Michael Anthony Powell v. State of Minnesota

This opinion will be unpublished and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
A14-1406

Michael Anthony Powell, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 20, 2015
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Clay County District Court
File No. 14CR112280

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

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

Brian J. Melton, Clay County Attorney, Pamela Harris, Chief Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and

Reyes, Judge.

UNPUBLISHED OPINION

REYES, Judge

On appeal from the postconviction order requiring him to pay $20,765.92 in

restitution, appellant Michael Anthony Powell argues that the state failed to prove that the
victim’s medical expenses, prescription-drug expenses, and lost wages were all directly

tied to the offense of second-degree assault with a dangerous weapon. Powell also argues

that the district court failed to consider his income, resources, and obligations in

determining his ability to pay restitution. We affirm in part, reverse in part, and remand

to the district court to modify the restitution award to $20,681.45.

FACTS

On July 5, 2011, Powell was charged with one count of first-degree criminal

sexual conduct, one count of second-degree assault with a dangerous weapon, and one

count of false imprisonment. Powell pleaded guilty to second-degree assault with a

dangerous weapon and the other charges were dismissed. Powell admitted that he and

the victim, V.B.M., got into an argument in his trailer and he cut her with a knife near her

collar bone. The district court sentenced Powell to 34 months in prison and ordered him

to pay restitution in a preliminary amount of $11,601.11, but left the record open for 30

days so the victim could obtain her medical bills. On December 27, 2011, the district

court received the medical bills and issued an amended order which increased the

restitution amount to $21,313.92. On January 18, 2012, Powell timely filed a motion

challenging the amount of restitution awarded. On March 19, 2012, after a hearing was

held on the matter, the district court set the total amount of restitution owed at

$20,765.92. Powell did not directly appeal this order.

On November 20, 2013, Powell filed a petition for postconviction relief, again

challenging the restitution amount. The district court denied Powell’s petition and upheld

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the $20,765.92 restitution amount, reasoning that the state had met its burden of proving

that the victim’s economic losses were the result of the offense. This appeal followed.

DECISION

There are three issues presented in this case: (1) whether Powell’s claims are

properly before this court; (2) whether the state met its burden to show that the victim’s

economic loss was directly caused by Powell’s crime; and (3) whether the district court

erred by failing to consider Powell’s income, resources, or obligation in determining the

restitution amount. We address each in turn.

I. Powell’s claims are properly before this court.

When reviewing the decision of a postconviction court, we review questions of

law de novo. Arredondo v. State, 754 N.W.2d 566, 570 (Minn. 2008). Our review of

factual findings is limited to determining whether there is sufficient evidence in the

record to support the findings of the postconviction court. Leake v. State, 737 N.W.2d

531, 535 (Minn. 2007). The decisions of a postconviction court will not be disturbed

unless the court abused its discretion. Id.

The state argues that Powell’s petition for postconviction relief is barred pursuant

to State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The rule under Knaffla

states that “where direct appeal has once been taken, all matters raised therein, and all

claims known but not raised, will not be considered upon a subsequent petition for

postconviction relief.” 309 Minn. at 252, 243 N.W.2d at 741. The statutory version of

this rule states that “[a] petition for postconviction relief after a direct appeal has been

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completed may not be based on grounds that could have been raised on direct appeal of

the conviction or sentence.” Minn. Stat. § 590.01 (2014).

Powell did not file a direct appeal. See Minn. R. Crim. P. 28.05 (setting a 90-day

deadline in filing an appeal from a sentence imposed); State v. Borg, 834 N.W.2d 194,

197 (Minn. 2013) (“[W]e conclude that court-ordered restitution is part of a defendant’s

sentence.”). The state argues that under Knaffla, Powell could only obtain review of the

restitution amount by bringing a direct appeal. Failure to do so, the state contends, means

that all matters that could have been raised in a direct appeal (i.e. the restitution amount)

are barred in a subsequent petition for postconviction relief. We disagree.

