State v. Demessie

1

State of Wisconsin, Plaintiff-Respondent, v. Hienok Demessie, Defendant-Appellant.

No. 2021AP2114-CR

Court of Appeals of Wisconsin, District III

February 14, 2023

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Barron County: No 2019CF410 JAMES C. BABLER, Judge.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM

¶1 Hienok Demessie appeals from a judgment convicting him of three felonies. The sole issue on appeal is whether the circuit court erroneously exercised its discretion when it imposed a substantial restitution award to be paid to an insurer notwithstanding Demessie's claimed indigency and the outright dismissal of a charge related to the restitution award. We conclude the court did not erroneously exercise its discretion when ordering restitution, and we affirm the judgment of conviction.

BACKGROUND

¶2 The State charged Demessie with arson of a building, two counts of burglary, theft of property worth more than $10,000, possession of burglarious tools, criminal damage to property worth over $2,500, and taking and driving a vehicle without the owner's consent. Relevant to this appeal, the arson charge was based upon allegations that Demessie intentionally damaged "by means of fire" a building owned by Ignition Enterprises LLC, and the property damage charge was based upon allegations that Demessie caused "total loss to building, equipment and inventory at [a] laundromat, belonging to Ignition Enterprises LLC." Demessie eventually entered guilty pleas to the property damage charge, one count each of burglary of a building and taking and driving a vehicle without owner's consent, in exchange for the outright dismissal of the arson charge and the dismissal of the remaining counts as read-in offenses.

¶3 The plea agreement did not include a stipulation as to restitution. At the sentencing hearing, the circuit court took evidence related to restitution, and the parties also addressed the court and commented on a presentence investigation report (PSI).

¶4 The State presented evidence from a fire investigator, a police detective, and an insurance adjuster. The fire investigator testified that the damage to the building was intentionally caused by a fire ignited by the application of open flame to ordinary combustibles in a storage room of a laundromat located in the building at issue. The detective testified that Demessie was apprehended in a vehicle that was seen leaving the parking lot of an adjoining building at the time of the fire. In the front seat of the vehicle was a duffle bag containing items stolen from the storage room where the fire had originated. The tread pattern on the boots Demessie was wearing when apprehended matched a set of footprints from the crime scene. A jail inmate also relayed to police several incriminating statements that Demessie made about his involvement in the arson, including details that were not public. Finally, the insurance adjuster testified and submitted documents showing that Encova Insurance had paid a total of $854,640.14 for claims of damage to the building and its contents as well as a resulting loss of business income caused by the fire.

¶5 Demessie did not testify or present any witnesses. Demessie's trial counsel asserted it was "clear" that Demessie was indigent based upon the PSI (one page of which he offered to introduce into evidence), Demessie's representation by the State Public Defender, and the likelihood that Demessie was about to be incarcerated. Trial counsel then argued that justice did not require having an indigent defendant reimburse an insurer in an amount that would "drag him down emotionally and financially for the rest of his life."

¶6 The PSI related that Demessie had a GED, some technical college classes and training in carpentry and drywall installation, but that he was last employed in 2018, when he lost a job due to suspected drug use. A COMPAS^[1] evaluation cited in the PSI concluded that Demessie "may have sufficient skills to obtain or maintain a job and to manage [himself] financially." Demessie told the PSI author that he was behind in child support payments due to his unemployment and student loan debt, but that he believed he would be able to gain employment in the future.

¶7 The circuit court determined, based both upon Demessie's guilty plea and the evidence produced at the hearing, that Demessie had in fact started the fire underlying the property damage charge and that Encova Insurance had compensated the victim in the amount of $854,640.14 for losses that the victim had sustained as a result of the fire. The court then observed that it was "a fallacy to say that the insurance company isn't a victim." The court concluded that justice required restitution to Encova Insurance because the losses were so substantial and giving back lost sums would give Demessie "a sense of satisfaction and accomplishment," contributing to his rehabilitation. The court acknowledged that it would be "pretty difficult" for the insurance company to collect on the restitution award, but it noted that Demessie's ability to pay could be taken into account when setting the amount of restitution payments to be made while Demessie was on extended supervision and that any remaining amount could be converted to a civil judgment.

¶8 Adding $2,500 in restitution to the victim for the insurance deductible, plus mandatory surcharges, the circuit court ordered Demessie to pay a total of $942,854.15 in restitution. Demessie challenges the restitution order on appeal.

DISCUSSION

¶9 A circuit court is required by statute to order a criminal defendant to make full or partial restitution to compensate a victim for losses suffered as a result of any "crime considered at sentencing," unless the court finds, and states on the record, a substantial reason not to do so. Wis.Stat. § 973.20(1r) (2019-20);^[2]State v Anderson, 215 Wis.2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). In addition, "if justice so requires," the court may order restitution to reimburse any insurer, surety or other person who has already compensated a victim for such a loss. Sec. 973.20(5)(d). In determining what amount of restitution is warranted, a circuit court shall take into account: (1) the amount of loss suffered by the victim as a result of a crime considered at sentencing; (2) the financial resources of the defendant; (3) the present and future earning capacity of the defendant; (4) the needs and earning ability of the defendant's dependents; and (5) any other factors the court deems appropriate. Sec. 973.20(13)(a). People or entities claiming restitution bear the burden of proving their losses while the defendant bears the burden of demonstrating an inability to pay. Sec. 973.20(14).

¶10 The scope of a circuit court's authority to order restitution presents a question of statutory interpretation subject to de novo review. State v. Ziegler, 2005 WI.App. 69, ¶10, 280 Wis.2d 860, 695 N.W.2d 895. However, determinations as to the amount of restitution, whether the defendant's conduct was a substantial factor in causing any claimed expenses, and whether justice requires compensation to an insurance company all lie within the court's discretion. Id.; State v. Fernandez, 2009 WI 29, ¶62, 316 Wis.2d 598, 764 N.W.2d 509. We will uphold a discretionary restitution award as long as the court applied the correct legal standard to a logical interpretation of the facts of record. State v. Muth, 2020 WI 65, ¶14, 392 Wis.2d 578, 945 N.W.2d 645. We will also uphold findings of fact underlying the restitution award unless they are clearly erroneous. State v. Queever, 2016 WI.App. 87, ¶13, 372 Wis.2d 388, 887 N.W.2d 912.

¶11 Here, Demessie contends that the circuit court erroneously exercised its discretion by: (1) determining that the victim's losses were caused by a crime considered at sentencing; (2) imposing an amount of restitution beyond the defendant's ability to pay; and (3) treating the insurance company as a "victim" entitled to restitution. We will address each contention in turn.

¶12 Demessie first argues...