COA rejects pro se challenges to restitution, domestic abuse assessment and denial of expungement
State v. Stephen P. Lodwick, 2024AP2013, 9/17/25, District II (one-judge decision; ineligible for publication); case activity
Lodwick appeals, pro se, orders denying his motions for a new trial and reconsideration. He contends that the circuit court erred in denying his motions because he was “in custody” for purposes of Wis. Stat. § 974.06 at the time he filed the motions because he was subject to a civil judgment stemming from the restitution order. He also argues that the restitution order was based on false information and the court erred in imposing the domestic abuse modifier. COA affirms.
The state charged Lodwick with misdemeanor battery and disorderly conduct, both with domestic abuse modifiers, and with criminal damage to property. A jury found him guilty of disorderly conduct only, and the circuit court placed Lodwick on probation and imposed a domestic abuse surcharge. (¶2). The court later held a restitution hearing and ordered that Lodwick pay $5,705.12, plus a 10% surcharge, during his probation. At a probation review hearing, the court ordered Lodwick’s term of probation extended for one year or until court costs were paid in full and entered a civil judgment against Lodwick for unpaid restitution. DOC then revoked Lodwick’s probation. (¶3).
After revocation, Lodwick filed a “Motion for A New Trial” in which he sought to vacate his conviction, the domestic abuse modifier and the restitution order. The circuit court denied the motion in a written decision, concluding that Lodwick was not in custody or serving a sentence and thus could not advance a postconviction motion under § 974.06, and the motion was untimely because he failed to file a notice of intent to pursue postconviction relief within the statutory time limit set forth in §§ 974.02 and 809.30(2)(b). It also noted that Lodwick could not file his motion for a new trial pursuant a statute on civil trials, as this was a criminal matter. The court also denied Lodwick’s subsequent motion for reconsideration. (¶4).
Lodwick first argues that the circuit court should have held an evidentiary hearing on his motion because he believes the term “in custody under sentence of a court” as used in § 974.06(1) is ambiguous and should include the situation he was in—subject to a civil judgment for restitution entered following termination of his probation—at the time he filed his motion. However, Lodwick cites no authority to support his position that a defendant who has completed his term of probation may file a § 974.06 motion despite remaining subject to a civil judgment for unpaid restitution stemming from the already completed sentence. COA further concludes that interpreting “sentence” in that manner would lead to an absurd or unreasonable result. Therefore, the circuit court did not err in denying the motion without a hearing. (¶¶8-10).
Second, Lodwick argues that the circuit court erred when it ordered restitution in the amount of $5,705.12, because the court relied on “false” testimony supporting the other charges (of which he was acquitted). COA considers that at the restitution hearing, the circuit court accurately cited the applicable law, awarded “significantly less than the victim requested after expressly finding credibility issues with several of the victim’s claimed damages[,]” and noted that it based its findings entirely on the disorderly conduct offense and did not consider the other two counts on which Lodwick was acquitted. COA concludes that Lodwick “failed to show that the court improperly relied on ‘false’ testimony” and the ruling was not erroneous. (¶¶11-13).
Third, Lodwick claims the circuit court erred in assessing a domestic abuse surcharge on his DC conviction and failed to make the required findings. To review these arguments, COA would have to review the sentencing transcript, which does not appear in the record. As it was Lodwick’s responsibility and he failed to ensure a complete record on appeal, COA assumes the transcript supports the circuit court’s decision to impose the surcharge. COA notes that despite the missing transcript, Lodwick’s own testimony satisfied the necessary criteria. (¶¶14-15).
Fourth, Lodwick argues that the circuit court erroneously exercised its discretion when it denied his expungement motion. However, Lodwick filed that motion after he filed his notice of appeal. COA therefore does not have jurisdiction to review the decision denying the motion. Regardless, COA determines that there is no merit to Lodwick’s claim, as he is statutorily ineligible for expungement at 31 years old. (¶16).
Finally, COA concludes that to the extent Lodwick appeals from the denial of his motion for reconsideration, the circuit court did not err. A motion for reconsideration cannot simply rehash arguments made in the initial motion but rather must identify either “newly discovered evidence or establish a manifest error of law or fact.” Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. COA finds the motion did not identify any newly discovered evidence, and it already found that the court applied the correct law. (¶17).