State of Minnesota v. Darrell James Wigham

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A20-0857 State of Minnesota, Respondent, vs. Darrell James Wigham, Appellant.

Filed February 8, 2021 Affirmed Cochran, Judge Mower County District Court File No. 50-CR-18-505 Keith Ellison, Attorney General, St. Paul, Minnesota; and Kristen Nelsen, Mower County Attorney, Megan A. Burroughs, Assistant County Attorney, Austin, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and Slieter, Judge.

NONPRECEDENTIAL OPINION COCHRAN, Judge In this direct appeal, appellant challenges a restitution order issued by the district court after sentencing. We affirm.

FACTS Following a major house fire in 2018, the state charged Darrell James Wigham with one count of first-degree arson and several counts of attempted murder. Wigham entered an Alford plea1 to the first-degree arson charge and the state dismissed the remaining charges.

The house involved in the fire was a rental property. At the time of the fire, the homeowner rented out the property through a company that he owned. North Star Mutual Insurance Company insured the property. The insurance company declared the dwelling a total loss for insurance purposes.

Before sentencing, the homeowner and the insurance company each submitted an affidavit of restitution claiming monetary losses caused by the fire. The homeowner sought $71,600, including amounts for loss of rental income, loss of the value of the home, and the cost of removal of debris. The insurance company sought $71,500 for payments made to the homeowner, up to the applicable policy limits, for loss in rental income and loss of the value of the home.

At the sentencing hearing, the state requested that the issue of restitution be left open for 60 days after sentencing because of concerns regarding “[t]he way the affidavits are currently.” The state told the district court that there “may be too much requested, so we will confirm that.” Wigham’s counsel agreed, saying, “As for the restitution, I also have A defendant enters an Alford plea when he pleads guilty, despite maintaining his innocence, on the basis that the state has enough evidence to convict him at trial beyond a reasonable doubt. State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977); see also North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970). some concerns, and even some confusion, with it, so I would agree with the 60 days for that amount to be clarified before challenging it would be considered.” At the end of the sentencing hearing, the district court imposed an executed sentence of 88 months in prison for the arson conviction and left restitution open for 60 days.

In September 2019, approximately five months after sentencing, the state sent a letter to the district court requesting that it issue an order requiring Wigham to pay $16,000 in restitution to the homeowner and $71,500 in restitution to the insurance company. The state did not submit any additional information but based its request on the previously filed affidavits. The next day, the district court ordered Wigham to pay the requested amounts.

Wigham filed a timely challenge to the order and demanded a restitution hearing.

The district court ultimately held three restitution hearings before issuing its final order. The first hearing was brief because the prosecutor who had been handling the case was unexpectedly ill, the homeowner did not appear, and the sole witness present was a representative of the insurance company who only had limited involvement with the homeowner’s claim. At the hearing, Wigham argued that the state waived the issue of restitution by failing to file its request with the district court within 60 days of the sentencing hearing. The state argued that it had not waived restitution because the victims’ affidavits had been submitted before the expiration of the 60 days. The district court declined to rule on Wigham’s timeliness argument and instead set the matter for a second hearing.

At the second restitution hearing, the homeowner did not appear again due to an out-of-state family emergency. Only one witness testified at the second hearing—a representative of the insurance company who prepared the property loss report concerning the fire. The representative testified that the home was valued at approximately $145,000 and was a total loss. The representative further testified that the insurance company paid the homeowner $65,000 for property loss and $6,500 for lost rent, for a total of $71,500.

At the hearing, Wigham renewed his argument that the district court lacked authority to order restitution outside of the 60-day period for which the matter was left open. The state argued that the court retained authority to order restitution under Minn. Stat. § 611A.04, subd. 1(b) (2018), because the “true extent of the victim[s’] loss[es]” was not known at the time of sentencing. Wigham disagreed, maintaining that the true extent of the victims’ losses was known at sentencing. The district court continued the matter for a final hearing to allow the homeowner to testify.

At the third hearing, the homeowner testified about the exact nature of his losses resulting from the arson and explained how those amounts differed from the numbers presented in his affidavit. In his affidavit, the homeowner specified $71,600 in losses including: $21,600 in lost rent ($600/month for three years), $35,000 in property value not covered by insurance (in his affidavit, he estimated the value of his home to be $100,000 and indicated that he had received an insurance payment of $65,000), and $15,000 in debris-removal costs. In a separate section of the same affidavit, the homeowner inconsistently claimed only $16,000 in uncompensated losses. At the hearing, the homeowner clarified and revised the amount of his losses. The homeowner testified to the following losses: $1,300 in unpaid rent that was not compensated by insurance, $35,000 in dwelling value that was not paid for by insurance, $15,000 for property-cleanup costs following the fire, and $12,000 to replace part of the sidewalk and street curb—a new cost incurred by the homeowner after the filing of his affidavit. These amounts added up to $63,300, which is less than the $71,600 specified by the homeowner in his affidavit. At the hearing, the homeowner further testified that he was requesting only $16,000 in restitution even though his uncompensated losses were greater than that amount.2 After the homeowner testified, the parties presented closing arguments and the district court took the matter under advisement.

