Opinion
No. C0-00-472.
Filed December 12, 2000
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Shadeko argues that because his four theft convictions stemmed from a single behavioral incident the district court erred by imposing multiple sentences. We disagree and affirm. He also challenges the amount of restitution imposed by the district court. Because the parties agree that the evidence does not support the amount imposed, we remand for recalculation of restitution.
FACTS
Appellant Akindele Shadeko and his family have lived in Minneapolis public housing since 1990. From 1990 through 1995, Shadeko submitted income certifications to the Minneapolis Public Housing Authority (MPHA). The certifications contained a notice to Shadeko that he had the responsibility to notify MPHA management of any income change within five days. Initially, Shadeko reported his wife was employed and he was a student. In 1992, 1993 and 1994, Shadeko certified he had no income from any source. In May 1995, he reported no income for himself. In May and June of 1996, Shadeko and his wife submitted an application for continued occupancy and other documents indicating each worked part-time. In April 1997, Shadeko submitted an application for continued occupancy identifying income for his wife only.
In 1997, MPHA officials discovered that Shadeko had been working under a different social security number since at least the second quarter of 1995 and increased the monthly rent substantially. In August 1997, Shadeko and his wife informed MPHA that Shadeko would no longer be living in the home and removed Shadeko from the lease. Rent was reduced to reflect only his wife's income. In October 1997, a search pursuant to warrant revealed evidence that Shadeko continued to live with his wife.
An investigation uncovered that Shadeko had been employed from November 4, 1994, through April 15, 1996, with Pillsbury Neighborhood Services; from February 13, 1995, through March 24, 1995, with Lutheran Social Services; and from May 27, 1995, through 1997 with Hennepin County. Employment with Hennepin County began as part-time but became full-time at some point in 1995 and continued full-time through 1997. MPHA calculated Shadeko's underpaid rent at $16,744.
The state aggregated the unpaid rent into five periods pursuant to Minn. Stat. § 609.52, subd. 3(5) (1998), and charged Shadeko with five counts of theft by swindle over $2,500 in violation of Minn. Stat. § 609.52, subd. 2(4), subd. 3(1)(5). Shadeko stipulated to the facts and waived his right to a jury trial.
Minn. Stat. § 609.52, subd. 3(5), provides that in certain prosecutions "the value of the money or property or services received by the defendant * * * within any six-month period may be aggregated and the defendant charged accordingly * * *."
The district court found Shadeko guilty of Counts One through Four and used the Hernandez method of sentencing. One condition of his probation is payment of $17,521 in restitution. Shadeko challenges the sentence and the order for restitution.
Under State v. Hernandez, 311 N.W.2d 478, 479-81 (Minn. 1981), when a defendant is sentenced for separate convictions on a single day and the convictions do not stem from a single behavioral incident, the district court may use each conviction in calculating the defendant's criminal history score. This method of sentencing only applies when multiple sentences are imposed concurrently. State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn.App. 1992), review denied (Minn. Mar. 19, 1992).
DECISION
1. Multiple Sentences
Shadeko contends that the district court erred in imposing multiple sentences, arguing that his acts constitute a single behavioral incident. A court must not impose multiple sentences for multiple offenses committed as part of a single behavioral incident:
[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution, which shall be stated in separate counts.
Minn. Stat. § 609.035, subd. 1 (1998). "[T]he court must first determine whether the conduct constituted a single behavioral incident." Effinger v. State, 380 N.W.2d 483, 488 (Minn. 1986). When reviewing a district court's factual conclusion of whether a single behavioral incident exists, this court applies a clearly erroneous standard. Id. at 489; State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983) (deciding whether multiple offenses form a single behavioral incident is a factual analysis).
A court considers two factors in determining whether multiple offenses constitute a single behavioral act: (1) a single criminal objective and (2) unity of time and place. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). This analysis is "not a mechanical test, but involves an examination of all the facts and circumstances." Id. (citing State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983)).
