State of Minnesota, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1108

State of Minnesota,
Appellant,

vs.

Dejonte Antwon Davis,
Respondent.

Filed January 16, 2018
Reversed and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-15-6646

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

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

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.
S Y L L A B U S
A district court cannot require a victim to forgo reasonable restitution for out -of-
pocket losses incurred as a result of a crime only because the defendant is in prison and
does not have the ability to pay.
2
O P I N I O N
JESSON, Judge
In a second -degree-murder case, the district court denied all restitution for the
victim, the decedent’s spouse, finding that respondent Dejonte Antwon Davis would be
unable to pay the $7,710.11 for the funeral expenses and the spouse’s lost wages and still
afford necessities while incarcerated . Because t he district court’s denial of restitution
failed to provide for the victim’s right to restitution, we reverse and remand.
FACTS
Respondent Davis was convicted of s econd-degree murder following a jury trial.
He was sentenced to 366 months in prison. At the sentencing hearing, the district court
kept the issue of restitution open for 60 days. The court then issued a restitution o rder
requiring Davis to pay $7,710.11 in restitution to the decedent’s spouse. The amount of
restitution was based on the decedent’s funeral and cremation costs and the victim’s lost
wages, all payable to the Crime Victims Reparations Board. 1 Because the restitution
amount exceeded $2,500, Davis was provided the duration of his sentence to pay the full
amount.
Davis objected to the restitution order and demanded a hearing. He submitted an
affidavit, claiming the expenses were too high and that he will not have the resource s to

1 At the time of the restitution hearing, the Crime Victims Reparations Board had already
reimbursed the victim for the listed expenses. This board is empowered to seek restitution
on behalf of victims. Evans v. State, 880 N.W.2d 357, 360 (Minn. 2016). When it does
so, it “steps into the shoes of the victim.” Id. at 361.
3
pay restitution while in the custody of the Department of Corrections until approximately
2036.
At the restitution hearing, Davis reiterated his assertion that the claimed restitution
expenses were too high, but focused his tes timony on his inability to pay. In answering
questions from the court, Davis explained that he did not have financial resources going
into prison. While working in prison, Davis makes $0.25 per hour. Davis informed the
court that the most he could make would be $1.00 an hour, but no matter what he mak es,
he “only see[s] half of” those prison wages. The state argued the expenses requested were
reasonable restitution and presented documentation for the expenses claimed.
After the hearing, the district court granted Davis’s chal lenge and revoked its
previous restitution order in full. The court found that the expenses sought were all
appropriate for restitution, the costs were reasonable , and the victim was deserving. But
the court also found Davis’s a rgument about h is inability to pay persuasive. The court
stated, “it would appear that Mr. Davis’s potential earning capacity in prison will not enable
him to make payments against the restitution while also affording other necessities in
prison.” The re stitution decision, the district court explained, was “to restrict the
garnishing of Mr. Davis’s prison wages so that he can purchase the basic essentials of life.”
The state appeals.
ISSUE
Did the district court abuse its discretion by failing to provide any restitution to a
victim with demonstrated economic loss?
4
ANALYSIS
The state contends that the denial of all restitution based upon a defendant’s inability
to pay—while working in prison —violates a victim ’s right to restitution. This question
requires us to address the scope of a victim’s right to restitution, which is a matter of
statutory interpretation. We review matters of statutory interpretation de novo. State v.
Williams, 842 N.W.2d 308, 311 (Minn. 2014). To undertake this analysis, we first review
the background and history of restitution in Minnesota. We then turn to the issue at hand:
what does it mean that a “victim of a crime has the right to receive restitution ?” Minn.
Stat. § 611A.04, subd. 1(a) (2016). Finally, we apply the victim’s right to receive
restitution to the facts before us , reviewing the district court order for an abuse of
discretion. See State v. Andersen , 871 N.W.2d 910, 913 (Minn. 2015) (“A district court
has broad discretion to award restitution, and the district court’s order will not be reversed
absent an abuse of that discretion.”).2
Restitution History and Background
Restitution is an age -old concept, stretching back to ancient societies where
offenders were required to reimburse victims or their families for losses sustained from an

