Larry T. Whittaker v. Daniel Winkleski

COURT OF APPEALS
DECISION NOTICE
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.
March 30, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2022AP219 Cir. Ct. No. 2021CV957

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. LARRY T. WHITTAKER,

PETITIONER-APPELLANT,

V.

DANIEL WINKLESKI, WARDEN, AND KEVIN CARR, SECRETARY,
DEPARTMENT OF CORRECTIONS,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
JOSANN M. REYNOLDS, Judge. Reversed and cause remanded with directions.

Before Kloppenburg, Fitzpatrick, and Graham, 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).
No. 2022AP219

¶1 PER CURIAM. The judgment of conviction for a criminal case in
which Larry Whittaker was sentenced to prison states in pertinent part: “Court
costs, fees, surcharges and restitution to be paid through collection by the
[D]epartment of Corrections from 25% of funds under [WIS. STAT. §] 973.05(4)(b)
[(2021-22)1] and as a condition of extended supervision.” The Secretary of the
Wisconsin Department of Corrections (the “Department”) dismissed Whittaker’s
inmate complaint, which argued that the Department violated the restitution order
in the judgment of conviction when the Department deducted for payment of
restitution 50% of Whittaker’s funds in Whittaker’s prison account. Whittaker
petitioned the Dane County Circuit Court for a writ of certiorari regarding the
Department’s decision. Whittaker argues that the circuit court erred in concluding
that the Department did not act contrary to law in deducting amounts from his
funds to pay his restitution obligation. For the following reasons, we conclude
that the Department acted contrary to law in deducting 50% of Whittaker’s funds
for his restitution obligation and, as a result, we reverse the order of the circuit
court.2

BACKGROUND

¶2 There is no dispute as to the following material facts.

¶3 In 2014, Whittaker was convicted in the Milwaukee County Circuit
Court (the “sentencing court”) of first-degree reckless homicide and sentenced to

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

We observe that the circuit court did not have the benefit of this court’s opinion in
2

State ex rel. Ortiz v. Carr, 2022 WI App 16, 401 Wis. 2d 450, 973 N.W.2d 786, at the time it
made its ruling in this matter.

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confinement in state prison and extended supervision. Also in 2014, the
sentencing court ordered the payment of more than $67,000 for restitution from
Whittaker to two crime victims. The restitution amount was increased at a 2018
restitution hearing before the sentencing court. The amended judgment of
conviction (the “JOC”), which the parties agree is the operative judgment of
conviction for purposes of this appeal, states in pertinent part:

07-25-2014 Restitution

$850.00 to Russell P.; and $66,264.70 to Alyssa Z

***12-21-2018/Judge Mark Sanders: Restitution Hearing:
Court ordered restitution in the amount of $67,154.07 to
Alyssa Z. Remainder of the order as previously determined
at sentencing to remain in effect: “Court costs, fees,
surcharges and restitution to be paid through collection by
the [D]epartment of Corrections from 25% of funds under
[WIS. STAT. §] 973.05(4)(b) and as a condition of extended
supervision.”

“Court ordered restitution be paid first before costs, fees
and surcharges are paid.”***

07-25-2014 Costs

Pay DNA surcharge, all costs, fees and surcharges.

AS TO RESTITUTION/ALL FINANCIAL
OBLIGATIONS: to be paid through collection by DOC
from 25% of funds under [WIS. STAT. §] 973.05(4)(b) and
as a condition of Extended Supervision.

Failure to pay will result in a civil judgment. Restitution to
be paid first.[3]

¶4 In 2020, Whittaker complained about the percentage the Department
deducted from his funds (more specifically, his prison wages) toward his
3
There is no dispute that the pertinent language in the amended judgment of conviction
is substantially identical to the pertinent language in the original judgment of conviction other
than the increase in the amount of restitution owed by Whittaker.

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No. 2022AP219

restitution obligation. According to Whittaker, although the sentencing court set
the rate of such a deduction at 25%, the Department deducted 50% of his funds for
payment of restitution. Whittaker exhausted his administrative appeals up to, and
including, a decision by the secretary of the Department that Whittaker’s
administrative complaint must be dismissed.

¶5 Whittaker sought certiorari review of the Department’s decision in
the circuit court. The court rejected Whittaker’s certiorari petition. Whittaker
appeals.

DISCUSSION

¶6 Whittaker argues that the Department erred in dismissing his inmate
complaint, and the circuit court erred in dismissing his petition for a writ of
certiorari.

