State v. Fernandez

• Decision Date: 28 April 2009
• Docket Number: No. 2007AP1403-CR.,2007AP1403-CR.
• Citation: 2009 WI 29,764 N.W.2d 509
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alberto FERNANDEZ, Defendant-Appellant.
• Court: Wisconsin Supreme Court

764 N.W.2d 509

2009 WI 29

STATE of Wisconsin, Plaintiff-Respondent, v. Alberto FERNANDEZ, Defendant-Appellant.

No. 2007AP1403-CR.

Supreme Court of Wisconsin.

Argued December 9, 2008.

Decided April 28, 2009.

For the defendant-appellant the cause was argued by Eileen A. Hirsch, assistant public defender, with whom on the briefs was Shelley M. Fite, assistant public defender.

For the plaintiff-respondent the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 N. PATRICK CROOKS, J

This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (2005-06).¹ The court of appeals asks us whether State v. Loutsch, 2003 WI App 16, ¶ 25, 259 Wis.2d 901, 656 N.W.2d 781 (Ct.App.2002), correctly interprets the criminal restitution statute² when it states that a court may order only as much restitution as a defendant has the ability to pay within the term of the sentence.³

¶ 2 On the question involving restitution ordered during a sentence or probation term, we hold that the statute, when read as a whole, clearly permits a circuit court to order full restitution so long as it properly considers the defendant's ability to pay in setting the total restitution and, where applicable, in setting the amount that must be paid during any probation, parole, or extended supervision. The statute gives no indication that that power is curtailed when probation is involved. In fact, it is significant that in providing for converting unpaid restitution to civil judgments, the legislature, it seems clear, recognized that there would be circumstances where all the necessary restitution amounts often would not and could not be paid before the completion of the sentence or probationary period.

¶ 3 We therefore answer the certification from the court of appeals by holding that when a court has considered the defendant's ability to pay in setting restitution, the length of the term of probation or of the sentence does not have any limiting effect on the total amount of restitution that may be ordered. Here the circuit court considered the defendant's ability to pay in ordering restitution, as the statute requires, and because the circuit court did not err in considering all the evidence presented at the restitution hearing or in awarding restitution to the victims in accord with the statute, we affirm the circuit court's order.

¶ 4 The issue presented here is not actually the issue that the Loutsch court was deciding. The focus of the Loutsch court's opinion was whether when ordering restitution a court may defer making a determination of ability to pay until completion of a prison sentence and commencement of extended supervision. Id., ¶ 28. The holding we are asked to review is another proposition, which appears in paragraphs 25 and 28: "Read together, these sections [of the restitution statute] plainly contemplate that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence...." Id., ¶ 25.

¶ 5 Despite the fact that the paragraph⁴ and the rest of the opinion are unquestionably focused on answering the question of when a determination of an ability to pay must be made, the court in the process appeared to answer a different question when it stated that a court could not defer determining the amount of restitution a defendant would be able to pay during the term of his or her sentence. This has been interpreted by some⁵ as saying that the total restitution ordered cannot exceed what the defendant has the ability to pay during the term of the sentence.⁶ Because, as we explain below, the statute does not limit a court's discretion to order restitution in that way, Loutsch is incorrect when it says the defendant's ability to pay during the sentence is what the statute requires the court to consider.⁷ The portion of Loutsch that has been interpreted as limiting restitution in that manner is overruled.

¶ 6 That is bad news for the petitioner in this case, who relied on Loutsch's statement about restitution being limited to an amount payable during the sentence. Alberto Fernandez (Fernandez) appealed an order to pay $68,794 in restitution for damages and injury that he caused when he crashed a stolen car. He argues that the circuit court erred by ordering restitution in an amount greater than the amount he could pay during the term of his sentence.

¶ 7 Fernandez also challenged the restitution order on the grounds that some of the claims were submitted too late, violating the statute's requirements and, because he was not given advance written notice, his due process rights. He argues that the award of restitution to insurance companies is in violation of the statute, which allows such awards only where justice requires; he says justice does not require ordering a man who washes dishes for $5.15 an hour to pay restitution to insurance companies with a combined annual net income of $1.5 billion.

