State v. Muth

392 Wis.2d 578

945 N.W.2d 645

2020 WI 65

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Ryan M. MUTH, Defendant-Appellant-Cross-Petitioner.

No. 2018AP875-CR

Supreme Court of Wisconsin.

Oral Argument: April 1, 2020

Opinion Filed: July 7, 2020

For the plaintiff-respondent-petitioner, there were briefs filed by Hannah S. Jurss, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Hannah S. Jurss.

For the defendant-appellant-cross-petitioner, there were briefs filed by Andrew Mishlove and Mishlove & Stuckert, LLC, Glendale. There was an oral argument by Andrew Mishlove.

ROGGENSACK, C.J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, J., joined as to Parts II.A., B. and D., except for ¶¶58-60, and in which KELLY, J., joined as to Parts II.A., B., and D. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and REBECCA GRASSL BRADLEY, JJ., joined, and in which ZIEGLER, J., joined as to ¶¶63-70 and ¶¶72-78. KELLY, J., filed an opinion concurring in part and dissenting in part, in which HAGEDORN, J., joined as to Parts I. and II. HAGEDORN, J., filed a dissenting opinion.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review an unpublished decision of the court of appeals,¹ which affirmed in part the circuit court's² order that Ryan M. Muth pay restitution to the victims of his crime. Muth had argued that a civil settlement precluded the restitution order. The court of appeals reversed in part and remanded with directions to reduce the amount of restitution because the amount included income lost as a result of the spouses of Muth's victims missing work due to Muth's criminal conduct.

¶2 We agree with the court of appeals that the civil settlement did not preclude the circuit court from ordering restitution. Restitution is not a cause of action but a sanction for criminal conduct owned by the State; as such, victims cannot unilaterally terminate the State's interest in making them whole, rehabilitating the offender and deterring criminal conduct. However, the court of appeals erred by reversing in part and remanding with directions to reduce the amount of restitution. Wisconsin, as the State argued, is a marital property state; therefore, a victim suffers actual pecuniary damages when his or her spouse does not work because the victim is a member of the marital community that is affected by the loss of income. We conclude that the circuit court's restitution order was a reasonable exercise of discretion under the applicable law and facts presented. Accordingly, we affirm in part and reverse in part the court of appeals decision.

I. BACKGROUND

¶3 In March 2016, Muth drove drunk and collided with T.K.'s vehicle, which resulted in T.K.'s death. In April 2016, Muth and his insurance company reached a civil settlement with T.K.'s three adult children, H.M., K.M. and R.K. It stated, in part:

[H.M., K.M. and R.K.] for and in consideration of the sum of One Hundred Thousand and 00/100 Dollars ($100,000), the receipt whereof is hereby acknowledged, do hereby for myself, my heirs, executors, administrators, successors and assigns and any and all other persons, firms, employers, corporations, associations, or partnerships release, acquit and forever discharge Ryan Muth and Progressive Artisan & Truckers Casualty Insurance Company, of and from any and all claims, actions, causes of actions, demands, rights, damages, costs, loss of wages, expenses, hospital and medical expenses, accrued or unaccrued claims for loss of consortium, loss of support or affection, loss of society and companionship on account of or in any way growing out of, any and all known and unknown personal injuries and damages resulting from an automobile accident ....

The civil settlement did not enumerate what part of the $100,000 was to cover special damages and what part was to cover general damages, instead purporting to be a release from all liability. Each child received one-third of the $100,000.

¶4 In October 2016, Muth pled no contest to one count of homicide by intoxicated use of a vehicle with one or more prior operating-while-intoxicated offenses. The circuit court sentenced Muth to 13 years of initial confinement followed by 13 years of extended supervision.

¶5 In February 2017, the circuit court held a hearing on restitution, at which the three children sought compensation for various expenses, such as funeral costs. Regarding the civil settlement, the circuit court asked questions to determine what type of an agreement accompanied the payment from the insurance company. The court asked H.M.:

Q. And so part of the settlement -- in your mind, what did the settlement compensate you for?

A. To me, it was basically to -- trying to -- I don't want to say replace my mom, but the $100,000 was towards her life. Like I say, I don't want to try to replace, but giving us money for replacing her, what they valued her life at was $100,000.

H.M.'s husband was allowed to speak, though he was not under oath. Muth did not object. H.M.'s husband stated:

[R.M.]: Your Honor, may I say a word?

