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Fines – Exercise of Discretion – Articulation of Sentencing Objectives and Determination of Ability to Pay

State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶14      A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives, we are left to guess as to what those objectives might be in relation to the fine. Gallion requires that we do more than guess. Id. , 270 Wis. 2d 535, ¶46. While we do not hold that Gallion requires a trial court to explain the reason for a specific amount of a fine (as it is likewise not required to explain a specific time of incarceration), we do conclude that under Gallion some explanation of why the court imposes a fine is required.

¶15      It is also necessary that a sentencing court determine at the time of sentencing whether a defendant has the ability to pay a fine if the court intends to impose one. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant’s ability to pay than is required as part of an order of restitution. See State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781 (When court orders restitution at sentencing under Wis. Stat. § 973.20(13)(a), it must set “an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” which includes imprisonment, extended supervision and probation.). A fine is part of the sentence. Failure to complete one’s sentence by full payment of the ordered fine may have significant collateral consequences, such as a delay in restoration of certain civil rights.See Wis. Stat. §§ 304.078; 6.03(1)(b). A trial court must consider the defendant’s ability to pay the fine during the total sentence, that is, any term of probation, imprisonment and extended supervision.

¶19      Here, unlike in Milashoski, Ramel had no significant employment history, and the trial court made no finding, either implicit or explicit, that Ramel had the present ability to pay a fine.

¶21      Ramel promptly raised his inability to pay in his postconviction motion. The postconviction court denied the motion without a hearing, holding that the claim of no ability to pay was “premature” because ability to pay could only be determined when Ramel began extended supervision. That analysis is in error. See Kuechler, 268 Wis. 2d 192, ¶13 (“Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue.”); State v. Iglesias, 185 Wis. 2d 117, 129, 517 N.W.2d 175 (1994) (“Because Iglesias timely raised the issue of ability to pay in her postconviction motion, we agree that the circuit court had a duty to make a determination on that issue.”) (relying on Will, 84 Wis. 2d at 404).

The court proceeds to “search the record to determine whether it supports … a finding” of ability to pay, ¶26. Discerning no support, the court vacates the fine, ¶27.

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