In Knaffla, the defendant did not pursue a direct appeal and instead filed a petition

for postconviction relief after the time for a direct appeal had expired. 309 Minn. at 247,

243 N.W.2d at 738. The Minnesota Supreme Court permitted the appeal, stating that “in

a postconviction proceeding, relief is to be predicated, not upon a determination as to

whether direct appeal from the conviction was taken within the prescribed time

limitations, but rather upon compliance with the procedural requirements of [section

590].” Id. at 252, 243 N.W.2d at 741. The court noted, “[t]he salient feature of [section

590] . . . is that a convicted defendant is entitled to at least one right of review by an

appellate or postconviction court.” Id. Accordingly, Knaffla’s own language indicates

that its bar applies only “where direct appeal has once been taken.” Id. No such appeal

was taken here.

Similarly, in Deegan v. State, the defendant did not pursue a direct appeal and

only filed a petition for postconviction relief. 711 N.W.2d 89, 92 (Minn. 2006). The

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court noted that “[b]ecause a first review by postconviction proceeding in Minnesota is

substantially similar to a direct appeal, and appears to differ from first review by

postconviction proceedings in other jurisdictions, it may well be that the right to one

review—through either direct appeal or postconviction proceeding—is a tradition unique

to Minnesota.” Id. at 95 (quotation omitted) (emphasis added). In light of these

decisions, we conclude that Knaffla’s rule does not bar petitions for postconviction relief

where no direct appeal has been filed.

We also note that Powell’s challenge is timely. After the district court ordered

restitution on December 27, 2011, Powell had 30 days to challenge the restitution

amount. See Minn. Stat. § 611A.045, subd. 3(b) (2010). Had Powell failed to do so, his

current postconviction petition challenging restitution would have been untimely. State

v. Maddox, 825 N.W.2d 140, 144 (Minn. App. 2013) (“[A] defendant who fails to timely

challenge restitution under section 611A.045, subdivision 3(b), may not challenge

restitution in a postconviction-relief petition.”). But Powell properly challenged the

restitution order within the 30-day time period. And because, Chapter 590 is broad

enough to cover a right of first review by postconviction petition, Powell’s current

challenges to the restitution amount are properly before this court.

II. The state met its burden to show that the victim’s economic loss was directly
caused by Powell’s crime.

“A crime victim has the right to receive restitution as part of the disposition of a

criminal charge.” State v. Terpstra, 546 N.W.2d 280, 282 (Minn. 1996) (quotation

omitted); Minn. Stat. § 611A.04, subd. 1(a) (2010) (stating that a district court may order

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a criminal to pay his victim’s restitution). “The primary purpose of restitution is to

restore crime victims to the same financial position they were in before the crime.” State

v. Johnson, 851 N.W.2d 60, 65 (Minn. 2014). District courts have broad discretion in

awarding restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). But whether

an item meets the restitution statute’s requirements is a legal question reviewed de novo.

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

A victim’s request for restitution may include out-of-pocket losses that occurred as

a result of the crime. Minn. Stat. § 611A.04, subd. 1(a). But a victim’s losses must be

“directly caused by the conduct that led to [the defendant’s] conviction.” State v. Miller,

842 N.W.2d 474, 477 (Minn. App. 2014) (quotation omitted), review denied (Minn. Apr.

15, 2014). “The burden of demonstrating the amount of loss sustained by a victim is on

the prosecution.” Johnson, 851 N.W.2d at 65. A district court must determine whether

“a restitution claim . . . [is] so attenuated in its cause that it cannot be said to result from

the defendant’s criminal act.” See State v. Palubicki, 727 N.W.2d 662, 667 (Minn. 2007).

An economic loss must be “a reasonably foreseeable result of, and [be] directly caused

by, [a defendant’s] actions.” State v. Maxwell, 802 N.W.2d 849, 853 (Minn. App. 2011),

review denied (Minn. Oct. 26, 2011).

In determining the amount of restitution, Minn. Stat. § 611A.04, subd. 1(a)

provides:

The court or its designee shall obtain the information from the
victim in affidavit form or by other competent evidence.
Information submitted relating to restitution must describe the
items or elements of loss, itemize the total dollar amounts of

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 restitution claimed, and specify the reasons justifying these
amounts, if restitution is in the form of money or property.

To contest the restitution amount, the offender initially has the burden to produce

evidence by filing “a detailed sworn affidavit . . . setting forth all challenges to the

restitution or items of restitution, and specifying all reasons justifying dollar amounts of

restitution which differ from the amounts requested by the victim.” Minn. Stat.

§ 611A.045, subd. 3(a) (2010). Once an offender raises a proper challenge, the state

bears the burden to show by a preponderance of the evidence that the restitution amount

is appropriate. Id.; see also State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2000).

