State v. Jones
| Decision Date | 17 February 2021 |
| Docket Number | Appeal Nos. 2019AP224-CR,2019AP225-CR,2019AP226-CR |
| Citation | 2021 WI App 15,957 N.W.2d 551,396 Wis.2d 602 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James A. JONES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Donarski of Law Office of William J. Donarski, Green Bay.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Robert G. Probst, assistant attorney general.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 James Jones appeals judgments of conviction and, primarily, an order denying his postconviction motion seeking the return of bond monies that were posted by other persons.1 The bond monies were posted in connection with two cases that were dismissed but read in at sentencing as part of a global plea agreement encompassing five cases. Jones contends the circuit court lacked statutory authority to order the use of bond monies from the dismissed but read-in cases to pay restitution in the cases to which Jones pled no contest as part of the plea deal. We agree with Jones that WIS. STAT. § 969.03(5) (2017-18)2 requires that any bond money posted shall be returned to the payor once a complaint against the defendant is dismissed, even if the underlying offenses comprising that criminal action are read in at sentencing for a different case. Accordingly, we reverse in part the judgments and the postconviction order and remand so that the circuit court may grant Jones's postconviction motion and order the refund of the appropriate monies.
¶2 This appeal involves numerous offenses and underlying criminal cases arising from a series of thefts throughout Outagamie County. First, on January 27, 2016, Jones was charged in Outagamie County case No. 2016CF52. The complaint alleged that on the previous day, Jones was found in a vehicle bearing incorrect license plates. The police observed that Jones was in possession of a crowbar, a screwdriver, bolt cutters, a hammer, and numerous other license plates (one of which had been reported as stolen), along with two empty radio scanner boxes and other electronic merchandise. Jones was ultimately charged in case No. 2016CF52 with possession of burglarious tools and misdemeanor receiving/concealing stolen property, both charges as a repeater. We will refer to this case as "the burglary tools case."
¶3 Second, on August 10, 2016, Jones was charged in Outagamie County case No. 2016CM761 with misdemeanor retail theft as a repeater. The complaint alleged that on January 22, 2016, Jones entered a Radio Shack store and shoplifted two empty radio scanner boxes and an electrician's multi-meter. The radio scanner boxes matched the boxes that were found with Jones when he was arrested in relation to the burglary tools case, and Jones matched the description of the suspect in the theft. We will refer to case No. 2016CM761 as "the Radio Shack case."
¶4 Also on August 10, 2016, Jones was charged in Outagamie County case No. 2016CF687. The complaint alleged that on January 22, 2016, Jones had entered a sporting goods store along with an accomplice.
Jones was alleged to have taken four trail cameras worth almost $2,000 while his accomplice distracted employees. Jones was charged with a single count of felony retail theft, as a repeater. This case will be referred to as "the trail cameras case."
¶5 Finally, on August 25, 2016, Jones was charged in Outagamie County case No. 2016CF736. The complaint alleged that on January 12, 2016, Jones, along with two accomplices, burglarized a laundromat that contained gaming machines. The crew was alleged to have broken into the building, after which they sawed open the fronts of several gaming machines and stole the money inside them. Jones was charged with a single count of burglary of a building or dwelling as a party to a crime and as a repeater. We will refer to this case as "the laundromat case."
¶6 On June 7, 2016, Jones's mother posted a $2,500 cash bond in the burglary tools case. Later, on September 27, 2016, a friend of Jones, Vincent Udo, paid $1,200 for the total bail ordered in the other three cases, comprising $200 in the Radio Shack case and $500 each in the trail cameras and laundromat cases. Even though the $1,200 was paid as one lump sum, it was designated to each separate case. The bail/bond forms each contained the same language, including a warning that "[a]ny restitution ... or costs imposed against the defendant shall be paid out of the bail/bond without further notice."
