On Point

State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate

Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes:

¶8        …

• Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime.
• As a result of that crime, Agosto’s mother lost $50,000, and she lost it by the artifice of her son’s false promise to comply with the conditions of his bond as surely as if he had taken the $50,000 from her by force.
• Thus, Agosto’s mother was the “victim” of his having committed the crime of bail-jumping. See State v. Galli, 967 P.2d 930, 937–938 (Utah 1998) (If the defendant had either pled guilty to or admitted to violating the conditions of his bail, he would have been subject to a restitution order directing him to reimburse the person who posted the bail that was forfeited as a result of the violations.).

¶9        As applicable here, a circuit court may impose a restitution order as part of a sentence if the following is true:

• the beneficiary of the restitution order is “[a] person against whom a crime has been committed” (so as to be a “victim”); and
• the beneficiary of the restitution order is a victim of a crime that is “considered at sentencing.” He or she need not be a victim of the crimes for the sentence imposed (here, sexual assault and interference with child custody).

Both of these requisite elements are present here.

An expansive definition of “victim,” but that’s nothing new. One thing to note: even if not forfeited, bail upon defendant’s conviction must be disbursed toward restitution and costs, § 969.03(4). Is Agosto entitled to reduction of the bail-jumping restitution by the amounts that would have been taken from bail even absent his bail-jumping? Not discussed by the court. Too bad, not just because you then have to wonder not just about how the amount of restitution was calculated but also about the court’s rationale altogether, which is pretty much limited to analogizing the bail-obligor to a robbery victim (¶8). Just how strong is the analogy? Not too many robbery victims sign contracts agreeing ahead of time to the loss of property taken during a robbery. Agosto’s mother wasn’t tricked into signing the bond agreement. She may have hoped her dutiful son wouldn’t violate; she may have held him to an unrealistic standard of decent behavior; his abuse of her touching faith might have been the stuff of day-time tv; but nothing in the opinion suggests she was tricked into putting herself at his mercy. (So much, too, for the notion of the lad’s artifice.) She likely believed there was no risk (what economists like to call a “moral hazard”), but she wasn’t misled: she merely assumed that filial love was equal to maternal devotion, such that no risk accrued to her money. And that also gets back to the original point, that she well-knew, from the plain terms of the agreement, that something would be deducted; she knew in other words, that at a minimum she wasn’t going to get it all back. It wasn’t a “moral hazard” after all (or maybe it was, but in a lay, not technical, sense). In for a penny, in for a dollar. Briefly put, although it might well be that she ought to be considered a “victim” for restitution purposes, the court of appeals’ reasoning doesn’t support that idea.

The original restitution order, by the way, was 50k, reduced later to 12k, a still-substantial amount. At just what point does restitution become punitive (which isn’t to say, off-limits but rather, similar to a fine, a “direct” consequence of a conviction)? And, similarly, when does a restitution order trigger the right to jury? Never, in the current view of the courts. But perhaps thought should be given to at least raising the problem.

The court, incidentally, not content merely to expand the definition of victim under the restitution statute, proceeds to similarly expand the court’s authority to enter a similar order for purposes of extended supervision, ¶9.

State v. Anthony Houston Lee, 2008 WI App 185
For Lee: Carl W. Chessir

Issue/Holding:

¶11      As noted, Wis. Stat. § 973.20 authorizes a trial court to order restitution to victims of a “[c]rime considered at sentencing,” which includes “any crime for which the defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a) & (1r). We conclude that this language is clear and unambiguous, and that it requires us to reverse the restitution order. Here, the two crimes that were considered at sentencing were armed robbery (to which Lee pled guilty) and armed burglary (which was read in). Lee was not charged with fleeing an officer, assaulting an officer or any crime related to his flight from officer Lindstrom. Accordingly, Lindstrom was not a victim of a crime considered at sentencing, and neither he nor the insurance company that paid expenses related to his injuries can receive restitution. ^[6]

The court (¶10) refers to prior caselaw discussion relative to the test for law enforcement restitution—whether the loss is a direct or collateral consequence of the criminal conduct, State v. Earl W. Haase, 2006 WI App 86—but concludes that the present case is resolved simply by virtue of the fact that the injury wasn’t part of a “crime considered at sentencing.”