¶ 8 These additional claims all fall within the discretion of the circuit court because the statute permits adjournment of the restitution hearing and imposes no mandatory deadlines for claims to be made prior to a restitution hearing. It also permits courts to determine when awards are required by justice, and such discretionary rulings will not be disturbed on appeal unless they apply the wrong legal standard or are not based on a logical interpretation of the facts. Because the statute is written that way, and because the standard of review is highly deferential, we cannot say that the circuit court erred in adjourning the restitution hearing twice at the defendant's request and then permitting testimony concerning claims for restitution made after sentencing (at least where, as here, the defendant had notice of the injuries at the time of sentencing). Nor do we find the court's order of full restitution to the insurance companies to be reversible error; it can be inferred from the court's ruling that it believed that justice required full restitution.

I. BACKGROUND

¶ 9 The restitution award at issue in this case stems from damage and injuries Fernandez caused during a brief joyride on the night of June 16, 2005, when he became intoxicated at a friend's party, stole a car, and drove recklessly around a Fond du Lac railyard. One of the workers in the railyard, Bruce Dalka, had to dive out of the path of the oncoming car and in the process twisted his knee. That injury, which required months of medical care and resulted in lost wages, accounted for about $65,000 of the restitution ordered. The stolen car itself sustained relatively minor damage and accounted for about $3,400 of the restitution awarded.

¶ 10 At a hearing in Fond du Lac County Circuit Court on September 2, 2005, the Honorable Robert J. Wirtz presiding, Fernandez pled no contest to taking and driving a vehicle without consent in violation of Wis. Stat. § 943.23(2).⁸ The court withheld sentence, and Fernandez was placed on probation for two years. Probation had various conditions, including restitution. The circuit court asked whether there was an agreement as to restitution or whether a separate restitution hearing would be necessary. Defense counsel requested such a hearing, and one was scheduled for October 10, 2005, within the 60 days prescribed in Wis. Stat. § 973.20(13)(c)2.⁹

¶ 11 In the meantime, a judgment of conviction was entered on September 6, 2005. The judgment listed restitution as a condition of probation on the second charge. The judgment also noted that if any restitution remained unpaid at the end of the term of probation, "a civil judgment shall be entered for the balance due and/or other collection procedures will be implemented."

¶ 12 At the October 20, 2005, restitution hearing, MetLife Auto & Home Insurance Company (MetLife)¹⁰ submitted a claim of $1,744.95 for additional work on the car.¹¹ Fernandez requested time to investigate the new claim. The court agreed that Fernandez "ought to have the opportunity to address that." The court proposed the date of January 10, 2006, saying, "My problem is I'm booked ... and then I go into intake in December and I'm fitting this into post-intake as quick as I can." A moment later the court said again, "I just looked through my calendar. It's the only time I really have available. It's the soonest time I have available." Defense counsel twice replied, "Okay." The restitution hearing was continued to January 10, 2006, to allow defense counsel to investigate the additional claim. The adjournment was done in order to accommodate Fernandez's request for an opportunity to investigate further, and counsel made no objection to the January 10, 2006, date. The extension was permitted in order to ensure fairness, and it was in the court's discretion to do so.

¶ 13 At the continued restitution hearing on January 10, 2006, the circuit court agreed, over defense objection, to allow claims Canadian National Railroad (CNR), the self-insured employer¹² of Dalka, had submitted to the district attorney on December 9, 2005, with notice to defense counsel on December 16, 2005, for medical expenses and lost wages. The CNR claim submitted in December was for $22,313.56; by the time of the January hearing, the CNR claim had doubled to $44,808.60, and CNR was requesting an additional $20,000 in lost wages on Dalka's behalf. Dalka testified about his injury, medical care and lost wages, but there is nothing in the record indicating he ever submitted a restitution figure.

¶ 14 The circuit court heard telephone testimony from Fernandez about the factors listed in the statute relevant to this case: Fernandez's financial resources and his earning ability. Fernandez testified that he was 18, living with his mother in Texas, taking classes for a General Educational Development (GED) diploma,...