State v. Cetnarowski, 91-1091

• Decision Date: 07 January 1992
• Docket Number: No. 91-1091,91-1091
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Brian CETNAROWSKI, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 790

480 N.W.2d 790

166 Wis.2d 700

STATE of Wisconsin, Plaintiff-Respondent, v. Brian CETNAROWSKI, Defendant-Appellant.

No. 91-1091.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 1, 1991.

Opinion Released Jan. 7, 1992.

Opinion Filed Jan. 7, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Tyroler, Asst. State Public Defender, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

SULLIVAN, Judge.

Brian Cetnarowski (Brian) appeals from an order denying his motion for return of bail money posted by his grandmother. The trial court's judgment of conviction ordered that the cash bail, less the statutory amount for victim/witness surcharges, be applied toward restitution in the interest of equity. There is no authority for such a use of cash bail funds. Accordingly, we reverse.

I.

On March 27, 1990, Brian entered a guilty plea to one count of theft of trunk contents, ¹ party to a crime; ² and three counts of arson, ³ party to a crime. These convictions stem from instances where Brian and his accomplice would intentionally set fire to automobiles. In one instance, they broke into a potato chip snack truck and stole food products. All of these criminal acts were committed because, as Brian explained to the police, he had nothing else to do. In its judgment of conviction, the court ordered Brian to serve six months in the House of Correction, pay $200 in mandatory victim/witness surcharges, and pay $27,550 in restitution, jointly and severally with the other defendant. ⁴ Brian did not object to the restitution provisions of the judgment of conviction at sentencing.

A hearing on the issue of bail refund was held nearly eight months after sentencing at the request of Bruno Cetnarowski, Brian's father. Bruno Cetnarowski moved the court for return of the remaining $2,300 of the cash bail to repay the grandmother who loaned money to the Cetnarowski family for Brian's bail. ⁵ The court denied the motion and stated, without reference to authority, that restitution is an equitable action and should be examined in light of who has the best equitable position among the defendant, innocent victims, and the person who has posted bail. He concluded that the innocent victims are in the best equitable position because they sustained losses and that Brian's grandmother could seek reimbursement from Brian himself. Brian objected to the application of bail funds to restitution at the motion hearing.

On appeal, Brian argues that sec. 969.03(1)(d), Stats. (release of defendants charged with felonies), is the only statutory provision enabling a court to reduce the amount of bail returned to a defendant absent a bail forfeiture circumstance. In short, only court costs and fines may reduce the amount of a refundable cash bail.

On appeal, the State raises the issue that Brian waived his right to question the judgment requiring the application of bail to restitution. The State argues that Bruno Cetnarowski, on behalf of Brian's grandmother, has no standing to request the trial court or the appellate court to modify the judgment because Bruno Cetnarowski is not an "aggrieved party." ⁶ In short, Brian is an aggrieved party if the bail is returned to the grandmother, but is not an aggrieved party if the court order is affirmed. Moreover, Bruno Cetnarowski seemingly appeared with Brian's appointed attorney in the absence of a request from Brian.

In the alternative, if Bruno Cetnarowski has standing on appeal, the State argues that cash bail may be used to satisfy a defendant's restitution obligation when the defendant acquiesces in or consents to the use of bail money for restitution or when the payment of restitution becomes a condition of probation. ⁷ In addition, the State argues if the trial court's order is reversed, then Brian should be equitably estopped from his recovery of bail because the order requiring the application of bail to restitution was entered nearly eight months prior to the motion for modification of the judgment of sentence. The effect of a reversal requires the victims to return the $2,300 in restitution to Brian and his grandmother.

II.

The State raises, but does not argue, the fact that Brian did not object to the order directing application of bail to restitution at the time of sentencing. ⁸ Though this fact may be the basis of a waiver or laches argument, we deem this issue raised by the State as abandoned. Reiman Assoc. v. R/A Advertising, 102 Wis.2d 305, 306 n. 1, 306 N.W.2d 292, 294 n. 1 (Ct.App.1981) (an issue raised on appeal but not briefed or argued is deemed abandoned).

