Opinion
No. C6-02-1663.
Filed June 17, 2003.
Appeal from the District Court, Olmsted County, File No. KX003563.
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Jeremy Cornick contends that the district court's restitution order lacked a factual basis. Because the record shows factual bases for the nature and amount of restitution ordered and appellant's ability to pay, we affirm.
FACTS
Appellant Jeremy Cornick pleaded guilty to the burglary of his former roommate's home and admitted stealing numerous compact discs (CDs), digital versatile discs (DVDs), laser discs, electronic equipment, and other items. As part of a plea bargain, Cornick agreed to pay restitution for the stolen goods in an amount to be determined.
When the district court ordered that Cornick pay restitution of $43,160 to the insurance company that paid the roommate's claim for property loss and $150 to the roommate for his insurance deductible, Cornick challenged the order. He disputed the replacement values of some items; claimed other items had been recovered; contended that he did not steal some of the goods included in the order; and argued that he did not have the ability to pay the amount the court ordered.
After an evidentiary hearing, the court ordered Cornick to pay restitution to State Farm Insurance Company in the sum of $39,160 and to the property owner the sum of $150 for his insurance deductible. Cornick appeals from that order.
DECISION
On appeal, Cornick contends that the district court abused its discretion in ordering restitution to State Farm because the state failed to establish a factual basis for the alleged loss.
The district court has broad discretion when determining and ordering restitution. State v. Olson, 381 N.W.2d 899, 900 (Minn.App. 1986). But this court has held that "[w]hile the district court has wide discretion in granting restitution, the record must provide a factual basis for an award." State v. Keehn, 554 N.W.2d 405, 408 (Minn.App. 1996), review denied (Minn. Dec. 17, 1996). This court exercises de novo review to determine whether a "particular item of restitution fits within the statutory definition." State v. Latimer, 604 N.W.2d 103, 104-05 (Minn.App. 1999) (citation omitted).
As part of the disposition of a criminal conviction, crime victims have a right to receive restitution for losses caused by the offender. Minn. Stat. § 611A.04, subd. 1 (1998). Through affidavits or other competent evidence, victims must show a factual basis for the claimed restitution, describing the items lost, itemizing the amounts of the restitution claim, and giving reasons that justify restitution. Id., subd. 1(a).
In making a restitution ruling, the district court must consider the amount of the victims' claimed losses and the "income, resources, and obligations" of the offender. Minn. Stat. § 611A.045, subd. 1 (1998). An offender who challenges the propriety of including in a restitution order particular items or the dollar amounts of those items has the burden of producing evidence to support the challenge. Id., subd. 3 (1998). The ultimate burden of establishing the appropriateness and the amount of restitution is on the prosecution. Id. "A dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence." Id.
At a restitution hearing, Cornick admitted stealing compact discs but not the quantities the victims claimed and not of the value they alleged. He also denied stealing a Madonna book, a television, and cash, and he contended that a DVD player, some DVDs, and 120 laser discs had been recovered. He contended that his former roommate's insurance claims were inflated as to the quantity of missing items and as to their value.
The district court received conflicting evidence on the restitution issues Cornick disputed. When conflicting evidence is produced, the district court must make a credibility determination, which is a matter that this court leaves to the discretion of the district court. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).
Cornick estimated that he stole about 2,000 compact discs of values ranging from $2.00 to $8.75. The court found that Cornick stole 3,300 CDs valued at $7.50 each. The roommate's affidavit and the insurer's claim-handling department support the court's determination. Cornick contends that the court failed to make a finding as to the number of CDs stolen. But the court did make such a finding at the conclusion of the hearing: "I'll be candid with you, I'm not going to disturb the thirty-three hundred compact discs at $7.50 a compact disc."
Cornick disputed the inclusion of a Madonna book, a television, and $300 missing cash in the restitution amount. He denied ever seeing the book, said he did not steal the TV, and alleged that the cash was missing before his theft. The court considered conflicting evidence as to these items and resolved the dispute against Cornick. On this credibility determination, the court did not abuse its discretion.
The police recovered a DVD player and some laser discs. The insurer disposed of those items as salvage and deducted the salvage value from its restitution claim. Thus, the restitution claim did not include items that had been recovered.
The district court originally awarded restitution of $43,160, and after the restitution hearing reduced the amount to $39,160. The evidence that the court found credible supported this amount and the propriety of including the items on which the court based its order. There was no abuse of discretion in the court's determination of what the specific losses were and the value of those losses.
Cornick also contends that, when he entered his plea, he had no notice that restitution would be of such a substantial amount. Relying on State v. Chapman, 362 N.W.2d 401 (Minn.App. 1985), review denied (Minn. May 1, 1985), he contends that this matter must be remanded with instructions as to what items are to be included in the restitution obligation or, in the alternative, to provide him with the option of renegotiating the restitution or withdrawing his plea.
In Chapman, the "plea agreement neither mentioned nor resolved the issue of restitution" for funds the appellant illegally obtained from a state hospital. Id. at 403. She pleaded guilty to two of eight counts. Id. The total sum alleged in those two counts was $15,747.97. Id. at 402. At sentencing, the court ordered restitution in the amount of $47,656.95, the shortfall revealed in an audit of hospital accounts. Id. On appeal, we noted that Chapman contemplated some restitution because her own sentencing proposal referred to restitution of $16,819.62. Id. But we held that the amount of restitution ordered so substantially exceeded the terms of the plea agreement that Chapman's plea was not voluntarily and intelligently entered. Id. at 404.
Chapman clearly had notice that she could be responsible for restitution for the two counts to which she pleaded guilty. Both counts charged specific amounts. But nothing whatsoever was said about the amounts in the remaining six counts to be dismissed. Chapman reasonably could have believed that she would not be responsible for amounts in the charges that would be dismissed.
Here, Cornick was arraigned on charges in two cases, one of which was the burglary charge. He agreed to "pay restitution on both cases." The complaint in the burglary case alleged that Cornick stole nearly all of approximately 3,500 CDs, 30 DVDs, 300 laser discs, two DVD players, a laser disc player, a receiver, an amplifier, a VCR, two speakers, a wedding ring, and $300 in cash. Specific values were given in the complaint for only the electronic equipment of $7,700, the wedding ring of $1,300, and the $300 cash. Common knowledge of the prices of goods of the kind allegedly stolen would have given the reasonable person notice that replacement costs could exceed $30,000. Unlike Chapman, Cornick had notice that he could be responsible for restitution for everything identified in the complaint, and he agreed generally to pay restitution for those items.
Finally, Cornick contends that the court abused its discretion by failing to properly consider Cornick's ability to pay the restitution ordered. He argued to the court that he had an $11,000 restitution obligation in another case, school loans of $1,800, and a debt to his mother of $300. He pointed out that he qualified for public-defender services and that he would be serving a three-year sentence.
As the respondent points out, Cornick's actual prison time will be less than ten months and, at the restitution hearing, Cornick agreed that he likely had a 40-year work expectancy and could probably pay the restitution over that period. Although the record indicates that Cornick will need some time to pay the restitution, it does not demonstrate an inability to pay it.