                            This opinion will be unpublished and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
                                        A16-0667

                                      State of Minnesota,
                                         Respondent,

                                               vs.

                                     John William Zastrow,
                                          Appellant.

                                 Filed December 27, 2016
                     Affirmed in part, reversed in part, and remanded
                                       Reyes, Judge

                                Hennepin County District Court
                                   File No. 27-CR-14-1108

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

Michael O. Freeman, Hennepin County Attorney, Cheri A. Townsend, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and T. Smith,

Judge.

                           UNPUBLISHED OPINION

REYES, Judge

         Appellant argues that the district court’s restitution order failed to address his

argument that restitution should be offset by debts owed to him and that the district court
did not select between alternative award amounts for three victims. Because we conclude

that restitution cannot be offset by debts owed but that the district court failed to select

between alternative restitution award amounts, we affirm in part, reverse in part, and

remand.

                                           FACTS

       In April 2015, appellant John Zastrow, in accordance with a negotiated plea

agreement, pleaded guilty to one count of identity theft involving eight or more direct

victims in violation of Minn. Stat. § 609.527, subds. 2, 3(5), (2014); three counts of

failing to file a personal income-tax return in violation of Minn. Stat. § 289A.63, subd.

1(a) (2014); and three counts of failing to file a corporate income-tax return in violation

of Minn. Stat. § 289A.63, subd. 1(a).

       At the sentencing hearing, the state dismissed one count of failure to file a

personal income-tax return. For the remaining failure-to-file counts, the district court

sentenced appellant to concurrent sentences of one year and one day, 13 months, 15

months, 17 months, and 18 months. The district court sentenced appellant to a 105-

month stayed prison sentence for the identity theft count, with a downward dispositional

departure resulting in ten years of probation to run concurrently with the other sentences.

Pursuant to the parties’ agreement, the issue of restitution was reserved for 60 days, with

the parties filing letter briefs within that time, and “no further hearing would be had.”

       Both parties filed letter briefs within the agreed-upon 60-day period. The state’s

letter brief included a proposed restitution findings and order, which provided alternative




                                               2
restitution amounts for three victims for which the district court was to make a check

mark to indicate the award amount.1

       On January 26, 2016, the district court ordered appellant to pay restitution in the

amount of $60,360.64. The district court, however, did not use check marks to specify

the amount of restitution ordered for the three victims with alternative proposed awards,

resulting in both alternatives contributing to the total restitution amount. On February 2,

2016, the state sent a letter to the district court requesting that it specify the amount of

restitution ordered for the three victims and refile the order. Appellant filed a notice of

appeal on April 22, 2016. On April 26, 2016, the district court issued an amended

restitution order, using check marks to specify the amount ordered for the three victims

indicated in the state’s February 2 letter.

                                       DECISION

       As a preliminary matter, appellant argues that his objection to the January 26

restitution order is not time barred. We agree.

       The procedure for challenging the amount or type of restitution ordered is

governed by statute: “An offender may challenge restitution, but must do so 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).




1
 For each of the three victims, the alternative restitution amounts were for either the
actual amount of losses claimed or the statutory minimum of $1,000.

                                               3
       Here, although appellant challenged restitution and requested a hearing more than

30 days after the district court issued the January 26 order, the parties waived the

statutory time restriction when they agreed to submit letter briefs on the issue of

restitution within 60 days of sentencing and agreed that there would be no further hearing

on the case. Cf. State v. Doppler, 590 N.W.2d 627, 634 (Minn. 1999) (noting that parties

agreed to waive 14-day statutory requirement to impanel grand jury). Thus, appellant

had no other recourse than to appeal the January 26 restitution order, and his objection is

timely.

       Next, appellant argues that the district court abused its discretion when it ordered

him to pay $60,360.64 in restitution because it failed to make findings addressing

appellant’s argument in favor of offsetting restitution and failed to select an alternative

restitution award for three victims. We address each argument in turn.

I.     The district court did not abuse its discretion when it did not directly address
       appellant’s argument in favor of offsetting restitution.

