STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0409
State of Minnesota,
Respondent,
vs.
Andrew Will Alexander,
Appellant.
Filed October 20, 2014
Affirmed in part, reversed in part, and remanded
Connolly, Judge
Ramsey County District Court
File No. 62-CR-13-1588
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Laura S. Rosenthal, Assistant County Attorney,
St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Hooten, Judge.
SYLLABUS
Under the plain language of Minn. Stat. §§ 611A.04, .045 (2012), the district court
is not authorized to order a defendant to sell personal property to satisfy a restitution
order.
OPINION
CONNOLLY, Judge
In this sentencing appeal, appellant argues that the district court (1) abused its
discretion by ordering appellant to pay restitution; (2) erred by ordering appellant to
reimburse the public defender’s office without a hearing; and (3) erred by ordering
appellant to sell his car to satisfy his restitution obligations. We affirm in part, reverse in
part, and remand.
FACTS
On March 4, 2013, a police officer on patrol in St. Paul observed a BMW fail to
stop for pedestrians in a marked pedestrian crosswalk. The officer activated his
emergency lights and siren, but the BMW did not slow down and proceeded into an alley.
The BMW was forced to stop in the alley because another vehicle was blocking the exit.
The officer approached the BMW and identified the driver as appellant Andrew Will
Alexander.
The officer ran the license plate number affixed to the vehicle, but the number was
not on file. The officer then discovered that the vehicle had been reported stolen from the
Motorwerks BMW dealership (the dealership) in February 2013. Appellant was taken
into custody. The BMW was subsequently towed to an impound lot, where a
Motorwerks BMW employee picked it up and returned it to the dealership.
Respondent, the State of Minnesota (the state), charged appellant with one count
of theft of a motor vehicle in violation of Minn. Stat. § 609.52, subd. 2(a)(17) (2012) and
one count of fleeing a police officer in a motor vehicle in violation of Minn. Stat.
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§ 609.487, subd. 3 (2012). Appellant pleaded guilty to theft of a motor vehicle and the
state dismissed the remaining charge. The district court sentenced appellant to three
years of probation, 90 days in the Ramsey County Workhouse and imposed a $500 fine,
and $21,000 in restitution to the dealership.
Appellant challenged the amount of restitution that the district court ordered. On
September 13, 2013, the district court held a restitution hearing. The general manager of
the dealership testified about the damage to the vehicle and stated that the total repair cost
was $6,616.05. The dealership also had to discount the vehicle by $10,000 because it
was stolen and had increased mileage. Appellant also testified at the hearing. He stated
that he lied when he said that he purchased the vehicle from Craigslist and that he
actually got the vehicle from a woman named “Lisa” that he met through a marketing
group. Appellant stated that Lisa gave him the keys to the BMW in a mall parking lot
because his Mercedes was at the auto-mechanic shop. He testified that he had the BMW
for one and a half to two weeks and drove approximately 150-200 miles. He claimed that
the BMW was in mint condition and that he was not responsible for any alleged damage.
Following the restitution hearing, the district court ordered appellant to pay
$16,616.05 in restitution to the dealership, fully reimburse the public defender for the
cost of representation, and sell his car, using the proceeds to pay restitution, the public
defender’s office, and any fines.
ISSUES
I. Did the district court abuse its discretion by ordering appellant to pay restitution?
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II. Did the district court err by ordering appellant to fully reimburse the public
defender’s office without a hearing?
III. Did the district court abuse its discretion by ordering appellant to sell his car to
pay restitution?
ANALYSIS
I.
Appellant argues that “the district court abused its discretion when it ordered
[appellant] to pay restitution because there was insufficient evidence that [appellant]
caused the damage and the court made no finding that [appellant] had the ability to pay.”
We disagree. “[District] courts are given broad discretion in awarding restitution.” State
v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). We therefore review the district court’s
decision for abuse of discretion. State v. Nelson, 796 N.W.2d 343, 346 (Minn. App.
