State v. Dugan

• Citation: 534 N.W.2d 897,193 Wis.2d 610
• Decision Date: 26 April 1995
• Docket Number: No. 94-1962-CR,94-1962-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jerry DUGAN, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 897

534 N.W.2d 897

193 Wis.2d 610

STATE of Wisconsin, Plaintiff-Respondent, v. Jerry DUGAN, Defendant-Appellant.

No. 94-1962-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 30, 1995.

Opinion Released April 26, 1995.

Opinion Filed April 26, 1995.

[193 Wis.2d 614] On behalf of the defendant-appellant, the cause was submitted on the briefs of Lynn M. Bureta of Kenosha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen.

Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.

NETTESHEIM, Judge.

Jerry Dugan appeals from a trial court judgment and postconviction order directing him to pay restitution pursuant to § 973.20(1), STATS., in the amount of $40,000. ¹ Dugan argues that: (1) the trial court's plea colloquy did not advise him that the court could order restitution, (2) the State breached the plea agreement by requesting restitution, (3) the evidence does not support the restitution order, and (4) the trial court failed to consider Dugan's ability to pay. We reject Dugan's arguments and therefore affirm the judgment and order.

BACKGROUND

Dugan was charged with one count of aggravated battery with a dangerous weapon as a party to the crime, contrary to §§ 939.05, 939.63(1)(a)2 and 940.19(2), STATS., 1991-92, a Class C felony. Dugan was later charged with an additional count of unlawfully obstructing an officer, contrary to § 946.41(1), STATS. Pursuant to a plea agreement, Dugan was to enter a plea of no contest to the felony aggravated battery charge and the State would dismiss the misdemeanor obstructing charge and agree to recommend probation. The plea agreement did not specifically address restitution. However, at the plea hearing, Dugan's attorney stated that he would be free to argue for appropriate conditions of probation.

At the plea hearing, Dugan's attorney recited the plea agreement to the trial court and the State affirmed the agreement. However, based on the trial court's general policy against no contest pleas in most cases, the court advised Dugan that it would not accept The trial court then engaged Dugan in a personal plea hearing colloquy pursuant to § 971.08, STATS., and State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). The court opened this colloquy by eliciting Dugan's understanding that the court was not obligated to follow the plea agreement and that the court could impose the maximum sentence despite the State's probation recommendation. However, the court did not address the possibility of restitution. Ultimately, the court accepted Dugan's guilty plea and ordered a presentence investigation and report.

a no contest plea. After conferring with his attorney, Dugan decided to enter a guilty plea.

At the sentencing hearing, the State requested ten years' probation with one-year confinement in the county jail and restitution in the amount of $40,000 as conditions of probation. In his allocution statement, Dugan requested a stayed sentence of five years, a period of probation and restitution as a condition of probation. The court rejected the plea agreement and imposed a sentence of eight years. In addition, the court ordered Dugan to pay the victim $40,000 in restitution pursuant to § 973.20, STATS.

Dugan filed a postconviction motion seeking relief from the restitution order. ² He argued that the restitution was "potential punishment" within the meaning of the plea colloquy statute, § 971.08, STATS., and that the court had erred in failing to warn him that restitution could be ordered. The trial court concluded that restitution was not punishment and denied the motion. Dugan appeals.

DISCUSSION

We first address Dugan's argument that the trial court erred by not advising him of the possibility of restitution during the plea colloquy. As a remedy, Dugan asks that we vacate the restitution order. ³

When a defendant alleges that he or she did not know or understand the information which should have been provided at the plea hearing and shows that the trial court failed to follow the procedures necessary to properly accept a plea, a prima facie case is made that the plea was not knowingly and voluntarily entered. State v. James, 176 Wis.2d 230, 237, 500 N.W.2d 345, 348 (Ct.App.1993). Whether Dugan has made a prima facie showing that his plea was entered involuntarily or unknowingly is a question of law which we review de novo. See id.

