2019 WI 1
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1541-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Shawn T. Wiskerchen,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 379 Wis. 2d 367, 906 N.W.2d 183
(2017 – unpublished)
OPINION FILED: January 4, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 25, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Faye M. Flancher
JUSTICES:
CONCURRED: A.W. BRADLEY, J., concurs, joined by ABRAHAMSON,
J. (opinion filed).
R.G. BRADLEY, J., concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Jeremy A. Newman, assistant state
public defender.
For the plaintiff-respondent, there was a brief filed by
Sopen B. Shah, deputy solicitor general, with whom on the brief
were Brad D. Schimel, attorney general, and Misha Tseytlin,
deputy solicitor general. There was an oral argument by Sopen
B. Shah.
2019 WI 1
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1541-CR
(L.C. No. 2015CF742)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JAN 4, 2019
Shawn T. Wiskerchen, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This is a review of
an unpublished decision of the court of appeals1 affirming the
circuit court's2 restitution order of $8,487.41 against Shawn T.
Wiskerchen for losses caused by his burglary of a neighbor's
residence.
¶2 Wiskerchen argues that the circuit court erroneously
exercised its discretion in calculating the amount of
1
State v. Wiskerchen, No. 2016AP1541-CR, unpublished slip
op., (Wis. Ct. App. Nov. 1, 2017).
2
The Honorable Faye M. Flancher of Racine County presided.
No. 2016AP1541-CR
restitution. He argues that the circuit court improperly
considered alleged prior burglaries of the victim's home,
contrary to Wis. Stat. § 973.20 (2015-16),3 which he contends
limits restitution to losses resulting from a "crime considered
at sentencing." We reject his argument in part because
Wiskerchen misreads what the circuit court decided, and also
because no evidence was presented at the restitution hearing to
support a finding that N.D.'s missing property was stolen on any
date other than May 8, which was the burglary considered at
sentencing.
¶3 First, we conclude that the plain language of Wis.
Stat. § 973.20 authorized the circuit court to order restitution
to the victim in this case. Second, we conclude that the
circuit court's finding that the victim met her burden in
proving the amount of loss resulting from a crime considered at
sentencing was not clearly erroneous. The circuit court
therefore did not erroneously exercise its discretion in
ordering restitution of $8,487.41.
¶4 Accordingly, we affirm the court of appeals.
I. BACKGROUND
¶5 On May 8, 2015, police responded to N.D.'s home after
she reported a burglary. N.D. was visibly upset, crying,
shaking, and bleeding when the officers arrived. She told the
officers she had come home to find all her bathroom cabinets
3
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP1541-CR
open, and had heard noises coming from upstairs. She went
upstairs and opened the back bedroom door to find Wiskerchen,
her neighbor, in the bedroom.
¶6 When N.D. discovered that Wiskerchen was inside her
home, she began yelling, and she and Wiskerchen began pushing
each other. During the ensuing struggle, N.D. reported that
Wiskerchen grabbed her by the arm and threw her down the stairs
before fleeing the home. N.D. suffered injuries to her wrist,
ankle, and shoulder as a result of this fall, and needed to wear
a brace on her foot as a result of her injuries. She had
difficulty sleeping after the home invasion, and has stated that
she no longer feels safe and secure in her home.
¶7 Shortly after arriving at N.D.'s home, police found
Wiskerchen hiding in a neighbor's backyard. They searched the
backyard and found a pile of clothing matching N.D.'s
description of what the suspect was wearing, as well as a badly
bent screwdriver. Wiskerchen was arrested and charged with
misdemeanor battery, possession of burglarious tools, burglary
of a building or dwelling, and second-degree recklessly
endangering safety, all as a repeater. He eventually pled no
contest to the burglary charge without the repeater enhancer,
and was sentenced to five years of initial confinement followed
by four years of extended supervision.
¶8 Police initially had a difficult time discovering
Wiskerchen's point of entry into N.D.'s home. It turned out
that he had drilled a hole into a basement storm window and had
modified the window so it could be opened from the outside with
3
No. 2016AP1541-CR
a screwdriver. N.D. told the presentence investigative report
(PSI) writer that Wiskerchen may have chosen this particular
window because it was not facing any neighbors. An officer
reported finding fresh sawdust in the grass beneath the storm
window.
¶9 N.D. informed the PSI writer that she had discovered a
"nest" in the back bedroom closet, where Wiskerchen had
apparently pulled down clothes and arranged a place where he
could hide. She also found liquor bottles in the "nest." This
discovery caused N.D. to worry that he may have been hiding in
her house on prior occasions while she was home, further eroding
her sense of security. According to the PSI writer, Wiskerchen
bragged that he had previously burglarized "100 to 200 homes,"
and had made "more money than any judge or cop" by pawning his
stolen items in Illinois.
