COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 13, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
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Nos. 96-0179-CR
96-0180-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL H. FRASCH,
Defendant-Appellant.
APPEAL from an orders of
the circuit court for Brown County:
N. PATRICK CROOKS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Daniel Frasch appeals an order for $4,162
in restitution to a burglary victim months after the charge was dismissed and
handled as a "read-in" at sentencing on other charges, and an order
denying sentence modification. Frasch
maintains that the court was precluded from making the order for failure to
comply with statutory provisions relating to restitution and because the order
constitutes double jeopardy. Frasch
alternatively contends that the court should have considered the order for
restitution a "new factor" for purposes of considering a sentence
modification for the crimes for which he was imprisoned. This court rejects Frasch's arguments and
affirms the orders.
Frasch was originally
sentenced to prison upon his plea and conviction for several serious
felonies. The State dismissed a count
of party to the crime of burglary with the understanding it would be used as a
read-in for sentencing on other charges.
The court sentenced Frasch to several concurrent prison sentences,
including a fifteen-year sentence for an armed burglary. At sentencing the court remarked:
The
court is not going to require any restitution in this matter. I think that, frankly, that would be
inappropriate given the length of the sentence on Count one. I'll leave it to the insurance company to
pursue the issue of restitution, if desired, through the civil branches of the
circuit court. But I'm satisfied that
it is not appropriate given these circumstances to order restitution.
Under § 973.20(1), Stats., a court imposing sentence or
ordering probation "for any crime" is required to order the defendant
to make full or partial restitution to "any victim of the crime ... unless
the court finds substantial reason not to do so and states the reason on the
record." The reference to
"any victim" includes those who were the target of a crime to which
the defendant admits as a part of the read-in procedure. State v. Szarkowitz, 157
Wis.2d 740, 754, 460 N.W.2d 819, 834 (Ct. App. 1990). Section 973.20(13)(c)2 specifies that the court may
"[a]djourn the sentencing proceedings for up to 60 days pending resolution
of the amount of restitution ...."
This time period is directory and not mandatory. State v. Perry, 181 Wis.2d 43,
55, 510 N.W.2d 722, 726 (Ct. App. 1993).
The conclusion that it is directory does not mean that the legislature
did not intend that the court in all cases be required to vacate an untimely
restitution order. Id. at
57, 510 N.W.2d at 727. Thus, in Perry,
the fact that two people were charged with causing the victim's injury and that
it would make judicial sense to hold a single restitution hearing permitted a
delay beyond the sixty-day period. Id.
at 56, 510 N.W.2d at 727. Similarly, in
State v. Borst, 181 Wis.2d 118, 510 N.W.2d 739 (Ct. App. 1993),
the fact that there had been no mention in either the plea agreement or the
plea questionnaire allowed the court to consider restitution beyond the
statutory time. Id. at
120, 510 N.W.2d a 740. Borst
reasoned that because consideration of restitution is mandatory, the subsequent
sentence is "'illegal' in the sense that it was incomplete without
restitution or the explanation required by the statute ...." Id. at 122, 510 N.W.2d at 741.
Frasch distinguishes Borst
on the theory that the court in this matter expressly considered restitution
and gave a valid reason for rejecting it.
Were this a completely accurate view of what transpired, we would
certainly agree.
As the State points out,
however, Judge Crooks later explained that his remarks at the original
sentencing were not directed at the read-in burglary offense. The court stated:
[I]t was my recollection that no one
brought to the Court's attention a question of restitution in regard to [the
read-in burglary case] and that the first time anything like that was brought
to the Court's attention was when we got the letter from Agent Bornbach, which
would have been in March of 1995.
....
... the Court has taken the opportunity
to review the Perry case and the Borst case and also to review
pertinent portions of these files.
....
But the State, defense
counsel, Mr. Frasch, no one brought up the question of restitution
concerning the [read-in burglary case].
It was first brought to the Court's attention by the March 2, 1995 letter
from Agent Bornbach.
... And it seems to me that the fact that it was
never raised, never brought to the Court's attention, no indication was made
that there was any type of request for restitution, certainly gives this Court
a compelling reason ....
Following a lengthy
discussion of the Perry and Borst decisions, the
court concluded that a failure to consider the issue of restitution in a
read-in case permitted the court to consider it outside the statutory time
frame.
This court considers the
trial court's statement that it did not make reference to the read-in when it
stated that restitution was inappropriate to be a finding of fact based upon
its review of the records of its own proceedings. The trial court determined that the meaning of its original
comment at sentencing was that Frasch should not receive a lengthy prison
sentence for a crime and also be burdened with restitution arising out of the
same conduct. This finding is not
clearly erroneous. Because the court
did not consider restitution for the read-in at the original sentence, it did
not violate the relevant statutory provisions relating to restitution.
We also reject Frasch's
challenge to the sentence based upon double jeopardy grounds. This issue was resolved contrary to Frasch's
contention in Perry. The
court therein held that an increase or addition to restitution after the
original sentence did not constitute double jeopardy where the defendant did
not have any reasonable expectation that restitution would not be imposed. Id. at 57-58, 510 N.W.2d at
727. The trial court in this case found
that the only reasonable expectation Frasch could have had concerning
restitution was that none would be ordered in the armed burglary for which he
was being sentenced. Because the
question of restitution in the read-in burglary had not been raised or
discussed, this court agrees.
As an alternative,
Frasch suggests the court improperly denied the order for restitution as a new
factor justifying sentence modification.
The trial court agreed with the parties that the restitution order
arguably qualified as a new factor for purposes of sentence modification. Nevertheless, the court decided that the
serious nature of the crimes for which Frasch was sentenced, and the fact that
he received considerably less than the maximum prison time allowed by law,
caused the court to defer to the Department of Corrections regarding Frasch's
release.
Sentence modification on
grounds of a "new factor" is a two-step process. State v. Franklin, 148 Wis.2d
1, 8, 434 N.W.2d 609, 611 (1989). Even
if a new factor is proven, the second step requires the circuit court to
determine whether that factor warrants a modification. Id. This decision is reviewed on an erroneous exercise of discretion
standard. Id. The trial court's decision that the modest
restitution order did not render Frasch's prison sentence unfair or unjust was
a "reasoned application of the appropriate legal standard to the relevant
facts in the case." Hedtcke
v. Sentry Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732
(1982). We therefore uphold the court's
discretionary decision.
By the Court.—Orders
affirmed.
Not recommended for
publication in the official reports.