State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A20-0857

Court of Appeals Thissen, J.

State of Minnesota,

Respondent,

vs. Filed: December 22, 2021
Office of Appellate Courts
Darrell James Wigham,

Appellant.

________________________

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Loz eau, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Kristen Nelsen, Mower County Attorney, Austin Minnesota; and

Scott A. Hersey, Special Assistant Mower County Attorney, Austin, Minnesota, for
respondent.
________________________
S Y L L A B U S
When ordering restitution under Minn. Stat. § 611A.045, subd. 1 (2020), a district
court must expressly state, either orally or in writing, that it considered the defendant’s
income, resources, and obligations . The district court need not make express findings
about the defendant’s income, resources, and obligations, but the record must include
2
sufficient evidence about the defendant’s income, resources, and obligations to allow a
district court to consider the defendant’s ability to pay the amount of restitution ordered.
Reversed and remanded.
O P I N I O N
THISSEN, Justice.
A district court is required to consider the defendant’s income, resources, and
obligations when it is determining whether to award restitution and the amount of
restitution. See Minn. Stat. § 611A.045, subd. 1(a)(2) (2020). In this case, neither the
parties nor the county probation office provided meaningful information to the district
court about appellant Darrell Wigham’s income, resources, and obligations. After a
restitution hearing that focused on the timeliness of the restitution request and the amounts
of the victims’ losses, the district court ordered Wigham to pay a total of $87,500 in
restitution to two victims. The record does not reflect that the district court considered
Wigham’s ability to pay.1
We hold that a district court must expressly state, either orally or in writing, that it
has considered a defendant’s income, resources, and obligations when ordering restitution,
and that the record must include sufficient evidence about the defendant’s income,
resources, and obligations to allow a district court to consider the defendant’s ability to pay

1 We have referred to “the income, resources, and obligations of the defendant” as the
defendant’s “ability to pay.” See, e.g., State v. Boettcher, 931 N.W.2d 376, 380 (Minn.
2019); State v. Riggs, 865 N.W.2d 679, 683 (Minn. 2015); State v. Lopez-Solis,
589 N.W.2d 290, 293 (Minn. 1999).
3
the amount of restitution ordered. Accordingly, we reverse the decision of the court of
appeals and remand to the district court for further proceedings on restitution.
FACTS
A fire destroyed the home of the victim homeowner in this case. Following an
investigation into the fire’s origins , Wigham was charged with several crimes, including
arson. Wigham entered an Alford plea2 to first-degree arson, and the Mower County
District Court dismissed all remaining related counts. Before sentencing, a presentence
investigation report ( PSI) was completed. The PSI summarized Wigham’s incarceration
and probation history, recommended the presumptive 88-month sentence, and recorded the
restitution requested as of the date of filing. But the PSI included neither any information
on Wigham’s income, resources, or obligations, nor any discussion of his ability to pay
restitution.
Both the homeowner and his insurer submitted affidavits of restitution. The
insurance company’s affidavit requested $71,500 in restitution for payments made to the
homeowner. Those payments included $65,000 for the value of the lost residence and
$6,500 for lost rent. The homeowner’s affidavit lacked clarity and was confusing. It
itemized $71,600 in losses. The homeowner claimed lost rent for three years totaling
$21,600; $35,000 for the value of the destroyed home not covered by insurance; and
$15,000 to cover removal and cleanup costs . The homeowner’s affidavit also stated that

