State of Minnesota v. Morrell Grant

• Court: Court of Appeals of Minnesota
• Decided: October 31, 2016
• Docket: A15-1880
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-1880

State of Minnesota, Respondent,

vs.

Morrell Grant, Appellant.

Filed October 31, 2016 Affirmed Stauber, Judge

Ramsey County District Court File No. 62-CR-14-5504

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Bradford Colbert, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Hooten, Judge; and Reyes,

Judge.

UNPUBLISHED OPINION

STAUBER, Judge

On appeal from his conviction of one count of identity theft, appellant argues that

(1) his guilty plea must be vacated and his conviction reversed because the factual basis

was insufficient and (2) the district court erred and violated his due-process rights by ordering him to pay restitution when there was no evidence that the victims suffered any

loss, most of the victims did not request restitution, and some of the victims specifically

stated that they did not want restitution. We affirm.

FACTS

In July 2014, appellant Morrell Grant was charged with one count of identity theft.

The complaint alleged that on July 21, 2014, the manager of a Holiday gas station contacted

police and informed them that she discovered that a large amount of suspected “fraud” had

occurred earlier that day. The manager told police that earlier in the day, appellant and P.G.

entered the store and purchased gift cards and other items valued at $2,200 using other gift

cards, and that appellant and P.G. were in the store again.

Police made contact with appellant and P.G. as they left the store. On appellant’s

person, police discovered two wallets containing several American Express gift cards.

Police also discovered additional gift cards and hundreds of dollars in new merchandise in

appellant’s and P.G.’s vehicle. Further investigation revealed that the American Express

gift cards possessed by appellant and P.G. were associated with American Express credit

card numbers for 22 known victims from around the country.

In June 2015, appellant entered an Alford plea to the charged offense. The district

court then sentenced appellant to a bottom-of-the-box sentence of 41 months in prison.

Appellant was also ordered to pay $1,000 in restitution to each of the 22 identified victims,

and $3,121.07 to American Express. This appeal followed.

2 DECISION

I.

“A defendant has no absolute right to withdraw a guilty plea after entering it.”

State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). Minnesota Rule of Criminal

Procedure 15.05 provides two grounds for plea withdrawal; first “the court must allow a

defendant to withdraw a guilty plea upon . . . proof to the satisfaction of the court that

withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd.

1. Second, the court may, in its discretion, “allow the defendant to withdraw a plea at

any time before sentence if it is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2.

The manifest-injustice standard of Minn. R. Crim. P. 15.05, subd. 1, which is

applicable here, requires withdrawal when a plea is invalid. State v. Theis, 742 N.W.2d

643, 646 (Minn. 2007). To be valid, a guilty plea must be “accurate, voluntary and

intelligent.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). “A defendant bears the

burden of showing his plea was invalid.” Raleigh, 778 N.W.2d at 94. The validity of a

plea is a question of law that we review de novo. Id.

Appellant argues that he should be allowed to withdraw his guilty plea because his

plea was inaccurate. An accurate plea “requires that the plea be supported by a proper

factual basis[;] there must be sufficient facts on the record to support a conclusion that

defendant’s conduct falls within the charge to which he desires to plead guilty.” State v.

Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted). “The factual-basis

requirement is satisfied if the record contains a showing that there is credible evidence

available which would support a jury verdict that defendant is guilty of at least as great a

3 crime as that to which he [pleaded] guilty.” State v. Genereux, 272 N.W.2d 33, 34

(Minn. 1978).

Here, appellant entered an Alford plea to identity theft under Minn. Stat.

§ 609.527, subd. 2 (2012). That statute provides that “[a] person who transfers,

possesses, or uses an identity that is not the person’s own, with the intent to commit, aid,

or abet any unlawful activity is guilty of identity theft.” Id.

An Alford plea permits a defendant to plead guilty while maintaining his or her

innocence if the defendant reasonably believes, and the record establishes, that the state

has sufficient evidence to obtain a conviction. Ecker, 524 N.W.2d at 716 (citing North

Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)). “[C]areful scrutiny of

the factual basis for the plea is necessary within the context of an Alford plea because of

the inherent conflict in pleading guilty while maintaining innocence.” Theis, 742 N.W.2d

at 648-49. An Alford plea is constitutionally acceptable when “the State demonstrate[s] a

strong factual basis for the plea and the defendant clearly expresse[s] his desire to enter

the plea based on his belief that the State’s evidence would be sufficient to convict him.”

Id. at 647 (quotation omitted). A district court may accept an Alford plea “if the court, on

the basis of its interrogation of the accused and its analysis of the factual basis offered in

support of the plea, reasonably concludes that there is evidence which would support a

jury verdict of guilty and that the plea is voluntarily, knowingly, and understandingly

entered.” Id. (quotation omitted).

