Howard William Amos, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0252

Howard William Amos, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 4, 2021
Affirmed in part, reversed in part, and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-16-23877

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

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

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

Considered and decided by Ross, Presiding Judge; Segal, Chief Judge; and Florey ,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The state accused Howard Amos of colliding with and killing a pedestrian and her
unborn child while Amos led police on a high-speed chase through a residential
neighborhood. Amos pleaded guilty to fleeing police in a vehicle resulting in death, and
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the district court sentenced him to serve 20 years in prison and pay about $10,000 in
restitution. Amos petitioned for postconviction relief, arguing that his guilty plea is invalid
because he was influenced by medication and his attorney provided ineffective assistance,
and arguing that the district court ordered restitution without a factual basis. Amos asks us
to reverse the postconviction decision as to restitution because the state submitted no
documents showing the victim family’s sustained loss. He also asks us to “review his
[guilty-plea] claims and the evidence in the record to determine whether the district court
abused its discretion in denying those claims.” We affirm in part, declining to review the
record in search of a possible error that Amos does not identify. We reverse in part and
remand, because the state failed to supply the district court with the factual basis for the
restitution.
FACTS
According to the criminal complaint in this case, police saw a black sport utility
vehicle operating recklessly one night in September 2016 in a north Minneapolis residential
neighborhood, and they initiated a traffic stop with lights and siren. The SUV sped away
from police, reaching speeds of about 60 miles per hour. The driver failed to navigate a
traffic circle, plowed over a young woman, and crashed into a row of parked cars. The
driver, Howard Amos, leapt from the SUV while it was still moving, and he continued his
flight on foot. One chasing officer attempted unsuccessfully to stop Amos with a Taser.
Amos then forced his wa y into a parked car occupied by three women and a child,
attempting to steal the car with the occupants inside. Amos fought against the officers who
tried to extract him from the car, but they eventually succeeded.
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The state charged Amos with attempted rob bery and fleeing a police officer in a
motor vehicle resulting in death. Amos pleaded guilty to the fleeing charge, and the district
court sentenced him to 20 years in prison. During sentencing, the district court also
executed a restitution order that had been drafted by the prosecutor, directing Amos to pay
the victim’s family and the Crime Victims Reparations Board (CVRB) a combined total of
$10,435.74. Amos challenged the restitution order, maintaining that he lacked the ability
to pay the amount ordered. The district court rejected the challenge as untimely under the
30-day challenge period in Minnesota Statutes section 611.045A, subdivision 3(b) (2018).
Amos petitioned for postconviction relief in 2019. He challenged his guilty plea
under two theories. He maintained that his guilty plea was invalid because he entered it
while he was under the influence of prescription medication. He also maintained that his
attorney had provided ineffective assistance of counsel during the plea hearing by failing
to raise the medication issue. And he challenged the restitution order because the district
court lacked a sufficient factual basis to order restitution. The district court denied
postconviction relief. Amos appeals.
DECISION
Amos appeals the district court’s denial of his postconviction petition. We review
the district court’s denial of a petition for postconviction relief for an abuse of discretion,
reviewing the court’s factual findings for clear error and its legal conclusions de novo.
Peltier v. State, 946 N.W.2d 369, 372 (Minn. 2020). For the reasons that follow, we
conclude that Amos is entitled to some relief, but only as to restitution. Amos also filed a
motion to strike the state’s addendum and portions of the state’s brief citing the addendum.
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In particular, he asks us to strike the portions of the state’s submissions consisting of
restitution claims and supporting documents from the victim’s family and the CVRB
because they were not filed with and considered by the district court. We do not consider
appellate submissions that are not part of the record on appeal. Minn. R. Civ. App. P.
110.01 (the record on appeal consists of “[t] he documents filed in the trial court, the
exhibits, and the transcript of the proceedings ”); Fabio v. Bellomo, 489 N.W.2d 241, 246
(Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). The challenged information was
never part of the record before the district court, and it therefore should not be considered
in the appeal. The state agrees with Amos’s motion to strike, and we grant it without further
discussion.
I
Amos does not offer any specific challenge to the district court’s rejection of his
plea contest. His brief observes that the district court rejected his contention that his plea
was invalid on account of alleged influence by his medication and on account of his
attorney’s alleged ineffective assistance. Without more, he invites us to examine the
evidence in the record , review the district court’s analysis, and then “determine whether
the district court abused its discretion in denying those claims.” Inasmuch as an appellate
