State v. Heyn

• Decision Date: 13 June 1990
• Docket Number: No. 89-0939-CR,89-0939-CR
• Citation: 456 N.W.2d 157,155 Wis.2d 621
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Louis J. HEYN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 157

456 N.W.2d 157

155 Wis.2d 621

STATE of Wisconsin, Plaintiff-Respondent, v.Louis J. HEYN, Defendant-Appellant.

No. 89-0939-CR.

Supreme Court of Wisconsin.

Argued April 25, 1990.

Decided June 13, 1990.

Mark Lukoff, Asst. State Public Defender, for defendant-appellant.

Paul Lundsten, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the brief (in the court of appeals), for plaintiff-respondent.

CECI, Justice.

This case is before the court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats.The defendant, Louis J. Heyn(Heyn), appeals from an amended judgment of conviction and from an order denying his motion for post-conviction relief.The issue certified to this court is whether the circuit court may require a probationer to pay for the installation of a burglar alarm in the home of his or her burglary victim either as restitution or as a reasonable and appropriate condition of probation under sec. 973.09(1),Stats.1985-86.¹We conclude that under the unique circumstances presented by this case, the circuit court could, in its discretion, require a probationer to pay for the installation of a burglar alarm as a reasonable and appropriate condition of probation under sec. 973.09(1)(a).We therefore affirm the amended judgment of conviction and order of the circuit court.

The facts of this case are undisputed.On or about November 13, 1987, Lawrence Gunnels reported to the Walworth County Sheriff's Department that his home had been burglarized and that money, a fur coat, and a 1987 Chevrolet Cavalier had been taken from the home.On July 28, 1988, the state of Wisconsin issued a criminal complaint against Heyn, alleging his involvement in numerous crimes, including the burglary of the Gunnels' home.Heyn waived the preliminary examination on August 8, 1988, and the state filed an information charging him with, inter alia, the burglary of the Gunnels' home and with three additional counts of burglary, contrary to sec. 943.10(1)(a), Stats.On August 12, 1988, Heyn pleaded guilty to each of the four counts of burglary, and the circuit court accepted his pleas.Shortly thereafter, Lawrence Gunnels filed an amended affidavit of restitution with the court, seeking restitution in the amount of $4,082.73 for property that had been lost or damaged during the burglary of his home.

The circuit court held the sentencing hearing on September 16, 1988.Lawrence Gunnels was present at the hearing and described the burglary and its impact on his family.Gunnels told the court that on the night of the burglary, his wife awoke at approximately two o'clock a.m., found the front door of the house ajar, and got him out of bed.Gunnels stated that he immediately called the sheriff's department and then searched the house to make certain that there was no one still inside.Gunnels told the court that after he had finished searching the house, he noticed that his wife "was cowering over in the corner, crying" and that he"tried to reassure her as best [he] could that there was no one in the house."Gunnels stated that the burglary was a traumatic experience for his wife and that after the burglary she was under a doctor's care.Gunnels further stated that he had installed a burglar alarm in the house as a direct result of the crime and that the cost of the installation of the burglar alarm was approximately four thousand dollars.

At the conclusion of the hearing, the court sentenced Heyn to ten years in prison on one of the four counts of burglary charged in the information.The court further sentenced Heyn to five years in prison for the burglary of the Gunnels' home and to five years in prison for each of the two remaining counts of burglary, to run consecutive to each other and consecutive to the ten-year sentence.The court stayed the five-year sentences and placed Heyn on twelve years of probation for each of those three burglaries, to run concurrent with each other but consecutive to the ten-year sentence.As a condition of probation, the court ordered Heyn to pay to the Gunnels the amount of $4,082.73 as restitution and an additional $4,000.00 which would "either apply to the pain and suffering or the burglary alarm, whichever is appropriate under the law...."The court directed the probation department to reassess Heyn's ability to pay those amounts at the time of the commencement of his probation.

