STATE of Minnesota, Respondent, v. Andrew Will ALEXANDER, Appellant.
No. A14-0409.
Court of Appeals of Minnesota.
Oct. 20, 2014.
855 N.W.2d 340
The district court did not modify the minor child‘s custody or change the child‘s primary residence by its modification of parenting time and did not abuse its discretion by modifying parenting time and the transportation obligations for parenting-time exchanges. The district court also did not err by adopting the proposed order submitted by father‘s attorney that conformed to the district court‘s ruling from the bench. The district court‘s findings addressing its grant to father of parenting time for every Thanksgiving, Christmas, and New Year‘s Day, as well as all of the child‘s spring, winter, and fall breaks from school, are inadequate, and we reverse that aspect of the parenting schedule and remand for the district court to reconsider its grant of parenting time on these holidays and special days. On remand, the district court shall have discretion to alter other aspects of the parenting schedule to the extent it deems it appropriate to do so, and shall make findings explaining the parenting schedule adopted. Additionally, on remand, the district court shall have discretion regarding whether to reopen the record.
Affirmed in part, reversed in part, and remanded.
Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, MN, for appellant.
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
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?
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);
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 damage.” But appellant admitted that he drove the BMW throughout the Twin Cities during the two-week
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.
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 or-
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
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.
“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 court 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.
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
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.
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
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.”
[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 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.
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.
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 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
Overall, Schweitzer and Montgomery are instructive. Under the plain language of
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
Affirmed in part, reversed in part, and remanded.