State v. Lasecki

• Decision Date: 19 May 2020
• Docket Number: Appeal No. 2018AP2340-CR
• Citation: 946 N.W.2d 137,2020 WI App 36,392 Wis.2d 807
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Troy R. LASECKI, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

392 Wis.2d 807

946 N.W.2d 137

2020 WI App 36

STATE of Wisconsin, Plaintiff-Respondent,

v.Troy R. LASECKI, Defendant-Appellant.

Appeal No. 2018AP2340-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: May 13, 2019

Opinion Filed: May 19, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ana L. Babcock of Babcock Law, LLC, Green Bay.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Chuck M. Stertz, Outagamie County assistant district attorney.

A nonparty brief was filed by Robert S. Driscoll and Malinda J. Eskra of Reinhart Boerner Van Deuren s.c., Milwaukee, for Apartment Association of Southeastern Wisconsin, Inc.

A nonparty brief was filed by Joshua L. Kaul, attorney general, and Gabe Johnson-Karp and Robert B. Bresette, assistant attorneys general.

A nonparty brief was filed by Attorney Mitch, Madison, for Neighborhood Law Clinic.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Troy Lasecki appeals a judgment convicting him of two misdemeanor counts of engaging in unfair trade practices and an order denying his motion for postconviction relief. A jury found Lasecki guilty of failing either to return the entire security deposits to two of his former tenants or to provide statements to those tenants explaining why he was authorized to withhold their respective security deposits. He raises multiple arguments on appeal: (1) the circuit court lacked subject matter jurisdiction because the crimes of which Lasecki was convicted are "not known to law"; (2) if Lasecki's conduct did constitute a crime, no ordinary person would have sufficient notice that his conduct was criminal; (3) the jury instructions in his case incorrectly stated the law regarding his charged crimes; and (4) the court impermissibly ordered restitution above the victims’ pecuniary losses.

¶2 We conclude the circuit court had subject matter jurisdiction over this case. We further conclude that an ordinary person, acting as a residential landlord, would have sufficient notice that it can be a criminal unfair trade practice for a landlord either to withhold amounts of a tenant's security deposit not reasonably necessary to pay for items authorized by statute or to fail to provide a tenant with a security deposit withholdings statement if some or all of a security deposit is withheld. Accordingly, we affirm those parts of the postconviction order consistent with these conclusions. We agree with Lasecki, however, that the jury instructions in his case were erroneous because they did not correctly state the law. We also agree with Lasecki that the court erred by ordering restitution above the victims’ pecuniary losses. For these reasons, we reverse the judgment of conviction and reverse the postconviction order in part, and we remand for further proceedings consistent with our statutory analysis herein.

BACKGROUND

¶3 Two former tenants of Lasecki's, Ben and Jim,¹ complained to the Wisconsin Department of Agriculture, Trade and Consumer Protection (the "DATCP") alleging that Lasecki withheld their respective security deposits and failed to provide them with statements explaining why he was withholding their security deposits (hereafter, "withholdings statements"). An investigator with the DATCP looked into those complaints.

¶4 After Lasecki failed to cooperate with the DATCP's investigation, the local district attorney's office became involved. The State eventually charged Lasecki with two criminal counts. In the criminal complaint, the State labeled the two counts as "returning security deposits," alleging that Lasecki failed "to deliver or mail to a tenant ... the full amount of any security deposit paid by the tenant, less any authorized withholdings, within 21 days after the termination of the rental agreement." As relevant here, the complaint stated Lasecki's failures violated WIS. ADMIN. CODE § ATCP 134.06(2) (Aug. 2016), and WIS. STAT. §§ 100.20(2) and 100.26(3) (2013-14).²

The matter proceeded to a jury trial at which Lasecki appeared pro se. ¶5 Ben and Jim both testified at trial that they paid Lasecki a security deposit and that he never returned their deposits after their residential leases ended. Ben and Jim also testified that Lasecki never provided them with withholdings statements explaining why he was authorized to retain their security deposits.

¶6 Lasecki testified in his own defense. He testified that he had been "in business for over 22 years" and that he "stud[ied] real estate and real estate brokerage into the intermingling of the real estate profession." Lasecki admitted that he withheld Ben's and Jim's entire security deposits. Further, Lasecki did not dispute that he never sent Ben and Jim withholdings statements. Lasecki testified that "as far as [he knew]," he sent an "e-mail confirmation" to Ben explaining to him that his security deposit would not be returned. When the State reminded Lasecki that his testimony was under oath, Lasecki testified: "I guess you can't prove that[.] ... As far as I know, I sent it but I guess how would you prove that?"