In its final order, the district court ordered Wigham to pay a total of $87,500 in restitution: $16,000 to the homeowner and $71,500 to the insurance company. In the accompanying memorandum, the district court explained that, at the time of sentencing, “it appeared obvious to the Court (and apparently to the parties as well) that there was some ‘doubling up’ between” the homeowner and the insurance company. The district court stated that it “could have ordered [Wigham] to pay $143,100 at the time of sentencing, which was the total amount of the two affidavits” but instead “reserved the restitution order for ‘clarification.’” The district court also rejected Wigham’s argument that the state waived the issue of restitution by failing to make a filing within 60 days of sentencing.

After “balancing the interests of [Wigham] and the victims,” the district court concluded that there was no unfair prejudice to Wigham in ordering restitution in the amount of In response to a question from the prosecutor, the homeowner also testified that the total value of the uncompensated lost rent ($1,300), the uncompensated home value ($35,000), and unreimbursed cleanup costs ($15,000) is $46,300. Those amounts actually total $51,300. And, when the $12,000 incurred for street and sidewalk repair (after the filing of the affidavit) is added, the total is $63,300. $87,500 because “it is considerably less than the total amount of $143,100” set forth in the victims’ affidavits. The court concluded that if it adopted Wigham’s position and ordered no restitution because of the state’s neglect in not making a filing within the 60-day post- sentencing window, “the only parties who would be prejudiced are the victims, the only ones who have committed no wrong or negligence, and that would not be fair or just.” This appeal follows.

DECISION Wigham challenges the district court’s restitution order, arguing that (1) the district court lacked authority to order Wigham to pay restitution after sentencing, (2) the district court failed to consider Wigham’s ability to pay; and (3) the district court abused its discretion by ordering Wigham to pay losses sustained by the homeowner’s business rather than by the homeowner individually. Because we conclude that the district court had the authority to order Wigham to pay restitution after sentencing and considered his ability to pay, and we conclude that he forfeited his remaining argument not brought before the district court, we affirm.

I.

Minn. Stat. § 611A.04 (2018) authorized the district court to order Wigham to pay restitution after sentencing.

A district court’s authority to order restitution to victims of a crime is governed by Minn. Stat. § 611A.04. Wigham argues that the district court exceeded its statutory authority when it ordered him to pay restitution because the district court issued the restitution order after Wigham was sentenced. The state argues that the district court had the authority under Minn. Stat. § 611A.04 to order post-sentence restitution because the true extent of the victims’ losses was unknown at the time of sentencing. We agree with the state.

“A district court has broad discretion to award restitution, and the district court’s order will not be reversed absent an abuse of discretion.” State v. Andersen, N.W.2d 910, 913 (Minn. 2015). “The district court’s factual findings will not be disturbed unless they are clearly erroneous.” Id. Questions “concerning the authority of the district court to order restitution are questions of law subject to de novo review.” Id. Minn. Stat. § 611A.04, subd. 1(b), “sets forth three conditions that must be fulfilled for a district court to order restitution after a sentencing hearing.” Id. at 914. Those conditions are: (1) the offender is on probation, committed to the commissioner of corrections, or on supervised release; (2) sufficient evidence of a right to restitution has been submitted; and (3) the true extent of the victim’s loss or the loss of the Crime Victims Reparations Board was not known at the time of the sentencing or dispositional hearing, or hearing on the restitution request.

Minn. Stat. § 611A.04, subd. 1(b) (emphasis added).

Wigham does not dispute that the first two conditions were met. But he contends that the third condition was not met when the district court ordered him to pay restitution after sentencing because the true extent of the victims’ losses was known to the district court at the time of sentencing by virtue of the fact that both victims had filed affidavits requesting restitution prior to sentencing. We are not persuaded.

We have previously held that it is the district court’s knowledge of the true extent of the victims’ losses, not that of the state or the victims, that is controlling for purposes of Minn. Stat. § 611A.04, subd. 1(b)(3). Mason v. State, 652 NW.2d 269, 272 (Minn. App. 2002). We acknowledge that the homeowner and the insurance company each filed an affidavit requesting restitution prior to sentencing and that the affidavits described each victim’s claimed losses. But the record also reflects that the affidavits were confusing as to the “true extent” of each victim’s loss. The homeowner’s affidavit sought reimbursement for loss of rental income and loss of the value of the home, as well as cleanup costs. The insurance company’s affidavit sought reimbursement for payments made to the homeowner for these same types of losses—loss of rental income and loss of home value. As a result, both the state and defense counsel expressed concerns about the accuracy of the affidavits and both agreed to leave the issue of restitution open after sentencing. In other words, both Wigham’s attorney and the prosecutor agreed that an accurate restitution amount could not be determined at the time of sentencing.

