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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                               This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
August 25, 2004
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                        Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                 and RULE 809.62.
                                                                                                                                                 Cir. Ct. No.   02CF001174
Appeal No.                                                                                    04-0075-CR
STATE OF WISCONSIN                                                                                                                               IN COURT OF APPEALS
                                                                                                                                                 DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JUSTIN DAVID SCHWARTZ,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Racine County:
ALLAN B. TORHORST, Judge.   Affirmed.
¶1                                                                                            ANDERSON,  P.J.1                                   Justin  David  Schwartz  appeals  from  an
amended judgment of conviction for one count of misdemeanor theft.   On appeal,
he argues that the trial court erred in holding that it had the authority to amend the
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2001-02).
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.




No.   04-0075-CR
original sentence to include restitution.   We conclude that because the trial court
did  not  state  its  reasons  for  failing  to  provide  for  restitution  in  the  original
sentence, the original sentence was an unlawful sentence and the court possessed
the inherent authority to correct its first judgment by amending the sentence to
include restitution.   We affirm the amended judgment.
FACTS
¶2                                                                                              The relevant facts are undisputed.   On October 24, 2002, the State
filed a two-count criminal complaint, alleging Schwartz had been a party to a
crime of misdemeanor theft and had also received stolen property with value
between                                                                                         $1000   and                                                           $2500   dollars.   A   plea   hearing   was   held   on
December  10,  2002.    At  the  beginning  of  the  hearing,  the  public  defender
explained to the court that an agreement had been reached between the parties and
that Schwartz was prepared to change his plea.   The public defender explained to
the court that John Miller Carroll, the victim of the theft, had filed a civil suit for
damages and had received payments from both Schwartz and Schwartz’s mother’s
insurer as well as other sums from other parties.   The public defender provided the
court with the releases from liability, which applied solely to the civil suit.   Both
parties represented to the court that those payments had taken care of Schwartz’s
liability for restitution.    The district attorney then explained to the court that
sentencing would need to be continued because Carroll was not present and the
State had informed Carroll of the plea, but it had not provided notice to Carroll
that sentencing would occur.
¶3                                                                                              The court accepted Schwartz’s no contest plea and found him guilty
of misdemeanor theft.   The second count was dismissed and read in.   The court set
a sentencing date of January 6, 2003.
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No.   04-0075-CR
¶4                                                                                           At the January 6 sentencing hearing, the district attorney stated that
the district attorney’s office had complied with WIS. STAT. ch.  950, the victim
rights chapter.   Carroll, however, did not appear at the January 6 sentencing.   He
later  explained  to  the  court  that  he  did  not  appear  at  the  sentencing  hearing
because the State informed him that it would be requesting an adjournment of the
sentencing to a later date.
¶5                                                                                           Upon the court’s inquiry, the district attorney informed the court that
he  was  not  prepared  to  proceed  to  sentencing  because  he  needed  to  obtain
information about pending charges against Schwartz in another county.   After the
court obtained the relevant information, the case proceeded to sentencing.   The
district attorney stated the terms of the plea agreement, which included a withheld
sentence and an eighteen-month term of probation with several conditions.   The
district attorney then concluded:
I believe that in an attempt to make things right [Schwartz]
did come up with a very large chunk of restitution to the
point where I believe his share has been satisfied and the
State is not recommending that he pay any more restitution.
The public defender also represented to the court that “restitution has been paid by
Mr. Schwartz.”
¶6                                                                                           The court proceeded to sentence Schwartz to a six-month jail term,
which was stayed, and a two-year term of probation with a variety of conditions.
In handing down the sentence, the court did not order restitution nor did it discuss
restitution at all.   The court did not state why it chose not to impose restitution.
The court signed the judgment of conviction on January 10, 2003.
¶7                                                                                           On February 7, the court received a letter from Carroll.   In the letter,
Carroll objected to the State’s representation that restitution issues were satisfied
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No.   04-0075-CR
and  requested  a  restitution  hearing.    The  court  held  a  hearing  on  March  13
regarding the victim’s restitution request.    At the hearing, the public defender
argued that the court did not have the authority to hold a hearing on restitution.
The court set a hearing for April 28 to hear arguments regarding whether it could
even hold a restitution hearing.   Subsequently, Schwartz filed a motion to deny the
restitution hearing.   He cited to WIS. STAT. § 950.10(2) as grounds that the court
was barred from modifying the judgment of conviction.2
¶8                                                                                        At the April  28 motion hearing, the court found that WIS. STAT.
§ 950.10(2) did not apply to the facts of this case because Carroll was not denied a
“right,” to which the statute refers, but instead was denied an “opportunity” which
is not covered by the statute.   The court ordered that a restitution hearing take
place.    The restitution hearing took place on May  19.    Carroll testified.    On
May 27, the court issued a written decision in which it ordered the judgment of
conviction to be amended to reflect a  $4615 balance of restitution due.3    The
amended judgment of conviction imposing the restitution was filed on May 28.
