State of Minnesota v. Joseph Victor Pierce ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1334
State of Minnesota,
Respondent,
vs.
Joseph Victor Pierce,
Appellant.
Filed June 13, 2016
Affirmed
Kirk, Judge
Martin County District Court
File No. 46-CR-15-331
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Terry W. Viesselman, Martin County Attorney, Fairmont, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant challenges the district court’s restitution order, arguing that the state
failed to meet its burden in proving that the victims’ losses were directly caused by
appellant’s conduct and that the court did not consider his income, resources, and
obligations before ordering restitution. We affirm.
DECISION
We review the district court’s decision for an abuse of discretion. State v. Nelson,
796 N.W.2d 343, 346 (Minn. App. 2011). Crime victims are entitled to restitution for
losses they incur from the crime. Minn. Stat. § 611A.04, subd. 1(a) (2014). An offender
may challenge the restitution amount by producing a “detailed sworn affidavit” under
Minn. Stat. § 611A.045, subd. 3(a) (2014), setting forth all challenges to restitution. After
the offender properly challenges the restitution order, the state bears the burden of proving
the amount and appropriateness of the restitution by a preponderance of the evidence. Id.;
State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2010).
After pleading guilty to third-degree burglary, appellant Joseph Victor Pierce
challenged the victims’ requested restitution amount and items. After a hearing, the district
court ordered restitution in the amount of $268.59 for the losses claimed by the victims.
On appeal, Pierce argues that the state failed to prove that the claimed losses were directly
attributable to his conduct and that the district court failed to consider his income,
resources, and obligations before ordering restitution.
The record demonstrates that Pierce’s counsel filed a “restitution motion”
challenging the claimed losses, which satisfies Minn. Stat. § 611A.045, subd. 3(b) (2014),
but the record does not include the required sworn affidavit from Pierce. “[T]he affidavit
is both the sole vehicle by which the offender can meet the burden of pleading, and an
essential element of the offender’s case required to meet the burden of production.” Thole,
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614 N.W.2d at 235. Because Pierce failed to follow the statutorily prescribed procedure,
we conclude that Pierce’s objections are not properly before us. Id.
However, assuming arguendo, that Pierce met his pleading requirement, he did not
produce evidence to support his challenge. Minn. Stat. § 611A.045, subd. 3(a). The only
evidence to support Pierce’s challenge to restitution was his testimony where he claimed
that he did not take the missing items. But the district court found that Pierce did not
dispute burglarizing the tool shop and that he testified to being very intoxicated during the
burglaries. Pierce’s testimony fails to satisfy his burden of production and to establish a
valid dispute over the restitution order. Hence, the district court did not abuse its discretion
in determining that the state proved the claimed losses through the victims’ testimony at
the restitution hearing about the claimed missing items and their respective monetary
values. “We defer to the district court’s credibility determination in resolving conflicting
testimony.” State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn.
Nov. 18, 2003).
The district court also implicitly found that Pierce could pay restitution, based on
his reported income stated in the presentencing investigation report. See Minn. Stat.
§ 611A.045, subd. 1(a)(2) (2014) (requiring the district court to account for an offender’s
ability to pay when ordering restitution); Nelson, 796 N.W.2d at 349 (noting that a
presentence investigation report constitutes evidence establishing an offender’s ability to
pay restitution). Finally, Pierce argues in a pro se supplementary brief that the state failed
to honor the plea agreement regarding the length of his sentence, that his attorney provided
ineffective assistance, and that he did not violate his probation. These issues were outside
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the scope of the restitution hearing and are deemed waived on appeal. Thiele v. Stich, 425
N.W.2d 580, 582-83 (Minn. 1988).
Affirmed.
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