State of Minnesota v. Berry Alan Willis ( 2016 )


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  •                               STATE OF MINNESOTA
    IN COURT OF APPEALS
    A16-0275
    State of Minnesota,
    Respondent,
    vs.
    Berry Alan Willis,
    Appellant.
    Filed August 15, 2016
    Affirmed in part, reversed in part, and remanded
    Bjorkman, Judge
    Hennepin County District Court
    File No. 27-CR-14-6683
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Michael O. Freeman, Hennepin County Attorney, Elizabeth A. Scoggin, Assistant
    County Attorney, Minneapolis, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
    Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and
    Bjorkman, Judge.
    SYLLABUS
    The Minnesota Rules of Evidence do not apply to restitution hearings.
    OPINION
    BJORKMAN, Judge
    Appellant challenges the restitution award in this aggravated forgery case, arguing
    that the district court erred by (1) considering hearsay evidence of the victim’s economic
    loss and (2) ordering restitution for expenses the victim incurred prior to appellant’s
    charged conduct. Because the rules of evidence do not apply to restitution hearings but
    restitution awards must reflect loss directly caused by the offense, we affirm in part,
    reverse in part, and remand.
    FACTS
    On October 28, 2013, appellant Berry Alan Willis filed a quitclaim deed in the
    name of P.H. to transfer residential property he previously lost in foreclosure back to
    himself. The state charged Willis with aggravated forgery. A jury found Willis guilty,
    and the district court imposed a stayed sentence with probation conditions.          At the
    sentencing hearing, the district court reserved the issue of restitution for 90 days. After
    the court ordered him to pay $25,400 in restitution, Willis requested a contested hearing.
    At the restitution hearing, victim P.H.’s son, J.H., testified that, in addition to
    filing the forged quitclaim deed, Willis engaged in other behavior that damaged P.H.
    After restoring the property, P.H. put it on the market in August 2013. But she quickly
    took it off the market because Willis harassed potential buyers by entering the property,
    claiming to be the rightful owner, and threatening to call the police. The property was
    eventually relisted in September 2013 and ultimately sold in February 2014.
    J.H. also testified about various costs P.H. incurred in relation to the property.
    P.H. borrowed $100,000 to buy the property in March 2013, and had monthly expenses,
    including loan payments, taxes, utilities, and insurance, totaling $1,457. Over Willis’s
    objection, J.H. produced a letter from P.H.’s lawyer stating that P.H. incurred $2,000 in
    attorney fees to cure the title defect caused by the forged deed. The district court ordered
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    Willis to pay P.H. $10,742 in restitution.        This amount includes $2,000 for P.H.’s
    attorney fees, and $8,742 representing P.H.’s monthly payments from August 2013 to
    February 2014. Willis appeals.
    ISSUES
    I.     Did the district court err by considering hearsay evidence at the restitution
    hearing?
    II.    Did the district court err by ordering restitution for loss P.H. incurred before Willis
    committed the forgery?
    ANALYSIS
    I.     The Minnesota Rules of Evidence do not apply to restitution hearings.
    Minnesota Rule of Evidence 1101 provides that the rules of evidence generally
    apply to all Minnesota court proceedings. But rule 1101 states that the rules (other than
    those involving privilege) do not apply to:
    Proceedings for extradition or rendition; probable
    cause hearings; sentencing, or granting or revoking probation;
    issuance of warrants for arrest, criminal summonses, and
    search warrants; and proceedings with respect to release on
    bail or otherwise.
    Minn. R. Evid. 1101(b)(3).        Our analysis turns on whether a restitution hearing
    constitutes “sentencing” under Minn. R. Evid. 1101(b)(3). We review the interpretation
    of the rules of evidence de novo. State v. McCurry, 
    770 N.W.2d 553
    , 559 (Minn. App.
    2009), review denied (Minn. Oct. 28, 2009).
    Willis correctly asserts that rule 1101(b)(3) does not expressly exempt restitution
    hearings from the rules of evidence. But that does not end our inquiry. Our legislature
    established restitution as part of a defendant’s sentence. “A victim of a crime has the
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    right to receive restitution as part of the disposition of a criminal charge . . . against the
    offender if the offender is convicted.” Minn. Stat. § 611A.04, subd. 1(a) (2012). And
    
    Minn. Stat. § 609.10
    , subd. 1(a)(5) (2012), provides that court-ordered restitution is a
    sentence that may be imposed upon conviction of a felony. Minnesota courts have
    consistently interpreted these statutes to mean that restitution is part of a criminal
    sentence. See Evans v. State, 
    880 N.W.2d 357
    , 359 (Minn. 2016); see also State v.