2 North Carolina v. Alford, 400 U.S. 25, 38 (1970) (holding that in some
circumstances, a court may constitutionally accept a defendant’s guilty plea even though
the defendant maintained his or her innocence).
4
he paid a $1,000 insurance deductible and noted an unspecified “additional loss” of
$16,000 not covered by insurance. It is not clear if or how those amounts were included in
his requested $71,600 in restitution.
On April 25, 2019, the district court sentenced Wigham to 88 months in prison. The
State recognized a possible duplication error in the restitution amounts requested in the
affidavits submitted by the insurance company and the homeowner. The prosecutor stated:
“The way the affidavits are currently may be too much requested, so we will confirm that.”
Wigham’s lawyer agreed: “As for the restitution, I also have some concerns, and even some
confusion with it . . . .” Accordingly, the district court deferred ruling on restitution,
allowing 60 days for clarification of the restitution requests. There was no mention of
Wigham’s income, resources, or obligations at the sentencing hearing.
On September 17, more than 60 days after the sentencing hearing, the State filed a
letter with the district court requesting $87,500 in restitution: $16,000 (reflecting the
“additional loss, not covered by insurance”) from the homeowner ’s affidavit and the
original request of $71,500 from the insurance company’s affidavit. The next day, the
court issued a criminal restitution order for $87,500—the full amount requested by the
State. The restitution order included spaces for the court to either fill in and indicate the
monthly payments that Wigham must make or, alternatively, to name the person delegated
to develop a restitution payment schedule. Both spaces were left blank. The restitution
order made no mention of Wigham’s ability to pay restitution.
Wigham timely filed a demand for a restitution hearing and an affidavit challenging
the restitution order pursuant to section 611.045, subdivision 3. Wigham asserted that the
5
district court lacked authority to order any restitution because the State had failed to timely
file its updated restitution request within the 60-day deadline set by the court and that the
homeowner’s claim for $16,000 in restitution was not supported by sufficient
documentation. Wigham’s affidavit made no mention of his income, resources, or
obligations.
The district court held a restitution hearing over parts of three separate days. The
legal dispute in the hearing focused primarily on whether the State’s restitution request was
timely. The court made no mention, and neither the State nor Wigham offered evidence,
of Wigham’s income, resources, or obligations.
A representative of the insurance company verified the amounts in the affidavit that
the insurer had previously filed. The representative testified that the insurance company
had reimbursed the homeowner $71,500—$65,000 for the value of the lost home and
$6,500 for lost rent.
The homeowner also testified at the restitution hearing, reciting losses that totaled
$46,300. He clarified that his lost rent not covered by insurance was $1,300, rather than
the $21,600 listed in his affidavit. He asserted that $15,000 in cleanup expenses had not
been covered by insurance. He further stated that, although he was claiming a property
value loss of $35,000 (the portion not covered by insurance), he still owned the lot and was
paying taxes on it. He said that he valued the lot at zero because no one wanted it, stating,
“I can’t give it away.” Ultimately, the homeowner limited his request for restitution to
$16,000. In its closing argument, the State stated that the homeowner “understands Mr.
Wigham is in prison” and clarified that it was merely asking that “the Order previously
6
made by this Court and entered remain.” Wigham did not contest the amount of restitution
in that order.
The district court subsequently issued a restitution order for the same $87,500
amount it had originally ordered. Neither the order nor the accompanying memorandum
mentioned Wigham’s income, resources, or obligations. The order neither included a
payment structure nor scheduled nor directed anyone else to prepare a payment structure
or schedule. In the accompanying memorandum, the court limited its discussion to the
issue of whether the State’s request for restitution was timely. In its discussion of that
issue, the court stated:
In balancing the interests of Defendant and the victims, the Court sees no
unfair prejudice to Defendant in ordering restitution at this time in the total
amount of $87,500, because it is considerably less than the total amount of
$143,100 [the incorrect amount reflected in the original restitution affidavits]
which the Court could have ordered at sentencing.

(Emphasis added.) The court rejected Wigham’s timeliness challenge because Wigham
benefited from the delay, which allowed the parties to clear up the duplication in the
original restitution requests.
Wigham appealed on several grounds, including that the district court failed to
consider his ability to pay when it ordered restitution. See State v. Wigham, No. A20-0857,
2021 WL 416413, at *3 (Minn. App. Feb. 8, 2021). The court of appeals affirmed,
concluding that “the record reveals that the district court considered Wigham’s ability to
pay.” Id. at *4. The court of appeals reasoned:
First, the district court did not order Wigham to pay the full $143,100 that
was originally requested by the state. Second, the district court only ordered
Wigham to pay the requested $16,000 to the homeowner, instead of requiring
7
Wigham to fully compensate the homeowner for all the losses that he
testified to. Third, the district court acknowledged that it “balance[ed] the
interests of [Wigham] and the victims” in ordering restitution.

