COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

February 1, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2010AP1930-CR	Cir. Ct. No.� 2004CM19
STATE OF WISCONSIN��			IN COURT OF APPEALS
			DISTRICT III


State of Wisconsin, �� Plaintiff-Respondent, �� v. Gary R. Sampson, �� Defendant-Appellant.

�� APPEAL from a judgment of the circuit court for Washburn County:� EUGENE D. HARRINGTON, Judge.� Affirmed in part; reversed in part, and cause remanded with directions.�

�1�� PETERSON, J.[1] Gary Sampson was convicted of misdemeanor theft in a business setting, contrary to Wis. Stat. � 943.20(1)(b).� The circuit court ordered Sampson to pay restitution. �Sampson argues the court erred by setting restitution at the amount the victim had to pay others to finish the contract Sampson failed to complete.� We agree and reverse that portion of the judgment awarding restitution.� We remand with directions to set restitution at $11,457.30, the amount of the down payment Sampson converted.

BACKGROUND

�� 2�� A criminal complaint alleged that, while acting as a building contractor, Sampson entered into a contract with Rick Saletri to make improvements to Saletri�s business.� It further alleged that Saletri paid Sampson $11,457.30 as a down payment, but Sampson failed to complete the contract and retained the down payment.� Sampson pled no contest. ��

�� 3�� At a restitution hearing, Saletri testified he hired Sampson to install heating, electrical, and air conditioning systems in his tire shop.� The total cost of the contract was $15,276.40.� Sampson did not complete the contract, and what little work he did perform was substandard.� Saletri had to hire two other contractors to finish the job and to correct Sampson�s shoddy work.� Saletri ultimately paid $11,143 to complete the heating and air conditioning systems and $4,045 for the electrical work.�

�� 4�� The court set restitution at the sum of those two numbers�$15,186.[2]� It explained:

I calculated that by just looking at what [Saletri] had to pay someone else to cover the contract.� The contract was for 15,276.40.� I recognize that Mr. Sampson did some work, but � he breached the contract.� He failed to perform.� Even though he did have some work that he did, what did it cost the other parties to cover the contract?� From the testimony that I can determine, [Saletri] paid Early Plumbing and Heating 11,143, and [he] paid this Weber Electric 4,045.� The sum of the two is 15,186.� Restitution is set at 15,186.�

Sampson appeals, arguing the court should have set restitution at $11,457.30, the amount of the down payment he converted.

DISCUSSION

�� 5�� Restitution in criminal cases is governed by Wis. Stat. � 973.20.� Subsection 973.20(1r) states that a circuit court �shall� order the defendant to pay restitution �to any victim of a crime considered at sentencing � unless the court finds substantial reason not to do so and states the reason on the record.�� However, � 973.20(5)(a) limits the restitution a court may award in two ways.� First, restitution is limited to special damages recoverable in a civil action.� Wis. Stat. � 973.20(5)(a).� Second, the victim�s loss must be attributable to the defendant�s criminal conduct considered at sentencing.� Id.� Although the amount of restitution ordered is generally within the circuit court�s discretion, State v. Johnson, 2002 WI App 166, �7, 256 Wis. 2d 871, 649 N.W.2d 284, whether a particular item of restitution comes within � 973.20 is a question of law that we review independently, State v. Rash, 2003 WI App 32, �5, 260 Wis. 2d 369, 659 N.W.2d 189.

�� 6�� The outcome of this case is controlled by State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534, where we held that a victim�s costs to correct construction deficiencies in a theft by contractor case are not recoverable as a separate item of restitution under Wis. Stat. � 973.20(5)(a). �Id., �2.� Longmire was convicted of theft by contractor after he failed to complete a home improvement project for which he had received a $30,000 down payment.� Id., ��4-5. �Longmire paid a subcontractor $5,533 to excavate and pour concrete footings, but he did not complete any other work on the project.� Id., �4.� The circuit court ordered Longmire to pay $34,985 in restitution, which included both the $30,000 down payment and $3,100 the homeowners spent to correct the subcontractor�s shoddy concrete work.� Id., ��5, 10.

