On Point blog, page 7 of 26
SCOW overrules Elward and Radaj; mandatory DNA surcharge doesn’t violate ex post facto clause
State v. Jamal L. Williams, 2016AP883-CR, 2018 WI 59, 5/30/18, reversing in part, a published court of appeals opinion, 2017 WI App 46, case activity (including briefs)
In a 5-0 opinion (Roggensack and A.W. Bradley did not participate) SCOW overruled two court of appeals decisions, State v. Elward and State v. Radaj, which had held that the §973.046 mandatory DNA surcharge violated the Ex Post Facto Clauses of the state and federal constitutions. SCOW delved into the reasoning of both cases and found it “faulty.” It further held that a circuit court may consider a defendant’s opposition to paying restitution as part of his character or lack of remorse when choosing a sentence.
Challenge to collection of old fine fails
State v. Eric W. Poirier, 2017AP931-CR, District 3, 5/8/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Back in 2003, Poirier was fined $1,184 for an OWI conviction. He didn’t pay, so a judgment was entered against him. In 2017 the circuit court entered an order assigning income from his prison account to pay the judgment. He objects to the assignment order, but to no avail, due in large part to missteps common to pro se litigants.
Sentencing judge didn’t need to give separate reasons for imposing fine
State v. Robert P. Vesper, 2018 WI App 31; case activity (including briefs)
Vesper complains that when he was sentenced for his 7th OWI offense the judge didn’t give a separate explanation for why it was imposing a fine in addition to prison time. Over a dissent, the court of appeals concludes the judge said enough to satisfy the (not at all exacting) standard of review for exercise of sentencing discretion. The court also rejects Vesper’s claim that the judge didn’t assess his ability to pay the fine.
Guesswork is good enough to support restitution order
State v. Angela C. Nellen, 2017AP257-CR, District 4, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Completely overlooking the victim’s own restitution hearing testimony that she was guessing about the number and value of the coins they believe were stolen by Nellen, the court of appeals blames Nellen for “fail[ing] to support [her] argument” that the record was insufficient to support the circuit court’s $90,000 restitution order for 30 coins at $3,000 each.
SCOW to consider limits on Wisconsin’s restitution statute
State v. Shawn T. Wiskerchen, 2016AP1541-CR, petition for review of an unpublished court of appeals opinion granted 3/14/18; affirmed 1/4/19; case activity (including briefs).
Issue (composed by On Point):
In State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, the court of appeals required a defendant to pay restitution for a security system that the victim bought before the date of the crime for which the defendant was convicted.
Must Queever be overturned because it is impossible for a crime committed on a certain date to cause losses on an earlier date? If not, what are the limits of Queever and of the definition of “a crime considered at sentencing” for restitution purposes? Can the definition include alleged prior-committed crimes?
Court of appeals gives effect to previously-ignored clause in restitution statute
State v. Sara L. Steppke, 2017AP1683, 4/2/18, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)
Steppke was ordered to pay restitution for a security system her employer installed after she stole $3,000 worth of flea and tick product. The system cost over $16,000–or more than five times the value of what she took. Just a few months ago, a dissenting court of appeals judge lamented that the case law had gotten way, way ahead of the text of the restitution statute itself–giving rise to “entirely unjustifiable” results. One can hope this decision marks the beginning of a return to the plain language of the statute.
Court of Appeals certifies new case addressing whether court must advise defendant of DNA surcharge during plea colloquy
State v. Arthur Allen Freiboth, 2015AP2535-CR, District IV, 2/26/18; case activity (including briefs)
Issue:
…[W]e certify the present appeal to the Wisconsin Supreme Court to decide whether a defendant who was not advised at the time of the plea that he or she faced multiple mandatory DNA surcharges has grounds for plea withdrawal.
Prisoners challenging DOC’s deduction of prison funds to pay court obligations must exhaust administrative remedies
State v. Marquis T. Williams, 2018 WI App 20; case activity (including briefs)
Williams, a prison inmate, objected to DOC deducting funds from his prison account to pay the restitution ordered in his criminal case. He asked the sentencing judge to order DOC to stop but the sentencing judge declined. The court of appeals affirms, holding the sentencing court isn’t competent to address that issue. Instead, Williams has to exhaust his administrative remedies using the inmate complaint review system (ICRS) and, if that fails, he can bring a certiorari action in circuit court.
Graduating fees, fines, surcharges and restitution according to the severity of the crime and the defendant’s ability to pay
Who would’ve thunk? This is the subject of a hot new paper on the Social Science Research Network. You can read it here.
OWI driver owes restitution even if “victim” ran into him
State v. David M. Larson, 2017AP1610-CR, 12/27/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
David Larson was driving drunk when another driver, who was cited for failing to yield the right of way, collided with him in a roundabout. Larson drove away while police were investigating. After a contested hearing, the court awarded the other driver restitution for injuries to himself and damage to his car.