State v. Michael A. Rakel

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.
February 17, 2021
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. 2017AP2519-CR Cir. Ct. No. 2015CF5146

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL A. RAKEL,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: MARK A. SANDERS, Judge. Affirmed in part; reversed in part and
cause remanded for further proceedings.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Michael Rakel was convicted of the first-degree reckless
homicide of Andre Taylor (Taylor), as a party to a crime. He appeals from that
part of his amended judgment of conviction ordering him to pay restitution to the
No. 2017AP2519-CR

mother of Taylor’s child based upon Taylor’s pre-existing, court-ordered child
support obligation. Rakel argues that the circuit court did not have the authority
under WIS. STAT. § 973.20(1r) (2017-18),1 to require him to pay restitution in an
amount equal to Taylor’s child support obligation. Rakel further argues that even
if the court had authority to order such payments, the court improperly ordered
him to pay the restitution to the biological mother of Taylor’s child as her
presumably “nonlegally responsible relative.”

¶2 We conclude that Taylor’s child’s loss of income resulting from
Taylor’s homicide was a special damage potentially recoverable by the child in a
wrongful death civil action against Rakel. As such, the circuit court had the
authority to order Rakel to pay restitution based upon the amount of Taylor’s
court-ordered child support obligation. We also conclude that such restitution is
due to Taylor’s child under WIS. STAT. § 895.04(2). The record does not reflect
whether the child’s mother is a “nonlegally responsible relative” under WIS. STAT.
§ 767.501 eligible to receive restitution for the child. The court, therefore,
erroneously exercised its discretion in ordering the restitution to be paid to the
mother. Accordingly, we affirm in part and reverse in part and remand the matter
for the court to determine whether the child’s mother is permitted to receive
restitution payments for the child, and, if not, to amend the judgment of conviction
to provide that payments are made to an appointed guardian for the benefit of the
child.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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BACKGROUND

¶3 Rakel was charged with one count of first-degree reckless homicide
with the use of a dangerous weapon, as a party to a crime, and as a repeater,
contrary to WIS. STAT. §§ 940.02(1), 939.50(3)(b), 939.05, 939.62(1)(c), and
939.63(1)(b), and with one count of attempted armed robbery with use of force, as
a party to a crime, and as a repeater, contrary to WIS. STAT. §§ 943.32(1)(a)
and (2), 939.50(3)(c), 939.32, 939.05, and 939.62(1)(c). The criminal complaint,
which formed the factual basis for Rakel’s plea, established that Rakel and
Roxanne Gray planned a meeting with Taylor during which Gray stabbed Taylor
with a knife, causing his death.

¶4 Pursuant to a plea agreement, Rakel subsequently entered a guilty
plea to the first-degree reckless homicide charge as a party to a crime. In
exchange for a plea, the State recommended thirty years’ initial confinement with
extended supervision left to the circuit court’s discretion. The count of attempted
armed robbery was dismissed and read in.

¶5 Prior to sentencing, Taylor’s family completed a restitution request
worksheet. One of the items requested was “child support/death benefit” for
Taylor’s children and grandchildren. The family ultimately requested restitution
based on Taylor’s child support obligation for one child.

¶6 At sentencing, the parties debated whether the circuit court could
require Rakel to pay restitution based upon Taylor’s child support obligation.
Rakel’s attorney objected, arguing that there was no documentation confirming
that Taylor was the child’s father. Counsel also contended that the amount of
child support requested by the family was “arbitrary.”

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¶7 The circuit court imposed a sentence of thirty years’ initial
confinement and ten years’ extended supervision. The court subsequently held a
restitution hearing, during which Taylor’s family asked the court to order Rakel to
pay restitution based upon Taylor’s child support obligation. Taylor had other
children, but the only request made by the victim’s family at the restitution hearing
was for the support of one of his children. The State established paternity by
producing a Walworth County circuit court judgment that documented Taylor’s
paternity of the child, including her birthdate of August 24, 2004.

