State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A23-0387

State of Minnesota,
Respondent,

vs.

Heather Marie Wurtzberger,
Appellant.

Filed October 30, 2023
Affirmed
Bjorkman, Judge

Brown County District Court
File No. 08-CR-21-184

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

Charles W. Hanson, Brown County Attorney, Paul J. Gunderson, Assistant County
Attorney, New Ulm, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Bjorkman , Judge; and
Cleary, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant Heather Marie Wurtzberger argues that the district court abused its
discretion by ordering her to pay $319,041.50 in restitution, jointly and severally with co -
defendants, for collectible items that were stolen during a series of burglaries in February
2021. Wurtzberger contends that the court lacked authority to order restitution for losses
that were not directly caused by the second- degree burglary offense of which she was
convicted. We affirm.
FACTS
F.M. has collected tens of thousands of comic books over the span of 60 years. He
stores them along with other collectibles at his parents’ home (the home) in New Ulm. The
home is unoccupied, but F.M. visits it at least once a month to perform routine
maintenance.
In February 2021, a series of burglaries occurred at the home and many of the comic
books, along with other valuable items such as coins, were stolen. On February 25, police
responded to an alarm at the home. Upon arrival, officers found three individuals leaving
the home. One of them was Wurtzberger. When police searched her person, they found
two flashlights and a cellphone; in the backseat of her car, police observed several empty
totes matching ones later found at Wurtzberger’s home containing rare comic books .
Police knew that Wurtzberger’s son and his cousin were suspects in the earlier burglaries.
A warranted search of the home Wurtzberger shared with her son revealed several boxes
of stolen comic books and jars of coins.
3
Wurtzberger was charged with two counts of second- degree burglary, theft,
receiving stolen property, possession of burglary tools, and trespass. The complaint
references Wurtzberger’s son and his cousin and their suspected involvement in burglaries
at the home that occurred prior to February 25. Pursuant to a plea agreement, Wurtzberger
pleaded guilty to one count of second-degree burglary in exchange for dismissal of the
remaining charges.
1 Wurtzberger also agreed to pay “any restitution . . . joint and several
with the co-defendants.”
At the sentencing hearing, Wurtzberger’s counsel asked the district court to reserve
the issue of restitution, stating:
As far as the restitution goes, I just don’t think we have enough
information at this time to have a true amount. I don’t know if
the—or if the State has any of the comic books in evidence that
could be returned that are listed. So it’s my request at this time
just to reserve that restitution. Maybe set that out for a
restitution hearing so we can get more information on what
comic books were returned, not returned, storage, things of that
nature.

Counsel also noted that the co-defendants had not been sentenced and suggested that the
court hold a joint restitution hearing after those sentencings took place. The district court
agreed and did not impose a fine because of the anticipated, substantial amount of
restitution.
The joint restitution hearing included Wurtzberger and two co-defendants who
pleaded guilty in connection with prior burglaries at the home. The district court found

