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This opinion is nonprecedential except as provided by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
A25-1342

State of Minnesota,
Respondent,

vs.

Donald Arthur Merrill,
Appellant.

Filed June 22, 2026
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Otter Tail County District Court
File No. 56-CR-24-941

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

Michelle M. Eldien, Otter Tail County Attorney, Ruth E. Rosengren, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his conviction for unlawful possession of a firearm, arguing
that he should be allowed to withdraw his guilty plea. Alternatively, appellant argues that
the district court abused its discretion in ordering restitution and by denying his motion for
2
a downward dispositional departure . We affirm appellant’s conviction and sentence, but
we reverse and remand the district court’s restitution order for an express statement that
the district court considered Merrill’s ability to pay restitution as ordered.
FACTS
In April 2024, respondent State of Minnesota charged appellant Donald Arthur
Merrill with first-degree burglary, felony theft, possession of burglary tools, and unlawful
possession of a firearm. The state alleged that Merrill, who is prohibited from poss essing
firearms, drove his son to a bar, his son broke into the bar and stole a firearm, and Merrill
drove his son away from the bar after the burglary. Merrill’s son was criminally charged
for his involvement in the burglary in a separate criminal case.
In May 2024, victim R.B. filed a restitution affidavit in Merrill’s case seeking $900,
the alleged value of the stolen firearm.
In March 2025, Merrill appeared before the district court with counsel and pleaded
guilty to unlawful possession of a firearm. In setting forth a factual basis, Merrill admitted
that he took possession of the stolen gun and hid it in his residence. The state dismissed
the remaining charges . The district court accepted Merrill’s guilty plea and entered a
judgment of conviction. Merrill did not submit a petition to plead guilty, and t he parties
did not discuss the issue of restitution at the plea hearing.
In April 2025, Merrill moved for a downward dispositional departure, arguing that
he was particularly amenable to probation. Later, before sentencing, Merrill moved to
withdraw his guilty plea. The district court denied Merrill’s motion to withdraw his plea,
denied his request for a dispositional departure, and sentenced him to serve 60 months in
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prison, a presumptive sentence. The district court also ordered Merrill to pay “joint and
several” restitution. Specifically, the district court ordered Merrill to pay $900 in
restitution to R.B. based on the affidavit submitted in this case and $1,393.59 in restitution
to victim V.P. based on information submitted in his son’s case. Merrill did not object to
or otherwise challenge the restitution order in district court.
Merrill appeals.
DECISION
I.
Merrill contends that the district court erred in denying his motion for plea
withdrawal. The Minnesota Rules of Criminal Procedure provide that a court must permit
a defendant to withdraw a guilty plea at any time to correct a manifest injustice and that it
may permit withdrawal when a motion is made prior to sentencing if it is “fair and just to
do so,” giving “due consideration to the reasons advanced by the defendant in support of
the motion and any prejudice the granting of the motion would cause the prosecution by
reason of actions taken in reliance upon the defendant’s plea.” Minn. R. Crim. P. 15.05,
subds. 1, 2. Merrill argues that he is entitled to plea withdrawal under both the fair -and-
just and manifest-injustice standards. We address each standard in turn.
Fair-and-Just Standard
We review the denial of a plea -withdrawal motion under the fair -and-just standard
for an abuse of discretion. State v. Raleigh, 778 N.W.2d 90, 97 (Minn. 2010). “A district
court abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn.
4
2019) (quotation omitted). “The fair and just standard requires district courts to give due
consideration to two factors: (1) the reasons a defendant advances to support withdrawal
and (2) prejudice granting the motion would cause the State given reliance on the plea.”
Raleigh, 778 N.W.2d at 97 (quotations omitted). The defendant “bears the burden of
advancing reasons to support withdrawal ,” and the state “bears the burden of showing
prejudice caused by withdrawal.” Id.
Merrill filed a letter in support of his plea-withdrawal motion asserting that, prior to
pleading guilty, his attorney showed him video evidence that he previously had not seen,
which caused him to panic and commit perjury by pleading guilty.
In denying Merrill’s plea-withdrawal motion, the district court noted the following
circumstances: (1) Merrill asked to plead guilty at a hearing originally intended to address
motions in limine, (2) Merrill’s trial rights were discussed at that hearing, and he said that
he had not been pressured or coerced into pleading guilty, and (3) it was not Merrill’s “first
time in court.” The district court stated that nothing showed that Merrill’s guilty plea “was
anything but a voluntary plea.” Although the district court noted that the state had not
made a “strong argument” regarding prejudice that could have resulted from plea
withdrawal, it reasoned that Merrill’s claim that he was surprised by new video evidence
was meritless because the probable-cause portion of the charging document mentioned that
there was surveillance video from the crime scene . The district court therefore denied
Merrill’s motion.
The record supports the district court’s reasoning . As the district court noted,
Merrill’s assertion that he pleaded guilty because he was surprised by new video evidence
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is undercut by the probable-cause portion of the complaint , which mentioned the
surveillance video. It also mentioned law enforcement’s discussions with “an individual”
who “confirmed” that Merrill and his son “both arrived home together” after the burglary.
In sum, because Merrill did not advance a substantiated basis for plea withdrawal,
the district court did not abuse its discretion in denying his request. See id. at 98 (“Given
that Raleigh failed to advance substantiated reasons for withdrawal of his plea, we hold
that the district court did not abuse its discretion in denying [his] motion to withdraw his
guilty plea under the fair and just standard . . . .”) (quotation omitted)).
Manifest-Injustice Standard
“At any time the court must allow a defendant to withdraw a guilty plea upon a
timely motion and proof to the satisfaction of the court that withdrawal is necessary to
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest injustice exists
if a guilty plea is not valid. ” Raleigh, 778 N.W.2d at 94. “To be constitutionally valid, a
guilty plea must be accurate, voluntary, and intelligent.” Id. “A defendant bears the burden
of showing his plea was invalid.” Id. Whether a plea is valid is a question of law that we
review de novo. Id.
Merrill asserts that he is entitled to plea withdrawal because his guilty plea was
unintelligent. “The intelligence requirement ensures that a defendant understands the
charges against him, the rights he is waiving, and the consequences of his plea.” Id. at 96.
Merrill argues that his guilty plea was unintelligent because he was not informed
that he could be ordered to pay restitution. Merrill relies on State v. Noreen, in which we
remanded for plea withdrawal or resentencing because the district court ordered restitution
6
that was not bargained -for in the plea agreement. 354 N.W.2d 77, 78 -79 (Minn. App.
1984). We stated that a “defendant must understand the consequences of his plea.” Id. at
78.
But in a more recent case, State v. Anderson, we rejected a claim that a restitution
order violated the terms of a plea agreement and therefore required either resentencing or
withdrawal of the underlying guilty plea. 507 N.W.2d 245, 246 (Minn. App. 1993), rev.
denied (Minn. Dec. 22, 1993). Anderson argued that, “because restitution was not
discussed or contemplated by the plea agreement ,” the restitution order violated the plea
agreement. Id. at 247. In rejecting that argument, we reasoned that Anderson “should have
been aware that the victim might seek and the court might order restitution” because
Anderson received a presentence investigation report ( PSI) prior to sentencing that
recommended restitution, as well as an affidavit itemizing the victim’s losses. Id.
Although the possibility of restitution was not mentioned when Merrill pleaded
guilty, the record shows that R.B. filed a restitution affidavit with the district court in
Merrill’s case —before Merrill pleaded guilty —requesting restitution in the amount of
$900 for a loss resulting from the charged offense. In addition, the PSI in Merrill’s case
recommended restitution, including “joint and several restitution” based on his son’s
criminal case stemming from the underlying offense. More specifically, the PSI identified
R.B. as a “victim” with a restitution amount of $900 and V.P. as a “victim” with a
restitution amount of $ 1,393.59. Like the defendant in Anderson, Merrill “should have
been aware that the victim might seek and the court might order restitution.” Id.
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In sum, Merrill’s assertion that he was unaware that restitution could be ordered as
a consequence of his guilty plea is not supported by the record, and he has not met his
burden to show that his guilty plea was unintelligent. Thus, the district court did not err by
determining that Merrill was not entitle d to withdraw his guilty plea under the manifest -
injustice standard.
II.
Merrill contends that the district court abused its discretion in ordering restitution.
We review a district court’s restitution order for an abuse of discretion. State v. Andersen,
871 N.W.2d 910, 913 (Minn. 2015). “A district court abuses its discretion when its
decision is based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Garland , 942 N.W.2d 732, 742 (Minn. 2020) (quotation omitted).
However, questions regarding the district court’s authority to order restitution are questions
of law subject to de novo review. Andersen, 871 N.W.2d at 913.
Restitution to V.P.
Merrill argues that because V.P. did not submit a restitution affidavit in Merrill’s
case, the district court lacked legal authority to order restitution to V.P. More specifically,
Merrill argues that the district court did not comply with Minn. Stat. § 611A.04, subd. 1(a)
(2024), which establishes a crime victim’s right to receive restitution.1 The state counters