Powell argues that the state failed to show that his offense directly caused

economic loss with respect to V.B.M.’s: (1) medical bills; (2) prescription drugs; and

(3) lost wages.

A. Medical bills

Powell makes two arguments with respect to V.B.M.’s medical bills. First, Powell

argues that there is no evidence that the medical bills caused actual economic loss

because there was no evidence V.B.M. actually paid them or that she had not received

any discounts. This argument was not properly pleaded before the district court in

Powell’s affidavit challenging restitution. As previously stated, the burden of production

is initially on Powell to submit “a detailed sworn affidavit . . . setting forth all challenges

to the restitution or items of restitution.” Minn. Stat. § 611A.045, subd. 3(a). Such an

affidavit “is both the sole vehicle by which the offender can meet the burden of pleading,

and an essential element of the offender’s case required to meet the burden of

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production.” Thole, 614 N.W.2d at 235. Here, Powell’s affidavit only challenges the

causal relationship between the offense and the medical bills and prescription drugs. The

affidavit makes no mention of V.B.M.’s failure to pay any bills or potentially receiving

discounts on some visits, as he currently argues. Because Powell failed to allege such

arguments in his pleadings, we will not consider them on appeal.

Second, Powell argues that there was no documentation showing that the medical

costs were all directly caused by the offense. Powell contends that although medical bills

were submitted, there was no documentation specifically detailing what diagnosis V.B.M.

received, what treatment occurred, or how the treatment was tied to the assault. As to the

required level of specificity, the information submitted for restitution “must describe the

items or elements of loss, itemize the total dollar amounts of restitution claimed, and

specify the reasons justifying these amounts.” Minn. Stat. § 611A.04, subd. 1(a).

V.B.M. submitted medical bills from three different health-care providers. Each

bill contained line-by-line information detailing the date of service, description of

services provided, and the amount charged. The information in these bills was

corroborated by V.B.M. at the restitution hearing when she testified that all of her

ongoing medical expenses were caused by the assault. On cross-examination, V.B.M.

testified about specific treatments she underwent as a result of the assault, including

physical therapy, emergency room trips for pain, hearing tests, trips to a chiropractor,

bulging disks in her back and neck, and MRI tests. V.B.M. also submitted a victim-

impact statement, which included medical evaluations from two different doctors

detailing the specific treatments required as a result of the assault.

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 Based on the medical bills, testimony, and documents submitted by V.B.M., we

conclude that the state has sufficiently “describe[d] the items or elements of loss,

itemize[d] the total dollar amounts of restitution claimed, and specif[ied] the reasons

justifying these amounts.” Id. The statute simply does not require the amount of

specificity Powell would ascribe. See Hughes v. State, 815 N.W.2d 602, 605 (Minn.

2012) (concluding in a case involving a challenge to the specificity of the factual basis

for a restitution award, that ample evidence supported a finding that the request for

funeral expenses was sufficiently specific). “Although it would be unreasonable to

expect a receipt, or even the exact price, for every purchase, it is not unreasonable to

request some amount of detail in the description and general costs of items purchased.”

State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996), review denied (Minn. Dec. 17,

1996). We conclude that medical bills specifying the date, services provided, and exact

amount charged—all of which were linked to the offense by the victim’s testimony and

corroborated by documents from medical experts—certainly rise to the level of “some

amount of detail.” Id.

B. Prescription drugs

Next, Powell challenges the amount of restitution allocated for prescription-drug

costs. In her restitution affidavit, V.B.M. claimed $338.06 in prescription-drug costs and

submitted receipts from White Drug Pharmacy in support of this figure. Powell argues

that the receipts alone are not specific enough to satisfy the state’s burden and fail to

show that the medication was a result of the offense.

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 The documentation surrounding the prescription drugs is detailed enough to satisfy

the requirements of section 611A.04, sudivision 1(a). V.B.M.’s receipts include a

specific prescription number and the amount charged. V.B.M. testified that the

prescription medication came as a result of the assault, that she had never needed any

such medication prior to the assault, and provided details on what the medication was for,

including face and muscle relaxers, sinus issues related to the assault, and pain

management. These statements, coupled with the provided receipts, include the amount

of detail required by Keehn. 554 N.W.2d at 408. Indeed, this is the exact type of

documentation that Keehn believed would be going above and beyond the required level

of specificity. Id. (“Although it would be unreasonable to expect a receipt, or even the

exact price, for every purchase, it is not unreasonable to request some amount of detail in

the description and general costs of items purchased.” (emphasis added)). Accordingly,

the prescription drugs are an appropriate item for restitution.

