PUBLISHED OPINION
Case No.: 94-3041-CR
†Position for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
MICHAEL T. SCHMALING,
Defendant‑Appellant.†
Submitted on Briefs: August 31, 1995
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: December 20, 1995
Opinion Filed: December
20, 1995
Source of APPEAL Appeal from a judgment
and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: DENNIS J. FLYNN
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS On behalf of the defendant-appellant, the
cause was submitted on the briefs of Donna L. Hintze, assistant
state public defender.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Daniel
J. O'Brien, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 20, 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(1), Stats. |
This opinion is
subject to further editing. If
published, the official version will appear in the bound volume of the
Official Reports. |
No.
94‑3041‑CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
MICHAEL T. SCHMALING,
Defendant‑Appellant.
APPEAL
from a judgment and an order of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Judgment affirmed in part, reversed in
part; order reversed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
ANDERSON,
P.J. Michael T. Schmaling appeals from an order denying his motion for
resentencing or, in the alternative, for a modification of his sentence. Schmaling insists that the trial court erred
when it ordered him to pay restitution to Racine County for the cost of
fighting a fire and cleaning up after the fire and that he pay the costs
incurred by the State in retaining an accident reconstruction expert in
preparation for trial. We reverse that
portion of the judgment that requires Schmaling to pay restitution for the
costs of fire fighting and cleanup because Racine County is not a “victim” of a
crime entitled to restitution. We
affirm the portion of the judgment requiring Schmaling to reimburse Racine
County for the costs of an accident reconstruction expert retained for trial
preparation.
Schmaling
originally faced seven felony counts as the consequence of an accident on I-94
in Racine County that resulted in a semitanker leaving the highway and bursting
into flames causing the death of the driver.
As a result of plea negotiations, the State dismissed two counts and
Schmaling entered no contest pleas to the remaining counts. The trial court imposed a total sentence of
eighteen years in the Wisconsin prison system.
As conditions of the sentence, the court ordered Schmaling to pay
restitution, including the costs incurred by Racine County in fighting the fire
caused by the accident and the costs incurred by Racine County in retaining an
accident reconstruction expert to prepare for trial.
Schmaling
filed a postconviction motion pursuant to Rule
809.30(2)(h), Stats., seeking
either a resentencing or a modification of his sentence. Schmaling contended that the trial court
erroneously exercised its discretion when it ordered him to make restitution to
Racine County for the costs of fighting and cleaning up the fire and the costs
incurred in retaining an accident reconstruction expert. He argued that Racine County was not a
victim of the crimes for which he was sentenced and was not entitled to
restitution under § 973.20, Stats.[1] The trial court held that the costs of
fighting the fire and cleanup were recoverable either because Racine County was
a victim under § 973.20(1), or as special damages that Racine County could
recover in a civil lawsuit under § 973.20(5)(a). The trial court also held that § 973.06(1)(c), Stats., authorized the State to recover
the costs incurred in retaining an accident reconstruction expert even if there
had been no trial. Schmaling appeals
the trial court’s denial of his motion.
Schmaling’s
challenges are to the trial court’s authority to order him to pay restitution to
Racine County. These challenges are
questions of law that we review without deference to the trial court. See State v. Boffer,
158 Wis.2d 655, 658, 462 N.W.2d 906, 907 (Ct. App. 1990).
Restitution
in criminal cases is governed by § 973.20, Stats., which imposes a mandatory duty on the sentencing
court to order restitution to the victim of a crime or to the victim’s estate
if the victim is deceased.[2] The statute also requires the defendant to
“[p]ay all special damages ¼ 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.” Section 973.20(5)(a).
The
State asserts that the expenses of fighting and cleaning up the fire were
directly caused by Schmaling's criminal conduct, and therefore the expenses
should be considered special damages under § 973.20(5)(a), Stats., and awarded to Racine
County. Although the award of
restitution under § 973.20(5) can be made “in any case” and the expenses
incurred by Racine County may be considered special damages under
§ 973.20(5)(a), the statute limits special damages to those arising out of
the defendant’s “conduct in the commission of the crime.” This limitation refers to § 973.20(1)
which requires the court to award restitution to “any victim of the crime
¼.” (Emphasis added.) See State v. Evans, 181 Wis.2d 978, 983-84, 512
N.W.2d 259, 261 (Ct. App. 1994). In Evans,
the defendant was ordered to reimburse the State for drug “buy money” as
“costs” under § 973.06, Stats. The State argued on appeal that the
reimbursement of the “buy money” should be considered restitution. Evans, 181 Wis.2d at 980-81,
512 N.W.2d at 260. We rejected the
State’s argument noting the narrow application of the restitution statute to
“victims” and unequivocally held that although the public’s funds advanced as
drug “buy money” were lost, the public was not a “victim.” Id. at 983-84, 512 N.W.2d at
261. Since Racine County was not the
actual victim of the crimes Schmaling committed, it cannot recover restitution
for the fire fighting and cleanup expenses.[3]
Additionally,
“restitution to a party with no relationship on the record to the crime of
conviction ¼ is improper.” State
v. Mattes, 175 Wis.2d 572, 581, 499 N.W.2d 711, 715 (Ct. App.