    Gaiovnik, 
    794 N.W.2d 643
    , 648 (Minn. 2011). Because the obligation to pay restitution
    is a part of a sentence, and the rules of evidence do not apply to sentencing proceedings,
    it follows that the evidentiary rules do not apply to restitution hearings.
    This conclusion is consistent with persuasive authority from the federal courts.
    The corresponding Federal Rule of Evidence provides that the rules (except for those on
    privilege) do not apply to “miscellaneous proceedings such as . . . sentencing.” Fed. R.
    Evid. 1101(d). Because the text of the federal rule is similar to our own, we may look to
    federal caselaw for guidance in construing the Minnesota rule.           State v. Head, 
    561 N.W.2d 182
    , 186 (Minn. App. 1997), review denied (Minn. May 28, 1997).
    Federal courts have interpreted Fed. R. Evid. 1101(d) to mean that the rules of
    evidence do not apply to restitution hearings. See, e.g., United States v. Ogden, 
    685 F.3d 600
    , 606 (6th Cir. 2012) (holding that disputes as to evidence admitted at a restitution
    hearing are meritless because the rules of evidence do not apply during sentencing
    proceedings); United States v. Yeung, 
    672 F.3d 594
    , 606 (9th Cir. 2012) (holding that
    because the rules of evidence, including the rule against hearsay, do not apply to
    sentencing hearings, the district court did not err in relying on hearsay in ordering
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    restitution), abrogated on other grounds by Robers v. United States, 
    134 S. Ct. 1854
    ,
    1857-59 (2014).
    This analysis also comports with the caselaw of other states. See, e.g., People v.
    Matzke, 
    842 N.W.2d 557
    , 559-60 (Mich. Ct. App. 2013) (holding that because restitution
    hearings are a part of sentencing and have nothing to do with a defendant’s guilt or
    innocence, the rules of evidence do not apply); State v. Ruttman, 
    598 N.W.2d 910
    , 911
    (S.D. 1999) (“Restitution is similar to other criminal sanctions and requires no greater
    procedural protections than those normally employed in sentencing.”).
    Willis likens restitution hearings to Blakely trials. We are not persuaded. In
    holding that the rules of evidence apply to Blakely trials, our supreme court distinguished
    a “sentencing” as contemplated when rule 1101 was adopted in 1977, and a “jury
    sentencing trial,” which flowed from Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
     (2000) and Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S. Ct. 2531
     (2004). State v.
    Rodriguez, 
    754 N.W.2d 672
    , 684 n.8 (Minn. 2008). In contrast, restitution was an aspect
    of sentencing prior to the adoption of rule 1101. In 1977, the same year our supreme
    court adopted rule 1101, the legislature amended 
    Minn. Stat. § 609.135
    , subd. 1 to
    explicitly permit district courts to order restitution as a condition of probation. 
    Minn. Stat. § 609.135
    , subd. 1 (Supp. 1977). But district courts had been doing so for years.
    See State v. Glewwe, 
    307 Minn. 513
    , 515, 
    239 N.W.2d 479
    , 480 (1976) (noting that
    restitution was ordered as a condition of probation in a theft case, but was improper
    because the stolen items had been returned); State ex rel. Ahern v. Young, 
    273 Minn. 240
    ,
    241, 
    141 N.W.2d 15
    , 16 (1966) (listing restitution as a condition of probation imposed
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    following a forgery conviction); see also 
    Minn. Stat. § 609.135
     (1976) (stating that a
    court may stay execution of sentence and place an individual on probation “on such terms
    as the court may prescribe”). Thus, unlike Blakely trials, the obligation to pay restitution
    was understood to be part of a criminal sentence at the time rule 1101 was adopted.
    Moreover, our supreme court recently observed that Blakely trials—whether decided by a
    jury or court—are functionally equivalent to the adjudication-of-guilt phase of a
    defendant’s criminal trial. State v. Sanchez-Sanchez, 
    879 N.W.2d 324
    , 330 (Minn. 2016).
