State v. Borg, A09-1921
| Decision Date | 27 January 2014 |
| Docket Number | A09-1921 |
| Court | Court of Appeals of Minnesota |
| Parties | State of Minnesota, Appellant, v. Brett David Borg, Respondent. |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed
Mille Lacs County District Court
Lori A. Swanson, Attorney General, St. Paul, Minnesota; and
Janice S. Jude, Mille Lacs County Attorney, Tara Christel Ferguson Lopez, Assistant County Attorney, Milaca, Minnesota (for appellant)
Cathryn Young Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Peterson, Judge; and Stauber, Judge.
UNPUBLISHED OPINION
On remand from the supreme court's reversal of this court's dismissal of the state's appeal, the state argues that the district court erred when it (1) reduced, by $337.10, theamount of restitution requested and (2) held a restitution hearing to consider respondent's restitution challenge and amended the restitution order, when respondent failed to challenge restitution within the 30-day timeframe allowed by Minn. Stat. § 611A.045, subd. 3(b) (2008). Because the 30-day time limit set forth in section 611A.045, subdivision 3(b), does not apply to respondent's restitution challenge, and because the district court properly reduced the amount of restitution ordered, we affirm.
In 2008, respondent Brett David Borg was convicted of third-degree criminal sexual conduct.1 A sentencing hearing was held on November 7, 2008, at which Borg was sentenced to 48 months in prison and ordered to pay restitution. The district court held "open the restitution issue" to allow the state 30 days to submit the total restitution amount sought.
On November 12, 2008, the state submitted a written request for restitution in the form of (1) medical costs incurred by the victim and (2) mileage and lost wages incurred by the victim and her parents. The district court granted the state's request, but noted that Borg had a right to request a hearing to challenge the amount sought. This right is established under Minn. Stat. § 611A.045, subd. 3(b), which allows an offender to request a hearing within 30 days of receiving written notice of the amount of restitution requested. About two weeks later, in a letter dated November 26, 2008, and addressed to him in prison, Borg's trial counsel informed Borg of the restitution request. Thereafter,trial counsel discontinued her representation of Borg because counsel's retainer agreement did not include representation for a restitution hearing.
Meanwhile, Borg contacted the state public defender's office on November 16, 2008, seeking a public defender to represent him in a direct appeal. Borg was informed on December 1, 2008, that the public defender's office would represent him in a direct appeal, but that he would not immediately be assigned a lawyer "because we do not have sufficient staff to handle all of our new cases as soon as they are ready to be assigned." Borg called the state public defender's office on December 19, 2008, to discuss a challenge to his restitution. A note regarding this call was discovered by the public defender assigned to his case three days later as she reviewed the file. The public defender wrote to the district court that day requesting a restitution hearing and more time to submit the required affidavit. The state responded, alleging that Borg's restitution challenge was untimely. Borg's public defender wrote again, conceding that the request was untimely, but arguing that the court should hear the challenge in the interests of justice, based on the circumstances. This letter also briefly described the "good faith" legal basis for Borg's challenge.
In February 2009, Borg filed a direct appeal challenging his conviction. Thereafter, the district court granted Borg's request for a restitution hearing. In a handwritten note, dated March 13, 2009, and written on top of the earlier letter from Borg's public defender, the district court stated: "Due to substitution of attorney and delay in assigning a public defender, defendant is entitled to a restitution hearing even though requested outside the 30 days."
The restitution hearing was held in May 2009. The district court issued its order on July 24, 2009, stating that the restitution hearing was granted because of the "confusion inherent in a change of attorneys." The order noted that Borg had not been informed of the restitution request by his trial counsel until November 26, that Borg tried to find new counsel, and that new counsel, once secured, "acted diligently to challenge restitution." The court then considered Borg's contention that the victim's parents were not entitled to restitution for (1) their wages lost when they took the victim to the hospital after the sexual assault or (2) their lost wages and travel expenses for attending the trial as spectators. The district court concluded that the victim's parents were entitled to recover their lost wages and mileage when they missed work to take their daughter to the hospital because "[t]hese expenses were directly caused by the criminal act for which [Borg] was convicted." But the court further concluded that $337.10 in mileage and lost wages for the victim's parents attending the trial was not recoverable because it does "not fall within the purview of the criminal-restitution statute."
