It’s a MADD world

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A judge need not determine a defendant’s ability to pay before ordering him to make contribution surcharge payments to a politically active nonprofit organization, as a condition of extended supervised release.

While statutes require a finding of ability to pay, before a court may make such payments a condition of probation, or include them as part of the costs of the action, the extended supervision statute contains no such requirement, the Wiscon-sin Court of Appeals found on June 20.

In the case, Richard G. Galvan was convicted of homicide by intoxicated use of a vehicle, and sentenced to 11 years of initial confinement and four years of extended supervision.

One of the conditions of extended supervision required Galvan to make four annual $1,000 contributions to Mothers Against Drunk Driving (MADD), beginning six months after his release to extended supervision.

Racine County Circuit Court Judge Dennis J. Barry denied Galvan’s motion contesting the contribution to MADD without first assessing his financial ability to make the payments, pursuant to sec. 973.06(1)(f)1, and Galvan appealed.

The court of appeals affirmed in a decision by Judge Neal Nettesheim.

While the statutes expressly require an ability-to-pay determination before a contribution can be compelled either as a condition of probation, or as a part of the costs, there is no such requirement if it is ordered as a condition of extended supervision.

The court rejected Galvan’s argument that sec. 973.06 curtails the discretion conferred by sec. 973.01(5).

The court found that, although contained in the same chapter, the two statutes serve different purposes — conditions of extended supervision under sec. 973.01(5) are part of the total sentence, while a contribution surcharge under sec. 973.06 is a financial obligation that is not itself a sentence or a component of a sentence.

As a result, the court concluded that there is no linkage between the two.

The court defended its interpretation as giving effect to the language of the statutes.

The court wrote, “As Wis. Stat. sec. 973.06(1)(f)1. and sec. 973.09(1x)(a) demonstrate, when the legislature has intended that a sentencing court must make an ability-to-pay determination, it has said so. We do not think it our place to insert a similar requirement in the extended supervision statute.”

The court also found that superimposing an ability-to-pay requirement onto sec. 973.01(5) would obligate the court to speculate about the defendant’s earning potential and property status many years into the future.

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The court wrote, “The trial court here found it ‘very significant’ that the condition to make the contribution to MADD becomes effective only after Galvan serves his eleven-year prison term because it gave Galvan over a decade to obtain job skills, enhance his education, increase his earning capacity, and address any drug or alcohol problems. The court also noted the possibility that a person could inherit a
sum of money in the interim. We endorse these comments.”

Finally, the court noted that Galvan is not without a remedy, because sec. 302.113 permits him to petition the court to modify the condition within a year of his release to extended supervision.

Accordingly, the court affirmed.

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David Ziemer can be reached by email.