                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0788

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Joel Patrick Rodriguez,
                                        Appellant.

                                 Filed January 9, 2017
                                Reversed and remanded
                                     Hooten, Judge

                                Clay County District Court
                                 File No. 14-CR-15-2253

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

Brian J. Melton, Clay County Attorney, Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik Irving Withall, Assistant
Public Defender, St. Paul, Minnesota (for appellant)



       Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Klaphake,

Judge.

                                     SYLLABUS

       A criminal defendant has a constitutional right to be present at a restitution hearing

because such hearing is a critical stage of the sentencing process.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                      OPINION

HOOTEN, Judge

       Appellant challenges the district court’s imposition of restitution, arguing that he

had the right to be present at the contested restitution hearing and that the district court

violated this right by determining that his attorney’s failure to arrange his appearance

constituted a waiver. Because the district court erred in finding that appellant waived his

right to be present and the state has not proven that the error was harmless, we reverse and

remand for further proceedings.

                                         FACTS

       On June 25, 2015, appellant Joel Patrick Rodriguez fled from police while driving

a motor vehicle in Clay County, Minnesota. In an effort to stop Rodriguez’s vehicle, a law

enforcement officer conducted a precision immobilization technique (PIT) maneuver in

which his squad car made contact with Rodriguez’s vehicle. The maneuver caused

Rodriguez’s vehicle to spin, enabling law enforcement to stop the vehicle. Rodriguez was

subsequently detained and arrested. The Clay County Sheriff’s Office claims that in

performing the PIT maneuver, the officer’s squad car was damaged.

       Rodriguez pleaded guilty to fleeing a peace officer in a motor vehicle, and the

district court sentenced him to 22 months in prison. The district court also ordered him to

pay restitution in the amount of $908.99 to the Clay County Sheriff’s Office for the cost of

repairs made to the damaged squad car. Rodriguez moved for a contested restitution

hearing, alleging that the Clay County Sheriff’s Office does not qualify as a “victim” as




                                             2
defined in Minn. Stat. § 611A.01(b) (2014). The district court set a hearing for January 15,

2016, and provided notice of the hearing to Rodriguez’s attorney.

         At the January 15 hearing, Rodriguez did not appear, and the state requested that

the district court proceed with the hearing despite his absence. Rodriguez’s attorney, who

was present at the hearing, argued that the district court should not continue with the

hearing because Rodriguez was incarcerated and counsel had no way to secure Rodriguez’s

presence. The district court determined that Rodriguez had waived his appearance and

moved forward with the hearing. The district court reasoned that Rodriguez, through his

attorney, had ample notice of the hearing and could have either arranged to appear or

requested a continuance. The state called the officer who conducted the PIT maneuver as

its only witness. The officer testified about the incident and the damage to the squad car.

Rodriguez’s attorney did not provide any evidence but stated that he was unsure what

evidence, if any, Rodriguez would have wanted to present.

         The district court issued an order requiring Rodriguez to pay $908.00 in restitution

to the Clay County Sheriff’s Office. The district court reiterated its conclusion that

Rodriguez waived his right to be present because Rodriguez had 45 days’ notice of the

hearing but failed to make arrangements to appear in person or by telephone. This appeal

followed.

                                           ISSUES

   I.       Did Rodriguez have a constitutional right to be present at the restitution hearing?

   II.      Did the district court commit reversible error by determining that Rodriguez
            waived his appearance and by proceeding with the restitution hearing in his
            absence?


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                                         ANALYSIS

       Rodriguez argues that the district court deprived him of his constitutional right to

be present at a restitution hearing by determining that he had waived his appearance and

by holding the hearing despite his absence. The district court has discretion to award

restitution, and we will not reverse unless the district court abuses that discretion. State v.

Andersen, 871 N.W.2d 910, 913 (Minn. 2015). While we review the district court’s factual

findings for clear error, questions concerning the district court’s authority to order

restitution are questions of law, which we review de novo. Id.

                                                I.

       This court recently held that a criminal defendant is guaranteed the constitutional

right to counsel at a restitution hearing because a restitution hearing constitutes a critical

stage in a criminal proceeding in which the defendant and the state may engage in a trial-

like confrontation. State v. Maddox, 825 N.W.2d 140, 146 (Minn. App. 2013). As a matter

of first impression, we must decide whether a criminal defendant also has a constitutional

right to be present at a restitution hearing.