1993). The crimes Schmaling was
convicted of consisted of second-degree reckless homicide and four counts of
second-degree recklessly endangering safety, none of which were committed
against Racine County. Therefore,
requiring Schmaling to pay restitution to Racine County, which has no
relationship to the crimes he committed, would be improper.
Schmaling
also challenges the portion of his sentence requiring him to reimburse Racine
County for the expenses incurred in retaining an accident reconstruction
expert. Before getting to the merits of
his challenge, we will first address the State’s contention that Schmaling has
waived any objection he might have. The
State points out that at the plea hearing Schmaling’s trial counsel acquiesced
to the payment of these costs in discussing the terms of the plea agreement,
and at sentencing counsel did not contemporaneously object when the trial court
imposed reimbursement of the expert witness fees. The State concludes that under the circumstances Schmaling has
forfeited any right to this court reviewing his challenge. In response, Schmaling asserts that the
trial court was without lawful authority to impose reimbursement of these fees
under § 973.06(1)(c), Stats., and
that he did not waive his right to challenge an illegal order of the court.
We
agree with the State that Schmaling waived his right to appeal the payment of
the reconstruction expert and is judicially estopped from raising the issue
after affirmatively agreeing to make such payments. However, we address this issue in the interest of judicial
economy because it is of statewide concern.
See State ex rel. Journal/Sentinel, Inc. v. Jennings, 141
Wis.2d 618, 620, 415 N.W.2d 518, 519 (1987).
Originally,
the State requested restitution from Schmaling for the reconstruction expert’s
fee under § 973.20, Stats.,
but then distinguished this as a cost to be paid under § 973.06(1)(c), Stats.
The trial court properly ordered Schmaling to pay the $4500 cost for the
State's reconstruction expert witness under § 973.06(1)(c), which provides
in pertinent part, “the costs taxable against the defendant shall consist of
the following items and no others: ¼ (c) Fees and disbursements allowed by the court to
expert witnesses.”
Schmaling
argues that, “The right to recover costs is not synonymous with the right to
recover the expense of litigation. Such
right is statutory in nature, and to the extent that the statute does not
authorize the recovery of specific costs, they are not recoverable.” See State v. Amato, 126
Wis.2d 212, 217, 376 N.W.2d 75, 78 (Ct. App. 1985). However, the State is attempting to recover costs from Schmaling
for an expert witness, which is a cost specifically enumerated in
§ 973.06(1)(c), Stats. Thus, the costs were correctly assessed by
the trial court to Schmaling.
We
also reject Schmaling's contention that the party retaining the witness must
compensate that witness and the only time a court may order compensation under
§ 973.06(1)(c), Stats., is
when the expert is appointed by the court.
The statute permits recovering expert witness fees when it is “allowed”
by the court and does not limit recovery to court appointed experts.
By the
Court.—Judgment affirmed in
part, reversed in part; order reversed.
[1] Schmaling also
contended that the trial court erred when it imposed the support of the
victim’s minor children as restitution because although the children were
affected by his criminal conduct, they were not the “victims” of his criminal
conduct. The trial court held that it
was not error to require Schmaling to contribute to the support of the victim’s
minor children. Schmaling has chosen
not to appeal this portion of the restitution order. In addition, Schmaling abandons the argument made below that the
eighteen-year sentence was unduly harsh and unconscionable.
[2] Section
973.20(1), Stats., provides in
pertinent part:
When imposing sentence ¼ for any crime, the
court ¼ 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.
[3] The attorney
general cites several federal cases to argue that government entities can be
considered “passive victims.” However,
we reject this argument because it is based, in part, on 1990 amendments to the
federal “Victim and Witness Protection Act,” 18 U.S.C. §§ 3663-3664, that
defined “victim” as one “directly harmed by the defendant’s criminal
conduct.” See United
States v. Gibbens, 25 F.3d 28, 34 (1st Cir. 1994). Although our restitution statute is modeled
after the VWPA, it does not contain such a definition; and, the adoption of a
definition of “victim” that would encompass both individuals and governmental
entities is a decision best left to the legislature. See State v. Evans, 181 Wis.2d 978, 984, 512 N.W.2d
259, 261 (Ct. App. 1994).