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Huge restitution award upheld based on defendant’s chance of winning lottery

State v. Ericka S. Thomas, Appeal No. 2013AP341-CR; District 1; 11/13/13 (not recommended for publication); case activity

This is a split decision over the proper application of § 973.20, the restitution statute.  The circuit court convicted Thomas of Medicaid fraud, sentenced her to imprisonment, and ordered her to pay $356, 366.33 (the total amount she and accomplices stole) in restitution.  At sentencing, her lawyer described her “extremely limited earning ability,” a statement bolstered by her PSI.  The circuit court acknowledged that she couldn’t pay this amount during her imprisonment, but noted that she still had the ability “to win the lottery or something like that.”  It thus ordered her to pay the full amount during her sentence; failure to do so would result in a judgment against her.  Continuing with the “potential windfall” theme, the postconviction court denied relief because:

She might get an inheritance.  She might get in a car accident and get a settlement.  There are lots of things that people might come into in the future and they should pay for their acts of the past.  Slip op. ¶ 5.

The court of appeals affirmed due to the lack evidence to prove her inability to pay.  Neither the PSI nor her lawyer’s “mere say so” satisfy her burden of proof under § 973.20(14(b).  See State v. Boffer, 158 Wis. 2d 655, 462 N.W.2d 906 (Ct. App.1990).  Plus, said the majority, the sentencing court “may take into account what may happen in the defendant’s life after he or she completes the sentence.”  See State v. Fernandez , 2009 WI 29, 316 Wis. 2d 598, 764 N.W.2d 509.  Slip op. ¶ 8.

Judge Kessler’s dissent objected to the lower court’s reliance on pure speculation:  “Both courts applied a rationale that could render virtually any criminal defendant capable of paying virtually any restitution amount because any defendant might win the lottery, inherit a large sum of money, or recover a settlement following an automobile accident.  Such an outcome would eviscerate sec. 973.20(13)(a).  Dissent, ¶ 10 [sic].

Um.  Query whether those involved in this case realize that the lottery is commonly known as “the tax on people who don’t understand math.’  See this NYT article.  The odds of winning the power ball are 1 in 175 million.  And the last thing we should want is for indigent folks to spend their scarce resources purchasing lottery tickets–for any reason. See Id.  

Other thoughts: Sec. 973.20(13)(a)3 requires consideration of the “present and future earning ability of the defendant.”  That’s the issue in this case.  Does winning the lottery or receiving an inheritance or a personal injury settlement even qualify as an “earning”?  Or are the circuit courts going to start considering these possibilities under sub. 5 (any other factor the court deems appropriate).  Also, query whether Thomas was informed that by pleading guilty she would risked being ordered to pay a restitution award of this magnitude.  See On Point’s prior post re same here.

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