Wisconsin Supreme Court upholds restitution ruling

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The Wisconsin Supreme Court ruled 6-1 that a man who stole a City of Milwaukee vehicle and engaged in a high-speed chase before hitting a City of Muskego police vehicle did not have his due process rights violated during a restitution hearing.

Writing for the majority, Justice Annette Ziegler was joined by Chief Justice Ann Walsh Bradley, Justice Rebecca Grassl Bradley, Justice Rebecca Dallet, Justice Brian Hagedorn and Justice Jill Karofksy. Dallet also wrote a concurring opinion, in which Walsh Bradley joined. Justice Janet Protasiewicz filed a dissenting opinion.

Kordell L. Grady was charged with several crimes after a high-speed chase. He accepted a plea deal, pleading no contest to three offenses. The convictions were not disputed but during the high-speed chase, Grady struck a law enforcement vehicle several times, causing significant damage.

The City of Muskego’s insurer, Statewide Services Inc, sought $19,071.28 in restitution for the damage caused. During the restitution hearing, Grady’s counsel argued he did not have the ability to pay the requested restitution amount.

Grady, who is serving a three-year sentence at Dodge Correctional Institution, participated in the hearing via Zoom. He interrupted the proceeding when his attorney was making her argument. The judge asked Grady if he wished to speak with his attorney and he responded yes. Grady spoke with his attorney even though the judge warned him that their conversation could be heard by everyone in the courtroom, including the assistant district attorney.

While speaking with his attorney, Grady made several statements that undermined his attorney’s argument regarding restitution. The assistant district attorney highlighted those statements later while making his argument regarding restitution. The judge later ordered Grady to pay the full restitution amount.

Grady filed a motion for post-conviction relief, arguing he is entitled to a new restitution hearing because the circuit court violated his due process right by failing to structure the hearing so he could speak confidentially with his counsel.

The Waukesha Circuit Court rejected Grady’s arguments, finding he did not intend for his conversation to be confidential. He appealed and the Court of Appeals affirmed the lower court’s opinion.

Writing for the majority, Ziegler said the state’s high court agreed with the lower courts’ rulings and that “the circuit court did not deprive Grady of a fundamentally fair proceeding by failing to provide a means by which Grady could privately speak with attorney. Grady never sought to have a confidential conversation with his attorney.”

Grady was involved in a high-speed chase with law enforcement on Sept. 4, 2021, after he stole a vehicle belonging to the City of Milwaukee. During the pursuit, he twice hit a law enforcement vehicle belonging to the City of Muskego. In a plea deal, Grady plead no contest to one count of attempting to flee or elude an officer, one count of first-degree recklessly endangering safety, and one count of operating a motor vehicle without the owner’s consent. He was sentenced to three years in prison and three years of extended supervision.

At the plea hearing, the state raised the issue of restitution for the damage Grady caused during the chase. Statewide previously filed an affidavit with the court requesting $19,071.28 for the damage caused to the city’s vehicle. The affidavit said $18,071.28 of the request was for expenses paid by Statewide to repair the vehicle and the remaining $1,000 was for the insurance deductible paid by the City of Muskego. Grady’s attorney did not dispute the amount but requested a hearing to argue Grady’s ability to pay.

During the restitution hearing after Grady spoke to his attorney, the assistant district attorney argued in court that it sounded that he would be able to pay restitution since he would be able to work while on probation given his conversation with his attorney. Grady’s attorney argued in response that he would have a lot of financial responsibilities after leaving prison and the restitution “may actually be a detriment to his success.” Ultimately, the court ordered Grady to pay the full restitution amount.

On appeal, Grady argued the circuit court deprived him of his ability to confidentially consult with his attorney at the restitution hearing and he was entitled to a new restitution hearing. In his argument, Grady said the court should have “asked his counsel to step out of the hearing and to enter a conference room where [she] could have used her phone or computer to enter a confidential ‘break-out room” facilitated by the circuit court over the Zoom” platform, cleared the courtroom or adjourned the hearing.

Ziegler wrote the court agreed with the circuit court’s findings to reject Grady’s arguments.

“Specifically, the circuit court found that Grady did not intend for his conversation with his attorney during the restitution hearing to be confidential … The record indicates that after Grady told the circuit court that he wished to speak to his attorney, the circuit court warned him that ‘everyone [in the courtroom] could hear him.’”

The Supreme Court’s review is limited to the record it was given and “nothing in the record indicates that Grady or his attorney requested a private conversation,” Ziegler wrote.

She continued that the circuit court did not deprive Grady of “a fundamentally fair proceeding by failing to provide a means by which Grady could privately speak with his attorney. Grady never sought to have a confidential hearing with his attorney.”

Dallet, who was joined by Chief Justice Ann Walsh Bradley, wrote in a concurring opinion that the circuit court did not do enough to ensure Grady could speak with his attorney privately. The court did not explain to Grady at the start of the hearing that he could communicate with his attorney privately or how that would happen, Dallet wrote. She also pointed out that Grady’s attorney did not do enough to ensure a private conversation.

In her dissent, Protasiewicz said the circuit court failed to tell Grady that he had a way to communicate privately with his attorney and explain how to request it. The assistant district attorney then used information from Grady’s discussion with his lawyer as part of his argument about his ability to pay restitution.

“The circuit court deprived him of the ability to consult his lawyer without opposing counsel eavesdropping, and his disclosures were used against him,” she said.