¶10 After the burglary of May 8, N.D. searched her home to
take stock of potentially stolen items and collected whatever
receipts she could find. She then submitted an itemized
insurance claim listing her total loss at $32,138.43. N.D.
explained that many of the stolen items had deep sentimental
value to her. These included her children's nearly 200-year-old
baby rings from Germany, her grandmother's wedding ring that was
purchased during the great depression, and a pair of earrings
her brother had purchased for her in 1977 after taking on odd
jobs so he could afford to buy her a high school graduation
gift. On cross-examination, N.D. said that prior to May 8, she
did not notice that any of the items listed on her statement of
4
No. 2016AP1541-CR
loss were missing. However, the PSI report relates that
Wiskerchen disputed the number of items that N.D. claimed were
stolen.
¶11 At the contested restitution hearing, N.D. asked to be
reimbursed $32,138.43, the value she placed on her stolen
property. The insurance company had depreciated the value of
the stolen items to $22,279, and eventually paid her $13,791 due
to her policy limits.
¶12 N.D. testified that Wiskerchen was wearing a backpack
on May 8. However, Wiskerchen's attorney argued "there was no
backpack that was reported, the only thing that could have been
-– that he could have concealed, would have been on his person
somehow or in his hands," implying that restitution must be
limited to the items found on or near Wiskerchen's person on May
8. He also argued against the contention that Wiskerchen had
previously burglarized N.D.'s home, stating that "other than
[N.D.'s] opinion of whether he was in [her] house, there's been
no other reports completed or done with the police department
regarding any other times he was in [her] house." This echoed
his statements at sentencing that "I don't really think there's
any evidence of [any prior entries]." He argued that because
N.D. did not know which items Wiskerchen stole during the May 8
burglary versus during the alleged, unevidenced prior
burglaries, Wis. Stat. § 973.20 limited restitution to the items
she could prove he stole on May 8.
¶13 The circuit court began by acknowledging that the
burden of proof is on the victim to show, by a preponderance of
5
No. 2016AP1541-CR
the evidence, "the amount of loss sustained by a victim as a
result of a crime considered at sentencing." See Wis. Stat.
§ 973.20(14)(a). After reciting the relevant provisions of the
restitution statute, including the correct statutory definition
of "crime considered at sentencing," the circuit court made the
following factual findings: "[b]ased on the record, I find that
there is a nexus between Mr. Wiskerchen's conduct and the
victim's loss, and I find that the victim has met her burden of
proof [in the amount of $8,487.41]."
¶14 We granted Wiskerchen's petition for review and now
affirm.
II. DISCUSSION
A. Standard of Review
¶15 This case requires us to interpret a statute, to
review a circuit court's finding of fact, and to review a
circuit court's discretionary restitution order.
¶16 "Statutory interpretation and the application of a
statute to a given set of facts are questions of law that we
review independently, but benefiting from the analyses of the
court of appeals and the circuit court." Marder v. Bd. of
Regents, 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
¶17 We uphold a circuit court's findings of fact unless
they are clearly erroneous. Phelps v. Physicians Ins. Co. of
Wis. Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615. A
circuit court's finding of fact is not clearly erroneous unless
it is against the great weight and clear preponderance of the
6
No. 2016AP1541-CR
evidence. Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI
46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530.
¶18 Restitution orders involve discretionary decisions of
the circuit court. State v. Fernandez, 2009 WI 29, ¶20, 316
Wis. 2d 598, 764 N.W.2d 509. "Reviewing the calculation of
restitution involves a question of whether the trial court
misused its discretionary authority." Id. This court may
reverse a trial court's discretionary decision "only if the
trial court applied the wrong legal standard or did not ground
its decision on a logical interpretation of the facts." State
v. Behnke, 203 Wis. 2d 43, 58, 553 N.W.2d 265 (Ct. App. 1996);
Fernandez, 316 Wis. 2d 598, ¶20. "We look for reasons to
sustain a trial court's discretionary decision." Farmers Auto.
Ins. Ass'n v. Union Pac. Ry. Co., 2009 WI 73, ¶32, 319 Wis. 2d
52, 768 N.W.2d 596.
B. Interpretation of Wis. Stat. § 973.20
1. Whether Wis. Stat. § 973.20 Authorized Restitution
¶19 The first issue is whether Wisconsin's restitution
statute, Wis. Stat. § 973.20, authorized the circuit court to
order restitution to N.D. in this case. Wisconsin Stat.
§ 973.20 states in relevant part:
(1g)(a) "Crime considered at sentencing" means any
crime for which the defendant was convicted and any
read-in crime.
(b) "Read-in crime" means any crime that is
uncharged or that is dismissed as part of a plea
agreement, that the defendant agrees to be considered
by the court at the time of sentencing and that the
court considers at the time of sentencing the
7
No. 2016AP1541-CR
defendant for the crime for which the defendant was
convicted.