2 In addition to its right -to-restitution argument, t he state argue s that the district court’s
decision that Davis would not be able to afford “the basic essentials of life” while in prison
is not supported by a sufficient factual basis. On appeal—but not before the district court—
both parties request that we take judicial notice of documents to bolster their arguments on
this point. The state requests judicial notice of Minnesota Department of Corrections
policies, which detail what is available to indigent inmates , free of charge, and how
restitution is deducted from p rison wages . Davis seeks judicial notice of a Minnesota
government report on prison visitation and recidivism, a news article on prison phone-call
costs and the Jpay website (relating to inmate email services). Because we reverse on the
5
offense. Victim Restitution in the Criminal Process: A Procedural Analysis , 97 Harv. L.
Rev. 931, 933 (1984). Such reimbursement provided the means by which an offender could
“buy back the peace he had broken.” Id. But a focus on the victim in such situations did
not remain constant. As states began to formalize legal systems, the emphasis of criminal
law shifted from the victim to the government, and its consequences were replaced by
imprisonment and payment of fines. Ryan Anderson, Criminal Law: The System Is Rigged:
Criminal Restitution Is Blind to the Victim ’s Fault -- State v. Riggs, 43 Mitchell Hamline
L. Rev. 140, 146 (2017). Restitution to victims became solely a civil remedy. Id.
But in the United States, from the 1960s to the 1980s, a more victim-focused public
policy emerged. Id. at 146-47. During these decades, states began to create programs to
assist and compensate crime victims. Id. at 147. By 1995, 29 states had enacted restitution
statutes. Id. at 148. Today, all states have restitution statutes. Id.
The Minnesota legislature established its first statutory provision for restitution in
1983. 1983 Minn. Laws, ch. 262, art 1, § 4 , at 1125, 1127 (codified at M inn. Stat.
§ 611A.04 (1984)). That statute provided for a victim’s “right to request that restitution be
considered as part of the disposition of a criminal charge.” Minn. Stat § 611A.04, subd. 1
(1984). It required the court to grant or deny the restit ution and then “state on the record
its reasons for its decision.” Id. The statute identified no factors for the district court to

ground that the d istrict court did not accord appropriate weight to the victim’s right to
restitution, we do not reach the issue of whether judicial notice is appropriate here.
6
consider when determining whether restitution was appropriate or how much restitution to
order in any specific case. Id.3
In 1985, the restitution statute was expanded to include a single factor for courts to
consider when determining restitution—“the amount of the economic loss sustained by the
victim as a result of the offense.” 1985 Minn. Laws ch. 110, § 2 at 305 -06 (codified at
Minn. Stat. § 611A.045, subd. 1 (1986)). Four years later, the legislature added a second
factor—“the income, resources, and obligations of the defendant.” 1989 Minn. Laws
ch. 21, § 7, at 38, 42 (codified at Minn. Stat. § 611A.045 , subd. 1 (1990)). These two
factors remain today. See Minn. Stat. § 611A.045, subd. 1. While the statute does not
prescribe how to balance these two factors, the factors are exclusive —a court cannot
consider anything else. State v. Riggs, 865 N.W.2d 679, 685 (Minn. 2015).
In 1992, the legislature took the victim’s right to restitution a significant step further.
Instead of the right to request that a court consider restitution, the amended statute said that
a “victim of a crime has the right to receive restitution as part of the disposition of a criminal
charge . . . if the offender is convicted.” 1992 Minn. Laws ch. 571, art. 5, § 6, at 2021,
2024 (codified as Minn. Stat. § 611A.04, subd. 1 (1992) (emphasis added)).4 It is this right
to receive restitution that is central to the case before us.

3 In State v. Fader, the Minnesota Supreme Court applied that statute and interpreted the
word “restitution” to mean “restoring or compensating the victim for his loss.” 358 N.W.2d
42, 48 (1984).
4 While Minnesota Statutes section 611A.04 (2016) continues to apply general ly to
criminal offenses, the legislature recently adopted specific restitution procedures for certain
criminal offenses. These include statutory provisions that either bypass the procedure to
determine restitution above, or create an alternative procedure for such calculation. See,
e.g., Minn. Stat. §§ 609.527, subd. 4(b) (2016) (requiring those convicted of identity theft
7
Statutory Interpretation of the Right to Restitution
Having traced the history of Minnesota’s restitution statute, we turn to the pivotal
question of statutory interpretation. The goal of statutory interpretation is to ascertain and
effectuate the intent of the legislature. Minn. Stat. § 645.16 (2016). To do so, we begin
with the statute’s plain language. State v. R.H.B., 821 N.W.2d 817, 820 (Minn. 2012). But
we interpret a statute as a whole and consider each section in light of the surrounding
sections to avoid conflicting interpretations. Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d
273, 277 (Minn. 2000).
The issue before us is w hether a victim’s right to restitution requires an award
where, as here, there is an appropriate victim and valid expenses, and the district court held
the amount of restitution was “reasonable.” To address this question we must interpret the
restitution statutory provisions, Minnesota Statutes sections 611A.04 and .045 (2016).
Under the first of these provisions, a crime victim “has the right to receive
restitution” after an offender is convicted. Minn. Stat. § 611A.04 . And the statutory
provision, which sets out the procedure for this restitution award, directs that “in
determining whether to order restitution and the amount of the restitution ,” the court

