The former treasurer and clerk who stole hundreds of thousands of dollars from the village of Oostburg lost his appeal Wednesday.
Defendant Kim Simmelink tried to argue that prosecutors should not have been able to bring charges against him in 2012 because the statute of limitation had expired. But the Court of Appeals disagreed, saying that notion is not supported by the law or the Legislature’s actions.
Simmelink, 58, was sentenced to a three years in prison for 26 counts of theft from a business. Sheboygan County Circuit Judge Terence Bourke stayed Simmelink’s three-year sentence pending his appeal, but District Attorney Joe DeCecco said once a mandamus is filed in the state case, he will move to have Bourke execute the sentence.
In the two criminal cases, Bourke ordered Simmelink to pay $433,596.78 in restitution and court costs. In a civil case the village brought against Simmelink, a judge also awarded it $1,042,159.33 in November.
Prosecutors charged Simmelink for his fraud in two separate cases. Simmelink initially was charged in 2007 after the village found out he was stealing money in his official capacity. He was given probation after pleading no contest to two counts of theft from a business setting and two counts of forgery.
But after that case was resolved, village officials realized Simmelink also owned a company, Micro Cad, that the village contracted with for certain services. Those services were never provided, and Simmelink was charged again in 2012 for taking money between 2001 and 2003.
Prosecutors were able to do this, despite a six-year statute of limitation, since state law allows for criminal prosecution within one year of a crime’s discovery, provided that the crimes happened within the past 11 years.
In July 2013, Simmelink was found guilty of the 26 counts of theft from a business. He appealed, arguing the one-year window for prosecutors to file their charges after discovering the crimes also should be interpreted to say “when the aggrieved party discovers or with the exercise of reasonable diligence should have discovered the loss.” That language is similar to how the Wisconsin Supreme Court has dealt with civil fraud cases, as that court has said a suit may be filed within six years of discovery or when it should have been discovered.
But the Court of Appeals, in a decision authored by Judge Mark Gundrum, disagreed with Simmelink, saying the state Legislature has never indicated that is how the criminal statute should be read.
While civil fraud cases can be brought decades after an action has occurred, Gundrum pointed out, criminal cases, with all exceptions included, have a statue of limitation of 11 years.
Gundrum’s decision states Simmelink “is searching for ambiguity where none exists.”
According to the decision, “We will not attempt to ‘improve’ on the legislature’s balancing of policy considerations by reading into the statute ‘should have discovered’ language for which the legislature itself did not provide.”
Simmelink’s attorney, Christopher Eippert of Holden & Hahn SC, Sheboygan, said he was disappointed with the judge’s decision. He and his client have 30 days to decide whether to petition the state Supreme Court for review, but said it is unlikely they will.
“There’s something to be said about moving on,” Eippert said.
DeCecco said Simmelink’s argument was far-fetched, since it is not always easy to figure out every part of a person’s scheme, especially if investigators do not know what they are looking for.
But both Eippert and DeCecco said it is good the court decided to publish the decision. Both said they knew of no other cases that dealt with the statute of limitations in such cases.
“There can at least be one case that people, at least in Wisconsin, can point to,” DeCecco said.Follow @eheisigWLJ