This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-1011

 

 

In the Matter of the Welfare of:

D.D.M., Child.

 

 

Filed May 14, 2002

Affirmed

Willis, Judge

 

Scott County District Court

File No. J0006924

 

John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant D.D.M.)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Thomas J. Harbinson, Scott County Attorney, Ruby Q. Dasgupta, Assistant County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN   55379 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

As part of a plea agreement, appellant pleaded guilty to failure to give information after an accident in which he struck a pedestrian.  He challenges the district court’s order for restitution based on the accident victim’s lost wages, arguing that the record fails to establish his liability for the loss and that the terms of his plea agreement do not include restitution for that loss.  Because the district court did not abuse its discretion by awarding the victim restitution based on his lost wages, we affirm.  

FACTS

While driving, appellant D.M., a juvenile, struck and injured a pedestrian in March 2000.  He fled the scene.  Appellant later admitted to police that he struck the victim, and he was charged with leaving the scene of an accident, reckless driving, and driving without a license.  As part of a plea agreement, the state dismissed the original charges, and appellant pleaded guilty to a misdemeanor charge of failure to give information after an accident, a violation of Minn. Stat. § 169.09, subd. 3(a) (2000).  He was adjudicated delinquent for that charge.   

At the plea and sentencing hearing, the district court reserved the issue of restitution

to permit there to be, potentially, some resolution by claims process or otherwise of any claim the victim may have in that case.  After a period of six months, then restitution will be reviewed.  Restitution, number one, would be limited to any out-of-pocket medical expenses or the cost of any clothing that may have been damaged -- any of the victim’s clothing that may have been damaged. 

 

Once restitution is ordered, if it is ordered and there’s some amount that’s deemed to be appropriate or that you would be required to pay, you * * * would have the opportunity to bring the matter on for restitution hearing, should you disagree with the amount that is set.

 

The victim submitted no claim for damaged clothing, and he received reimbursement under an insurance policy for his out-of-pocket medical expenses.  But upon receiving proof of lost wages, the district court filed a restitution order directing appellant to pay $6,050 to the victim for the uncompensated lost wages that resulted from his injuries.  Appellant challenged the restitution award, arguing at a contested restitution hearing that the victim did not suffer injuries severe enough to warrant the amount of his claim.  The district court affirmed its award, and this appeal follows.

D E C I S I O N

            Appellant argues that the district court erred when it ordered him to pay restitution based on lost wages because the record fails to establish his liability to the victim and because the terms of his plea agreement do not include restitution for that loss.  Appellant did not raise those issues at the contested restitution hearing.  A defendant who fails to object to a restitution award waives his right to challenge the award on appeal.  State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993).  This court’s review is limited to issues that the record indicates were actually raised to, and decided by, the district court.  Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn. App. 1989). 

But we have the authority to consider the issues in the interests of justice, and we choose to do so here.  Minn. R. Juv. P. 21.03, subd. 1.          

A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge or juvenile delinquency proceeding against the offender if the offender is convicted or found delinquent. 

 

Minn. Stat. § 611A.04, subd. 1(a) (2000).  In awarding restitution, the district court must consider “the amount of economic loss sustained by the victim as a result of the offense.”  Minn. Stat. § 611A.045, subd. 1(a)(1) (2000).  The record must establish a factual basis for the restitution award and the defendant’s liability for that award.  State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984); State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985).  Unless a defendant explicitly agrees otherwise, a district court cannot order restitution based on charges that have been dismissed as part of a plea agreement when the record on the remaining charges fails to establish an adequate basis for the defendant’s liability.  Chapman, 362 N.W.2d at 404.  

Appellant concedes that the record “may have adequately established that [the victim] did in fact have $6,050 in lost wages.”  But he argues that Minn. Stat. § 169.09, subd. 3(a) (2000), does not require injury to a person as an element of the offense to which he pleaded guilty.  Appellant contends that because he did not agree to pay restitution for the victim’s lost wages and because he did not admit to an offense that requires a personal injury that would result in lost wages, the district court erred in ordering restitution based on that loss.

Minn. Stat. § 169.09, subd 3(a), provides: 

The driver of any vehicle involved in an accident resulting in bodily injury to or death of any person, or damage to any vehicle which is driven or attended by any person, shall stop and give the driver’s name, address, date of birth and the registration number of the vehicle being driven, and shall, upon request and if available, exhibit the driver’s license or permit to drive to the person struck * * * .

 

The statute only applies if a driver is involved in an accident that results in bodily injury or death to a person or in damage to another vehicle.  The accident here involved no other vehicle, and appellant admitted to police that he struck the victim with his car.  Therefore, appellant’s plea of guilty to Minn. Stat. § 169.09, subd. 3(a), and his admission establish a basis for his liability to the victim for losses that resulted from the victim’s injuries.   

Appellant also argues that his plea agreement did not include restitution for lost wages because, at the time of his plea, the district court specifically limited restitution to the victim’s damaged clothing and out-of-pocket medical costs.  We will vacate a restitution award only if the award “materially alter[s] the expectation of the parties” to a plea agreement.  See Chapman, 362 N.W.2d at 403-04 (quotation omitted).  The defendant bears the burden of producing evidence to challenge the amount or type of restitution ordered.  Minn. Stat. § 611A.045, subd. 3 (2000).       

“[District] courts are given broad discretion in awarding restitution.”  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999) (citation omitted).  “[R]estitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including * * * replacement of wages * * * .”  Minn. Stat. § 611A.04, subd. 1(a).  The absence of a specific provision in a plea agreement regarding restitution does not preclude the district court from awarding restitution.  Anderson, 507 N.W.2d at 247.  Further, to the extent that the district court intended to amend the original restitution order, Minnesota law authorizes such an amendment.  See Minn. Stat. § 611A.04, subd. 1(b) (2000) (providing that district court may amend an order of restitution after sentencing if victim submits sufficient evidence of right to restitution and true extent of victim’s loss was not known at time of sentencing).  

At the time of sentencing, the victim had not yet submitted to the court any proof of loss resulting from his injuries.  Once the district court received proof of the victim’s lost wages, it ordered restitution for the loss and notified appellant of his right to contest the award.  At the contested restitution hearing, the victim testified regarding the nature and extent of his injuries, and he had previously supplied wage-loss verification from his employer to support his claim for lost wages.  Appellant offered no evidence to dispute the victim’s claim.   

Affirmed.



                * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.