STATE of Minnesota, Respondent, v. Emile REY, Appellant.
A16-0198
Court of Appeals of Minnesota.
Filed January 9, 2017
Review Granted March 28, 2017
890 N.W.2d 135
Lоri Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Tricia A. Loehr, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Muehlbеrg, Judge.
MUEHLBERG, Judge *
Appellant Emile Rey challenges his obligation to pay restitution in the amount of $66,000, arguing that: the identity-theft statute, which authorized the district court to order restitution, violates his substantive and procedural due-process rights; the district court abused its discretion because it failed to consider his ability to pay restitution; and the restitution amоunted to an unconstitutional fine. We affirm.
FACTS
Rey pleaded guilty to one count of identity theft involving more than eight direct victims. See
ISSUES
I. Does the minimum-restitution provision in
II. Does the minimum-restitution provision in
III. Did the district court fail to consider Rey‘s ability to pay before ordering restitution?
IV. Is the minimum-restitution provision in
ANALYSIS
A district court has broad discretion to order restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). Unlike fines, which are typically punitive in nature, the aim of restitution is to either rehаbilitate a defendant or compensate the victim. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984). Generally, restitution may cover, but is not limited to, “any out-of-pocket losses resulting from the crime.” State v. Palubicki, 727 N.W.2d 662, 666 (Minn. 2007) (citing to the general restitution statute,
Rey challenges his restitution obligation, arguing that the minimum-restitution provision is unconstitutional because it violates his substantive and procedural due-process rights. The constitutionality of a statute presents a question of law, which we review de novo. State v. Bussmann, 741 N.W.2d 79, 82 (Minn. 2007). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely
I. Minnesota Statutes section 609.527 , subdivision 4, does not violate Rey‘s substantive due-process rights.
The Due Process clauses of the United States and Minnesota Constitutions prohibit the government from depriving a person of “life, liberty, or property, without due process of law.”
To addrеss Rey‘s constitutional challenges, we must initially examine whether the minimum-restitution provision of the identity-theft statute implicates a fundamental right. A fundamental right is one that is so deeply rooted in our nation‘s history and tradition that neither liberty nor justice would exist if the right was sacrificed. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). But Minnesota courts have been reluctant to expand the concept of substantive due process because “guideposts for responsible decision-making in this unchartered area are scarce and open-ended.” Hill, 871 N.W.2d at 905-06 (quotation and citation omitted).
Rey generally asserts that the minimum-restitution provision infringes on a fundamental right to property; specifically, the right to acquire and dispose of his money as he сhooses. We disagree. Beyond the mere assertion that a fundamental right is implicated, Rey makes no effort to describe the right. Minnesota courts have never held that the right to property is a fundamental right that shields an individual from paying restitution for crimes of which he or she has been duly convicted. See, e.g.,
Because no fundamental right is implicated, we address the constitutionality of the minimum-restitution provision under the ratiоnal-basis test. Under that test, we will uphold a statute so long as it bears a rational relationship to a legitimate purpose. Gustafson, 884 N.W.2d at 683. Rey acknowledges that the state has a legitimate interest to order restitution to compensate victims of crimes. He argues, however, that the minimum-restitution provision does not bear a rational relationship to that purpose because the $1,000 amount to each victim is untethered to a victim‘s actual loss. We disagree. The identity-theft statute is clear and unambiguous; under a plain reading of the statute, restitution is unquestionably tied to direct victims of identity theft. See
In State v. Moua, we recognized the potential indeterminable future costs associated with identity theft. 874 N.W.2d 812, 818 (Minn. App. 2016) (interpreting whether the identity-theft statute authorized a district court judge to order restitution), review denied (Minn. Apr. 19, 2016). We acknowledged that thе legislature intended direct victims to include those who suffered both economic and non-economic harm. Id. at 817. “[T]he legislature‘s decision to tie the severity of sentencing to either the number of direct victims or the total, combined economic loss . . . recognize[s] that culpability flows from both the amount of economic lоss and the number of direct victims involved, regardless of the extent of their loss or harm.” Id. (citing to
While it is true that the legislature could have required that restitution in identity-theft cases be calculated in the same fashion as the general restitution statute, “we implicitly recognized the legislature‘s intention to forego the procedural requirements cоntained in the general restitution statutes to make restitution broadly available to those affected by identity theft.” Id. at 818. To reach this conclusion, we emphasized that victims of identity theft face lingering threats to their identity and financial security. Id.4 While a five-minute
We do not believe the legislature intended identity-theft victims to incur actual pecuniary loss as a prerequisite to claiming restitution. See
II. The minimum-restitution provision is constitutional because it does not violate Rey‘s procedural due-process rights.
Rey argues next that the minimum-restitution provision violates his procedural due-process rights because it does not afford him a meaningful hearing to contest the order of restitution to each victim. We reject this argument.