There is, however, an issue with the amount allocated for the prescription drugs.

As previously stated, V.B.M. claimed $338.06 in prescription-drug costs in her affidavit.

V.B.M. appears to have arrived at this figure by adding up the total amounts detailed on

the receipts. But a number of the submitted receipts are duplicates of the same

photocopy. And one receipt is dated August 19, 2010, which is almost a year prior to the

date of the offense and therefore cannot be considered to be “directly caused by the

conduct for which the defendant was convicted.” Latimer, 604 N.W.2d at 105 (quotation

omitted). In addition, one of the receipts is for “Advil Allergy and Sinus” rather than a

prescription. Because purchasing Advil is likely “so attenuated in its cause that it cannot

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be said to result from the defendant’s criminal act,” it should not have been eligible for

restitution. See Palubicki, 727 N.W.2d at 667 (declining to adopt a but-for test for

restitution but requiring that losses be a direct result of the crime, which includes the

expenses of decedent’s children to attend the murder trial). The district court even

acknowledged as much when it commented during the restitution hearing, “I will not be

giving her any restitution on any allergy medications so that’s kind of a given.”

Accordingly, the district court clearly erred when it awarded restitution in the full amount

of $338.06 for the prescription drugs. Subtracting the duplicate receipts, the receipt dated

prior to the offense, and the receipt for Advil, the restitution amount for prescription

medication should be properly set at $253.59.

C. Lost wages

Powell challenges the district court’s award of restitution for V.B.M.’s lost wages.

In its restitution request, the state sought $7,969.26 to be paid to the Minnesota Crime

Victim Reparations Board (Crime Board), $7,255.26 of which was for V.B.M.’s lost

wages as a result of losing her housecleaning business. Powell argues that the state failed

to show that V.B.M. suffered lost wages in the amount claimed as a result of the offense.

Powell’s lost-wages argument suffers from the same problem as his argument that

V.B.M. never paid her medical bills—his affidavit challenging restitution makes no

mention of V.B.M.’s lost wages. Because Powell failed to submit “a detailed sworn

affidavit . . . setting forth all challenges to the restitution or items of restitution,” he has

not sufficiently pleaded the allegations relating to lost wages and we will not consider

them here. See Minn. Stat. § 611A.045, subd. 3(a).

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III. The district court erred considered Powell’s income, resources, or obligation
in determining the restitution amount.

Under Minn. Stat. § 611A.045, subd. 1(a)(2) (2014), the district court must

consider “the income, resources, and obligations of the defendant” when determining

whether to order restitution and the amount of restitution. Powell argues that the district

court abused its discretion by failing to consider Powell’s financial situation when

ordering restitution.

Powell misconstrues what the statute requires of the district court. The statute

does not require that the district court explicitly discuss the offender’s ability to pay in its

findings. Minn. Stat. § 611A.04, .045 (containing no provision requiring the court to

issue findings regarding a defendant’s financial situation); see also State v. Lindsey, 632

N.W.2d 652, 663-64 (Minn. 2001) (concluding that the district court did not abuse its

discretion by ordering an indigent prison inmate to pay $32,682.93 in restitution). Here,

the district court heard testimony regarding Powell’s ability to pay both at the restitution

hearing and later at the postconviction petition hearing. Powell submitted over 30 pages

of exhibits relating to his ability to pay, including tax returns, W-2’s, garnishment letters,

utility bills, and information on his debts. The district court specifically acknowledged

Powell’s diminished earning capacity in its order following the postconviction relief

hearing. While Powell may not agree with its determination, the district court did

consider Powell’s financial situation and thus satisfied the requirements of section

611A.045.

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 We affirm the district court’s denial of Powell’s petition for postconviction relief.

However, we reverse the district court’s restitution award relating to the victim’s

prescription drug expenses. We remand to the district court for an order reducing the

amount allocated for prescription drug expenses from $338.06 to $253.59. The total

modified restitution award should be $20,681.45.

Affirmed in part, reversed in part, and remanded.

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