(1r) When imposing sentence or ordering probation
for any crime . . . for which the defendant was
convicted, the court . . . shall order the defendant
to make full or partial restitution under this section
to any victim of a crime . . . .
(2) If a crime considered at sentencing resulted
in damage to or loss or destruction of property, the
restitution order may require that the defendant:
. . . .
(b) . . . pay the owner or owner's designee the
reasonable repair or replacement cost or the greater
of:
1. The value of the property on the date of its
damage, loss or destruction . . .
. . . .
(14)(a) The burden of demonstrating by the
preponderance of the evidence the amount of loss
sustained by a victim as a result of a crime
considered at sentencing is on the victim.
¶20 Statutory interpretation begins with the language of
the statute. State ex. rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning. Id. "If the words chosen for the statute exhibit a
'plain, clear statutory meaning,' without ambiguity, the statute
is applied according to the plain meaning of the statutory
terms." State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752
N.W.2d 769 (citing Kalal, 271 Wis. 2d 633, ¶46).
8
No. 2016AP1541-CR
¶21 "Statutory purpose is important in discerning the
plain meaning of a statute." Westmas v. Creekside Tree Serv.,
2018 WI 12, ¶19, 379 Wis. 2d 471, 907 N.W.2d 68 (citing Kalal,
271 Wis. 2d 633, ¶48). "[S]tatutory language is interpreted in
the context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or
unreasonable results." Kalal, 271 Wis. 2d 633, ¶46. Therefore,
in construing a statute, "we favor a construction that fulfills
the purpose of the statute over one that defeats statutory
purpose." Westmas, 379 Wis. 2d 471, ¶19.
¶22 The primary purpose of Wis. Stat. § 973.20 is to
compensate the victim. State v. Madlock, 230 Wis. 2d 324, 332,
602 N.W.2d 104 (Ct. App. 1999). The statute "reflects a strong
equitable public policy that victims should not have to bear the
burden of losses if the defendant is capable of making
restitution."4 State v. Canady, 2000 WI App 87, ¶8, 234 Wis. 2d
261, 610 N.W.2d 147 (citations omitted). For this reason,
Wisconsin courts have repeatedly held that "restitution is the
rule and not the exception," and "should be ordered whenever
warranted." Id. (quoting Madlock, 230 Wis. 2d at 333). In
light of this important public policy, courts should "construe
4
Wisconsin's strong public policy of supporting victims'
rights is further reflected in Wis. Stat. ch. 950, which
contains a bill of rights for victims and ensures that all crime
victims are "treated with dignity, respect, courtesy, and
sensitivity."
9
No. 2016AP1541-CR
the restitution statute 'broadly and liberally in order to allow
victims to recover their losses as a result of a defendant's
criminal conduct.'" Madlock, 230 Wis. 2d at 332 (quoting State
v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App.
1997)). We interpret the restitution statute with these
principles in mind.
¶23 Wisconsin Stat. § 973.20(1r) requires that the
sentencing court order the defendant to pay restitution to any
victim of a crime considered at sentencing, unless the court
"finds substantial reason not to do so and states the reason on
the record." If "a crime considered at sentencing" resulted in
a loss of property, courts are authorized to pay the victim
either the replacement cost or the property's value. Wis. Stat.
§ 973.20(2)(b).
¶24 A "crime considered at sentencing" means the crime of
conviction and any read-in crime. Wis. Stat. § 973.20(1g)(a).
A "read-in crime" is a crime that meets three criteria: (1) is
uncharged or is dismissed as part of a plea agreement, (2) the
defendant agrees that it will be considered at sentencing, and
(3) the court considers it at the time of sentencing.
§ 973.20(1g)(b).
¶25 At a restitution hearing, the victim has the burden of
proving the amount of loss she sustained as a result of a crime
considered at sentencing. Wis. Stat. § 973.20(14)(a). In
keeping with Wisconsin's strong public policy of compensating
victims, Wisconsin courts have interpreted "crime considered at
sentencing" quite broadly. The crime encompasses "all facts and
10
No. 2016AP1541-CR
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." Canady,
234 Wis. 2d 261, ¶10 (quoting Madlock, 230 Wis. 2d at 333). The
victim needs to show that there is a "causal nexus" between the
crime and the victim's losses, such that the defendant's
criminal activity was a "substantial factor" in causing the
losses. Canady, 234 Wis. 2d 261, ¶9. The court considers the
defendant's "entire course of conduct" in committing the crime
of conviction, not merely the facts necessary to support the
conviction. Id., ¶10 (quoting State v. Rodriguez, 205 Wis. 2d
620, 627, 556 N.W.2d 140 (Ct. App. 1996)).
¶26 Canady demonstrated the breadth of "crime considered
at sentencing." In that case, Canady "put forth quite a
struggle" when police attempted to arrest him for burglary.