THE COURT: Yes, sir. Your name?

[R.M.]: [R.M.]

I was the main contact for the insurance companies contacting me. We had to deal with Progressive and State Farm because of our vehicle. Progressive, the way it was explained to me it, was that it was towards any civil suit. I was not under the stipulation that it was for any of the state criminal case at all.

THE COURT: The $100,000 was to resolve any civil?

[R.M.]: Civil, right.

THE COURT: Okay.

[R.M.]: Basically what they explained to me is they could not come after Progressive, they did not want to pay anything over $100,000. That is what Progressive told me.

The circuit court ordered restitution to the adult children after considering the civil settlement and Muth's claim that the settlement precluded restitution.

¶6 The circuit court granted two requests that are the subject of this dispute. H.M. and K.M. requested $2,600 and $6,480, respectively, as compensation for income lost as a result of their spouses missing work due to Muth's criminal conduct. H.M.'s spouse missed 13 eight-hour shifts, and he earned $25 per hour. K.M.'s spouse missed 54 hours of work, and he earned $120 per hour. In K.M.'s household, her spouse was the sole source of income.

¶7 Muth filed a written objection to all restitution on two grounds. First, he argued that the civil settlement precluded restitution to the adult children. Specifically, he argued accord and satisfaction arose from the insurance company payment and barred liability for restitution. He also argued that setoff of their claimed damages against the insurance company payment would preclude restitution as well.³ Second, he argued that T.K.'s sons-in-law were not victims, and, therefore, the circuit court should not have imposed restitution for their lost wages.

¶8 The State responded that restitution to the adult children was proper because Muth failed to prove that the children would receive a double recovery of special damages. The State further argued that H.M. and K.M. could be compensated for the income their spouses would have earned because Wisconsin is a marital property state.⁴

¶9 The circuit court upheld its restitution order. The circuit court acknowledged that victims are not permitted to receive a double recovery, but it rejected Muth's first argument because he had failed to prove that a double recovery of special damages would result from the imposition of restitution. The court explained that the civil settlement was "quite broad" and was "a release for both special damages and general damages." The circuit court found that H.M. and K.M. suffered both special and general damages and concluded that Muth did not present evidence "that particular amounts" of the civil settlement "were for general damages and other specific amounts were for special damages." Therefore, the circuit court concluded that the civil settlement did not preclude restitution by providing a double recovery of special damages.

¶10 Furthermore, while the circuit court agreed that the sons-in-law were not victims, it reasoned that "[l]oss of wages to the husband is a loss of a marital asset. If it damages him, it damages her." Because no one disputed that H.M. and K.M. were victims, the circuit court reasoned that marital property law authorized the imposition of restitution for income lost by their spouses missing work due to Muth's criminal conduct.

¶11 Muth appealed. In an unpublished per curiam decision, the court of appeals concluded that the civil settlement did not preclude restitution. State v. Muth, No. 2018AP875-CR, unpublished slip op., ¶10, 2019 WL 2377271 (Wis. Ct. App. June 6, 2019) (per curiam). However, the court reversed in part and remanded because it concluded that marital property law was inapplicable to Wisconsin's restitution statute. Id., ¶11.

¶12 The State petitioned for review, arguing that H.M. and K.M. could recover income lost as a result of their spouses missing work due to Muth's criminal conduct. Muth cross-petitioned, arguing that the civil settlement precluded restitution to the children. We granted the petition and cross-petition. We affirm in part and reverse in part the decision of the court of appeals.

II. DISCUSSION

A. Standard of Review

¶13 This case requires us to review a circuit court's discretionary restitution order and to interpret statutes. Material facts are not in dispute.

¶14 When a defendant argues the amount of restitution should be "offset or reduced for any reason," we review the circuit court's restitution order for an erroneous exercise of discretion. State v. Longmire, 2004 WI App 90, ¶16, 272 Wis. 2d 759, 681 N.W.2d 534 (citing State v. Johnson, 2002 WI App 166, ¶7, 256 Wis. 2d 871, 649 N.W.2d 284 ); see State v. Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120, 921 N.W.2d 730 (quoting State v. Fernandez, 2009 WI 29, ¶20, 316 Wis. 2d 598, 764 N.W.2d 509 ). We look...