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COA grants reconsideration, reverses in part due to illegality of sentence

State v. Larry C. Lokken, 2017AP2087-CR, 9/17/19, District 3 (unpublished), case activity (including briefs)

Lokken, a long-time Eau Claire County Treasurer, pled “no contest” to 3 counts of misconduct in office and 5 counts of theft in a business setting for stealing $625,758.22 from taxpayers.  The circuit court ordered $681,846.92 in restitution  and imposed an unusual condition of probation on one of the counts: if Lokken failed to pay restitution in 4 1/2 years, the 10-year probation period  on Count 2 would be revoked.

Lokken originally lost this appeal in June. Among other things, he had argued that the sentence on Count 2 violated §973.10(2) because the court “mandated” the revocation of his probation if he failed to fully pay restitution within the first 4 1/2 years of probation. This order prevented the Executive Branch (the DOC) from exercising its statutory authority to determine whether to initiate revocation.  The court of appeals initially declined to address the issue on the theory that it was not ripe for adjudication because its resolution depended on hypothetical or future facts  Opinion, ¶21 n.10.

But Lokken moved for reconsideration and persuaded the court of appeals that while the factual issue was not ripe, he still had the right to challenge the legality of a condition of probation. To its credit, the court of appeals agreed, and in this new opinion reverses on this point:

¶22 Under WIS. STAT. § 973.10(2), the “executive branch has exclusive statutory authority to administer and to revoke probation.” State v. Burchfield, 230 Wis. 2d 348, 349, 602 N.W.2d 154 (Ct. App. 1999). To that end, we have recognized that when a circuit court imposes a sentence but stays its execution while the defendant serves a probationary term, the “court has no authority to revoke [the defendant’s] probation.” Id.
¶23 As such, we conclude that the circuit court exceeded its authority to the extent it ordered the stay on Lokken’s imposed sentence “to be lifted” if he fails to abide by the conditions of his probation. This conclusion follows because it must be left to “the executive branch to determine whether [Lokken] has violated the conditions of [his] probation to such a degree as to warrant revocation.” See State v. Horn, 226 Wis. 2d 637, 651, 594 N.W.2d 772 (1999).

The court of appeals directed the circuit court  to amend the portion of the judgment of conviction relating to Count 2 that says “Stay to be lifted if restitution joint and several not paid in full within 4.5 years” so that it reads “Condition of Probation: Restitution joint and several to be paid in full within 4.5 years.” During reconsideration proceedings, Lokken and the State stipulated to this modification. Opinion, ¶23 n.12.

Lokken also challenged the “massive amount” of restitution that the circuit court imposed. The court of appeals dismissed this challenge primarily because in the circuit court Lokken had stipulated to the amount of restitution, so he forfeited any objection to it. See Cascade Mountain, Inc. v. Capitol Indem. Corp., 212 Wis. 2d 265,269, 569 N.W.2d 45 (Ct. App. 1997). The court also said it would have affirmed the amount of restitution anyway for the case-specific reasons set forth in ¶¶27-30 of its opinion. In a nutshell, the circuit court had ordered that restitution be paid jointly and severally by Lokken and his co-defendant, so Lokken would not necessarily pay the entire amount. Lokken and his co-defendant never explained what they did with the stolen funds. The high restitution would incentivize them to return any hidden funds. Also, the victims in this case–Eau Claire County taxpayers–lost a massive amount of money.

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