STATE of Minnesota, Respondent, v. Toby Earl JOHNSON, Appellant.
No. A13-2353.
Supreme Court of Minnesota.
July 30, 2014.
Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Special Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
OPINION
LILLEHAUG, Justice.
Appellant Toby Earl Johnson challenges a restitution order entered against him after he was convicted of aiding and abetting the first-degree premeditated murder of Randy Pool. This matter comes to us under our authority to hear sentencing appeals in first-degree murder cases. See State v. Jones, 678 N.W.2d 1, 23 (Minn. 2004); State v. Warren, 592 N.W.2d 440, 451 (Minn.1999). Johnson raises three issues before this court. First, he argues that the restitution order improperly included restitution for losses for which an insurance company had already reimbursed Pool‘s estate. Second, he argues that the order improperly calculated the restitution Johnson and his codefendants should pay for damage done to Pool‘s car. Third, he argues that the district court did not have statutory authority to order that the codefendants are jointly and severally liable for the restitution award. We affirm in part, vacate in part, and remand to the district court for further proceedings.
I.
On April 10, 2000, appellant Toby Earl Johnson pleaded guilty to one count of aiding and abetting first-degree premeditated intentional murder, see
After Johnson pleaded guilty, Pool‘s family submitted a restitution request on behalf of Pool‘s estate, claiming a total financial loss of $13,253.80. See
As part of the loss claimed, the family requested $3,080.41 for Pool‘s car, which they said had been “totaled.” That number reflected how much the estate owed a bank on a promissory note secured by the car. According to a letter from the attorney for Pool‘s estate to the bank, the windshield, the driver‘s window, and the trunk lock were broken; the keys were missing; and the car did not run. The letter said “[t]here was insurance on the automobile but it had a $1,000 deductible. The insurance company states that the car is not worth $1,000 and therefore, has not paid anything toward the damages.”
At Johnson‘s sentencing hearing, the district court convicted Johnson of first-degree premeditated murder under
On October 9, 2008—more than eight years later—the district court issued its restitution order. The court noted that Johnson‘s codefendant Heather Ecklund had been ordered to pay restitution for the crime, and adopted the order from Ecklund‘s case. The court also ordered that Johnson be jointly and severally liable for paying restitution along with five of his codefendants, including Ecklund. The adopted order outlined the following restitution payments:
$7,468.48 for house repairs ($3,988.48 reimbursement of insurance company);
$5,485.39 for personal property loss;
$3,080.41 for loss of automobile;
$1,500 transactional costs in sale of house;
$800 legal fees and estate costs in closing estate;
$4,725.94 reimbursement to the Minnesota Crime Victims Reparations Board.
$23,060.22 TOTAL
On June 4, 2013, the district court issued an order saying that it would hold a restitution hearing for four of the defendants, including Johnson, because “[q]uestions have arisen as to the amount of restitution each should pay and whether the restitution is Joint and Several for each of the Defendants.” Johnson filed a pro-se “request for relief” with the court before the hearing. Among other challenges to the order, he argued that joint and several liability was not proper in restitution. Contending that the award should be split into six portions, Johnson asserted that joint and several liability “does not hold any fairness or equality under economical standards of justice.” Johnson also challenged the court‘s valuation of the car.
On September 17, 2013, after the hearing, the district court affirmed the original restitution order as to Johnson and three of his codefendants, noting that another three codefendants had completed their sentences so the court could not order
II.
We turn first to Johnson‘s argument that the district court improperly awarded the Pool estate restitution for losses for which it had already been compensated by the insurance company. As a threshold matter, we must decide if Johnson has forfeited this argument. He did not raise this issue before or during the hearing on the restitution award, nor has he ever raised it in his many communications with the district court. See Johnson v. State, 673 N.W.2d 144, 147 (Minn.2004).
Generally, we will not consider arguments that are made for the first time on appeal. Greene v. Comm‘r of Minn. Dep‘t of Human Servs., 755 N.W.2d 713, 725 n. 9 (Minn.2008). One purpose of this rule is to encourage the development of a factual record at the district court level. Johnson, 673 N.W.2d at 147. The rule, however, is not absolute, and we can address issues in the interests of justice as long as doing so will not unfairly surprise the other party. Id.
But none of the factors that we generally consider relevant to hearing a case in the “interests of justice” are present here, and several factors caution against granting review. First, whether the district court included money that the insurance company had already paid the estate is a question of fact that was not developed below. See, e.g., Johnson, 673 N.W.2d at 148. Second, this issue does not involve any important liberty interests or pressing matters of statewide concern. See, e.g., State v. Henderson, 706 N.W.2d 758, 760 (Minn.2005); State v. Profit, 591 N.W.2d 451, 462 (Minn.1999). Third, it is impossible to tell whether this issue is even ripe for consideration. See State v. Palubicki, 727 N.W.2d 662, 667-68 (Minn.2007) (holding that an issue was not yet ripe for consideration when a defendant argued that requiring him to pay a certain kind of restitution would lead to a double recovery on the part of the victim‘s family, because the victim‘s children had “not yet received payment in excess of their economic loss“).
Johnson‘s failure to raise the issue below did not give the district court an opportunity to clarify the restitution order in light of the insurance award. Accordingly, we hold that Johnson has forfeited the issue.
III.
We turn next to Johnson‘s argument that the district court improperly ordered him to pay $3,080.41 for the victim‘s car. He argues that the court used the value of an outstanding promissory note, secured by the car, as the value of the car, rather than calculating the actual damage the defendants caused. Whether the district court used the proper measure of loss is a question of law, which we review de novo. See City of Moorhead v. Red River Valley Coop. Power Ass‘n, 830 N.W.2d 32, 36 (Minn.2013).
When someone is convicted of a felony, the district court can order restitution to the victim as part of the criminal sentence. See
The primary purpose of restitution is to “restore crime victims to the same financial position they were in before the crime.” Palubicki, 727 N.W.2d at 666. Applying this standard, the district court erred by using the value of the outstanding promissory note as the value of the car rather than calculating the actual loss that defendants’ actions caused. If this crime had not happened, Pool would have had to repay the bank what he owed on the promissory note regardless of how much or how little the car was worth. To put the estate in the same financial position Pool was in before the crime, the measure of loss should be the actual damage defendants caused to the car.
As a factual matter, the State has not met its burden to show the damage to the car by a preponderance of the evidence. See
IV.
Finally, we turn to Johnson‘s assertion that the district court did not have the statutory authority to order that restitution liability be joint and several. Johnson argues that, while district courts may have broad discretion in determining an appropriate award of restitution,
In the civil context, Minnesota common law has long provided that parties whose concurrent negligence causes injury are jointly and severally liable for the resulting damages. See Maday v. Yellow Taxi Co. of Minneapolis, 311 N.W.2d 849, 850 (Minn.1981) (“It has always been the law of this state that parties whose negligence concurs to cause injury are jointly and severally liable although not acting in concert.“); Flaherty v. Minneapolis & St. Louis Ry. Co., 39 Minn. 328, 329, 40 N.W. 160, 160-61 (1888). The rule of joint and several liability places the interests of an innocent party above the interests of those who caused the damage. See Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970). And even though the Legislature has limited contributions to awards in the civil context,
In the criminal context, we hold today that when a victim sustains indivisible loss from multiple defendants’ actions, the sentencing court has the authority to order restitution based on joint and several liability.4 In this case, Johnson pleaded guilty and was convicted of aiding and abetting first-degree murder under
Affirmed in part, vacated in part, and remanded.
LILLEHAUG
Justice
ANDERSON, J., took no part in the consideration or decision of this case.