(dissenting).
¶ 45. In order to receive sentence credit for the period of time between the filing of the ch. 980 petition and Michael J. Thorson's release on parole, which release followed the jury determination that the State failed to prove he was a sexually violent person, Thorson must show that he was in custody in connection with his criminal conviction and that if he walked away from his confinement prior to parole, he would have been subject to escape charges. State v. Magnuson, 2000 WI 19, ¶ 25, 233 Wis. 2d 40, 606 N.W.2d 536; State v. Gilbert, 115 Wis. 2d 371, 378, 340 N.W.2d 511 (1983). I conclude that the filing of the ch. 980 petition provided only an additional reason for Thorson's continued custody, which reason did not negate the State's custody of Thorson in connection with the course of conduct for which he was imprisoned. Accordingly, Thorson would have been subject to an escape charge if he left his place of confinement without permission. Therefore, I also conclude that he is entitled to sentence credit for the period of time between the filing of the ch. 980 petition *17and his release on parole. As the majority concludes otherwise, I respectfully dissent.
I. BACKGROUND
¶ 46. In 1991, Thorson was sentenced to a thirteen-year prison sentence for attempted second-degree sexual assault and false imprisonment. His mandatory release date was April 4, 2000. After serving nine years of that sentence, and within 90 days prior to his mandatory release date, the State filed a petition pursuant to Wis. Stat.§ 980.021 to have Thorson committed as a sexually violent person. Instead of being released on parole, Thorson was transferred to the Wisconsin Resource Center (WRC). The State held Thorson in custody for 170 days until its ch. 980 petition was resolved. On September 16, 2000, a jury found that the State had not proved Thorson was a sexually violent person, and on September 20, 2000, the State released Thorson on parole.
¶ 47. In May 2002, the State revoked Thorson's parole and reincarcerated him for a period of ten months. Thorson asked the Division of Hearing and Appeals (DHA) to grant him sentence credit for the *18time he spent at the WRC. The DHA denied him credit. Both the circuit court and court of appeals affirmed that decision. Thorson petitioned this court for review.
II. DISCUSSION
A. Standard of Review
¶ 48. Whether Thorson is entitled to sentence credit for the time he spent at the WRC requires application of Wisconsin's sentence credit statute, Wis. Stat.§ 973.155. Statutory application is a question of law that we review de novo. State v. Tuescher, 226 Wis. 2d 465, 468, 595 N.W.2d 443 (Ct. App. 1999).
B. Wisconsin Stat.§ 973.155 — Sentence Credit Statute
¶ 49. Deciding Thorson's appeal requires us to apply Wis. Stat.§ 973.155. Section 973.155(l)(a) provides:
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. 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 conduct, 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.
¶ 50. We previously have concluded that the plain meaning of Wis. Stat.§ 973.155 requires that sentence credit be granted only for time when an offender is "in *19custody" that is "in connection with the course of conduct for which sentence was imposed." See Gilbert, 115 Wis. 2d at 376-77 (stating that "Sec. 973.155(1)(a), Stats., is not susceptible to more than one interpretation . . . ."). Our task, then, is to apply the concepts of "in custody" and "in connection with," as they have been interpreted, to Thorson's case. Therefore, in order for Thorson to obtain sentence credit for the 170 days he spent at the WRC, he must show that he was actually confined there in connection with the conduct that resulted in his criminal conviction, and that he would have been subject to an escape charge if he left that confinement without permission.
1. In custody
¶ 51. Wisconsin Stat.§ 973.155 does not define "in custody." However, we have examined this portion of the statute previously, and have concluded that the phrase "in custody" for purposes of the sentence credit statute has the same meaning as the definition of "custody" in the escape statute, Wis. Stat.§ 946.42. Gilbert, 115 Wis. 2d at 378-79; Magnuson, 233 Wis. 2d 40, ¶ 13. Section 946.42(l)(a) defines "custody" as follows:
"Custody" includes without limitation actual custody of an institution.... It does not include the custody of a probationer, parolee or person on extended supervision by the department of corrections or a probation, extended supervision or parole officer or the custody of a person who has been released to aftercare supervision under ch. 938 [the juvenile justice code] unless the person is in actual custody or is subject to a confinement order under s. 973.09(4).