Appellant argues that the factual basis for his plea was insufficient because “the

plea does not provide sufficient evidence that [he] committed the charged crime.”

4 Specifically, appellant contends that, although he admitted to possessing several prepaid

gift cards, he bought them at a store and did not know that the gift cards were tied to

individuals. Appellant argues that because he did not intend to possess these individuals’

identities and did not transfer or use their identities to obtain the prepaid gift cards, there

was an insufficient factual basis to prove that he committed identity theft.

We disagree. A person is guilty of identity theft if an individual possesses an

identity that is not the person’s own with the intent to commit any unlawful activity.

Minn. Stat. § 609.527, subd. 2. The plain language of the statue does not require an

intent to possess an identity; it simply requires possession of an identity. See id. And

under the identity-theft statute, “identity” can be “any name, number, or data

transmission that may be used . . . to identify a specific individual or entity.” Minn. Stat.

§ 609.527, subd. 1(d) (2012). The identity theft statute does, however, require an “intent

to commit . . . any unlawful activity.” Minn. Stat. § 609.527, subd. 2. Any “unlawful

activity” means (1) “any felony violation of the laws of this state”; and (2) “any

nonfelony violation of the laws of this state involving theft, theft by swindle, forgery,

fraud, or giving false information to a public official.” Minn. Stat. § 609.527, subd. 1(g)

(2012).

Here, the factual basis offered by the state at the plea hearing demonstrates that

appellant had several pre-paid gift cards in his possession. Although “having some

appearance of being gift cards,” the cards had numbers that were tied “to individual

account holders with American Express, so that by using the gift card, the American

Express account of that individual was actually being charged.” Moreover, appellant

5 admitted to an investigating officer that he “obtained these pre-paid cards in Chicago . . .

at a store,” and that “he knew the gift cards he had in his possession and had utilized in

the Twin Cities area, and particularly at the Holiday gas station store, were fraudulent.”

And although appellant claimed that he did not know that the fraudulent activity affected

individual people, he admitted that he knew the gift cards were “defrauding banking

institutions.” The factual basis presented by the state establishes that appellant possessed

gift cards containing the identity of another person or entity and that he intended to use

those gift cards for an unlawful purpose. Thus, the factual basis for appellant’s plea

provides sufficient evidence that appellant committed the charged offense.

Appellant also contends that the factual basis was deficient because he “never

agreed that the State’s evidence was sufficient to convict him beyond a reasonable

doubt.” But again, appellant’s argument is without merit. In Theis, the supreme court

emphasized that when a defendant pleads guilty under an Alford plea, the “defendant’s

acknowledgment that the State’s evidence is sufficient to convict is critical to the court’s

ability to serve the protective purpose of the accuracy requirements.” 742 N.W.2d at 649.

The court noted that the “best practice for ensuring this protection is to have the

defendant specifically acknowledge on the record at the plea hearing that the evidence the

State would likely offer against him is sufficient for a jury, applying a reasonable doubt

standard, to find the defendant guilty of the offense to which he is pleading guilty.” Id.

Here, the following colloquy occurred at the plea hearing:

PROSECUTOR: Now, [appellant] do you believe that based on the evidence, the jury, applying the presumption of innocence and with a burden of proof beyond a reasonable

6 doubt, would find you guilty of identity theft involving eight or more direct victims? APPELLANT: I’m not understanding - - .... PROSECUTOR: Do you . . . believe that given the evidence that I have described, if it was presented at trial, that a jury, applying a proof standard of beyond a reasonable doubt, do you believe that they would find you guilty of identity theft involving eight or more direct victims? APPELLANT: No, not really. THE COURT: So, here’s the question - - I’m going to rephrase it. APPELLANT: Yeah, please do because I’m not understanding what he saying. .... THE COURT: All right. You heard the evidence that he has just now, right? APPELLANT: Yes. THE COURT: And you saw that he has submitted the police reports just now, right? APPELLANT: Yes. THE COURT: So the State’s case has been presented, or summarized, by him. Do you agree with that? APPELLANT: Yes. THE COURT: And do you understand that if you went to trial that’s the evidence that would be presented to a jury? APPELLANT: Yes. THE COURT: And are you pleading guilty as an Alford plea because you believe that if all of that was set - - given to a jury, they would find you guilty of the charge of aiding and abetting identity theft based on that evidence? .... APPELLANT: Okay. Yes. THE COURT: Do you believe they would find you guilty? APPELLANT: I believe it’s a possibility. THE COURT: Well, they would have to apply the reasonable doubt standard. They would have to be - - find it proof beyond a reasonable doubt.” APPELLANT: Okay. THE COURT: And it’s always a possibility they would find you guilty. APPELLANT: Okay.