2011).
A. Was the evidence sufficient to show that appellant caused the loss?
Appellant first argues that there was insufficient evidence to show that appellant
caused the damage alleged by the dealership. We disagree. A crime victim “has the right
to receive restitution as part of the disposition of a criminal charge.” State v. Latimer,
604 N.W.2d 103, 105 (Minn. App. 1999); Minn. Stat. § 611A.04, subd. 1(a) (2012). The
district court “shall consider . . . the amount of economic loss sustained by the victim as
a result of the offense.” Minn. Stat. § 611A.045, subd. 1(a). “The restitution award must
be supported by facts on the record.” State v. Miller, 842 N.W.2d 474, 477 (Minn. App.
2014), review denied (Minn. Apr. 15, 2014). The state carries the burden of proving the
amount of loss the victim sustained. Minn. Stat. § 611A.045, subd. 3(a). “The amount of
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restitution, when disputed, must be proved by a preponderance of the evidence.” Nelson,
796 N.W.2d at 347.
Appellant pleaded guilty to theft of a motor vehicle. The BMW in question was
reported stolen in February 2013 and found in appellant’s possession on March 4, 2013.
Appellant admitted that he possessed the vehicle for one and a half to two weeks. The
general manager testified that the BMW was originally worth approximately $110,000,
but it had significant damage when it was returned to the dealership, including missing
paint, bent rims, a cracked windshield, and increased mileage on the odometer. This
damage cost the dealership $6,616.05 to repair.
Moreover, when the vehicle was recovered, it had approximately 1,500 miles on
the odometer. The general manager testified that new vehicles, like this BMW, arrive at
the dealership with approximately 5 to 25 miles on the odometer. He explained, “a
customer wants very few miles, if any, on that particular vehicle. And being that the
vehicle had 1,583 miles, we had to discount the vehicle to be able to obviously sell the
vehicle.” He stated that the vehicle had to be discounted because “obviously we had to
tell the customer that it had been stolen and there had been damage . . . . We had to
discount the car $10,000 to be able to sell this particular vehicle.”
Appellant claims that he could not have caused the damage to the car. He
explained, “I handled it with extreme care. Ever since I got my first car at 16, I've had
the privilege of driving a luxury foreign vehicle, and I treated it as I have all my other
cars, with utmost care and affection.” He also stated, “I’ve had these types of cars my
whole entire life. . . . And so there’s feasibly no way for me to have done any of this
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damage.” But appellant admitted that he drove the BMW throughout the Twin Cities
during the two-week period that he possessed the car. And, before being apprehended, he
was traveling 25-30 miles per hour in a St. Paul alley that the arresting officer described
as “rough” and “rutted.”
The district court found the general manager’s testimony to be more credible than
appellant’s. Appellate courts defer to district court credibility determinations. Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); see Gada v. Dedefo, 684 N.W.2d 512, 514
(Minn. App. 2004) (stating that, on appeal, appellate courts “neither reconcile conflicting
evidence nor decide issues of witness credibility, which are exclusively the province of
the factfinder”). We conclude that the evidence is sufficient to show by a preponderance
of the evidence that appellant caused the damage to the dealership’s vehicle.
Consequently, the district court did not abuse its discretion in this respect.
B. Did the district court consider appellant’s ability to pay when determining
whether to order restitution?
Appellant argues that the district court did not consider his ability to pay
restitution. We disagree. In determining whether to order restitution and the amount of
restitution, the court shall consider the defendant’s ability to pay. Minn. Stat.
§ 611A.045, subd. 1(a)(2). “There is no strict requirement regarding how the district
court should address the issue.” State v. Miller, 842 N.W.2d 474, 479 (Minn. App.
2014), review denied (Minn. Apr. 15, 2014). The district court is not required to issue
specific findings on the defendant’s ability to pay. Id. If a presentence investigation
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report (PSI) is made pursuant to Minn. Stat. § 609.115, subd. 1,1 it must contain
information pertaining to the defendant’s ability to pay. Minn. Stat. § 611A.045, subd. 2.