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶57      In summary, while the termination from the community treatment program and the rule violation were presented as conduct that, along with the hotel incident, showed Mark was at risk to reoffend, their significance without the hotel incident is not clear. The hotel incident was the dominant focus, in argument and testimony, of the conduct Mark engaged in after release on parole that showed he was still dangerous. Given the ambiguity of the conduct underlying the rule violation and the lack of testimony explaining how the community treatment termination related to Mark’ future dangerousness, particularly in view of the treatment he earlier successfully completed, we think it is speculative whether a rational jury would have decided, without the hotel incident and the experts’ opinions on dangerousness, that Mark was much more likely than not to reoffend.¶58      We conclude that the State has not demonstrated beyond a reasonable doubt that the errors—the admission of Mark’s two statements on the hotel incident, references to the statements and to the hotel incident, and the experts’ opinions that Mark was much more likely than not to reoffend—were harmless.

Also see: State v. Danny G. Harrell, 2008 WI App 37, ¶43.

State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis

Issue/Holding: Various discovery and evidentiary violations amounted to harmless error, whether taken singly (¶¶41-59, ¶87-90) or cumulatively (¶¶109-113).Harmless error discussions are largely fact-specific, and this case is no exception. But it is noteworthy for its recognition that the “court has formulated the test for harmless or prejudicial error in a variety of way,” ¶42.

The court doesn’t attempt to reconcile the different wordings which include, briefly, the following tests: whether the State has proven beyond reasonable doubt that the error didn’t contribute to the conviction, or whether it is clear beyond reasonable doubt that a rational fact-finder would have found guilt absent the error, see ¶¶42-43. Presumably, you’re free to argue whichever standard you prefer. The State, as a constant, bears the burden of proof as to harmlessness, see ¶113.

State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶11      Wisconsin courts have not yet articulated the standard for reviewing a circuit court’s order for commitment under Wis. Stat. § 971.17(3)(a). The State proposes that courts should review such orders under a sufficiency of the evidence standard. Wilinski seems to concede this is the appropriate standard of review. We are also persuaded. As the State points out, our supreme court adopted the sufficiency of the evidence standard of review for orders under Wis. Stat. § 980.08(4), which provides for the supervised release of sexually violent persons. State v. Brown, 2005 WI 29, 279 Wis. 2d 102, 693 N.W.2d 715. Much like § 971.17(3)(a), the statute in Brown required the court to order institutional care if the State proved by clear and convincing evidence it was “substantially probable” the defendant would engage in acts of sexual violence if he was not institutionalized. ^[2] It also contained a list of factors for the court to consider nearly identical to the one in § 971.17(3)(a).¶12      The sufficiency of the evidence test asks whether a circuit court could reasonably be convinced by evidence it has a right to believe and accept as true. Brown, 279 Wis. 2d 102, ¶40. If the evidence supports multiple reasonable inferences, we will adopt the inference the circuit court adopts. Id. When applying this standard, reviewing courts give “deference to the circuit court’s strength in determining the credibility of witnesses and in evaluating the evidence.” Id., ¶44. We “draw not only on a circuit court’s observational advantage, but also on the circuit court’s reasoning.” Id.

State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: NGI commitment to institutional care supported by the evidence, in that

• The nature of the offense itself (violent assault coupled with threat to kill) supported a finding of significant risk of harm if Wilinski were released (¶13);
• Wilinski failed to comply with conditional release under prior NGI commitment, thereby suggesting poor prospect for treatment compliance (¶14);
• Wilinski was dangerous when off medication and/or drinking alcohol (¶15);
• Conditional-release services available to Wilinski within the community would be adequate for only up to one year, while there was evidence Wilinski would require daily monitoring for 27 years (¶¶6, 17);

In sum:

¶18      The level of certainty required by Wis. Stat. § 971.17(3)(a) is clear and convincing evidence. Although this requires certitude greater than preponderance of the evidence, absolute certainty is not required. Kuehn v. Kuehn, 11 Wis. 2d 15, 26, 29-30, 104 N.W.2d 138 (1960). As directed by § 971.17(3)(a), the court considered the nature and circumstances of Wilinski’s crime; his mental history and present mental condition; where he would live if released; and what arrangements would be available to ensure he has access to and will take necessary medication. We conclude the court could reasonably be convinced by clear and convincing evidence that Wilinski would pose a significant risk of bodily harm to himself or others if released. The court’s order is therefore supported by sufficient evidence.

