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Restitution – “causal nexus” between crime and disputed damage

State v. Thomas G. Felski, 2012AP1115-CR, District 2, 1/3/13

Court of appeals decision (1 judge; ineligible for publication); case activity

Felski was convicted of violating Wis. Admin. Code ATCP § 110.05 (criminalized by virtue of § 100.20(2)) for failing to have a written contract covering some remodeling projects. Evidence at trial focused on construction of a garage, but Felski also worked on an addition to the house not covered by a written contract. Citing State v. Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147, the court of appeals rejects Felski’s argument that there was no causal nexus between the crime of conviction and restitution for the addition:

¶10      As we have stated in the past, the “crime considered at sentencing” encompasses “all facts and reasonable inferences concerning the defendant’s activity related to the ‘crime’ for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted.” Id., ¶10 (citation omitted) (emphasis omitted). In this case, even if we accept Felski’s argument that he was only convicted of failing to have a written contract for the garage project, his work on the addition was part of his evolving noncontractual relationship with the Derricks, which culminated in the garage project. So, while the facts related to Felski’s work on the addition were not necessary to support the elements of a charge that related only to the garage project, they absolutely were “facts and reasonable inferences concerning the defendant’s activity related to the crime” of not having a written contract. See id. (citation omitted) (emphasis omitted).

¶11      In addition, … the lack of written contract set the stage for a situation where the Derricks were writing multiple checks to cover an unknown total expense. To the extent that they overpaid on those projects, that overpayment has a causal nexus to the crime of not having a written contract. The circuit court therefore had the authority to order restitution based on the addition and the garage project.

Another example of the phenomenon noted previously on this site: the courts take an expansive view of causation when it comes to restitution.

Restitution – exercise of discretion in calculating amount

The court of appeals concludes, ¶13, that “the number the circuit court came to for restitution does not appear to match its reasoning” and that the court’s explanation of its calculation “is not entirely clear….” Accordingly, “based on the record in this case, we are unable to discern whether the circuit court ‘used a demonstrated, rational process to reach a conclusion that a reasonable judge could reach’ regarding the amount of restitution owed,” ¶15, so the restitution order is reversed and the case remanded for further proceedings.

Deciding the amount of restitution involves an exercise of discretion, which requires the trial court to logically interpret the facts, apply the proper legal standard, and use a demonstrated, rational process to reach a conclusion that a reasonable judge could reach. State v. Johnson, 2005 WI App 201, ¶10, 287 Wis. 2d 381, 704 N.W.2d 625. Felski argued that the circuit court’s restitution calculation was incorrect because it failed to credit the value of his work and improperly included the cost of materials purchased directly by the victims, ¶¶13-14. Even the state conceded the circuit court’s math appeared to be incorrect, ¶7, so remand is necessary to allow the court to clarify its calculation.

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