State v. Longmire

• Decision Date: 01 April 2004
• Docket Number: No. 03-0300-CR.,03-0300-CR.
• Citation: 2004 WI App 90,681 N.W.2d 534,272 Wis.2d 759
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Tony G. Longmire, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

272 Wis.2d 759

2004 WI App 90

681 N.W.2d 534

State of Wisconsin, Plaintiff-Respondent, v. Tony G. Longmire, Defendant-Appellant.

No. 03-0300-CR.

Court of Appeals of Wisconsin.

Submitted on briefs August 13, 2003.

Decided April 1, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before Deininger, P.J., Vergeront and Lundsten, JJ.

¶ 1. DEININGER, P.J.

Tony Longmire appeals a judgment of conviction for theft by contractor. As part of its sentence, the court ordered him to pay $34,985 in restitution, an amount which Longmire moved to reduce. He also appeals the court's order denying his postconviction motion. Longmire claims the amount of restitution ordered is excessive because he was denied an offset for contract work that was completed, and because it includes expenses not authorized by the restitution statute, WIS. STAT. § 973.20 (2001-02).¹

¶ 2. We agree that the trial court improperly denied Longmire an offset for work performed that he had paid for. We therefore direct that an offset be allowed, but not in the amount Longmire seeks. We also conclude that the victims' attorney fees and their costs in correcting certain construction deficiencies are not, on the present facts, "special damages" recoverable in a civil action against Longmire "for his ... conduct in the commission of a crime." WIS. STAT. § 973.20(5)(a). Accordingly, we reverse the restitution order in part.

¶ 3. Longmire also complains that the trial court sentenced him to an excessive period of extended supervision and failed to consider relevant "new factors" warranting a reduction in the length of extended supervision. We disagree that the matters Longmire cites constitute new factors for sentencing purposes and, although we affirm the sentence imposed in all other respects, we direct that Longmire may renew his sentence modification motion on remand based on the reduction in restitution we order in this decision.

BACKGROUND

¶ 4. The owners of a home hired Longmire to complete a home improvement project for the sum of $45,295. The homeowners paid Longmire an initial deposit of $30,000 before he commenced work. Longmire hired a subcontractor to excavate and pour concrete footings for which he paid the subcontractor $5,533, but no additional work was done on the project. Approximately one month after the agreed upon completion date had passed, the homeowners hired an attorney and advised Longmire through counsel that he was in breach of the construction contract. The homeowners subsequently canceled the contract, demanded the return of all payments they had made to Longmire, and asked him for a written accounting of how their payments had been applied. Longmire did not respond to these demands.

¶ 5. The La Crosse County District Attorney charged Longmire with one count of felony theft by contractor, WIS. STAT. §§ 779.02(5) and 943.20(1)(b),² and two counts of misdemeanor home improvement fraud.³ Longmire pled guilty to theft by contractor and made an initial restitution payment of $1,000 in return for the dismissal of the two home improvement fraud charges, which were read in at sentencing. The trial court sentenced Longmire to fourteen months of confinement, to be followed by ten years of extended supervision, and it ordered him to pay the homeowners $34,985 in restitution.⁴

¶ 6. Longmire filed a postconviction motion challenging the amount of restitution. He argued that the restitution total should be offset by the amount he paid the subcontractor to perform the initial excavation and concrete work. He also contended that the total impermissibly included attorney fees and amounts for landscaping, cement removal, and modification of the concrete footings, allegedly expended by the homeowners to correct deficiencies in the excavation and concrete work.

¶ 7. The trial court declined to reduce restitution. It denied Longmire an offset for the excavation and concrete work, stating that contractor fraud was "a very unique situation" where "there's always shoddy workmanship" and that "if [Longmire] hadn't stole[n] the money, the job would have been completed, and then he'd have been responsible for correcting the mistake." The court also declined to eliminate any of the attorney fees or amounts expended to correct Longmire's subcontractor's allegedly shoddy work. The court concluded that "all of the attorney's fees were incurred in an effort to get the victims their money back," and that "if he hadn't stole[n] the money ... we can assume [the work] would have been done properly, [and] that's an expense that [the homeowners] would not have incurred."