Id.
Wigham petitioned our court, and we granted review, on the sole issue of whether
the district court fulfilled its statutory obligation to consider the defendant’s ability to pay
restitution under section 611A.045.
ANALYSIS
We generally review a restitution order for an abuse of the district court’s “broad
discretion.” State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015). That discretion,
however, is constrained by the statutory requirements set forth in Minn. Stat. § 611A.045
(2020). The question before us is whether the court fulfilled its statutory obligation to
consider Wigham’s ability to pay when it ordered Wigham to pay $87,500 in restitution. 3

3 The State argues that Wigham forfeited his argument that the district court failed to
properly consider his ability to pay because he did not raise it before the district court. The
State made the same forfeiture argument before the court of appeals, but the court of
appeals addressed the issue on the merits. See Wigham, 2021 WL 416413, at *4–5.
In its letter of notice responding to Wigham’s petition for review, the State did not
argue that the issue of whether the district court properly considered Wigham’s ability to
pay—the only question on which Wigham sought review—was forfeited. Instead, the State
responded that it “agreed with the Court of Appeals’ analysis” —an analysis that reached
the merits of the issue. We also observe that the relevant factual record on appeal is not
disputed, and both parties have thoroughly briefed the decisive legal question. See State v.
Thompson, 937 N.W.2d 418, 421–2 2 n.2 (Minn. 2020) (stating that “[w]e may consider
arguments not addressed by the district court when addressing them would not work an
unfair surprise on a party,” when “all the parties have briefed the issues,” and when the
only dispute is over “an issue of law” (citation omitted) (internal quotation marks omitted));
State v. Hill, 871 N.W.2d 900, 905 n.4 (Minn. 2015) (stating that our consideration of a
question not raised in the district court “does not prejudice the State” when the question
involves an issue of law and the State has fully briefed the issue). Accordingly, we will

8
That inquiry requires us to analyze what the statute requires in its mandate that a court
“shall consider . . . the income, resources, and obligations of the defendant.” Minn. Stat.
§ 611A.045, subd. 1. That is a question of law and statutory interpretation, which we
review de novo. Anderson, 871 N.W.2d at 913 (stating that q uestions concerning the
authority of the court to order restitution are questions of law subject to de novo review).
We begin our analysis by reviewing the statutory procedure the Legislature has
mandated that district courts must follow when ordering restitution. First, subdivision 1,
provides: “The court, in determining whether to order restitution and the amount of the
restitution, shall consider the following factors: (1) the amount 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 (emphasis added).
Second, subdivision 2 requires that information regarding the offender’s income,
resources, and obligations be included in the PSI: “The presentence investigation report
made pursuant to section 609.115, subdivision 1, must contain information pertaining to
the factors set forth in subdivision 1.” (emphasis added).
Third, subdivision 2a requires a district court to include in “every restitution order
a provision requiring a payment schedule or structure.” Id., subd. 2a (emphasis added).
Although subdivision 2a permits the court to “assign the responsibility for developing the
schedule or structure to the court administrator, a probation officer, or another designated
person,” the statute mandates that, “[t]he person who develops the payment schedule or

