This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1483
A05-896

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Hensley,

Appellant (A04-1483);

 

Robert Hensley, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

 Respondent (A05-896).

 

Filed ­­­March 28, 2006

Affirmed

Dietzen, Judge

 

Pine County District Court

File No. K7-03-368

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

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, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, 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. 

FACTS

 

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 (Minn. 2002).  This court will not disturb the decision of a postconviction court unless the court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  This court reviews “a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” and will not reverse a district court’s findings of fact unless they are clearly erroneous.  Id.  Conclusions of law are reviewed de novo.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). 

I.

            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 (Minn. 1989).  A criminal defendant has no absolute right to withdraw a guilty plea once it is entered.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).  But a defendant may withdraw a guilty plea if withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (stating that burden of proof to establish basis for plea withdrawal rests with defendant).  Manifest injustice exists when a defendant can show that a guilty plea was not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

            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 (Minn. 1994) (holding that contested plea was voluntary because defendant repeatedly stated on record that he was making his own decision). 

            Appellant 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.”  Id. (citation omitted). 

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.  Id.  Thus, this court held that the $31,000 difference between what the defendant contemplated as restitution for the charged counts and the amount ordered at sentencing, which included the dismissed counts, so substantially exceeded the terms of the plea agreement that it was not voluntarily and intelligently entered.  Id. at 404.

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.

II.

 

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.  

Under Minnesota law, when an offender is convicted of a crime, the victim has a right to restitution, including but not limited to “out-of-pocket losses resulting from the crime[.]”  Minn. Stat. § 611A.04, subd. 1(a) (2004).  The sentencing court has wide discretion in ordering and determining the appropriate amount of restitution.  State v. Anderson, 507 N.W.2d 245, 246 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993).  But the record must provide a factual basis for the amount awarded by showing the nature and amount of losses with reasonable specificity.  State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000). 

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.  Id.  “A dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence.”  Id. 

            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. 

            Appellant 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 (Minn. App. 1990) (finding sufficient evidence based on victim’s affidavit of costs and testimony).  Here, the only two witnesses at the restitution hearing were appellant and the victim.  On matters of credibility, we defer to the district court.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  We conclude that the determination of the district court is supported by the record. 

III.

 

            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. 

            The 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. Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967).  To place material facts in dispute, the petitioner must allege facts that, if proven, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  “[A]llegations raised in the petition must be more than argumentative assertions without factual support.”  Sutherlin v. State, 574 N.W.2d 428, 436 (Minn. 1998) (citation omitted). 

            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. 

            Affirmed.