State of Minnesota v. Robert Neil Ackland ( 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This opinion will be unpublished and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
A16-0936
State of Minnesota,
Respondent,
vs.
Robert Neil Ackland,
Appellant.
Filed November 28, 2016
Affirmed
Smith, John, Judge *
Freeborn County District Court
File No. 24-CR-14-1556
Lori Swanson, Attorney General, St. Paul, Minnesota; and
David J. Walker, Freeborn County Attorney, Paige L. Starkey, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)
David W. VanDerHeyden, VanDerHeyden Law Office, P.A., Rochester, Minnesota (for
appellant)
Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
SMITH, JOHN, Judge
We affirm the district court’s order for restitution because the district court
considered appellant’s ability to pay and did not abuse its discretion in ordering appellant
to pay restitution during the term of his probation.
FACTS
The state charged appellant Robert Neil Ackland with felony theft for the theft of
over one hundred and forty tons of railyard materials from the victim T.B.’s property in
February 2013.
Ackland pleaded guilty to gross-misdemeanor theft. T.B.’s restitution affidavit
averred that the value of the stolen property totaled $36,900, at a market price of $300 per
ton. The district court sentenced Ackland to two years’ probation, stayed execution of one
year’s imprisonment, and ordered Ackland to pay $36,900 in restitution to T.B
Ackland challenged the restitution award at the district court. Before the restitution
hearing, T.B. filed an amended restitution affidavit, asking the district court to order
restitution in the amount of $42,659.40, which reflected adjustments in the quantity of
property stolen calculated by T.B.
Ackland testified that the materials stolen from T.B.’s property were in
“deteriorated” condition. He also testified that I-35 Auto Recycling purchased the property
at $225 per ton and $225 per ton was the prevailing fair market price. Ackland also testified
that in the salvage industry, proceeds from scrap sales are divided between the owner and
laborer—the owner receives one-third of the proceeds, and the laborers receive the
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remaining two-thirds as overhead. He also testified that he was in poor physical health,
that he hopes to return to work when his health is restored, and that his income comes from
social security and military disability payments. Ackland also testified about his financial
obligations and assets, which included commercial vehicles and a rental property.
The district court granted T.B.’s request for restitution and ordered Ackland to pay
restitution in the amount of $39,609.15. In its written order, the district court made findings
of fact regarding the condition, weight, and quantity of railroad property taken from T.B.’s
property, the method by which T.B. calculated the weight and quantity of stolen property,
the prevailing fair market value of the property in February 2013, and factors bearing on
Ackland’s ability to pay restitution. The district court concluded that the state had proved
by a preponderance of the evidence that Ackland had stolen and sold 141.46125 tons of
rail, splices, spikes, and plates when the fair market value of the property was $280 per ton.
The district court gave Ackland “the entire period of probation to satisfy [the] Restitution
Order.”
Ackland appeals.
DECISION
The victim of a crime has a right to restitution if the perpetrator is convicted. Minn.
Stat. § 611A.04, subd. 1 (2014). When determining whether to order restitution and in
what amount, the district court “shall consider . . . the amount of economic loss sustained
by the victim as a result of the offense; and [] the income, resources, and obligations of the
defendant. Id. § 611A.045, subd. 1(a). A victim’s request for restitution “may include, but
is not limited to, any out-of-pocket losses resulting from the crime.” Id. § 611A.04, subd.
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1. A district court has “significant discretion” to award restitution, and we affirm a district
court’s order of restitution unless there has been an abuse of discretion. State v. Tenerelli,
598 N.W.2d 668, 671-72 (Minn. 1999). The district court “abuses its discretion when it
acts arbitrarily, without justification, or in contravention of the law.” State v. Mix, 646
N.W.2d 247, 250 (Minn. 2002).
A restitution award must be supported by facts in the record. See State v. Fader,
358 N.W.2d 42, 48 (Minn. 1984) (remanding where the record did not provide factual basis
to support the amount of restitution ordered). “The district court’s factual findings will not
be disturbed unless they are clearly erroneous.” State v. Andersen, 871 N.W.2d 910, 913
(Minn. 2015), reh’g denied (Minn. Jan. 21, 2016) (citing Dobbins v. State, 788 N.W.2d
719, 725 (Minn. 2010)).
Ackland argues that the district court failed to make conclusions of law as to his
ability to pay restitution and how restitution payments were to be made. In addition, he
argues that T.B.’s restitution award should be reduced by the labor and transportation costs
incurred by Ackland in bringing the property to market. Lastly, Ackland argues that the
district court abused its discretion when it ascribed value to the property based on T.B.’s
calculations of its weight, quantity, and fair market value.
We first address whether the district court abused its discretion when it considered
Ackland’s ability to pay. A presentence investigation for a case involving restitution must
contain information about the defendant’s ability to pay. Minn. Stat. § 611A.045, subd. 2.