Canady, 234 Wis. 2d 261, ¶11. As the officers struggled to
escort him to the ground, he attempted to grab a pry bar from
his pocket. Id. An officer tossed it out of his reach,
breaking a glass door behind him. Id. Canady was convicted of
burglary and resisting arrest. Id., ¶3. The circuit court
ordered Canady to pay restitution for the cost of repairing the
broken door, and the court of appeals affirmed. Id., ¶12. Even
though Canady did not break the door himself, and even though
this fact was not strictly necessary to convict him of resisting
arrest, his conduct in committing the crime of conviction was a
"substantial factor" in causing the damage. Id.
11
No. 2016AP1541-CR
¶27 In this case, Wiskerchen was convicted of burglarizing
N.D.'s home on May 8. This burglary was a "crime considered at
sentencing" under Wis. Stat. § 973.20(1g)(a), as it was a crime
for which the defendant was convicted. N.D. was the victim of
the May 8 burglary, as it was her home that was burglarized, so
she was a victim of a "crime considered at sentencing."
Therefore, Wis. Stat. § 973.20 authorized the circuit court to
order Wiskerchen to pay restitution to N.D.
¶28 Finally, we note that any potential prior burglaries
were not "read-in crimes." As mentioned above, one component of
a read-in crime under Wis. Stat. § 973.20(1g)(b) is that the
defendant agrees to have it considered at sentencing.
Wiskerchen did not agree to have any potential prior burglaries
considered at sentencing. Therefore, they are not read-in
crimes.
2. Restitution Amount
¶29 We next review the circuit court's finding of fact
that the victim met her burden of proving a loss of $8,487.41 as
a result of a crime considered at sentencing. We conclude that
although the circuit court did not itemize which stolen items
were included in the award of $8,487.41, the finding of fact
that N.D. proved her loss is not clearly erroneous.
¶30 As noted above, a circuit court's finding of fact is
not clearly erroneous unless it is against the great weight and
clear preponderance of the evidence, even if the evidence may
have presented competing factual inferences. See Phelps, 319
Wis. 2d 1, ¶39. Findings of fact will be affirmed on appeal as
12
No. 2016AP1541-CR
long as the evidence would permit a reasonable person to make
the same finding. Royster-Clark, Inc., 290 Wis. 2d 264, ¶12.
We search the record not for evidence opposing the circuit
court's decision, but for evidence supporting it. Id.
¶31 In this case, the evidence presented at the
restitution hearing would permit a reasonable person to find
that N.D. had met her burden to prove "the amount of loss
sustained." First, evidence was presented that numerous items
were stolen from N.D.'s home. N.D. presented an itemized list
of missing property that she had submitted to her insurance
company. She testified that this document was a "true and
accurate representation" of the items she found missing after
the burglary. There was no evidence presented at the
restitution hearing to rebut N.D.'s claim.
¶32 Second, we know Wiskerchen burglarized N.D.'s home on
May 8. He pled guilty to this burglary, which was by definition
a "crime considered at sentencing" pursuant to Wis. Stat.
§ 973.20(1g)(a).
¶33 Third, there was no evidence presented that any of the
items comprising the amount for which restitution was ordered
were stolen from N.D.'s home on any date other than May 8. Only
Wiskerchen's mother's hearsay statement relayed by N.D. that he
had been in and out of her house prior to May 8 implied there
could have been other thefts.5
5
Wiskerchen's mother did not testify at the restitution
hearing.
13
No. 2016AP1541-CR
¶34 Next, the "nest" in the bedroom closet could be
evidence that Wiskerchen may have burglarized N.D.'s home on
days other than May 8. However, he also could have hidden there
and drank liquor on prior occasions, without stealing any of the
property that N.D. discovered was missing after the May 8
burglary.
¶35 Crucially, there was no evidence presented at the
restitution hearing that either he or anyone else had stolen any
of the listed items from N.D.'s home on days other than May 8.
On the contrary, his attorney asked N.D. the following question
at the restitution hearing: "other than your opinion of whether
he was in your house, there's been no other reports completed or
done with the police department regarding any other times he was
in your house, correct?" Shortly thereafter, he asked her:
"May 8 is the only report that he was in your house, correct?"
N.D. answered both questions in the affirmative. Wiskerchen's
attorney had previously stated at the sentencing hearing that "I
don't think there's really any evidence of [any prior
burglaries]."
¶36 The consistent theme from the defense was that there
was no evidence Wiskerchen burglarized N.D.'s home before May 8.
That said, the finding that N.D. proved a loss in the amount of
$8,487.41 for which restitution was ordered due to stolen
property is not against the great weight and clear preponderance
of the evidence presented to the circuit court. Therefore, the
circuit court's finding that N.D. met her burden of proving a
14
No. 2016AP1541-CR
loss of $8,487.41 as a result of a crime considered at
sentencing is not clearly erroneous.