¶8 Rakel’s trial counsel objected to the family’s request for a restitution
order based upon Taylor’s child support obligation. He argued that WIS. STAT.
§ 973.20, the restitution statute, does not specify “child support” as an item of
restitution, and that the circuit court therefore lacked authority to order Rakel to
pay restitution based upon Taylor’s child support obligation.

¶9 Rakel’s counsel further asserted that even if the circuit court decided
it did have authority to order restitution based upon Taylor’s child support
obligation, the amount requested by the State was incorrect. The parties ultimately
agreed that if restitution was ordered based upon Taylor’s child support obligation,
the correct amount of Rakel’s total restitution obligation should be $11,550. That
calculation was based upon the Walworth County court order requiring Taylor to
pay $165 monthly child support, less the amount of social security the child was
receiving as a result of Taylor’s death.

¶10 The circuit court ultimately imposed a joint and several restitution
order that, in part, obligated Rakel and two others to pay $11,550 to the biological
mother of Taylor’s child due to Taylor’s inability to pay his court-ordered child
support in the future. The court concluded that there was “sufficient earning

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capacity so that that order could be fulfilled, particularly [because of] the joint and
several liability ….” This appeal follows.

DISCUSSION

¶11 The scope of a circuit court’s authority to order restitution presents a
question of statutory interpretation that we review de novo. State v. Johnson,
2002 WI App 166, ¶7, 256 Wis. 2d 871, 649 N.W.2d 284. Circuit courts have
discretion when deciding the amount of restitution and determining whether the
defendant’s criminal activity was a substantial factor in causing expenses for
which restitution is claimed. Id. When reviewing a court’s exercise of discretion,
we will examine the record to determine whether the court logically interpreted the
facts, applied the proper legal standards, and used a demonstrated rational process
to reach a conclusion that a reasonable judge could reach. Id.

¶12 Rakel argues that the circuit court erred in three respects by ordering
that he pay restitution based upon Taylor’s child support obligation: (1) the court
lacked authority to order the restitution for this purpose; (2) there was insufficient
evidence to support the amount of the restitution ordered; and (3) there was no
factual basis upon which to order that the payments be made to the child’s mother.
We address each in turn.

I. Statutory Authority for the Restitution Award

¶13 Rakel first argues that Wisconsin’s restitution statutes do not permit
the circuit court to order that he pay child support for Taylor’s child. However,
WIS. STAT. § 973.20(1r) provides the court with authority to order a defendant to
pay restitution to the victim or to the victim’s estate if the victim is deceased.
Section 937.20(1r) states, in relevant part:

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No. 2017AP2519-CR

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. … Restitution
ordered under this section is a condition of probation,
extended supervision, or parole served by the defendant for
a crime for which the defendant was convicted.

¶14 We have held that WIS. STAT. § 973.20(1r) creates a presumption
that restitution will be ordered in criminal cases and that the statute should be
interpreted broadly to allow victims of crimes to recover their losses. Johnson,
256 Wis. 2d 871, ¶16. Before a circuit court may order a defendant to pay
restitution, there must be a showing that: (1) the defendant’s criminal activity was
a substantial factor in causing pecuniary injury to the victim; and (2) the restitution
award is limited to “special damages … which could be recovered in a civil action
against the defendant for … conduct in the commission of a crime.” State v.
Longmire, 2004 WI App 90, ¶¶13-14, 272 Wis. 2d 759, 681 N.W.2d 534. Special
damages are those that represent the victim’s actual pecuniary losses. State v.
Holmgren, 229 Wis. 2d 358, 365, 599 N.W.2d 876 (Ct. App. 1999). In other
words, special damages are “[a]ny readily ascertainable pecuniary expenditure
paid out because of the crime.” Id. The restitution statutes do not permit a
sentencing court to order the payment of general damages, which are amounts
intended to generally compensate the victim for pain and suffering, anguish, or
humiliation. Longmire, 272 Wis. 2d 759, ¶14.

¶15 The restitution statutes do not define the term “victim.” However,
we have held that “victim” under WIS. STAT. § 973.20(1r) is most reasonably
interpreted by using the definition contained in WIS. STAT. § 950.02(4)(a). See
State v. Gribble, 2001 WI App 227, ¶¶70-71, 248 Wis. 2d 409, 636 N.W.2d 488.

