On Point: a. Ability to pay

State v. Eric J. Joling, 2023AP1023-CR, 12/11/24, District II (recommended for publication); case activity

Federal law prohibits subjecting social security disability insurance payments (SSDI) to “execution, levy, attachment, garnishment, or other legal process.”  42 U.S.C. § 407(a).  In a decision recommended for publication, the Court of Appeals held that a circuit court may nevertheless use a defendant’s SSDI payments to calculate the ability to pay restitution. 

State v. Alex Stone Scott, 2021 WI App 84; case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living on a minuscule SSDI benefit, was able to pay it. Judges Grogan and Neubauer affirmed. Reilly dissented.

State v. Timothy D. Wright, 2020AP1578, 2/25/2021, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wright worked at Christmas Mountain. Over the course of a couple of months he allegedly directed several racist and threatening rants at colleagues, including threats to kill some of them. A supervisor eventually called the police, and Wright was fired and charged with four counts of disorderly conduct. He eventually pleaded to two with the other two read in. The circuit court ordered Wright to pay $14,755 in restitution to the corporation that owns Christmas Mountain at $100 per month. Wright argues this was improper for three reasons: because the corporation was not statutorily a “victim” of his conduct; because the claimed damages–the cost to hire armed guards after he was fired–were not “special damages … which could be recovered in a civil action”; and because the circuit court failed to consider his inability 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.

State v. Guadalupe Ronzon, 2015AP498, 1/26/16, District 1 (one-judge decision; ineligible for publication); case activity

Ronzon challenges the restitution award in her conviction of failing to fulfill her Wis. Stat. § 346.67 duty upon striking a vehicle with her car.

State v. Patrick L. Hibl, 2013AP2723-CR, District 2, 6/4/14 (1-judge; ineligible for publication); case activity

Rejecting challenges to a restitution order, the court of appeals holds that the evidence in the record established a nexus between the crime Hibl was convicted of and the victim’s loss and that the circuit court took account of his ability to pay.

State v. Ericka S. Thomas, Appeal No. 2013AP341-CR; District 1; 11/13/13 (not recommended for publication); case activity

This is a split decision over the proper application of § 973.20, the restitution statute.  The circuit court convicted Thomas of Medicaid fraud, sentenced her to imprisonment, and ordered her to pay $356, 366.33 (the total amount she and accomplices stole) in restitution.  At sentencing, her lawyer described her “extremely limited earning ability,” a statement bolstered by her PSI. 

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue: Whether the holding of State v. Mark M. Loutsch, 2003 WI App 16, ¶25, “that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” is valid.

State v. Anthony D., 2006 WI App 218
For Anthony D.: Susan E. Alesia, SPD, Madison Appellate

Dicta: ¶7 n. 2:

We note that the language of the juvenile restitution statute differs from that of the criminal restitution statute, Wis. Stat. § 973.20. The criminal statute does not require the court to make a finding that the defendant can pay the restitution amount,

State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner

Issue/Holding:

¶25. Read together, these sections plainly contemplate that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence-in this case, during the term of imprisonment and subsequent extended supervision and probation.