(emphasis added).
¶ 52. There is no question that Thorson was in custody, as defined in Wis. Stat.§ 946.42, as the WRC confined him, and therefore he was in "actual custody of *20an institution." Id. Both parties, and the majority, agree on this point. Majority op., ¶ 20. However, the majority points out that Thorson's being in actual custody does not end the custody analysis. Citing Magnuson, 233 Wis. 2d 40, ¶ 25, the majority determines that Thorson also must be subject to an escape charge for leaving that custody. Majority op., ¶ 18.
¶ 53. In Magnuson, the defendant requested sentence credit for the six months that he was subject to home-confinement and electronic monitoring as part of his bond conditions. We agreed with the circuit court that Magnuson appropriately was denied sentence credit. Magnuson, 233 Wis. 2d 40, ¶ 1. We determined that "an offender's status constitutes custody for sentence credit purposes when the offender is subject to an escape charge for leaving that status." Id. The concept of "status" is important because it allowed us to expand the definition of custody we used in Gilbert so that we could include "other custodial and restrictive situations" that are not specifically enumerated in the escape statute and that arose after we decided Gilbert.2 Id., ¶¶ 26-31. Therefore, we concluded that an offender is in custody whenever the offender is subject to an escape charge under Wis. Stat.§ 946.42 or under any "other statutory provisions in which the legislature has classified certain situations as restrictive and custodial by *21attaching escape charges for an unauthorized departure from those situations." Id., ¶ 26.
¶ 54. In my view, we need not use Magnuson to conclude that Thorson was in custody for purposes of the sentence credit statute because Thorson's custody was of a type specifically listed in Wis. Stat.§ 946.42(l)(a). Thorson's circumstances in regard to custody are similar to those in Gilbert, which case controls the question before us regarding the definition of "in custody" for purposes of sentence credit when the offender is a ch. 980 detainee in the actual custody of an institution. Therefore, I would apply Gilbert when the offender is in actual custody, and Magnuson to circumstances where an offender is not in custody of a type listed in § 946.42(l)(a).
¶ 55. In Gilbert, the defendants each had been incarcerated for short periods of time as part of their probation conditions. Gilbert, 115 Wis. 2d at 374-75. We determined for the purposes of sentence credit, the common meaning of "custody" was applicable to describe the defendants' situation; however, we also relied on special materials drafted by the Wisconsin Criminal Jury Instruction Committee that said that the definition of "custody" in the escape statute could be used to define "custody" in the sentence credit statute. Id. at 378-79. Further, we concluded that confinement even as a condition of probation was still considered "custody." Id. at 380. We made no mention that the defendant must also be subject to an escape charge for leaving custody. We did not need to do so. As the defendants in Gilbert were actually confined within an institution, and if they left "without lawful permission or authority," they would have been subject to an escape *22charge. Wis. Stat.§ 946.42(3).3 Accordingly, I would conclude that Gilbert controls the "custody" issue here because Thorson was in custody within an institution in two capacities: as one convicted of a crime and also as a ch. 980 detainee.
¶ 56. According to our holding in Gilbert, Thorson was in custody under Wis. Stat.§ 946.42(l)(a) and therefore, satisfied the "custody" requirement for sentence credit under Wis. Stat.§ 973.155. Furthermore, even though I do not agree that we must use Magnusoris "escape requirement" to analyze Thorson's situation, were I to apply Magnuson, Thorson would be "in custody" because he satisfies that requirement as well.
