This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-251
A06-1186

 

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas R. Terres,

petitioner,

Appellant.

 

 

Filed June 5, 2007

Affirmed as modified
Klaphake, Judge

 

Stearns County District Court

File Nos. K8-04-71/K8-04-17

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Janelle P. Kendall, Stearns County Attorney, Sarah E. Hilleren, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In these consolidated appeals, Thomas R. Terres challenges the district court’s decision denying his motions to vacate or reconsider a restitution order that required him to reimburse the victims of his multiple counts of theft by swindle.  Appellant held himself out as a certified public accountant who prepared taxes, and he swindled his clients by encouraging them to invest in fictitious investments.  Because we see no error in the district court’s denial of appellant’s request to continue the restitution hearing or to vacate the restitution order, and because there was a sufficient factual basis for the restitution award of $309,298.65, with the exception of $350 awarded for an earth auger, we affirm as modified. 

D E C I S I O N

            Minn. Stat. § 611A.045, subd. 3(a) (2006), states that an offender who wishes to challenge a specific item of restitution or its dollar amount has the burden to produce evidence, including

a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying the dollar amounts of restitution which differ from the amounts requested by the victim or victims.  The affidavit must be served on the prosecuting attorney and the court at least five business days before the hearing.

 

Id.; see Minn. Stat. § 645.44, subds. 15a, 16 (2006) (legislature’s use of the words “shall” and “must” indicate that the provisions are mandatory rather than permissive).  When a defendant fails to mount the statutory challenge to restitution, the district court’s restitution award must stand.  See State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2000) (“Under the plain language of the [restitution] statute, a valid dispute arises only after an offender meets the threshold burden of raising a specific objection by affidavit.”).

            Appellant claims that although he failed to file an affidavit to support his restitution challenge, the district court erred by holding the restitution hearing and by directing entry of judgment in the original amount of restitution claimed, despite appellant’s alleged medical emergency and “impossibility of performance.”  In refusing to allow a continuance, the district court stated on the record that appellant’s attorney had “made every reasonable effort to contact [appellant]” and that appellant “has a history of not cooperating with courts and counsel, and . . . this is simply more evidence of the same.”  The court’s statements are accurate and supported by the record:  appellant’s previous attorney withdrew from the case because appellant failed to keep in contact with him, and appellant feigned a broken leg to evade a court hearing during earlier proceedings in this case.  Appellant’s counsel testified that he had no information from appellant regarding the restitution items appellant wished to challenge, although counsel had attempted to contact appellant, and that neither appellant nor the prison where he was incarcerated had an explanation for appellant’s inability to complete the required affidavit challenging restitution.  Under these circumstances, the district court did not err in declining to address appellant’s challenge to the claimed amount of restitution because appellant failed to file a detailed affidavit to support his claim.  See Thole, 614 N.W.2d at 235-36 (ruling district court could properly refuse to consider offender’s challenges to restitution that were not identified in offender’s affidavit). 

            Appellant also claims that the district court abused its discretion by denying the motion for a continuance that he filed three days before the scheduled restitution hearing.  “The decision to grant or deny a motion for a continuance lies within the sound discretion of the district court and will only be reversed upon a showing of abuse of discretion.  A defendant must show prejudice to justify a reversal.”  Johnson v. State, 697 N.W.2d 194, 198 (Minn. 2005) (citations omitted).  The district court concluded that appellant’s request for a continuance was untimely and that he had no reasonable excuse for his failure to timely seek a continuance.  The court found that appellant had not requested a continuance during the three weeks following his transfer from the St. Cloud Reformatory to the Minnesota Correctional Facility-Oak Park Heights, that more than nine months passed between the time appellant pleaded guilty and his transfer to a prison medical unit, that appellant “repeatedly failed to cooperate with attorneys representing him in this matter,” and that appellant “has a history of making exaggerated/false medical claims in time periods approaching court appearances.”  Because there is record support for the district court’s decision, we conclude the district court did not abuse its discretion in denying appellant’s motion for a continuance.

            Appellant next claims that the state failed to prove that certain items of the restitution award were compensable under Minnesota’s restitution statute, which provides for restitution to be paid to a crime victim that “include[s], but is not limited to, any out-of-pocket losses resulting from the crime.”  Minn. Stat. § 611A.04, subd. 1(a) (2006).  In awarding restitution, the court must consider, among other factors, “the amount of economic loss sustained by the victim as a result of the offense.”  Minn. Stat. § 611A.045, subd. 1(a)(1) (2006).  The prosecution bears the burden to demonstrate the amount of loss sustained by a victim.  Minn. Stat. § 611A.045, subd. 3.  Overall, restitution is allowable only for “the victim’s losses . . . directly caused by the conduct for which the defendant was convicted.”  State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999) (quotation omitted).  “[T]rial courts are given broad discretion in awarding restitution.”  State v. Tenerelli, 598 N.W. 2d 668, 671 (Minn. 1999).  The decision whether to allow a particular item of restitution is a question of law subject to de novo review.  Thole, 614 N.W.2d at 234.

            Appellant claims that the state failed to establish a factual basis for restitution items, including annual interest of five percent ordered on the amounts that appellant swindled from victims, a $500 filing fee for a fictitious grant paid by one of the victims to appellant, and attorney fees of $1,185 that one victim incurred in attempting to recover $28,000 he had given to appellant to invest.  Because these items relate directly to appellant’s criminal conduct and were economic losses sustained solely as a result of appellant’s conduct, they were properly included in the restitution award.  The award of five percent interest on the amounts appellant swindled from his victims, while not a direct out-of-pocket expense, constitutes a conservative return on the sums the victims entrusted to appellant for investment purposes.

            There is not a factual basis to support the inclusion of an earth auger valued at $350 in the restitution award.  The victim’s affidavit merely states a restitution claim for “$350.00—earth auger.”  The presentence investigation report states that the earth auger was “borrowed [sic] to [appellant] but never returned.”  Because there is no date given for the theft of this item, the item does not appear in the criminal complaint, appellant did not admit to taking the item during his plea hearing, and the criminal conduct for which appellant was convicted does not relate to theft of an earth auger, we conclude that no legal basis exists for awarding restitution for this item.  We therefore modify the restitution award to $308,948.65.

            Affirmed as modified.