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COURT OF APPEALS DECISION DATED AND RELEASED June 25, 1996 |
NOTICE |
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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. 96-0154-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS DEFFKE,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
CHARLES F. KAHN, JR., Judge. Affirmed.
WEDEMEYER, P.J.[1] Thomas Deffke appeals from an order
directing him to pay restitution for funeral expenses after he pleaded no
contest to one count of contributing to the delinquency of a child, contrary to
§ 948.40(1), Stats. Deffke claims that the trial court
erroneously exercised its sentencing discretion when it ordered him to pay the
funeral expenses. Because the trial
court did not erroneously exercise its sentencing discretion in ordering Deffke
to pay the funeral expenses as restitution, this court affirms.
I. BACKGROUND
This case arises from
the events surrounding a high school graduation party hosted by Deffke on June
11, 1994. The decedent, Greta Abraham,
was a minor who attended the party and drank alcohol provided by Deffke. Abraham also attended other parties on the
night of June 11, 1994.
On June 12, 1994, at
approximately 2:25 a.m., a marked police car observed Abraham driving
erratically. The police officer
attempted to pull her over, but she failed to stop. Shortly thereafter, Abraham crashed the vehicle she was driving
into a tree and was killed.
Deffke was charged with
contributing to the delinquency of a minor for providing Abraham with
alcohol. Deffke was convicted and
sentenced to six months incarceration, ordered to pay $750 to the D.A.R.E.
program and restitution. A separate
hearing was held to determine the appropriate amount of restitution. At the hearing, the trial court ordered
Deffke to pay $5,996.63 for the funeral expenses of Abraham. Deffke appeals the restitution order.
II. DISCUSSION
In reviewing a trial
court's sentence, including an order for restitution, this court's role is
limited to determining whether the trial court erroneously exercised its
discretion in imposing sentence. See
State v. J.E.B., 161 Wis.2d 655, 661, 469 N.W.2d 192, 195
(Ct. App. 1991), cert. denied, 503 U.S. 940 (1992). The trial court is afforded great latitude
in sentencing. Id. at
662, 469 N.W.2d at 195. This latitude
is limited by the requirement that the trial court must consider three primary
factors: (1) the gravity of the
offense; (2) the character of the offender; (3) and the need to protect the
public. Id.
The discretion a trial
court exercises “contemplates a process of reasoning. This process must depend on facts that are of record or that are
reasonably derived by inference from the record and a conclusion based on a
logical rationale founded upon proper legal standards.” McCleary v. State, 49 Wis.2d
263, 277, 182 N.W.2d 512, 519 (1971).
Against this backdrop, the law provides that the trial court shall
impose restitution unless it finds substantial reason not to do so. See § 973.20(1), Stats.[2] Moreover, § 973.20(4), Stats., specifically provides that “[i]f
the crime resulted in death, the restitution order may also require that the
defendant pay an amount equal to the cost of necessary funeral and related
services.”
Deffke does not claim
that the trial court failed to consider the primary factors. Rather, he argues that the trial court erred
in ordering him to pay funeral expenses as restitution because: (1) he is exempt from civil liability;
(2) the trial court did not properly consider Deffke's financial
circumstances and death was not an element of the offense of contributing to
the delinquency of a minor; and (3) ordering Deffke to pay the funeral
expenses as restitution was excessive.
This court addresses each contention seriatim.
A. Civil
Liability Exemption.
Deffke first claims that
the trial court erroneously exercised its sentencing discretion by ordering him
to pay the funeral expenses because he is exempt from civil liability pursuant
to § 125.035(2), Stats.[3] Deffke argues that because he is exempt from
civil liability for providing Abraham with alcohol, that this immunity should
also operate as a defense to an order of restitution based on providing a minor
with alcohol. This court is not
convinced that § 125.035(2) makes the trial court's restitution award an
erroneous exercise of discretion.
In response to this
argument, the trial court ruled:
Therefore,
in the event that this were a civil action, I would be ruling that Mr. Deffke
is by section 125.035(2) immune from liability. However, I find in this case that on the question of restitution
arising out of criminal conduct that section 125.035 does not close the
issue.... I think that the statutes themselves are a little unclear, and
frankly I am personally troubled by the possibility that this statute could
strike out the valuable rehabilitative effects of Mr. Deffke paying restitution
to Greta Abraham's estate. In other
words, I think that the language in the case State vs. Dugan makes a lot
of sense. That rehabilitation here is a
key issue....