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No. 2017AP2519-CR

There is no dispute that Taylor’s child is a victim under § 950.02(4)(a)4.a., which
defines a victim for purposes of restitution as “a family member of the person who
is deceased.” While Rakel concedes that the child can be construed as a victim
under § 950.02(4), he correctly notes that the restitution statutes make no specific
provision for payment of a victim’s lost child support. As a result, Rakel contends
there is no statutory authority for the circuit court to include an amount in the
restitution award representing anticipated child support that would have been paid
by the deceased.

¶16 Rakel does acknowledge that WIS. STAT. § 973.20(3) and (4) permit
a circuit court to reimburse victims for certain expenses and damages that occurred
as a result of the injury or death of the victim. Section 973.20(5)(a) permits a
court to order the defendant to pay any of the child’s special damages that could
be recovered in a civil wrongful death action, as long as the awarded damages are
substantiated by the evidence in the record. In addition, § 973.20(3)(c) permits the
court to order the defendant to “[r]eimburse the injured person for income lost as a
result of a crime considered at sentencing.” The latter statutory section, however,
specifically limits the payment for the injured person’s lost income (“pecuniary
injury”)—here, Taylor—not income lost by any other victims, such as a victim’s
child. That statute specifically excludes everyone’s restitution claims but those
made by the person against whom the crime was committed. Thus, Rakel
contends that there is no express statute authorizing the court to order that Rakel
pay restitution based upon Taylor’s child support obligation because that is not
lost income to Taylor.

¶17 Nevertheless, we conclude that WIS. STAT. § 973.20(5)(a) permitted
the circuit court to order Rakel to pay the child’s special damages, substantiated by
evidence in the record, which could be recovered in a civil wrongful death action

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No. 2017AP2519-CR

against Rakel for his conduct in the commission of the homicide. Thus, the court
properly ordered Rakel to pay restitution based upon Taylor’s child’s lost child
support. First, the court correctly determined that Taylor’s child suffered a
pecuniary injury as a result of Rakel causing Taylor’s death. For restitution to be
ordered, Longmire requires that Taylor’s death was a substantial factor in causing
that pecuniary loss. See Longmire, 272 Wis. 2d 759, ¶13. There is no question
that Taylor’s death, caused by Rakel, deprived Taylor’s child of continued child
support payments. Without those payments, there was a “financial loss,” which is
synonymous with “pecuniary injury” as used in the wrongful death statute. See
Estate of Holt v. State Farm Fire & Cas. Co., 151 Wis. 2d 455, 460, 444 N.W.2d
453 (Ct. App. 1989). The pecuniary injury was the loss of Taylor’s court-ordered
child support payments, less any social security payments made to the child
because Taylor is deceased.

¶18 Second, WIS. STAT. § 895.03 sets forth the conditions under which a
wrongdoer is liable for wrongful death in a civil action. See Force ex rel.
Welcenbach v. American Fam. Mut. Ins. Co., 2014 WI 82, ¶36, 356 Wis. 2d 582,
850 N.W.2d 866. Under the statute, Rakel could be held liable for Taylor’s
wrongful death because Taylor could have commenced an action and recovered
damages against Rakel for lost income, and it is that income which provided the
basis for Taylor’s child support obligation, had Taylor survived. See id., ¶37. A
wrongful death action is designed to compensate the deceased’s relatives for the
damages they suffer as a result of that death. Id., ¶45. Under WIS. STAT.
§ 895.04(1), an “action for wrongful death may be brought by the personal
representative of the deceased person or by the person to whom the amount
recovered belongs.” Section 895.04(4) states that “judgment for damages for

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No. 2017AP2519-CR

pecuniary injury from wrongful death may be awarded to any person entitled to
bring a wrongful death action.”