C. The Circuit Court's Exercise of Discretion
¶37 Having concluded that restitution was authorized and
that the circuit court's finding that the victim had met her
burden of proof was not clearly erroneous, we now review the
circuit court's discretionary decision to set restitution at
$8,487.41. As mentioned above, restitution orders involve
discretionary decisions of the circuit court. We may reverse a
circuit court's discretionary decision "only if the trial court
applied the wrong legal standard or did not ground its decision
on a logical interpretation of the facts." Behnke, 203 Wis. 2d
at 58; Fernandez, 316 Wis. 2d 598, ¶20. We look for reasons to
sustain a trial court's discretionary decision. Farmers Auto.
Ins. Ass'n, 319 Wis. 2d 52, ¶32.
¶38 In this case, the circuit court applied the correct
legal standard and grounded its decision on a logical
interpretation of the facts. The court applied the mandate of
Wis. Stat. § 973.20 and found that N.D. suffered a loss due to
Wiskerchen's conduct. The court knew that Wiskerchen had
burglarized N.D.'s home on May 8, and no evidence was introduced
that he or anyone else had stolen N.D.'s property on any other
date. Given that this was the evidence presented, the finding
that Wiskerchen was responsible for N.D.'s loss based on the May
8 burglary is a logical interpretation of the evidence.
¶39 Wiskerchen contends that the court of appeals'
decision applied the wrong law, erroneously considering possible
15
No. 2016AP1541-CR
prior burglaries in its restitution award. According to the
court of appeals, any prior burglaries of N.D.'s home were
proper subjects of consideration under Wis. Stat. § 973.20, as
they were part of the same "course of criminal conduct" as the
May 8 burglary. State v. Wiskerchen, No. 2016AP1541-CR,
unpublished slip op., ¶13 (Wis. Ct. App. Nov. 1, 2017).
¶40 The court of appeals relied heavily on State v.
Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, in
reaching its conclusion. However, Queever is distinguishable.
There, a woman suspected that her home was being burglarized
repeatedly. Id., ¶3. She watched her home's security camera
footage and saw a man with "longer hair and a larger body build"
entering her home. Id. The footage was not clear enough to
identify the suspect, so she purchased a new security system for
$2,495. Id., ¶¶6-8. The new system was then used to identify
and capture the suspect, Thomas Queever. Id., ¶6.
¶41 The circuit court awarded restitution for the cost of
the new security system, and the court of appeals affirmed.
Id., ¶1. The court held that the circuit court's finding that
Queever committed the previous burglaries was not clearly
erroneous, and that the previous burglaries were properly
considered under Wis. Stat. § 973.20 as "part of the same course
of conduct as the crime of conviction." Id., ¶¶16, 25.
¶42 Relying on Queever, the court of appeals in the case
now before us held that Wiskerchen's alleged prior burglaries of
N.D.'s home properly could be considered at Wiskerchen's
restitution hearing as part of a "single course of criminal
16
No. 2016AP1541-CR
conduct" related to the May 8 burglary. Wiskerchen, unpublished
slip op., ¶13.
¶43 We reject Wiskerchen's argument. We review the
circuit court's exercise of discretion, not the court of
appeals' reasoning. See Fernandez, 316 Wis. 2d 598, ¶20. That
said, we read the circuit court's decision a bit differently
than did the court of appeals.
¶44 The court of appeals assumed the restitution order
implied that "[t]he circuit court determined that it could
consider the prior burglaries as conduct related to Wiskerchen's
May 8 burglary." Wiskerchen, unpublished slip op., ¶5. We do
not read the circuit court's restitution order or the transcript
from the restitution hearing as necessarily implying this
conclusion of law. The circuit court explicitly found only that
"based on the record . . . the victim has met her burden of
proof." Her burden was to prove the amount of her loss. Wis.
Stat. § 973.20(14)(a). She proved a loss of $8,487.41. As
explained above, this finding of fact is not clearly erroneous.
We conclude that the circuit court did not apply the wrong law,
and that its decision was grounded on a logical interpretation
of the evidence that was presented at the restitution hearing.
The circuit court therefore did not erroneously exercise its
discretion by setting restitution at $8,487.41.
III. CONCLUSION
¶45 Wiskerchen argues that the circuit court erroneously
exercised its discretion in calculating the amount of
restitution. He argues that the circuit court improperly
17
No. 2016AP1541-CR
considered alleged prior burglaries of the victim's home,
contrary to Wis. Stat. § 973.20 which he contends limits
restitution to losses resulting from a "crime considered at
sentencing." We reject his argument in part because Wiskerchen
misreads what the circuit court decided and also because no
evidence was presented at the restitution hearing to support a
finding that N.D.'s missing property was stolen on any date
other than May 8, which was the burglary considered at
sentencing.
¶46 First, we conclude that the plain language of Wis.