A valid guilty plea should represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). Before accepting a plea of guilty or no contest, the trial court has a mandatory duty to undertake a personal colloquy with a defendant to ascertain his or her understanding of the nature of the charge. Bangert, 131 Wis.2d at 260, 389 N.W.2d at 20. In Wisconsin, that communication is statutorily prescribed by § 971.08, STATS., which provides in part:

Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:

(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.

(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged. [Emphasis added.]

A plea entered in violation of a defendant's due process rights, including the right to enter a knowing and voluntary plea after being informed of the criminal penalties, is void and entitled to be withdrawn. State v. Bartelt, 112 Wis.2d 467, 485-86, 334 N.W.2d 91, 99-100 (1983). When informing accused persons of their rights, courts are required to notify them of the " 'direct consequences' " of their pleas. James, 176 Wis.2d at 238, 500 N.W.2d at 348 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). However, defendants have no due process right to be informed of the "collateral consequences" to a voluntary and intelligent plea of guilty. See State v. Madison, 120 Wis.2d 150, 160-61, 353 N.W.2d 835, 841 (Ct.App.1984). "[T]he distinction between direct and collateral consequences of a plea ... turns on whether the result represents a definite, immediate, and largely automatic effect on the range of the defendant's punishment." James, 176 Wis.2d at 238, 500 N.W.2d at 348 (quoted source omitted; emphasis added). The threshold question is whether restitution is punishment. ⁴

Dugan hinges his argument that restitution is "potential punishment" under § 971.08, STATS., on the language contained in the restitution statute, § 973.20(1), STATS. ⁵ The statute provides in its opening sentence that a sentencing court "in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution." Id. (emphasis added). From this language, Dugan reasons that "the statute itself recognizes restitution as ... a penalty or punishment."

We disagree with Dugan that the use of the word "penalty" in the restitution statute necessarily compels the conclusion that restitution also constitutes "potential punishment" for purposes of the plea colloquy statute. We think that approach too simplistic.

We begin by rejecting Dugan's unspoken notion that the consequences of a sentencing proceeding (whether they be incarceration, a fine, restitution, probation, or conditions of probation) can or should be exclusively catalogued as either punishment or rehabilitation. Instead, we conclude that such consequences represent a blend of both concepts. The primary factors that a sentencing court considers are: (1) the gravity of the offense, (2) the character of the offender, and (3) the need to protect the public. State v. Iglesias, 185 Wis.2d 117, 128, 517 N.W.2d 175, 178, cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 547 (1994). In applying these factors, the sentencing court seeks the proper balance between the offender's punishment and rehabilitation.

To demonstrate our point, we examine two sentencing provisions which courts often utilize: (1) straight incarceration, and (2) drug or alcohol treatment as a condition of probation. Incarceration has an obvious and dominant punitive effect. However, incarceration can also work a rehabilitative effect on the offender. See E.C. v. DHSS, 142 Wis.2d 906, 917-18, 420 N.W.2d 37, 41 (1988). Drug or alcohol treatment has an obvious and dominant rehabilitative effect. However, such treatment, particularly if ordered on an inpatient basis with a concomitant loss of liberty, can also work a punitive effect.

We see restitution as no different. As we will later explain, restitution is commonly considered as a rehabilitative tool to the offender and as a compensatory tool to the victim. However, by appropriating the offender's money or property to pay the victim restitution can also be said to work a punitive effect.

Thus, simply saying a sentencing provision works a punitive or rehabilitative effect begs the question before us as to what warnings must be included in a valid plea colloquy. Rather, recognizing that both concepts are at work, we must decide the fundamental purpose of the sentencing provision at issue.

Viewed in this light, we do not find it remarkable that the legislature stated in § 973.20(1), STATS., that a sentencing court should order restitution "in addition to any other penalty." This language simply recognizes, as we have already demonstrated, that restitution can work a punitive effect. It does not mean, however, that restitution does not also work a rehabilitative effect and that such may be the basic and fundamental purpose of restitution. We now move to that question. For the reasons that follow, we conclude that the primary and fundamental goal of restitution is the rehabilitation of the offender.

We...