    The supreme court reasoned that “there is a substantive difference between an ordinary
    sentencing hearing following a trial or a guilty plea and a sentencing trial where
    adjudicatory facts are determined.” 
    Id. at 329
    . Indeed, the special verdicts reached in a
    Blakely trial are among the factors a district court considers in determining a defendant’s
    sentence. 
    Id. at 330
    . In contrast, restitution hearings do not determine a defendant’s guilt
    or innocence. Rather, they determine the extent to which a victim should be compensated
    for loss incurred as a result of the criminal conduct for which a defendant has been found
    guilty beyond a reasonable doubt. See State v. Fader, 
    358 N.W.2d 42
    , 48 (Minn. 1984)
    (“In our opinion, the word ‘restitution’ connotes restoring or compensating the victim for
    his loss.”).
    In sum, because the rules of evidence do not apply to restitution hearings, the
    district court did not err by considering hearsay evidence of the legal fees P.H. incurred
    as a result of Willis’s offense.
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    II.    The district court abused its discretion by awarding restitution for damages
    that were not caused by the charged offense.
    District courts have broad discretion in awarding restitution. State v. Tenerelli,
    
    598 N.W.2d 668
    , 671 (Minn. 1999).          “But determining whether an item meets the
    statutory requirements for restitution is a question of law that is fully reviewable by the
    appellate court.” State v. Nelson, 
    796 N.W.2d 343
    , 346-47 (Minn. App. 2011) (quotation
    omitted).
    A victim may request restitution if the defendant is convicted of a crime. Minn.
    Stat. § 611A.04, subd. 1(a). When considering restitution requests, courts look at, among
    other factors, “the amount of economic loss sustained by the victim as a result of the
    offense.” Minn. Stat. § 611A.045, subd. 1(a)(1) (2012). This court has interpreted the
    statute to require that the claimed loss be “directly caused by the conduct for which the
    defendant was convicted.” State v. Latimer, 
    604 N.W.2d 103
    , 105 (Minn. App. 1999)
    (quotation omitted); see also State v. Olson, 
    381 N.W.2d 899
    , 901 (Minn. App. 1986)
    (holding that restitution is proper for “victim’s losses [that] are directly caused by
    appellant’s conduct for which he was convicted”).
    Willis does not dispute that P.H. should recover her monthly expenses between the
    time of the forgery and the sale of the home (November 2013 to February 2014). But he
    contends that the district court erred by holding him responsible for expenses P.H.
    incurred during the months prior to his offense. This argument has merit. In Nelson, we
    held that a district court errs when it does not “differentiate between losses resulting from
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    appellant’s conduct that occurred before and those that occurred during the charging
    period in setting the amount of restitution.” 796 N.W.2d at 348.
    The state contends that Nelson does not set out a clear rule preventing victims
    from receiving restitution for expenses incurred prior to the offense. And the state urges
    the court to affirm restitution for monthly expenses dating back to Willis’s earlier
    harassment because his desired ends—reclaiming property he believed to be his—were
    consistent with those of his charged offense. We are not persuaded. Willis was charged
    with committing aggravated forgery on October 28, 2013. The charge was based on
    conduct entirely separate from Willis’s uncharged harassing behavior. See 
    Minn. Stat. § 609.625
    , subd. 3 (2012) (“Whoever, with intent to defraud, utters or possesses with
    intent to utter any forged writing or object mentioned in subdivision 1 . . . knowing it to
    have been so forged, may be sentenced as provided in subdivision 1.”). Accordingly, any
    loss P.H. sustained prior to Willis’s forged deed cannot be said to have been directly
    caused by the charged offense. Because Willis is not responsible for economic loss P.H.
    sustained prior to the date of the forgery, we reverse and remand for the district court to
    reduce the restitution award accordingly.
    DECISION
    Because the Minnesota Rules of Evidence do not apply to restitution hearings, the
    district court did not err in considering hearsay evidence of P.H.’s economic loss. But the
    district court erred by awarding restitution for costs incurred prior to Willis’s charged
    conduct. Accordingly, we affirm in part, reverse in part, and remand.
    Affirmed in part, reversed in part, and remanded.
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