Stat. § 973.20 authorized the circuit court to order restitution
to the victim in this case. Second, we conclude that the
circuit court's finding that the victim met her burden in
proving the amount of loss resulting from a crime considered at
sentencing was not clearly erroneous. The circuit court
therefore did not misuse its discretion in calculating
restitution at $8,487.41.
¶47 Accordingly, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
18
No. 2016AP1541-CR.awb
¶48 ANN WALSH BRADLEY, J. (concurring). Although I
agree with the majority's conclusion that N.D. is entitled to
recover restitution in the amount of $8,487.41, I do not join
its analysis. I part ways with the majority because it misreads
the record and anchors its analysis on a skewed focus of the
circuit court's factual findings.
¶49 The majority misreads the record by asserting that
"there was no evidence presented that any of the items
comprising the amount for which restitution was ordered were
stolen from N.D.'s home on any date other than May 8." See
majority op., ¶33.
¶50 Neither the State nor Wiskerchen argued in support of
the majority's view of the record. Likewise, neither the
circuit court nor the court of appeals subscribed to such an
approach.
¶51 Rather, the testimony in the circuit court supports a
contrary assertion, i.e., some of the property likely was stolen
on dates prior to May 8. Accordingly, the circuit court found
"that there is a nexus between Mr. Wiskerchen's conduct and the
victim's loss, and I find that the victim has met her burden of
proof."
¶52 With the actual facts of record and complete circuit
court finding in hand, I would affirm the court of appeals.
Relying on our prior case law, I conclude that where a circuit
court makes specific factual findings regarding uncharged
conduct that is "related to" the crime of conviction, and there
is a causal nexus between the conduct and the loss, restitution
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is permissible for uncharged conduct. Accordingly, I
respectfully concur.
I
¶53 The circuit court determined that N.D. was entitled to
restitution. It arrived at this determination by explicitly
referencing Wiskerchen's alleged prior burglaries, how he had
been in the victim's home many times, and that he built a "nest"
in her closet. The circuit court further referenced
Wiskerchen's practice of pawning stolen goods in Illinois. From
this evidence, the circuit court actually found "that there is a
nexus between Mr. Wiskerchen's conduct and the victim's loss,
and I find that the victim has met her burden of proof"
(emphasis added).
¶54 The majority focuses on the second half of the circuit
court's statement while ignoring the first. It criticizes
Wiskerchen for "misread[ing] what the circuit court decided" and
concludes that "no evidence was presented at the restitution
hearing to support a finding that N.D.'s missing property was
stolen on any date other than May 8, which was the burglary
considered at sentencing." Majority op., ¶2.
II
¶55 Such an assertion is backwards. It is the majority,
and not Wiskerchen, that "misreads what the circuit court
decided."
¶56 A finding that all of the stolen property was taken on
May 8 is contrary to the evidence in this record. There was
testimony that Wiskerchen used a chisel to gain access to N.D.'s
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home through a storm window and that he repeatedly entered and
exited in such a fashion. The record reflects that N.D. claimed
the loss of over 100 items, including a video game system,
several coats, a case of wine, dishes, a microwave, a crockpot,
and a printer. Further, the record reflects that Wiskerchen was
carrying only a backpack during the course of the May 8
burglary. When asked if Wiskerchen could have fit all of the
lost items in his backpack, N.D. responded, "Not on that day.
It was many days that he was in my house."
¶57 Neither Wiskerchen nor the State argued that every
item was stolen on May 8. From the testimony, the circuit court
understandably determined that there was a nexus between
Wiskerchen's prior conduct and the May 8 burglary and ordered
restitution accordingly.
¶58 Rather than embrace the factual and analytical
missteps of the majority, I would affirm the court of appeals
based on restitution principles and statutory interpretation
gleaned from prior case law.
¶59 Restitution is governed by Wis. Stat. § 973.20.
Pursuant to Wis. Stat. § 973.20(2)(b), "[i]f a crime considered
at sentencing resulted in damage to or loss or destruction of
property, the restitution order may require that the
defendant . . . pay the owner or owner's designee the reasonable
repair or replacement cost" of the property lost. A "crime
considered at sentencing" is defined by statute as "any crime
for which the defendant was convicted and any read-in crime."
Wis. Stat. § 973.20(1g)(a).
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¶60 We are to interpret the restitution statute "broadly
and liberally in order to allow victims to recover their losses
as a result of a defendant's criminal conduct." State v.
Gibson, 2012 WI App 103, ¶10, 344 Wis. 2d 220, 822 N.W.2d 500.
The restitution statute "reflects a strong equitable public
policy that victims should not have to bear the burden of losses
if the defendant is capable of making restitution." State v.
Kennedy, 190 Wis. 2d 252, 258, 528 N.W.2d 9 (Ct. App. 1994).
¶61 In State v. Rodriguez, the court of appeals
established that a sentencing court is to take into account "a
defendant's entire course of conduct" in determining an award of
restitution. 205 Wis. 2d 620, 627, 556 N.W.2d 140 (Ct. App.
