                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1105

                           Abdulkadir Ali Mohamud, petitioner,
                                       Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed April 6, 2015
                                       Affirmed
                                   Stauber, Judge
                         Concurring specially, Schellhas, Judge

                               Olmsted County District Court
                           File Nos. 55CR095673; 55CR094247

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and

Mark Ostrem, Olmsted County Attorney, James P. Spencer, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and

Hooten, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       Following this court’s remand for rehearing on restitution, appellant argues that

the district court lacked the authority to modify restitution in a series of post-sentencing
orders when restitution was not specifically reserved by the district court at sentencing.

We affirm.

                                          FACTS

       On July 20, 2009, appellant Abdulkadir Ali Mohamud shot and killed R.N.

Appellant pleaded guilty to unintentional second-degree murder, and the district court

imposed a 204-month executed prison sentence. Before sentencing, the victim’s mother,

R.W., and the Crime Victims Reparations Board (CVRB) filed affidavits seeking

restitution. R.W. sought $6,010.80 in funeral expenses, and CVRB sought separate

amounts of $147.00, $208.25, and $269.50 for counseling services it paid for a bystander

who witnessed R.N.’s death. The district court ordered appellant to pay restitution of

$6,010.80 for R.N.’s funeral expenses and $269.50 for the bystander’s counseling

services.1

       In March 2010, CVRB sought additional restitution of $1,536.36 on behalf of

G.N., the victim’s father, and $1,549.80 for R.W., for additional funeral expenses. In a

May 11, 2010 order, the district court reviewed restitution to ensure that there were not

duplicate payments and modified the total restitution award to $7,963.15.

       In August 2010, CVRB sought modified restitution of $2,591.10 for G.N. and

$2,686.25 for R.W., again for funeral expenses. The district court asked CVRB for

clarification, and CVRB explained that reimbursement percentages paid by CVRB had

increased from 50% to 75%, certain items claimed by R.W. were disallowed by CVRB,


1
  The district court record shows that the restitution claim changed frequently, but in
relatively small amounts.

                                             2
and new funeral services claims had accrued since the last order. In summary, CVRB

requested the following restitution: $1,130.57 to R.W., $663.70 to G.N., and $5,277.35

to CVRB. On September 8, 2010, the district court ordered appellant to pay CVRB’s

requested restitution of $1,130.57 to R.W., $1,563.23 to G.N., and $5,277.35 to CVRB.

       On September 16, 2010, appellant wrote the district court a letter asking the court

to limit restitution to the amount ordered at sentencing. The district court held a

telephone hearing on November 5, 2010, but appellant was not represented by counsel

because his request for a public defender had been denied. Following the hearing, the

district court issued a fourth order amending restitution, requiring appellant to pay

$1,130.57 to R.W., $863.70 to G.N., and $5,277.35 to CVRB.

       On May 2, 2012, appellant filed a petition for postconviction relief, addressing the

issue of whether restitution could be modified post-sentencing and claiming ineffective

assistance of counsel because he was unrepresented by counsel at the November 5, 2010

restitution hearing. The district court initially sent both parties a letter suggesting that the

newly appointed public defender may have identified a factual dispute about whether the

extent of the victims’ loss was known at the time of sentencing and asking the state to

reduce the amount of restitution claimed from $7,346.62, to the amount originally

awarded at sentencing, $6,349.60, stating:

                     Here is my question: I would ask the State whether
              it has so strong an objection to the Court simply ordering
              the requested reduction that it would insist on litigating the
              point. I would propose a pragmatic solution; reduce the
              CVRB reimbursement in order that the restitution ordered
              is the original amount—holding harmless the two
              individuals that are owed restitution by [appellant].


                                               3
                     My thinking is that the taxpayer will spend several
              thousand dollars paying a public defender to challenge the
              current order, a prosecutor to defend it, and a judge to
              decide the issue. And this all relates to $997 that the
              incarcerated [appellant] possibly owes the CVRB, but
              which he will not pay until he has already, somehow, come
              up with $6,349.60. I suggest that this may well be a purely
              hypothetical expectancy.

The state declined this suggestion, stating that it was “not willing to simply concede in

the interest of expediency,” although it “underst[ood] and appreciate[d] the Court’s

comments regarding the cost/benefit analysis of litigating this claim.” The district court

denied appellant’s petition without a hearing, concluding that it had the authority to

amend the restitution order after sentencing when it became aware of new grounds to

modify the award, and that appellant was not entitled to an attorney during the restitution

hearing.

       As sagely forecast by the district court, appellant sought review of the district

court’s decision, and this court reversed and remanded for rehearing, ruling that appellant

was entitled to an attorney at the restitution modification hearing. Mohamud v. State, No.

