Eugene Gerald Secord, 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This opinion is nonprecedential except as provided by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
A21-0472

Eugene Gerald Secord, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 11, 2021
Affirmed
Jesson, Judge

Mille Lacs County District Court
File No. 48-CR-17-2551

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Joe Walsh, Mille Lacs County Attorney, Erica Madore, Assistant County Attorney, Milaca,
Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After a contested restitution hearing, th e district court sua sponte—on its own
motion—determined that appellant Eugene Secord had waived his right to challenge the
original restitution award. Secord, in a postconviction proceeding, ch allenged that
2
$9,876.55 award. The postconviction court affirmed the district court’s order of restitution
and Secord now appeals. Because the district court has a duty to guard the rights of victims
in restitution matters, and because Secord did not raise a detailed challenge to the restitution
calculations, we affirm.
FACTS
In a desire to have some metal scrapped, W.H. gave his neighbor, appellant Eugene
Secord, permission to go onto his mother’s property to remove old batteries. Secord
arrived and, confused by what he considered “junk” strewn about the property, attempted
to call W.H. to determine what he wanted scrapped. W.H. did not answer, so Secord left a
voicemail and decided to scrap the additional property anyway . But what was junk to
Secord were “valuable antiques” to W.H.’s wife, R.H. In total, Secord collected over 1,300
pounds of metal, including a large metal desk, an antique coal shovel, and decorative
wagon wheels. After W.H. calle d to demand the return of th e items, Secord was able to
recover several of the items, but over 20 items were destroyed or damaged. The state
charged Secord with two counts of theft. 1 A jury found Secord guilty of two
counts: (1) intentionally taki ng possession of movable property of another (more than
$1,000) and (2) intentionally taking possession of moveable property of another (valued at
$500 or less).
At sentencing, the district court convicted Secord of one count of theft, sentenced
him to 365 days in jail and a $3,000 fine, but stayed and suspended all the jail time and all

1 Minn. Stat. § 609.52, subd. 2(a)(1) (2016).
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but $300 of the fine. The district court th en ordered restitution fo r $9,876.55 based on a
claim-loss affidavit filed by W.H. and R.H. as well as their testimony at trial. After
sentencing, Secord filed an affidavit challenging the restitution amount.
At the contested restitution hearing that followed, R.H. testified and presented three
exhibits detailing what prope rty had been taken, the valuation for each item, and
photographs of two items that were taken but returned. Secord did not testify nor did he
present any evidence. The district court re quested briefing for proposed findings for the
value of each item and noted the burdens of production as required in the restitution statute.
See Minn. Stat. § 611A.045, subd. 3(a) (2020).
In Secord’s subsequent briefing to the district court, he grouped the items into three
separate categories: (1) items “lacking competent evidence”; (2) items he agreed to taking
but with inflated pricing; and (3) items and prices he agreed with. But neither in this list
nor elsewhere in the brief did he explain what the pricing should be. The state’s
memorandum reiterated its support for restitution based on the figures supplied by R.H.
The district court ordered Secord to pay $9,868.56 in restitution.2 In its supporting
memorandum, the district court explained that Secord waived his right to challenge the
amount of restitution by failing to adhere to the requirements of the restitution statute, an
issue the court raised sua sponte. Additiona lly, the district court found that although
W.H.’s and R.H.’s affidavit did not adequately specify the reason justifying some of the

2 This is a $7 discrepancy from the initial re stitution request and a $1 difference from the
state’s request at the hearing due to rounding errors.
4
amounts, it could reach an amount based also on hearing testimony a nd other exhibits in
the record.
Secord petitioned for postconviction relief.3 The postconviction court affirmed the
district court’s ruling that Se cord had waived his right to challenge restitution. The
postconviction court reiterated that Secord did not meet his statutory burden of production
with his initial affidavit—an issue properly raised sua sponte by the district court—and that
even if Secord could combine the evidence from the restitution hearing and his subsequent
written arguments with his initial affidavit, there was still not enough specificity for Secord
to have met his burden.
Secord appeals.
DECISION
Secord presents two challe nges to the postconviction c ourt’s order affirming the
district court’s ruling. He first faults the di strict court’s sua sponte assertion of the issue
regarding his failure to meet his burden of production. Secord next contends that, even if
the issue was properly raised, the underlying conclusion regarding the burden of production
was erroneous as a matter of law. He requests we vacate the restitution order and remand
to the district court for another contested re stitution hearing after wh ich the district court
should make factual findings on “each and every item of restitution.”
The denial of a petition for postconviction relief is reviewed for an abuse of
discretion. Howard v. State, 909 N.W.2d 595, 5 97 (Minn. App. 2018). But questions of

3 There was no direct appeal to either his conviction or the restitution order.
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law, such as challenging the auth ority of the district court to order restitution, are subject
to de novo review. State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015).
I. The district court’s authority to guard victims’ rights extends to its sua sponte
raising the issue of Secord’s failure to meet his burden of production.