       Appellant argues that the district court abused its discretion when it failed to make

findings addressing appellant’s argument that certain restitution awards should be offset

with debts that victims allegedly owed appellant. We disagree.

       We review a district court’s decision to award restitution for an abuse of

discretion. State v. Tenerelli, 598 N.W.2d 668, 672 (Minn. 1999). The purpose of the

restitution statute is to restore victims to the financial position they were in prior to the

crime. State v. Palubicki, 727 N.W.2d 662, 666 (Minn. 2007); see also State v. Pflepsen,

590 N.W.2d 759, 769 (Minn. 1999). The exclusive factors a district court must consider



                                               4
when determining whether to order restitution are “(1) the amount of economic loss

sustained by the victim as a result of the offense; and (2) the income, resources, and

obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a), (2014).

       A district court “shall state on the record its reasons for its decisions on restitution

if information relating to restitution has been presented.” Minn. Stat. § 611A.04, subd.

1(c) (2014). The district court “must have some factual basis” for its restitution

determination. State v. Gaiovnik, 794 N.W.2d 643, 651 (Minn. 2011). The record itself

can provide a factual basis for a restitution award. State v. Fader, 358 N.W.2d 42, 48

(Minn. 1984); see also Gaiovnik, 794 N.W.2d at 651; Anderson v. State, 794 N.W.2d 137

(Minn. App. 2011), review denied (Minn. Apr. 27, 2011).

       Here, the district court did not directly address appellant’s argument that the

restitution award should have been offset by debts that victims allegedly owed appellant.

The order stated that the district court considered “the files, records and proceedings” and

“the factors set forth in Minn. Stat. § 611A.045, subd. 1,” without further detail. While it

would have been preferable for the district court to elaborate on its reasoning, the record

provides sufficient financial information to support an order for restitution.

       Moreover, appellant’s offsetting argument is without merit. First, it is not a factor

for the district court to consider under the statute. In addition, it would have been

improper for the district court to offset the restitution awards based on a potential civil

lawsuit over alleged amounts owed to appellant. Pflepsen, 590 N.W.2d at 768 (holding

that it was error not to impose restitution due to pending civil damages lawsuit). Finally,

the district court was required to order restitution payments of at least $1,000 to each


                                               5
identity theft victim, Minn. Stat. § 609.527, subd. 4(b), (2014), contrary to appellant’s

assertion that the debts two victims allegedly owed to him completely eliminated their

entitlement to restitution. As the state argues, the proper avenue for appellant to receive

the amounts owed would be through the civil process, not through an offset based on

alleged debts. Thus, the district court did not abuse its discretion when it referenced

Minn. Stat. § 611A.045, subd. 1, in the restitution order and did not offset the restitution

awards by the purported debts. Accordingly, we affirm the district court’s decision not to

offset restitution.

II.    The district court did not select between alternative restitution award amounts
       for three victims.

       Appellant also asserts that the district court abused its discretion when it failed to

use a check mark to select either the actual amount of losses claimed or the $1,000

statutory minimum as a restitution award for three of the victims. The state asserts that

the amended restitution order issued on April 26 eliminates this issue. We agree with

appellant.

       “[T]he filing of a timely and proper appeal suspends the [district] court’s authority

to make any order that affects the order or judgment appealed from.” Minn. R. Civ. App.

P. 108.01, subd. 2. The district court “retains jurisdiction as to matters independent of,

supplemental to, or collateral to the order or judgment appealed from.” Id.

       On April 22, appellant filed a timely and proper sentencing appeal from the

January 26 restitution order. Four days later, the district court issued an amended

restitution order. The district court did not have jurisdiction to issue the second order.



                                              6
Thus, with respect to the first restitution order, the district court abused its discretion

when it failed to select between alternative award amounts for three of the victims, which

resulted in the district court including at least an additional $3,000 in the total restitution

award. Therefore, we reverse and remand to the district court to allow it to file an

amended restitution order.

       Affirmed in part, reversed in part, and remanded.




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