State of Minnesota v. Robert Jefferey Stark

This opinion is nonprecedential except as provided by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
A26-0354

State of Minnesota,
Respondent,

vs.

Robert Jefferey Stark,
Appellant.

Filed October 12, 2026
Reversed and remanded
Slieter, Judge*

Hennepin County District Court
File No. 27-CR-19-26299

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Bentley, Judge; and
Slieter, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant Robert Jefferey Stark pleaded guilty to theft by swindle based on his
admission that he stole large sums of money from his bank and former employer. The
district court ordered him to pay approximately $66,000 in restitution. We conclude that
the district court erred by ordering restitution without sufficient evidence in the record
regarding Stark’s ability to pay. Therefore, we reverse and remand for further proceedings.
FACTS
Stark stole large sums of money from his bank and his former employer. In late
2018, Stark used unsupported checks, transfers between accounts, and numerous
withdrawals to swindle the bank out of approximately $18,000. In 2018 and 2019, Stark
deposited five checks meant for his employer into his own account, causing approximately
$48,000 in losses to his former employer.
In October 2019, respondent State of Minnesota filed a complaint in which it
charged Stark with theft by swindle, in violation of
Minn. Stat. § 609.52, subd. 2(a)(4) (2018). In three additional actions, the state also
charged Stark with theft from his former employer, two counts of fifth-degree controlled
substance possession, and one count of fleeing a peace officer.
Pursuant to a global plea agreement, Stark pleaded guilty to three crimes: one count
of theft by swindle, in violation of Minn. Stat. § 609.52, subd. 2(a)(4); and two counts of
fifth-degree controlled-substance possession in violation of Minn. Stat. § 152.025, subd.
2(1) (2020). In exchange for Stark’s guilty pleas, the state dismissed the theft charge and

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the fleeing-a-peace -officer charge and recommended concurrent, stayed sentences of
17 months of imprisonment with a referral to drug court. The agreement contemplated that
the state would seek restitution in both of the theft cases and that Stark reserved the right
to challenge restitution.
In April 2023, the district court sentenced Stark to three concurrent, stayed terms of
17 months of imprisonment, referred him to drug court, and ordered Stark to pay a total of
$66,972.88 in restitution. Later that month, Stark filed a timely motion contesting the
restitution order and requesting a restitution hearing.
Stark filed a supporting affidavit in February 2025, and the district court scheduled
a restitution hearing. 1 In his affidavit, Stark challenged the restitution awards on the
grounds that the respective claims did not adequately describe the items or elements of loss
or adequately itemize the total dollar amounts claimed. Stark also stated that the affidavits
for restitution lacked clarity with respect to whether the claimants had filed insurance
claims or utilized the claimed losses for a tax write-off.
The district court conducted a restitution hearing on two days in July and August
2025. The district court heard witness testimony from representatives from the bank and
the former employer. The representatives testified to the losses sustained because of
Stark’s activities. Stark’s attorney cross-examined both witnesses, focusing on whether
they had mitigated their losses in any way. Stark did not testify and did not call any

1At the hearing and in the restitution order the district court stated that the delay in the
filing of the affidavit and the scheduling of the hearing w as the result of a
miscommunication and that Stark’s affidavit and the restitution hearing would not be
considered untimely.

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witnesses. The arguments of Stark’s attorney focused on whether restitution was
appropriate in light of alternative avenues by which the bank and the former employer
could be made whole. He also suggested that Stark should not be held individually liable
for the bank’s losses associated with his business account. Stark’s attorney also stated that
“there are significant concerns about . . . ability to pay,” but did not elaborate further on
that issue.
Following the attorneys’ arguments, the district court asked Stark ’s attorney to
elaborate on his “concern regarding ability to pay.” Counsel conceded that “we do not
have testimony to support that, ” but nonetheless argued that Stark is “significantly
indigent” and that ordering the full amount of restitution would create a “significant
hardship for him.” The district court responded by noting that it could not accept Stark’s
arguments about his indigence as evidence. The district court noted that the record did not
contain a presentence investigation (PSI) report or “any other factual information” related
to “Stark’s income, resources, and obligations.” The district court then asked if Stark was
prepared to supplement the record with testimony or other evidence. Stark’s attorney
responded that Stark is not prepared to testify but noted that his claim of indigency was
supported in the record by his qualification for assistance by the public defender’s office.
The district court took the matter under advisement.
In early December 2025, the district court filed a ten- page order in which it
dismissed Stark’s restitution challenge and ordered him to pay $17,885.77 to the bank and
$48,131.61 to his former employer. Stark appeals.