¶19 As explained above, the paternity of Taylor’s child was established.
Therefore, WIS. STAT. § 767.501(2) would allow Taylor’s minor child, as the
person to whom the amount recovered belongs, to bring a “court action to compel
[Taylor] to provide support.” Taylor’s minor child could bring a wrongful death
action against Rakel because she is a victim who could have brought a child
support enforcement action against Taylor if he were alive. For these reasons,
Taylor’s child is the “person to whom the amount recovered belongs.” See WIS.
STAT. § 895.04(1).

II. Substantiation of the Award

¶20 Rakel acknowledges that a circuit court has the authority under WIS.
STAT. § 973.20(5)(a) to order that a defendant pay all special damages, but not
general damages, that are substantiated by evidence in the record, and that could
be recovered in a civil action against the defendant for his or her conduct in the
commission of a crime considered at sentencing. Rakel nonetheless argues that
child support cannot constitute a special damage under the statute because it
cannot be adequately substantiated with the required particularity regarding the
amount of the loss. Rakel argues that, absent such particularity, lost child support
is nothing more than a speculative damage.

¶21 Specifically, Rakel asserts that, based upon the record, it is
impossible to determine the actual amount that Taylor would have spent on the
support of his child. He claims “[i]t is too speculative to say that the
administrative percentages [used] in calculating support for divorced and
unmarried parents under the administrative code are a fair reflection of the amount

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No. 2017AP2519-CR

of support that [Taylor] … would have actually provided to this minor child.” As
a result, Rakel argues that even if child support generally constitutes a readily
ascertainable loss, it is not a special damage here because it is not readily
ascertainable under the specific facts of this case.

¶22 We are to broadly interpret the term “special damages” in WIS.
STAT. § 973.20(5)(a) to mean “[a]ny readily ascertainable pecuniary expenditure
paid out because of the crime.” Holmgren, 229 Wis. 2d at 365-66. Based upon
the facts in this case and Rakel’s arguments on appeal, we conclude that the circuit
court’s order was not based upon speculation as to what amount Taylor would
have been required to spend to support his child.

¶23 Under WIS. STAT. § 767.501(2)(b), child support is the amount “that
the person should reasonably contribute to the support and maintenance of the …
child ….” The circuit court’s award was based on the Taylor family’s restitution
request, and the court explained the specific basis for the amount it ordered. In
particular, the court ordered that Rakel pay a sum equivalent to the current child
support order that was in place after taking into consideration a reduction of social
security payments to Taylor’s child. That amount constitutes the support that
Taylor was required to pay for the care of his child until the child reached the age
of eighteen or is less than nineteen years old “pursuing an accredited course of
instruction leading to the acquisition of a high school diploma or its equivalent.”
See WIS. STAT. § 767.511(4). The court determined the length of the financial
obligation to the child was seventy months. It then determined that a lump sum of
$11,550—calculated based upon Taylor’s child support obligation of $165 per
month times seventy months, less any amount received from social security as a
result of Taylor’s death—was an appropriate restitution order. Thus, the amount

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No. 2017AP2519-CR

was readily quantifiable and not speculative, and the court properly ordered it as
restitution.

¶24 We therefore reject Rakel’s argument that the circuit court lacked
authority to order that he pay restitution based upon Taylor’s child support
obligation. Based upon the record in this case, the loss of child support resulting
from Taylor’s death was a special damage recoverable by the child in a wrongful
death civil action. Child support generally is a “readily ascertainable pecuniary
loss,” and here the court reasonably calculated Taylor’s court-ordered child
support obligation that he was unable to pay due to Rakel’s killing him.

III. Restitution Payments to the Child’s Mother

¶25 Rakel argues that even if we determine that the circuit court properly
ordered him to pay restitution due to Taylor’s child’s lost support under WIS.
STAT. § 973.20, the court erred in directing that any payments be made to the
child’s mother. He contends that WIS. STAT. § 895.04(4) permits only the child to
bring a wrongful death action for his or her own pecuniary injury. Further, under
§ 895.04(2), the court is directed to ensure that any wrongful death award be set
aside for the protection of minor children whose support the deceased was legally
charged to pay. Thus, Rakel argues that the funds should be set aside solely for
the minor child’s benefit.

