In the Matter of the Welfare of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1823

In the Matter of the Welfare of:

A. A. D., Jr., Child.

Filed August 24, 2020
Reversed and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-JV-18-5372

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant A.A.D. Jr.)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorn ey, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent county)

Considered and decided by Jesson, Presiding Judge; Wo rke, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After pleading guilty to tamp ering with a motor vehicle, the district court ordered
appellant A.A.D. Jr., a juvenile, to pay restitution. But the district court held the contested
restitution hearing without A.A.D. present. Be cause we conclude that the district court

2
erroneously determined that A.A.D. waived his right to be present, we reverse and remand
for a new restitution hearing.
FACTS
In December 2018, police arrested appellant A.A.D. Jr.—who was 14 at the time—
for riding in a stolen car.1 The next day, A.A.D. pleaded guilty to tampering with a motor
vehicle. During his plea, A.A.D. acknowledge d that he was a passenger in the stolen car
and that the owner did not give him permission to be in the car.
At sentencing, with A.A.D.’s mother pres ent, the district court adjudicated A.A.D.
delinquent and ordered him to complete three days with a work crew. Additionally, the
district court explained to A. A.D. and his mother that he may be responsible for paying
some amount of restitution. After a restitu tion study, the court ordered A.A.D. to pay
$1,328 in restitution. That am ount reflected the value of th e stolen car and a few items
inside it.
In a written motion, A.A.D. objected to the restitution amount. In doing so, he
argued that he was not involved in the theft of the vehicle and his actions did not directly
cause the victim’s loss. A.A.D. also explained that he was unable to pay restitution because
he was an eighth-grade student and his family did not have th e financial means to pay.
Finally, according to A.A.D., th e victim failed to mitigate hi s damages because he failed
to retrieve his car from the impound lot.

1 Three other juveniles were also charged with a criminal offense.

3
The district court held a contested restitution hearing. But on the day of the hearing,
neither A.A.D. nor a parent or guardian was present. When the court questioned counsel
about A.A.D.’s absence, his a ttorney informed the court that she was unsure if A.A.D.’s
mother told him about the hearing. Counsel explained that A.A.D. did not have a home
phone number, and she only had contact information for A.A.D.’s mother and
grandmother. According to A.A. D.’s attorney, “neither one of them indicated that they
had let him know that there was a hearing today.” And because the restitution hearing was
not scheduled while in court, A.A.D. never signed a hearing notice with the date and time
of the hearing. In contrast, the state argue d that by failing to appear, A.A.D. waived his
right to a continuance and asked the court to award the full restitution amount.2
Additionally, the state pres ented testimony from the victim, the owner of the stolen
car. He estimated the car was worth between $1,300 and $1,500. The victim testified that
after he reported the car stolen, he never re ceived any information from the police about
where his car was. Despite assurances from the police that they would “get back to” him,
police never called the victim back. According to the victim, he first learned of his car’s
location when he received a letter from an impound lot informing him that he would need
to pay just over $1,700 in fees to retrieve his car. The victim understood this to mean—
apparently correctly—that he would have to pay more than $1,700 to retrieve his stolen car
valued around $1,300. By the time the victim decided to pay the fees to recover his car,

2 The district court expressed some concern that A.A.D. needed to be present for the
hearing. But because the victim had taken time off work to attend the hearing, the district
court allowed it to proceed while it was “investigating” the issue of A.A.D.’s absence.

4
the impound lot had sold it. Accordingly, the vic tim requested $1,328 in restitution to
account for his stolen—and later sold—car and a few items inside it.3
In a subsequent order, the district court found that A.A.D. waived his right to be
present at the restitution hear ing by failing to appear withou t providing a valid excuse.
Because A.A.D. did not appear at the hearing, the court concluded that “the issue of ability
to pay is waived.” After concluding that A. A.D.’s conduct directly caused the victim’s
loss and rejecting the argument that the victim contributed to his own losses by failing to
retrieve the stolen car from the impound lot, the district court ordered A.A.D. to pay $1,328
in restitution.4 A.A.D. appeals.
D E C I S I O N
In general, district courts have wide discretion to order restitution, and we only
reverse a restitution order if the distri ct court abused that discretion. State v. Andersen ,
871 N.W.2d 910, 913 (Minn. 2015). When assessing a restitution order, we review factual
findings for clear error. Id. But we consider de novo the le gal question of the district
court’s authority to order restitution. Id.
A.A.D. maintains that the district court vi olated his constitutional right to be present
at the restitution hearing by conducting the hearing in his ab sence. Further, according to