proceed to examine the question of whether the district court considered Wigham’s ability
to pay when ordering restitution.
9
structure shall consider relevant information supplied by the defendant.” Id. (emphasis
added).
With that background in mind, we turn to the question of what a district court must
do to fulfill its obligation when considering a defendant’s ability to pay. We have
recognized that section 611A.045 is “not explicit as to how the court must consider the
income, resources, and obligations of the appellant . . . .” State v. Maidi, 537 N.W.2d 280,
285 (Minn. 1995) (emphasis added). But the fact that we properly allow flexibility in how
a court considers a defendant’s ability to pay and structures a restitution order does not
answer the question of what steps a court must take to fulfill its statutory mandate to
consider the defendant’s ability to pay.
While we stop short of holding that the district court must make specific findings
regarding the defendant’s income, resources, and obligations, the statutory requirement
that a court “consider” the defendant’s ability to pay means that the court must
affirmatively take into account the defendant’s ability to pay when awarding and setting
the amount of restitution. See Minn. Stat. § 611A.045, subd. 1; see also Merriam Webster’s
Collegiate Dictionary 246 (10th ed. 2001) (defining “consider” as “to take into account”
when the word is used in a sentence like, “[The] defendant’s age must be considered”—
the same sentence structure used in section 611A.045, subdivision 1); see also Maidi,
537 N.W.2d at 285–86 (referring to restitution orders that “take into account” a defendant’s
ability to pay).
This reading is supported by the indisputably mandatory nature of the directive that
the district court “shall consider” the defendant’s ability to pay. Minn. Stat. § 611A.045,
10
subd. 1 (emphasis added). “Shall” is a mandatory directive. Minn. Stat. § 645.44, subd.
16 (2020); Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 155 (Minn. 2014) (“The use
of the word ‘shall’ in a statute . . . indicates a duty that is mandatory, not one that is optional
or discretionary.” (citation omitted) (internal quotation marks omitted)); see also Lopez-
Solis, 589 N.W.2d at 293 (stating that the statutory language in Minn. Stat. § 611A.045
“requir[ing] inquiry into a criminal defendant’s ability to pay” is “plain”). This
interpretation is further supported by the specificity and concreteness of the items the court
must consider: “income, resources, and obligations.” Minn. Stat. § 611A.045, subd.
1(a)(2).
The statutory provisions in subdivisions 2 and 2a requiring a district court to ensure
that, when ordering restitution, the record contains relevant information about the
defendant’s ability to pay are additional textual signals that the Legislature inten ded to
require courts to affirmatively take into account information about the defendant’s ability
to pay. See id., subds. 2 (requiring that the PSI “must contain information pertaining to the
factors set forth in subdivision 1,” i.e., the victim’s economic loss and the defendant’s
income, resources, and obligations), 2a (requiring the court to include “in every restitution
order a provision requiring a payment schedule or structure” developed in consideration of
the defendant’s ability to pay, noting that the court may assign the responsibility of
developing the payment plan to another).
We have also recognized that the payment schedule or structure included in a
restitution order should reflect the defendant’s ability to pay. Maidi, 537 N.W.2d at 285–
86 (holding that because “the sentencing court properly considered the defendant’s ability
11
to pay” by setting a payment schedule that he could afford based on his earnings, it did not
abuse its discretion by ordering restitution in an amount the defendant could
“mathematically . . . never pay off”).4
We have previously decided that a district court may show that it has considered the
defendant’s ability to pay by expressly stating that it has considered the defendant’s ability
to pay. State v. Lindsey, 632 N.W.2d 652, 664 (Minn. 2001) (noting that “the
postconviction court, which was also the trial court, specifically stated that it ‘considered
the petitioner’s ability to pay when it ordered restitution to be paid from prison earnings’ ”).
Notably, the district court’s statements in Lindsey were supported by record evidence that
the amount of restitution ordered was tied to the defendant’s established income stream.
Id. That is important because it is difficult to see how a court could affirmatively consider
or take into account the defendant’s income, resources, and obligations without any
evidence in the record about the defendant’s income, resources, and obligations. See Minn.
State Court Administrator’s Office, Minnesota Judges Criminal Benchbook, § 2602.04(IV)
(7th ed. 2021) (“[T]he district court must ensure there is a record of the defendant’s ability
to pay.”).