Shadeko defines his single criminal objective as continuing to receive public housing and remain in his residence paying reduced rent. Obtaining the maximum benefit from an ongoing fraud or theft by swindle is too broad to constitute a single criminal objective. See State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980) (holding that objective to swindle as much as possible too broad); State v. Stith, 292 N.W.2d 269, 272 (Minn. 1980); State v. O'Hagan, 474 N.W.2d 613, 622 (Minn.App. 1991) (holding that use of client funds for own benefit too broad objective), review denied (Minn. Sept. 25, 1991); State v. O'Brien, 429 N.W.2d 293, 297 (Minn.App. 1988) (using same story repeatedly to obtain funds not one behavioral incident), review denied (Minn. Nov. 16, 1988); State v. Chidester, 380 N.W.2d 595, 597 (Minn.App. 1986) (obtaining money to cover expenses too broad objective), review denied (Minn. March 21, 1986). As in the cases cited above, Shadeko's continued receipt of the reduced rent as part of an overall scheme to live in public housing is too broad to constitute a single criminal objective.
In addition, without unity of time, similar acts do not constitute a single behavioral incident. See Eaton, 292 N.W.2d at 267 (emphasizing theft entailed two checks, two separate times, three days apart); O'Hagan, 474 N.W.2d at 622 (highlighting theft by temporary control required diversions of funds seven weeks apart and two-and-a-half months apart); O'Brien, 429 N.W.2d at 297 (noting separate checks from separate victims several days apart); Chidester, 380 N.W.2d at 597 (stressing theft and forgery spanned eight-month period); cf. Langdon v. State, 375 N.W.2d 474, 476 (Minn. 1985) (stealing as much as possible from coin-operated washers and dryers occurred in a short period of time, one afternoon, within single apartment complex). Shadeko's certifications that he had no income were separated by periods of six months to a year, distinguishing each false certification from the others.
Shadeko asserts that the state's artificial periods exaggerate his criminal behavior. The state may aggregate separate incidents of theft into periods not to exceed six months. Minn. Stat. § 609.52, subd. 3(5). "Making deceptive billings a continuing business practice does not transform [the practice] into a single behavioral incident." State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn.App. 1992), review denied (Minn. March 19, 1992) (finding the defendants' continued practice of falsely billing insurers for unnecessary services guilty of seven counts of theft aggregated over six-month intervals). The district court did not err in giving multiple sentences on the four counts of theft by swindle, because Shadeko's conduct did not constitute a single behavioral incident and Minn. Stat. § 609.52, subd. 3(5), provides for the separation of counts used by the prosecutor.
2. Restitution
Shadeko also asserts that the district court erred in ordering him to pay $17,521 in restitution, because the district court failed to subtract the money calculated from the fifth period of which he was acquitted.
"[T]rial courts are given broad discretion in awarding restitution." State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied, 120 S.Ct. 1183 (2000). "Restitution may be aimed at either rehabilitation of the defendant or compensation to the victim." State v. Harwell, 515 N.W.2d 105, 110 (Minn.App. 1994), review denied (Minn. June 15, 1994). Restitution is primarily intended to compensate victims for their loss. State v. Colsch, 579 N.W.2d 482, 484 (Minn.App. 1998).
The district court apparently based its ruling on the presentence investigation report, which calculates the victim's loss at $17,521. The state and MPHA gave a slightly smaller amount ($16,744), which the district court referenced in its Findings of Fact and Conclusions of Law. See State v. Maidi, 520 N.W.2d 414, 418 (Minn.App. 1994) (finding court not bound by recommendation from community-corrections department), aff'd, 537 N.W.2d 280 (Minn. 1995). The record contains no other documentation from which the district court issued this restitution order, nor does it explain how the court arrived at the amount of $17,521.
The parties agree that the issue should be remanded to the district court to build a proper evidentiary foundation for the restitution order. Given the lack of information in the record, we remand to the district court.