State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1270

State of Minnesota,
Respondent,

vs.

Michael Phillip Cloutier,
Appellant.

Filed February 22, 2022
Affirmed in part and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-20-4377

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

Michael O. Freeman, Hennepin County Atto rney, Nicole Cornal e, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Jesson, Judge; and
Rodenberg, Judge.

SYLLABUS
The state does not bear the burden of producing evidence of or proving a defendant’s
ability to pay restitution.

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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OPINION
JESSON, Judge
After sentencing appellant, the district court ordered him to pay $7,500 in restitution
for funeral expenses. Appella nt presently has no income bu t may be eligible for some
Social Security income when he is released from prison. Appellant challenges the district
court’s restitution order, arguing that (1) the state did not carry its burden to show that he
had the ability to pay restitution, (2) the distri ct court failed to consider his ability to pay
and made clearly erroneous fact findings, and (3) the district court failed to specify a
payment schedule. Because it is not the state’ s burden to produce evidence of or prove a
defendant’s ability to pay restitution and becaus e the district court ad equately considered
appellant’s ability to pay, we affirm on those two issues. But we remand on the third issue
for the district court to assi gn responsibility to a proper pe rson for developing a payment
schedule or structure for appellant.
FACTS
Appellant Michael Phillip Clout ier stabbed his girlfriend (t he victim) in the neck
and chest in February 2020. When the vic tim later died, responden t State of Minnesota
amended its original complaint to charge Cloutier with seco nd-degree intentional murder
and second-degree unintentional felony murder. Cloutier pleaded guilty to second-degree
unintentional felony murder.
The district court ordered a presentence i nvestigation. With regard to Cloutier’s
recent work history, the presentence-inve stigation report noted that he had an
emergency-medical-technician certification, which he maintained for some time. He also
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completed the personal-care-attendant portion of a community health and medical program
at a community college so that he could serve as the victim’s personal care attendant. He
earned $10 per hour as the victim’s personal care attendant, acted as the victim’s payee for
Social Security Disability benefits, and accepted other tempor ary job assignments
occasionally to increase his income. He was intermittently employed in various jobs from
2015 to 2018. However, at the time of the report, he had no income or savings.
Looking further back into Cloutier’s employ ment history, the report noted that he
was in the army for about two years before being honorably discharged. But he did not
qualify for a military pension because he termin ated service early. Cloutier then worked
for the United States Postal Service for a short time until joinin g the Chicago Fire
Department, where he worked for 15 years. He later liquidated his fire-department pension
during a divorce settlement with his ex-wife.
At the sentencing hearing, the district court convicted Cloutier and sentenced him
to 162 months in prison, at least two-thirds of which (or nine years) Cloutier would serve
in prison. Cloutier was 66 years old at sentencing. The district court also ordered Cloutier
to pay $7,500 in restitution to the Minnesota Crime Victim s Reparations Board for its
payment of funeral expenses to the victim’s family.
Cloutier moved the district court to eliminate or reduce the restitution order, arguing
that he will be unable to pay it. In both his supporting affidavit and his testimony at a
restitution hearing, Cloutier asse rted that he has no job in prison, cannot collect Social
Security benefits while in prison, and has no assets, including any “retirement accounts.”
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The district court denied appellant’s motion, upholdi ng the restitution order and
amount. It stated that there is no reason Cl outier cannot work while in prison and that
“there is no deadline for the restitution to be paid in this case.” And it reasoned that
Cloutier would receive Social Security inco me and “presumably” pension income from
which he could make small payments after being released from prison. Cloutier appeals.
ISSUES
I. Is it the state’s burden to produce evidence of or prove a defendant’s ability to pay
restitution?
II. Did the district court adequately consider Cloutier’s ability to pay?
III. Did the district court comply with the statutory requirement that it include a
provision for a payment schedule in its restitution order?
ANALYSIS
Cloutier contends that the state bears the burden to prove his ability to pay restitution
and that the state did not meet that burden here . He further argues that the district court
abused its discretion by failing to adequately consider his ability to pay and failing to order
a payment schedule. We address each of these arguments in turn. In doing so, we review
the district court’s findings of fact for clear error and its ultimate order of restitution for an
abuse of discretion. State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015).
I. The state does not bear the burden of producing evidence of or proving a
defendant’s ability to pay restitution.

