Court Error – Abuse of Discretion

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Timothy Michael Kielb

Case No.: 2018AP1866-CR

Officials: Stark, P.J., Hruz, and Seidl, JJ.

Focus: Court Error – Abuse of Discretion

Timothy Kielb was convicted of one count of burglary of a building or dwelling, as a party to the crime. The circuit court ordered him to pay the victims $7589.47 in restitution. Kielb now appeals, challenging three items of restitution that the court ordered him to pay: (1) the cost the victims paid to install a security system; (2) approximately four years of monthly maintenance fees for the security system; and (3) the cost to flush the gas tank of the victims’ motorcycle. Kielb contends the court could not award these amounts as restitution, as a matter of law, because they would not have been recoverable in a civil action against Kielb for his conduct in the commission of a crime considered at sentencing. See WIS. STAT. § 973.20(5)(a) (2017-18). He also argues the court erroneously exercised its discretion by awarding as restitution the cost to flush the motorcycle’s gas tank and the monthly maintenance fees for the victims’ security system. In the alternative, Kielb argues his trial attorney was ineffective by failing to argue that the costs identified above could not be awarded as restitution based on the civil action limitation in § 973.20(5)(a).

We conclude as follows: (1) Kielb forfeited his argument that the civil action limitation in WIS. STAT. § 973.20(5)(a) barred the circuit court from awarding the disputed expenses as restitution; (2) Kielb’s trial attorney was not ineffective by failing to object to those expenses based on the civil action limitation; and (3) the court did not erroneously exercise its discretion by awarding the victims the cost to flush their motorcycle’s gas tank. We therefore affirm in part.

However, we conclude the circuit court erroneously exercised its discretion by ordering Kielb to pay approximately four years of monthly maintenance fees for the victims’ security system. The court failed to acknowledge that it had received conflicting evidence as to whether the monthly maintenance fees could be distinguished from the cost to install the security system. In addition, the court did not adequately explain why it decided to award four years of monthly maintenance fees, as opposed to some other amount. Finally, the court failed to address Kielb’s argument that ordering him to pay four years of monthly maintenance fees would be inequitable under the circumstances. We therefore remand for the court to readdress the issue of monthly maintenance fees. On remand, the court must determine what amount the victims paid to install the security system, as distinct from the monthly maintenance fees. The court must then determine what portion of the maintenance fees, if any, Kielb should be required to pay as restitution.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.