State v. Loutsch

• Decision Date: 26 December 2002
• Docket Number: No. 02-1755-CR.,02-1755-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark M. LOUTSCH, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

259 Wis.2d 901

2003 WI App 16

656 N.W.2d 781

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Mark M. LOUTSCH, Defendant-Appellant.²

No. 02-1755-CR.

Court of Appeals of Wisconsin.

Submitted on briefs November 11, 2002.

Decided December 26, 2002.

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

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general.

Before Vergeront, P.J., Dykman and Roggensack, JJ.

¶ 1. VERGERONT, P.J.

Mark Loutsch appeals a judgment of conviction and an order requiring that he pay restitution in the amount of $33,167.44; he also appeals the order denying postconviction relief. Loutsch contends the trial court erred in ordering him to pay restitution for a victim's use of sick leave because the loss was too speculative and not supported by the record. He also contends the court erred in failing to consider his limited ability to pay and in failing to consider, as provided in WIS. STAT. § 973.20(5)(d),³ whether justice required restitution to the insurers.

¶ 2. We conclude the victim's loss of sick leave is "special damages" within WIS. STAT. § 973.20(5)(a) and therefore the court had the authority to award restitution for the sick leave the victim used, and the record supports the amount ordered, $26,257.52. We also conclude that, when a defendant presents evidence of his ability to pay, the trial court is not authorized to defer adjusting the amount of restitution based on ability to pay; rather, the court must make a determination of the reasonable amount of restitution the defendant will be able to pay within the term of the sentence. Accordingly, we affirm in part, reverse in part and remand for further proceedings. On remand, the court will have the opportunity to consider whether justice requires restitution to the insurers as provided in § 973.20(5)(d).

BACKGROUND

¶ 3. Loutsch was convicted of fleeing in violation of WIS. STAT. § 346.04(3); two counts of first-degree recklessly endangering safety in violation of WIS. STAT. § 941.30(1); two counts of criminal damage to property in violation of WIS. STAT. § 943.01(1); intimidation in violation of WIS. STAT. § 940.45(1); battery in violation of WIS. STAT. § 940.19(6); and resisting in violation of WIS. STAT. § 946.41. The charges arose out of an incident that began with an altercation between Loutsch and his father-in-law. State Trooper Arden Asp received a radio transmission in his squad car to be on the lookout for Loutsch, who had left his father-in-law's house. When Asp located Loutsch driving his car, he attempted to pull Loutsch over. Eventually both cars stopped and Loutsch rammed the back of his car into the front of Asp's vehicle two times. As a result of that collision, Asp aggravated a pre-existing wrist injury and required an operation.

¶ 4. After the jury found Loutsch guilty of the charges, the court imposed sentences that resulted in a combined prison term of three years, with 159 days of sentence credit; a combined extended supervision period of four and one-half years; and five years' consecutive probation. The court then held an evidentiary hearing on the issue of restitution. The State submitted a restitution summary, which requested $33,167.44 in restitution. One item was Asp's use of his sick leave, which, the summary alleged, was a loss to him of $26,257.52, and the court heard testimony on this.⁴ ¶ 5. Asp testified at the hearing that he used 552 hours of sick leave. His employment contract provided that, upon retirement, all the hours of his unused sick leave would be multiplied by two and then by his hourly rate of pay at the time of retirement to create a fund for health insurance premiums. The court concluded that the loss of sick leave was a real loss that Asp suffered, and it accepted the State's calculation that 552 hours times two times Asp's hourly wage equaled $26,257.52.

¶ 6. The court also heard testimony on Loutsch's financial situation. Loutsch testified that he had a high-school diploma and, at the time of the incident leading to the charges, he was working on a commission basis for Direct TV making between $586 to $800 a week, depending on the available work. The most he had ever made as an hourly wage was $8.99, which was in 1995 when he did factory work through a temporary agency. In prison, he was making eight cents an hour for a forty-hour week, and he might be able to earn eighteen or twenty-seven cents an hour. He was going through a divorce and had a child support obligation that he believed would accrue while he was incarcerated and would be $15,000 when he was released.

