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COURT OF APPEALS
NOTICE
DECISION
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.
December 22, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                                                                     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.
                                                                                                                                                      Cir. Ct. No.   2006CF4609
Appeal No.                                                                           2008AP2399-CR
STATE OF WISCONSIN                                                                                                                                    IN COURT OF APPEALS
                                                                                                                                                      DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GREGORY SEAN GORAK,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
TIMOTHY M. WITKOWIAK, Judge.  Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1                                                                                   PER  CURIAM.    Gregory  Sean  Gorak  appeals  from  an  order
denying his motion to reconsider an order denying his motion for sentence credit.
The issues are whether Gorak was entitled to sentence credit on the six-year
sentence (imposed for his possession of a Molotov cocktail), whether that sentence




No.   2008AP2399-CR
was imposed illegally, and whether the trial court violated Gorak’s rights to equal
protection and due process by denying him the sentence credit he seeks.    We
conclude that Gorak is not entitled to sentence credit on the six-year sentence
because it was imposed consecutively to a 118-month federal sentence for which
he is entitled to that same credit; that sentence was not imposed illegally, and his
constitutional claims that are dependent on his sentence credit issue that we now
reject also necessarily fail.   Therefore, we affirm.
¶2                                                                                                   Gorak pled guilty to possessing a Molotov cocktail as a party to the
crime, in violation of WIS. STAT. §§ 943.06(2) (2005-06) and 939.05 (2005-06),
and  to  carrying  a  concealed  weapon,  in  violation  of  WIS.  STAT.                             § 941.23
(2005-06); he also entered a no-contest plea to burglary, in violation of WIS. STAT.
§ 943.10 (2005-06).1   For the Molotov cocktail conviction, the trial court imposed
a six-year sentence comprised of three-year periods of initial confinement and
extended supervision.   That sentence was imposed to run consecutively to a 118-
month  federal  sentence  imposed  the  previous  day.    For  carrying  a  concealed
weapon, the trial court imposed a nine-month sentence, and for the burglary, the
trial court imposed a ten-year sentence comprised of five-year respective periods
of initial confinement and extended supervision.  Those sentences were imposed to
run concurrently to each other and to the Molotov cocktail and federal sentences.
¶3                                                                                                   Gorak moved for 318 days of sentence credit on each of the three
state sentences.   The trial court granted sentence credit on the concurrent sentences
1  A no-contest plea means that the defendant does not claim innocence, but rather refuses
to admit guilt.  See WIS. STAT. § 971.06(1)(c) (2005-06); see also Cross v. State, 45 Wis. 2d 593,
599, 173 N.W.2d 589 (1970).  All references to the Wisconsin Statutes are to the 2005-06 version
unless otherwise noted.
2




No.   2008AP2399-CR
for burglary and carrying a concealed weapon.2   The trial court denied credit on
the Molotov cocktail (“count two”) sentence because it was imposed consecutive
to  a  federal  sentence.    Gorak  moved  for  reconsideration,  seeking  correlative
sentence credit for the count two sentence and also for the trial court to expressly
designate that sentence as running concurrent to the burglary sentence, rather than
as consecutive to the federal sentence.    The trial court denied reconsideration.
Gorak appeals.
¶4                                                                                           Gorak’s principal claim is that he is entitled to sentence credit on the
count two sentence.   He also contends that although that sentence was imposed to
run consecutive to the federal sentence, the concurrent structure of the burglary
and  carrying  a  concealed  weapon  sentences  renders  the  count  two  sentence
concurrent to those sentences; he also seeks the consecutive designation on that
sentence to be modified to concurrent.    He further contends that the denial of
sentence credit constitutes the denial of his constitutional rights to equal protection
and due process.   Incident to his constitutional contentions, he also claims that he
is entitled to plea withdrawal, resentencing (for a different reason than his claim
for sentence credit), and to rescind a no-contact order against an individual who is
now deceased.   We address Gorak’s principal claim seeking sentence credit first
because our decision on that claim disposes of most of his other claims.
¶5                                                                                           WISCONSIN STAT. § 973.155(1)(a) entitles “[a] convicted offender …
[to] 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.”   The
2  The trial court actually ordered a time-served disposition on the nine-month concurrent
sentence for carrying a concealed weapon and ordered the sentence credit requested on the
concurrent burglary sentence.
3




No.   2008AP2399-CR
State does not dispute that the federal and three state convictions all involve the
same “course of conduct.”   There also is agreement that Gorak has been in custody
for this course of conduct since July 25, 2006.   The dispute centers on whether
Gorak is entitled to sentence credit on the count two sentence that was imposed
consecutively to the federal sentence.
¶6                                                                                       A defendant is entitled to one day of sentence credit for each day
served, but credit  “is not to be duplicatively  [given] to more than one of the
sentences imposed to run consecutively.”   State v. Boettcher, 144 Wis. 2d 86, 87,
423 N.W.2d 533 (1988).
[C]ustody   credits   should   be   applied   in   a
mathematically linear  fashion.    The  total  time in
custody should be credited on a day-for-day basis
against the total days imposed in the consecutive
sentences.    For ease in calculation and clarity in
respect to subsequent exercise of court discretion,
the credits should be applied to the sentence that is
first imposed.
Id. at 100.   The application of sentence credit is reviewed independently of and
without deference to the trial court’s decision.   See State v. Rohl, 160 Wis. 2d 325,
329, 466 N.W.2d 208 (Ct. App. 1991).
¶7                                                                                       The trial court’s decisions, however, are instructive.3   The trial court
granted  sentence  credit  for  the  burglary  and  carrying  a  concealed  weapon
sentences, it denied credit for the count two sentence.   It denied sentence credit
because  that sentence  was imposed  consecutively to the  federal sentence  and
3  The trial court denied Gorak’s motions for sentence credit, and subsequently, for
reconsideration.  We address both orders, as the former offers context for the latter.
4




