Court Error Abuse of Discretion.

Byline: Derek Hawkins

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...