State v. Shawn T. Wiskerchen, 921 N.W.2d 730

Background

On May 8, 2015 Shawn T. Wiskerchen was arrested in N.D.'s home and pled no contest to burglary; he received prison and supervision terms.
After the entry, N.D. produced an itemized insurance claim listing $32,138.43 in missing property; insurer depreciated value and paid $13,791.
At a contested restitution hearing N.D. sought $32,138.43; the circuit court ordered restitution of $8,487.41.
Defense argued restitution must be limited to items proven stolen on May 8 (the crime considered at sentencing) and challenged consideration of alleged prior burglaries.
The circuit court found a nexus between Wiskerchen’s conduct and N.D.’s loss and that N.D. met her burden to prove $8,487.41; the court of appeals affirmed and the Wisconsin Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wis. Stat. § 973.20 authorized restitution to N.D.	Restitution statute allows award to any victim of a crime considered at sentencing; May 8 burglary qualifies.	N/A (statute permits restitution only for losses from crime considered at sentencing).	§973.20 authorizes restitution to N.D. because she was a victim of the May 8 burglary (a crime considered at sentencing).
Whether restitution may include losses from conduct outside the specific elements of the charged burglary	N.D. may recover for losses causally connected to the crime and defendant’s related course of conduct.	Restitution must be limited to items proven stolen on the date of the crime considered at sentencing (May 8).	Court adopts a broad reading: restitution may cover losses connected to the crime considered at sentencing (the defendant’s course of conduct), but here the circuit court’s factual finding sufficed.
Whether the circuit court’s finding that N.D. proved $8,487.41 was clearly erroneous	N.D. presented an itemized list and testimony tying the losses to the burglary.	Defense challenged provenance/date of items and argued insufficient proof that items were taken on May 8.	Finding that N.D. met burden for $8,487.41 is not clearly erroneous given record (no evidence showing items were taken on other dates).
Whether the circuit court misused discretion in setting restitution amount by considering alleged prior burglaries	Restitution order was grounded in statute and the evidence; court’s nexus finding was logical.	Court of appeals (and defendant) argued prior burglaries shouldn’t be considered absent read-in or proof.	Supreme Court affirms: circuit court did not apply wrong law or illogically interpret facts; restitution of $8,487.41 stands.

Key Cases Cited

State v. Canady, 234 Wis. 2d 261 (Ct. App. 2000) (restitution may encompass defendant’s entire course of conduct related to the crime)
State v. Madlock, 230 Wis. 2d 324 (Ct. App. 1999) (restitution statute must be construed broadly to compensate victims)
State v. Queever, 372 Wis. 2d 388 (Ct. App. 2016) (prior related burglaries can support restitution for protective measures/costs when court’s findings are not clearly erroneous)
State v. Rodriguez, 205 Wis. 2d 620 (Ct. App. 1996) (court may consider defendant’s entire course of conduct in restitution analysis)
State v. Fernandez, 316 Wis. 2d 598 (2009) (restitution orders reviewed for erroneous exercise of discretion)
State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (2004) (statutory interpretation principles)
Marder v. Board of Regents, 286 Wis. 2d 252 (2005) (statutory interpretation standard)
Phelps v. Physicians Ins. Co. of Wis., 319 Wis. 2d 1 (2009) (clearly erroneous standard for factual findings)
Royster-Clark, Inc. v. Olsen's Mill, Inc., 290 Wis. 2d 264 (2006) (weight and preponderance standard for factual findings)
State v. Behnke, 203 Wis. 2d 43 (Ct. App. 1996) (standard for reviewing discretionary restitution decisions)