¶ 7. The court decided that Loutsch had not established "good cause" for the court to enter a figure for a lesser amount than full restitution. The court stated that it could not predict what Loutsch was going to be able to pay, that the possibility "always exists that the unforeseen and unexpected may happen and [Loutsch] may in fact have the ability to pay the restitution at some point in the future . . . ." It was not the legislature's intention, the court concluded, that a court limit the opportunity of the victims to recover the amount they were entitled to in restitution. The court reasoned that it had continuing jurisdiction over the issue of payment, such that if Loutsch made a good faith effort to pay, the court had the authority to discharge him from the obligation or enter a civil judgment rather than extending his probation because he had not paid off the restitution.

¶ 8. The court entered an order of restitution in the amount of $33,167.44. Loutsch moved for relief from the restitution order, and the court denied the motion. During that hearing, the court accepted Loutsch's counsel's representation that Loutsch's divorce had become final and he was ordered to pay after release from prison 25% of his gross income as support for his two children.

DISCUSSION

Loss of Sick Leave

¶ 9. We first address Loutsch's contention that the trial court did not have the authority to order restitution for the loss of Asp's sick leave. According to Loutsch, Asp's used sick leave is not a compensable loss for purposes of restitution, because it has no present monetary value and the future value is too speculative.

[1]

¶ 10. A resolution of this issue requires us to interpret and apply WIS. STAT. § 973.20, which governs restitution in criminal cases. The interpretation of a statute and application to a given set of facts presents a question of law, which we review de novo. State v. Evans, 2000 WI App 178, ¶ 12, 238 Wis. 2d 411, 617 N.W.2d 220. ¶ 11. When imposing a sentence, a court must order "full or partial restitution . . . unless the court finds substantial reason not to do so and states the reason on the record." WIS. STAT. § 973.20(1r). Sections (2) and (3) specify particular types of restitution for categories of crimes.⁵ Section (5) addresses restitution in "any case" and provides in 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.

[2-4]

¶ 12. The distinction between general and special damages as relevant to WIS. STAT. § 973.20(5)(a) is well established. "General damages" under this statute are those that compensate the victim for damages such as pain and suffering, anguish or humiliation, while "special damages" encompass "`harm of a more material or pecuniary nature.' [Citation omitted.]" State v. Holmgren, 229 Wis. 2d 358, 365, 599 N.W.2d 876 (Ct. App. 1999). The ultimate question in deciding whether an item of restitution is "special damages" within the meaning of the statute is whether it could be recovered as special damages in a civil proceeding. State v. Rouse, 2002 WI App 107, ¶ 12, 254 Wis. 2d 761, 768, 647 N.W.2d 286. In deciding whether the loss of Asp's sick leave is a "special damage" within the meaning of § 973.20(5)(a), we bear in mind that the purpose of restitution is to return victims of a crime to the position they were in before the defendant injured them. Holmgren, 229 Wis. 2d at 366. We therefore construe the restitution statute broadly to allow victims to recover their losses resulting from the criminal conduct. Id.

¶ 13. Loutsch argues that our decision in Preiss v. Preiss, 2000 WI App 185, 238 Wis. 2d 368, 617 N.W.2d 514, supports his position that Asp's used sick leave does not have a present monetary value and therefore is not "special damages." In that divorce action, we concluded the trial court erred in placing a $70,000 value on the retired spouse's accumulated sick leave account and including it as an asset in the marital estate. Id. at 375. Under the terms of his employment, the hours of sick leave times the hourly rate of pay resulted in an amount that was being credited against his health insurance premiums, and that is the reason the trial court had considered it an asset. Id. at 374. We concluded that, because the spouse could not convey his interest in the sick leave account, it did not have a fair market value, and property without a fair market value should not be included as an asset in the marital state. Id. at 375. We did recognize that the sick leave account had a value to the retired spouse, but that value was not accessible to anyone else. Id. We also observed that, if maintenance or child support were an issue, the fact that the spouse received health insurance premiums through his sick leave account would likely be considered in determining his living expenses and his ability to pay child support or maintenance. Id. at 376.

¶ 14. We do not view Preiss as...