�� 7�� Longmire appealed, arguing the homeowners� remediation costs were not recoverable as a separate item of restitution.� We agreed, concluding:

Even if the work-correction expenditures could have been recovered in a civil action against Longmire for breach of contract, they would not constitute �special damages ... which could be recovered in a civil action against [him] for his ... conduct in the commission of a crime considered at sentencing.� [Wis. Stat. �] 973.20(5)(a) (emphasis added).

Id., �23.� We determined the remediation costs were not attributable to the criminal conduct considered at sentencing�Longmire�s conversion of the $30,000 deposit.� Id., �24.� Rather, the precipitating cause was shoddy construction work performed in furtherance of Longmire�s contractual obligations.� We noted that, even if Longmire had not stolen the homeowners� money and had applied it all toward completing the contracted work, the homeowners might still have found it necessary to incur additional expenses to correct deficiencies.� Id., �25.� We concluded, �The poor quality of the work actually performed under the contract � [is] purely a civil wrong and the criminal restitution statute cannot be enlisted to remedy it.�� Id., �26.

�� 8�� In Longmire, we specifically held that costs incurred to correct shoddy work performed by a contractor �are not recoverable as a separate item of restitution under Wis. Stat. � 973.20(5)(a).�� Id., �23.� Just as the homeowners� remediation costs were not recoverable in Longmire, Saletri cannot recover the amount he paid to complete his project and correct Sampson�s substandard work.� As in Longmire, the criminal conduct considered at sentencing was Sampson�s conversion of the down payment, not his breach of the contract.� See id., ��23-24.� The only pecuniary loss Saletri suffered as a result of Sampson�s criminal conduct was the loss of the down payment.� See id., �19 (citing Topzant v. Koshe, 242 Wis. 585, 588, 9 N.W.2d 136 (1943) (explaining that the amount of damages for conversion is the value of items wrongfully taken)).� Thus, under � 973.20(5)(a), Saletri is entitled to recover his down payment, but he is not entitled to recover those amounts he paid other contractors to complete Sampson�s contract and correct Sampson�s substandard work.[3]

�9�� The State attempts to distinguish Longmire, arguing that Sampson�s conversion of the down payment was part of a �comprehensive criminal scheme to maximize Sampson�s own criminal �take� while expending minimal labor and equipment costs on Saletri�s project.�� The State alleges Saletri�s remediation costs are connected to this criminal scheme because Sampson�s work was so slipshod and incomplete, �it was obviously performed � to string [Saletri] along until Sampson�s plans were in place to flee the area and abscond with [Saletri�s down payment].�� However, the State does not provide any support for these assertions.� There is no evidence in the record of a �comprehensive criminal scheme.�

�10�� The necessary assumption underlying the State�s argument is that if Sampson had not intended to convert the deposit money, the project would have been completed in a professional manner.� However, even if Sampson had applied the entire down payment to the contracted work, Saletri may still have needed to retain other contractors to correct deficiencies.� See Longmire, 272 Wis. 2d 759, �25.

�11�� Because the amounts Saletri paid to cover Sampson�s contract were not attributable to the criminal conduct for which Sampson was sentenced, those amounts were not proper items of restitution.� We therefore reverse in part and remand with directions that the circuit court set restitution at $11,457.30, the amount of Saletri�s down payment.

�� By the Court.�Judgment affirmed in part; reversed in part, and cause remanded with directions.

�� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2] The sum of $11,143 and $4,045 is actually $15,188.� Because we remand with directions to set restitution at the amount of the down payment, we need not address this apparent arithmetical error.

[3] When a contractor is convicted of converting a down payment and is ordered to return the down payment as restitution, the contractor may be entitled to an offset for work performed.� State v. Longmire, 2004 WI App 90, �18, 272 Wis. 2d 759, 681 N.W.2d 534.� In that case, the victim�s costs to correct defects in the contractor�s work may be used to determine the amount of the contractor�s offset.� Id., �21.� However, absent a contractor�s claim for an offset for work performed, the corrective costs may not be included in a restitution order.� Id., �22.� The circuit court did not grant Sampson an offset for work performed, and he does not argue on appeal that he is entitled to an offset.