The record further reflects that additional testimony at the restitution hearings held after sentencing was necessary for the district court to determine the “true extent” of the victims’ losses. The testimony of the homeowner and one of the insurance company representatives clarified the amount of each type of loss that each victim incurred, making it possible for the district court to ensure that the restitution award did not include any “doubling up” of claims, particularly with regard to loss of rental income. And the homeowner testified to some additional fire-related loss expenses that he incurred after submitting his affidavit—replacing part of a sidewalk and part of the street near the home in order to disconnect the destroyed dwelling from the city sewer and water systems.

In sum, the record reflects that the true extent of the victims’ losses was not known to the district court at sentencing. And, because the true extent of the victims’ losses was unknown at sentencing and the other statutory criteria were met, the district court had the authority under Minn. Stat. § 611A.04, subd. 1(b) to order Wigham to pay restitution after sentencing.

II.

The district court considered Wigham’s ability to pay.

Wigham argues that the district court failed to consider his ability to pay restitution as required by Minn. Stat. § 611A.045, subd. 1(a)(2) (2018). The state argues that the record reveals that the district court did consider Wigham’s ability to pay before ordering restitution. We agree with the state.

When determining “whether to order restitution and the amount of restitution,” a district court “shall consider” two factors: “the amount of economic loss sustained by the victim” and “the income, resources, and obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a) (2018). An offender who intends to challenge the amount of restitution “shall have the burden to produce evidence.” Id., subd. 3(a) (2018). We review a district court’s consideration of an offender’s ability to pay for an abuse of discretion.

State v. Davis, 907 N.W.2d 220, 223 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018).

The record reveals that the district court considered Wigham’s ability to pay. First, the district court did not order Wigham to pay the full $143,100 that was originally requested by the state. Second, the district court only ordered Wigham to pay the requested $16,000 to the homeowner, instead of requiring Wigham to fully compensate the homeowner for all the losses that he testified to. Third, the district court acknowledged that it “balanc[ed] the interests of [Wigham] and the victims” in ordering restitution. A district court does not abuse its discretion merely because it concludes that an incarcerated defendant owes a large amount of restitution, even where the defendant is unlikely to be able to repay the sum. See id. at 227-28 (reversing a district court’s decision to order no restitution based on the defendant’s incarceration). Thus, Wigham has not met his burden of showing that the district court abused its discretion by not considering his ability to pay.

III.

Wigham forfeited his remaining argument.

Finally, Wigham argues that the homeowner’s restitution award should be reduced from $16,000 to $15,000 because the homeowner’s affidavit was submitted by the homeowner as an individual, not on behalf of his rental business, and the evidence of loss by the homeowner individually was limited to $15,000 for debris removal. Wigham contends that any further loss claimed by the homeowner was incurred by the homeowner’s rental business, which owned the home. The state argues that Wigham forfeited this argument because he failed to raise it before the district court. We agree with the state.

“Generally, [an appellate court] will not consider arguments that are made for the first time on appeal.” State v. Johnson, 851 N.W.2d 60, 64 (Minn. 2014). This rule helps to “encourage the development of a factual record at the district court level.” Id. But the rule is not absolute. An appellate court may address an issue raised for the first time on appeal in the “interests of justice” where doing so will not “unfairly surprise the other party.” Id. The supreme court has identified the following factors as relevant to the determination: (1) whether the appellant had the opportunity to raise the issue to the district court; (2) whether the issue involves “important liberty interests or pressing matters of statewide concern”; and (3) whether the issue is ripe for consideration. See id. (applying the above factors and concluding that appellant forfeited his restitution argument by failing to present the argument to the district court).

Based on our review of these factors, we conclude that Wigham forfeited this argument. Wigham had the opportunity to raise his argument involving the amount of the homeowner’s restitution award before the district court but did not do so. And, while the amount of restitution ordered is certainly of concern to Wigham, it does not implicate “important liberty interests or pressing matters of statewide concern.” Finally, while this issue is ripe for consideration because Wigham presently owes the contested amount, this factor alone does not require consideration of Wigham’s argument. See State v. Lopez- Solis, 589 N.W.2d 290, 293 n.3 (Minn. 1999) (holding that the defendant forfeited his argument about the reasonableness of the costs sought by the state, despite the issue arguably being ripe for consideration). Therefore, we conclude that Wigham has forfeited this new argument.

Affirmed.