¶ 57. It is true, as the majority asserts, that Wis. Stat.§ 946.42(l)(a) does not list a person who escapes from commitment under ch. 980 as being one who is subject to an escape charge. Majority op., ¶ 28. However, Thorson was never a ch. 980 committee. This is so because until the ch. 980 process is completed, when the court or jury determines that the person subject to a ch. 980 petition is a sexually violent person and the court actually commits the person to the custody of the Department of Health and Family Services, that person is not a civil committee. Wis. Stat.§ 980.06.
¶ 58. Prior to the State's filing a ch. 980 petition, an offender's status is as one in custody due to sentencing for a crime. The petition that the State files to attempt to commit an offender under ch. 980 is based *23on the conviction for a sexual crime — the very conviction for which the offender is serving a sentence. Wis. Stat.§ 980.02(2)(ag). That Thorson's status as an incarcerated felon continued during his detention for the ch. 980 proceedings becomes apparent when we notice that even after the State failed to prove that he was sexually violent, Thorson remained incarcerated. He was released several days after the jury reached its verdict, but only after the parole commission authorized the release. See Wis. Stat.§ 304.06(1).
¶ 59. The majority views Thorson's status as if he were only a committed sexual offender and explains that it fears exposing Thorson and those similarly situated to criminal escape charges when it believes there is no statutory authority to do so. See majority op., ¶¶ 27-28. The basis for exposing violent sexual offenders who are detained due to pending ch. 980 petitions to escape charges, however, is not the ch. 980 petition, but their original criminal convictions.
¶ 60. I note that in one effort to show Thorson could not be charged with escape, the majority asserts, "the legislature has approved administrative rules that allow, as a last resort, the use of lethal force to protect the public." Majority op. ¶ 26. However, the provision to which I assume the majority refers, Wis. Admin. Code § HFS 95.06(l)(c)l.d. (Feb., 2002), authorizes the amount of force that can be used to prevent an escape from the WRC. The majority does not address the consequences of a successful escape attempt. That is, if a ch. 980 detainee attempts escape from the WRC and succeeds, lethal force notwithstanding, the majority cannot argue that the escaped detainee would suffer no consequences once he is apprehended. Undoubtedly, he would be charged with a criminal offense, which I conclude is escape. Wis. Stat.§ 946.42. Section HFS *2495.06(l)(c)l.d. is no more than a parallel provision to Wis. Admin. Code § DOC 306.07(4)(d) (Aug., 2001), which permits the use of "deadly force" to prevent an escape of one who is in the custody of the Department of Corrections.
¶ 61. Accordingly, I would conclude that even under the majority's use of Magnuson, Thorson was in custody as he would have been subject to an escape charge had he left because he had not been released from his original sentence prior to the filing of the ch. 980 petition nor during his detention while that petition was pending. Therefore, Thorson satisfies the first condition under Wis. Stat.§ 973.155 for sentence credit. However, in order to receive sentence credit, Thorson's time in custody also must be "in connection with the same course of conduct" for which sentence was imposed.
2. In connection with
¶ 62. "The clear intent of sec. 973.155, Stats., is to grant credit for each day in custody regardless of the basis for the confinement as long as it is connected to the offense for which sentence is imposed." Gilbert, 115 Wis. 2d at 380.4 The majority argues that Thorson's time spent at the WRC was not "in connection with" his offense because the reason for his detention was the filing of the ch. 980 petition, not the specific facts of his offense. Majority op., ¶ 34. This reasoning fails to acknowledge that the filing of a ch. 980 petition ex*25pressly recognizes that an offender is still serving time for a sexual crime. Wis. Stat.§ 980.02(2)(ag) (requiring a petition seeking civil commitment against an offender to be made within 90 days of an offender's discharge from a sentence imposed for the conviction of a sexually violent crime). Therefore, the State's ability to file a ch. 980 petition arises directly from the same set of facts from which Thorson's criminal conviction and incarceration arose. In holding that the only reason an offender is subject to a ch. 980 proceeding is because the State filed a petition, the majority's rationale inappropriately severs a ch. 980 petition from the original offense.5 See majority op., ¶ 34. This severance is contrary to the explicit language of § 980.02(2)(ag), which requires connection.