1 To determine the amount of restitution owed, information from the victim must be
obtained “in affidavit form or by other competent evidence.” Minn. Stat. § 611A.04, subd.
1(a). That affidavit or evidence “must describe the items or elements of loss, item ize the
total dollar amounts of restitution claimed, and specify the reasons justifying these
amounts.” Id. Additionally, “to be considered at the sentencing or dispositional hearing,
all information regarding restitution must be received by the court administrator of the
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that, because Merrill did not challenge the district court’s restitution award within 30 days,
as required under Minn. Stat. § 611A.045, subd. 3(b) (2024), his argument is not properly
before us on appeal.2
Although restitution challenges that are brought outside of the 30-day time limit set
forth in Minn. Stat. 611A.045, subd. 3 (2024), are generally forfeited on appeal, appellate
courts “ will consider a challenge made outside of that period under ‘the narrow
circumstances’ where the ‘only challenge is to the legal authority of the court to order
restitution and that challenge was raised in the district court.’” State v. Haynes, 24 N.W.3d
313, 317 (Minn. 2025) (emphasis added) (quoting State v. Gaiovnik, 794 N.W.2d 643, 648
(Minn. 2011). Gaiovnik “recognized a narrow exception to [the 30-day time limit], holding
that a failure to object to a restitution award does not bar an appeal ‘where the only
challenge is to the legal authority of the court to order restitution and that challenge was
raised in the district court .’” State v. Cummings , 2 N.W.3d 528, 532 n.4 (Minn. 2024)
(emphasis added) (quoting Gaiovnik, 794 N.W.2d at 648). In short, a criminal defendant
cannot challenge the district court’s legal authority to order restitution unless he first raises
the issue in district court.