“to pay restitution of not less than $1,000 to each direct victim of the offense ”), .505,
subd. 2(b) (2016) (requiring those convicted of making a false report of police misconduct
“to make full restitution of all reasonable expenses incurred in the investigation of the false
allegation unless the court makes a specific written finding that restitution would be
inappropriate under the circumstances,” and capping restitution at $3,000). The Minnesota
Supreme Court also recently held in State v. Rey, __ N.W.2d ___, ___, No. A16-0198, slip
op. at 1-2 (Minn. Jan. 3, 2018) that the imposition of mandatory minimum restitution for
identity theft did not violate the defendant’s procedural or substantive due process rights,
nor did that mandatory restitution constitute an unconstitutional fine.
8
consider the amount of loss to the victim and the offender ’s ability to pay. Minn. Stat.
§ 611A.045, subd. 1. The state focuses on section 611A.04, which prescribes the right to
restitution, arguing that this “right” makes restitution mandatory.5 At oral argument, Davis
argued that this provision only confers standing to receive restitution and that we cannot
view it in isolation, since o ther parts of the restitution statute confer on the district court
the discretion whether to award it. See Minn. Stat. § 611A.045, subd. 1(a). And a “statute
should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word,
phrase, or sentence should be deemed superfluous, void, or insignificant.’” Am. Family Ins.
Grp., 616 N.W.2d at 277 (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.
1999)). Plain meaning also assumes the ordinary usage of words that are not statutorily
defined. Occhino v. Grover , 640 N.W.2d 357, 359 (Minn. App. 2002), review denied
(Minn. May 28, 2002).
The language in the statute is plain. We conclude that when the legislature stat ed
that a victim “has the right to receive restitution ,” it meant just that: restitution is a right.
And if a statute’s meaning is p lain, on its face, the statute is unambiguous and judicial
construction is neither necessary nor proper. Id. A right is “[s]omething that is due to a
person by just claim, legal guarantee, or moral principle.” Black’s Law Dictionary 1517
(10th ed. 2014). Here the item due is restitution.

5 Minnesota Statutes section 611A.04, subdivision 1(c) (2016), further directs the court to
“grant or de ny restitution or partial restitution ” and it requires the court to “state on the
record its reasons for its decision on restitution if information relating to restitution has
been presented.”
9
This does not mean that dis trict courts lose all discretion in the matter. As Davis
points out, the statutory language providing courts the ability to determine whether to
award restitution is also important. But from o ur reading of this statute, the term whether
does not allow a court to deny all restitution when there is economic loss to a victim .
Rather, it permits courts to deny restitution when n o such economic loss is proven and to
determine the amount of restitution. This reading of the procedure for awarding restitution,
in light of that plain statutory right to restitution, is consistent with a reading of the statute
as a whole , an important tool in statutory interpretation . See Am. Family Ins. Grp. , 616
N.W.2d at 277 (requiring that a statute be interpreted to give effect to all of its provisions).
But e ven if th e right -to-restitution language were ambiguous, our reading also
comports with both legislative history and legislative intent , as described by previous
caselaw addressing restitution.
With regard to legis lative history, t he legislature explicitly changed the statutory
language from merely a right to request restitution, to a right to receive restitution. 1992
Minn. Laws ch. 571, art. 5, § 6, at 2024 (codified at Minn. Stat. § 611A.04 (1992)). This
change contradicts Davis’s argument that the right to restitution merely provides standing.
And this change to an explicit right came after the two factors, a victim’s need and an
offender’s ability to pay, were established, as well as the adoption of Minnesota Statutes
section 609.10, subd ivision 1(a)(5) (2016), establishing a court may impose restitution
upon a felony conviction. This right to restitution is not a right of standing, but a right to
receive.
10
Caselaw further demonstrates that this interpretation fulfills the purpos es of the
restitution statute. Since the statute’s change from a “right to request” to a “right to
receive,” courts have described this right as a victim’s entitlement. State v. Lindsey, 632
N.W.2d 652, 664 (Minn. 2001); State v. Miller, 842 N.W.2d 474, 477 (Minn. App. 2014),
review denied (Minn. Apr. 15, 2014) . And when describing the goals of restitution,
caselaw reminds us that they include both victim compensation and offender rehabilitation,
which is one reason that an inability to pay restitution cannot extinguish a victim’s right to
compensation. See Maidi, 537 N.W.2d at 286 (stating that legislative history of Minnesota
Statutes section 611A.0 45 indicates the restitution statute was intended primarily to
compensate vic tims); Fader, 358 N.W.2d at 48 (indicating the primary purpose of
restitution is to compensate the victim) . Indeed, because the restitution right is so strong,
driven by these two goals, a district court can order restitution, even when the victim does
not request it. Miller, 842 N.W.2d at 479.6
As we explained in State v. Miller , the restitution proceeding is unique. Id. The
victim, typically unrepresented, has “rights and interests aligned with but independent of
the state’s interests.” Id. And it is the “court’s duty to vindicate a victim’s statutory right
to restitution.” Id. Part of that duty, as mandated by the clear meaning of the statute, and
in light of the legislative history and overall purpose of restitution, is to award some amount
of restitution when there is economic loss to a victim.

