By LeAnn R. Ralph
COLFAX — A 26-year-old Colfax man convicted of a felony for stealing iron from the Colfax Railroad Museum has been sentenced to eight months in jail and ordered to pay nearly $7,000 in restitution.
Donald J. Binder appeared for sentencing before Judge Rod Smeltzer in Dunn County Circuit Court June 30 with his attorney, Donna Burger.
In addition to the jail time and restitution, Judge Smeltzer sentenced Binder to three years of probation.
Binder pleaded no contest on April 27 and was found guilty by Judge Smeltzer on one felony count of theft of moveable property valued between $5,000 and $10,000.
A second misdemeanor count of theft of moveable property valued at less than $2,500 for stealing materials from Anderson Bridges in Colfax was dismissed on a prosecutor’s motion.
Dunn County District Attorney Andrea Nodolf asked Judge Smeltzer to sentence Binder to two years of initial confinement in state prison and three years of probation.
Binder has exhibited a “continual pattern” of theft, Nodolf said.
In 2012, Binder was convicted of theft of moveable property and resisting an officer. In 2013 he was convicted of stealing from a locked coin box at the Colfax laundromat. In 2014 he also was convicted of two counts of theft, Nodolf said.
In spite of being placed on probation over and over gain, Binder “still doesn’t get it. And now he has upped the ante,” she said.
The pre-sentence investigation (PSI) is recommending probation again with a few months of jail time, Nodolf said.
“The consequences have not been working,” she said.
“He’s a thief. He steals things,” Nodolf said, noting that apparently Binder’s way of supporting himself is by stealing items and selling them.
The iron pieces stolen from the Colfax Railroad Museum, as it turned out, were not simply pieces of scrap iron but were specific parts for restoring train cars.
Herb Sakalaucks, museum curator, said hiring a machinist to replace the parts would cost thousands of dollars.
By being given probation in previous cases, Binder’s numerous opportunities to stop stealing have resulted in more criminal behavior, Nodolf told the court.
During the PSI, Brad Erickson, a probation and parole agent with the Department of Corrections, said he had started out seriously considering recommending prison time for Binder with at least three years of probation.
“I was overruled,” Erickson told Judge Smeltzer.
The other agents thought that Binder was not aware of the seriousness of his crimes, perhaps especially the theft from the railroad museum.
“I don’t buy that,” Erickson said.
Binder is “predominately criminal thinking,” he said, adding that he believes Binder has been “missupervised” in the past and that he should have been supervised while on probation as a more serious offender.
Judge Smeltzer wondered how Erickson planned to supervise Binder this time around.
Erickson said Binder would be placed on maximum supervision of two times per month with home visits.
Binder’s attorney said she agreed with the recommendation in the PSI and based her agreement upon representing Binder in previous cases.
Most of the thefts have been misdemeanors and involved obtaining money through “scrapping,” Burger said.
The felony theft is similar to Binder’s past crimes, except it was elevated to a felony because of the value of the items stolen from the museum, she said.
Binder is not violent. He has cooperated with the police, and he did not try to cover up what he did, Burger said.
Binder also has mental health issues, such as bipolar disorder and attention deficit with hyperactivity disorder, which can lead to being impulsive, she said, adding that a mental health evaluation is essential.
In the last eight months, Binder has not been arrested on any new charges, Burger said.
Binder commits crimes to get money to support himself. He has been living in Colfax with his mother and his cousin, she said.
Although Binder has been placed on probation many times before, he will now be considered high risk/high need, so he qualifies for more serious supervision, Burger said.
Prison does not have any programming, so placing Binder in prison would not give him any opportunities for changing his behavior, she said.
When asked if he wanted to address the court, Binder said he has been trying to better himself, has been trying to stay out of trouble and has been “trying to hang out with better people.”
Judge Smeltzer wondered what has been different this time around.
“I am trying to make better decisions,” Binder said, adding that he has been working with his family to keep him out of trouble.
Judge Smeltzer asked why it might be difficult for Binder’s family to keep him “on the straight and narrow.”
“I let it go in one ear and out the other,” Binder said.
Judge Smeltzer said he thought it was possible that Binder was his own worst enemy and asked if he knew the difference between right and wrong and whether it would be okay to take something from someone’s garage just because he wanted it.
“No,” Binder said, indicating that it is not okay to take something out of someone’s garage.
Judge Smeltzer noted that between 2012 and 2014, Binder engaged in quite a lot of criminal behavior while he was on supervision.
“Why did you keep doing it?” he asked.
“Because I wasn’t thinking at the time,” Binder said.
Judge Smeltzer sentenced Binder to three years of probation and to eight months in the county jail with work release.
The number one goal, Judge Smeltzer said, is restitution.
Binder was ordered to pay $6,950 to the Colfax Railroad Museum and also to pay $1,442 to another individual.
Judge Smeltzer also ordered a mental health assessment for Binder.
In order to monitor Binder’s employment and his progress toward paying restitution, Judge Smeltzer scheduled a review hearing on January 4.
“My hope is that I don’t see you again in front of me (on new charges),” Judge Smeltzer said.