appropriate court at least three business days before the sentencing or dispositional
hearing.” Id. But “[t]he issue of restitution is reserved or the sentencing or dispositional
hearing or hearing on the restitution request may be continued if the victim’s affidavit or
other competent evidence submitted by the victim is not received in time.” Id.
2 The state also argues that a restitution affidavit was filed in Merrill’s son’s case on August
8, 2024, and that the affidavit lists damages to the burglarized bar totaling $1,393.59. The
state further argues that the affidavit was supported by detailed receipts. But the restitution
affidavit in Merrill’s son’s case was not filed in Merrill’s case.
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Merrill acknowledges that he did not challenge the district court’s legal authority to
order restitution to V.P. in the district court. But he asserts that he may raise this challenge
for the first time on appeal because , as recognized in Evans v. State, a court “may at any
time correct a sentence not authorized by law.” 880 N.W.2d 357, 359 -60 (Minn. 2016)
(quotation omitted) . The Evans court concluded that “[a] motion to correct a sentence
under Minn. R. Crim. P. 27.03 is a proper method to challenge a district court’s legal
authority to award restitution when the motion does not impact the underlying conviction.”
Id. at 358.
Merrill’s reliance on Evans is unavailing because unlike the appellant in Evans,
Merrill did not file a motion to correct his sentence under Minn. R. Crim. P. 27.03 in district
court. See id. at 359 (stating that “Evans filed a motion to correct his sentence under Minn.
R. Crim. P. 27.03, subd. 9”). Because Merrill did not challenge the order for restitution to
V.P. in the district court, that issue is forfeited in this appeal. 3 See Haynes, 24 N.W.3d at
318 (“Because Haynes did not first raise his challenges to the restitution award in the

3 Because the issue is forfeited, we do not determine whether a violation of Minn. Stat.
§ 611A.04, subd. 1(a), should result in a remand to further develop the sentencing record
if a defendant fail ed to object to a restitution order in the district court. See State v.
Johnson, 31 N.W.3d 566, 575-76 (Minn. App. 2026) (reversing and remanding “to allow
the state to further develop the sentencing record so that the court can make a proper
determination” regarding inclusion of a defendant’s out-of-state convictions in his criminal
history score at sentencing when the defendant did not object to the inclusion); State v.
Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008) (“The record indicates that [the
defendant] did not object to the district court ’s determination that his out -of-state
convictions were felonies. Thus, on remand, [the state] is permitted to further develop the
sentencing record so that the district court can appropriately make its determination.”), rev.
denied (Minn. July 15, 2008).
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district court, we conclude that those challenges are forfeited and therefore are not properly
before us on appeal.”).
Ability to Pay
Merrill also argues that the district court abused its discretion in awarding restitution
because it “did not expressly state either orally at sentencing or in the written sentencing
order that it had considered Merrill’s ability to pay the requested restitution.” The state
argues that the record and the PSI contain sufficient information regarding Merrill’s ability
to pay.
Under Minn. Stat. § 611A.045, subd. 1 (2024), in determining whether to order
restitution, a district court must consider “the income, resources, and obligations of the
defendant.” In State v. Wigham, the supreme court stated:
When ordering restitution under Minn. Stat. § 611A.045, subd.
1 . . . , 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 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.

