A Milwaukee County judge erred when he ordered a restitution amount without any evidence to back it up, the Court of Appeals ruled Thursday.
The three-judge District I appellate panel, in an unsigned opinion, remanded the case back to Circuit Court for a new hearing on the restitution amount.
The panel included Appellate Judges Maxine White, Timothy Dugan, and M. Joseph Donald.
Circuit Judge Michael Hanrahan ordered Andrew Phillips to pay $2,100 for items the victim, D.H., said were never recovered after Phillips helped carjack D.H.'s car.
Phillips, in a plea deal, pleaded guilty to theft from a person as a party to a crime. Hanrahan sentenced him to 2.5 years in prison and four years of extended supervision.
At the sentencing hearing, D.H. testified that the missing items included a leather jacket costing about $1,200 when he bought it a year earlier and a barber kit he bought for $2,000 when he was attending the Milwaukee Area Technical College in 2010. He also said he had about $20 in change and $300 in cash in the car. There were four scratches in the care when it was returned to him, he said.
"D.H. testified that he told the police about the missing coat and barber kit, but not the cash," the District I Court of Appeals panel said. "He did not have a receipt for the coat. He replaced the barber kit with a smaller one for $150."
Hanrahan said $2,100 was the appropriate restitution amount.
"The court found that the leather coat was worth $900 due to wear and tear," the panel said. "With regard to the barber kit, the court found that because of the age and used items in the original kit, its reasonable value in an online marketplace would be $1,000. The court found that the damage to the car was worth $100 based on his credible testimony of damage, but without any estimates to repair it or receipts of repair. The court found it incredible that D.H. kept more than $300 in cash in the car, and instead found that $100 was reasonable."
While the judge had discretion in setting restitution, he needed some facts to back it up, the panel said. The record did not show any evidence of any. Hanrahan, for example, found that "the value of the used and decade-old barber kit was undoubtedly less than the new purchase price, but the court’s valuation is not based on facts of record or D.H.’s testimony," the panel said.
The $100 awarded for damage to the car was made even though "D.H. did not testify that he even had a quote to have the scratches repaired."
The panel suggested the D.A.'s case represent the victim to help determine the new restitution amount. Under state law, the burden of getting information to substantiate the amount shifts from the D.A.'s office to the victim after the initial sentencing hearing "unless the court orders the district attorney to represent the victim," the panel wrote. "Here, we believe it appropriate for the circuit court to order the district attorney to represent the victim."
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