On Point

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.

Holding:

¶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.

State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial

Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.

Holding:

¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late, and that this is an improper forum for a collateral attack on that order. We disagree. Tremaine does have the right to challenge that placement order in the context of this WIS. STAT. ch. 980 proceeding. See, e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985). “When a court or other judicial body acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any time.” Id. (citation omitted). Furthermore, collateral attack is a proper method for challenging the order or judgment. Id. If Tremaine can demonstrate that the order was void, he is entitled to have it treated as a “legal nullity.” Id. at 99 (citation omitted). We will therefore consider Tremaine’s argument in the context of the ch. 980 petition.

State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski

Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: ¶8 n. 2:

We observe that Draughon did not object to the jury instruction when provided the opportunity by the circuit court. Draughon nonetheless raises his objection here under color of his ineffective assistance of counsel claim as well as his claim that the real controversy was not fully tried. Our review of a waived objection to a jury instruction is limited. See Steinberg v. Jensen, 204 Wis. 2d 115, 122 n.4, 553 N.W.2d 820 (Ct. App. 1996).  It is within our statutory discretion to review an allegedly deficient jury instruction when we are exercising our power to reverse the judgment under Wis. Stat. § 752.35.  Steinberg, 204 Wis. 2d at 122 n.4. Section 752.35 states in relevant part:

In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment … regardless of whether the proper motion or objection appears in the record.

Also, a waived objection to a jury instruction can be “raised by way of an ineffective assistance of counsel claim.” See State v. Hayes, 2004 WI 80, ¶114, 273 Wis. 2d 1, 681 N.W.2d 203 (Sykes, J., concurring). We therefore reach the merits of Draughon’s arguments.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶7. … The three standards of appellate review of circuit court decisions have been stated numerous times, although case law has articulated sub-principles and different ways of stating the standards of review: (1) A reviewing court will not overturn findings of fact unless clearly erroneous. (2) A reviewing court will sustain a discretionary decision that is the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination. (3) A reviewing court will decide questions of law independently of the circuit court but benefiting from its analysis.

Cases discussing basic review-principles are legion, of course. E.g., State v. Iran D. Evans, 2004 WI 84, ¶¶19-20.

State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski

Issue/Holding: Holding of Wisconsin supreme court binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d 129, 619 N.W.2d 137.

Just to be perfectly clear: the court of appeals does not have authority to overrule its ownprecedent, State v. Andre Bolden, 2003 WI App 155, ¶¶9-10. Indeed, sweeping language in supreme court cases indicates that the court of appeals lacks power to withdraw any language, including mere dicta, from its own published decisions. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, citing, Cook v. Cook, 208 Wis.  2d 166, 189, 560 N.W.2d 246, 256 (1997). See also American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 (“This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so.”), reversed on other grds., 2004 WI 2; and State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (same). Presumably, then, if that’s all that was up for discussion in Harden’s case—mere dicta in a prior published case—then the court of appeals presumably couldn’t withdraw the language. (Though it must also be said that mere dicta isn’t binding anyway; you don’t have to follow it, so there’s no real need to withdraw it.) But there is here an overarching principle at work: the court of appeals is bound by supreme court precedent, to which it must give way. E.g., State v. Walter Leutenegger, 2004 WI App 127, ¶5, quoting Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995): “[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.” And that is what the court of appeals in effect did in Harden’s instance, follow a (binding) supreme court pronouncement on an issue. The court of appeals also stresses that its prior, now-withdrawn pronouncement was dicta, ¶6 (as indeed it was, simply because it was language wholly unnecessary to the holding; see, e.g., Morford, ¶33 n. 4, for general definition of dicta). Why give so much attention to this? Because the result in this case—though no doubt correct—doesn’t explicitly address the somewhat obscure but nonetheless recurrent problem of just when the court of appeals has authority to withdraw its own published language, dicta or not. The result does show that, sweeping language in prior cases aside, the inhibition on this authority is not absolute. But that authority is obviously quite limited. It’s highly unlikely that the court of appeals can withdraw its own published dicta simply because it is dicta; to that extent, the court’s stress in this instance may be somewhat misleading. It isn’t so much that the prior pronouncement was “dicta” but, rather, that it is a dead letter in light of supreme court precedent with which it conflicts.

What about conflicting court of appeals’ decisions? See State v. Swiams, 2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452, citing State v. Bolden, 2003 WI App 155, ¶ 9-11, 265 Wis. 2d 853, 667 N.W.2d 364, for the pricniple that “if two court of appeals decisions conflict, the first governs.”

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding:

¶13      Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. 2d 759, ¶13; State v. Rash, 2003 WI App 32, ¶7, 260 Wis. 2d 369, 659 N.W.2d 189. “The phrase ‘substantial factor’ denotes that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.” Rash, 260 Wis. 2d 369, ¶7 (citation omitted).  This means that the defendant’s actions “must be the ‘precipitating cause of the injury’ and the harm must have resulted from ‘the natural consequence[s] of the actions.’”State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147 (citation omitted). Put another way, a causal link for restitution purposes is established when “the defendant’s criminal act set into motion events that resulted in the damage or injury.” Longmire, 272 Wis. 2d 759, ¶13. A defendant “cannot escape responsibility for restitution simply because his or her conduct did not directly cause the damage.”  State v. Madlock, 230 Wis. 2d 324, 336, 602 N.W.2d 104 (Ct. App. 1999).