANT ,
V . M ICHAEL K. F ERMANICH , D EFENDANT - R ESPONDENT .

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 W IS . S TAT . R ULE 809.23(3). ¶ 1 PER CURIAM

. The State of Wisconsin appeals from the circuit court’s g rant of 433 days of sentence credit to Michael K. Fermanich on hisNo. 2021AP462

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2 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 thr ee 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 a rising 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 W IS

. S TAT

. § 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 Onei da County charges

. For the reasons that follow, we agree . We therefore reverse the circuit court’s decision granting sentence credit and remand th is matter with instructions to amend th e 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, o n the evening of September 30, 2017, Fermanich stole three vehicles in Langlade County and drove one of the vehicles to Oneida Count y . 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.No. 2021AP462

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3 then stole another truck out side the Thirsty Bear Pub and drove it to Fischer’s Bar in the Town of Parish , also in Langlade County

. F ermanich then abandon ed the second truck and st ole a third truck outside Fischer’s Bar. He drove the third truck in to Oneida County.
¶ 4 L aw enforcement was alerted to the r eports of the stolen vehicles. Oneida County Sheriff’s Deputy Timothy Johnson eventually located Fermanich in the third truck and followed him as he “mane uvered through Oneida County.” According to Johnson, Fermani ch “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 thir d one he had taken that night.
¶ 6 Fermanich was subsequently charged in two separate cases , one each in Oneida and Langlade Counties. O n 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 fail ure to obey a traffic officer. Unable to post the cash bond ordered , Fermanich was held at the Onei da County jail for 433 days while awaiti ng 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 mis demeanor operating a motor vehicle without the owner’s consent (joyriding) ,No. 2021AP462

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4 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 plea s
. 2 Fermanich pled to three
counts: (1) C ount 1, operating a motor vehicle without the owner’s consent as a repeater , for taking the first vehicle in Langlade County; (2) C ount 4, operating a motor veh ic le without the owner’s consent, for the third vehicle driven in Oneida County; and (3) C ount 5, attempting to flee or elude an officer , in Oneida Co unty

. The remaining coun ts were dismissed and read in.
¶ 8 T he circuit court withheld sen tence and imposed five years’ probation on all counts

. The court also impos ed thirty days of jail time on C ount 1 as a condition of probation

. T he judgment of conviction listed 433 days of pretrial
sentence credit on C ount 4 but not on C ounts 1 or 5.
¶ 9 Fermanich ’s probation was ultimately revoked , 3 and he was returned to the circuit court for se ntencing. The court imposed concurrent sentence s 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 throug h 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 tw o agreements to serve conditional time a s an alternative to revocation.No. 2021AP462

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5 against all counts. The Stat e 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 an d extra conditional ja il time. The court ordered the 198 days of credit 4 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 days 5 for the c onditional jail time originally i mposed. 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 probati on holds and conditional time. In i ts 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 Stat e 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 Decemb er 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 cust ody). 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 agree d 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.No. 2021AP462

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6 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 Fe rma nich was sentenced in Count 1. Fermanich claimed that “course of conduct” refers to the “factual connection” between the sentence s , and “he was ultimately sentenced in his Langlade case for the same specific acts that led to his custody in t he Oneida C ounty 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 acknowledge d 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 explai ned that it was deciding in favor of Fermanich because if it s 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, gran ting Fermanich 638 days of credit on all three counts. The State appeals.

DISCUSSION
¶ 13 This case requires us to apply the sentence credit statute, W IS

. S TAT

. § 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 285No. 2021AP462

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7 (1977) ). Accordingly, “[s] entence credit is designed to afford fairness so that a person does not serve more time than that t o which he or she is sentenced.” Id.
¶ 14 Determining the proper amount of sentence credit requires application of W IS

. S TAT

. § 973.155 to undispu ted 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 impose d. 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 conduc t, 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 ent itled to sentence credit if (1) the defendant “was ‘in
cust ody’ for the period under consideration ” and (2) that “ custody was ‘ in connection with the course of conduct f or 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 sentenc e, a period of custody must be ‘ factually connected with the course of conduct f

or 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 termNo. 2021AP462

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8 ‘course of c onduct,’ 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 tha t 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 whic h he was sentenced on Count 1. W e agree
. ¶ 17 In support of its position, t he 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 i mposed and ordered to be served concurrently