The State argues that if the trial court is reversed the defendant becomes the "aggrieved party." While creative, this argument is unsubstantiated by the facts or citation to authority. The argument would have merit only if Brian and his grandmother had agreed that the money she posted for bail would be used for restitution. In the absence of such an agreement, we need not further address this argument. W.H. Pugh Coal Co. v. State, 157 Wis.2d 620, 634, 460 N.W.2d 787, 792 (Ct.App.1990) (undeveloped assertions without citation to legal authority need not be addressed by the reviewing court).

We also determine that the State's argument that Bruno Cetnarowski had no standing to appeal is equally unsubstantiated. The trial court construed the letter from Bruno Cetnarowski as a motion by the defendant to obtain a bail refund. ⁹ The State made no objection to the motion at the time of its presentation and therefore waived it for purposes of appeal. State v. Romero, 147 Wis.2d 264, 274, 432 N.W.2d 899, 903 (1988). ("In order to preserve an issue for appeal as a matter of right, a party must object to the error at trial, stating the proper ground for the objection.")

III.

The determination of bail refunds and the operative effect of secs. 973.20, Stats. (restitution); 973.09, Stats. (probation); 969.03, Stats. (release of defendants charged with felonies); and 818.14, Stats. (application of bail deposit), are questions of law which the court of appeals decides without deference to the determination of the trial court. Tobler v. Door County, 158 Wis.2d 19, 21, 461 N.W.2d 775, 775 (1990).

The purposes of bail as a monetary condition of release are set forth in sec. 969.01(4), Stats.:

(4) CONSIDERATIONS IN SETTING CONDITIONS OF RELEASE. If bail is imposed, it shall be only in the amount found necessary to assure the appearance of the defendant. Conditions of release, other than monetary conditions, may be imposed for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses. Proper considerations in determining whether to release the defendant without bail, fixing a reasonable amount of bail or imposing other reasonable conditions of release are: the ability of the arrested person to give bail, the nature, number and gravity of the offenses and the potential penalty the defendant faces, whether the alleged acts were violent in nature, the defendant's prior criminal record, if any, the character, health, residence and reputation of the defendant, the character and strength of the evidence which has been presented to the judge, whether the defendant is currently on probation or parole, whether the defendant is already on bail or subject to other release conditions in other pending cases, whether the defendant has been bound over for trial after a preliminary examination, whether the defendant has in the past forfeited bail or violated a condition of release or was a fugitive from justice at the time of arrest, and the policy against unnecessary detention of the defendant's pending trial.

In addition, a bail bond is a promise to indemnify the state against the cost of retrieving a criminal defendant who has not appeared for trial. State v. Ascencio, 92 Wis.2d 822, 829, 285 N.W.2d 910, 913 (Ct.App.1979). In short, "[b]ail is a device which exists to insure society's interest in having the accused answer to a criminal prosecution without unduly restricting his [or her] liberty and without ignoring the accused's right to be presumed innocent." State v. Shumate, 107 Wis.2d 460, 467, 319 N.W.2d 834, 838 (1982) (citation omitted). Bail forfeiture is not intended to "enrich the government or punish a defendant." Ascencio, 92 Wis.2d at 831, 285 N.W.2d at 914.

Brian aptly cites to sec. 969.03(1)(d), Stats., as the only statutory provision which explicitly permits a court to reduce the amount of refundable cash bail. When establishing conditions which will ensure the defendant's appearance at future court proceedings, the court may "[r]equire the execution of an appearance bond with sufficient solvent sureties, or the deposit of cash in lieu of sureties. If a judgment for a fine or costs or both is entered, any deposit of cash shall be applied to the payment of the judgment." Section 969.03(1)(d), Stats. (emphasis added).

In drafting chs. 969 and 973, the legislature had the opportunity to include restitution, together with fines and costs, as expenses that would reduce the amount of a bail refund; however, it did not. We deem such an omission as an intentional exclusion of the use of bail as restitution. State v. Smith, 103 Wis.2d 361, 366, 309 N.W.2d 7, 9 (Ct.App.1981) (expressio unius est exclusio alterius, express mention of one matter excludes other similar matters not mentioned), affirmed, 106 Wis.2d 17, 315 N.W.2d 343 (1982). The legislature also did not explicitly enable a sentencing court to order cash bail to be applied to restitution in its comprehensive statutory restitution provisions. See sec. 973.20(1)-(14), Stats. ¹⁰ Therefore, not only did the trial court improperly apply bail to the amount of restitution owed by the defendant, the court's...