State v. Paul R. Noble

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.
April 24, 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. 2023AP1444-CR Cir. Ct. No. 2019CM828

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PAUL R. NOBLE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
PAUL F. REILLY, Reserve Judge. Reversed and cause remanded.
No. 2023AP1444-CR

¶1 GROGAN, J.1 Paul R. Noble appeals from a judgment requiring
him to pay restitution.2 He claims the circuit court erred in refusing to allow him
to ask questions at the restitution hearing about the causal nexus between the
read-in offenses and the restitution sought.3 The State did not file a responsive
brief. Based on the State’s failure to file a responsive brief, this court reverses the
judgment of the circuit court and remands the matter for further proceedings
consistent with this opinion.

¶2 In April 2019, the State charged Noble with misuse of a GPS device
contrary to WIS. STAT. § 940.315(1)(a) after he placed it on the victim’s car
without her consent. In a separate case, the State charged Noble with two counts
of disorderly conduct contrary to WIS. STAT. § 947.01(1) and one count of battery
contrary to WIS. STAT. § 940.19(1), all as incidents of domestic abuse contrary to
WIS. STAT. § 968.075(1)(a) and all relating to an altercation that occurred in
October 2018. Noble entered into a global plea bargain with the State to resolve
both cases wherein he agreed to plead no contest to the GPS charge, and the
charges in the other case would be dismissed but read in. The circuit court
accepted his plea in February 2020.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Noble notes that this appeal does not involve the restitution he agreed to pay to the
victim and is limited to the restitution the circuit court ordered him to pay to the Crime Victim
Compensation Program (CVC). This court’s reversal therefore affects only that part of the
judgment ordering Noble to pay $40,000 in restitution to the CVC.
3
Noble also asserts: (1) there was an insufficient factual basis for the restitution
requested by the CVC; and (2) the restitution hearing was held more than two years after the
conviction date and violated the deadline set forth in WIS. STAT. § 973.20(13)(c).

2
No. 2023AP1444-CR

¶3 At the October 2020 sentencing hearing, the circuit court was told
there were two restitution requests. First, the victim was requesting $57,556.09,
and second, the CVC was requesting $29,357.97. The court, however, addressed
only Noble’s sentence at that time and indicated the restitution hearing would be
scheduled for another time. The court withheld sentence and placed Noble on
probation for one year. The court also scheduled the restitution hearing to take
place in February 2021.

¶4 The restitution hearing did not take place, however, until
November 15, 2021, and was continued on October 26, 2022.4 During the
October 26th hearing, the circuit court ruled that Noble could not challenge the
causal nexus associated with the read-in charges and the restitution claims, and it
entered a written order to that effect on October 30, 2022. Noble ultimately
entered a stipulation as to restitution with respect to the victim and agreed to make
payments totaling $59,000 in restitution to the victim. The circuit court ordered
Noble to also pay $40,000 in restitution to the CVC. Noble appeals the restitution
ordered to the CVC, claiming the circuit court erred in refusing to allow him to
cross-examine the witnesses at the restitution hearing about the causal nexus for
the restitution award associated with the read-in charges.

¶5 On January 23, 2024, the clerk of this court informed the State that
its respondent’s brief was delinquent. That notice ordered the State to file a brief
“within five days” and warned that if it failed to do so, the judgment “appealed
from will be disposed of summarily and may be summarily reversed under

4
The hearing was initially continued until October 13, 2022; however, that restitution
hearing date was adjourned due to an attorney’s unavailability.

3
No. 2023AP1444-CR

RULE 809.83(2).” The State did not file a brief in response to the delinquency
notice.

¶6 On February 7, 2024, this court issued an order giving the State a
second opportunity to file a brief. That order warned that if the State failed to file
a respondent’s brief, this appeal would be submitted without it, and this court
could exercise its “discretion and summarily reverse the circuit court provided we
determine that the respondent has abandoned the appeal …. Raz v. Brown, 2003
WI 29, ¶18, 260 Wis. 2d 614, 660 N.W.2d 647; see also State ex rel. Blackdeer v.
Township of Levis, 176 Wis. 2d 252, 259-60, 500 N.W.2d 339 (Ct. App. 1993)
(summary reversal is appropriate sanction for respondent’s violation of briefing
requirements).” Despite these admonitions, the State has failed to file a
respondent’s brief.

¶7 This court has made clear that it will not act as both advocate and
judge by independently developing a litigant’s argument. State v. Pettit, 171
Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992); Gardner v. Gardner, 190
Wis. 2d 216, 239 n.3, 527 N.W.2d 701 (Ct. App. 1994). It is the party’s
obligation to give reasons to sustain its position, and if the party defaults in that
obligation, it is not the court’s function to assume its burden. See Raz, 260
Wis. 2d 614, ¶36.

¶8 This court declines to address the merits of the appeal under these
circumstances and concludes only that the State has abandoned the appeal and that
summary reversal is appropriate as a sanction. See WIS. STAT. RULE 809.83(2).5

In failing to file a respondent’s brief, the State is also deemed to have conceded that
5

Noble’s arguments are correct. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979).

4
No. 2023AP1444-CR

Accordingly, the judgment of the circuit court is reversed, and the matter is
remanded for further proceedings.

By the Court.—Judgment reversed and cause remanded.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5