First, Secord argues that the postconviction court erred by affirming the district
court’s conclusion that it could raise sua spont e the issue that Secord failed to meet his
burden of production. To addr ess this issue, we first review the statutory construct
governing restitution proceedings. We then apply that law to the facts before us.
Restitution is intended to compensate crime victims for their losses. State v. Rey,
905 N.W.2d 490, 496 (Minn. 2018). In determining whether to order restitution, the district
court considers “the amount of economic loss sustained by the victim as a result of the
offense” and the “income, resources, and obligations of the defendant.” Minn.
Stat. § 611A.045, subd. 1(a) (2020). A di strict court has broad discretion to order
restitution. Andersen, 871 N.W.2d at 913. But an o ffender is permitted to challenge the
results or calculations of restitution following a restitution order. Minnesota Statutes
section 611A.045, subdivision 3(a), plainly establishes the guidelines for such a challenge
to restitution, including the procedural timing, petition requirements, and the challenger’s
required burden of production, stating:
At the sentencing, dispositiona l hearing, or hearing on
the restitution request, the offe nder shall have the burden to
produce evidence if the offend er intends to challenge the
amount of restitution or specific items of restitution or their
dollar amounts. This burden of production must include a
detailed sworn affidavit of the offender setting forth all
challenges to the restitution or items of restitution, and
specifying all reasons justifying dollar am ounts of restitution
6
which differ from the amounts requested by the victim or
victims.

(Emphasis added.) See also State v. Smith, 876 N.W.2d 310, 336 (Minn. 2016) (“Under
Minn. Stat. § 611A.045, subd. 3(a), the offender bears the in itial burden of production to
challenge a restitution request.”).
Because this restitution statute does not expressly authorize a district court to
sua sponte raise the is sue of whether a defendant has me t this burden of pleading and
production, we turn to caselaw to discern whether the court in fact has such authority. That
precedent affirms the centrality of a victim’s right to restitution. See State v. Maidi ,
537 N.W.2d 280, 286 (Minn. 1995 ) (stating that legislative hi story of Minnesota Statutes
section 611A.045 shows the restitution statut e was intended primar ily to compensate
victims); State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984) (indicating the primary purpose
of restitution is to compensate the victim). Because a victim is not a party to the case, and
the victim has a right to restitution, the Mi nnesota Supreme Court has concluded that a
district court has the authority to address a victim’s right to restitution—even when a victim
does not request it. State v. Gaiovnik , 794 N.W.2d 643, 652 (M inn. 2011) (affirming
restitution even though the victim did not make a restitution claim). But even with this
duty in mind, the district court is required to remain impartial and act with neutrality in its
rulings. See Minn. Code Jud. Conduct Canon 2 (“ A Judge Shall Perform the Duties of
Judicial Office Impartially, Co mpetently, and Diligently.”); State v. Miller,
842 N.W.2d 474, 479 (Minn. App. 2014), rev. denied (Minn. Apr. 15, 2014) (citing United
7
States v. Leon, 468 U.S. 897, 917 (1984) (noting that “[j]udges . . . are not adjuncts to the
law enforcement team”)).
Applying the logic of this precedent, we concluded in Miller that a district court
may sua sponte order a rehearing on the i ssue of restitution, a lthough not expressly
authorized under the statute to do so . 842 N.W.2d at 479. The facts in Miller aid our
understanding of its holding. There the district court found that the state had not adequately
represented the victim’s restitution intere sts in the initial hearing and—sua sponte—
ordered a second hearing, where an additional witness testified. Id. at 476. We concluded:
The victim, an interested, typi cally unrepresented nonparty to
the criminal proceeding, has ri ghts and interests aligned with
but independent of the state’s interests. This independent right
authorizes the district court to order restitution even when the
victim does not request it.

Id. at 479. Although Miller is factually distinguishable from this case, the underlying
principles remain the same—the district court has a right to vindicate a victim’s rights to
restitution.
4 Id. And that same principle applies here —just as a district court retains the
power to sua sponte order an additional res titution hearing, it may raise the issue of a
defendant’s burden of production. And here, Secord’s lack of detail in his affidavit
challenging restitution and add itional briefing infringes on W. H.’s and R.H.’s ability to