       “The Confrontation Clause of the Sixth Amendment to the United States

Constitution, which is applicable to the states through the Fourteenth Amendment,

guarantees criminal defendants a right to be present at all stages of the trial where his

absence might frustrate the fairness of the proceedings.” State v. Worthy, 583 N.W.2d 270,

277 (Minn. 1998) (quoting Faretta v. California, 422 U.S. 806, 819 n.15, 95 S. Ct. 2525,

2533 n.15 (1975)). The right to be present is also protected under the Due Process Clause,




                                                4
even in some circumstances in which the defendant is not actually confronting the evidence

being presented against him. State v. Cassidy, 567 N.W.2d 707, 709 (Minn. 1997).

       “A defendant in a criminal proceeding has a Fourteenth Amendment due process

right to be present at all critical stages of trial.” State v. Martin, 723 N.W.2d 613, 619

(Minn. 2006) (quotation omitted). “Critical stages” are proceedings between a defendant

and the state that amount to trial-like confrontations and may result in the defendant losing

certain legal rights if he does not exercise them. Maddox, 825 N.W.2d at 144. Minn. R.

Crim. P. 26.03, subd. 1(1)(h), provides an even broader right to be present than the United

States Constitution because it requires a defendant’s presence at every stage of the trial,

including the sentencing stage. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). A

criminal defendant’s obligation to pay court-ordered restitution is considered part of the

defendant’s sentence. State v. Borg, 834 N.W.2d 194, 197 (Minn. 2013).

       Minnesota courts have not directly addressed the issue of whether a criminal

defendant has a constitutional right to be present at a restitution hearing. But the analyses

in Maddox and Martin provide guidance on how we should decide this question. Here,

Rodriguez moved for a restitution hearing, contesting the district court’s order at the

sentencing hearing requiring him to pay restitution.       A contested restitution hearing

constitutes a trial-like confrontation because the district court must weigh and balance

evidence in deciding whether and what amount a defendant must pay restitution to a victim.

See Minn. Stat. § 611A.045, subd. 3 (2014); see also State v. O’Brien, 459 N.W.2d 131,

133 (Minn. App. 1990). And in this case, the state presented testimonial evidence after the

district court decided to proceed with the hearing despite Rodriguez’s absence. Because


                                             5
Martin establishes that a criminal defendant has the right to be present at all critical stages

of a criminal proceeding and Maddox identifies a restitution hearing as a critical stage of a

criminal proceeding, we hold that Rodriguez had a constitutional right to be present at the

restitution hearing in order to confront the evidence being presented against him.

                                              II.

       As with other constitutional rights, the right to be present may be waived by a

defendant. State v. Finnegan, 784 N.W.2d 243, 247 (Minn. 2010). “A waiver is an

intentional relinquishment of a known right or privilege . . . .” Cassidy, 567 N.W.2d at 709

(quotation omitted). A defendant may expressly waive the right to be present or the district

court may imply waiver from the defendant’s conduct, such as his absence from a hearing

without explanation. Id.; Finnegan, 784 N.W.2d at 247. But in deciding whether a

defendant has waived a constitutional right, the district court “must indulge every

reasonable presumption against the loss of constitutional rights.” Cassidy, 567 N.W.2d at

709 (quoting Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1060 (1970)).

       Minn. R. Crim. P. 26.03, subd. 1(2)(1), permits a trial to proceed without a

defendant’s presence, after the trial has already commenced, if the district court determines

that his absence is without justification. A defendant must satisfy a heavy burden in

showing that his absence was involuntary because the judicial process, which relies on the

coordination of attorneys, witnesses, and court personnel, could not function properly if a

defendant could simply pick and choose when to appear in court. Finnegan, 784 N.W.2d

at 247–48. Here, the record indicates that Rodriguez did not appear at the restitution




                                              6
hearing because he was in prison serving his sentence for the underlying offense. For this

reason, Rodriguez had ample justification for not being present at the hearing.