A13-0142 (Minn. App. 2013). Appellant was appointed an attorney, who moved to

contest the amount of restitution, and appellant filed an affidavit stating his objection to

$3,323.90 of the restitution awarded, on religious grounds, because he does not believe in

the burial practices of the victim’s family. The district court held a post-remand hearing

on February 18, 2014, and issued a restitution order on May 28, 2014, setting restitution

at $7,612.50. The district court addressed and rejected each of appellant’s claimed

grounds for challenging the award.



                                              4
       In this appeal, the sole issue raised by appellant is whether the district court had

authority to modify restitution post-sentencing when it did not reserve that issue.

                                      DECISION

       Upon the conviction of the offender, “[a] victim of a crime has the right to receive

restitution [for ‘any out-of-pocket losses’] as part of the disposition of a criminal charge.”

Minn. Stat. § 611A.04, subd. 1(a) (2014). Generally, restitution must be sought before

sentencing in order to be considered at sentencing. Id. But “[t]he issue of restitution is

reserved . . . if the victim’s affidavit or other competent evidence submitted by the victim

is not received in time [for sentencing].” Id.2 After sentencing,

              [t]he court may amend or issue an order of restitution . . . if:
              (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 hearing on the restitution request.

Id., subd. 1(b) (2014). The “true extent of the victim’s loss” is construed from “the

court’s knowledge, rather than the victim’s or the state’s [knowledge].” Mason v. State,

652 N.W.2d 269, 272 (Minn. App. 2002), review denied (Minn. Dec. 30, 2002). An

offender may challenge restitution sought by the victim by “requesting a hearing within

30 days of receiving written notification of the amount of restitution requested, or within

30 days of sentencing, whichever is later.” Minn. Stat. § 611A.045, subd. 3(b) (2014).

2
  This rule also applies to restitution sought on behalf of crime victims by the CVRB. See
Minn. Stat. § 611A.04, subd. 1a (2014) (“By operation of law, the issue of restitution is
reserved if the payment order is not received at least three days before the sentencing . . .
hearing.”).

                                              5
The statute provides that “[a] defendant may not challenge restitution after the 30-day

time period has passed.” Id.

       We review an order for restitution under the abuse of discretion standard and

review “whether an item meets the statutory requirements for restitution” as a question of

law subject to full review. State v. Ramsay, 789 N.W.2d 513, 517 (Minn. App. 2010).

We also review the interpretation of a statute as a question of law subject to de novo

review. 500, LLC v. City of Minneapolis, 837 N.W.2d 287, 290 (Minn. 2013).

       Appellant argues that the district court lacked authority to modify the restitution

order issued at sentencing because it did not specifically reserve the issue of restitution at

that time. This urged interpretation of the restitution statute provisions is inconsistent

with specific language of the restitution statute, as well as its overall import. The

restitution statute provides that “restitution is reserved” or that it is reserved “[b]y

operation of law” when either the victim or the CVRB fails to provide sufficient evidence

to support a restitution order at the time of sentencing. Minn. Stat. § 611A.04, subd. 1(a).

This language does not require explicit reservation of restitution by the district court.

       Further, the statute permits the district court to revisit the issue of restitution when

the court does not know the “true extent” of the victim’s loss at the time of sentencing.

Id. at subd. 1(b)(3). Here, the CVRB did not make final reimbursements to the victims

until many months after the sentencing hearing. Under Minn. Stat. § 611A.04, subd.

1(b)(3), the district court had the authority to amend restitution after sentencing because

the “true extent of the . . . loss . . . was not known at the time of the sentencing.” For

these reasons, we reject appellant’s argument that the district court lacked authority to


                                               6
modify the restitution order post-sentencing and affirm the district court’s final restitution

decision.

       However, this case also suggests a pattern of conduct by the prosecutor that

warrants some comment by this court. “[A] prosecutor may not seek a conviction at any

price.” Nor should the prosecutor seek punishment in the form of restitution at any price.

State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). While the prosecutor’s conduct here

was neither unlawful nor misconduct in the traditional sense, as an officer of the court

who exercises judgment required by the public trust, the prosecutor should have been

mindful of the drain on the public coffers and the legal system from repeatedly seeking to

increase the amount of restitution. The prosecutor’s actions included seeking restitution

amounts that fluctuated minimally numerous times, which resulted in multiple district

court hearings, appointment of a public defender, and two appeals to this court. During

this process, the prosecutor ignored a suggestion by the district court to compromise on

the amount of restitution because the cost to the government of pursuing post-sentencing

restitution would far exceed the very small and ever changing contested amount of less

than $1,000, which the incarcerated [appellant] was unlikely to be able to pay in addition

to the approximately $6,250 originally ordered. We remind the prosecutor that the

citizens of this state expect an officer of the court to be fiscally responsible and

proportionate in the pursuit of his duties.

       Affirmed.




                                               7
SCHELLHAS, Judge (concurring specially)

      I concur with the majority’s decision but write separately to state that I do not join

in the admonition of the prosecutor that is contained in the last paragraph of majority’s

opinion.




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