1 During the plea hearing, which took place remotely via Zoom, Wurtzberger testified that
she reviewed a plea petition with defense counsel and had no questions about it. But no
plea petition was filed.
4
F.M. was qualified to testify that the value of the stolen comic books was $319,041.50.
Because of the size of his collection and the number of burglaries, F.M. was unable to
assign a particular loss to a particular burglary. Wurtzberger argued that the state had not
proven that any part of F.M.’s loss was the direct result of her conduct. The district court
disagreed, stating in a written order that Wurtzberger was “enmeshed in the various
burglaries” at the home and that be cause F.M. could not assign a particular loss to a
particular burglary, she is jointly and severally responsible for restitution in the amount of
$319,041.50.
Wurtzberger appeals.
DECISION
As part of a felony sentence, a district court may order an offender to pay restitution.
Minn. Stat. § 609.10, subd. 1(a)(5) (2020). In awarding restitution, a district court must
consider both the offender’s ability to pay and the loss sustained by the victim of the crime.
Minn. Stat. § 611A.045, subd. 1(a) (2020). “The primary purpose of restitution is to
‘restore crime victims to the same financial position they were in before the crime.’” State
v. Johnson, 851 N.W.2d 60, 65 (Minn. 2014) (quoting State v. Palubicki, 727 N.W.2d 662,
666 (Minn. 2007)). To that end, “when a victim sustains indivisible loss from multiple
defendants’ actions, the sentencing court has the authority to order restitution based on
joint and several liability.” Id. at 66. We review a restitution award for an abuse of
discretion. State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015). A district court abuses
its discretion when it misapplies the law. State v. Boettcher, 931 N.W.2d 376, 380 (Minn.
2019).
5
Wurtzberger does not challenge the amount of restitution F.M. sought or that the
loss directly caused by the series of burglaries is indivisible. But, relying on Boettcher, she
contends that she is only responsible for loss directly caused by the burglary offense she
committed on February 25, which does not include the value of the stolen comic books.
We are not persuaded.
Boettcher was charged with arson and burglary after he broke into, and burned
down, a cabin in northern Minnesota. Id. at 378. A jury found him guilty of burglary but
could not reach a verdict on the arson charge. Id . at 379. The district court ordered
Boettcher to pay restitution for fire damages and clean-up expenses because the arson was
factually related to the burglary. Id. Our supreme court reversed, clarifying that the
“general rule . . . is that a district court may order restitution only for losses that are directly
caused by, or follow naturally as a consequence of, the defendant’s crime.” Id. at 381.
The supreme court expressly noted that the direct-cause standard applies only to
restitution ordered afte r a trial, stating “[p]rinciples that apply to criminal restitution in
guilty-plea cases . . . are inapplicable.” Id. at 381 n.5. This reflects the principle that courts
“generally should not alter the terms of a restitution obligation negotiated as part of a plea
agreement if it materially changes the expectations of the parties to the bargain.” State v.
Meredyk, 754 N.W.2d 596, 604 (Minn. App. 2008). Indeed, the supreme court has honored
a plea agreement in which the defendant agreed to pay restitution to victims who were not
identified in the complaint. State v. Kennedy, 327 N.W.2d 3, 4 (Minn. 1982) (cited with
approval in Boettcher, 931 N.W.2d at 381 n.5). Here, the bargained-for expectation of the
parties was that Wurtzberger would be jointly responsible to pay restitution for the value
6
of the stolen comic books, even though the burglary offense to which she pleaded guilty
did not result in such loss.
Wurtzberger next argues that the state forfeited its argument that she agreed to pay
restitution for the stolen comic books and, in the alternative, that the plea agreement was
too vague to support the restitution award. The record defeats both arguments. First, the
state has consistently grounded its restitution argument on the plea agreement . In its
briefing following the restitution hearing, the state recounted that “restitution was included
as part of the sentence and was part of [Wurtzberger’s] plea agreement, but the amount was
reserved pending a challenge to restitution.” On appeal, the state’s argument is the same.
Second, the record as a whole demonstrates that Wurtzberger agreed to be jointly
and severally responsible for restitution related to the stolen comic books. Wurtzberger
aptly notes the lack of a plea petition and the lack of detail as to restitution presented during
the plea hearing. But when we consider other parts of the record, the scope of the parties’
agreement is clear.
Kennedy guides our analysis. Kennedy was charged with 32 counts of theft and
securities-law violations. Kennedy, 327 N.W.2d at 4. Pursuant to an agreement, Kennedy
pleaded guilty to three counts in exchange for dismissal of the remaining counts but agreed
to pay restitution. Id. On appeal, Kennedy argued that his restitution obligation was only
to the victims of the charges he pleaded guilty to. Id. Our supreme court was not
persuaded, reasoning that
[a]lthough the record made at the time the pleas were entered
does not indicate what the parties contemplated when they used
the word “restitution,” it became clear at the sentencing
7
hearing that what was contemplated was reasonable restitution
based not just on the losses of the parties named in the three
counts but on the losses of all the victims of defendant’s
criminal scheme.

Id. The same is true here.
Other parts of this record clarify the scope of the restitution Wurtzberger agreed to
pay when she entered her guilty plea. In a series of restitution affidavits, F.M. sought to
recover the value of the stolen comic books and coins, nothing else. At the sentencing
hearing, defense counsel asked the district court to leave restitution open because police
continued to recover more of the stolen comic books, and because it made sense to hold a
joint restitution hearing once Wurtzberger ’s co-defendants—neither of whom were
involved in the February 25 burglary—had been sentenced. The district court agreed. And
because the court expected that the restitution amount would be substantial, it did not
impose a fine as part of Wurtzberger’s sentence. The restitution hearing was centered on
F.M.’s testimony as to the quantity and value of the comic books that had been stolen,
nothing else.
In sum, the record reflects that the bargai ned-for agreement of the parties was that
Wurtzberger would pay restitution for the stolen comic books and coins, jointly and
severally with her co- defendants. Accordingly, we discern no abuse of discretion in the
district court’s restitution award.
Affirmed.