State of Minnesota v. George Alan Vanzee

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2129

State of Minnesota,
Respondent,

vs.

George Alan Vanzee,
Appellant.

Filed August 11, 2014
Affirmed
Reilly, Judge

Mille Lacs County District Court
File No. 48-CR-12-2514

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

Janice S. Jude, Mille Lacs County Attorney, Mark J. Herzing, Assistant County Attorney,
Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stephen L. Smith, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and

Reilly, Judge.

UNPUBLISHED OPINION

REILLY, Judge

Appellant challenges the district court’s order requiring him to pay $2,661.48 in

restitution. Specifically, appellant claims the district court’s order for restitution was
untimely. Because appellant waived the issue by failing to timely object to the restitution

order, we affirm.

FACTS

The state charged appellant George Vanzee with two counts of burglary and one

count of fleeing by means other than a motor vehicle following a break-in at the Bayview

Bar and Grill in Onamia. On November 30, 2012, officers responded to an alarm at the

Bayview Bar and Grill. Upon arrival, the officers observed damage to the front door, two

electronic pull-tab machines, a ceiling tile, the alarm system, and the telephone box

attached to the building. Shortly thereafter, the officers apprehended two suspects, one of

whom was Vanzee.

On December 3, 2012, the state sent the victim a letter requesting that he submit

an affidavit for any claimed restitution by January 3, 2013. On December 19, 2012,

Vanzee waived the omnibus hearing, entered a plea of not guilty, and requested a speedy

trial. Later the same day, Vanzee pleaded guilty to the second-degree burglary charge in

exchange for the dismissal of the other two charges. At the February 26, 2013 sentencing

hearing, the district court imposed a 31-month prison sentence.

More than two months after the sentencing hearing, in early May 2013, the victim

filed an affidavit of restitution. The affidavit requested $1,736.48 for a new front door

and labor, $500 for the pull-tab machines, $225 for the alarm, $150 for telephone wires,

and $50 for the ceiling tile. On May 10, 2013, the state moved to amend the sentencing

order and sought $2,661.48 in restitution for the victim.

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 At the August 14, 2013 restitution hearing, the district court noted, “It’s my

understanding that the State has requested restitution. I don’t believe restitution was left

open. Quite frankly, I’m a little confused about this; what the status is. If you can let me

know, Mr. Kilgriff, what, what the State’s position is.” The state explained that Vanzee

plead guilty within approximately a week of the offense. And
so at that time we didn’t have all the documents for
restitution. . . . And so restitution actually does not have to be
open per statute. It can be addressed at any time before—even
after probation has expired. So at this point the State is just
asking to amend it.

The district court ordered that Vanzee pay $2,661.48 in restitution after Vanzee told the

district court that he wanted to be “done with this” and would agree to the same amount

of restitution that the district court imposed on his codefendant. Vanzee also indicated

that he believed the prison was already withholding restitution payments from his prison

earnings and asked the judge to order that restitution be ordered jointly with his

codefendant.

Vanzee appeals.

DECISION

Vanzee asserts that the district court’s order for restitution was untimely. The

state argues that Vanzee’s restitution challenge is procedurally barred because he did not

challenge the restitution order in district court as required under Minn. Stat. § 611A.045,

subd. 3(b) (2012). Thus, the state contends that Vanzee has waived his ability to

challenge the court-ordered restitution on appeal. We agree.

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 We review a district court’s order for restitution under an abuse-of-discretion

standard. State v. Ramsay, 789 N.W.2d 513, 517 (Minn. App. 2010). Minnesota Statute

section 611A.045, subdivision 3(b), outlines the process by which an offender can

challenge restitution. This section states that an offender may challenge restitution 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 . . . [and] the

hearing request must be made in writing and filed with the court administrator.” Minn.

Stat. § 611A.045, subd. 3(b) (emphasis added). Under section 611A.045, a valid dispute

“arises only after an offender meets the threshold burden of raising a specific objection

by affidavit.” State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2000).

Here, the record reflects that the state sent Vanzee notification of the restitution

amount on May 10, 2013. Vanzee did not file an affidavit challenging the restitution

amount within 30 days of receiving the notice of restitution. Rather, Vanzee filed a

notice of appeal on November 14, 2013. Thus, the state accurately asserts that Vanzee’s

failure to challenge the restitution award within 30 days precludes him from challenging

the type and amount of restitution on appeal.

A failure to comply with the time requirements of section 611A.045 does not

necessarily foreclose an offender’s ability to challenge a district court’s legal authority to

order restitution after sentencing. In State v. Gaiovnik, the supreme court held that the

30-day time limit does not apply under the “narrow circumstances” where the “only

challenge is to the legal authority of the court to order restitution and that challenge was

raised in the district court.” 794 N.W.2d 643, 648 (Minn. 2011) (emphasis added).

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 We first note that the record is devoid of any challenge to the district court’s legal

authority to order restitution. Vanzee did not challenge the restitution request at the

restitution hearing or at any other hearing. Indeed, Vanzee told the court he wanted to be

“done with this” and would agree to pay the same amount of restitution as his

codefendant. Thus, because Vanzee did not challenge the district court’s legal authority

to issue a restitution order prior to appeal, his challenge is waived. Likewise, this court

will not consider arguments made for the first time on appeal. Thiele v. Stich, 425

N.W.2d 580, 582 (Minn. 1988).

Even if Vanzee had properly challenged the district court’s restitution order, his

argument still fails on appeal. Once restitution is requested, “[t]he court. . . shall request

information from the victim to determine the amount of restitution owed.” Minn. Stat.

§ 611A.04, subd. 1(a) (2012). Restitution is limited to “economic damages sustained by

the victim.” State v. Colsch, 579 N.W.2d 482, 484 (Minn. App. 1998); Minn. Stat.

§ 611A.045, subd. 1(a). A restitution request “may include, but is not limited to, any out-

of-pocket losses resulting from the crime.” Minn. Stat. § 611A.04, subd. 1(a).

A district court has the authority to

amend or issue an order of restitution after the sentencing or
dispositional hearing 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 dispositional hearing, or hearing on the
restitution request.

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Id., subd. 1(b). A district court’s order for restitution is reviewed under an abuse of

discretion standard. Ramsay, 789 N.W.2d at 517.

The first element of Minn. Stat. § 611A.04, subd. 1(b), is satisfied as Vanzee was

in the custody of the commissioner of corrections when the state sent the restitution

notification. Second, the state submitted sufficient evidence of a right to restitution. The

affidavit submitted by the victim provided an itemized list of losses and their costs, all of

which were a direct cause of the break-in. Lastly, it is not clear from the record why the

victim submitted the affidavit almost five months after the state requested it, but the

record reveals that the true extent of the victim’s loss was not known until May 10,

2013—the date the victim submitted his affidavit. Because the true extent of the victim’s

loss was not known, at the earliest, until almost three months after the sentencing hearing,

the third element is satisfied. See Mason v. State, 652 N.W.2d 269, 272 (Minn. App.

2002) (holding that the district court properly reserved the restitution issue when it had

not received the affidavit of one of the victims or competent evidence of her loss at the

time of sentencing). Accordingly, the district court did not abuse its discretion when it

ordered Vanzee to pay $2,661.48 in restitution.

Affirmed.

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