¶7 “On certiorari we review the agency decision, not the decision of the
circuit court.” State ex rel. Markovic v. Litscher, 2018 WI App 44, ¶9, 383
Wis. 2d 576, 916 N.W.2d 202. On certiorari review, we are limited to the
following four inquiries:

(1) whether the [Department] acted within the bounds of its
jurisdiction; (2) whether it acted according to law;
(3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will, not its judgment; and
(4) whether the evidence was sufficient that the
[Department] might reasonably make the determination that
it did.

State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶35, 353 Wis. 2d 307, 845
N.W.2d 373. The parties in this appeal dispute whether the Department acted
according to law, and that is a question of law that we review de novo without
deference to the conclusions of the Department. Id., ¶36.

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No. 2022AP219

¶8 This appeal also requires us to interpret the language of the JOC.
We interpret a court’s judgment in the same manner as other written instruments;
therefore, the judgment must be considered “in context.” State ex rel. Ortiz v.
Carr, 2022 WI App 16, ¶22, 401 Wis. 2d 450, 973 N.W.2d 786 (citing Estate of
Schultz v. Schultz, 194 Wis. 2d 799, 805, 535 N.W.2d 116 (Ct. App. 1995)). Our
review of the meaning of the judgment is a question of law which this court
reviews de novo. Id.

¶9 Whittaker argues that the references in the JOC to “25%” relate to
the percentage of Whittaker’s “funds” that may be taken by the Department for the
payment of court costs, fees, surcharges and restitution. For its part, the
Department concedes that the JOC can be interpreted as Whittaker does.
However, the Department argues that the JOC is ambiguous because it can be
reasonably interpreted to have a different meaning.4 From that premise regarding
ambiguity, the Department asserts the following:

[The JOC] directs the Department to deduct
[Whittaker’s] funds to pay costs, fees and surcharges at a
rate of 25 percent, but not restitution. The basis for such an
interpretation is that WIS. STAT. § 973.05(4) concerns fines,
costs, fees, and surcharges, and subsection (b) contains a
reference to 25 percent, but WIS. STAT. § 973.05(4) does
not apply to restitution at all. Thus, the combined reference
to WIS. STAT. § 973.05(4) and 25 percent in the [JOC] only
applies to “costs, fees and surcharges.”[5]

4
The Department does not argue in this appeal, as it did in Ortiz, that the 25% amount is,
in effect, a floor and the Department is authorized by the JOC to deduct more than 25% from
Whittaker’s funds to pay for restitution. Ortiz, 401 Wis. 2d 450, ¶26. Instead, the parties agree
that 25%, not more or less, is to be deducted from Whittaker’s funds held by the Department.
The disputed issue is whether the “25%” references in the JOC relate to restitution payments as
well as to “court costs, fees, and surcharges.”
5
WISCONSIN STAT. § 973.05(4)(b) states:

(continued)

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No. 2022AP219

The Department asserts that its interpretation of the JOC is “more reasonable” than
Whittaker’s interpretation and should be adopted by this court.6

¶10 The Department’s proposed interpretation is not a reasonable
interpretation of the JOC’s language.7 Consideration of one sentence of the JOC
proves the point that the Department’s strained interpretation fails. That sentence
states: “Court costs, fees, surcharges and restitution to be paid through collection
by the [D]epartment of Corrections from 25% of funds under [WIS. STAT.
§] 973.05(4)(b) and as a condition of extended supervision.”8 The Department’s

(4) If a defendant fails to pay the fine, surcharge, costs,
or fees within the period specified under sub. (1) or (1m), the
court may do any of the following:

….