¶7 The State and Jones ultimately reached a plea agreement involving all of the above-referenced cases. In the trail cameras case, Jones agreed to plead no contest to the felony retail theft charge, but without the repeater enhancer. In the laundromat case, the single charge of burglary as a repeater was amended to three reduced charges to which Jones pled no contest.3 Meanwhile, the parties agreed that the charges in the Radio Shack case and the burglary tools case would be dismissed and read in at sentencing. In addition, Jones would plead no contest to a yet-to-be-filed charge of operating a motor vehicle without the owner's consent—later filed as Outagamie County case No. 2017CF852—with the State agreeing to recommend, on that charge, a sentence concurrent to any time served on the above charges. We will refer to case No. 2017CF852 as "the OMVOC case."
¶8 As part of the global plea agreement, Jones agreed to pay restitution on the charges to which he pled no contest. The plea questionnaire/waiver of rights form that Jones signed also stated that he understood he "may be required to pay restitution on any read-in charges," which is a correct statement of the law. See WIS. STAT. § 973.20(1g)(a), (1r).
¶9 The cases proceeded to a combined plea hearing and sentencing. Jones first entered a plea to the single count in the OMVOC case.4 The OMVOC case and the two other cases still remaining—i.e., the trail cameras and laundromat cases—then proceeded to sentencing. As relevant here, the circuit court ordered that restitution be paid in two of the cases. First, it imposed $1,999.96 of restitution to the sporting goods store for the stolen trail cameras, plus costs and surcharges. It also imposed $1,200 of restitution, plus costs and surcharges, to be paid to the owner of the vehicle involved in the OMVOC case. The court did not specify on the record that the bond money was to be used toward restitution, but it did require that Jones "pay court costs and supervision fees in a timely manner, and that you pay the restitution as requested." There was no restitution claimed, nor ordered, in the two cases that were dismissed and read in—i.e., the burglary tools and Radio Shack cases—or in the laundromat case.
¶10 On November 9, 2018, Jones filed a motion for postconviction relief. As relevant here, the motion asked the circuit court to "correct the distribution and application of the monies posted for bond." Specifically, Jones argued that the clerk improperly "applied bond monies posted on dismissed and read-in cases to amounts owed for restitution and costs on the cases Jones was convicted of." According to Jones, no statutory authority permitted the clerk to use the bond monies posted in the cases involving the dismissed but read-in counts to pay his restitution obligations in the trail cameras and OMVOC cases. Indeed, Jones argued that WIS. STAT. § 969.03(5) specifically required that the bond money deposited in connection with the dismissed but read-in counts in those separate cases be returned to Jones's mother and to Udo—i.e., the persons who posted them.
¶11 Additionally, Jones pointed to WIS. STAT. § 969.03(4) ’s language stating that when "a judgment of conviction is entered in a prosecution in which a deposit had been made," "the balance of the deposit ... shall be applied first to the payment of any restitution ordered ... and then ... to the payment of the judgment." Jones asserted that because there was no judgment of conviction entered on the complaints that included the charges that were dismissed but read in from the burglary tools and Radio Shack cases, § 969.03(4) ’s directive to first apply bond money to restitution did not apply.
¶12 A hearing was held on Jones's postconviction motion, after which the circuit court denied the portion of the motion regarding the application of the bond monies.5 The court opined that WIS. STAT. § 969.03(5) does not "answer[ ] what happens in dismissed and read[-]in cases clearly" because that statute only mentions dismissed cases, not cases that are dismissed but include read-in counts. The court rejected Jones's argument that the word "prosecution" in § 969.03(4) refers only to a single criminal action; rather, the court reasoned that Jones's cases were all one "prosecution." As the court noted, Jones's plea agreement resolved five pending cases against him at once (in addition to a sixth offense not relevant to the issues here, which was a criminal traffic case that was dismissed outright). The court pointed out that all of the cases were prosecuted by the same assistant district attorney and defended by the same defense attorney. Accordingly, the court viewed all six cases resolved by the global plea agreement as a single "prosecution" under § 969.03(4), such that it was appropriate to apply the bond posted in the dismissed cases with read-in charges to the restitution owed in the cases to which Jones pled no contest.
¶13 The circuit court also concluded that WIS. STAT. § 969.03(5) distinguishes between cases that are dismissed outright and cases that are dismissed and read in, and subsec. (5) applies only to the former. The court noted the parties had agreed to dismiss outright the traffic case (rather than dismissing and reading it in) before sentencing, leading the court to conclude that the...
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