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Restitution: Is there no end to a “causal nexus” in sight?

State v. Shawn T. Wiskerchen, 2016AP1541-CR, 11/1/17, District 2 (not recommended for publication), petition for review granted 3/14/18; affirmed 1/4/19; case activity (including briefs)

“If you start off on the wrong foot, the footer you go, the wronger it gets.” So said Hank the Cowdog and so, essentially, argues the dissenting opinion in this case.  Section 973.20(1r) allows a sentencing court to order a defendant to make full or partial restitution to any victim of a “crime considered at sentencing,” which means “any crime for which the defendant was convicted and any read-in crime.” §973.20(1g)(a). Before ordering restitution, the court must first find a “causal nexus” between the “crime considered at sentencing” and the victim’s alleged damages. Here, the court of appeals finds a “causal nexus” between the lone burglary considered at sentencing and possible losses caused by possible, uncharged prior burglaries that were never considered or read in at sentencing. It does so based upon a series of restitution decisions that have incrementally produced a result the dissent finds absurd.

Here’s what happened. Wiskerchen pled “no contest” to burglarizing N.D.’s home on May 8, 2015. At the restitution hearing, N.D. submitted a bill for 74 allegedly missing items totally over $32,000, even though it was undisputed that Wiskerchen left her home on May 8th carrying only a back pack which could not have contained the guitar amplifier, gaming system, power tools, BB gun and crockpot that N.D. claimed he stole. The majority did not find this troubling because N.D. testified that she believed that Wiskerchen had entered her home several times prior to May 8th and had made “a nest” in one of her closets. In addition, Wichershen admitted that he had burglarized 100 to 200 other homes.

The majority relied upon State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, which required a defendant to pay restitution for the home security system she had to install after the defendant had allegedly burglarized her home several times prior to the time he was caught. Slip op. ¶9. Queever relied upon State v. Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147 (court may order restitution based on all the facts and inferences “related to” the crime for which the defendant was convicted), which relied upon State v. Rodriguez, 205 Wis. 2d 620, 556 N.W.2d 140 (Ct. App. 1996) and State v. Madlock, 230 Wis. 2d 324, 602 N.W.2d 104 (Ct. App. 1999) (court may order restitution for defendant’s “entire course of conduct”). The majority reasoned:

¶12 As in Queever, we find a sufficient causal nexus that the prior burglaries of N.D.’s home were “related to” the May 8 burglary as they involved the same home, the same victim, the same entry point (the basement window that had been tampered with prior to May 8), and the same time of day (Wiskerchen likely used his “nest” while N.D. was at work).  See id., ¶22.  Wiskerchen’s burglary of N.D.’s home on May 8 was merely the last in a series of invasions.  Accordingly, we conclude that the circuit court did find by a preponderance of the evidence that Wiskerchen committed the other burglaries at N.D.’s home.

The dissent notes that Queever ordered the defendant to pay restitution for the security system the plaintiff had to install after his several alleged prior burglaries but not for items he allegedly stole.  Here, the majority ordered Wiskerchen to pay for items that he was not convicted of stealing. Nor were they related to “read in crimes” because there weren’t any crimes “read in” at his sentencing. Says the dissent:

¶25 . . . This case, I think, illustrates a common pitfall in common law decision-making.  Sometimes courts, when construing a statutory or constitutional provision, establish a doctrinal framework or further amplify a defined term to aid in deciding a case.  But over time, courts can fall into the trap of using the doctrinal framework or amplification to the exclusion of the text of the law itself.  And pretty soon, cases like this one arise that are entirely unjustifiable when analyzed under the statutory or constitutional provision they are purportedly based on.
¶26 The majority’s decision cannot be justified by the statutory language; it makes no real attempt to do so.  Rather, it rests instead on explanatory language from prior cases interpreting the statute.  In doing so, it takes that language out of context and creates a path to restitution under a new and expanded legal framework that is unmoored from the statutory text.

¶36 One of the unfortunate side effects of this new approach to restitution is that restitution hearings could—legitimately—turn into minitrials regarding uncharged alleged crimes.  Defendants may wish to contest allegations that they committed prior crimes.  And if they do, one can imagine the whole gamut of witnesses, documents, and even criminal discovery (which the statute does not allow “except for good cause shown,” see WIS. STAT. § 973.20(14)(d)).

The dissent’s analysis of Rodriquez, Madlock, Canady, and Queever is consistent with On Point’s analysis of the same cases. The dissent also argues that the majority’s “scopious” reading of Queever warranted a certification of this issue to SCOW. That did not happen. Hopefully there will be a petition for review.

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