1996). Accordingly, we broadly define what constitutes a "crime
considered at sentencing" for which restitution may be ordered.
See Wis. Stat. § 973.20(1g)(a); State v. Canady, 2000 WI App 87,
¶10, 234 Wis. 2d 261, 610 N.W.2d 147.
¶62 The term "crime" "as used in the restitution statute
is properly understood as 'encompassing 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.'" State v. Madlock, 230
Wis. 2d 324, 333, 602 N.W.2d 104 (Ct. App. 1999). Before
restitution may be ordered, a causal nexus must be established
between the "crime considered at sentencing" and the damage for
which restitution is ordered. Canady, 234 Wis. 2d 261, ¶9. In
proving causation, the victim must demonstrate that the
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defendant's criminal activity was a substantial factor in
causing the damage. Id.
¶63 Relying on our prior case law, I conclude that where a
circuit court makes specific factual findings regarding
uncharged conduct that is "related to" the crime of conviction,
and there is a causal nexus between the conduct and the loss,
restitution is permissible for uncharged conduct. See
Rodriguez, 205 Wis. 2d at 627; Madlock, 230 Wis. 2d at 333;
Canady, 234 Wis. 2d 261, ¶9. The requirement of specific
factual findings serves a dual purpose. First, it provides a
safeguard to defendants so as to not hold them financially
responsible for losses that may have occurred to victims not as
a result of the defendants' conduct. Second, it avoids an
unreasonable result that would leave a crime victim with no
restitution for the sole reason that the victim is unable to
prove which items were taken on any specific day. See State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110 (explaining that statutory language
is to be interpreted "reasonably, to avoid absurd or
unreasonable results").
¶64 Here, the circuit court made such specific factual
findings. Citing the presentence investigation report, the
circuit court found that:
"[Wiskerchen] stated that he had burglarized between
one hundred to two hundred homes and had never been
caught."
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"He further told the PSI writer that he would take the
items that he stole to the state of Illinois where he
knew a guy who would pawn the stolen goods and would
not ask for identification."
"[The victim] told the PSI writer how Mr. Wiskerchen's
mother told her how the defendant had been in her home
many times prior to actually being caught."
"[The victim] also reported to the PSI writer how she
had discovered that the defendant made what she
referred to as a nest in the back of her closet where
she discovered liquor bottles, and it appeared that he
had hid out during the day when she was at
work . . . ."
"Based on the record, I find that there is a nexus
between Mr. Wiskerchen's conduct and the victim's
loss . . . ."
¶65 These factual findings describe a course of conduct
that is "related to" the May 8 burglary. The course of conduct
described is "related to" the May 8 burglary because it involves
the same house where Wiskerchen created a "nest" in the closet
and appeared to hide out during the day, the same victim, and
the same mode of entry. See State v. Queever, 2016 WI App 87,
¶22, 372 Wis. 2d 388, 887 N.W.2d 912. Consequently, in my view
restitution is appropriate.
¶66 In sum, I agree with the majority that N.D. is
entitled to $8,487.41 in restitution. However, I do not join
the majority's reasoning because it misreads the record and
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bases its analysis on a skewed focus of the circuit court's
findings of fact. Accordingly, I respectfully concur.
¶67 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this concurrence.
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¶68 REBECCA GRASSL BRADLEY, J. (concurring). Like the
majority, I would affirm the court of appeals decision affirming
the circuit court's restitution order. I join the majority
opinion in full but I write separately because a textual
interpretation of the restitution statute, specifically Wis.
Stat. § 973.20(1r) and (13)(a), supports the circuit court's
decision.
I
¶69 The interpretation and application of a statute begin
with the language of the statute. See State ex rel. Kalal v.
Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. Because "[c]ontext is important to
meaning . . . statutory language is interpreted in the context
in which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results." Id., ¶46 (citations omitted). "Statutory language is
read where possible to give reasonable effect to every word, in
order to avoid surplusage." Id.
¶70 The text of Wis. Stat. § 973.20(1r) interpreted in the
context of the surrounding sections of the restitution statute
shows that subsection (1r) does not constrain the circuit court
to the crime considered at sentencing when ordering restitution.
Subsection (1r) requires the circuit court to order the
defendant to make restitution to any victim of a crime
considered at sentencing: "the court . . . shall order the
defendant to make full or partial restitution . . . to any
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victim of a crime considered at sentencing[.]" Subsection (1r),
unlike several of the other statutory subsections addressing
restitution, does not restrict the circuit court's order of
restitution to only crimes considered at sentencing nor does it
limit the court to ordering restitution for only those losses
incurred as a result of a crime considered at sentencing.
Instead, it requires the circuit court to award restitution to
any victim of a crime considered at sentencing, thereby
establishing the category of persons to whom the defendant must
be ordered to pay restitution.
