State v. Thomas W. Ploszay, Jr.

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.
October 16, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP2285-CR Cir. Ct. No. 2016CF774

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS W. PLOSZAY, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Manitowoc County: MARK R. ROHRER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2023AP2285-CR

¶1 PER CURIAM. Thomas W. Ploszay, Jr. appeals from a judgment
of the circuit court and an order denying his motion for postconviction relief. For
the following reasons, we affirm.

Background

¶2 Ploszay pled no contest to two burglary counts in connection with
having stolen numerous items from the victim’s cabin and outbuilding. Following
a restitution hearing at which the victim requested $1,790 in restitution for items
that were not recovered, the circuit court ordered Ploszay to pay $1,690. Ploszay
filed a postconviction motion asking the court to decrease the restitution order to
$0 because “the victim’s testimony regarding his property losses did not meet his
burden of proof; it was simply too speculative.” The court denied the motion, and
Ploszay appeals.

Discussion

¶3 Our statutes provide that “[w]hen imposing sentence or ordering
probation for any crime … the court … 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.” WIS. STAT. § 973.20(1r) (2021-22)1 (emphasis added). The
victim bears “[t]he burden of demonstrating by the preponderance of the evidence
the amount of loss sustained … as a result of [the] crime.” See § 973.20(14)(a).
The circuit court determines in its discretion the appropriate amount of restitution,

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

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No. 2023AP2285-CR

which determination will be upheld unless the court has erroneously exercised its
discretion. State v. Gibson, 2012 WI App 103, ¶8, 344 Wis. 2d 220, 822 N.W.2d
500.

¶4 “The primary purpose of [WIS. STAT.] § 973.20 is to compensate the
victim.” State v. Wiskerchen, 2019 WI 1, ¶22, 385 Wis. 2d 120, 921 N.W.2d 730.
“Wisconsin courts have repeatedly held that ‘restitution is the rule and not the
exception,’ and ‘should be ordered whenever warranted.’” Id. (citation omitted).
The restitution statute is to be “broadly and liberally” construed “in order to allow
victims to recover their losses as a result of a defendant’s criminal conduct.” State
v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997).

¶5 Ploszay asserts that “[t]he victim’s claims were too speculative to
meet the burden of proof.” He criticizes the circuit court for accepting the
victim’s testimony as to the value of the items Ploszay stole as meeting the
victim’s burden. For example, he challenges the victim’s claim “that $250 in cash
was missing from his wallet” because it lacked support such as “a record from his
bank to show that he had obtained this amount of cash shortly before the burglary”
or an explanation “that he sold an item to another individual for that amount of
cash and provided some documentation of the transaction.” He complains that
“neither documentation nor explanation was given.” But the victim provided
direct and specific evidence regarding the money stolen, explaining that it was
“five $50 bills” in his wallet inside the residence. The court found the victim’s
testimony credible; no further corroboration was needed.

¶6 Ploszay further criticizes the victim’s memory as to two stolen air
compressors that he valued at $100 each. The victim had listed the compressors as
items that had been stolen, but at the hearing there was question as to whether the

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No. 2023AP2285-CR

victim had recovered one of those compressors based upon a form the victim
previously had presented indicating it may have been recovered. The victim stated
he could not recall if one of those compressors was one of the items that had been
recovered. In his briefing to us, Ploszay argues that “[t]his is problematic because
it calls his memory of the details of these events into question.” But the circuit
court is the arbiter on witness credibility, and while the court generally found the
victim’s unchallenged testimony as to values credible, the court ultimately reduced
the victim’s restitution award by $100 because it only credited the victim with one
lost air compressor, obviously due to the victim’s uncertainty as to whether he had
recovered one of the compressors. In short, the court concluded the victim had not
shown by a preponderance of the evidence his loss of a second compressor.

¶7 Ploszay challenges the victim’s testimony as to the value of other
stolen items as “unreliable and lacking in foundation.” Ploszay relatedly criticizes
the victim’s testimony as to replacement prices for items because the victim did
not testify to “checking catalogs, websites, or physical stores” for prices or to
paying a specific amount when purchasing a particular item. He asserts the victim
worked off of “unspecified memory.” Ploszay fails to convince us that the circuit
court erred. Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d 448, 899
N.W.2d 381 (“[O]n appeal ‘it is the burden of the appellant to demonstrate that the
[circuit] court erred.’” (Second alteration in original; citation omitted.)).

