Opinion
No. A06-1392.
Filed: June 5, 2007.
Appeal from the District Court, Scott County District Court File No. K-03-09662.
R. Gordon Nesvig, (for appellant).
Lori Swanson, Attorney General, and Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, (for respondent).
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
On appeal from the district court's order imposing a joint-and-several-restitution obligation on appellant and his codefendants, appellant argues that (1) the district court erred by denying appellant a restitution hearing, and (2) the district court's restitution order is erroneous because restitution was not discussed before appellant's sentencing, the individuals to whom appellant was ordered to pay joint-and-several restitution were not victims of crimes to which appellant pleaded guilty, and the documentation filed in support of the victims' restitution requests was insufficient. We reverse and remand.
FACTS
Respondent State of Minnesota filed a multi-count criminal complaint charging appellant Eugene Miller with racketeering, aggravated forgery, title fraud, tax fraud, attempted theft by swindle, theft by swindle, attempted defeat of a security interest in personalty, and defeat of a security interest in personalty. The district court ordered that Miller's case be consolidated and tried with the cases involving his daughters, Kathleen Svoboda and Kimberly Wodtke, and his son-in-law, Bradley Wodtke.
Svoboda also appealed the district court's restitution order. State v. Svoboda, No. A06-895, 2007 WL 968914 (Minn.App. Apr. 3, 2007). We reversed and remanded that matter to the district court with instructions "to address whether an order for [Svoboda] to pay joint and several restitution is proper and, if not, to order an appropriate restitution amount." Id. at *2.
Miller pleaded guilty to two counts of aggravated forgery, in violation of Minn. Stat. §§ 609.625, subd. 1(1), 609.05 (1998) (counts 6 and 23); one count of aggravated forgery, in violation of Minn. Stat. § 609.625, subd. 1(1) (2000) (count 29); one count of title fraud, in violation of Minn. Stat. §§ 168A.30, subd. 1, 609.05 (1998) (count 7); one count of tax fraud, in violation of Minn. Stat. §§ 297B.10(a), (b), 609.03(1), 609.05 (1998) (count 18); one count of theft by swindle, in violation of Minn. Stat. §§ 609.52, subds. 2(4), 3(2) (Supp. 1999), 609.05 (1998) (count 20); and two counts of theft by swindle, in violation of Minn. Stat. §§ 609.52, subds. 2(4), 3(2), 609.05 (2002) (counts 40 and 41). Under the plea agreement, the state dismissed the remaining charges. At the sentencing hearing, the district court imposed stayed sentences on six of the counts of conviction and concurrent executed sentences of 21 months' imprisonment and 19 months' imprisonment on two of the counts. The district court then reserved the issue of restitution and declined to impose a fine, stating that "once [Miller] gets out of prison I want every penny that's available to go to restitution."
Thereafter, the Department of Corrections notified Miller and his codefendants that seven individuals sought restitution. Miller filed a notice of motion and motion disputing the restitution sought and requesting a hearing. Miller also filed an affidavit in which he averred that the only charge to which he had pleaded guilty and the named victim had requested restitution was count 29, and that her claim for restitution was unsupported by the record.
On January 20, 2006, the district court heard the parties' arguments regarding the timeliness and sufficiency of the requests by Miller and his codefendants for restitution hearings. In an order dated April 26, 2006, the district court denied the motions for restitution hearings and ordered the defendants to pay restitution of $45,616.10 jointly and severally. This appeal followed.
DECISION I.
Miller argues that the district court erred when it denied his request for a restitution hearing. To be entitled to a restitution hearing during which the restitution sought may be challenged, the defendant must file a request for a restitution hearing within the later of 30 days after sentencing or 30 days after the defendant receives notice of the restitution requested. Minn. Stat. § 611A.045, subd. 3(b) (2002) ("An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later.").
The offenses to which Miller pleaded guilty were committed in 2000 and 2003. Therefore, different versions of the Minnesota statutes are applicable. When the applicable versions are identical, we cite the more recent version.
On October 18, 2005, the Department of Corrections filed its written notification of the restitution amounts sought. Thirty days later, on November 17, Miller filed a request for a restitution hearing. The district court denied Miller's request, holding that Miller's affidavit challenging the restitution sought did not satisfy the requirements of Minn. Stat. § 611A.045, subd. 3(a) (2002). Section 611A.045, subdivision 3(a), provides in relevant part:
At the . . . hearing on the restitution request, the offender shall have the burden to produce evidence if the offender intends to challenge the amount of restitution or specific items of restitution or their dollar amounts. This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims.
Id. (emphasis added). The plain language of this statute makes evident that a defendant's burden of production must be met "at the . . . hearing on the restitution request." Id.; see also Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001) (stating that, when legislature's intent is clearly discernible from statute's plain and unambiguous language, we interpret that language according to its plain meaning without resorting to other principles of statutory construction). Thus, an inadequate affidavit may not be the basis for denying a defendant's timely request for a restitution hearing. Because the district court based its denial of Miller's timely request for a restitution hearing on the sufficiency of the affidavit, we reverse this aspect of the district court's decision.
