PUBLISHED OPINION
Case No.: 94-0537-CR
† Petition
for Review Filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH ALLEN HOPKINS,
Defendant-Appellant. †
Submitted on Briefs: November 1, 1994
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July 18, 1995
Opinion Filed: July 18, 1995
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: PATRICIA D. McMAHON
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Marla J.
Stephens, first assistant state public defender.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of James E.
Doyle, attorney general, and Jerome S. Schmidt, assistant attorney
general.
|
COURT OF APPEALS DECISION DATED AND RELEASED July 18, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0537-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH ALLEN HOPKINS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON,
Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN,
J. Joseph Allen Hopkins appeals from a judgment of conviction, upon
a guilty plea, for attempted armed robbery,[1]
and from an order denying his motion for postconviction relief. He presents this court with one issue for
our review—whether a trial court has the authority to order restitution,
pursuant to § 973.20, Stats.,[2]
for a completed crime when the defendant only pleads guilty to an attempt of
the crime. We need not reach this issue
because we conclude that Hopkins “constructively” stipulated to the restitution
order, under § 973.20(13)(c), Stats.,
by failing to object to it at the time of its entry at sentencing. Accordingly, we affirm.
The State filed a
criminal complaint alleging that on the night of March 12, 1989, Hopkins robbed
Brian Vukovich as he left the Upper Crust restaurant in the City of Wauwatosa. According to the complaint, Vukovich, who
was employed at the Upper Crust, exited the rear of the restaurant carrying
approximately $800 in currency and personal checks—the restaurant's receipts
for the night—in his jacket pocket. As
Vukovich proceeded to his car, an individual attacked him, striking him in the
face and head. Vukovich stated that the
individual eventually pulled his (Vukovich's) jacket over his head, and that
after Vukovich slipped out of his jacket, the thief ran off with it. Six days later, Vukovich identified Hopkins
as the assailant out of a six-person photographic array.
Originally, the district
attorney's office filed an information charging Hopkins with robbery, contrary
to § 943.32(1)(a), Stats. Pursuant to plea negotiations with the
State, however, Hopkins instead pleaded guilty to attempted robbery. See §§ 943.32(1)(a) and 939.32, Stats.
During the plea proceedings, the trial court queried Hopkins about the
circumstances surrounding the offense.
Hopkins stated that he “attempted to rob” Vukovich, but “couldn't find
the money.” Further, he stated that he
“never took anything from” Vukovich, although he admitted that if he had found
any money, he would have stolen it.
Hopkins's counsel then stipulated to the criminal complaint, as modified
by Hopkins's statements, as the factual basis for Hopkins's guilty plea. The trial court accepted the plea but
adjourned the sentencing to obtain a presentence investigation report.
The presentence
investigation report indicated that Vukovich sought $100 in restitution for his
jacket, and that the Upper Crust's management sought $815.71 for the lost
restaurant receipts. The report also
stated that Hopkins denied that he had taken any money or the jacket.
At sentencing, neither the
State nor Hopkins mentioned restitution.
Nonetheless, when the trial court sentenced Hopkins to three years
incarceration, it also ordered Hopkins to pay $915.71 in restitution to
Vukovich and the Upper Crust. Hopkins
did not object to the restitution and the trial court entered the judgment of
conviction.
Later, Hopkins filed a
postconviction motion seeking to vacate the restitution order. He argued that the trial court lacked the
authority under § 973.20, Stats.,
to order restitution for a completed robbery, when he only pleaded guilty to an
attempted robbery. The trial court
denied the postconviction motion and Hopkins appealed.
Resolution of this
appeal requires us to apply the relevant provisions of § 973.20, Stats., to the undisputed facts of this
case. Consequently, this presents a
legal issue that this court reviews de novo. See State v. Wagner, 191 Wis.2d 322, 328,
528 N.W.2d 85, 87 (Ct. App. 1995).
Section 973.20(1), Stats., provides that a trial court
“shall order the defendant to make full or partial restitution under this
section to any victim of the crime,” when imposing a sentence or probation for
any crime. Section 973.20(13)(c), Stats., provides in part:
(c) The court,
before imposing sentence or ordering probation, shall inquire of the district
attorney regarding the amount of restitution, if any, that the victim
claims. The court shall give the
defendant the opportunity to stipulate to the restitution claimed by the victim
and to present evidence and arguments on the factors specified in
par. (a). If the defendant
stipulates to the restitution claimed by the victim or if any restitution
dispute can be fairly heard at the sentencing proceeding, the court shall
determine the amount of restitution before imposing sentence or ordering
probation.
(Emphasis
added.)
“The use of the word
`stipulate' in [§] 973.20(13)(c) does not imply a requirement of a formal
written stipulation, signed by the defendant, as to the amount of restitution
claimed.” State v. Szarkowicz,
157 Wis.2d 740, 749, 460 N.W.2d 819, 822 (Ct. App. 1990). Indeed:
[I]n the absence of any objection to
amounts claimed on a court-ordered restitution summary accompanying a
presentence investigation, where a defendant has been given notice of the
contents of that report and summary, the trial court is entitled to proceed on
the understanding that the claimed amount is not in dispute, and so order
restitution under [§] 973.20(13)(3).
