Jan. 8, 2019 – The Wisconsin Supreme Court has upheld a restitution order of about $8,500 payable to a burglary victim, rejecting the defendant’s argument that the circuit court improperly considered prior, unproven burglaries in determining that amount.

Defendant Shawn Wiskerchen pled no contest to one count of burglary. On May 8, 2015, a neighbor discovered Wiskerchen in one of her bedroom closets.

After a struggle between the victim and Wiskerchen, police arrived and found him in a different neighbor’s yard. The circuit court sentenced Wiskerchen to five years in prison, four years of extended supervision, and ordered him to pay nearly $8,500 in restitution, concluding that the victim met her burden to prove that was the amount of her losses.

The victim had made insurance claims for stolen items, including jewelry with sentimental value. Although the insurance company valued the losses at about $22,279, she received only $13,791 based on policy limits covering the stolen property.

Wiskerchen argued that the judge’s restitution decision ran counter to Wis. Stat. section 973.20, which limits restitution to losses that result from a “crime considered at sentencing.” He said the judge considered prior, unproven burglaries of the home.

Police discovered that the home’s basement window had been modified to open from the outside with a screwdriver, and Wiskerchen had a bent screwdriver when he was arrested. Police also discovered a “nest” in the bedroom closet, and liquor bottles.

The victim believed Wiskerchen may have broken in on other occasions, and may have been hiding in the “nest” when she was home, severely eroding her sense of security. However, the victim did not notice any missing items before the May 8 burglary.

Wiskerchen’s lawyer argued that any restitution amount could only be based on items found on or near Wiskerchen’s person when police arrested him on May 8. That is, items possibly stolen on other occasions could not be considered, because the statute says restitution is tied to losses that result from the “crime considered at sentencing.”

The circuit court approved restitution of $8,500 based on the “nexus” between Wiskerchen’s conduct and the victim’s losses. An appeals court affirmed.

In State v. Wiskerchen, 2019 WI 1 (Jan. 4, 2019), the supreme court upheld (7-0) the restitution award, with a majority opinion and two concurrences filed.

“We conclude that although the circuit court did not itemize which stolen items were included in the award of $8478.41, the finding of fact that N.D. proved her loss is not clearly erroneous,” wrote Chief Justice Patience Roggensack for the majority.

“Crucially, there was no evidence presented at the restitution hearing that either he or anyone else had stolen any of the listed items from N.D.’s home on days other than May 8,” the chief justice explained.

The court of appeals had upheld the restitution award, holding that alleged prior but unproven burglaries could be considered at Wiskerchen’s restitution hearing since they were part of a “single course of criminal conduct.” But the majority said the circuit court, based on the restitution order and the hearing transcript, didn’t consider prior burglaries.

The circuit court merely determined that the victim met her burden to prove the amount of her loss, the majority concluded. She proved it, and that finding of fact was not clearly erroneous. The majority did not affirm the holding of the court of appeals.

Concurrences

Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, wrote a concurring opinion. They agreed with the restitution amount but disagreed with the majority’s analysis. Instead, they would have affirmed the court of appeals decision.

“Relying on our prior case law, I conclude that where a circuit court makes specific factual findings regarding uncharged conduct that is ‘related to’ the crime of conviction, and there is a causal nexus between the conduct and the loss, restitution is permissible for uncharged conduct,” Justice A.W. Bradley wrote.

A.W. Bradley said there was evidence to suggest Wiskerchen burglarized the house on various other occasions besides the occasion for which he was charged, and the circuit court was within its discretion to consider that as “related to” the May 8 burglary.

Justice Rebecca Bradley also concurred, writing separately to point out that a textual interpretation of the restitution statute supported the circuit court’s decision.