The record includes a PSI, which contains information about appellant’s income,
resources, and obligations. The district court informed appellant that it would rely on the
information in the PSI when making its sentencing decision. At the time of sentencing,
appellant was a senior in college with a finance major and economics minor. Appellant’s
liabilities/debts were $400/month in rent payment and his assets included $4,000 per year
in income and a 1993 Mercedes E Class car. The district court also heard evidence
regarding appellant’s future ability to pay. At his sentencing hearing, appellant addressed
the court and stated,
I’ve already had job [interviews]. I just had one about
three and a half months ago at Investors Bank downtown.
Some of my buddies from prep school, their father’s [sic]
work in investment banking, so it was rather easy for me to
network through that.
Although appellant argues that “[h]ad the district court consulted the [PSI], it
would have noticed that not only is the 1993 Mercedes Alexander’s only asset, but he
makes only $4,000 a year and owes $4,800 a year in liabilities,” Minnesota courts have
upheld restitution orders even when the appellant may not be able to pay the restitution
amount. See State v. Lindsey, 632 N.W.2d 652, 664 (Minn. 2001) (explaining that the
district court considered the defendant’s ability to pay when it ordered restitution to be
1
See Minn. Stat. § 609.115. subd. 1 (2012) (“[W]hen the defendant has been convicted of
a felony, the court shall, before sentence is imposed, cause a presentence investigation
and written report to be made to the court concerning the defendant’s individual
characteristics, circumstances, needs, potentialities, criminal record and social history, the
circumstances of the offense and the harm caused by it to others and to the community.”)
7
paid from prison earnings); State v. Tenerelli, 583 N.W.2d 1, 3 (Minn. App. 1998), aff’d
as modified, 598 N.W.2d 668 (Minn. 1999) (“Since the statute is not explicit as to how
the court must consider the appellant’s ability to pay, the court’s reference to the
appellant’s [prison] earnings as the source of restitution payments shows that the court
did in fact consider appellant’s payment capabilities.”); State v. Maidi, 520 N.W.2d 414,
419 (Minn. App. 1994), aff’d, 537 N.W.2d 280 (Minn. 1995) (“[A]lthough it is possible
that appellant may not be able to pay the entire restitution award, the court was also
required to consider [the victim’s] economic losses.”).
Because, based on the record, the district court considered appellant’s ability to
pay restitution, we conclude that it did not abuse its discretion.
II.
Appellant next argues that the district court erred by ordering him to fully
reimburse the public defender’s office without conducting a hearing. The state concedes
that the district court erred on this point, and we agree. We review an order to reimburse
the costs expended by a public defender for abuse of discretion. See State v. Mozeley,
450 N.W.2d 149, 152 (Minn. App. 1990).
Under Minn. Stat. § 611.35, subd. 1 (2012),
Any person who is represented by appointive counsel shall, if
financially able to pay, reimburse the governmental unit
chargeable with the compensation of appointive counsel for
the actual costs to the governmental unit in providing the
services of the appointive counsel. The court in hearing such
matter shall ascertain the amount of such costs to be charged
to the defendant and shall direct reimbursement over a period
of not to exceed six months, unless the court for good cause
shown shall extend the period of reimbursement.
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“The proper procedure for obtaining reimbursement for public defender services requires
the court to conduct a hearing on the defendant’s financial ability to pay.” Foster v.
State, 416 N.W.2d 835, 837 (Minn. App. 1987). The purpose of the hearing is to
determine the cost of the public defender’s services and whether the defendant has the
ability to pay the fee. Id.