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DECISION
Stark argues that the district court abused its discretion in ordering restitution
because the record contains insufficient evidence regarding Stark’s income, resources, and
obligations.
As part of a felony sentence, a district court may order a defendant to pay restitution
to a crime victim. Minn. Stat. § 609.10, subd. 1(a)(5) (2024). The “primary purpose” of
restitution is “to restore crime victims to the same financial position they were in before
the crime.” State v. Currin, 974 N.W.2d 567, 572 (Minn. 2022) (quotation omitted). “[I]n
determining whether to order restitution and the amount of the restitution,” a district court
“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(a) (2024). “[T]he statute requires that
information regarding both factors be included in a presentence investigation report.”
State v. Cloutier, 987 N.W.2d 214, 219 (Minn. 2023); see also
Minn. Stat. § 611A.045, subd. 2 (2024) (“The presentence investigation report . . . must
contain information pertaining to the factors set forth in subdivision 1.”);
Minn. Stat. § 609.115, subd. 1 (2024) (providing that “the court shall, before sentence is
imposed, cause a presentence investigation and written report to be made to the court”
when a defendant has been convicted of a felony).
With respect to the second factor, “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.” State v. Wigham, 967 N.W.2d

6
657, 665 (Minn. 2021). “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.” Id. at 664 n.4 (citing State v. Lindsey, 632 N.W.2d
652, 663-64 (Minn. 2001)).
If the state has proved that a crime victim sustained an economic loss as a result of
the defendant’s crime, a district court has broad discretion to order restitution.
State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). Accordingly, appellate courts apply
an abuse- of-discretion standard of review to a district court’ s restitution award.
State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015).
The district court discussed Stark’s ability to pay in its order and memorandum. The
district court noted that the record contained evidence indicating that: (1) Stark had
originally been represented by private counsel, who withdrew after two years for multiple
reasons; (2) Stark posted bonds of $40,000 and $5,000 in two cases; and (3) after the
withdrawal of private counsel, Stark was represented by the public defender’s office.
Ultimately, the district court concluded that Stark was not entitled to relief based on his
inability to pay because he did not meet his burden to produce evidence supporting his
challenge or to allege in his affidavit with specificity his challenge to the restitution
amount, under Minn. Stat. § 611A.045, subd. 3(a).
2

2The district court’s interpretation of the defendant’s burden in subdivision 3(a) is at odds
with binding precedent. The supreme court has stated that, while “[s]ubdivision 3(a)
imposes certain burdens on the defendant and the State when a defendant challenges
restitution . . . the plain language of subdivision 3(a) does not assign a burden of proof
regarding a defendant’s income, resources, and obligations.” Cloutier, 987 N.W.2d at 219-
20. The supreme court explained that “the district court can fulfill its statutory mandate to

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The supreme court has stated 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.” Wigham, 967 N.W.2d at 664. Additionally, while the
supreme court do es not require that the district court make 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, the court has held “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.”
Id. at 665.
The supreme court has provided examples of the type of ability-to-pay evidence that
may meaningfully inform a district court’s decision to order restitution. See id. Such
evidence may include records that contain “specific, concrete evidence of the defendant’s
income, resources, and obligations,” a PSI that “includes information about the defendant’s
income, resources, and obligations,” or a “defendant’s express concession that he or she
could pay the amount of restitution.” Id.
In this case, at the restitution hearing, the district court indicated that it had reviewed
the record for evidence related to Stark’s income, resources, and obligations but could not

consider a defendant’s income, resources, and obligations in a process that assigns no party
a burden of proof.” Id. at 222. Additionally, this court has cast doubt on the proposition
that a defendant can waive the district court’s statutory obligation to consider a defendant’s
ability to pay under subdivision 1(a)(2). See State v. Baker, 20 N.W.3d 897, 900 (Minn.
App. 2025). Furthermore, the plea agreement contemplated that Stark reserved the right
to challenge restitution.

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locate a PSI. The district court stated, “I don’t believe there’s any other factual information
in the record for me to rely on in making my decision here.” The district court continued,
“So in terms of the requirement that I consider Mr. Stark’s income, resources, and
obligations, I certainly would do that to the extent that that were made part of the record
by Mr. Stark,” but noted, “I understand that is not happening.” Stark’s counsel affirmed
that “Mr. Stark is not prepared to testify at this time.” The district court also noted that it
was “unable to locate public-defender eligibility form” in the record.
The record evidence cited by the district court is tenuous. It appears that the district
court references Stark’s retention of private counsel to demonstrate that he had some
financial means. It is true that Stark initially retained private counsel however, the record
indicates that one of the primary reasons for which his counsel sought to withdraw was
Stark’s “refusal to pay his fee.” The record also indicates that in March 2022 Stark was
able to secure a $40,000 bond through a bond company. The district court seems to give
little weight to the fact that Stark was apparently eligible for a public defender in 2022 by
stating that there is “ nothing in the record to demonstrate [Stark] was reassessed for
eligibility more recently.”3 In sum, the record evidence cited by the district court does not

3The district court stated that it was “unable to locate a public-defender eligibility form.”
The record does, however, contain a document entitled “Court Appointed Attorney
Eligibility,” dated September 2022. The form indicates that Stark has been unemployed
since 2020, is without income, and has no assets. Although this document does appear to
contain “ specific, concrete evidence of the defendant’s income, resources, and
obligations,” see id., the district court stated that it was “unable to locate a public-defender
eligibility form” and so apparently did not consider it.

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contain “ specific, concrete evidence of the defendant’s income, resources, and
obligations.” See Wigham, 967 N.W.2d at 665.
Accordingly, the district court did not meet its obligation under
Minn. Stat. § 611A.045, subd. 1(a)(2), because the record does not contain sufficient
evidence about Stark’s income, resources, and obligations to allow the district court to
consider his ability to pay the amount of restitution ordered.
Therefore, we reverse the district court’s order for restitution and remand for further
proceedings on restitution to specifically consider Stark’s ability to pay based on an
adequately developed record in accordance with Wigham.
Reversed and remanded.