3 Because A.A.D. was not present at the hear ing, the district court did not hear any
testimony regarding his ability to pay restitution. Additionally, at the end of the hearing,
the district court asked the parties to submit written arguments about the effect of A.A.D.’s
absence from the hearing.
4 A.A.D. was jointly and seve rally responsible for paying th e restitution award with the
three other juveniles.

5
A.A.D., the district court erroneously concl uded that he waived his right to attend the
hearing.
A juvenile has the right to be present at all hearings. Minn. R. Juv. Delinq. P. 2.03,
subd. 1. Additionally, a criminal defendant has a constitutional right to be present at a
restitution hearing to challenge the evidence presented against him. State v. Rodriguez ,
889 N.W.2d 332, 336 (Minn. App. 2017) (observing that “[a] contested restitution hearing
constitutes a trial-like confront ation because the district c ourt must weigh and balance
evidence in deciding whether and what amount a defendant must pay restitution to a
victim”).
But the right to be present can be waived. Id. If a juvenile “voluntarily and without
justification is absent after the hearing has commenced or . . . disrupts the proceeding,” he
or she “is deemed to waive the right to be present.” Minn. R. Juv. Delinq. P. 2.03, subd. 1.
And in criminal proceedings, “[a] defendant may expressly waive the right to be present or
the district court may imply waiver from the defendant’s conduct, such as his absence from
a hearing without explanation.” Rodriguez, 889 N.W.2d at 336. In general, “voluntary
absence without compelling justification” is “a waiver of the right to be present.”
State v. Cassidy, 567 N.W.2d 707, 709 (Minn. 1997) (quotation omitted). A defendant
bears the “heavy” burden to show that his absence was involuntary. Id. at 710; see also
State v. Finnegan , 784 N.W.2d 243, 247-48 (Minn. 2010). But when deciding if a
constitutional right—like the right to be presen t—“has been waived, courts must indulge
every reasonable presumption against the loss of constitutional rights.” Cassidy,
567 N.W.2d at 709 (quotation omitted).

6
Here, the district court concluded that A.A. D. waived his right to be present at the
restitution hearing. In doing so, the district court observed that A.A.D.’s counsel requested
the hearing and filed an affida vit signed by A.A.D. Further, the district court found that
“[e]ven though a hearing notice was not signed, his mother and presumably [A.A.D.] were
fully aware of the hearing and chose not to appear.” (Emphasis added.) After determining
that “there was no indication . . . that there was a legitimate reason for his absence,” like
illness or a lack of transportation, the district court concluded that A.A.D. just decided “not
to come to [c]ourt.”
We disagree. Nothing in the record de monstrates that A.A.D. knew about the
restitution hearing and chose not to attend. A.A.D.’s attorney informed the district court
that she never communicated directly with A.A.D. about the hearing. And although
A.A.D.’s mother and grandmother had the information about the hearing, according to his
attorney, neither of them indica ted that they provid ed the hearing information to A.A.D.
Compounding the lack of direct communication with A.A.D. is the fa ct that the hearing
was not scheduled during court. As a result, there is no signed hearing notice in the record
demonstrating that A.A.D. knew about the restitution hearing.
Seemingly recognizing that nothing in the record establishes that A.A.D. knew
about the hearing, the district court found th at A.A.D. “presumably” was “fully aware of
the hearing and chose no t to appear.” But a presumption that A.A.D. knew about the
hearing, without more, is in sufficient to support the conc lusion that he waived his
constitutional right to be present. See Rodriguez, 889 N.W.2d at 337 (stating that waiver
of the right to be present cannot be presumed “from a record that does not clearly articulate

