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Commissioner’s proposed findings on restitution don’t get de novo review by circuit court

State v. Pagenkopf, 2015AP1855-CR, 7/21/16, District 4 (1-judge opinion, ineligible for publication); case activity  (including briefs)

Per §973.20(13)(c)4, a court commissioner held a hearing and submitted proposed findings of fact and conclusions of law recommending that Pagenkopf pay $19,274.69 in restitution. Pagenkopf sought de novo review via §757.69(8), which provides that a “decision” by a court commissioner shall be reviewed by the circuit court upon the motion of any party.  According to the court of appeals, §757.69(8) does not apply to a commissioner’s restitution findings.

¶15 The terms of WIS. STAT. § 973.20(13)(c)4. direct the commissioner or referee to submit only the following items to the court following the referral: the record of the hearing and  “proposed findings of fact and conclusions of law.”  Section 973.20(13)(c)4. (emphasis added).  At that point, it is up to the court to “determine the amount of restitution.”  Id. (emphasis added).  The commissioner or referee is explicitly relegated to the role of creating a proposed restitution figure, and then forwarding it, along with the supporting material, to the court.  The court then uses all of this material to make the determination that will bind the defendant.  See id.  Thus, in reaching its restitution decision, the court will have before it, in the form of the record, any evidence or argument presented by the defendant that might undermine any proposed restitution amount.

¶17 It is of no consequence that the court decided not to adjust the commissioner’s proposed findings, based on the record created before the commissioner.  The court plainly understood that it was the decision maker, and exercised the decisionmaking authority granted under WIS. STAT. § 973.20(13)(c)4.

The court of appeals further noted that allowing de novo review of a commissioner’s, but not a referee’s, proposed findings would yield an absurd result under §973.20(13(c)4. ¶

Pagenkopf also argued that his crimes were not a substantial factor in causing the expenses for claimed restitution. See State v. Johnson, 2005 WI App 201, 287 Wis. 2d 381, 704 N.W.2d 625 (defendant’s criminal activity must be a substantial factor in causing victim’s pecuniary injury). Noting that the circuit court gets to weigh the evidence and rely parts or all of the victim’s testimony, the court of appeals held that the following evidence sufficiently supported the restitution claim:

¶4 . . . [T]he victim testified that he suffered a torn quadriceps tendon in his left knee, resulting in lost work hours and medical expenses.  Pagenkopf presented evidence that the victim had initially told his physician that he injured his knee by slipping on ice.  However, the State offered into evidence a note by the treating physician, in which the physician opined that an assault had in fact caused the knee injury.


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