The question of whether the state bears the burden of producing evidence of or
proving a defendant’s ability to pay requires us to analyze Minneso ta Statutes section
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611A.05 (2018) (the restitution statute). We review this issue of statutory interpretation
de novo. See State v. Wigham, 967 N.W.2d 657, 662 (Minn. 2021) (interpreting restitution
statute). Our goal in interpretin g statutes is to ascertain and effectuate the legislature’s
intent. Roberts v. State, 945 N.W.2d 850, 853 (Minn. 2020). When interpreting a statute,
we first determine whether it is ambiguous, meaning it is subject to “more than one
reasonable interpretation.” State v. Gibson, 945 N.W.2d 855, 857 (Minn. 2020) (quotation
omitted). We look to the plain meaning and context of the statute’s language to determine
whether it is ambiguous. Id. at 857-58. If it is unambiguous, we apply the statute’s plain
meaning without resorting to further statutory construction. Minn. Stat. § 654.16 (2020);
State v. Barrientos, 837 N.W.2d 294, 298 (Minn. 2013).
The portion of the restitution statute at issue here provides that a defendant has the
initial burdens to (1) contest restitution and (2) produce evidence, in the form of an
affidavit, stating his challenges to restitution. Minn. Stat. § 611A.045, subd. 3(a) (2020).
If the defendant carries these burdens, the burde n shifts to the state to “demonstrat[e] the
amount of loss sustained by a victim as a result of the offense and the appropriateness of a
particular type of restitution.” Id.; see also State v. Thole , 614 N.W.2d 231, 235 (Minn.
App. 2000) (reiterating these statutory burdens).
Applying our rules of statutory interpreta tion, we determine that the restitution
statute unambiguously does not place the burden of producing evidence of or proving the
defendant’s ability to pay on the state. The statute’s plain language places two burdens on
the state after the defendant carries the initial burden. First, the state must “demonstrat[e]
the amount of loss sustained by a victim,” wh ich simply means that the state must show
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the monetary value or other quantity of the victim’s damages. Minn. Stat. § 611A.045,
subd. 3(a). Second, the state must demonstrate “the appropriateness of a particular type of
restitution.” Id. (emphasis added); State v. Keehn , 554 N.W.2d 405, 407 (Minn.
App. 1996) (“The burden of substantiati ng the . . . type of restitution is on the
prosecution.”), rev. denied (Minn. Dec. 17, 1996). Impor tantly, this second burden does
not require the state to produ ce evidence of or prove the appropriateness of restitution
generally. Instead, it requires the state to demonstrate that the type of restitution that is
requested is an appropriate form of restitution. See, e.g., Minn. Stat. § 611A.04, subd. 1
(2020) (stating that restitution requests ma y include, but are not limited to, medical,
therapy, lost-wage, funeral, and other expenses); Keehn, 554 N.W.2d at 407 (noting that
various kinds of losses may be compensated through restitu tion). Restitution need not
always be financial. It often comes in the form of reimbursing certain expenses, but in
some cases, it may be, for example, repair ing a damaged item or repainting a marred
building. The state must demonstrate that, given the facts of the case, the type of restitution
requested is appropriate. In sum, while th e state bears the burden of demonstrating the
amount of loss and appropriateness of the type of restitution, the state does not bear the
burden of producing evidence of or proving the defendant’s ability to pay restitution.
We further note that the only time the restit ution statute refers to the defendant’s
ability to pay is when it lists f actors that the district court must consider in determining
whether to order restitution. Minn. Stat. § 611A.045, subd . 1(a) (2020) (“The court, in
determining whether to order restituti on and the amount of the restitution, shall consider
the following factors: (1) the amount of economic loss sustained by the victim as a result
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of the offense; and (2) the income, resources, and obligations of the defendant.” (Emphasis
added.)). The language “income, resources, and obligations of the defendant”—what
Minnesota appellate courts term the defendan t’s ability to pay—appears nowhere else in
the statute. In other words, what the district court must consider in determining whether to
order restitution and what the state must prove in advocating for restitution are different.
This supports our plain-lan guage understanding that the re stitution statute does not place
the burden of producing evidence of or proving the defendant’s ability to pay on the state.1
And finally, as a practical ma tter, it is the defendant, no t the state, who will have
information about the defendant’s own ability to pay. In contrast, the evidence relevant to
the state’s burdens—showing the victim’s (or victim’s family’s) damages and the
appropriateness of a type of restitution—is mo re readily accessible to the state because it
is often working more closely with the victim (or victim’s family). To hold otherwise and

1 Although the restitution statute’s plain language alone persuades us that the state does not
bear this burden, we also observe that our interpretation is consistent with prior Minnesota
caselaw. Albeit in a nonprecede ntial opinion, we concluded in State v. Gboeah that the
state does not bear the burden of proving a defendant’s ability to pay. No. A19-0796, 2020
WL 522183, at *2 (Minn. App. Feb. 3, 2020). Because Gboeah addressed the precise issue
we consider here, we cite it for its persuasive value. Minn. R. Civ. App. P. 136.01, subd.
1(c) (“[N]onprecedential opinions may be cited as persuasive authority.”). And, although
this issue was alluded to in Wigham, it was not directly before the supreme court in that
case. See generally Wigham, 967 N.W.2d 657. Neverthele ss, we note that the supreme
court nowhere suggested that producing evidence about or proving the defendant’s ability
to pay is the state’s responsibility. Id. Instead, the supreme court discussed various
potential sources of that information, incl uding presentence-investigation reports and
defendants’ own testimony regarding their ability to pay. Id. at 665.
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place the burden on the state would lead to discovery requests—a process not contemplated
by the restitution statute.2
Still, Cloutier argues that our prior decision in Thole supports his position. But in
Thole, we merely restated and paraphrased the statutory language setting out the state’s
burden: “the prosecuti on bears the burden of proving the propriety of the restitution.”
614 N.W.3d at 235. Although that paraphrase provides room for appellant’s interpretation,
the plain language of the statute trumps th at interpretation. Mi nn. Stat. § 611A.045,
subd. 3(a). That language places on the state only the burdens to show, as a factual matter,
the victim’s damages and the propriety of the type of restitution. Neither of those showings
involves producing evidence of or proving the defendant’s ability to pay.
We therefore hold that the restitution statute does not place on the state the burden
of producing evidence of or proving a defendant’s ability to pay restitution.
II. The district court adequately considered Cloutier’s ability to pay restitution.
To address the ability-to-pay issue, we again begin with the restitution statute, which
requires the district court to “consider . . . the income, resources, and obligations,” or
ability to pay, of the defendant when determining restitution. Id., subd. 1(a). Although the
district court need not make specific finding s on the defendant’s income, resources, and
obligations, it must “expressly state, either orally or in writing, that it has considered” those
factors. Wigham, 967 N.W.2d at 659; see also State v. Miller, 842 N.W.2d 474, 479 (Minn.
App. 2014), rev. denied (Minn. Apr. 15, 2014). And the record must contain sufficient

