This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Robert Hensley, petitioner,
Filed March 28, 2006
Pine County District Court
File No. K7-03-368
Mike Hatch, Attorney General, 1800
John K. Carlson, Pine County Attorney, Steven C. Cundy, Assistant County Attorney, 315 Main Street, Suite 8, Pine City, MN 55063 (for respondent)
John M. Stuart, State Public Defender, James R. Peterson,
Assistant Public Defender,
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.
In this consolidated direct and postconviction appeal, appellant challenges the district court orders and judgments denying his petition for postconviction relief and determining restitution, arguing that the district court erred by: (1) refusing to allow withdrawal of his guilty plea; (2) ordering appellant to pay restitution of $11,200; and (3) denying his request for an evidentiary hearing. Because we conclude that the district court properly applied the law and did not abuse its discretion, we affirm.
In April 2003, appellant Robert Hensley was charged with second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2 (2002), and offering a forged check in violation of Minn. Stat. § 609.631, subd. 3 (2002), after he was identified in a surveillance video forging checks taken during a March 31, 2003 burglary. In searches of appellant’s hotel room and vehicle, law enforcement officers discovered stolen property belonging to the burglary victims.
Following the burglary, the victims submitted an Inventory of Loss form to the sheriff’s department listing the stolen property. The form included estimated values for some, but not all, of the property, which totaled $3,250.
In October 2003, appellant, represented by legal counsel, signed a plea petition. The petition indicated that appellant would plead guilty to an amended count of receiving stolen property; and that the parties would recommend that appellant receive a 21-month sentence and pay restitution “on all charges in [the] complaint.” At the plea hearing, appellant confirmed that there would be “restitution on all charges [sic] that . . . were dismissed.” The district court clarified that restitution was for both the forged checks and the property stolen from the victims’ residence, and appellant indicated that he understood. When the district court ordered a pre-sentence investigation (PSI), appellant’s counsel requested that the investigation consider reducing the amount of restitution by the value of the items recovered from appellant.
The victims submitted an Affidavit for Restitution to the district court. The affidavit included $6,720 in lost wages, $6,000 in jewelry, $5,000 of tools, $3,000 for 400 movies, $300 in personal belongings, and $600 for a pager. The total loss was estimated at $21,620, and was not covered by insurance. The PSI recommended that appellant pay the amount of restitution stated in the affidavit.
Following a sentencing hearing, appellant received a 19-month sentence and was ordered to pay $22,150 in restitution. Appellant requested, and the district court ordered, a hearing to determine the amount of restitution.
At the restitution hearing, one of the victims testified in support of the total amount of restitution requested in the affidavit; for lost wages for the four months she did not attend work so that the home was protected from theft; and for nearly $800 of forged checks that were cashed and not reimbursed by her bank. The victim also explained that the initial Inventory of Loss form was completed before she had a chance to thoroughly search their home for missing items and determine the value of the stolen property.
The district court ordered restitution in the amount of $11,200. This amount was based on $6,000 for the stolen jewelry; $3,500 for tools; $1,200 for movies; $300 for personal belongings; and $200 for the pager. The district court rejected the claim for lost wages. Appellant appealed the order for restitution, but then filed a motion to stay the appeal and remand for postconviction proceedings, which this court granted.
In March 2005, appellant filed his petition for postconviction relief, challenging the amount of restitution, seeking to withdraw his guilty plea and vacate his conviction based on the amount of restitution, and requesting an evidentiary hearing. The district court summarily denied the petition without holding an evidentiary hearing.
D E C I S I O N
A petition for postconviction relief is a collateral
attacks on the judgment, which carries a presumption of regularity and,
therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (
Appellant raises three issues on appeal. First, appellant argues that the district court abused its discretion by denying his motion to withdraw his guilty plea. Specifically, appellant argues that he was misled about the amount of restitution he was obligated to pay. Respondent contends that appellant’s plea was knowing, voluntary, and intelligent; and that appellant explicitly agreed that he would be responsible for restitution on all charges in the complaint, not just those amounts for which he admitted liability.
Whether a district court
properly denied a motion to withdraw a guilty plea is reviewed under an
abuse-of-discretion standard. Kim v. State, 434 N.W.2d 263, 266 (
The crux of appellant’s argument
is that his guilty plea must be withdrawn because he was only obligated to pay
restitution for the amounts for which he admitted liability, and not for all
amounts charged in the complaint. But
this argument is contradicted by the record.