       The parties disagree about who was responsible for securing Rodriguez’s

appearance for the restitution hearing.      Rodriguez asserts that the state could have

petitioned for, or the district court could have issued, a transport writ to bring Rodriguez to

the hearing.1 See generally Minn. Stat. §§ 589.01–.35 (2014) (providing for issuance of

writ of habeas corpus upon application and order to sheriff requiring transportation of

prisoner for appearance before district court). The state, however, argues that Rodriguez

voluntarily waived this right because his own attorney chose not to secure his appearance

at the hearing through the writ process. At the hearing before the district court, Rodriguez’s

attorney also asserted that because the Uniform Mandatory Disposition of Detainers Act

(UMDDA), Minn. Stat. § 629.292 (2014), does not specifically address restitution

hearings, he had no mechanism by which he could secure Rodriguez’s presence.2



1
  At the restitution hearing, the state admitted that it was unaware of Rodriguez’s current
location but expected that he was “somewhere in prison.” Nonetheless, the state asserted
that it was up to Rodriguez’s attorney to arrange his presence. Generally, it is the defense
attorney’s burden to ensure that arrangements are made to transport a defendant in custody
to a court proceeding. See generally Minn. Stat. §§ 589.01–.02.
2
  Under the UMDDA, a person imprisoned on a charge may request that any other pending
charge be brought to trial within six months, and if that request for a trial and his presence
at trial is not timely honored, the district court must dismiss the complaint with prejudice.
Minn. Stat. § 629.292, subd. 1-3; State v. Brown, 835 N.W.2d 24, 25 (Minn. App. 2013),
review denied (Minn. Oct. 15, 2013). While Rodriguez’s attorney is correct that that the
UMDDA does not specifically address the proper process for securing a defendant’s
presence for a restitution hearing, Rodriguez had other options available to him. For
example, he could have requested the prosecutor to obtain a transport writ from the district
court, or he could have notified the district court of his difficulty in obtaining Rodriguez’s
presence for the hearing and asked for a continuance.

                                              7
       But, regardless of whether the state failed to petition for a transport writ or whether

a defendant’s attorney went through the proper channels to obtain his presence for the

hearing, a defendant must personally decide to waive his right to be present. State v.

Charles, 634 N.W.2d 425, 432 (Minn. App. 2001). A defendant’s waiver of his right to be

present at a hearing is not a decision that is left up to his attorney. Id.

       In this case, the district court moved forward with the hearing, stating:

              The [c]ourt is of the opinion that Mr. Rodriguez, through his
              attorney at least, had ample notice of this hearing and could
              have appeared or made arrangements to appear if he wished to
              do so. And . . . by not appearing or asking for a continuance in
              order to arrange for an appearance . . . I believe he has waived
              that. So we will go ahead.

In its subsequent order, the district court restated that Rodriguez waived his right to be

present because Rodriguez and his attorney had notice of the restitution hearing 45 days

prior to the hearing, yet neither made any arrangements for Rodriguez to appear in person

or by telephone.

       However, the district court “cannot presume” a defendant’s waiver of his right to be

present from a record that does not clearly articulate that his absence was a product of his

voluntary choice. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969);

see also Charles, 634 N.W.2d at 433 (“The district court must ensure that the defendant’s

waiver of the right to be present was made voluntarily after consultation with counsel and

a record of the waiver must be made.”). Here, it is not entirely clear from the record

whether Rodriguez had received notice of the hearing or was actually aware of its date and

time. There is no indication in the record that Rodriguez was able to personally consult



                                               8
with his attorney or was given the opportunity to instruct his attorney to seek a transport

writ or to request a continuance. See Brown v. State, 682 N.W.2d 162, 166–67 (Minn.

2004) (deciding that record lacked any indication that defendant personally waived right

to be present or consented to waiver by his attorney). Rodriguez’s own motion documents

state that he “does not have ready access to his attorney.” Because the district court did

not adequately ensure that Rodriguez’s waiver to be present at the hearing was voluntary,

we conclude that the district court erred in determining that Rodriguez waived this right.

       Even if the district court wrongfully denied Rodriguez the right to be present at his

restitution hearing, a new restitution hearing is warranted only if the district court’s error

was not harmless.3 See State v. Sessions, 621 N.W.2d 751, 756–57 (Minn. 2001) (holding

that district court erred in communicating with jury outside of open court, without

defendant’s presence, and without making contemporaneous record of communications,

but that error was harmless). The error in this case would be considered harmless beyond


3
  While Rodriguez primarily argues on appeal that a harmless error standard applies, he
implies in his appellate briefs that the denial of his right to be present at his restitution
hearing was a structural error, and, for the first time during oral argument, maintained that
such error requires automatic reversal. Rodriguez is correct that, because a structural error
brings into question the very accuracy and reliability of the trial process, automatic reversal
is appropriate. State v. Chavez-Nelson, 882 N.W.2d 579, 587 (Minn. 2016). But,
Rodriguez does not cite to any authority that would support his claim that the denial of his
constitutional right to appear at a restitution hearing was a structural error warranting
automatic reversal. Because Rodriguez failed to adequately raise this issue in his briefs,
and because we address and resolve his harmless error argument, which was raised in his
briefs, in his favor, we decline to address the question of whether the deprivation of his
right to appear at his restitution hearing was a structural error meriting automatic reversal.
See State v. Hurd, 763 N.W.2d 17, 32 (Minn. 2009) (declining to reach issue in absence of
adequate briefing); see State v. Ouellette, 740 N.W.2d 355, 361 (Minn. App. 2006)
(holding that assignment of error in brief based on “mere assertion and not supported by
argument or authority is waived”).