2 Minnesota Rule of Criminal Procedure 9 governs discovery during criminal cases, but
there is no rule governing discovery after conviction.
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evidence about those factors to facilitate the district court’s consideration of them.
Wigham, 967 N.W.2d at 659.
Here, the district court explicitly found that Cloutier may be unable to pay restitution
while incarcerated if he does not work. But it also noted that there was no evidence that
Cloutier could not work and earn money while incarcerated. And it found that Cloutier
would receive Social Security income upon re lease and would be ab le to make “small
payments” from that money. The record supports these fi ndings. Further, the amount
Cloutier must pay is relatively sm all compared to other cases. See, e.g. , id. at 660
(recounting that appellant was ordered to pay $87,500); Steinbuch v. State ,
589 N.W.2d 464, 466 (Minn. 1999) (affirming $30,762.28 award); State v. Maidi ,
537 N.W.2d 280, 285-86 (Minn. 1995) (requi ring defendant to pay $147,251.27 despite
incarceration). Because the district court made explicit findings about Cloutier’s ability to
pay and the record contains sufficient evidence to support those findings, we conclude that
the district court did not abuse its discretion in its consideration of Cloutier’s ability to pay.
Still, Cloutier argues that the district court’s findings that (1) there was no testimony
about his pensions, (2) the presentence-investig ation report stated that he held jobs that
“traditionally pay pensions,” and (3) he would “presumably” receive pension income are
clearly erroneous. Because the evidence in the record contradicts these three findings, we
agree with Cloutier. But error without prejudice is not grounds for reversal. Loth v. Loth,
35 N.W.2d 542, 546 (Minn. 1949). The dist rict court’s other findings, including that
(1) there is no reason Cloutier cannot work while in prison and (2) Cloutier will receive
Social Security income upon his release, are supported in the record. Those findings show
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that the district court considered Cloutier’s ability to pay. And, in Wigham, the supreme
court reiterated that the restitution statute a llows flexibility in ho w the district court
considers the defendant’s ability to pay. Wigham, 967 N.W.2d at 663. Thus, we discern
no reversible error.
III. We remand to the district court for it to assign responsibility for developing a
payment schedule or structure for Cloutier.

Turning finally to Cloutier’s argument that the district court failed to establish a
payment schedule, the restitution statute provides that the district court “shall include in
every restitution order a provision requiring a payment schedule or structure.” Minn.
Stat. § 611A.045, subd. 2a (2020). The dist rict court may also assign responsibility for
developing a payment schedule to “the court administrator, a probation officer, or another
designated person” who must consider information supplied by the defendant in setting the
schedule. Id. In Wigham, the supreme court stated that a restitution order must provide
either a payment schedule or structure or assign responsibility for developing a schedule
or structure to a qualified person. 967 N.W.2d at 662, 666.
Here, the district court declined to impose a deadline for Cloutier to pay restitution.
Further, it stated that Cloutier will be ab le to make small payments—implying an
installment schedule—from his Social Security income upon release. But stating that there
is no deadline for restitution to be paid and merely implying an installment schedule does
not comply with the restitution statute’s require ment for a payment schedule or structure.
Nor did the district court utilize the alternative approach: to assign responsibility to another
person to create a payment schedule or struct ure for Cloutier. We recognize the district
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court’s efforts to impose a reasonable requirement on Cloutier given his imprisonment and
limited assets. And we understand the district court’s reticence to set a payment schedule
years in advance of Cloutier’s release. We fi nally observe that the district court did not
have the benefit of guidance from the supreme court’s decision in Wigham. We therefore
remand on this narrow issue for the district court to assign responsibility for creating a
payment schedule or structure to a proper person under the restitution statute and Wigham.
DECISION
We hold that the state does not bear the burden of producing evidence of or proving
Cloutier’s ability to pay restituti on. And on this record, th e district court adequately
considered Cloutier’s ability to pay and therefore did not abuse its discretion on that issue.
Finally, we remand to the district court for the limited purpose of assigning responsibility
to a proper person for developing a payment schedule or structure for Cloutier.
Affirmed in part and remanded.