On February 15, 1989, Heyn filed a motion for post-conviction relief.The circuit court heard the motion on April 27, 1989.At the hearing, Heyn argued that the circuit court could not order him to pay $4,000.00 to the Gunnels for the cost of the burglar alarm or for pain and suffering because neither award was proper under the victim restitution provisions of secs. 973.09(1)(b) and (8)(a), Stats.The state countered that even if the award was not a proper form of restitution under sec. 973.09(1)(b), it was nevertheless a reasonable and appropriate condition of probation under sec. 973.09(1)(a).At the conclusion of the hearing, the court stated:

I'm going to rule, uphold my original judgment.I think it's something that the appellate court has to address.Because I don't think that it is at all clear, and the extent of the court's discretion under (1)(a) has to be tested.So the courts can know just how far they can go in terms of reasonable and appropriate conditions of probation.Do they include things over and above the form of restitution....

So, that is my ruling.The amount of $4,000 for the burglar alarm, and/or the pain and suffering will remain....

The circuit court denied Heyn's motion for post-conviction relief by order entered May 9, 1989.

Heyn appealed to the court of appeals, which certified the case to this court.We granted the certification request and took jurisdiction of the appeal to determine whether the circuit court properly ordered Heyn to pay $4,000.00 to the Gunnels as a condition of his probation.²The circuit court characterized this amount as representing either the cost of the installation of the burglar alarm or damages for pain and suffering, whichever would be appropriate under sec. 973.09(1), Stats.We therefore begin our analysis of the issue presented with a discussion of the provisions of that statute.

Probation is not a matter of right to a defendant, but instead is a privilege.Edwards v. State, 74 Wis.2d 79, 83, 246 N.W.2d 109(1976).Section 973.09(1)(a), Stats., grants to the circuit court broad discretion to place a convicted person on probation and to "impose any conditions which appear to be reasonable and appropriate" on that probation.This court has stated that requiring a convicted person to pay restitution to a victim is one of many permissible conditions of probation.SeeState v. Jackson, 128 Wis.2d 356, 363, 382 N.W.2d 429(1986).Section 973.09(1)(b) requires the circuit court to order a convicted person to pay restitution designed to compensate the victim's pecuniary loss resulting from the convicted person's criminal activity in all proper cases.Section 973.09(8)(a) defines pecuniary loss as "[a]ll special damages ... which a person could recover against the probationer in a civil action arising out of the [criminal] events ... including ... the money equivalent of loss resulting from property taken, destroyed, broken or otherwise harmed and out-of-pocket losses, such as medical expenses...."

On this appeal, Heyn argues that the circuit court could not require him to pay $4,000.00 to the Gunnels for the cost of the installation of the burglar alarm or for pain and suffering because neither award is proper under the victim restitution provisions of sec. 973.09(1)(b), Stats.The state also recognizes that the cost of a burglar alarm installed after the fact of the crime and compensation for pain and suffering may not fall within the definition of pecuniary loss contained in sec. 973.09(8)(a).The state argues, however, that the restitution provisions of sec. 973.09(1)(b) do not restrict the general authority of the circuit court under sec. 973.09(1)(a) to condition a defendant's probation on the satisfaction of any requirement which is reasonable and appropriate.The state therefore maintains that, even if the condition at issue cannot be characterized as restitution under sec. 973.09(1)(b), it may nevertheless be upheld as a reasonable and appropriate condition of probation under sec. 973.09(1)(a).

The state's position is supported by the recent decision of the Wisconsin court of appeals in State v. Connelly, 143 Wis. 2d 500, 421 N.W.2d 859(Ct.App.1988).In that case, the court of appeals described the relationship between secs. 973.09(1)(a) and (1)(b), Stats., as follows:

The statute does not state that the only time a probationer can be required to pay out funds as a consequence of his or her criminal activity is to provide restitution to a crime victim.It simply requires that if there is an ascertainable victim, he or she must be compensated under the guidelines therein stated.The adoption of the mandatory victim restitution provisions of sec. 973.09(1)(b) did not inhibit or restrict the authority of a trial court to impose 'reasonable and appropriate' conditions of probation, as generally authorized by sec. 973.09(1)(a).The provisions of secs. 973.09(1)(a) and (1)(b) are cumulative and concurrent; the latter section neither usurps nor abridges the former.

Id. at 505, 421 N.W.2d 859.

We are likewise persuaded that the restitution provisions of sec. 973.09(1)(b), Stats., do not restrict the broad authority of the circuit court to condition probation on the satisfaction of any requirement which is reasonable and appropriate under sec. 973.09(1)(a).We therefore agree with the state's contention that even if requiring Heyn to pay $4,000.00 to the Gunnels for the cost of the installation of...