State v. Scott Edward Ziegler, 2005 WI App 69
For Ziegler: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a trial court retains authority to order restitution 14 years after entering a “to be determined” restitution order in the original judgment of conviction.
¶11. As we have repeatedly explained, “Restitution is governed by Wis. Stat. § 973.20, which requires courts to order full or partial restitution ‘under this section’ to any victim of a crime ‘unless the court finds substantial reason not to do so and states the reason on the record.'” State v. Evans, 2000 WI App 178, ¶13, 238 Wis. 2d 411, 617 N.W.2d 220; see also § 973.20(1r). A sentence that fails to provide for restitution is unlawful and is subject to amendment.4 State v. Borst, 181 Wis. 2d 118, 122-23, 510 N.W.2d 739 (Ct. App. 1993).¶12. When, as here, a trial court orders restitution, but does not determine the amount of restitution at sentencing, Wis. Stat. § 973.20(13)(c) sets forth a list of four alternative procedures that the court may use to finalize the amount due.
¶13. Here, the parties agree that the trial court failed to comply with any of the four alternative procedures for determining restitution and that restitution was set outside of the restitution determination periods of Wis. Stat. § 973.20(13)(c)2. …
¶14. In State v. Perry, 181 Wis. 2d 43, 53, 510 N.W.2d 722 (Ct. App. 1993), we held that the sixty-day restitution determination period of Wis. Stat. § 973.20(13)(c)2. is directory, not mandatory. … Accordingly, we concluded that restitution orders resulting from proceedings held outside of the statutory time period for valid reasons may be upheld, provided that doing so will not result in harm or injury to the defendant. See id.; see also Johnson, 256 Wis. 2d 871, ¶¶8-14 (citing Perry for the conclusion that a court may impose restitution outside the statutory time frame as long as (1) valid reasons exist for the delay and (2) the defendant has not been prejudiced by the delay).
¶15. Here, there is no valid reason for the delay.
¶17. Must we consider the second component of the Perry test, the question of prejudice to the defendant, if we determine, as here, that there is no demonstrable valid explanation for holding the restitution determination hearing outside the statutory time limits?
¶18. We conclude that we must. … We therefore hold that the two-pronged Perrytest is akin to a balancing test; in each case, the court must balance the length and reasons for the delay against the injury, harm or prejudice to the defendant resulting from the delay. See id. at 56-57.
The court proceeds to conclude that the 14-year delay prejudiced Ziegler, but the analysis is a bit of a muddle, ¶¶18-21. On the one hand, the court suggests that the result is fact-specific (¶19, stressing that “much of the documentation concerning the victim’s damages had been lost or destroyed”); and on the other, that a delay of such magnitude is necessarily prejudicial (¶19, stressing that “more importantly” Ziegler had “acquired a legitimate expectation of finality of the judgment against him”; and ¶21, concluding that “such delay inherently prejudiced Ziegler,” emphasis supplied). So, now we know that 14 years is a bit too long for the court, at least where records have been lost. What about 13, or 12, 10 or 5? Pretty clear that the court doesn’t want to lay down any rules that would later bind anyone – else the court would have mandated relief simply upon determining no justification for delay. Restitution is apparently a matter of equitable consideration, and in that sense this decision – which undoubtedly came to the correct result – is deeply problematic. The court has also created an intolerable tension between its express acknowledgement of a defendant’s “legitimate expectation of finality” (a phrase which implicates double jeopardy considerations, by the way – see generally, State v. Guy R. Willett, 2000 WI App 212, cited with approval and applied by this decision, ¶19; and U.S. v. Rosario, 2nd Cir. No. 03-1686-cr, 10/8/04: “application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence”) and its prior holdings to the effect that restitution is not “punishment” but is a collateral consequence of conviction (e.g., State v. Anthony A. Parker, 2001 WI App 111¸ ¶9). Keep in mind, too, the distinction drawn by the court between overlooking restitution altogether at sentencing, and a to-be-determined order as in this instance, ¶11 n. 4. Apparently, in the former instance, the sentence is deemed “illegal” and thus can be reopened, at least with regard to restitution, seemingly without impediment, id. In the latter instance, the two-part “Perry” test applies. Could, then, a court reopen a previously ignored restitution demand 14 years after the fact, on the theory that that aspect of the sentence was “illegal”; and that an “illegal” sentence is void? Who knows. At some point, you must have some expectation of finality in a result; and even if you don’t, there may be a due process claim of denial of right to speedy sentencing.