Wilinski apparently had a track record of treatment non-compliance to go along with demonstrable dangerousness, so the temptation to lock him up notwithstanding (more accurately: because of) his mental illness must have been strong. (He not only violently assaulted a female acquaintance he also attacked police when they showed up.) Still, judges are in effect required to pay lip service to least restrictive alternative placement, conditional release, when feasible. (That is, if the judge can’t affirmatively find significant risk by clear and convincing evidence, then conditional release must be ordered instead of institutional care, § 971.17(3)(a).) The kicker here is support for Wilinski’s conditional release with adequate monitoring, which one doctor thought had to be in place for 27 years (¶6), along with evidence the local community didn’t have the resources for such long-term monitoring (¶8). Not hard, then, to see why the judge would be wary of ordering release. The legal question for the court of appeals was, in effect, whether placement could be cost-driven. The court certainly didn’t phrase the problem precisely that way, but the net effect of the holding is to throw costs into the placement calculus (“what arrangements would be available to ensure he has access to and will take necessary medication”). Would have been nice, then, if the court of appeals had dealt with this problem a bit more forthrightly. For example, there is authority for the idea that where the legislature hasn’t so specified, ch. 55 protective placement may not be driven by fiscal concerns D.E.R. v. La Crosse County, 155 Wis. 2d 240, 248, 455 N.W.2d 239 (1990) (with respect to [since-amended] § 55.06(9)(a) (1987-88): “The legislature has not expressly limited the county’s responsibility in ch. 55 to make placements to the least restrictive environment to funds available from state or federal sources and county matching funds,” id., at 252). This isn’t to say that the court of appeals’ analysis was wrong. To the contrary, City of Milwaukee v. Ruby Washington, 2007 WI 104, ¶¶49-53, pretty clearly suggests that costs can be factored into placement (TB commitment in that instance). It’s just that the opinion cries out for a more refined analysis on this point. It’s one thing to say, in so many words (none, really when you get down to it), that a small, strapped county can’t reasonably be expected to pour resources into decades’ worth of monitoring. Sort of a self-evident, isn’t it? But what happens when the county doesn’t want to pay for someone facing maximum exposure of, say, 5 years (or less). Then what? Would have been nice for the court to provide some sort of analytical framework, but that will apparently have to await future litigation.

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue: Whether § 980.09 (2005-06) grants the circuit court a greater “gatekeeper role” than the prior statute in ordering an evidentiary hearing on a discharge petition.

Holding: 

¶22      The State’s premise that the new statute grants the circuit court a greater role than it played in a probable cause determination runs contrary to the development of the law. Discharge proceedings play a critical role in the constitutionality of civil commitments. Courts have repeatedly confirmed this. See, e.g.,Foucha, 504 U.S. at 71 (1992) (a person subject to a mental health commitment “may be held as long as he is both mentally ill and dangerous, but no longer”);Thiel, 275 Wis. 2d 421, ¶23 (“our supreme court has tied the constitutionality of Wis. Stat. ch. 980 to the availability of periodic reviews that reassess the person’s dangerousness to determine if a lesser restriction of his or her liberty is warranted”); State v. Rachel, 254 Wis. 2d 215, ¶66 (ch. 980 “passes constitutional muster” because confinement is “linked to the dangerousness of the committed person” and there are procedures for ending confinement when the person is no longer dangerous); Combs, 295 Wis. 2d 457, ¶28 (the periodic reexamination and probable cause hearing for discharge “are among the protections that the supreme court has considered significant in concluding that Wis. Stat. ch. 980 does not violate the equal protection clause or the right to due process”). By interpreting the discharge procedure in a way that appears more punitive, such that petitions would be less likely to merit an evidentiary hearing, we erode one of the key provisions that courts have relied upon to uphold the constitutionality of ch. 980. [5]

¶23      Furthermore, the State’s interpretation of the new standard ignores the plain meaning of the statutory language. The legislature could have retained “probable cause” as a standard, but instead required the showing of “a change” from which a judge or jury “may conclude” the person no longer meets the definition of a sexually violent person. Wis. Stat. § 980.09(1). The State’s interpretation would require a petitioner to “prove” that his or her condition has “actually changed” just to meet the threshold for an evidentiary hearing. The statute places no such burden on the petitioner. The circuit court’s role as gatekeeper, to weed out frivolous petitions, is not elevated by the revised statute. The revised statute’s petition review procedure, like the probable cause procedure before it, is not a substitute for the evidentiary hearing. SeeKruse, 296 Wis. 2d 130, ¶31.

Shorter version: Meet the new statute, same as the old statute.