When the district court determines whether and in what amount to order restitution, it must
consider a defendant’s financial resources and obligations in addition to the victim’s
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economic loss. Id., subd. 1. Though the district court has a duty to consider a defendant’s
ability to pay, “it has no specific obligation to make findings on an offender’s ability to pay
it.” State v. Nelson, 796 N.W.2d 343, 349 (Minn. App. 2011). In fact, “[t]here is no strict
requirement regarding how the district court should address the issue.” State v. Miller, 842
N.W.2d 474, 479 (Minn. App. 2014), review denied (Minn. Apr. 15, 2014). It is adequate,
for example, if the district court simply states that it considered a defendant’s future wages
when determining ability to pay. State v. Lindsey, 632 N.W.2d 652, 663-64 (Minn. 2001).
It is not an abuse of discretion if the district court ultimately orders restitution in an amount
larger than the defendant can ever pay. See, e.g., id. (finding no abuse of discretion for
failure to consider defendant’s ability to pay where the trial court ordered an indigent
defendant to pay $32,682.93 in restitution using prison wages); State v. Maidi, 537 N.W.2d
280, 285 (Minn. 1995) (finding no abuse of discretion where the trial court ordered a
restitution award that was mathematically impossible to pay based on the defendant’s
wages); but see Miller, 842 N.W.2d at 479 (reversing a restitution order because the record
lacked a presentence investigation addressing ability to pay, the district court failed to make
findings on the defendant’s ability to pay, and ordered a large restitution payment in an
abbreviated time frame).
The district court considered Ackland’s ability to pay. Factors bearing on Ackland’s
ability to pay were mentioned in the presentence investigation, thoroughly discussed during
the restitution hearing, and appear in the district court’s findings of fact. Further, the judge
questioned Ackland directly about his health and financial resources. Both Ackland’s
counsel and the state elicited testimony from Ackland about factors bearing on his ability
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to pay. In its order, the district court made factual findings about Ackland’s health, assets,
household income, and financial obligations. It also acknowledged Ackland’s age of 75
years, his poor physical health, and his limited income from social security, military
disability, and his wife’s pension and income from music lessons. The district court also
noted Ackland’s intent to return to work once his health is restored. On this record, the
district court did not abuse its discretion and sufficiently considered Ackland’s ability to
pay restitution.
We next consider whether the district court abused its discretion when it rejected
Ackland’s suggestion to reduce T.B.’s restitution award by the costs incurred by Ackland
to bring the stolen property to market. According to Ackland’s testimony, it is standard
industry practice that the owner of salvaged property retains one-third of the market price
and the remaining two-thirds is paid to labor. Therefore, Ackland asserts, T.B. is entitled
to a restitution award comprising one-third of the market price of the property, which
represents the “actual net proceeds [he] would have realized.” However, Ackland cites no
legal authority to support his assertion that the victim of a theft should effectively
recompense the perpetrator for the cost of realizing value in stolen property. When
ordering restitution, the district court “shall consider . . . the amount of economic loss
sustained by the victim as a result of the offense . . . .” Minn. Stat. § 611A.045, subd. 1(a)
(emphasis added); see also State v. Harvey, 547 N.W.2d 706, 708-09 (Minn. App. 1996)
(“If a trial court seeks, in setting restitution, to compensate for loss, . . . then the amount
should be based on the victim’s injury.”). Here, the district court calculated T.B.’s
economic loss as the fair market value of his stolen property, as measured by the property’s
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tonnage and the prevailing price that salvagers would have paid T.B. if he had chosen to
scrap the property himself in February 2013. We conclude that the district court did not
abuse its discretion when it declined to reduce the restitution award in the manner
suggested by Ackland.
We now turn to Ackland’s contention that the district court abused its discretion
when it calculated the value of T.B.’s property and declined to order restitution based on
the actual amount paid by I-35 Auto Recycling to Ackland. “A dispute as to the proper
amount or type of restitution must be resolved by the court by the preponderance of the
evidence,” and “[t]he burden of demonstrating the amount of loss sustained by a victim as
a result of the offense and the appropriateness of a particular type of restitution is on the
prosecution.” Minn. Stat. § 611A.045, subd. 3(a). At the restitution hearing, the state
offered testimony of T.B., a police investigator, and the manager at I-35 Auto Recycling
regarding the valuation of the stolen property. We defer to the district court’s credibility
determinations. State v. Alexander, 855 N.W.2d 340, 344 (Minn. App. 2014).
The district court found that the state met its burden of proving the value of T.B.’s
stolen property. The state offered T.B.’s detailed testimony about how he measured and
verified the length and weight of the 141.46125 tons of stolen rail, spikes, splices, and
plates. T.B. testified that the property’s condition was “fine” and “not deteriorated.” T.B.
also testified about his conversations with an area salvager who would have paid $300 per
ton in February 2013 and required proof of ownership. The state offered the testimony of
the manager of I-35 Auto Recycling, who testified that he purchased Ackland’s stolen
property for $225 per ton without requiring proof of ownership. The state also offered the
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testimony of an investigating police detective, who testified that two area salvagers would
have required proof of ownership before accepting scrap, and one would have paid $280
to $290 per ton in February 2013. The district court did not abuse its discretion when it
credited the state’s evidence and ordered restitution in the amount of $39.609.15 where
Ackland stole 141.46125 tons of T.B.’s property when the prevailing market rate was $280
per ton.
We conclude that the district court did not abuse its discretion when awarding
restitution because it considered Ackland’s ability to pay and correctly ascribed value to
the stolen property.
Affirmed.
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