4 Secord cites to Steward v. State to argue that the district court cannot raise an issue that
was not timely asserted. 950 N.W.2d 750, 754 n.4 (Minn. 2020). But the issue implicated
in Steward was the state’s ability to challenge the scope of a Minnesota Rule of Criminal
Procedure 27.03 motion—a right afforded to all parties in a criminal proceeding. This is
distinguishable from the district court’s duty to vindicate the rights of a victim, who is
otherwise not a party to a criminal proceeding, exclusively in the area of restitution.
8
receive restitution. Accordingly, the district court did not act partially by sua sponte ruling
on an issue not raised by the state—that Secord did not meet his burden of production.
Still, Secord contends that the victim’s rights addressed in Miller must be weighed
against his “equally-important” right to cha llenge restitution. But Secord’s right to
challenge restitution was not denied. When given his statutory o pportunity to offer a
detailed challenge to restitution, he instea d provided curs ory opposition. While it is
Secord’s right to not testify at trial or any of the hearings involving restitution, it is hard to
see how failing to do so results in the district court denying him his ability to challenge
restitution.
In sum, in light of the clear purpose of th e restitution statute to protect victims, the
district court’s duty to protect a victim’s right to restitution, and the rationale explained in
Miller, we conclude that the district court is allowed to raise issues sua sponte if it is closely
tied to a victim’s right to restitution. Acco rdingly, the postconviction court did not abuse
its discretion when affirming the district court’s sua sponte conclusion.
II. The postconviction cour t properly determined that Secord did not meet his
burden of production in his challenge to restitution.

Having determined that the district court could sua sponte raise the issue of Secord’s
burden of production, we turn to whether th e postconviction court erred by affirming the
district court’s conclusion that Secord did not meet his burden of production and,
accordingly, waived his right to challenge the amount of restitution.
Recall a challenger’s required burden of productio n under the restitution statute.
Minn. Stat. § 611A.045, subd. 3(a). Consider ing this statute, we explained that the
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restitution statute requires “that the offender fully plead his or her position in the affidavit”
and pointed to “the legislature’s insistence that the affidavit be ‘detailed.’” State v. Thole,
614 N.W.2d 231, 235 (Minn. App. 2000). And we emphasized that a valid dispute over a
challenge to restitution “arises only after an offender meets the threshold burden of raising
a specific objection by affidavit” and that until that burden is met, “the district court need
not determine whether restitutio n is justified by a prepon derance of the evidence.” Id.
Accordingly, we held that an offender waives the right to challenge an item of restitution
by failing to identify specifically the nature of the challenge in a sworn affidavit. Id. at
235.
Here, Secord failed to meet this threshold burden. His affidavit challenging the
$9,876.55 figure, specifically stated:
8. I believe there is no competent evidence to establish
these out of pocket losses under Minn. Stat. § 611A.04
subd. 1.

9. Further the information su bmitted relating to restitution
does not describe the items or elements of loss, under
Minn. Stat. § 611A.04 subd. 1. There is no evidence
about how these items were obtained and how much
they paid for these items.

10. Further, the [complainants’] affidavit did not specify the
reasons justifying these amounts, if restitution is in the
form of money or property under Minn. Stat. § 611A.04
subd. 1. The trial testimony consisted of “what antique
dealers” supposedly told them and searches on eBay.
The condition of the items was in dispute during the
course of trial.

11. I completely disagree with the [complainants’]
assessment that these “an tiques” were in pristine
condition.
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12. Further, the [complainants] recovered some of the items
and they are still claiming losses on the recovered
property.

13. I therefore request a res titution hearing to determine a
different amount of restitution awarded to [R.H.] and
[W.H.].

But nowhere in the affi davit does Secord specifically id entify any item of restitution he
sought to challenge or any amounts. Instead he broadly asserted that the valuation was in
error.
This does not satisfy the “detail” requireme nt found in the governing statute. For
these reasons, we conclude that Secord waiv ed his right to challenge the amount of
restitution or specific items of re stitution or their dollar amount.
5 Even if we considered
the additional posthearing briefing and the testimony on cross examination, Secord did not
provide the district court with any specificity to what the actual value of any of the 20 items
were. Instead of providing any information to disprove the amounts claimed by R.H.,
Secord attempted to poke holes at her methodology used to determine her figures, and then
zeroed out any of the items he disagreed with when he ca lculated his competing $720

5 Secord also contends that th e issue of the sufficiency of th e affidavit is actually moot
because a contested hearing wa s held. To support this argument, Secord cites to State v.
Holmberg, 527 N.W.2d 100 (Minn. A pp. 1995). This court in Holmberg found that a
defendant challenging the probable cause after conviction was irrelevant. 527 N.W.2d at
103. Secord reasons that the timing of the hearing here is e quivalent to the timing of the
conviction in relation to the criminal complaint in Holmberg, so the affidavit matter should
be considered moot. But we found Holmberg ’s argument irrelevant because it was more
appropriate for Holmberg to challenge his conviction under a sufficiency-of-the-evidence
standard, not because of the timing of the hearing date. Id. Secord’s comparison to
Holmberg is not persuasive.
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figure. This is not sufficiently detailed to c onstitute a valid challenge to restitution. And
the postconviction court did not err by concluding the same.
In sum, the postconviction court did not abuse its discretion when upholding the
district court’s conclusion that Secord had waived his right to challenge the amount of
restitution.
Affirmed.