COURT OF APPEALS

DECISION

DATED AND FILED

July 9, 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. 2019AP1454-CR Cir. Ct. No. 2018CF482

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

WILLIAM PETERS MYERS,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock

County: JOHN M. WOOD, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, 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). 
No. 2019AP1454-CR

2

¶1 PER CURIAM. William Myers appeals an amended judgment of 

conviction in which the circuit court removed language from the original judgment 

stating that Myers’ sentence would be concurrent to certain other sentences. 

Myers also appeals the court’s order denying his postconviction motion seeking 

sentence credit based on the original judgment of conviction. Myers does not 

persuade us that the circuit court erred in amending the judgment. Accordingly, 

we affirm.

Background

¶2 The relevant historical facts are not in dispute.

¶3 On October 2, 2018, Myers was sentenced for three offenses in Fond 

du Lac County cases 16CF270 and 16CF280. The 16CF270/280 sentences were: 

(1) six months of jail time; (2) ninety days of jail time; and (3) a four-year term of 

imprisonment consisting of one year of initial confinement and three years of 

extended supervision. All of the 16CF270/280 sentences were made consecutive 

to one another.

¶4 On October 3, 2018, Myers was sentenced for an additional offense 

in Fond du Lac County case 15CF572. The 15CF572 sentence was a two-year 

term of imprisonment consisting of eighteen months of initial confinement and six 
No. 2019AP1454-CR

3

months of extended supervision. It was made consecutive to the 16CF270/280 

sentences.1

¶5 On October 23, 2018, Myers was sentenced in this case. When 

imposing sentence, the circuit court adopted the parties’ joint recommendation for 

a six-year term of imprisonment consisting of two years of initial confinement and 

four years of extended supervision. The court also adopted the parties’ joint 

recommendation that the sentence be made consecutive to Myers’ 15CF572 

sentence but concurrent to any other sentence Myers was currently serving. 

Accordingly, the court entered a judgment of conviction stating that Myers’ 

sentence was consecutive to the 15CF572 sentence but concurrent to any other 

sentence he was serving.

¶6 Subsequent to the entry of the judgment, the department of 

corrections sent a letter to the circuit court requesting clarification. The 

department pointed out that the 16CF270/280 sentences and the 15CF572 sentence 

were all consecutive to one another, and that the court had imposed Myers’ 

sentence in this case consecutive to the 15CF572 sentence. The department stated 

that, under these circumstances, Myers’ sentence in this case would be consecutive 

to the 16CF270/280 sentences as well. The circuit court amended the judgment of 

conviction so that it omitted any reference to Myers’ sentence being concurrent to 

other sentences.

 

1

 Because Myers’ sentences included prison time, any jail time would be served in 

prison. See WIS. STAT. § 973.03(2) (2017-18) (“A defendant sentenced to the Wisconsin state 

prisons and to a county jail or house of correction for separate crimes shall serve all sentences 

whether concurrent or consecutive in the state prisons.”). All references to the Wisconsin 

Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1454-CR

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¶7 Myers brought a postconviction motion in which he requested 

sentence credit based on the original judgment of conviction. He asserted that the 

amended judgment was inconsistent with the circuit court’s pronouncement at 

sentencing.

¶8 The circuit court denied Myers’ motion. The court found that the 

intent of the parties’ joint sentencing recommendation was to ensure that Myers’ 

sentence in this case was consecutive to his 15CF572 sentence, and the court 

agreed with the department of corrections that, because Myers’ sentence was 

consecutive to the 15CF572 sentence, it could not be concurrent to his 

16CF270/280 sentences. Myers appealed.

Discussion

¶9 The potential issues in this appeal have been narrowed by a 

concession that Myers makes in his reply brief. However, to provide context for 

that concession, we first summarize the parties’ broader arguments.

¶10 Myers contends that the circuit court lacked authority to amend the 

judgment of conviction to make his sentence in this case consecutive to the 

16CF270/280 sentences, contrary to the court’s pronouncement at sentencing. He 

argues that the amended judgment violates his rights to finality and against double 

jeopardy. Myers argues, as he did in the circuit court, that the original judgment 

must be reinstated, entitling him to additional sentence credit.

¶11 The State counters that the circuit court properly amended the 

judgment of conviction because circuit courts have authority to modify an illegal 

sentence. The State contends that the sentence the court originally imposed was 

an impossibility and, therefore, illegal. The State further argues that Myers 
No. 2019AP1454-CR

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forfeited his double jeopardy argument by not raising that argument in the circuit 

court. Finally, the State argues that, regardless of forfeiture, there was no double 

jeopardy violation.

¶12 In his reply brief, Myers concedes that he “agrees that if the original 

sentence was illegal that the court could correct it without violating [his] right to 

finality and against double jeopardy.” Myers disagrees, however, that the sentence 

was illegal.