II.
Miller also argues that the district court erred by ordering Miller to pay restitution. "Restitution" is defined as the "payment of compensation to the victim [of a crime] or the victim's family." Minn. Stat. § 609.10, subd. 2(a)(1) (2002). "Victim" is defined as a natural person who incurs loss or harm as a result of a crime." Minn. Stat. § 611A.01(b) (2006). The primary purpose of restitution "is to restore crime victims to the financial position [that] they were in before the crime." State v. Palubicki, 727 N.W.2d 662, 666 (Minn. 2007); see also State v. Pflepsen, 590 N.W.2d 759, 769 (Minn. 1999) ("Restitution is intended to be compensatory, not punitive."). Therefore, restitution for the crime victim may include "out-of-pocket losses resulting from the crime." Minn. Stat. § 611A.04, subd. 1(a) (2002). A district court may order a convicted felony offender to pay restitution. Minn. Stat. § 609.10, subd. 1(5) (2002). In determining whether to do so, the district court must consider "the amount of economic loss sustained by the victim as a result of the offense" and "the income, resources, and obligations of the defendant." Minn. Stat. § 611A.045, subd. 1(a) (2002). Although the district court has broad discretion to order restitution, State v. Latimer, 604 N.W.2d 103, 104 (Minn.App. 1999), the record must provide a factual basis for the restitution ordered, State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984), and must establish the nature and amount of the victim's losses with reasonable specificity, State v. Keehn, 554 N.W.2d 405, 408 (Minn.App. 1996), review denied (Minn. Dec. 17, 1996). Whether a particular item of restitution fits within the statutory definition is a question of law, which we review de novo. Latimer, 604 N.W.2d at 104-05.
A.
Miller first argues that the district court's restitution order violates the terms of his plea agreement because restitution was not addressed in or contemplated by the plea agreement. We considered, and ultimately rejected, a similar argument in State v. Anderson, 507 N.W.2d 245, 247 (Minn.App. 1993), review denied (Minn. Dec. 22, 1993). There, we held that the defendant had ample notice that the victims might seek and the district court might order restitution because, before sentencing, the defendant received the presentence-investigation report, which recommended restitution, the victim-impact statement, and the victim's affidavit itemizing her losses. Id. We further held that defendant's failure to object to restitution during sentencing constituted a waiver of his right to challenge restitution on the ground that it was not contemplated by the plea agreement. Id.; cf. State v. Chapman, 362 N.W.2d 401, 404 (Minn.App. 1985) (holding that, when restitution was contemplated by plea agreement, restitution order will not be upheld if it is substantially higher than restitution contemplated), review denied (Minn. May 1, 1985).
Similarly, before sentencing, Miller received a copy of the presentence-investigation report, which stated that three parties were requesting restitution. Despite having knowledge that restitution was requested, Miller did not argue at sentencing that restitution would violate the terms of his plea agreement. Nor did he object when the state requested restitution during the sentencing hearing. As in Anderson, this failure to object constitutes a waiver of Miller's right to challenge the district court's restitution order on the ground that restitution was not contemplated by the plea agreement.
Miller's receipt of the presentence-investigation report is established by his counsel's letter to the district court, which acknowledges that counsel received the presentence-investigation report and that "three parties have requested restitution."
We are unpersuaded by the state's argument, which is unaccompanied by any legal authority, that Miller's waiver of a probable-cause hearing is the equivalent of an agreement to pay joint-and-several restitution.
B.
Next, Miller challenges the district court's imposition of a joint-and-several restitution obligation on Miller and his codefendants, arguing that it unlawfully requires Miller to pay restitution to the victims of crimes of which he was not convicted. A district court may order a defendant to pay restitution in either of two situations. The district court may order the defendant to pay restitution to victims whose losses were "directly caused by the conduct for which the defendant was convicted." Latimer, 604 N.W.2d at 105; see also Minn. Stat. § 611A.04, subd. 1(a) (giving crime victim right to receive restitution for "out-of-pocket losses resulting from the crime"). A "victim" is defined for purposes of restitution as the "direct victim of the [defendant's] crime." State v. Jones, 678 N.W.2d 1, 25 (Minn. 2004) (noting exception for murder cases). For example, in State v. Olson, the defendant, who was charged with burglary and theft arising out of the same incident, was convicted of the burglary charge and acquitted of the theft charge. 381 N.W.2d 899, 900 (Minn.App. 1986). The district court nevertheless ordered the defendant to pay restitution for the items that were stolen by his codefendants during the burglary. Id. We affirmed the restitution order, holding that the victim's loss of the stolen items was directly caused by the burglary of which defendant was convicted. Id. at 901. We distinguished the circumstances in Olson from those in which a defendant is convicted of burglarizing one establishment and acquitted of theft involving a separate establishment. Id. And we held that, under those circumstances, an order requiring the defendant to pay restitution to the second establishment would be improper. Id.
