Opinion
No. C9-01-1890.
Filed March 26, 2002.
Appeal from the District Court, Hennepin County, File No. 00088218.
Mike Hatch, Attorney General, and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, (for respondent)
Gale A. Rachuy, (appellant pro se)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Gale A. Rachuy challenges the district court's denial of his motion to withdraw his guilty plea, arguing that restitution imposed at sentencing violated the terms of the plea agreement. We affirm.
FACTS
Appellant was charged with defrauding his victim of $4,000. On August 17, 2001, appellant entered into a plea agreement with the state whereby appellant pleaded guilty to theft by swindle pursuant to Minn. Stat. § 609.52, subds. 2(4), 3(2) (Supp. 1999), and the district court agreed to sentence appellant to 56 months.
At the sentencing hearing, the district court sentenced appellant as agreed and ordered him to pay restitution of $4,000. Appellant moved to withdraw his guilty plea, arguing that the restitution violated the terms of the plea agreement. The district court denied appellant's motion. This appeal follows.
DECISION
Whether a district court properly denied a motion to withdraw a guilty plea is reviewed under an abuse-of-discretion standard. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).
Restitution may be ordered by a sentencing court in addition to an executed prison sentence. Minn. Stat. § 609.10(5) (1998). The court has wide discretion in determining and ordering the appropriate amount of restitution. State v. Hanson, 405 N.W.2d 467, 469-70 (Minn.App. 1987). In ordering restitution, a court must determine the economic loss to the victim. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).
Criminal defendants may withdraw a guilty plea after sentencing if withdrawal is necessary to correct a manifest injustice, which occurs when a guilty plea is not accurate, voluntary, and intelligent. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The defendant must understand the consequences of a plea. Id. The district court judge "shall reject or accept the plea of guilty on the terms of the plea agreement." Minn.R.Crim.P. 15.04, subd. 3(1). Failure to do so entitles the defendant to withdraw the plea. State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988).
Appellant argues that the district court violated the plea agreement when it ordered restitution that was not contemplated in the plea agreement. We have held that
[a]bsent a specific agreement concerning restitution, a plea agreement as to charge and sentence neither precludes restitution nor limits the district court in its consideration of the amount of restitution and defendant's ability to pay.
State v. Anderson, 507 N.W.2d 245, 246-47 (Minn.App. 1993), review denied (Minn. Dec. 22, 1993).
Restitution imposed at sentencing but not discussed in the plea agreement only violates the agreement when it "materially alter[s] the expectation of the parties." State v. Chapman, 362 N.W.2d 401, 404 (Minn.App. 1985) (quoting United States v. Runck, 601 F.2d 968, 970 (8th Cir. 1979)). Runck noted that restitution imposed at sentencing may violate a plea agreement if "the comparative magnitude of the amount of restitution [creates] a material change in the plea bargain." 601 F.2d at 970. See also Anderson, 507 N.W.2d at 247 (restitution imposed at sentencing does not violate the plea agreement when appellant "should have been aware that the victim might seek and the court might order restitution").
At the plea hearing, the district court ordered a presentencing investigation and a victim-impact statement, one purpose of which is to inform the victim of her right to request restitution. Minn. Stat. § 611A.037 (1998). Appellant, therefore, had reason to believe the district court was considering restitution. See Anderson, 507 N.W.2d at 247 (defendant was on notice that "restitution was potentially involved" when the district court ordered a victim-impact statement).
At the sentencing hearing, appellant's counsel stated that he had discussed restitution with appellant several times. The prosecutor stated that she had always requested restitution in her discussions with appellant's counsel. The district court noted that appellant has 28 prior convictions, primarily for theft-related offenses, and said to appellant that "after 30 years of being a swindler," he could hardly be surprised at being "ordered to pay restitution." Appellant's brief acknowledges that automatic imposition of restitution "is the common and general practice in Hennepin County." Given these facts, appellant's argument that restitution was unexpected is not credible.
Further, the $4,000 restitution is not of sufficient magnitude to materially alter the plea bargain. It was the amount necessary to "restor[e] or compensat[e] the victim for [her] loss." Fader, 358 N.W.2d at 48. We have held that procedurally irregular or excessive restitution is impermissible. See State v. Anderson, 520 N.W.2d 184, 188 (Minn.App. 1994) (striking prosecutor's demand for restitution after promising that the victim would seek no restitution); Chapman, 362 N.W.2d at 404 (striking a restitution that exceeded defendant's restitution offer by $31,000 and imposed restitution for charges not pleaded to). But there was no such irregularity or excess here.
On this record, we cannot conclude that the imposition of restitution constituted a material change in the plea bargain or materially altered appellant's expectation of the plea bargain. The district court did not violate the bargain by imposing restitution or abuse its discretion by denying appellant's motion to withdraw his guilty plea.