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State v. Rey

Court of Appeals of Minnesota

January 9, 2017

State of Minnesota, Respondent,
v.
Emile Rey, Appellant.

         Dakota County District Court File No. 19HA-CR-15-1909

         Affirmed

          Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Tricia A. Loehr, Assistant County Attorney, Hastings, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Muehlberg, Judge.

         SYLLABUS

         The minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4 (2014), which requires a district court to order a person convicted of identity

          OPINION

          MUEHLBERG, Judge [*]

         Appellant Emile Rey challenges his obligation to pay restitution in the amount of $66, 000, arguing that: the identity-theft statute, which authorized the district court to order restitution, violates his substantive and procedural due-process rights; the district court abused its discretion because it failed to consider his ability to pay restitution; and the restitution amounted to an unconstitutional fine. We affirm.

         FACTS

         Rey pleaded guilty to one count of identity theft involving more than eight direct victims. See Minn. Stat. § 609.527, subds. 2, 3(5) (2014). He admitted that he obtained cloned[1] credit cards between February and June 2015, using the credit of at least 66 victims without their permission. He used the cloned cards to purchase gift cards for personal use. Before sentencing, the state contacted 13 of the 66 victims and received six victim-impact statements.

         At Rey's sentencing hearing, the district court ordered him to pay $66, 000 in restitution, $1, 000 to each direct victim, under the minimum-restitution provision of the statute. See id., subd. 4. Rey requested a hearing to challenge the amount of restitution. He argued that the minimum-restitution provision was unconstitutional because it violated his substantive and procedural due-process rights and that the restitution amounted to an unconstitutional fine. The district court explained that it was under an affirmative obligation to order $1, 000 to each direct victim, implicitly concluding that a victim only needed to meet the definition of a direct victim to be entitled to restitution. Rey waived the restitution hearing.[2] This appeal follows.

         ISSUES

         I. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey's substantive due-process rights?

         II. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate ...


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