STANDARD OF REVIEW
¶9                                                                                        Whether the trial court had the authority to amend the sentence is a
question of law.   See State v. Martin, 121 Wis. 2d 670, 672-73, 360 N.W.2d 43
2  WISCONSIN STAT. § 950.10(2) provides in pertinent part:
A failure to provide a right, service or notice to a victim under
this chapter or ch.  938 or under article I, section  9m, of the
Wisconsin  constitution  is  not  a  ground  for  an  appeal  of  a
judgment of conviction or sentence and is not grounds for any
court to reverse or modify a judgment of conviction or sentence.
3  The amount of restitution ordered is not contested in this appeal.
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No.   04-0075-CR
(1985).   We review questions of law independent of the trial court.   Milas v. Labor
Ass’n of Wis., Inc., 214 Wis. 2d 1, 8, 571 N.W.2d 656 (1997).
DISCUSSION
¶10    On appeal, the parties pick up where they left off at the April 28
motion hearing.   Schwartz submits that WIS. STAT. § 950.10(2), which states that a
trial court cannot reopen a judgment on the basis that a victim was denied a right,
service  or  notice  under  WIS.  STAT.  ch. 950,  precludes  the  trial  court  from
amending the judgment to include restitution as part of Schwartz’s sentence.   The
State responds that § 950.10(2) does not apply.   The State reasons that Carroll was
not denied the rights, services and notice referred to in § 950.10(2), but rather was
denied the opportunity to exercise the right to provide the court with accurate
restitution information.    Because we conclude that the sentence was unlawful
pursuant to WIS. STAT.  § 973.20(1r) and, therefore, the court had the inherent
power to correct the sentence by directing that Schwartz pay restitution, we need
not address the merits of the parties’ claims.
¶11    WISCONSIN STAT. § 973.20(1r) provides in relevant part:
(1r) When imposing sentence or ordering probation for
any crime … for which the defendant was convicted, the
court, in addition to any other penalty authorized by law,
shall order the defendant to make full or partial restitution
under this section to any victim of a crime considered at
sentencing … unless the court finds substantial reason not
to do so and states the reason on the record.                                           (Emphasis
added).
The direction that when imposing sentence or ordering probation the court “shall
order  the  defendant  to  make  full  or  partial  restitution,”  is  unambiguously
mandatory.   State v. Borst, 181 Wis. 2d 118, 122, 510 N.W.2d 739.   The statute
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No.   04-0075-CR
mandates that the court shall impose restitution unless it finds a substantial reason
not to do so and states the reason on the record.  Id. at 122-23.
¶12    In Borst, our supreme court wrestled with the question of whether a
trial court had the power to reopen a judgment of conviction and amend a sentence
to  provide  for  restitution.    Id.  at                                                    120.    There,  the  trial  court  sentenced  the
defendant without providing for restitution.   Id.   After sentencing, the State moved
that the court order restitution.   Id.   The trial court amended the original judgment
of conviction to reflect restitution.   Id.   The defendant then moved to modify his
sentence on the grounds that the trial court lacked jurisdiction to order restitution
after it had sentenced him without ordering restitution.   Id. at 121.   The trial court
ruled that restitution was a new factor, which the court had intended to order but
had  been  inadvertently  omitted  from  the  original  sentence,  and  denied  the
defendant’s motion.   Id.
¶13    On  appeal,  our  supreme  court  held  that  the  trial  court  had  the
inherent power to amend its original sentence to include restitution.   Id. at 123.
The court reasoned that because WIS. STAT. § 973.20 imposes a mandatory duty
on a sentencing court to provide for restitution, the original sentence was “illegal”
in the sense that it was incomplete without restitution or the explanation required
by  the  statute.    Borst,  181  Wis.  2d  at  123.    Because  the  court  reached  this
conclusion  and  it  has  the  authority  to  affirm  a  correct  decision  on  different
grounds, the court determined that it did not need to reach the trial court’s holding
that a new factor justified modification of the sentence.  Id. at 124.
¶14    Here, as in Borst, the original sentence in this case was unlawful, in
the sense that the court failed in its mandatory duty to order restitution or to give
its reasons on the record for not doing so.   While this case differs from Borst
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No.   04-0075-CR
because the parties in this case did discuss restitution at the sentencing hearing, the
fact remains that the trial court, in handing out Schwartz’s sentence, did not even
refer to the possibility of restitution, let alone state its reasons for not providing for
restitution on the record.   This is in clear violation of the statutory mandate.   As
Borst teaches, because the sentence was illegal, the trial court, upon reflection of
the fact that it had not ordered restitution, properly exercised its inherent authority
to reopen the judgment, hold a restitution hearing and amend Schwartz’s sentence
to include restitution.   While the trial court did not specifically articulate a failure
to comply with WIS. STAT. § 973.20 as its reason for reopening the judgment and
amending the sentence, we may affirm a correct decision for reasons the court did
not rely on.   Borst, 181 Wis. 2d at 122 (citing State v. Baudhuin, 141 Wis. 2d
642, 648, 416 N.W.2d 60 (1987)).   We, therefore, affirm the trial court’s amended
judgment.
By the Court.—Judgment affirmed.
                                                                                             This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                    (b)4.
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