State v. Lokken

389 Wis.2d 103

936 N.W.2d 398 (Table)

2019 WI App 58

STATE of Wisconsin, Plaintiff-Respondent,

v.Larry C. LOKKEN, Defendant-Appellant.^†

Appeal No. 2017AP2087-CR

Court of Appeals of Wisconsin.

DATED AND FILED September 17, 2019

SEIDL, J.

¶1 Larry Lokken appeals a judgment convicting him of three counts of misconduct in office and five counts of theft in a business setting, as a party to the crime, each of an amount greater than $10,000. He also appeals an order denying his motion for postconviction relief. Lokken argues that the circuit court unlawfully sentenced him on one of the theft counts and that he is therefore entitled to resentencing on all counts before a different judge. Specifically, Lokken asserts the court: (1) imposed a sentence unauthorized by statute; (2) ordered an unreasonable amount of restitution as a condition of his probation; and (3) inadequately explained how its sentence met the minimum custody standard.

¶2 We reject Lokken’s arguments, with one exception. Namely, we agree with Lokken that the circuit court exceeded its authority by ordering that a stay on an imposed and stayed sentence is "to be lifted" if Lokken fails to satisfy a condition of his probation. We therefore affirm in part, reverse in part, and remand for the court to amend the judgment of conviction to conform to this decision.¹

BACKGROUND

¶3 A criminal complaint charged Lokken and his co-defendant, Kay Onarheim, each with eleven counts of theft in a business setting, as parties to the crime, each of an amount greater than $10,000, and with three counts of misconduct in office. The complaint alleged that Lokken, the long-time Eau Claire County Treasurer, and Onarheim, Lokken’s office manager, stole $625,758.22 from the county between 2011 and 2013.

¶4 At Lokken’s initial appearance, the State requested that the circuit court impose a $250,000 cash bond.² In support, the State argued that Lokken was currently selling properties he owned in Wisconsin and Florida and that he had recently made comments indicating he intended to "live somewhere tucked away after those properties are sold." Lokken’s counsel responded that although Lokken did intend to sell those properties so that he could "buy a larger place" in Florida, he was "not planning on moving out of the country or hiding from anyone." Ultimately, the court imposed a $7500 cash bond, which Lokken posted.

¶5 Two months later, Lokken moved the circuit court to modify a condition of his bond that restricted his out-of-county travel so that he could travel to Florida to finalize the purchase of a new home. The court granted this request.

¶6 The parties subsequently reached a plea agreement, which required Lokken to plead no contest to the three counts of misconduct in office and to five of the theft counts. Further, the agreement required Lokken to stipulate to paying $625,758.22 in restitution. In exchange, the State agreed to: (1) recommend that the remaining charges against Lokken be dismissed and read in; (2) file no additional charges against Lokken arising out of the same course of conduct; (3) file no charges against Lokken’s wife; and (4) cap its sentence recommendation at six-and-one-half years’ initial confinement and seven years’ extended supervision.

¶7 On November 9, 2015, the circuit court accepted Lokken’s no-contest pleas to the three counts of misconduct in office and five of the theft counts. The court then set the matter for sentencing on January 21, 2016.

¶8 On December 18, 2015, the circuit court held a status conference for both Lokken and Onarheim.³ During this hearing, the court informed the parties that it "perceive[d]" repayment of the stolen funds to be the "first thing" on the list of public concerns at sentencing. To that end, the court stated it "was thinking that it might behoove somebody to ... have an accountant" investigate and determine "where [Lokken’s and Onarheim’s] assets are ... where they stand."

¶9 Onarheim’s counsel then informed the circuit court that she was "placing her home for sale to pay all the proceeds to the county." In turn, Lokken’s counsel informed the court that Lokken’s Wisconsin home was still for sale, but that his Florida home had been sold and "another purchased with those proceeds."

¶10 After that discussion, the circuit court stated it "sense[d] an increased tension" in the community. The court also noted that public threats had been made against Lokken. Accordingly, the court decided to revoke both Lokken’s and Onarheim’s bonds, stating they would be "safer as individuals incarcerated." The court further justified its decision to revoke bond by stating it had "not heard anything that says [Lokken or Onarheim] were using the opportunity of being out on bond to earnestly come up with finances [to] make the restitution payment."⁴

¶11 The presentence investigation report (PSI) recommended that "paying the court-ordered restitution should be Mr. Lokken’s highest priority and area of need." An alternate defense PSI submitted by Lokken also stated that Lokken had "the ability and willingness to pay restitution."