A district court also may order a defendant to pay restitution to those who are not direct victims of the defendant's crime if the defendant agreed, as part of a plea agreement, to pay restitution to those entities. See State v. Wallace, 545 N.W.2d 674, 676-77 (Minn.App. 1996) (holding that defendant would be bound by plea agreement to pay restitution to drug task force for "`monies expended by law enforcement in purchasing' the drugs sold by [defendant] to an informant"), review denied (Minn. May 21, 1996).
Here, seven individuals sought restitution. Six of them were not direct victims of the crimes of which Miller was convicted. Therefore, the first situation discussed above is inapplicable to those six individuals. The second situation also appears to be inapplicable to these six individuals because the record, in its present form, does not contain any evidence that, during plea negotiations, Miller agreed to pay restitution to them. Therefore, on this record, the district court's order imposing on Miller joint-and-several liability for restitution to the six individuals was erroneous. We, therefore, reverse the district court's order insofar as it requires Miller to pay restitution to the six individuals who are not direct victims of the crimes to which Miller pleaded guilty. And we leave to the district court's discretion whether to entertain a motion by the state to supplement the record should evidence of an agreement to pay restitution to them exist.
The seventh individual, Sandra Virula, is the direct victim of a crime of which Miller was convicted. However, this fact alone is not enough to justify an order directing Miller to pay restitution to her. A finding that the losses sustained by Virula were "directly caused" by conduct for which Miller was convicted is also necessary. Latimer, 604 N.W.2d at 105. Here, the district court did not make such a finding. We, therefore, remand to the district court to determine whether the losses sustained by Virula were "directly caused" by conduct for which Miller was convicted such that Virula is entitled to restitution under section 611A.04, subdivision 1(a).
The crime involving Virula to which Miller pleaded guilty was aggravated forgery, a violation of Minn. Stat. § 609.625, subd. 1(1). Regarding that charge, the complaint alleges:
On or about, November 8, 2000, . . . [Miller], . . . with the intent to defraud, falsely made or altered a writing whereby, if genuine, legal rights, privileges or obligations are created or evidenced, or normally relied upon as evidence of debt or property rights, so that it purported to have been made by another or by himself under an assumed or fictitious name, or by the authority of one who did not give authority, to wit: a purchase agreement, in the names of Jesus Virula and Sandra Lee [Virula], a felony.
The factual basis for the charge alleges that Sandra and Jesus Virula purchased a Jeep from Miller in July 2000. After experiencing problems with the Jeep, the Virulas brought it to Miller on November 8, 2000, for repair. During the repairs, the Virulas used a Toyota Camry that Miller had loaned them and continued to make payments on their loan for the Jeep. On November 8, 2000, the Prairie National Bank received a purchase agreement and loan application for the Toyota Camry, which listed the Jeep as a trade-in vehicle. Those documents were signed "Jesus Virula" and "Sandra Lee Jackson," which was Virula's previous name. When the Virulas were presented with copies of these documents, they confirmed that the signatures thereon were not theirs.
Virula requested restitution in the amount of $18,684, which is the total cost of the Jeep. On remand, the district court must determine the amount of any out-of-pocket loss Virula sustained and whether that loss, if any, was directly caused by the conduct for which Miller was convicted, namely, forgery of a purchase agreement for the Toyota Camry.
C.
Lastly, Miller argues that the district court erred when it ordered him to pay restitution to Virula because the information Virula provided in support of her restitution request was insufficient. The district court, or a person or agency designated by the district court, must obtain information from the victim of a crime to determine the amount of restitution the criminal defendant owes that victim. Minn. Stat. § 611A.04, subd. 1(a). This information must be obtained in affidavit form or by other competent evidence and "must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts, if restitution is in the form of money or property." Id. If these requirements are met, the district court must act on the restitution request by granting or denying it and must state on the record its reasons for doing so. Id., subd. 1(c) (2002).
Because we conclude that the district court erred in imposing joint-and-several liability on Miller for restitution to the other six individuals, we need not address Miller's argument that the information supporting those restitution requests was insufficient.
The only evidence presented in support of Virula's restitution request was the purchase agreement for the Jeep that she purchased from Miller. That evidence does not describe the items or elements of Virula's loss, itemize the amount of restitution sought, or specify the reasons for the amount sought, as required by Minn. Stat. § 611A.04, subd. 1(a). The record, therefore, is devoid of a factual basis for the district court's order directing Miller to pay Virula the amount of restitution requested. See Keehn, 554 N.W.2d at 408 (stating that record must provide factual basis for restitution ordered by showing nature and amount of victim's losses with reasonable specificity). Accordingly, the district court abused its discretion when it ordered Miller to pay Virula the restitution she requested, $18,684, without a sufficient evidentiary basis.
We, therefore, reverse the district court's restitution order and remand to the district court for a restitution hearing. During the hearing, the district court must first determine whether the affidavits or evidence in support of Virula's restitution request sufficiently describe the items or elements of her loss, itemize the amounts of restitution claimed, and provide adequate justification for these amounts. If the evidence is sufficient, the district court must then determine whether Virula's losses were directly caused by Miller's forgery of the purchase agreement for the Toyota Camry. If this requirement is met, it is within the district court's discretion to order Miller to pay Virula restitution.