The plea petition explicitly states that appellant would be responsible
for restitution “on all charges in [the] complaint,” which included the
second-degree burglary charge. At the
plea hearing, appellant, who was represented by counsel, stated several times
that he understood that restitution would be on all charges in the
complaint. On this record, appellant’s
guilty plea was made knowingly, voluntarily and intelligently. See State
v. Ecker, 524 N.W.2d 712, 719 (
nonetheless argues that his guilty plea was not valid because he believed that
the restitution would not be more than the value of the items listed in the
Inventory of Loss form. Appellant relies
on two cases to support the invalidity of his guilty plea. See
State v. Noreen, 354 N.W.2d 77 (Minn. App. 1984); see also State v. Chapman, 362 N.W.2d 401 (Minn. App. 1985), review denied (Minn. May 1, 1985). In Noreen,this court considered the issue of
restitution not bargained-for in the plea agreement where the district court
ordered restitution of $2,000 at sentencing.
354 N.W.2d at 78. This court
remanded for resentencing, stating “the defendant must understand the
consequences of his plea. In this case,
the trial court imposed additional conditions of probation which were not
contemplated by the plea agreement.”
In Chapman, the central issue was
restitution ordered on dismissed counts.
362 N.W.2d at 403. In that case,
the defendant contemplated owing restitution on the two counts to which she
pleaded guilty and, prior to sentencing, no mention was made of restitution on
the six counts to be dismissed.
But Noreen and Chapman are easily distinguishable. Here, unlike Noreen,the plea agreement specifically addressed restitution and appellant was informed that he would be responsible for restitution on the dismissed counts, even though no specific dollar amount of restitution was proposed. 354 N.W.2d at 78. And, unlike Chapman, the amount of restitution contemplated by appellant, i.e., the $3,250 amount in the Inventory of Loss form, was not justified on this record. A review of the Inventory of Loss form reveals that it was a preliminary document, i.e., that it was cursory and incomplete. Appellant’s counsel acknowledged at the plea hearing that the amount of restitution would be investigated and set forth in the PSI. Thus, we reject appellant’s argument that he was misled about the consequences of his guilty plea.
We believe the conclusion that appellant entered his guilty plea knowing that he would be responsible for restitution on all charges in the complaint is amply supported by the record. Therefore, the district court did not abuse its discretion by denying appellant’s request to withdraw his guilty plea.
Second, appellant argues that the evidence in the record does not support the district court order of restitution in the amount of $11,200. Respondent contends that the victim’s testimony was sufficient to establish the property that was stolen and its approximate value.
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. Minn. Stat. §
611A.045, subd. 3(a) (2004). The
ultimate burden of establishing the appropriateness and the amount of
restitution is on the prosecution.
Here, one of the victims testified at the restitution hearing as to the stolen property and its approximate value. She described with specificity the items that were stolen, and the actual value of many of the items based on her recollection of purchasing the items, the replacement cost, or catalog pricing. She explained that some of the values were estimates because her receipts were taken during the burglary, and many items were purchased overseas. She explained that the amount shown in the initial Inventory of Loss form was low because it was made without knowing the full extent of the loss and without an opportunity to study the value of the items.
argues that the victim’s testimony was unsubstantiated, and therefore, the
state did not meet its burden. But this
court has allowed restitution that is supported by affidavits, claim forms, or
testimony. See e.g., State v. O’Brien, 459 N.W.2d 131, 133 (
Third, appellant argues that the district court abused its discretion when it denied his request for an evidentiary hearing on his petition for postconviction relief because he placed material facts in dispute regarding the validity of his guilty plea.
district court must grant an evidentiary hearing for a postconviction appeal
“[u]nless the petition and the files and records of the proceeding conclusively
show that the petitioner is entitled to no relief[.]” Minn. Stat. § 590.04, subd. 1 (2004). An evidentiary hearing is necessary when
there is a material issue of fact in dispute.
State ex rel.
Here, the record is clear that appellant was informed prior to entering his guilty plea that restitution would be required on all counts charged in the complaint. Consequently, appellant’s reliance on the amount stated in the Inventory of Loss form was unjustified. The district court did not abuse its discretion by denying the request for an evidentiary hearing.