¶13 Given this concession, we conclude that the dispositive issue is 

whether Myers’ sentence as originally imposed was an illegal sentence. We note 

that the above-quoted language from Myers’ reply brief also appears to concede

that the circuit court has authority to correct an illegal sentence. Regardless, even 

if Myers did not concede that proposition, there is no doubt that the circuit court 

has such authority. As the State points out, our supreme court has stated that 

circuit courts have authority to modify a sentence “‘to correct formal or clerical 

errors or an illegal or a void sentence at any time.’” See State v. Crochiere, 2004 

WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524 (quoted source omitted), abrogated 

on other grounds by State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 

828; see also Harbor, 333 Wis. 2d 53, ¶35 n.8 (“[A] circuit court has authority to 

modify a sentence even though no new factor is presented, such as when the court 

determines that the sentence is illegal or void.”).

¶14 The question remains whether Myers’ sentence as originally 

imposed was an illegal sentence, thus giving the circuit court authority to correct 

the sentence. We review this question of law de novo. See State v. Klubertanz, 

2006 WI App 71, ¶26, 291 Wis. 2d 751, 713 N.W.2d 116.
No. 2019AP1454-CR

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¶15 Myers contends that his sentence as originally imposed was not 

illegal because it was authorized by WIS. STAT. § 973.15(2). He points to the 

statutory language stating that “the court may impose as many sentences as there 

are convictions and may provide that any such sentence be concurrent with or 

consecutive to any other sentence imposed at the same time or previously.” See

§ 973.15(2)(a) (emphasis added). Myers argues that this statutory language 

authorized the circuit court to impose his sentence in this case concurrent with his 

16CF270/280 sentences.

¶16 The State contends that Myers’ sentence as originally imposed was 

an illegal sentence because it was not possible to serve such a sentence. The State 

argues, as we understand it, that it was impossible to serve a sentence that was 

both consecutive to the 15CF572 sentence and concurrent with the 16CF270/80 

sentences given that: (1) the 15CF572 and 16CF270/280 sentences were all 

consecutive to one another, and (2) the 16CF270/280 sentences had to be served 

before the 15CF572 sentence because they were the first sentences imposed. The 

State argues that the only way Myers’ sentence in this case could conceivably be 

served as originally imposed would be by splitting the initial confinement portion 

of the sentence, contrary to State v. Bagnall, 61 Wis. 2d 297, 212 N.W.2d 122 

(1973), superseded by statute on other grounds, as stated in State v. Rabe, 96 

Wis. 2d 48, 56, 291 N.W.2d 809 (1980). In Bagnall, our supreme court concluded 

that “a court cannot split a sentence and provide for only part of a term to be 

served concurrently with another.” See Bagnall, 61 Wis. 2d at 312.

¶17 We are more persuaded by the State’s argument than we are by 

Myers’ argument.
No. 2019AP1454-CR

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¶18 First, Myers fails to demonstrate that there is not a Bagnall problem 

with his sentence as originally imposed. Myers asserts that here, unlike in 

Bagnall, the circuit court’s “original sentence did not make the original sentence 

itself partially concurrent and partially consecutive to another sentence as the trial 

court did in Bagnall.” However, the original sentence would have effectively split 

Myers’ sentence if it was served in the only way that either party has suggested is 

conceivable: Myers first would have served part of his confinement time in this 

case while he was serving his confinement time for the 16CF270/280 sentences; 

he next would have served eighteen months of his confinement time for the 

15CF572 sentence while not serving any time in this case; and then finally, after 

completion of his confinement time in 15CF572, he would have resumed serving 

his confinement time in this case.

¶19 Second, even without Bagnall, we would reject Myers’ argument 

that his sentence as originally imposed was lawful because Myers never explains 

how it would have been legally permissible for him to serve that sentence. As far 

as we can tell based on the parties’ arguments and the record, serving that sentence 

would have required the sentence to be paused, tolled, or otherwise temporarily 

suspended in a manner that is not legally authorized.

¶20 Myers’ reliance on WIS. STAT. § 973.15(2) as authorizing his 

original sentence is not persuasive. It is true that the statutory language provides 

that the circuit court may impose “any” sentence concurrent with “any” other 

sentence “imposed ... previously.” See § 973.15(2)(a). But it is not reasonable to 

read this language, as Myers seemingly does, to mean that any sentence may be 

imposed concurrent to any other sentence previously imposed regardless of the 

factual context. For example, it would be unreasonable and absurd to read the 

statute to mean that a new sentence imposed in 2020 can be made concurrent with 
No. 2019AP1454-CR

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a sentence completed in 2018, even though the literal language of the statute might

seem to authorize this result. We interpret statutes to “avoid absurd, unreasonable, 

or implausible results.” See Force ex rel. Welcenbach v. American Family Mut. 

Ins. Co., 2014 WI 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 866. Myers provides no 

argument showing it would be reasonable to interpret the statute to authorize his 

sentence as originally imposed.

¶21 In sum, for the reasons stated above, we conclude that the circuit 

court properly amended the judgment of conviction. Myers does not contend that 

he is entitled to the sentence credit he seeks even if the court properly amended the 

judgment. Thus, we address his sentence credit argument no further.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.