                                              9
a reasonable doubt if the district court’s decision to order Rodriguez to pay restitution was

surely unattributable to the error. See id. at 756. If the district court commits an error by

proceeding without the defendant’s presence, this court conducts a harmless error analysis

by examining the record for the strength of the evidence and considering what the

defendant would have contributed to his defense if he had been present. State v. Breux,

620 N.W.2d 326, 332–33 (Minn. App. 2001).

       The state bears the burden of showing that the error was harmless beyond a

reasonable doubt. State v. Shoen, 598 N.W.2d 370, 377 (Minn. 1999). Here, the state

failed to address the harmless error argument in its appellate brief. During oral argument,

the state maintained that this court could nevertheless conclude that any error was harmless

because Rodriguez had submitted an affidavit in conjunction with his objection to the

restitution order. Rodriguez’s affidavit, consisting of four conclusory statements outlining

his objection, does not provide any indication that he intended the affidavit to serve as his

testimony at the hearing in lieu of his presence. Moreover, the state cites to no authority

that would allow a district court to proceed to a contested restitution hearing without the

defendant’s presence, or waiver of his right to be present, on the basis that the defendant

had submitted an affidavit objecting to restitution. Due to the state’s failure to brief this

issue and its vague assertion at oral argument regarding Rodriguez’s affidavit, we believe

that the state essentially concedes that the error was not harmless beyond a reasonable

doubt. See State v. Porte, 832 N.W.2d 303, 312–13 (Minn. App. 2013) (holding that if the

state does not make harmless error argument, this court is not required to undergo harmless

error analysis but may do so under certain circumstances). Regardless of whether the


                                             10
state’s actions amount to a concession, we nonetheless conclude that the state failed to meet

its burden of showing harmless error.

       At the restitution hearing, the state presented evidence indicating that the Clay

County Sheriff’s Office was entitled to restitution as a result of Rodriguez’s actions. The

evidentiary portion of the hearing included testimony from the officer who conducted the

PIT maneuver to stop Rodriguez’s flight from law enforcement. The officer testified about

the details of the incident, described the nature and extent of the damages to the squad car,

and provided foundation to admit the Clay County Sheriff’s Office’s affidavit, which

described the amount of restitution requested. After the state rested, Rodriguez’s attorney

stated that he had no evidence to offer but admitted he was unsure whether Rodriguez

would have wanted to offer any evidence.

       On appeal, Rodriguez asserts that he could have contributed to the hearing by

assisting in his attorney’s cross-examination of the officer or by providing his own

testimony. Although Rodriguez’s objection to restitution was based primarily on a legal

issue, i.e., whether the Clay County Sheriff’s Office could constitute a victim under the

restitution statute, the hearing itself contained an evidentiary component as to the nature

and extent of the damages sustained. The officer testified that the PIT maneuver caused

damage to the front spoiler bumper of his squad car.

       Based on the record before us, we cannot adequately ascertain whether Rodriguez’s

presence would have meaningfully contributed to the hearing. See Kentucky v. Stincer,

482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987) (stating that an individual has the “right

to be present in his own person whenever his presence has a relation, reasonably


                                             11
substantial, to the fullness of his opportunity to defend against the charge” (quotation

omitted)). Although Rodriguez was present when the squad car was damaged, he was not

given an opportunity to dispute the officer’s testimony regarding the incident and was not

able to offer any testimony of his knowledge as to the nature and extent of the damage

sustained. Therefore, based upon this record and the state’s failure to brief the harmless

error issue, we conclude that the state cannot meet its burden that the error was harmless

beyond a reasonable doubt.

                                      DECISION

       We conclude that the district court erred in finding that Rodriguez waived his

constitutional right to be present at the restitution hearing, and because the state failed to

show that the error was harmless beyond a reasonable doubt, we reverse and remand the

case for further proceedings consistent with this opinion.

       Reversed and remanded.




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