State v. Daecorion J. Robinson, 2022AP2087-CR, 5/28/25, District I (not recommended for publication); case activity
In a rare “causal nexus” win, 2 judges in D1 agree that the circuit court’s order was infirm. Under the text of the restitution statute, Robinson’s aiding a felon does not make him liable for the consequences of that felon’s underlying criminal conduct.
Robinson was the passenger in a car involved in a fatal hit-and-run. (¶3). His brother was the driver. (Id.). After the accident, he helped his brother paint the car, presumably to avoid being identified. (Id.). As a result, Robinson was charged with, and pleaded guilty to, harboring or aiding a felon. (¶5). The State then requested restitution–funeral costs and lost wages–stemming from the underlying accident. (¶6). Over a defense objection, the circuit court granted that request. (¶11).
Relying chiefly on its prior decision in State v. Tarlo, COA reverses. (¶20). The statute, as interpreted by COA, requires that, in order for losses to be recoverable as restitution, they must occur as a “result of a defendant’s criminal conduct.” (¶19). Here, however, Robinson’s actions occurred after the fatal hit-and-run. (¶20). Moreover, merely being a passenger in the car is insufficient to render Robinson legally responsible for restitution. (¶20). COA therefore distinguishes away the holding of State v. Queever by observing “there is no finding in the record that Robinson committed the hit and run or took any action that caused or resulted in the hit and run.” (¶24).
Judge White, in dissent, argues that State v. Madlock compels a different result. (¶29). She believes that because Robinson played a role in this criminal “episode,” then he is liable for restitution. (Id.). Specifically, Judge White would find that Robinson’s conduct was in furtherance of his brother’s attempts to flee the scene and evade responsibility for his criminal conduct. (¶32).
Two parting comments. First, an interesting footnote shows a route this case could have taken. In the circuit court, the judge granted the restitution request in part because of what it viewed as an expanded restitution authority under Marsy’s Law. The State has abandoned that argument on appeal, however, so Marsy’s Law is left on the sidelines of this restitution battle.
Second, it is hard to see this case as anything other than SCOW-bait. As we have noted previously, the concept of a “causal nexus” in the restitution context is perhaps one of the more vexing issues in Wisconsin criminal law. Then-Judge Hagedorn penned a vigorous dissent in 2016, asserting that the common-law understanding of a causal nexus bears little resemblance to the text of the statute at issue. SCOW was poised to potentially clarify the issue in its subsequent Wiskerchen decision, but, as we pointed out, ended up authoring a fact-dependent decision that did not meaningfully develop the law. This case, involving a dissent, a State’s petition, and a tragic underlying crime may have just the ingredients necessary to pique SCOW’s interest. Stay tuned.