court will not address a mere conclusory assertion of error that is not developed into a legal
argument, State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006), aff’d on other
grounds, 728 N.W.2d 243 (Minn. 2007), we will not search for a flaw that the appellant
has not identified. We add that we see no facially apparent error.
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II
More substantively, Amos contends that the postconviction court abused its
discretion by allowing the restitution award to stand when the district court erred in the
first place by awarding restitution without a sufficient factual basis. Before we turn to the
merits of Amos’s contention, we first address the state’s procedural challenge to the
argument, which is that Amo s either forfeited or waived all objections to the restitution
order.
The state argues first that Amos forfeited his objection to the legality of the
restitution award by failing to object to it during the sentencing hearing. Restitution is a
form of criminal sentence. Minn. Stat. § 609.10, subd. 1(a)(5) (2018); State v. Gaiovnik,
794 N.W.2d 643, 649 (Minn. 2011). A petitioner may challenge the legality of a criminal
sentence in a petition for postconviction relief even though he did not object during
sentencing. Minn. Stat. § 590.01, subd. 1 (2018); see also State v. Henderson, 706 N.W.2d
758, 759–60 (Minn. 2005) (citing postconviction petition as circumstance when a
defendant may challenge a sentencing issue despite having failed to object during
sentencing). Amos’s postconviction petition asserts that the district court erred by awarding
restitution without supporting facts, making the sentence illegal. Amos did not forfeit his
challenge to the legality of the restitution by failing to obje ct during the restitution
proceeding.
The state argues second that Amos forfeited the contest by missing the
30-day deadline to challenge restitution under Minnesota Statutes section 611A.045,
subdivision 3(b) (2018). An offender who seeks to challenge the amount or type of
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restitution must do so with a specific written objection within 30 days after the restitution
order. Minn. Stat. § 611A.045, subd. 3. But this deadline does not apply when an offender
challenges the district court’s legal authority to order restitution. Gaiovnik, 794 N.W.2d at
647, 649. Amos challenges the district court’s legal authority, arguing that it erred by
awarding restitution without any factual basis. His argument does not rest on whether any
particular amount is correct; it rests on the district court’s power to order restitution on a
record devoid of any factual basis. We are satisfied that section 611A.045, subdivision 3,
does not foreclose Amos’s argument.
The state argues third that Amos waived his challenge to the actual dollar amount
of restitution during the restitution hearing. But again, whether he waived the amount of
the request is not material to his urging that restitution generally is unlawful here. We will
address his argument on the merits.
We agree that the distr ict court erred by issuing restitution without a factual basis
and that the postconviction court therefore should have granted relief. A district court lacks
the authority to order restitution without a factual basis identifying the amount of economic
loss sustained by the victim as a result of the offense. Minn. Stat. § 611A.045, subd. 1
(2018); State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984) . The postconviction court
implicitly found that the record lacked factual support for the restitution award, concluding,
“[T]he factual basis for the [restitution] request needs to be made part of the record.” The
record supports the finding. The district court originally executed a restitution order that
was drafted and presented by the state. The prosecutor claimed to have expense receipts
and restitution claim forms from the CVRB and the victim’s family. But the record does
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not show that the prosecutor ever submitted those documents or provided any testimony
from the board or the victim’s family. The state concedes that those documents were never
provided to the district court. Because the district court had no factual basis on which to
order restitution, the postconviction court abused its discretion by failing to grant relief.
We are inclined to grant the relief Amos requests, which is to vacate the restitution
order with no further proceedings. But in reversing a restitution order on the same ground—
the lack of a factual basis—the supreme court remanded with instructions to allow the
district court to develop a record of the victim’s losses. Fader, 358 N.W.2d at 48. Amos
argues unpersuasively against a remand, maintaining that the district court never properly
had a restitution claim before it under Minnesota Statutes section 611A.04, subdivision 1
(2018). But a district court can order restitution even when no one has made a restitution
claim. Minn. Stat. § 609.10, subd. 1 (2018); Gaiovnik, 794 N.W.2d at 652. And the district
court must follow the procedures in section 611A.04, subdivision 1, only when a victim
submits a request for restitution. Gaiovnik, 794 N.W.2d at 650. That is not our
circumstance. We recognize that Fader involved a direct appeal and that this case instead
involves our review of a denied postconviction petition. But Amos does not contend that
this distinction is material, and we see no statutory or other reason to treat victims
differently depending on the mechanism challenging a restitution order. Following Fader,
358 N.W.2d at 48, we therefore “remand the case to the trial court for reconsideration, at
which time the parties may present evidence bearing on the issue of economic loss to the
victim and her family.”
Affirmed in part, reversed in part, and remanded.