¶8 The victim was the only witness to testify at the restitution hearing;
Ploszay presented no witness testimony, or other evidence, that the value of the
stolen items was other than as the victim testified under oath. The victim testified
that the morning after the burglary, he met with law enforcement officers to
review and prepare a list of items that had been stolen from him. He demonstrated
significant recall on the witness stand and provided substantial details regarding

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No. 2023AP2285-CR

the items that had been stolen, explaining in many instances why he believed the
replacement value was as he claimed and in other instances testifying as to what
he recalled paying for particular items that he had recently purchased.2 The victim
stated he himself “was the purchaser of all of the items,” and he agreed that he
believed all of the values he testified to at the hearing were “correct based on the
original purchase price and what in [his] experience [he] would expect to pay to
replace those items.”

¶9 At one point in his hearing testimony, when asked about a “portable
gas torch,” the victim described it in detail but then volunteered that the torch was
one of the items that eventually had been recovered, adding, “[S]o it’s listed as [a]
stolen item, but it was one of the items I was able to get back when … police
officers … took me to the warehouse to look at the stolen property.” Upon
questioning by the circuit court, the victim estimated he had spent seventy dollars
to replace two skill saws that had been stolen. He then confirmed the court’s
inquiry that the replacement cost was more than the sixty dollars the victim was
requesting as restitution for those items.

¶10 Although he complains of a lack of foundation now, Ploszay, who
was represented by counsel at the restitution hearing, never objected at the hearing
to any of the victim’s testimony on that basis. As a result, he forfeited such a
challenge and will not be heard to complain of a lack of foundation on appeal. See
Vollmer v. Luety, 156 Wis. 2d 1, 10, 456 N.W.2d 797 (1990) (stating that a party
forfeits an alleged error for which no objection is raised and preserved in the

2
For example, the victim testified that he paid $150 “very recently” at Menard’s for a
“battery charger and starter … unit[] that you can use to start vehicles,” adding that it was “brand
new. In fact I had never used it.”

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No. 2023AP2285-CR

circuit court). But even if Ploszay had objected based on that basis, the objection
would have fallen flat because Wisconsin law is clear that “a non-expert owner
may testify concerning the value of their property [and] [t]he weight to be attached
to [such] testimony is for the trier of fact.” D’Huyvetter v. A.O. Smith Harvestore
Prods., 164 Wis. 2d 306, 323, 475 N.W.2d 587 (Ct. App. 1991); see also
Mayberry v. Volkswagen of Am., Inc., 2005 WI 13, ¶42, 278 Wis. 2d 39, 692
N.W.2d 226 (“Wisconsin case law is clear that an owner of property may testify as
to its value and that such testimony may properly support a jury verdict for
damages, even though the opinion is not corroborated or based on independent
factual data.”); Wilberscheid v. Wilberscheid, 77 Wis. 2d 40, 48, 252 N.W.2d 76
(1977). Moreover, on cross-examination, Ploszay’s questioning focused on what
items were or were not recovered and whether the victim had replaced various
items; there was no cross-examination challenge as to the value of any item to
which the victim testified. And again, Ploszay presented no evidence of his own
as to the value of any of the items he now challenges.

¶11 Here, the circuit court credited the victim’s testimony as to the value
of the various items stolen from him. This is not surprising in light of the specific
details the victim recalled about the various items, the honesty the victim
displayed in volunteering he had recovered the portable gas torch so he was not
requesting restitution for that item, the fact that he had only requested sixty dollars
for the two skill saws when it cost him seventy dollars to replace them, and
Ploszay’s failure to put forth any evidence undercutting the victim’s asserted
values. The circuit court, not this court, determines the credibility of witnesses
and resolves conflicts in the evidence. Tang v. C.A.R.S. Prot. Plus, Inc., 2007 WI
App 134, ¶19, 301 Wis. 2d 752, 734 N.W.2d 169.

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No. 2023AP2285-CR

¶12 Lastly, Ploszay claims the circuit court erroneously exercised its
discretion because it did not engage in a process of reasoning but just blindly
accepted the victim’s testimony as to the amount of restitution owed for each
stolen item. This is belied by the record, as the court specifically chose to reduce
the victim’s requested amount by $100 due to his lack of certainty as to whether or
not he had recovered one of the two air compressors that had been stolen. The
record shows the court gave careful consideration to the evidence and exercised a
reasonable and thoughtful approach in awarding restitution.

By the Court.—Judgment and order affirmed.

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

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