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Howard v. State

Court of Appeals of Minnesota

March 26, 2018

Rico Patrick Howard, petitioner, Appellant,
v.
State of Minnesota, Respondent.

          Hennepin County District Court File No. 27-CR-14-24219

          Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public Defender, (for appellant)

          Lori Swanson, Attorney General, and Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, (for respondent)

          Considered and decided by Schellhas, Presiding Judge; Jesson, Judge; and Kalitowski, Judge. [*]

         SYLLABUS

         When an offender challenges restitution under Minn. Stat. § 611A.045');">611A.045, subd. 3(b) (2014), a district court must schedule a restitution hearing.

          OPINION

          SCHELLHAS, JUDGE.

         Appellant challenges a postconviction court's denial of relief regarding a district court's denial of a restitution hearing following appellant's timely request for a hearing. We reverse the postconviction court's order, vacate the district court's amended restitution order, and remand to the district court to schedule a restitution hearing.

         FACTS

         Respondent State of Minnesota charged appellant Rico Howard with second-degree murder in connection with a murder committed on August 15, 2014. Howard pleaded guilty, and, on June 1, 2015, the district court sentenced him to 363 months' imprisonment and reserved the issue of restitution, as allowed by Minn. Stat. § 611A.04, subd. 1(a) (2014).

         On July 28, 2015, the district court filed a one-page order entitled "Restitution Findings and Order." In it, the court awarded restitution of $14, 817 as follows: $7, 408.50 to the victim's fiancé, D.F.; and $7, 408.50 to the Minnesota Crime Victims Reparation Board (CVRB). The order contains no mention of Howard's ability to pay restitution or the court's consideration of the same.

         On August 26, 2015, Howard filed a request for a restitution hearing with the court administrator, along with an affidavit in which he challenged the restitution awards to D.F. and the CVRB, arguing that his "income and resources may be insufficient, under the law, to grant restitution in the amount claimed" because of the length of his incarceration and eligibility for the services of a public defender. The district court did not schedule a restitution hearing.

         On January 8, 2016, without conducting a restitution hearing, the district court amended its restitution order, reducing the total restitution amount to $8, 808.50, after decreasing D.F.'s award to $1, 400. The record evidence includes an October 7, 2014 receipt from D.F. for the purchase of a $1, 400 cemetery headstone and a July 30, 2015 facsimile request from the CVRB, requesting restitution of $7, 408.50 for funeral expenses. These amounts total $8, 808.50. Howard did not file another request for a restitution hearing following issuance of the amended restitution order.

         On January 12, 2017, Howard petitioned for postconviction relief, seeking to vacate the amended restitution order on the bases that "insufficient evidence supports the appropriateness of the restitution, and it was issued without a hearing." The postconviction court summarily denied the petition in its entirety.[1] The court noted that it had reduced the restitution awarded to D.F., that it "did consider [Howard's] ability to pay restitution in its original order, " and that it "still had broad discretion in order to award restitution." The court also found that Howard's affidavit challenging restitution "did not challenge the calculation of restitution amount or meet the burden of production required by Minn. Stat. § 611A.045');">611A.045, subd. 3(a), " and ...


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