Defendant Has Right to Attend Restitution Hearing

State v. Rodriguez, Minn.Ct.App., 1/9/2017. Mr. Rodriguez challenged an award of restitution.  The court scheduled a hearing on the challenge. For whatever reason Mr. Rodriguez was not brought in from whatever prison he was housed to attend the hearing.  The court held the hearing anyway, contending that Mr. Rodriguez had waived whatever right he had to attend the hearing.

A few years back the court of appeals held that a defendant has a right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App., 2013.  It seemed more than reasonable, if not logical, to extend that right to the right to be present at a restitution hearing.  On the waiver question, regardless of whose job it was to haul Mr. Rodriguez in from prison, any "waiver" had to have been made personally by Mr. Rodriguez.  That not being the case, there was no valid waiver.  

That said, holding the hearing in Mr. Rodriguez' absence was still subject to a harmless error analysis; the court declined to take up the question whether any error was structural and thus requiring automatic reversal.  The court concluded that in this case the error was not harmless.  So, Mr. Rodriguez gets a redo on his restitution challenge.