. Gavigan , 122 Wis. 2d at 39 1

. There, t he 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 sepa rately with the robbery and fleeing an officer

. H e later pled to the fleeing an officer count and was ordered to serve six months’ imprisonment

. Id. Gavigan was subsequently tried and convicted of t he robbery and sought 107 days of credit against the robbery sentence for time ser ved on the fleeing sentence. Id. at 391. The defendant argued on appeal “that the robbery and f lee ing charges are closely related enough to constitute a ‘course of conduct.’” Id. at 393. We disagreed, concluding that the fleeing charge “arose from a se parate and unrelated incident” from the robbery and was not “in connection with his leaving the robbery scene.” Id. at 394

- 95.No. 2021AP462

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9 ¶ 18 Likewise, in T

uescher , we conclud ed that the defendant was not entitled to credit for time in custody “servi ng 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. L ater, 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 th e 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 cours e 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 acknowledge d that the multiple offenses at issue i n the case were “more closely related than those in Gavigan ,” but we denied that “this difference is significant under [ W IS

. S TAT

. §] 973.1 55. ” Tuescher , 226 Wis. 2d at 475. We observed that “ Wisconsin cases interpreting the phrase ‘course of conduct’ support th e State’ s position that under § 973.155, one sentence does not arise from the same course of conduct as another sentence unless the two se ntences 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 F ermanich 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 St ate aptly observe s , “[t]hese were separate specific acts

— they were committed in different locations at different specific times targeting different trucks owned by different individuals

— and thusNo. 2021AP462

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10 constituted two different ‘ course[s] of conduct for which sentence was imposed. ’ ” See W IS

. S TAT

. § 973.155(1)(a). The specific act or offense for whi ch sentence was imposed on Count 1 was taking and driving the first t ruck in Langlade County, a charge for which Ferm anich posted a signature bond. The Oneida County custody w as 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 hi s 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 whic h 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 c harges 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 conduc t on that evening, we note that W IS

. S TAT

. § 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 whichNo. 2021AP462

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11 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, Fe rmanich provides no authority fo r his argument that we must consider law enforcement’s continuous pursuit as determinative of whether his a cts 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 consid ered this broad er 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 th e defendant is being sentenced.” Tuescher , 226 Wis. 2d at 471.
¶ 24 Fermanich argues that the State’s reliance on T uescher 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 W IS

. S TAT

. § 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. Thorso n 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. 2dNo. 2021AP462

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12 743, 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 t hat 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 ultima te 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 connecti on between the presen tence custody and the sentence.” Elandis Johnson , 318 Wis. 2d 21, ¶ 66 (citing Ward , 153 Wis. 2d at 744 ). Further, W IS JI

— C RIMINAL SM

- 34A (2017) acknowledges that there will be “situations where the periods of time for which credit is due on unrelated concurrent sentences wi ll 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 W IS JI

— C RIMINAL SM

- 34A (1995 ) for the same proposition). Here, there is no factual connection between the course of conduct giving rise to Fermanich’s pre trial 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 duringNo. 2021AP462

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13 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 bon d ” on that count. Id. , ¶18. We disagree d 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 cour se 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 posit ion, c alling 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 whic h she was sentenced on Count 2.” Id. , ¶15. We explained, Critically, Counts 1, 2, 3, and 5 each arose f rom the same course of conduct. Namely, on July 3, 2015, police entered Zahurones’ home and found drugs and drug paraphernalia in her possession ; Zah urones’ 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’ in structions 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 o f the reason for the custody.” In Carter , th e 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 connecti on exi st[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 outsta nding Wisconsin felony warrant.” Id. , ¶78. (continued)No. 2021AP462

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14 ¶ 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 entit led to credit for the time spent in custody on his re ad

- 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 re ad in at sentencing relates to ‘ an offense for which the of fender 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 includ ed tw o 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 custod y on the two dismissed and read

- in Langlade County counts , and he received credit on Co unts 4 and 5 for the time s erved on the dismissed and read

- in Oneida County counts

. Therefore, he received credit for all time spent on the d ismissed 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 t he judgment of convi ction 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.No. 2021AP462

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15 By the Court.

— Judgment reversed and cause remanded with directions

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.