¶7 The jury found Lasecki guilty of both counts. The circuit court stayed Lasecki's sentence and placed him on probation for two years with a number of conditions. As relevant to this appeal, the court imposed sixty days in the county jail and ordered Lasecki to pay Ben $1460—twice his $730 security deposit—and Jim $1680—twice his $840 security deposit—in restitution.³ The court concluded Lasecki owed Ben and Jim double their security deposits because "the statutes and the code in ... Wisconsin allow for double damages when a landlord violates that section of the code."

¶8 Lasecki subsequently retained counsel and filed a motion for postconviction relief. As grounds for relief, Lasecki alleged: (1) the circuit court lacked subject matter jurisdiction over the case because "the offenses charged are not known to law"; (2) he "was denied [his] due process [right] to sufficient notice that his conduct constituted a crime"; and (3) "the court impermissibly ordered restitution above the victims’ pecuniary loss[es]." The court denied Lasecki's motion, and he now appeals.⁴

DISCUSSION

¶9 On appeal, Lasecki raises the same three issues he did in his postconviction motion. He also argues that the jury instructions in this case were improper, which we construe as a variation of the arguments he raised postconviction. We first address Lasecki's assertion that the circuit court lacked jurisdiction over the matter and his alternative argument that he was deprived due process of law. We combine these issues as both the arguments regarding the issues, and our disposition of them, substantially overlap.

I. Subject Matter Jurisdiction and Due Process

¶10 Criminal subject matter jurisdiction is a court's power "to inquire into the charged crime, to apply the applicable law and to declare the punishment." State v. Webster , 196 Wis. 2d 308, 316, 538 N.W.2d 810 (Ct. App. 1995) (citation omitted). A court lacks such subject matter jurisdiction, however, when the State charges an individual with a nonexistent crime. See State v. Scott , 2017 WI App 40, ¶11, 376 Wis. 2d 430, 899 N.W.2d 728. Whether a circuit court has subject matter jurisdiction is a question of law that we review de novo. See id. , ¶12.

¶11 Procedural due process's "void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 892, 197 L.Ed.2d 145 (2017). Put another way: "The underlying principle is that no [person] shall be held criminally responsible for conduct which he [or she] could not reasonably understand to be proscribed." United States v. Harriss , 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). The void-for-vagueness doctrine is driven by notions of fair play—i.e., "a statute is void for vagueness if it does not provide ‘fair notice’ of the prohibited conduct." State v. Smith , 215 Wis. 2d 84, 91, 572 N.W.2d 496 (Ct. App. 1997). The interpretation of a statute and whether the crime with which the State charges a defendant comports with due process are questions of law that we review independent of the circuit court. See id. at 90, 572 N.W.2d 496.

a. Lasecki's Arguments Regarding Subject Matter Jurisdiction and Due Process

¶12 Lasecki argues the State "created" the crime of which he was charged and convicted "by attempting to apply the criminal penalties contained within WIS. STAT. § 100.26(3)" to a violation of WIS. ADMIN. CODE § ATCP 134.06. He first asserts that when a landlord determines he or she is authorized by statute to withhold money from a tenant's security deposit, no law—by which he means a statute—requires the landlord to provide a tenant with any withholdings statement. Relatedly, he maintains that notwithstanding the requirements of security deposit withholdings statements stated in § ATCP 134.06(4), the legislature's omission of those requirements in WIS. STAT. § 704.28 means the legislature has eliminated any legal requirement for landlords to provide such statements, especially given certain language in WIS. STAT. § 704.95.

¶13 Lasecki alternatively argues that he cannot be held criminally liable for failing to comply with WIS. ADMIN. CODE § ATCP 134.06(4) because no ordinary person could know of such potential liability. He asserts that a due process violation occurred because in order to determine whether he or she is subject to criminal liability, an ordinary person acting as a residential landlord would have to navigate "through a maze of complex and confusing logic ... by combining several obscure statutes and code regulations." Therefore, Lasecki maintains that "[a]n ordinary person would have insufficient notice that Lasecki's conduct constituted a crime."

¶14 We reject Lasecki's...