¶26 The State does not dispute that the minor child is properly
considered a victim under the restitution statutes and is the individual to whom the
amount recovered belongs under the wrongful death statute. The State, however,
opposes Rakel’s contention because it claims that he ignores “the realities of how
child support enforcement actions are brought, and the policies behind the
wrongful death and restitution statutes.”

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No. 2017AP2519-CR

¶27 Specifically, the State notes that under WIS. STAT. § 767.501(2)(a),
the only individuals who can commence a court action to compel support and
maintenance are (1) “[t]he person’s spouse,” (2) “[t]he minor child,” (3) “[t]he
person with legal custody of the child,” or (4) “[a] nonlegally responsible
relative.” The Walworth County circuit court determined that Taylor’s child
support was owed to the biological mother of Taylor’s child, whom the State
presumably believes was a “[n]onlegally responsible relative”2 under
§ 767.501(2)(a)4.3

¶28 On appeal, the State points out that CCAP records of the paternity
action show the child’s biological mother brought several actions to compel
Taylor to pay his child support. The State presumes these enforcement actions
were brought for the child’s benefit. The State further contends that even though
the child is properly considered a victim, the child’s mother had undertaken
previous actions to enforce Taylor’s child support obligations. The State thus
argues that the restitution award could be properly directed to the child’s mother.

¶29 The State’s argument is based on presumptions lacking legal or
record support. The CCAP records in the paternity action do not demonstrate that
the biological mother of Taylor’s child currently has custody of the child, or that

2
“‘Nonlegally responsible relative’ means a relative who assumes responsibility for the
care of a child without legal custody, but is not in violation of a court order. ‘Nonlegally
responsible relative’ does not include a relative who has physical custody of a child during a
court-ordered visitation period.” WIS. STAT. § 767.501(1)(a).
3
CCAP records in the paternity action are unclear as to whether the biological mother of
Taylor’s child is the child’s legal guardian. See In Re Paternity of M.D.T., No. 2007PA145PJ
https://wcca.wicourts.gov/caseDetail.html?caseNo=2007PA000145PJ&countyNo=64&index=0#r
cords.

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No. 2017AP2519-CR

she is the child’s “nonlegally responsible relative.” Further, there is nothing else
in the CCAP record supporting such an inference.

¶30 Additionally, there is no other evidence in the record indicating that
the mother is a “nonlegally responsible relative.” The State reaches its conclusion
to the contrary by presuming she must be a “[n]onlegally responsible relative”
because she cannot be categorized as any of the other individuals listed in WIS.
STAT. § 767.501(2)(a) according to the CCAP records. And, although the State
presumes that the biological mother brought the prior child support enforcement
actions for the child’s benefit, the record does not support that presumption.
Moreover, the circuit court’s restitution order does not require the biological
mother to use the money for the child’s benefit. In short, the State’s argument is
unsupported by any record citation. As a general rule, we do not consider
arguments based on factual assertions that are unsupported by references to the
record on appeal. Dieck v. Unified Sch. Dist., 157 Wis. 2d 134, 148 n.9, 458
N.W.2d 565 (Ct. App. 1990). We cannot accept the State’s contention that the
restitution award for Taylor’s child support obligation was properly payable to the
biological mother of Taylor’s child.

¶31 Again, “the minor child is properly considered a victim under the
restitution statutes and the person ‘to whom the amount recovered belongs’ under
the wrongful death statute in WIS. STAT. § 895.04(1).” The money paid is to be
set aside for the child’s benefit, yet that is not required under the current restitution
order. Sec. 895.04(2). We therefore reverse on the issue of the proper recipient of
the restitution award and remand with instructions that the circuit court determine
whether the child’s mother has custody of the child, or is the child’s “nonlegally
responsible relative” under WIS. STAT. § 767.501 to receive those payments for

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the child. If not, then the court shall amend the restitution order to provide that
such restitution be payable to an appointed guardian for the benefit of the child.

By the Court.—Judgment affirmed in part; reversed in part and cause
remanded for further proceedings.

Not recommended for publication in the official reports.

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