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Challenge to factual basis for restitution order rebuffed

State v. Patrick L. Hibl, 2013AP2723-CR, District 2, 6/4/14 (1-judge; ineligible for publication); case activity

Rejecting challenges to a restitution order, the court of appeals holds that the evidence in the record established a nexus between the crime Hibl was convicted of and the victim’s loss and that the circuit court took account of his ability to pay.

Hibl pleaded guilty to negligent handling of burning material in connection with a fire that severely damaged a home owned by one Eubanks. Hibl argued there was no nexus between  his crime and Eubanks’s damages because there was evidence at the restitution hearing that Hibl arrived at the scene after the fire started. But other evidence at the hearing (¶¶9-10), as well as the factual basis presented for his plea (to which Hibl didn’t object) (¶8), supported the conclusion Hibl was there before the fire started:

11      It was within the court commissioner’s discretion to assess the credibility of the testimony and the weight to be given to the evidence. Based on numerous statements in the police report, the court commissioner could have concluded that drug manufacturing was occurring at the house and that Hibl was part of that operation. The court commissioner could have further concluded that Hibl’s participation in the drug manufacture was a substantial factor in causing the fire. Testimony at the restitution hearing and statements in the police report also support the conclusion that Hibl negligently handled a burning pot of hash oil inside the house as he carried it outside, spilling it along the way, including on his hand and arm. The record supports the conclusion that there was a causal connection between Hibl’s criminal conduct—negligent handling of burning material—and the fire damage to the house….

Hibl objected to the police report on hearsay grounds, and in response the court commissioner declined to rely on the hearsay statements in the report. But the rules of evidence need not be applied at restitution hearings, § 973.20(14)(d), State v. Madlock, 230 Wis. 2d 324, 335, 602 N.W.2d 104 (Ct. App. 1999), “so Hibl’s hearsay objection was not sustainable.” (¶¶10 n.2, 11).

The record also supports the circuit court’s conclusion that Hibl can pay $24,220 in restitution. While acknowledging Hibl has a child and “insubstantial” income and assets, the court also noted Hibl had a full-time job paying $13.52 per hour and lived with his child’s mother, who was also employed, and that a civil judgment could be entered to the extent that the restitution amount may not be fully paid during the period of probation, State v. Fernandez, 2009 WI 29, ¶5, 316 Wis. 2d 598, 764 N.W.2d 509 (restitution amount doesn’t need to be limited to what the defendant can pay during the term of his sentence). (¶¶13-17).

Eubanks asked for $327,400 in restitution (¶13), so contesting restitution certainly resulted in some benefit to Hibl.

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