The district court ordered appellant to fully reimburse the public defender’s office
in light of appellant’s statement that he owns a 21-year-old Mercedes. We note that this
appears to be appellant’s only asset and that his annual liabilities exceed his annual
income by $800. Because the district court did not hold the requisite hearing to
determine the cost of the public defender’s services and appellant’s ability to pay for
those services in addition to the restitution ordered, we conclude that it abused its
discretion by assessing the entire cost of those services. We therefore remand this issue
to allow the district court to conduct such a hearing and issue further findings. See
Foster, 416 N.W.2d at 837 (“Since the record does not indicate how the court determined
the $500 amount in attorney fees assessed against [the appellant] and it does not indicate
whether the court made findings on [the appellant’s] ability to pay attorney fees, we
remand for a hearing and further findings.”).
III.
Finally, appellant argues that the district abused its discretion when it ordered
appellant to sell his car to fulfill his restitution obligation because the district court does
not have the statutory authority to decide the mechanism by which a defendant pays
restitution. We agree. Questions of statutory interpretation are reviewed de novo.
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Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001); see Dahlin v. Kroening,
796 N.W.2d 503, 508 (Minn. 2011) (stating that “[w]hen interpreting the statutes, it is our
role to rely on what the Legislature intended over what may appear to be supported by
public policy”). When interpreting a statute, “we give words and phrases their plain and
ordinary meaning.” State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013) (quotation
omitted).
The district court initially sentenced appellant to 90 days in the workhouse and
three years of probation, and imposed a $500 fine and $21,600 in restitution as conditions
of probation. Appellant challenged the amount of restitution, and the district court held a
restitution hearing. In a written order, the district court ordered appellant to pay the
dealership $16,616.05. In a footnote in this order, the district court also modified
appellant’s conditions of probation and ordered appellant to fully reimburse the public
defender’s office, and sell his car to satisfy these obligations.
Minnesota Statutes sections 611A.04-.045 are silent as to whether the court can
order a defendant to sell a specific piece of property to pay restitution. But courts in
other jurisdictions have addressed this issue. First, in State v. Schweitzer, the defendant
pleaded guilty to aggravated assault and stalking. 943 P.2d 649, 649 (Utah 1997).
Among other things, the defendant challenged the district court’s order requiring him to
pay restitution by placing a lien on and ordering the sale of his personal and real property.
Id. at 649-50. Under the Utah restitution statute, the district court has the authority to
order a person convicted of a crime that resulted in pecuniary damage to pay restitution
after considering the defendant’s financial resources and ability to pay. See Utah Code
10
Ann. § 76-3-201(4) (2012). In Schwietzer, the court stated “the record reflects that there
was some discussion regarding defendant’s financial resources, including his monthly
income, monthly debts, property, and assets. However, except for two pieces of real
property defendant admitted owning, the record did not contain information as to what
other property, real or personal, defendant owns.” 943 P.2d at 653. Thus, the court
reasoned,
While the statute clearly gives trial courts discretion to
determine restitution, i.e., to determine whether restitution is
appropriate and in what amount the statute contemplates that
the restitution order will be enforced according to the Utah
Rules of Civil Procedure. Section 76-2-301(4)(d)(iii)
provides that “[a] judgment ordering restitution constitutes a
lien when recorded . . . and shall have the same effect and is
subject to the same rules as a judgment for money in a civil
action.” Under subsection (4)(a)(iv), “the person in whose
favor the restitution order is entered may seek enforcement of
the restitution order in accordance with the Utah Rules of
Civil Procedure,” which provide for a hearing to both exclude
property exempt from execution and itemize the property
available for sale. Thus, the statute does not authorize the
trial court, upon imposing restitution, to also order the sale of
defendant’s property to satisfy that restitution order. Rather,
it contemplates that the trial court’s role is limited to
deciding, based on the statutorily imposed factors (primarily
the victim’s loss and the defendant’s resources), whether
restitution is appropriate and in what amount. The statute
places the responsibility with the party for whom restitution
has been ordered to affirmatively enforce the legal judgment.