No.   2008AP2399-CR
awarding dual credit is not permissible.4   See Boettcher, 144 Wis. 2d at 87.   The
trial  court  reiterated  that  reasoning  and  authority  when  it  denied  Gorak’s
reconsideration motion.   On reconsideration, Gorak also seeks the reclassification
of the count two sentence from consecutive to concurrent because the sentence is
concurrent to the other state court sentences (for burglary and carrying a concealed
weapon).   The trial court denied that reclassification request because it “cannot
ignore the consecutive designation” given to that sentence by the trial court when
it imposed that sentence.
¶8                                                                                         It is undisputed that the federal sentence was imposed “first,” and
the state court sentences were imposed (one day) later.   The trial court imposed the
count two sentence consecutively to the federal sentence; it imposed the other two
sentences  (for burglary and carrying a concealed weapon) concurrently to each
other and to the count two sentence.   The trial court, in denying sentence credit
initially, explained that “[t]he defendant would have received credit towards his
federal sentence, and he is not entitled to duplicate credit on the consecutive
sentence imposed in state court on count two.”   Gorak does not challenge that
explanation, nor does he claim that he was not entitled to sentence credit on the
federal sentence.   As Boettcher explains, credit is applied to the sentence imposed
first.   See id. at 100.   In Gorak’s situation, the federal sentence was imposed first,
and it is that sentence for which he has/may receive(d) credit.   See id.   If credit
were awarded on the count two sentence he would be receiving dual credit:   once
on the federal sentence, and again on the count two sentence.   The latter sentence
4  The order denying the motion for sentence credit, as opposed to reconsideration, was
decided by the Honorable William Sosnay.
5




No.   2008AP2399-CR
was imposed consecutively to the former.   Gorak is entitled to credit for one of
those consecutive sentences, namely the first (federal) sentence.   See id.
¶9                                                                                       Gorak also seeks reclassification of the count two sentence from
consecutive to concurrent because, although the trial court expressly imposed that
sentence to run consecutive to the federal sentence, it effectively was imposed
concurrently to the other state court (burglary and carrying a concealed weapon)
sentences.   The trial court imposed the sentence to run consecutive to the federal
sentence;   reclassification   would   ignore   the   trial   court’s   pronouncement.
Reclassification would also circumvent Boettcher’s preclusion against awarding
dual credit; that is not what was contemplated by the trial court when it imposed
that sentence to run consecutively.   The fact that imposition of the other sentences
to run concurrently may effectively alter that sentence to run concurrently to the
other state court sentences does not alter the fact or consequence of the imposition
of that sentence to run consecutively to the federal sentence.
¶10    Gorak contends that the imposition of this sentence consecutively (to
the federal sentence) when it effectively runs concurrently (to the state sentences)
results in a split sentence (a sentence imposed to run consecutively in part and
concurrently in part) that is prohibited by State v. Bagnall, 61 Wis. 2d 297, 312,
212 N.W.2d 122 (1973), modified on other grounds by State v. Rabe, 96 Wis. 2d
48, 55-60, 291 N.W.2d 809 (1980).   Notwithstanding Gorak’s contention to the
contrary, the count two sentence was imposed to run consecutively to the federal
sentence; the fact that the other state sentences were imposed to run concurrently
to that sentence does not render it a split sentence.   For the same reasons that we
reject Gorak’s reclassification contention, we also reject his contention that the
count two sentence was imposed illegally.
6




No.   2008AP2399-CR
¶11    Gorak also contends that he was denied his constitutional right to
equal protection and due process by the denial of sentence credit.   Our rejection of
his  sentence  credit  challenges  necessarily defeats  his  dependent  constitutional
challenges.
¶12    Gorak also raises for the first time on appeal, that he is entitled to
plea  withdrawal,  sentence  modification  (for  a  challenge  unrelated  to  sentence
credit), and vacatur of the no-contact order.   His failure to raise these issues in the
trial court constitutes waiver, as the trial court never had the opportunity to rule on
these issues in the first instance.   See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287
N.W.2d 140 (1980) (generally, an appellate court will not consider an issue raised
for  the  first  time  on  appeal),  superseded  on  other  grounds  by  WIS.  STAT.
§ 895.52.5
By the Court.—Order affirmed.
                                                                                             This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                    (b)5. (2007-08).
5  Additionally, Gorak fails to substantiate his sentencing and no-contact challenges; his
plea withdrawal challenge is belied by the record.
7

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