¶ 8. Longmire's postconviction motion also challenged the length of his extended supervision. He maintained that his ten-year period of extended supervision should be reduced because of two new factors: (1) the Criminal Penalties Study Committee Final Report on 1997 Wisconsin Act 283, Truth In Sentencing, which recommended that the maximum length of extended supervision for certain felonies be reduced; and (2) the legislature's subsequent capping of extended supervision for felony theft at five years. Finally, Longmire argued that the length of his extended supervision was unduly harsh and had not been supported by a proper explanation of the length of time chosen. As with the restitution, the trial court refused to modify Longmire's term of supervision. Noting that this was Longmire's third conviction for contractor fraud, the trial court expressed the intent that there not "be a fourth victim." The court concluded that the length of extended supervision was necessary to punish Longmire and to "make the victims whole."

¶ 9. Longmire appeals the judgment of conviction with respect to the amount of restitution and the length of extended supervision ordered, as well as the denial of his postconviction motion seeking reductions in both.

ANALYSIS

¶ 10. The trial court's restitution order required Longmire to reimburse the homeowners for the following items: (1) storage fees ($685); (2) landscaping, cement removal, and related construction costs ($3,100); (3) attorney fees ($2,200); and (4) repayment of the initial $30,000 deposit in full. Longmire challenges only the inclusion of the second and third items, as well as trial court's refusal to offset the restitution amount by the amount of money Longmire paid to a subcontractor for the initial excavation and concrete work. We first discuss the law governing restitution in criminal cases and then apply it to each of Longmire's challenges, beginning with his claim of entitlement to an offset.

I.

¶ 11. To determine whether the disputed portions of the restitution order are proper, we must first consider WIS. STAT. § 973.20, which governs restitution in criminal cases. The trial court "shall" order restitution for a crime considered at sentencing "unless the court finds substantial reason not to do so and states the reason on the record." Section 973.20(1r). A primary purpose of restitution is to compensate the victim. See State v. Sweat, 208 Wis. 2d 409, 422, 561 N.W.2d 695 (1997). Section 973.20 "reflects a strong equitable public policy that victims should not have to bear the burden of losses if the defendant is capable of making restitution." State v. Kennedy, 190 Wis. 2d 252, 258, 528 N.W.2d 9 (Ct. App. 1994). Additionally, we are to "construe the restitution statute broadly and liberally in order to allow victims to recover their losses [that occur] as a result of a defendant's criminal conduct." State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997) (emphasis added).

¶ 12. This mandate notwithstanding, the legislature has placed limits on the restitution a court may order. WISCONSIN STAT. 973.20(5) provides, in relevant part:

(5) In any case, the restitution order may require that the defendant do one or more of the following:

(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

Whether an item included within a restitution order comes within statutory limitations on what a court may order is a question of law that we decide de novo. See State v. Rash, 2003 WI App 32, ¶ 5, 260 Wis. 2d 369, 659 N.W.2d 189, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (No. 02-0841-CR).

¶ 13. Restitution awarded under WIS. STAT. § 973.20(5)(a) is limited in two ways relevant to our present analysis. First, before a trial court may order restitution "there must be a showing that the defendant's criminal activity was a substantial factor in causing" pecuniary injury to the victim. State v. Johnson, 2002 WI App 166, ¶ 16, 256 Wis. 2d 871, 649 N.W.2d 284 (emphasis added). In making its determination, however, a trial court may "take[] a defendant's entire course of conduct into consideration" including "`all facts and reasonable inferences concerning the defendant's activity related to the `crime' for which [he] was convicted, not just those facts necessary to support the elements of the specific charge.'" State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104 (1999) (emphasis added) (citation omitted). Put another way, we have said that a causal link for restitution purposes is established when "the defendant's criminal act set into motion events that resulted in the damage or injury." Rash, 260 Wis. 2d 369, ¶ 7.

¶ 14. Second, restitution is limited to "special damages ... which could be recovered in a civil action against the defendant for his ... conduct in the commission of a crime." WIS. STAT. § 973.20(5)(a) (emphasis added). This...