Id.; see
State v. Cleaves, 181 Wis.2d 73, 79‑80, 510 N.W.2d 143, 146
(Ct. App. 1993) (discussing inter alia defendant's failure to object to
prosecutor's references to restitution amounts at sentencing as a basis for
“stipulation” under § 973.20(13)(c)).
In the present case, at
the time Hopkins entered his guilty plea, he stated that he “attempted to rob”
Vukovich, “but couldn't find the money” and that he “never took anything from”
Vukovich. Further, in his portion of
the restitution summary of the presentence investigation report, Hopkins denied
taking either Vukovich's jacket, or the money.
Hopkins now argues on appeal that these denials constitute an objection
to the restitution order that precluded the trial court from entering it. In essence he is arguing that he did not
stipulate to the restitution order pursuant to § 973.20(13)(c). We disagree.
Although prior to
sentencing Hopkins repeatedly denied that he took either Vukovich's jacket or
the restaurant's money, at the time of sentencing he objected neither to the
contents of the presentence investigation report, including the restitution
summary, nor to the restitution award when the trial court imposed it.[3] Upon this record, the sentencing court could
clearly presume that, in the absence of any specific objection on the record,
it could “proceed on the understanding that the claimed amount [was] not in
dispute,” and thereby enter the restitution order pursuant to
§ 973.20(13)(c). See Szarkowicz,
157 Wis.2d at 749, 460 N.W.2d at 822.
At the time of sentencing, Hopkins was fully
aware of the amount of restitution in the presentence investigation report, and
thereby received notice. Id. He made no effort to controvert it. His failure to contest the issue at
sentencing constituted a “constructive” stipulation to the restitution order. Accordingly, we hold that, in the absence of
a defendant's specific objection at the time restitution is ordered, the trial
court may proceed with the understanding that the defendant's silence is a
“constructive” stipulation to the restitution order, including its amount.
By the Court.—Judgment
and order affirmed.
[1] The judgment of conviction omits Hopkins's conviction for the attempt provision of § 939.32, Stats. Upon remittitur, we direct the trial court to correct the judgment of conviction to reflect Hopkins's conviction for both §§ 943.32(1)(a) and 939.32, Stats.
[2]
The offense at issue in this case occurred in 1989. Accordingly, we apply the restitution
statute in effect at that time. Section
973.20, Stats. (1987-88),
provided, in relevant part:
Restitution
(1) When imposing sentence or ordering probation for any crime, the
court, in addition to any other penalty authorized by law, shall order the
defendant to make full or partial restitution under this section to any victim
of the crime or, if the victim is deceased, to his or her estate, unless the
court finds substantial reason not to do so and states the reason on the
record. Restitution ordered under this
section is a condition of probation or parole served by the defendant for the
crime. After the termination of
probation or parole, or if the defendant is not placed on probation or parole,
restitution ordered under this section is enforceable in a civil action by the
victim named in the order to receive restitution or enforced under
ch. 785.
(2) If
the crime resulted in damage to or loss or destruction of property, the
restitution order may require that the defendant:
(a) Return the
property to the owner or owner's designee; or
(b) If return
of the property under par. (a) is impossible, impractical or inadequate, pay
the owner or owner's designee the reasonable repair or replacement cost or the
greater of:
1. The
value of the property on the date of its damage, loss or destruction; or
2. The
value of the property on the date of sentencing, less the value of any part of
the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.
....
(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 the crime.
(b) Pay an
amount equal to the income lost, and reasonable out-of-pocket expenses
incurred, by the person against whom the crime was committed resulting from the
filing of charges or cooperating in the investigation and prosecution of the
crime.
(c) Reimburse
any person or agency for amounts paid as rewards for information leading to the
apprehension or successful prosecution of the defendant for the crime.
(d) If
justice so requires, reimburse any insurer, surety or other person who has
compensated a victim for a loss otherwise compensable under this section.
....
(13)(a) The
court, in determining whether to order restitution and the amount thereof,
shall consider all of the following:
1. The
amount of loss suffered by any victim as a result of the crime.
2. The
financial resources of the defendant.
3. The
present and future earning ability of the defendant.
4. The
needs and earning ability of the defendant's dependents.
5. Any
other factors which the court deems appropriate.
(b) The
district attorney shall attempt to obtain from the victim prior to sentencing
information pertaining to the factor specified in par. (a)1. Law enforcement agencies, the department of
health and social services and any agency providing services under ch. 950
shall extend full cooperation and assistance to the district attorney in
discharging this responsibility. The
department of justice shall provide technical assistance to district attorneys
in this regard and develop model forms and procedures for collecting and
documenting this information.
(c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation.