State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1764

State of Minnesota,
Appellant,

vs.

Kha Xiong Jakel,
Respondent.

Filed April 30, 2018
Reversed and remanded
Reyes, Judge

Scott County District Court
File No. 70-CR-16-3977

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistan t County Attorney,
Shakopee, Minnesota (for appellant)

Richard L. Swanson, Chaska, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Sc hellhas, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this sentencing appeal, appellant State of Minnesota argues that the district court
abused its discretion by refusing to order re stitution, one of the agreed-upon terms of
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respondent’s plea agreement, because the victim had already recovered in a civil judgment
against respondent. We reverse and remand.
FACTS
Respondent Kha Xiong Jakel stole $91,07 2.54 from her employer over a nine-month
period from October 2014 to June 2015. The employer sued and recovered in a civil
lawsuit against respondent, and respondent has made payments toward the civil judgment
since 2015.
In February 2016, the state charged respo ndent with two counts of felony theft by
swindle and offered a plea agreement that included the state amending count one to simple
theft and dismissing the other charge. In exchange, respondent agreed to pay restitution of
the original amount in the civil suit, among other terms. Respondent completed a plea
petition incorporating the terms of this agreement and pleaded guilty to the amended charge
on June 27, 2016.
During sentencing, the district court declined to order restitution pursuant to the plea
agreement over the objections of the state and th e victim. The district court accepted the
other terms of the plea agreement. The state appeals.
D E C I S I O N
The state first argues that the district court abused its discretion by refusing to order
restitution because the victim had already obtai ned a civil judgment against respondent.
We agree.
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“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.” State v. Anderson , 871
N.W.2d 910, 913 (Minn. 2015).
A victim has a statutory right to restitution from an offender upon conviction. Minn.
Stat. § 611A.04, subd. 1(a) (2016). In additi on, “An actual or pr ospective civil action
involving the alleged crime shall not be used by the court as a basis to deny a victim’s right
to obtain court-ordered res titution under this section.” Id. The statutory word “shall” is
mandatory. State v. Humes , 581 N.W.2d 317, 319 (Minn. 1998); see Minn. Stat. § 645.
44, subd. 16 (2016) (“‘shall’ is mandatory.”) When stat utory language is clear and
unambiguous, we give effect to th e plain meaning of that language. State v. Al-Naseer ,
734 N.W.2d 679, 683 (Minn. 2007). In State v. Pflepsen, 590 N.W.2d 759 (Minn. 1999),
the supreme court emphasized the importance of adhering to section 611A.04, subdivision
1(a), noting that the district court’s decision not to impose restitution in view of a pending
civil lawsuit was “inconsistent with the law and policy governing restitution.” Id. at 768.
Here, the record shows that the district court declined to award restitution because
of the civil judgment against re spondent and therefore abused its discretion. The district
court characterized the civil judgment amount as “highway robbery” and noted that it
would not be the civil court’s collection agen cy for such an “astronomical” amount. The
district court made it clear that the civil judgment was the paramount reason for declining
to impose restitution by stating, “If we didn’t have that civ il part out there, I would be
inclined to do what [the state is] asking.”
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The state also argues that the district c ourt abused its discre tion by declining to
enforce the restitution term, which was a material part of a negotiated plea agreement. This
argument has merit.
Minn. R. Crim. P. 15.04, subd . 3(1), requires the district court to “reject or accept
the plea of guilty on the terms of the plea agreement.” (Emphasis added). Because a plea
agreement is considered an alogous to a contract between the state and a defendant,
alteration of one term may alter the nature of the entire agreement. State v. Meredyk, 754
N.W.2d 596, 603 (Minn. App. 2008) (quotation omitted). Accordingly, this severely limits
the district court’s otherwise broad discretion to modify restitution after the district court
accepts a plea agreement that expressly calls for a specific, barg ained-for restitution
amount. Id.
Restitution of the original amount from th e civil suit’s judgment was a term of the
plea agreement, which even resp ondent twice highlighted duri ng the sentencing hearing.
By refusing to enforce the agreed-upon restitution amount, the district court failed to accept
the guilty plea “on the terms of the plea agreement.” Minn. R. Crim. P. 15.04, subd. 3(1).
This case is analogous to Meredyk. There, the district court modified the
defendant’s restitution obligation agreed upon in the plea agreement by allowing her to pay
less than the full amount. Meredyk, 754 N.W.2d at 599. This court reversed, finding that
“a district court generally shou ld not alter the terms of a restitution obligation negotiated
as part of a plea agreement if it materially changes the expect ations of the parties to the
bargain.” Id. at 604. This court also focused on the state’s objection to the modification
of the restitution amount because “[b]y ordering the modification, the district court in effect
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forced the state to incorporat e terms into the plea agreemen t to which it never consented
and with which it does not agree.” Id.
In this case, the state required that res titution be one of the key terms of the plea
agreement. It was “not merely an ancillary aspect of the plea agreement[,]” but a material
term of the agreement. See id. at 603-04. And, as in Meredyk, the state objected to the
district court’s denial of restitution to the vic tim. Therefore, the dist rict court abused its
discretion when it refused to enforce the restitution term of the plea agreement agreed upon
by the parties.
Reversed and remanded.