... I cannot rule in this case that after the
crime committed by Mr. Deffke ended that evening in the death of Greta Abraham
that this civil immunity from liability statute would prevent the criminal
court from ordering restitution.... [R]elying on the purposes of sentencing in
a criminal case, the purposes of restitution in a criminal case, the moderate
level of guidance we have from the Court of Appeals in the case of State v.
Dugan and the basic concepts which I'm going to add in here without
additional guidance of the law of common sense and justice and the need for a
Court to do justice in each case, I do rule that Mr. Deffke has the right to
raise the issue of the immunity from civil liability. However, that does not rule this case, and restitution may be
ordered by the Court despite the existence of this statute.
In
sum, the trial court balanced the purposes of restitution in a criminal case
against the immunity provided in civil cases pursuant to § 125.035(2), Stats., and concluded that
§ 125.035(2) does not control the trial court's authority to impose
restitution.
Further, § 125.035(2),
Stats., does not provide immunity
to a provider of alcoholic beverages if the provider knew that the person he
was furnishing alcohol to was under the legal drinking age. See § 125.035(4)(b), Stats.
The record demonstrates that Deffke was aware that Abraham was under the
legal drinking age. The statutory
exception to immunity, together with the trial court's conclusion that the
civil immunity statute should not operate to subvert the purposes of restitution
in a criminal case convince this court that the trial court did not erroneously
exercise its discretion in concluding that § 125.035(2) does not apply.
B. Financial
Circumstances/Death as Element of Offense.
Deffke next claims that
the trial court's restitution award was erroneous because the trial court did
not properly consider Deffke's financial circumstances and because funeral
expenses should only be ordered as restitution when death is an element of the
offense.
The record demonstrates
that the trial court inquired as to whether there were any additional materials
regarding Deffke's ability to pay. The
trial court considered the issue. The
burden to provide the trial court with information relevant to this factor lies
with Deffke. See
§ 973.20(14)(b), Stats. Because there is evidence in the record that
the trial court considered Deffke's financial circumstances prior to ordering
the restitution, and because any lack of information on this factor is
attributable to Deffke, this court cannot say that the trial court erroneously
exercised its sentencing discretion on these grounds.
This court is not
persuaded by Deffke's additional argument that death must be an element of the
offense before the trial court can award funeral expenses as restitution. The statute provides that funeral expenses
may be ordered as restitution, “[i]f the crime resulted in death.” Section 973.20(4), Stats. The trial
court ruled:
Mr. Deffke's conduct and the crime he
committed led to and resulted in the death of Greta Abraham, and I'm making
that quite explicit....
....
... First of all, what I am saying is, Mr.
Deffke, that your conduct led to her death and those are the real words that I
mean to use “led to her death.”
Because the statute does
not limit funeral expenses to only those circumstances where an element of the
crime is death, and because the trial court clearly found that Deffke's conduct
led to Abraham's death, this court cannot say that the trial court's
restitution order constituted an erroneous exercise of discretion.
C. Excessiveness.
Finally, Deffke claims
that ordering him to pay funeral expenses constituted an excessive sentence, in
light of the other components of his sentence.
“The test for determining whether a sentence constitutes cruel and
unusual punishment is whether the sentence is ‘so excessive and unusual, and so
disproportionate to the offense committed, as to shock the public sentiment and
violate the judgment of reasonable people concerning what is right and proper
under the circumstances.’” State v.
Larsen, 141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987)
(citation omitted).
The other components of
Deffke's sentence included six months incarceration and a $750 contribution to
D.A.R.E. The offense that Deffke was
convicted of was contributing to the delinquency of a minor. Although this offense may seem insignificant
when compared to the multitude of more serious offenses plaguing society, in
the context of this case, the offense led to the death of a young woman. Accordingly, this court cannot say that the restitution
ordered in this case, together with the other components of the sentence are so
excessive, unusual or disproportionate to the offense that the order is
shocking to the public sentiment.
Therefore, this court rejects Deffke's claim that the restitution order
was excessive.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Section 973.20(1), Stats., provides in pertinent part:
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.