State v. Wahlgren
| Decision Date | 17 May 2023 |
| Docket Number | 2021AP1772-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Kevin C. Wahlgren, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment and an order of the circuit court for Waukesha County Cir. Ct. No. 2017CF181 MICHAEL P. MAXWELL and PAUL BUGENHAGEN, JR., Judges.[1] Affirmed.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
Before Neubauer, Grogan and Lazar, JJ.
¶1 Kevin C. Wahlgren appeals from a judgment of conviction entered following guilty pleas, for three counts of theft by contractor. He also appeals an order denying postconviction relief. Wahlgren argues the case should be dismissed for lack of subject matter jurisdiction because the charging documents failed to allege the specific criminal intent needed for criminal theft by contractor. For this same reason, Wahlgren argues he should be permitted to withdraw his guilty pleas because his pleas were not knowing, intelligent, or voluntary. Alternatively, Wahlgren asserts the restitution award should be reduced and we should remand for resentencing based on the reduced restitution award. We reject Wahlgren's arguments and affirm.
¶2 An amended information charged Wahlgren with nine counts of theft by contractor, contrary to Wis.Stat. §§ 779.02(5) and 943.20(1)(b) (2021-22).[2] According to the amended complaint, Wahlgren is the president of Wahlgren-Schwenn Inc., a business located in Menomonee Falls, Wisconsin. Lake Country Bible Church contracted with Wahlgren-Schwenn to construct a new church. A church elder stated that he primarily dealt with Wahlgren when working on the project. The agreement stated Wahlgren-Schwenn would be the prime contractor. According to the contract while the church was being constructed, Wahlgren-Schwenn would request draws from a title company to pay subcontractors for work performed. Upon receiving the check from the title company, Wahlgren-Schwenn was required to pay each subcontractor within fifteen days. However, on several occasions, Wahlgren did not pay the subcontractors. He also requested additional funds to be made available for subsequent draws without paying the subcontractors.
¶3 In April 2015, Lake Country Bible Church learned that Wahlgren was not paying a subcontractor. The subcontractor received a $39,600 check for payment, but Wahlgren asked the subcontractor not to cash it. The subcontractor asked on four subsequent occasions if the check could be cashed. Wahlgren denied all requests, stating he did not have sufficient funds. The church then contacted the title company and determined the title company would pay subcontractors directly going forward. After the change, Wahlgren-Schwenn did not pay any outstanding bills, although the church paid some subcontractors through civil negotiations.
¶4 The amended complaint also alleged that Wahlgren entered into contracts for three other projects separate from the project for Lake Country Bible Church. Similar to his conduct with Lake Country Bible Church, the subcontractors would complete their work, Wahlgren would request payment for the subcontractors' work, Wahlgren would receive a check for the subcontractors' work, and then Wahlgren would not pay the subcontractors as required. The amended complaint explained that some of the subcontractors contacted law enforcement to report the nonpayments. All counts in the amended information contained similar allegations. For example, count six in the amended information stated:
The above-named defendant between April 14, 2015 and June 1 2015, [in] Waukesha County, Wisconsin, did as one under an agreement for the improvement of land, received money from the owners Lake Country Bible Church and without consent of the owners and contrary to his authority; intentionally used any of the money for any purpose other than the payment of claims due or to become due from the defendant for labor and materials used in the improvements before all claims were paid in full contrary to sec. 943.20(1)(b) Wis. Stats. and contrary to sec. 779.02(5) and 943.20(3)(c), 939.50(3)(g) Wis. Stats., a Class G Felony, and upon conviction may be fined not more than Twenty Five Thousand Dollars ($25,000), or imprisoned not more than ten (10) years, or both.
The remaining counts were identically phrased, but with different victims, time frames, and felony classes named.
¶5 Pursuant to a plea agreement, Wahlgren pled guilty to counts six, eight, and nine of the amended information. The remainder of the counts were dismissed but read in at sentencing.[3] Wahlgren signed a plea questionnaire/waiver of rights form. Wahlgren alleged that he understood the crimes to which he was pleading and that his attorney explained the elements to him.
¶6 The elements of criminal theft by contractor, as provided in Wis JI-Criminal 1443A (May 2009),[4] were attached to the plea questionnaire that he signed. During the plea hearing, the court had the following exchange with Wahlgren:
¶7 The court and Wahlgren had a similar exchange with respect to counts eight and nine. Wahlgren informed the court that he reviewed a copy of Wis JI-Criminal 1443A with his attorney. Specifically, he reviewed the elements section of that jury instruction and understood what the elements were. He reviewed the entire plea questionnaire/waiver of rights form, as well as its attachments, before he signed it.
¶8 The court then asked Wahlgren:
Is it true that between April 14, 2015, and June 1st, 2015, in Waukesha County, Wisconsin, that you did, as one under an agreement for improvement of land, receive money from the owners of Lake Country Bible Church, and without consent of the owners and contrary to your authority, you intentionally used any of the money for any purpose other than the payment of claims due or to become due from the defendant for labor and materials used in the improvement before all claims were paid in full.
Wahlgren replied, A similar exchange took place with respect to the allegations in counts eight and nine. Wahlgren also admitted to the factual allegations in the charging documents. The court accepted Wahlgren's guilty pleas and found him guilty.
¶9 Before sentencing, the court held a contested restitution hearing where it ultimately awarded $470,767.92 in restitution. Relevant to this appeal is the amount awarded for the victims' legal fees, which totaled $144,051.17.
¶10 At the restitution hearing, L.A. testified on behalf of Lake Country Bible Church. For legal fees, the church sought restitution in the amount of $32,631, which was the legal fees "that we had incurred in contacting our attorney regarding the fact that work was not getting done." L.A. explained that liens had been filed against the church's building and three or four foreclosure judgments were pending. L.A. admitted that he did not have the law firm's itemized invoices but testified that all of the requested legal fees were "related to this criminal case." He explained the church initially hired the law firm to review the original contract it had with Wahlgren and the church paid those fees. The requested legal fees were the fees the church incurred since the church re-engaged its law firm to deal with the problems. L.A. admitted the church also initially hired the law firm to get the village's approval for the project and agreed that, because the itemized bills were not in the courtroom, L.A. could not say for sure whether that fee was included in the $32,631 amount. He stated the approval amount would have been nominal.
¶11 The chief financial officer of Lemberg Electric Company, Inc. (Lemberg) testified in support of Lemberg's request for restitution. Lemberg sought $131,844 in restitution, which included $21,974 in legal fees. In support, Lemberg attached a civil order and judgment from the Milwaukee County Circuit Court, stating Lemberg was entitled to recover $131,844 from Wahlgren-Schwenn. Lemberg did not separately provide any invoices.
¶12 The chief financial officer of Emjay Realty, LLC (Emjay) testified on behalf of Emjay's request for restitution. Emjay sought $33,974 in legal fees. When asked if he had a specific invoice for the fees, the chief financial officer explained that the total amount of legal fees "represent[ed] a series of invoices that extend[ed] over a year which I can't provide." However, he testified that the legal fees were incurred exclusively to address liens that were filed as a result of Wahlgren's failure to pay subcontractors.
¶13 The chief financial officer for Noble Investment Group (Noble) testified in support of Noble's request for restitution. When Noble learned that...
To continue reading
Request your trial