6 We further note that Minnesota district courts have generally used their discretion in
ordering restitution to expand, and not to reduce, restitution awards. See, e.g., State v.
Tenerelli, 598 N.W.2d 668, 672 (Minn. 1999); Maidi, 537 N.W.2d at 285.
11
Applying the Victim’s Right to Restitution in this Case
Looking first at the statutory requirements for who is an appropriate “victim” to
receive restitution, and second at the type of expenses that can be reimbursed, the
decedent’s spouse, funeral expenses , and lost wages clearly qualify. Minnesota Statutes
section 611A.01(b) (2016) defines a victim as “ a natural person who incurs loss or harm
as a result of a crime.” The term includes family members of a deceased person. Id. The
decedent’s spouse incurred loss related to decedent’s death at the hands of Davis, in the
form of funeral expenses and lost wages. These expenses are appropriate for
reimbursement since restitu tion can cover “ any out -of-pocket losses resulting from the
crime, including . . . funeral expenses” and caselaw demonstrates that lost wages are also
appropriate. Minn. Stat. § 611A.04, subd. 1; State v. Palubicki , 727 N.W.2d 662, 667
(Minn. 2007) (holding that a restitution order that included reimbursement to the murder
victim’s adult children for lost wages was appropriate).
The district court here abused its discretion by failing to consider the victim’s
appropriately asserted amount of economic loss when revoking its entire restitution order.
We conclude that, on this record, denial of all restitution is contrary to a victim’s right to
restitution as set out in Minnesota Statutes section 611A.04. See State v. Mix, 646 N.W.2d
247, 250 (Minn. App. 2002) (“A court abuses its discretion when it acts . . . in contravention
of the law.”), review denied (Minn. Aug. 20, 2002). We reach this conclusion for two
reasons. First, the court applied only one of the two required factors—the offender’s ability
to pay—in its ultimate order. Second, its findings regarding the offender’s ability to pay
12
were based on assumptions unsupported by the record and cannot extinguish all restitution
for a victim who sustained economic loss.
A court must consider two factors in determining restitution—a victim’s economic
loss and an offender’s ability to pay. Minn. Stat. § 611A.045, subds. 1(a)(1), 1(a)(2). Here,
the court found the re was economic loss and the type of expenses and restitution amount
were reasonable, yet it revoked the entire restitution order, providing no funds to
compensate the victim. In doing so, the district court failed to consider the first and primary
factor: a victim’s economic loss.
In addition, the court’s findings on the second factor are unsupported on this record.
The district court’s findings on Davis’s ability to pay restitution were based on assumptions
about how funds are deducted from prison wages, what kind of necessities are provided to
inmates, and what inmates must pay for. While a district court generally is not required to
issue specific findings on ability to pay, Miller, 842 N.W.2d at 479, some basis in the record
is necessary. The record here supports the facts that Davis makes only $ 0.25 per hour
working while incarcerated, that he could only make up to $1.00 an hour, and that he went
into prison with no financial resources. But there were no facts in the record to support the
district court’s conclusion that he could not afford to pay any restitution and still pay for
“necessities” while incarcerated. Nothing was presented at the restitution hearing to
demonstrate how restitution w ould be deducted from his wages. Nor was there any
evidence of what necessities would be provided to Davis in prison free of charge or what
exact additional necessities he would need. Additionally, no pre sentence investig ation
detailed Davis’s financial situation. See State v. Alexander , 855 N.W.2d 340, 344 -45
13
(Minn. App. 2014) ( concluding that the district court’s consideration of a pre sentence
investigation that addressed the defendant’s financial situation was adequate to
demonstrate the court considered the defendant’s ability to pay restitution). This is in stark
contrast to the victim’s economic loss, which was fully substantiated with receipt s for
funeral expenses and documentation for missed work . The court’s assumptions as to
Davis’s inability to pay do not support the court’s d ecision to deny all restitution to the
victim.
Davis contends that the district court appropriately revoked its restitution order
because Davis is unable to pay due to his lack of financial resources going into prison and
his low earning potential while incarcerated. But caselaw establishes that courts can order
restitution even when offenders are unable to pay. See State v. Lindsey, 632 N.W.2d 652,
657, 663-64 (Minn. 2001) (affirming an order for more than $30,000 in restitution when
the defendant was indigent and faced consecutive life sentences).
Davis further argues that the sentencing guidelines never recommend restitution for
lengthy prison sentences. See Minn. Sent. Guidelines 3.A.2 (3) (2016) (the commission
“urges courts to make expanded use of restitution . . . as [a] c ondition[] of a stayed
sentence”). But both the Minnesota legislature and courts have permitted deductions from
prison wages to pay re stitution, again suggesting that the fact an offender is or will be
incarcerated for a long period of time is not a sufficient basis to revoke all restitution .
Minnesota Statutes section 243.23, subdivision 3(5) (2016), allows for deductions from
prison c ompensation for “payment of court -ordered restitution.” And i n Lindsey, the
Minnesota Supreme Court affirmed a district court’s restitution order, to be paid from the
14
defendant’s prison wages, even though the defendant faced consecutive life sentences. 632
N.W.2d at 657, 663-64. Both statutory language and caselaw provide for deductions from
prison wages, even though those wages may be minimal. Davis’s incarceration, in and of
itself, is an insufficient basis to deny restitution to the victim.
Our decision does not leave district courts without tools to address the concern of
an incarcerated offender’s ability to pay. A court may order appropriate monthly payment
installment schedules, as well as longer time frames to complete payments. See Maidi, 537
N.W.2d at 285-86 (holding restitution in $200 monthly payments was reasonable for the
defendant earning $6.50 per hour); Cf. Miller, 842 N.W.2d at 479 -80 (holding restitution
was unreasonable when required in limited timeframe). These measures ma y be
implemented even when their application would make it mathematically impossible to pay
the restitution in full. See Maidi, 537 N.W.2d at 285 (affirming restitution when the
required monthly installments could not mathematically pay off the full $147, 251.27
order). We further note that as an offender’s financial situation may change, courts can
adjust restitution orders at a later time to address those circumstances. State v. Jola, 409
N.W.2d 17, 20 (Minn. App. 1987). But while these tools provide d iscretion to district
courts in the award of restitution, that discretion does not encompass a denial of all
restitution in a case such as this one.
In summary, w hile an offender’s ability to pay is relevant and appropriate for a
court’s consideration when ordering restitution , an offender’s inability to pay cannot
extinguish a victim’s right to restitution when that victim has experienced economic loss
from that offender’s crime.
15
D E C I S I O N
The decedent’s surviving spouse sustained loss that is appropriate for
reimbursement under the restitution statute. As a result, she has a right to restitution. The
district court should have considered this right, in addition to Davis’s inability to pay, when
ordering restitution in this case. We conclude that the district court’s decision to deny all
restitution was an abuse of discretion and we remand, with directions to reconsider the
matter in light of the victim’s right to restitution.
Reversed and remanded.