State v. Eric J. Joling, 2023AP1023-CR, 12/11/24, District II (recommended for publication); case activity
Federal law prohibits subjecting social security disability insurance payments (SSDI) to “execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a). In a decision recommended for publication, the Court of Appeals held that a circuit court may nevertheless use a defendant’s SSDI payments to calculate the ability to pay restitution.
Eric Joling was convicted of OWI as a fifth offense and OWI causing injury as a second and subsequent offense. The circuit court ordered Joling to pay $59,808 in restitution at $500 per month. (¶ 2).
Joling filed a postconviction motion asking the circuit court to modify the restitution order because his health had deteriorated and, as a result, he was receiving SSDI payments, which could not be used to pay restitution. The circuit court summarily denied the motion, Joling appealed, and the Court of Appeals remanded instructing the circuit court to conduct a proper new factor analysis. On remand, the circuit court modified the restitution order and directed Joling to pay $250 per month. The circuit court noted that it was not ordering Joling to use his SSDI payments to pay restitution, but explained that Joling could apply the SSDI payments to “cover his personal expenses and that the restitution payments would, effectively, be paid from his self-employment income.” (¶ 5).
On appeal, Joling argued that the circuit court erroneously exercised its discretion when it determined that his SSDI payments could be considered in determining his ability to pay and cited the federal statute that prohibits subjecting SSDI payments to execution, levy, attachments, garnishment, or other legal process. (¶ 7). The Court rejected Joling’s argument that “in assessing his ability to pay restitution, the circuit court was required to completely disregard the fact that he receives monthly SSDI payments totaling $1,187, and the court instead should have only considered his monthly earned income of approximately $1,000.” (¶ 8). Citing precedent from other state courts, the Court held that federal law does not prohibit a court from considering social security income when determining restitution. (¶ 8).
The Court also held that the circuit court did not subject Joling’s SSDI payments to “other legal process.” Rather, “it simply acknowledged that: (1) Joling also receives self-employment income; and (2) based on the total amount of funds available to him each month, Joling could apply his SSDI payments toward his personal expenses, which amounted to approximately $1,719 per month, and his earned income to pay the remainder of his expenses and the ordered restitution. We reject Joling’s position that a circuit court ipso facto ‘subjects’ a defendant’s SSDI payments to a ‘legal process’ when it orders restitution even where the defendant has additional sources of income.” (¶ 9).
Finally, the Court did not accept Joling’s argument that the circuit court’s restitution order improperly “assigns” his right to future SSDI payments to the victims of the offense. Instead, the Court found that “because the total amount of Joling’s monthly income, which consisted of SSDI payments and his earned income, exceeded his monthly expenses, Joling could apply SSDI income toward his expenses and pay the restitution from his earned income.” (¶ 11).