(b) Issue an order assigning not more than 25 percent of
the defendant's commissions, earnings, salaries, wages, pension
benefits, benefits under [WIS. STAT.] ch. 102, and other money
due or to be due in the future to the clerk of circuit court for
payment of the unpaid fine, surcharge, costs, or fees. In this
paragraph, “employer" includes the state and its political
subdivisions.
6
The Department concedes that the provisions of 2015 Wis. Act 355, codified at WIS.
STAT. § 973.20(11)(c), do not apply in this circumstance. That Act became effective after the
original judgment of conviction was entered in this matter. As a result, as in Ortiz, 401 Wis. 2d
450, we do not rely on Act 355’s amendments to § 973.20(11)(c) in determining whether the
Department has the authority to deduct 50% from Whittaker’s funds for the payment of
restitution. Ortiz, 401 Wis. 2d 450, ¶14. In addition, and again as in Ortiz, we do not decide
whether § 973.20(11)(c), in effect, allows the Department to override or nullify an order of a
sentencing court made previous to, or after, the effective date of § 973.20(11)(c) regarding
deductions from prison wages for the payment of restitution. See id.
7
“[M]erely being able to conjure up a remotely possible second interpretation is not
sufficient to” make a viable argument regarding ambiguity. United States Fire Ins. Co. v. Ace
Baking Co., 164 Wis. 2d 499, 503, 476 N.W.2d 280 (Ct. App. 1991) (citing Wiesmueller v.
Interstate Fire & Cas. Co., 568 F.2d 40, 46 (7th Cir. 1978) (applying Wisconsin law)).
8
There are two sentences in the JOC that reference both “25%” and “restitution,” and
neither party argues that the meanings of those sentences are different.

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No. 2022AP219

argument collapses because it requires a reader to come to both of the following
conclusions: the phrase at the beginning of the sentence, “court costs, fees, and
surcharges,” relates to the later phrase of “to be paid through collection by the
Department of Corrections from 25% of funds”; but, the term “restitution” is
unrelated to the later phrase even though the term “restitution” comes immediately
before the later phrase. The Department’s reading of the JOC flies in the face of
common sense and any reasonable interpretation of the JOC.

¶11 Further, the JOC’s citations to WIS. STAT. § 973.05(4)(b) do not
reasonably lead to the conclusion that the references in the JOC to “25%” are
untethered, and not related, to the amount of restitution which may be deducted by
the Department from Whittaker’s funds. The Department’s interpretation requires
re-drafting of the disputed terms of the JOC as follows (with additional language
italicized):

Remainder of the order as previously determined at
sentencing to remain in effect: “Court costs, fees,
surcharges and restitution to be paid through collection by
the [D]epartment of Corrections, but only court costs, fees,
and surcharges are to be paid from 25% of funds under
[WIS. STAT. §] 973.05(4)(b), and as a condition of extended
supervision.”

….

AS TO RESTITUTION/ALL FINANCIAL
OBLIGATIONS: to be paid through collection by DOC,
but only court costs, fees, and surcharges are to be paid
from 25% of funds under [WIS. STAT. §] 973.05(4)(b), and
as a condition of Extended Supervision.

(Emphasis added.) The Department’s interpretation would add words to the
phrasing selected by the sentencing court and change the meaning of the JOC. See
Schultz, 194 Wis. 2d at 805 (courts interpret judgments in the same manner as
other written instruments); Sonday v. Dave Kohel Agency, Inc., 2006 WI 92, ¶21,

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No. 2022AP219

293 Wis. 2d 458, 718 N.W.2d 631 (“We interpret a contract [(a type of “written
instrument”)] to give ‘reasonable meaning to each provision.’” (citation omitted)).
We will not, and cannot properly, alter the language chosen by the sentencing
court by reading additional words into the JOC. Ortiz, 401 Wis. 2d 450, ¶26.

¶12 As noted, a necessary part of the Department’s argument is that this
court interprets the JOC as it does. Having resolved that issue in favor of
Whittaker, we need not consider the Department’s argument regarding its
authority to deduct 50% of funds for restitution when the JOC does not set a
specified amount or percentage of funds to be paid toward restitution. Also,
because our interpretation of the JOC is dispositive, we need not consider
Whittaker’s argument regarding the ex post facto clause of the U.S. Constitution.9

CONCLUSION

¶13 For those reasons, we reverse the order of the circuit court and
remand this matter to the circuit court with directions to enter an order, consistent
with this opinion, requiring the Department to deduct 25% of Whittaker’s funds
for the payment of restitution10 pursuant to the amended judgment of conviction.

By the Court.—Order reversed and cause remanded with directions.

9
Nonetheless, we observe that the Department’s statement concerning a portion of State
v. Williams, 2018 WI App 20, ¶2 n.2, 380 Wis. 2d 440, 909 N.W.2d 177, made in briefing in this
court cannot be reconciled with our discussion of Williams in Ortiz, 401 Wis. 2d 450, ¶¶47-55.
10
We note that the amended judgment of conviction requires the Department to collect
restitution amounts before court costs, fees and surcharges.

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No. 2022AP219

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

9