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Can prior uncharged burglaries support restitution? SCOW’s answer: “What burglaries?”

State v. Shawn T. Wiskerchen, 2019 WI 1, 1/4/19, affirming an unpublished court of appeals decision, 2016AP1541; case activity (including briefs)

This could have turned out worse. The court of appeals, as we noted in our post on that court’s decision, held that Wiskerchen, convicted of a single burglary of a home, could be made to pay restitution for his alleged prior burglaries of the same home, even though those alleged burglaries were neither charged nor read in, as the statute seems to require. Four justices now conclude, through a creative reading of the record, that the circuit court found Wiskerchen took everything in the single burglary. So, precedentially, this case amounts to little or nothing, and for now at least, the court avoids embracing the court of appeals’ view that results can precede causes.

It’s pretty clear that there were prior burglaries (if we accept, as the courts did, the victim’s accounting of all that was taken). The victim testified she came home to find Wiskerchen (her neighbor) in her bedroom; the two struggled and he ran out of the house empty handed, but wearing a backpack. Afterward, she inventoried her home and found many items missing (though she hadn’t previously noticed their absence). They included a printer, a microwave, a lawn edger, multiple jackets, an air hammer and chisel set, a PlayStation 3, a crock pot, and a case of wine. That’s some backpack.

She also found a “nest” in a closet where she believed Wiskerchen had previously lurked in her house, and said that Wiskerchen’s mother told her Wiskerchen had been in her house many times before getting caught.

None of this troubles the majority, which declares “there was no evidence presented that any of the items … were stolen … on any date other than May 8.” (¶33). And, if one accepts that dubious proposition, it’s an easy case (if also one you wouldn’t really expect a law-developing court of last resort to trouble with). Wiskerchen took all that stuff in the single burglary of which he was convicted, so he’s obviously on the hook for restitution.

The first concurrence, by Justice A.W. Bradley and joined by Justice Abrahamson, points out these factual problems, saying the majority “misreads what the circuit court decided.” (¶55). But they’d still uphold the restitution award, along much the same lines as the court of appeals majority did.

As we’ve already discussed (and as the dissent below argued), these lines involve stretching prior case law so much that it no longer reflects the statutory language. That language requires that “a crime considered at sentencing” (meaning a conviction or a read-in) “result[]” in the property loss being compensated. Wis. Stat. § 973.20(2). For this concurrence, it’s enough that the loss come from conduct “related to” a crime considered at sentencing–with “related to” here meaning “similar to.” (¶65). But this negates the statute’s definition of “crime considered at sentencing”; expanding it from “any crime for which the defendant was convicted and any read in crime” to “anything the court thinks the defendant did.”

And the second concurrence, by Justice R.G. Bradley, would go even further. She notes that the first substantive provision of the statute, (1r), which describes restitution generally, doesn’t contain the word “result.” (Subsequent provisions, which spell out the specific types of loss for which restitution is allowed, do.) From this she concludes that this general provision “does not constrain the circuit court to the crime considered at sentencing when ordering restitution.” (¶70). She would hold that the statute’s declaration that the court can consider “any other factor” means the  victim’s loss need not come from a crime considered at sentencing at all. (¶73).

There are problems with this reading. (1r) authorizes “full or partial restitution under this section to any victim of a crime considered at sentencing.” Though it doesn’t say “restitution under this section for any crime considered at sentencing to any victim of the crime considered at sentencing,” isn’t this likely because a reasonable reader would consider the italicized phrase to be implied? Also, why would the statute bother defining “crime considered at sentencing” if restitution could be ordered for any old thing, crime or otherwise?

The concurrence also doesn’t say whether there’s any limitation to its reading. Can the court make a defendant pay restitution for unrelated crimes by others, or for any other harms that may ever have befallen the victim? In any case, it’s a concurrence, so for now, the majority has left the law unchanged.

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  • Tom Aquino January 7, 2019, 10:23 am

    On a related note, in today’s SCOTUS order list, Justice Gorsuch (joined by Justice Sotomayor) wrote a dissent to the denial of a grant of cert in Hester v. U.S., where the issue raised was whether the 6th Amendment jury-trial guarantee requires restitution awards to be determined by a jury. Gorsuch believes that it does, and so would have granted cert.

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