¶71 In contrast to the text of subsection (1r), the
language of subsections (2), (3), (4), and (5) imposes limits on
the particular types of restitution addressed——namely,
restitution under these subsections is confined to losses
arising from the crime considered at sentencing. For example,
subsection (3) allows the court to order the defendant to
"[r]eimburse the injured person for income lost as a result of a
crime considered at sentencing." (Emphasis added.) Similarly,
subsection (5) permits the circuit court to require the
defendant to "[p]ay all special damages . . . which could be
recovered in a civil action against the defendant for
his . . . conduct in the commission of a crime considered at
sentencing." Subsection (1r) is phrased quite differently; it
simply identifies the group of people to whom the defendant must
be ordered to pay restitution: "any victim of a crime
considered at sentencing." If the legislature intended to
confine the scope of restitution orders to losses incurred as a
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result of a crime considered at sentencing, it certainly could
have done so by employing the exact language it wrote in
subsections addressing particular types of losses sustained by
victims. Instead, it afforded courts much flexibility in
crafting restitution orders, so long as restitution is ordered
to be paid to any victim of a crime considered at sentencing.
¶72 Additionally, Wisconsin Stat. § 973.20(13)(a) directs
the circuit court to consider five factors in determining
whether to order restitution and in what amount:
1. The amount of loss suffered by any victim as a
result of a crime considered at sentencing.
2. The financial resources of the defendant.
3. The present and future earning ability of the
defendant.
4. The needs and earning ability of the defendant's
dependents.
5. Any other factors which the court deems
appropriate.
The statute specifically requires the circuit court to consider
the loss suffered by the victim as a result of a crime
considered at sentencing. But the statute does not restrict the
circuit court to ordering restitution only for that loss.
Subdivision 5 grants to the circuit court the discretion to
consider "[a]ny other factors" the circuit court deems
appropriate. (Emphasis added.)
¶73 Many cases do not involve a defendant's commission of
repeated crimes against the same victim causing losses with
potentially unidentifiable dates such as the possible serial
burglaries in this case, so we address a relatively infrequent
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if not rare situation perhaps not contemplated by the statutes,
and one that the legislature may wish to address with more
specificity. Wisconsin Stat. § 973.20(13)(a)5 gives the circuit
court great latitude to consider among "other factors" the
difficulty (if not impossibility) of establishing May 8th as the
one and only date on which the defendant burglarized the
victim's home. While the circuit court must consider the amount
of loss suffered by the victim as a result of a crime considered
at sentencing, the circuit court is free to consider any other
factors the court deems appropriate.
¶74 Subsection (14) also uses the language "as a result of
a crime considered at sentencing" in designating the burden of
proof:
(a) The burden of demonstrating by the preponderance
of the evidence the amount of loss sustained by a
victim as a result of a crime considered at sentencing
is on the victim.
. . .
(c) The burden of demonstrating, by the preponderance
of the evidence, such other matters as the court deems
appropriate is on the party designated by the court,
as justice requires.
There is nothing in the statutes requiring the victim to
identify the date on which her losses were sustained; she must
only establish by a preponderance of the evidence the loss she
suffered as a result of a crime considered at sentencing and the
circuit court's conclusion that she met that burden is not
clearly erroneous. Her home was burglarized on May 8th, she
presented documentation of items that were missing after that
burglary, and nothing contradicted her evidence.
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¶75 The legislature used "as a result of a crime
considered at sentencing" or similar language tying a victim's
recovery of particular losses to the crime considered at
sentencing in certain sections of the restitution statute, but
not in a way that restricts the circuit court to awarding
restitution only for losses sustained "as a result of a crime
considered at sentencing." In other sections of the statute,
the legislature did not limit restitution to only those losses
arising "as a result of a crime considered at sentencing." Most
significantly, in Wis. Stat. § 973.20(1r), the legislature
mandated an order of restitution to be paid by the defendant "to
any victim of a crime considered at sentencing." The
legislature did not command an order of restitution to be paid
by the defendant for a crime considered at sentencing or as a
result of a crime considered at sentencing. Where a statute
"used one term in one place, and a materially different term in
another, the presumption is that the different term denotes a
different idea." Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 170 (2012); Johnson v. City of
Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996)
("When the legislature uses different terms in a statute——
particularly in the same section——we presume it intended the
terms to have distinct meanings."). Because the legislature
used different language in separate sections of the restitution
statute, we presume distinct meanings and give full effect to
the language chosen.
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¶76 Because the text of the restitution statute fully
supports the circuit court's restitution award, I join the
majority opinion in affirming the court of appeals decision
affirming the circuit court's order.
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1
State v. Shawn T. Wiskerchen
Court: Wisconsin Supreme Court
Date filed: 2019-01-04
Citations: 921 N.W.2d 730, 2019 WI 1, 385 Wis. 2d 120
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