¶12 At sentencing, the circuit court began by confirming with Lokken and the State that they were stipulating to a restitution amount of $625,758.22, joint and several with Onarheim. The State then recommended a sentence consistent with the plea agreement. While making its sentencing recommendation, the State noted that although the charged offenses covered only $625,758.22 in missing funds, further investigation had "determined ... that an additional amount of $762,579.21 was missing."

¶13 Lokken’s counsel argued for a sentence of "long-term probation ... and that he pay the restitution." Regarding Lokken’s ability to pay, counsel informed the circuit court that Lokken had recently sold an automobile for $10,000, all of which proceeds Lokken intended to contribute toward the restitution ordered by the court. Counsel also stated that "just yesterday an offer, a cash offer has been made on the [Wisconsin] home ... so assuming that that can be consummated, those proceeds will be going to [the county]."

¶14 The circuit court imposed a bifurcated prison sentence totaling nine and one-half years’ initial confinement and eleven years’ extended supervision. This prison sentence was comprised of consecutive sentences on four of the counts to which Lokken pled no contest: the three misconduct in public office counts and one of the theft counts. The court withheld sentence on three of the four remaining theft counts and imposed ten years’ probation, concurrent on each count and concurrent with the prison sentence.

¶15 As to the final theft count (Count 2), the circuit court imposed and stayed a sentence of five years’ initial confinement and five years’ extended supervision, consecutive to the prison sentence.⁵ The court then placed Lokken on ten years’ probation on Count 2, explaining:

On [Count 2] of the probation, I put conditional jail time of five years initial confinement [and] five years extended supervision consecutive to [the prison sentence] ... imposed but stayed.

....

The stay on the conditional jail on the probation, conditional prison actually, will be lifted unless the restitution joint and several is paid in full within four-and-a-half years.^[6]

In accordance with the court’s oral pronouncement, the written judgment of conviction states: "Count 2, 5 years Prison Imposed and Stayed ~ Stay to be lifted if restitution joint and several not paid in full within 4.5 years."

¶16 Lokken filed a postconviction motion seeking resentencing before a different judge. As grounds, he argued that the circuit court had imposed an illegal sentence on Count 2 and, on all counts, had failed to adequately explain its sentence. He also appeared to argue that, should resentencing be granted, Judge Theisen should be disqualified for being both subjectively and objectively biased. The court denied Lokken’s motion in a written decision. Lokken now appeals.

DISCUSSION

I. Legality of the Count 2 sentence

¶17 On appeal, Lokken first argues that the circuit court "imposed a prison/probation hybrid [on Count 2] that is unlawful because it is not authorized by statute." Generally, sentencing is a matter committed to the circuit court’s discretion. State v. Holloway , 202 Wis. 2d 694, 697, 551 N.W.2d 841 (Ct. App. 1996). However, the ability of a court to impose a criminal disposition must be derived from statutory authority. State v. Galvan , 2007 WI App 173, ¶7, 304 Wis. 2d 466, 736 N.W.2d 890. As such, we review a claim that a particular disposition contravenes a court’s statutory authority de novo. Holloway , 202 Wis. 2d at 697.

¶18 WISCONSIN STAT. § 973.09(1)(a) (2017-18)⁷ authorizes probation as a possible disposition for an individual who has been convicted of a crime. See State v. Schwind , 2019 WI 48, ¶24, 386 Wis. 2d 526, 926 N.W.2d 742. Under that statute, "the legislature has chosen to allow sentencing courts to either withhold sentencing, or impose a sentence but stay its execution, and instead release the individual into the community subject to ‘any conditions which appear to be reasonable and appropriate’ to the court." Id. (quoting § 973.09(1)(a) ). "Reasonable and appropriate conditions of probation may, in the circuit court’s discretion, include a period of confinement not to exceed one year." Id. , ¶24 n.4 (citing § 973.09(4)(a) ).

¶19 Lokken contends that the circuit court’s sentence on Count 2 violated WIS. STAT. § 973.09(4)(a) because it included an incarceration condition of probation in excess of one year. He reasons that his five-year terms of imprisonment and extended supervision are conditional "in the sense ... [that] custody is triggered at the 4.5 year mark unless full restitution is paid beforehand."

¶20 We reject Lokken’s argument because it confuses a consequence of his failure to abide by a condition of probation with a condition of the probation itself.⁸ To explain, the circuit court did not order that Lokken serve a...