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Defense Win! SCOW applies Floyd, reverses COA, reinstates grant of 433 days sentence credit

State v. Michael K. Fermanich, 2023 WI 48, 6/14/23, reversing a per curiam court of appeals decision; case activity (including briefs)

The key takeaway here is that five justices reaffirm and apply State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, and hold that Fermanich is entitled to 433 days sentence credit for time he spent in custody in connection with Oneida County charges that were dismissed and read-in at his Langlade County sentencing. (Opinion, ¶2). A concurrence by Justice Dallet is worth reading as a preemptive response to the dissent’s answer to the question for which the court granted review: whether State v. Tuescher should be reexamined and limited to the unique circumstances present there. A dissent by Chief Justice Ziegler and R.G. Bradley would have overruled Floyd, denied Fermanich credit under Tuescher, and required him to return to custody for an additional 433 days. (See Op., ¶19, Dallet, concurring).

The backstory here is that Fermanich stole and drove three trucks in Langlade County and the crossed into Oneida County while driving the third, where he was arrested, charged, and held on a cash bail he could not post. Months later, Langlade County filed charges and imposed a signature bond. The two cases were eveutnally consolidated in Langlade County, where Fermanich pled to two charges from the Oneida County case and one charge from the Langlade County case. Importantly, all other charges, were dismissed and read-in pursuant to the plea agreement.  (Op., ¶1). After originally being placed on probation, Fermanich’s probation was revoked and he received concurrent sentences of 18 months confinement and 24 months extended supervision on all three counts. (Op., ¶8).

After the circuit court granted Fermanich 433 days sentence credit on the Langlade County count, the state appealed, arguing that Fermanich was “free” on a signature bond for that offense despite the fact that he remained in custody on an unposted cash bond. (Op., ¶9). The court of appeals reversed, and rejected all of Fermanich’s arguments. As relevant here, the court of appeals held that State v. Tuescher and State v. Gavigan controlled and that because the Langlade County count was not based on the “same specific act” for which Fermanich remained in custody for 433 days, he was not entitled to the credit. (See COA Op., ¶¶17-20).  The court of appeals also rejected Fermanich’s Floyd argument because he received the 433 days on the (concurrent!) Oneida County counts and, no credit was due under Floyd. (See COA Op., ¶28).

As noted above, the majority addresses only Floyd, and easily rejects the court of appeals’ and the state’s extremely narrow reading. The court explains: “The State misreads Floyd. The defendant in Floyd received credit because the confinement on the armed robbery charge became related to the reckless endangerment charge when the circuit court considered them together at the sentencing hearing. The same applies here.” (Op., ¶16).

In her concurrence, Justice Dallet agrees that Floyd governs, but explains that the court should “consider realigning our interpretation of § 973.155(1)(a) with its text in an appropriate case.” (Op., ¶26). Justice Dallet explains that “cases interpreting § 973.155(1)(a) have strayed a long way from its text,” including TuescherState ex. rel Thorson v. Schwartz, 2004 WI 96, 274 Wis. 2d 1, 681 N.W.2d 914, which have so narrowly interpreted “course of conduct” to all but re-write the statute as applying only to time spent in custody in connection with the “conduct for which sentence was imposed.” In short, Justice Dallet at least recognizes that “course of conduct” cannot mean just “the specific ‘offense or acts’ embodied in the charge for which the defendant is being sentenced.” (Op, ¶25).

The dissent doubles down on Justice Dallet’s willingness to reconsider Tuescher, but focuses its ire on Floyd, which the dissent says is “flatly at odds” with the sentence credit statute. The difference, however, between the concurrence’s willingness to reconsider Tuescher and the dissent’s clear statement that Floyd “must be overruled,” is that while neither party asked the court to overrule Floyd, Fermanich’s petition for review squarely put Tuescher on the court’s radar, and was the strongest basis for review. Nevertheless, five justices, led by Justice Hagedorn, resolve this case on the narrowest and simplest grounds and refuse to “step out of our neutral role to develop or construct arguments for parties…” (Op., ¶15, n.5).

Two practice tips for defense attorneys: (1) DON’T forget about Floyd and time spent in custody on read-in charges. (2) DON’T hesitate to expand your “course of conduct” arguments to go well beyond the specific acts or offenses for which sentence is imposed. The text itself supports a much broader reading than the one utilized in Tuescher, which may eventually be limited to its unique facts. For ideas, start with Justice Dallet’s concurrence, which considers a hypothetical bank robber, who flees the scene and leads police on a high speed chase. Justice Dallet explains that the individual acts of robbing the bank, fleeing the scene, and eluding police are different acts that would support multiple charges, but that they are “nevertheless part of a single course of conduct because they are united by a common purpose – stealing from the bank.” (Op., ¶21).

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