Id. at 653-54 (citations omitted). The court held that the district court abused its
discretion by ordering the sale of the defendant’s unknown property to pay restitution and
affirmed the district court’s restitution order but struck the portion of the restitution order
requiring the lien and sale of all of the defendant’s property. Id. at 654-55.
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Although the district court in this case had information regarding appellant’s
assets when it ordered the sale of appellant’s car, Minnesota’s restitution statutes also do
not explicitly authorize the district court to order the sale of a defendant’s property to
satisfy a restitution order. See Minn. Stat. §§ 611A.04, .045. The statute only permits the
district court to determine whether restitution is appropriate and in what amount based on
the victim’s loss and the defendant’s ability to pay. Minn. Stat. § 611A.045, subd. 1(a).
If the defendant does not pay restitution, the restitution order “may be enforced by any
person named in the order to receive the restitution, or by the Crime Victims Reparations
Board in the same manner as a judgment in a civil action.” Minn. Stat. § 611A.04, subd.
3.2
A judgment in a civil action is enforced as follows. Except as otherwise provided,
“every [civil] judgment requiring the payment of money shall be entered by the court
administrator when ordered by the court and will be docketed by the court administrator
upon the filing of [the required] affidavit.” Minn. Stat. § 548.09, subd. 1 (2012). “From
the time of docketing the judgment is a lien, in the amount unpaid, upon all real property
in the county then or thereafter owned by the judgment debtor.” Id.
[I]f a judgment has been docketed in district court for at least
30 days, and the judgment is not satisfied, the judgment
creditor’s attorney . . . or the district court . . . shall, upon
request of the judgment creditor, order the judgment debtor to
2
Alternatively, when a probationer is required to pay restitution as a condition of
probation and fails to do so, the statute provides that the court may conduct a hearing to
either (1) change the conditions of probation, (2) revoke probation, or (3) extend the term
of probation for up to one year if it finds that the probationer has not paid restitution and
is not likely to pay it before probation expires. Minn. Stat. § 609.135, subds. la, 2(g)
(2012).
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mail by certified mail to the judgment creditor information as
to the nature, amount, identity, and locations of all the
debtor’s assets, liabilities, and personal earnings.
Minn. Stat. § 550.011 (2012). “[T]he information shall be sufficiently detailed to enable
the judgment creditor to obtain satisfaction of the judgment by way of execution on
nonexempt assets and earnings of the judgment debtor.” Id. “Where a judgment requires
the payment of money . . . it may be enforced in those respects by execution.” Minn.
Stat. § 550.02 (2012). “The officer shall execute the writ against the property of the
judgment debtor by levying upon the same . . . and paying to the judgment creditor the
proceeds, or so much thereof as will satisfy the execution.” Minn. Stat. § 550.08 (2012).
“All property, real and personal, including rights and shares in the stock of corporations,
money, book accounts, credits, negotiable instruments, and other evidences of
indebtedness, may be levied upon and sold on execution.” Minn. Stat. § 550.10 (2012).
Thus, under the current state of the law, to ensure that restitution is paid, the proper
course of action for the district court to take is to order a pecuniary amount of restitution;
if appellant defaults, the victim can obtain satisfaction of the judgment against appellant
by way of execution on appellant’s car.
The Oregon Court of Appeals has also addressed a similar issue. In State v.
Montgomery, the defendant was convicted of two counts of first-degree theft. 806 P.2d
183, 184 (Or. Ct. App. 1991). At sentencing, the district court ordered him to pay costs,
attorney fees, and restitution and to sell his car to satisfy those obligations. Id. The
Oregon Court of Appeals determined that “the [district] court had no authority to order
13
defendant to sell his car,” and that the error was apparent on the face of the record and
needed to be corrected. Id. It remanded the case to the district court for resentencing. Id.
After Montgomery, the Oregon Legislature enacted a statute stating:
(2) In addition to the general conditions, the court may
impose any special conditions of probation that are
reasonably related to the crime of conviction or the needs of
the probationer for the protection of the public or reformation
of the probationer, or both, including, but not limited to, that
the probationer shall:
....