967 N.W.2d 657, 659 (Minn. 2021) (emphasis added).
In short, “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”
and the record includes “sufficient evidence about the defendant’s income, resources, and
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obligations to allow a district court to consider the defendant’s ability to pay the amount of
restitution ordered.” Id. at 664-65.
Here, the PSI included information regarding Merrill’s education and employment.
It stated that Merrill had worked as a roofer for around ten years, that he is disabled, and
that he receives supplemental security income totaling $970 per month. Although the PSI
contained information relevant to Merrill’s income and ability to pay, the district court did
not “expressly state, either orally or in writing,” that i t considered Merrill’s “income,
resources, and obligations.” See id. at 659. The district court therefore abused its discretion
in awarding restitution.
The state cites State v. Alexander , 855 N.W.2d 340 (Minn. App. 2014) , for the
proposition that a district court sufficiently considers a defendant’s ability to pay if the PSI
contains information regarding the defendant’s income, resources, and obligations. But
Alexander predates Wigham, and Wigham clearly requires an express statement from the
district court that it considered a defendant’s ability to pay.
In sum, w e reverse the district court’s order for joint-and-several restitution and
remand for an express statement that the district court considered Merrill’s ability to pay.
III.
Finally, Merrill contends that the district court abused its discretion in denying his
request for a downward dispositional departure.
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal
offenses and seek to “maintain uniformity, proportionality, rationality, and predictability
in sentencing.” Minn. Stat. § 244.09, subd. 5 (2022). “Consequently, departures from the
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guidelines are discouraged and are intended to apply to a small number of cases.” State v.
Solberg, 882 N.W.2d 618, 623 (Minn. 2016). A district court may depart from the
presumptive sentence only when there are “identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp. 2023).
If substantial and compelling circumstances exist, the district court has broad
discretion to depart, and we generally will not interfere with the exercise of that discretion.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). This court will reverse the district court’s
refusal to depart from the presumptive sentence only in a “rare” case. Id. If the record
shows that the district court “carefully evaluated all the testimony and information
presented before making a determination,” we will not reverse the district court’s refusal
to depart. State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted).
When considering a dispositional departure, the district court focuses “more on the
defendant as an individual and on whether the presumptive sentence would be best for him
and for society.” State v. Heywood , 338 N.W.2d 243, 244 (Minn. 1983). A defendant’s
particular amenability to probation can justify a downward dispositional departure from a
presumptive sentence. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). The requirement
of particular amenability ensures that “the defendant’s amenability to probation
distinguishes the defendant from most others and truly presents the substantial and
compelling circumstances that are nece ssary to justify a departure.” Id. at 309 (quotation
omitted).
Relevant factors for determining whether a defendant is particularly amenable to
probation include the defendant’s age, prior criminal record, remorse, cooperation, attitude
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in court, and support of friends and family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Even if there is evidence that the defendant would be particularly amenable to probation, a
district court is not required to grant a dispositional departure. State v. Olson, 765 N.W.2d
662, 664-65 (Minn. App. 2009).
Merrill argues that the district court failed to consider “the impact [his] chemical
use and dependency had on his criminal history, [his] success in the inpatient treatment
program he completed during pre -trial supervision, and his desire to improve his life
through the long-term, thirteen-month Teen Challenge program.”
At sentencing, the district court stated that it had reviewed the PSI and Merrill’s
departure motion. The court then heard arguments from defense counsel, who discussed
Merrill’s past troubles with chemical dependency and desire to enter and complete a
thirteen-month-long program at Teen Challenge. The court also heard from Merrill, who
commended his counsel’s arguments . The state opposed the motion, noting Merrill’s
extensive criminal history, that “five of [Merrill’s alleged] new offenses were committe d
after his first appearance in this case,” and that Merrill had failed to demonstrate that he
can remain law abiding despite completing treatment several times in the past.
The district court discussed the relevant departure factors and noted the following
circumstances:
• Merrill had “approximately nine to ten pages of
criminal history”;
• the court could not find that Merrill had cooperated with
law enforcement;
• the court “certainly” could not find that Merrill had been
remorseful and respectful in court;
• treatment was available at a respected program;
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• the court previously released Merrill to complete
inpatient treatment followed by outpatient treatment,
and subsequently, a warrant issued for Merrill’s arrest
and he did not turn himself in;
• there were no indications that Merrill successfully
completed all treatment requirements after he was
released from custody because he completed inpatient
treatment but did not complete outpatient treatment;
[and]
• Merrill was charged with new offenses while released
from custody in this case.

The record shows that the district court considered the arguments for and against a
downward dispositional departure. See Pegel, 795 N.W.2d at 255 (stating that we will not
reverse a departure denial if the district court considered the relevant information); see also
State v. Bertsch , 707 N.W.2d 660, 668 (Minn. 2006) (“[W]e will not ordinarily interfere
with a sentence falling within the presumptive sentence range . . . even if there are grounds
that would justify departure.” (quotation omitted)). In sum, this is not a rare case in which
we would reverse the district court’s imposition of a presumptive sentence.
Affirmed in part, reversed in part, and remanded.