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Defense win! COA limits DOC withholdings from prison wages to pay restitution

Victor Ortiz, Jr. v. Kevin A. Carr, 2022 WI App 16; case activity (including briefs)

Attorneys Jason Luczak and Jorge Fragoso of Gimbel, Reilly, Geurin & Brown generously took this case pro bono. And now Jorge offers this guest post on their defense win:

Prison inmate (and hero to institutionalized persons) Victor Ortiz filed a petition for writ of certiorari seeking to limit the percentage of his income diverted for the payment of restitution. He won. The court of appeals ordered the Department of Corrections to limit its withholdings to 25% of Ortiz’s wages, half of what the Department sought.

This is a huge victory for Ortiz. The prison pays him an average of 19.5 cents an hour for his labor, and then it slices and dices his $15.60 biweekly paycheck to pay child support and restitution. He only nets $3.51 a week. That’s because half of his money goes to child support and half of the remaining money goes to restitution (and 10% of the remainder goes to his inmate release account). The court of appeals’ decision will increase Ortiz’s biweekly paycheck by $1.75, which may not seem like much to the unincarcerated, but Ortiz is a consumer of a commissary in a captive market (forgive me) for the next 34 years, and he just got himself a 50% raise! There’s little doubt other inmates will try to get the same raise.

Unfortunately, we can’t anoint Ortiz the patron saint of restitution deduction percentages without considering the litany of caveats and qualifications that are inextricable from the court’s decision.

First of all, this decision applies only to prison wages, not gifted funds. If Ortiz’s family deposits $100 into his inmate account, the Department can withhold more than 25% of the deposit.

Next, this decision involves a conflict between a restitution order imposed at sentencing and a policy of the Division of Adult Instruction. The holding relies on the sentencing court’s requirement “that restitution be paid … in specified installments” according to Wis. Stat. § 973.20(10)(a). If the sentencing court’s restitution order does not demand payment in specified installments, then it does not limit the Department’s authority.

Third, the restitution order in this case predates the passage of 2015 Wisconsin Act 355, which went into effect on July 1, 2016. The court’s decision does not address the changes made by this Act, and anyone citing this decision should be mindful of the date of sentencing. Among other changes, Act 355 led to the addition of the following paragraph on the standard Wisconsin Form CR-212, the form used across the state for judgments of conviction (JOC):

If the defendant is in or is sentenced to state prison and is ordered to pay restitution, IT IS ORDERD that the defendant authorize the department to collect, from the defendant’s wages and from other monies held in the defendant’s inmate account, an amount or a percentage which the department determines is reasonable for restitution to victims. Wisconsin Form CR-212, updated 05/2016.

It’s likely that the changes made by Act 355—in particular, the addition of paragraphs (c), (d), and (e) to Wis. Stat. § 973.20(11)—will increase the Department’s authority over anyone sentenced after July 1, 2016.

Nevertheless, the opinion offered helpful bits related to prison wages and their disbursement. See Wis. Stat. §§ 301.31, 303.01(8), and 303.06(2). It also addressed gifted funds under Wis. Stat. § 301.32. The court grounded the circuit court’s power to order restitution deduction percentages in the text of the restitution statute itself, Wis. Stat. § 973.20. Ortiz, ¶ 30 (citing State v. Greene, 2008 WI App 100, 313 Wis. 2d 211, 756 N.W.2d 411).

Under sub. (1r), the court has the power to order the defendant to pay restitution and under sub. (13) orders the court to consider the “financial resources of the defendant” and the “present and future earning ability of the defendant.” Then, sub. (10)(a) empowers the court to order that a defendant pay a specific percentage of his prison wages to satisfy a restitution obligation “within a specified period or in specified installments.”

The court of appeals decided that a restitution order such as the one on Ortiz’s JOC, which read “Court-ordered restitution to be paid from 25% of prison wages,” does constitute a “specified installment” under Wis. Stat. § 973.20(10)(a). Consequently, this statute supports Ortiz’s argument about what sentencing courts may “require” in court orders addressing restitution. Ortiz, ¶ 33.

The court of appeals rejected the argument that the Department has exclusive authority to determine the restitution deduction percentage.  Ortiz, ¶¶ 38-56.

And the court of appeals ruled that the JOC did not address gifted funds and therefore the Department was free to determine the restitution deduction percentage. The court held that “the Department has authority to deduct money from a prisoner’s gifted funds for payment of restitution, so long as the Department’s deduction of that money does not conflict with an order from the sentencing court.” Ortiz, ¶ 64 (citing State ex rel. Markovic v. Litscher, 2018 WI App 44, 383 Wis. 2d 576, 916 N.W.2d 202).

I want to add a note about Ortiz. He deserves a lot of credit for working his way through multiple, complicated complaint processes to challenge what the Department of Corrections was doing. This whole thing took 6 years, and it’s not even done yet.

Although this case may not apply as widely as some might hope, there are probably still a number of inmates that are in Ortiz’s position who might be able to use it to challenge their restitution deduction percentage. If they fit the qualifications, they might just get themselves a 50% raise.

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