(c) For crimes committed on or after December 5,
1996, sell any assets of the probationer as specifically ordered
by the court in order to pay restitution.
Or. Stat. § 137.540 (2012). The state relies on an Oregon case that occurred after the
enactment of this statute to argue that the court acted within its discretion when it ordered
appellant to sell his car. See State v. Plumb, 87 P.3d 676, 680 (Or. Ct. App. 2004). But
Plumb is inapposite; in that case the district court, apparently relying on Or. Stat.
§ 137.540, ordered the defendant to convey all interest in real property and her IRA and
401(k) to the victim to satisfy the $1 million dollar restitution order. Id. at 676-78. The
defendant did not challenge the district court’s ability to convey interest in real property
to fulfill the restitution order but instead successfully argued that the 401(k) was exempt
from restitution based on federal law. Id. at 678-79.
The state also relies on United States v. Harris, 192 Fed. Appx. 642 (9th Cir.
2006), to argue that the court did not err when it required appellant to sell his car to pay
14
restitution.3 In Harris, the defendant appealed the district court’s modification of the
conditions of his supervised release. Id. at 643. He was ordered to pay restitution as part
of his sentence. Id. After violating four conditions of his release, including failing to
register his vehicle and failing to pay restitution, the district court ordered the defendant
to turn over the title of his vehicle so that the government could sell it and apply the
proceeds toward restitution. Id. at 644. The defendant consented to the condition. Id.
The court determined that the unobjected-to modification did not constitute plain error.
Id. Harris is distinguishable from the case at hand. First, the defendant in Harris was
given the opportunity to pay restitution before the district court ordered him to sell his
vehicle. He violated his conditional release, which prompted the district court’s action.
Here, appellant was not given the opportunity to pay restitution before the district court
ordered him to sell his car. Furthermore, a specific federal statute authorizes the district
court to order the sale of a defendant’s property upon a finding that the defendant is in
default on a payment of a fine or restitution. See 18 U.S.C. § 3613A(a)(1). Minnesota
has no such statute. Therefore, Harris is not directly applicable to this case.
Overall, Schwietzer and Montgomery are instructive. Under the plain language of
Minn. Stat. §§ 611A.04, .045, the district court is not authorized to order a defendant to
sell personal property to satisfy a restitution order. Consequently, we conclude that the
3
Harris was issued before 2007 and not selected for publication in the Federal Reporter
and therefore is not precedential. See 9th Cir. R. 36-3 (“Unpublished dispositions and
orders of this Court are not precedent, except when relevant under the doctrine of law of
the case or rules of claim preclusion or issue preclusion.”); Fed. R. App. P. 32.1, cmt. a
(“The citation of unpublished opinions issued before January 1, 2007, will continue to be
governed by the local rules of the circuits.”).
15
district court abused its discretion by ordering appellant to sell his car to satisfy his
restitution requirements and reverse and remand for resentencing. It may well be that a
district court should have the authority to order a defendant to sell personal property to
satisfy a restitution order, but it is up to the legislature, and not us, to change the law. See
Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (“If there is to
be a change in the statute, it must come from the legislature, for the courts cannot supply
that which the legislature purposely omits or inadvertently overlooks.”).
DECISION
Because there was sufficient evidence to show by a preponderance of the evidence
that appellant caused the dealership’s loss and because the district court considered
appellant’s ability to pay restitution, the district court did not abuse its discretion by
ordering appellant to pay restitution. Because the district court erred by ordering
appellant to reimburse the public defender’s office without holding the required hearing,
and because, based on the plain language of Minn. Stat. §§ 611A.04, .045, the district
court does not have the statutory authority to order an offender to sell personal property
to fulfill a restitution order, we reverse and remand for resentencing.
Affirmed in part, reversed in part, and remanded.
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