7 THE COURT: But if you’re pleading guilty because you don’t want to risk going to trial, is that because you believe they would find you guilty? APPELLANT: Yes. THE COURT: Do you understand what you’re saying to me? APPELLANT: I believe so. THE COURT: Do you understand what I’m saying to you? APPELLANT: Yes I do. THE COURT: Okay. Do you want to . . . plead guilty under the Alford standard because you don’t want to risk going to trial and having them find you guilty. Is that accurate? APPELLANT: Yes.

We acknowledge that the factual basis could be clearer. But appellant admitted

that he was pleading guilty because he did not “want to risk going to trial and having [a

jury] find [him] guilty.” He also admitted that he was pleading guilty under an Alford

plea because he believed a jury “would find [him] guilty.” Moreover, throughout the plea

colloquy, the state and the district court repeatedly emphasized that the jury must find

him guilty beyond a reasonable doubt. The record reflects that the requirements Theis

sets out as necessary for a factual basis in an Alford plea were met. Therefore, appellant

is not entitled to withdraw his guilty plea.

II.

Appellant challenges the district court’s restitution order requiring him to pay

$1,000 in restitution to each of the 22 identified victims. Ordinarily, a district court has

broad discretion to award restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn.

1999). But the identity-theft statute requires the district court to “order a person

convicted of [identity theft] to pay restitution of not less than $1,000 to each direct victim

of the offense.” Minn. Stat. § 609.527, subd. 4(b) (2012). The statute defines a “direct

8 victim” as “any person or entity described in section 611A.01, paragraph (b), whose

identity has been transferred, used or possessed in violation of this section.” Id., subd.

1(b) (2012). In its relevant part, Minn. Stat. § 611A.01(b) (2012) defines “victim” as “a

natural person who incurs loss or harm as a result of a crime.”

Appellant contends that because several of the victims “either did not request

restitution or specifically stated that they did not want restitution,” it “must be assumed

that these persons did not suffer a loss.” Appellant argues that because many of these

victims did not suffer any loss, and restitution is “designed to restore or compensate

victims for their loss,” it was erroneous for the district court to award restitution where it

was not requested.1

We disagree. The plain language of the identity-theft statute is clear and

unambiguous; it provides that the district court “shall order a person convicted of

[identity theft] to pay restitution of not less than $1,000 to each direct victim of the

offense.” Minn. Stat. § 609.527, subd. 4(b) (emphasis added). Thus, the district court

was required to order appellant to pay restitution to each direct victim. See Minn. Stat.

§ 645.44, subd. 16 (2014) (stating that “‘shall’ is mandatory”). Moreover, in Anderson v.

State, this court held that because the plain language of the identity-theft statute requires

that all victims be paid a minimum of $1,000 in restitution, the victims need not submit

1 The state contends that appellant forfeited this argument because he “never argued that he should not have to pay restitution” to 20 of the identity theft victims, nor did he provide “any basis for such an argument.” See State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015). But at the sentencing hearing, appellant’s attorney specifically argued that because only two victims requested restitution, he should only be responsible for paying restitution to those victims. Thus, appellant properly raised the argument below.

9 loss affidavits in order to be awarded restitution. 794 N.W.2d 137, 140-41 (Minn. App.

2011), review denied (Minn. Apr. 27, 2011). And in State v. Moua, this court held that

“[a]n individual experiences ‘loss or harm’ as a result of identity theft when the

individual either suffers economic loss or the theft involves the individual’s name and

private identifying information.” 874 N.W.2d 812, 813 (Minn. App. 2016).

Here, the 22 identified victims were “direct victims” because they experienced

“loss or harm” as a result of their names and private identifying information being

involved in appellant’s fraudulent activities. See id. Moreover, under Anderson, the

victims need not actually request restitution. Rather, under the plain language of the

statute, the district court is required to award restitution to all direct victims regardless of

whether there was a specific request for restitution. And the statute does not provide an

exception to the restitution requirement for instances in which a victim wishes to waive

restitution. Therefore, under the plain language of the identity-theft statute, the district

court did not err by ordering appellant to pay $1,000 in restitution to each of the 22

identified victims.

Appellant also contends that the district court’s restitution order violated both his

procedural and substantive due-process rights. But as the state points out, and as

appellant concedes, he “did not argue [to the district court] that the imposition of

restitution under these circumstances violated [his] constitutional right to due process.”

Therefore, appellant has forfeited his due-process argument. See Beaulieu, 859 N.W.2d

at 278 n.3; see also State v. Williams, 794 N.W.2d 867, 874 (Minn. 2011) (stating that

10 this court will “not consider issues raised for the first time on appeal, even when those

issues are . . . challenges to the constitutionality of a statute”).

Affirmed.