The state appealed the restitution order. This court subsequently released its opinion in Borg's direct appeal, which reversed Borg's conviction and remanded for a new trial. State v. Borg, 780 N.W.2d 8, 16 (Minn. App. 2010), rev'd and , 806 N.W.2d 535 (Minn. 2011). In light of the reversal, this court declined to address all of the arguments raised by Borg in his direct appeal. Id.
After the state petitioned for review of this court's decision reversing Borg's conviction, this court stayed the state's appeal in the restitution matter pending the outcome of Borg's direct appeal. The supreme court then reversed this court's decisionon Borg's conviction and remanded the case to this court "for consideration of Borg's remaining arguments." State v. Borg, 806 N.W.2d 535, 548 (Minn. 2011). On remand from the supreme court, this court affirmed Borg's conviction after consideration of Borg's remaining arguments. State v. Borg, No. A09-243 (Minn. App. Mar. 26, 2012), review denied (Minn. June 19, 2012). The supreme court denied review, which was followed by an order from this court dissolving the stay of the state's appeal of the July 24, 2009 restitution order.
In November 2012, we dismissed the state's appeal of the restitution order without addressing the state's argument that "the district court erred by holding a restitution hearing, considering [Borg's] restitution challenges, and amending the restitution order, because [Borg] failed to challenge restitution within the 30-day time period allowed by Minn. Stat. § 611A.045." State v. Borg, 823 N.W.2d 352, 353 (Minn. App. 2012). Instead, we reasoned that under State v. Hughes, 758 N.W.2d 577 (Minn. 2008), "[w]hen restitution is ordered at sentencing, but the specific amount is determined later, the later-issued restitution order does not extend the 90-day period that a defendant or the state has to appeal from the sentence." Id. at 356. We held that "because the restitution order in this case was issued after the 90-day period that the state had to appeal Borg's sentence, and there is no specific rule that allows the state to appeal from a restitution order, the state is not entitled to appellate review of the restitution order." Id.
The supreme court again granted the state's petition for review and reversed our decision dismissing the state's appeal of the restitution order. State v. Borg, 834 N.W.2d 194, 199-200 (Minn. 2013). The supreme court concluded that an order amending therestitution portion of a sentence constitutes a "sentence imposed" within the meaning of Minn. R. Crim. P. 28.04, subd. 1(2), such that the state may appeal an amended sentencing order within 90 days after the entry of the order. Id. The court held that because the state filed its notice of appeal within 90 days after the amended sentencing order was entered, the state's appeal was timely. Id. at 200. The supreme court also concluded that Hughes was "not dispositive of the issue." Id. at 199. Thus, the supreme court remanded the case to this court "for consideration of the merits of the state's appeal." Id. at 200.
The state argues that the district court abused its discretion by reducing the amount of restitution ordered. Under Minnesota law, victims of crimes are permitted to request restitution from a defendant if the defendant is convicted. Minn. Stat. § 611A.04, subd. 1 (2008). This court reviews a district court's order for restitution for an abuse of discretion. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). A district court abuses its discretion by awarding restitution to a person who does not meet the statutory requirements to be a victim. State v. Esler, 553 N.W.2d 61, 65 (Minn. App. 1996), review denied (Minn. Oct 15, 1996). Whether a person seeking restitution meets those requirements is a question of law, which we review de novo. See In re Welfare of M.R.H., 716 N.W.2d 349, 351 (Minn. App. 2006) (), review denied (Minn. Aug. 15, 2006).
Minn. Stat. § 611A.01(b) (2008) defines "[v]ictim" as "a natural person who incurs loss or harm as a result of a crime." "The term 'victim' [also] includes the family members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased person." Id.
The state argues that under State v. Palubicki, 727 N.W.2d 662 (Minn. 2007), the victim's parents are entitled to reimbursement for mileage and lost wages to attend the trial....
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