State of Minnesota, Respondent, vs. Marc J. Arens, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-03-63

 

State of Minnesota,
Respondent,
 
vs.
 
Marc J. Arens,
Appellant.

 

Filed May 25, 2004

Affirmed

Minge, Judge

 

Ramsey County District Court

File No. K2011466

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and

 

Bradford Colbert, Assistant State Public Defender, Kristen Condon, Certified Student Attorney, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant appeals the denial of his petition for postconviction relief, claiming that he was denied effective assistance of counsel when his attorney failed to challenge his restitution order.  Because the district court did not abuse its discretion, we affirm.

FACTS

 

            Pursuant to a plea agreement, appellant Marc Arens pleaded guilty to three counts of theft by swindle for taking three cars from his employer, Crosstown Auto.  According to the plea agreement, he would be given concurrent sentences for the crimes, sentenced to "the low end" of the sentencing guidelines, and ordered to pay restitution.  The district court sentenced him accordingly, and on each count required restitution in a specific amount, and informed appellant that he had 30 days to challenge restitution.  Mr. Linnan, appellant's counsel, objected to the restitution amount.  The district court again informed appellant that to challenge the amount he had to request a hearing within 30 days of the sentencing. 

            Appellant wrote a letter to Linnan inquiring about the restitution issue.  Linnan responded, stating:

            My service to your case ended at sentencing.  If you would like to appeal or dispute anything in your case, you must remit payment of $1000.00 as soon as possible.  Your case far exceeded $3000 in expenses . . . . To date I have received less than $2000 from you on your original charges.

            I agree that the restitution is worth arguing about and that we have a relatively good argument on it, however, I need money on this case to justify the investment in time.

 

            Apparently appellant did not pay the specified fee, and Linnan did not request a hearing.  Appellant claims that before the 30 days expired he wrote to the public defender's office stating that he wished to oppose the amount of restitution but that the office did not respond in time to meet the deadline.  Appellant did not contact the court.

            In his petition for postconviction relief, appellant argued that he was denied effective assistance of counsel and that failing to grant him a restitution hearing would deny him due process of law and the right to contest his sentence.  The district court denied his motion because he failed to meet the 30-day deadline or to prove that his attorney was ineffective.  The district court denied appellant's motion for reconsideration.  He now appeals the denial of the original petition and motion for reconsideration.

D E C I S I O N

 

            This court reviews a postconviction court's order to determine whether the record supports the court's findings.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  In so doing, we defer to the court's findings and will reverse the findings only if they are clearly erroneous.  Id.  "The decisions of a postconviction court will not be disturbed unless the court abused its discretion."  Id.  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

Minn. Stat. § 611 A. 045, subd. 3(b) (2002) provides that:

 

An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later . . . . The hearing request must be made in writing . . . . A defendant may not challenge restitution after the 30-day time period has passed.

 

            Appellant argues that he was denied effective assistance of counsel because his attorney failed to request a restitution hearing.  Linnan's letter to appellant, however, unequivocally states that his services ended at sentencing and if appellant wished to appeal, he must submit additional payment.  Appellant offers no evidence contradicting Linnan's representation of their agreement or that he submitted further payment.  Instead, he claimed at oral argument that Linnan had a duty to make such a request because a challenge to restitution is part of sentencing.  Alternatively, appellant argues that Linnan had a duty because he simply had to write a letter to request a hearing and that a reasonable attorney would have done this.[1]

            Appellant offers no legal argument to support his proposition that a restitution hearing is part of sentencing, and we decline to adopt that position as a matter of law.  Although in some respects the post-sentencing restitution hearing is a continuation of sentencing, the better view is that it constitutes additional representation.  The trial and sentencing are over.  Efforts to challenge or correct the judgment go beyond initial representation.  Of course, the scope of representation depends on the contract with the attorney.  See Minn. R. Prof. Conduct 1.2 cmt. ("The objectives or scope of services provided by a lawyer may be limited by agreement with the client . . . ."); Minn. R. Prof. Conduct. 1.5 cmt. ("A lawyer may require advance payment of a fee . . . .").  It was not an abuse of discretion on this record for the district court to find that Linnan had no duty to request a hearing without additional payment.

            Additionally, we cannot ignore the 30-day statutory time limit of Minn. Stat. § 611 A. 045, subd. 3(b) for requesting reconsideration of restitution.  Appellant was advised four times that if he wished to challenge the restitution amount he had 30 days to do so.  Although appellant's counsel argued at oral argument that appellant did not have the ability or means to challenge the restitution on his own, the record indicates that appellant has filed documents with the court and made requests of the public defender in the past, indicating that he could have sent his own letter to the district court expressing disagreement with the restitution order.      

            Affirmed.

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

[1] Appellant focuses his ineffective assistance of counsel claim on the specific actions of his private attorney.  He does not to argue that he had a constitutional right to an attorney in a post-sentencing hearing.