Procedural due process refers to notice and opportunity to be heard at a meaningful time and in a meaningful manner. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012). Appellate courts conduct a two-step analysis to determine whether the government has violated an individual‘s procedural due-process rights. Id. First, we determine whether the government has deprived the individual of an interest such as life, liberty, or property. Id. If no right is implicated, no process is due. Id. If such a right is implicated, our next step requires this court to determine whether the procedures followed by the government were sufficient. Id.
In Moua, we implicitly recognizеd that the minimum-restitution provision raises concerns that an individual‘s right to property may be deprived by an order of restitution. 874 N.W.2d at 816.5 Nevertheless, we determined that the procedures employed by the government were sufficient to provide a defendant with notice and an opportunity to challenge the restitution. Id. at 815 (explaining that the defendant had notice at his plea hearing that the state could seek restitution and had an opportunity to challenge restitution at a separate hearing).
Before Rey‘s plea hearing, the district court ordered a presentence-investigation report. That report recommended that Rey be ordered to pay restitution in the amount of $1,000 to each victim (totaling $66,000). At his plea hearing, Rey admitted to using the credit cards of 66 victims. Although the record at the time of his plea did not make clear that restitution would be sought, the record at sentencing establishes that restitution would be based on
III. The district court did not аbuse its discretion because it properly considered Rey‘s ability to pay before ordering him to pay restitution.
Rey argues that the court committed reversible error by ordering him to pay restitution without considering his ability to pay. We disagree. The pre-plea, presentence-investigation report contained informatiоn about his income, resources, and obligations. The report indicated his ability to pay.6 At sentencing, Rey said that he had almost graduated from college and wanted to get a job. In light of Rey‘s ability to pay, the district court highlighted the pervasiveness of his credit-card cloning scheme and the large number of victims affected. Further, the district court explained that it “looked through everything that was submitted.” Because we have upheld restitution orders even in cases where a defendant may not be able to pay the amount ordered, we conclude that the district court did not abuse its discretion because it properly considered Rey‘s ability to pay when it ordered restitution. See State v. Alexander, 855 N.W.2d 340, 344-45 (Minn. App. 2014) (explaining the district court‘s need to consider the harm and loss to the victims when ordering restitution) (citations omitted); State v. Miller, 842 N.W.2d 474, 479 (Minn. App. 2014) (explaining that a district court does not need to issue specific findings on the defendant‘s ability to pay), review denied (Minn. Apr. 15, 2014).
IV. The restitution did not amount to an unconstitutional fine.
Rey argues that his obligation to pay restitution was an unconstitutional fine because the minimum-restitution provision is not connected to the victims’ actual losses. He asserts that because the restitution was effectively a fine, a jury trial was required. Cf. Blakely v. Washington, 542 U.S. 296, 301-02 (2004) (concluding that any fact which increases the penalty for a crime beyond a statutory maximum must be submitted to a jury).
As we have previously explained, “[t]he minimum-restitution provision reflects the legislature‘s recognition that while it is difficult to quantify loss or harm occasioned by identity theft, victims nonetheless experience material detriment.” Moua, 874 N.W.2d at 818; cf. Fader, 358 N.W.2d at 48 (clarifying that because the aim of restitution is to compensate the victim, its amount should be based on the victim‘s injury).7 And because Rey is not entitled tо a jury trial to determine the underlying facts that form the basis for the amount of restitution, the restitution ordered is not an unconstitutional fine. See State v. Maxwell, 802 N.W.2d 849, 851-52 (Minn. App. 2011) (holding that restitution is not a fact which increases the penalty for a crime because Minnesota statutes do not provide
DECISION
Because the minimum-restitution provision in
Affirmed.