¶ 63. The majority also points out that ch. 980 proceedings are separate civil matters. Majority op., ¶ 34. See State v. Carpenter, 197 Wis. 2d 252, 258, 541 N.W.2d 105 (1995). But why this precludes offenders from receiving sentence credit when a ch. 980 petition fails is unclear. Where, as here, the offender has met the *26requirements of the sentence credit statute and the petition fails, the State should grant the offender sentence credit.
¶ 64. Furthermore, the majority fears that granting Thorson sentence credit will result in "all Chapter 980 confinement, whether it is for detention or for commitment, [to] in effect become an offset to the criminal sentence." Majority op., ¶ 37. Once again, the majority demonstrates that it is not distinguishing between a committed offender and a convicted criminal. See id. Once a person is committed under ch. 980, his or her status as a criminal ends, and that individual's status as a committed sex offender begins. It is at this point, when civil commitment occurs, that sentence credit can no longer be offset against the original criminal sentence because the offender's confinement is no longer as a criminal, but as a committee who is confined for treatment, not punishment. See State v. Keith, 216 Wis. 2d 61, 72, 573 N.W.2d 888 (Ct. App. 1997).
¶ 65. And finally, as a matter of public policy, which should always be grounded in fairness, I do not understand the State interest that is being served by not crediting the 170 days to the years remaining on Thorson's sentence. The State had the opportunity to attempt to prove Thorson was sexually violent, and in so doing, it precluded the parole board from addressing Thorson's case. Thorson had no say in the matter. Fundamental fairness should cause the State to be required to grant sentence credit for 170 days that the State caused Thorson to be held at WRC.
III. CONCLUSION
¶ 66. For the foregoing reasons, I conclude that Thorson should have been granted sentence credit for *27the 170 days he spent at the WRC. I would apply this sentence credit against the time remaining on his sentence as a whole. Because the majority concludes otherwise, I respectfully dissent.
Wisconsin Stat.§ 980.02(2) provides in relevant part:
A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
(a) The person satisfies any of the following criteria:
1. The person has been convicted of a sexually violent offense.
(ag) The person is within 90 days of discharge or release, on parole,... from a sentence that was imposed for a conviction for a sexually violent offense....
Among the other "custodial and restrictive situations" we named in Magnuson were the community residential confinement program (Wis. Stat. § 301.046(1)), the intensive sanctions program (Wis.. Stat.§ 301.048), home detention (Wis. Stat.§ 302.425), county work camp (Wis. Stat.§ 303.10), the work release plan for prison inmates (Wis. Stat.§ 303.065), and the serious juvenile offender program (Wis. Stat.§ 938.538). State v. Magnuson, 2000 WI 19, ¶¶ 26-31, 233 Wis. 2d 40, 606 N.W.2d 536.
Wisconsin Stat. § 946.42(3) provides in relevant part:
A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a... felony:
(a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.
In one instance, this court did provide that a defendant who was charged with attempted kidnapping was entitled to sentence credit for the time he spent in a state hospital pursuant to a court-ordered sex deviate exam under Wis. Stat.§ 975.02. Clark v. State, 92 Wis. 2d 617, 642-44, 286 N.W.2d 344 (1979).
The majority asserts the State's petition was warranted because Thorson had committed other predicate offenses, the sentences for which had been discharged, which would have qualified Thorson for a ch. 980 petition had a petition been filed. See majority op., ¶ 33. According to the majority, then, Thorson's most recent offense was merely another predicate offense on which to base the petition and therefore, Thorson's detention at the WRC was not sufficiently connected to the specific crime for which sentence was imposed. See majority op., ¶¶ 33, 34. This logic fails to recognize that the event that resulted in Thorson's incarceration was a necessary component of the ch. 980 petition. See Wis. Stat.§ 980.02(2)(ag).