4 Although the statutory requirement mandates that courts consider a defendant’s
ability to pay, it does not require courts to limit a restitution award amount to only what
the defendant can afford. See State v. Lindsey, 632 N.W.2d 652, 663–64 (Minn. 2001)
(finding that no abuse of discretion occurred when the district court stated that it considered
the defendant’s ability to pay and ordered $32,682.93 in restitution to be paid from prison
earnings, even though the defendant was indigent, incarcerated, and unable to pay the total
amount).
12
Accordingly, we hold that a district court fulfills its statutory duty to consider a
defendant’s income, resources, and obligations in awarding and setting the amount of
restitution when it expressly states, either orally or in writing, that it considered the
defendant’s ability to pay.5 Further, while we do not require that the district court make

5 The court of appeals’ understandable effort to reverse engineer the district court’s
thought process by searching the record to see what it might reveal about Wigham’s ability
to pay, see Wigham, 2021 WL 416413, at *4, demonstrates the need for a clear statement
by a district court that, before awarding restitution, it considered a defendant’s ability to
pay. Such a clear statement avoids the need to scour bits and pieces of information to try
to glean what the district court may have considered.
For instance, the court of appeals stated that the district court must have considered
Wigham’s ability to pay because the court awarded only $16,000 in restitution to the
homeowner, even though the record arguably supported the conclusion that the homeowner
suffered economic losses greater than $16,000. Id. The award of $16,000 to the
homeowner, however, provides no proof that the court considered Wigham’s ability to pay.
The $16,000 award reflects the full amount that the State asked for in its corrected
restitution request, the full amount that the court awarded in its initial order, and the full
amount to which the homeowner limited his request at the restitution hearing. Imputing
consideration of Wigham’s ability to pay to the district court’s decision to affirm its earlier
restitution order instead of ordering more restitution—when the victims were not
requesting any more restitution—is after-the-fact speculation.
The argument that the PSI “reveals” the district court’s consideration of Wigham’s
ability to pay restitution is similarly too attenuated. As noted, the PSI includes no
information about Wigham’s income, resources, and obligations, and the district court
made no reference in its order or during the restitution hearing that it considered any
information in the PSI. The PSI documented that Wigham had previously been on
probation and was currently in prison and included Wigham’s birthdate, age, and
“anticipated release date” (“with good time”). We find these factors too remote to serve as
evidence that the court considered Wigham’s ability to pay. Such scattered bits of
information are insufficient to demonstrate a court’s consideration of a defendant’s ability
to pay.
The State also observes that two years before awarding restitution, the district court
approved Wigham’s application for a public defender. The State generally notes that
public defender applications include financial information. Accordingly, the State asserts
that there was “ample information” to support the conclusion that the court considered
Wigham’s ability to pay. We disagree. First, Wigham’s public defender application is not
in the record so we can glean no information from it. Second, the court never mentioned

13
specific findings about the defendant’s income, resources, and obligations to support a
court’s express statement that it considered the defendant’s ability to pay,6 we hold that the
record must include sufficient evidence about the defendant’s income, resources, and
obligations to allow a district court to consider the defendant’s ability to pay the amount of
restitution ordered.
Our decisions, and decisions by the court of appeals, provide useful examples of the
type of ability-to-pay evidence that meaningfully informs a district court’s decision to order
restitution. For instance, we have found it sufficient that the record includes specific,
concrete evidence of the defendant’s income, resources, and obligations. See, e.g., State v.
Palubicki, 727 N.W.2d 662, 667–68 (Minn. 2007) (affirming a restitution award and noting
that it was “established” at the restitution hearing that the defendant had no assets and
earned only $1.25 per hour working at a prison job).
When a PSI includes information about the defendant’s income, resources, and
obligations, it also may be sufficient evidence of an ability to pay. See State v. Alexander,
855 N.W.2d 340, 344 (Minn. 2014) (finding proper consideration of the defendant’s ability

the public defender application during the restitution hearing or in its restitution order.
Third, the public defender application was submitted 2 years before restitution was
awarded.