7
that his absence was a product of his volun tary choice”). Because the record does not
demonstrate that A.A.D. knew about the res titution hearing and volu ntarily chose not to
attend, we conclude that the district court er roneously determined that A.A.D. waived his
right to be present. See id. at 338 (concluding that when the record was unclear whether
an incarcerated defendant “had received notice of the hearing or was actually aware of its
date and time” and did not indicate that the defendant personally consulted with his
attorney, the defendant did not voluntarily waive his right to be present at a restitution
hearing).
Still, the state argues that A.A.D. knew that he may have to pa y restitution as part
of his sentence and that his counsel requested the restitution hearing. Further, the state
contends that the record establishes that A.A.D.’s mother knew about the hearing and had
promised to bring A.A.D. until shortly before the hearing.5 But neither of these arguments
establish that A.A.D. had notice of the restitu tion hearing. Although the record supports

5 To the extent that we interpret the state’s argument as suggesting that A.A.D.’s mother’s
conduct could waive A.A.D.’s right to be present at the hearing, we observe that the parties
do not provide any caselaw dict ating whether a parent can or cannot waive a juvenile’s
right to be present. But we note that, in general, a juvenile—not the parent—must validly
waive certain rights. See Minn. R. Juv. Delinq. P. 8.04 , subd. 1 (discussing the rights a
juvenile must waive before pl eading guilty to an offense). Additionally, this court has
stated that “a defendant must personally decide to waive his right to be present,” and such
a decision “is not a decision that is left up to his attorney.” Rodriguez, 889 N.W.2d at 337.
In the absence of any information in the record demonstrating A.A.D.’s knowledge of the
hearing, we cannot conclude that A.A.D.’s mother’s conduct warrants the conclusion that
A.A.D. waived his right to be present.

8
the conclusion that A.A.D.’s mother voluntarily chose not to attend the hearing, the same
cannot be said about A.A.D.6
Having concluded that the district court erroneously decided that A.A.D. waived his
right to be present, we must determ ine whether that error was harmless. See id. (stating
that “a new restitution hearing is warranted only if the di strict court’s error was not
harmless”). When a district court’s decision to order a defendant to pay restitution was
“surely unattributable to the error,” the error was harmless beyond a reasonable doubt. Id.
To analyze whether a district court’s error in proceeding without a defendant present was
harmless, we consider the stre ngth of the evidence in the record and “what the defendant
would have contributed to his defense if he had been present.” Id.; see also State v. Breaux,
620 N.W.2d 326, 332-33 (Minn. App. 2001). The state bears the burden of establishing
that the district court’s error was harmless beyond a reasonable doubt. Rodriguez,
889 N.W.2d at 338.
Here, the state maintains th at any error was harmless because A.A.D.’s counsel
cross-examined the victim at the restitution hearing and gave a closing argument. The state
acknowledges, however, that the district court concluded that A.A.D. waived any argument
regarding his ability to pay re stitution by failing to appear at the hearing. And when
determining whether to award restitution a nd for what amount, the district court “ shall

6 The state also argues that the victim of the crime had a right to receive restitution and that
“[t]he rights of the victim should not be held hostage to the capricious whims of a juvenile
or family member who simply [does not] feel like coming to court.” But again, the record
here does not demonstrate that A.A.D. did not attend the hearing because he did not “feel
like coming to court.”

9
consider . . . (1) the amount of economic loss sustained by the victim as a result of the
offense; and (2) the income, resources, a nd obligations of the defendant.” Minn.
Stat. § 611A.045, subd. 1(a) (2018) (emphasis added). Here, it is not evident that the
district court would ha ve ordered restitution exactly as it did had it considered A.A.D.’s
ability to pay. Accordingly, we cannot say that the erroneous decision that A.A.D. waived
his right to be present was harmless beyond a reasonable doubt. For this reason, we reverse
the restitution order and remand for a new restitution hearing. See id. at 339 (remanding
for further proceedings consistent with the opinion).7
Reversed and remanded.

7 Because we remand for a new restitution h earing, we do not address A.A.D.’s other
arguments related to the restitution award. But we observe that before ordering restitution,
the district court must consider “(1) the am ount of economic loss sustained by the victim
as a result of the offense; and (2) the income, resources, and obligations of the defendant.”
Minn. Stat. § 611A.045, subd. 1(a). And the supreme court has clearly articulated that “a
district court may order restitu tion only for losses that are di rectly caused by, or follow
naturally as a consequence of, the defendant’s crime.” State v. Boettcher, 931 N.W.2d 376,
381 (Minn. 2019).