6 It is best practice for a district court to make express findings about a defendant’s
ability to pay restitution. Such a practice provides more transparency for all the parties
involved and allows for more effective appellate review. See State v. Modtland,
695 N.W.2d 602, 608 (Minn. 2005) (stating that “it is not the role of appellate courts to
scour the record to determine if sufficient evidence exists to support the district court’s”
exercise of its discretion); Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1999) (observing that
sufficiently detailed findings of fact assist appellate courts in effectively reviewing
decisions subject to an abuse of discretion review).
14
to pay, in part because the court informed the defendant that it would rely on the relevant
PSI information when making its restitution decision and because it heard evidence
regarding the defendant’s future ability to pay); State v. Miller, 842 N.W.2d 474, 479
(Minn. App. 2014) (reversing and remanding for proper consideration of the defendant’s
ability to pay because there was no PSI and restitution hearing did not address the
defendant’s ability to pay). The PSI in this case did not include information about
Wigham’s income, resources, and obligations.
A defendant’s express concession that he or she could pay the amount of restitution
awarded also may be sufficient ability-to-pay evidence. See, e.g., State v. Nelson,
796 N.W.2d 343, 349 (Minn. App. 2011) (affirming a $156 restitution award as to the
defendant’s ability to pay despite a record “devoid of any . . . evidence that would have
established appellant’s ability to pay restitution” only because appellant conceded at oral
argument that she could pay it, but stating that “we remind the district court that it retains
a duty to consider an offender’s ability to pay restitution”), overruled on other grounds by
State v. Boettcher, 931 N.W.2d 376, 381 (Minn. 2019). No such concession was made
here. The defendant, of course, may assist the district court in fulfilling its duty to consider
the defendant’s ability to pay by providing information about his or her income, resources,
and obligations.
We have also concluded that consideration of a defendant’s ability to pay may be
shown by including a restitution payment schedule or structure that reflects the defendant’s
ability to make the periodic payments. Maidi, 537 N.W.2d at 285 –86; see Minn. Stat.
611A.045, subd. 2a (requiring a district court to include in “every restitution order” a
15
payment schedule or structure and providing that “[t]he court may assign the responsibility
for developing the schedule or structure to the court administrator, a probation officer, or
another designated person.”).
We now turn to the restitution order in this case. The district court did not expressly
state that it considered Wigham’s income, resources, and obligations. The court of appeals
suggested that the district court made such a statement when it indicated in the restitution
order memorandum that it “balance[ed] the interests of Defendant and the victims.” See
Wigham, 2021 WL 416413, at *2. We disagree. The district court’s memorandum makes
clear that the statement was limited to its consideration of Wigham’s argument that the
State’s renewed restitution request was unt imely. The district court was balancing
detriment to Wigham of the delayed restitution order and the interests of the victims
(persons separate from the State) in receiving fair compensation for their economic losses.
The district court found that Wigham suffered no detriment from the delay because the
delay allowed the court and parties to resolve confusion over whether the amounts initially
requested by the insurance company and the homeowner were excessive and duplicative.
The court was not balancing the victims’ economic losses against Wigham’s ability to pay.
In addition, the record does not contain sufficient information to meaningfully inform a
consideration of Wigham’s ability to pay restitution.
Accordingly, because the district court did not expressly state that it considered
Wigham’s ability to pay, and because the record does not include sufficient evidence about
Wigham’s income, resources, and obligations to allow the court to consider Wigham’s
ability to pay the amount of restitution ordered, we conclude that the court did not consider
16
Wigham’s ability to pay as required by section 611A.045, subd. 1. We therefore reverse
the decision of the court of appeals and remand to the district court for further proceedings
on restitution. Before ordering restitution on remand, the district court should ensure that
the PSI is updated to include information on Wigham’s income, resources, and obligations.
See Minn. Stat. § 611A.045, subd. 2. The district court must also expressly state, either
orally or in writing, that it has considered Wigham’s ability to pay— his income, resources,
and obligations—when ordering restitution. See id., subd. 1(a)(2). Further, the restitution
order must provide for a payment schedule or structure that reflects Wigham’s ability to
pay or assign the responsibility for developing a schedule or structure to the court
administrator, a probation officer, or another designated person. See id. , subd. 2a.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to the district court for further proceedings consistent with this opinion.
Reversed and remanded.