This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed May 29, 2001
Hennepin County District Court
File No. 45123
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Rolf A. Sponheim, Assistant City Attorney, City of Minnetrista, 14600 Minnetonka Boulevard, Minnetonka, MN 55345 (for respondent)
Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000 Circle K, Box 216, Shakopee, MN 55379 (for appellant)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Steven Corl challenges his conviction of misdemeanor driving while impaired (DWI). He argues that the district court, in making a record of the state’s settlement offer and the sentence that the court would normally impose on the offered plea, undermined his confidence in his attorney, thus violating his due-process rights. He also argues that the district court judge abused his discretion in denying Corl’s motion that the judge remove himself for bias. Because Corl’s due-process argument lacks any legal basis and because the district court did not abuse its discretion in denying his motion to remove, we affirm.
In April 2000, Steven Corl was charged with DWI. In chambers, the state made an offer of settlement, which Corl’s attorney declined. Before beginning jury selection, the district court judge indicated that he wished to make a record of the state’s settlement offer and the sentence that Corl would likely receive if he accepted the offer. Corl’s attorney objected, arguing that (1) the judge had no reason to make a record of the fact that the decision to go to trial was the attorney’s and not Corl’s and (2) it was, therefore, improper for the judge to communicate the settlement offer to Corl. Corl’s attorney filed a notice to remove the judge under Minn. Stat. §§ 487.40 (2000) and 542.16 (2000). The judge referred the matter to the chief judge’s designee, who heard the motion that same morning and determined that it was not timely filed.
Upon returning to the district court later that morning, Corl’s attorney made an oral motion for the district court judge to remove himself for bias or for a continuance of “at least some period of time.” He argued that the judge’s communication of the offer “undermined my client’s confidence in my ability to represent him appropriately.” The judge denied Corl’s motions, stating that the issue of bias should have been raised with the chief judge’s designee when Corl argued his first motion to remove and that the judge did not believe that he was biased. The judge granted Corl additional time to consult with his attorney before jury selection, and Corl agreed to go to trial.
The jury found Corl guilty of DWI. Corl appeals.
Corl argues that by making a record of the plea offer that his attorney rejected, the district court judge was, in effect, communicating to Corl that the judge doubted whether Corl’s attorney had informed him of the offer. He claims that by doing so, the judge “usurped defense counsel’s authority” with Corl and “created an atmosphere between [Corl] and defense counsel that was strained.” This, Corl argues, violated his due-process guarantee to a fair trial.
The due-process clauses of the United States and Minnesota Constitutions require that a criminal defendant be treated with fundamental fairness and “‘afforded a meaningful opportunity to present a complete defense.’” State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L.Ed.2d 413 (1984)); accord U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. Corl cites no legal authority for the proposition that a court’s communication to a defendant of a plea offer violates the defendant’s due-process rights, and research reveals no such authority. Nor does Corl point to anything in the record that would indicate that the district court’s actions deprived him of a meaningful opportunity to present a complete defense.
If anything, the judge’s communication of the plea offer served to protect Corl’s rights. A defense counsel’s failure to communicate a plea offer to his or her client may constitute ineffective assistance of counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984) (stating counsel has obligation to consult with client on important decisions and keep client informed of important developments in course of prosecution); Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (holding that petitioner's claim that his trial counsel was ineffective for failing to communicate two plea offers required additional fact-finding and therefore such claim was properly raised in petition for postconviction relief). In Powell v. State, this court noted that
[a]dvising a defendant of a plea offer consists of more than communicating that the offer exists; rather it requires taking necessary measures to ensure that the defendant understands the implications and possible impact of accepting or declining the offer. Defense counsel is obliged to serve the accused as a counselor and advocate to the utmost of counsel’s ability. This includes taking additional precautions where necessary to ensure that an explanation has been understood.
Powell v. State, 562 N.W.2d 14, 19 (Minn. App. 1997), rev’d on other grounds, 578 N.W.2d 727 (Minn. 1998). Here, by making a record of the plea offer, the judge ensured that Corl understood the implications of accepting or declining the offer. Further, by making a record of the offer, the judge did not necessarily suggest that he believed that Corl’s attorney had not communicated the offer to Corl. In fact, the only person who made such a suggestion was Corl’s attorney.
Corl also challenges the denial of his motion that the district court judge remove himself for bias. A writ of prohibition is the appropriate remedy for the denial of a motion to remove a judge for cause. State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984); State v. Poole, 472 N.W.2d 195, 196-97 (Minn. App. 1991). Corl did not seek a writ of prohibition, and thus his claim is not properly before this court. But even if it were, it would fail.
It is unclear whether Corl’s initial notice was a notice to remove as a matter of right or for cause. But regardless of the basis on which Corl requested removal, the chief judge’s designee determined that the notice was untimely filed, and Corl does not challenge this determination. Upon returning to the district court, Corl’s attorney made an oral motion requesting the district court judge to remove himself because his communication of the plea offer to Corl “manifested bias against his decision to go to trial.” The court denied this motion, noting that the issue of bias should have been raised before the chief judge’s designee when she considered Corl’s initial notice to remove and that the judge did not believe that he was biased. Corl argues that the district court judge’s refusal to remove himself for bias constitutes a violation of Canons 3A(5) and 3D(1) of the Code of Judicial Conduct.
The parties agree on appeal that the removal of judges in criminal prosecutions is governed by Minn. R. Crim. P. 26.03, subd. 13(3)-(6). See State v. Laughlin, 508 N.W.2d 545, 547 (Minn. App. 1993) (noting that Minn. Stat. § 542.16 was superceded by Minn. R. Crim. P. 26.03, subd. 13). Under subdivision 13(3), a judge may not preside over a trial or other proceeding if the judge is disqualified under the Code of Judicial Conduct. Canon 3A(5) of the code provides that a
judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status * * * .
Canon 3(D)(1) provides that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned * * * .” Corl made no showing that the judge harbored any bias against him of the type prohibited by Canon 3A(5) nor did he show that the judge’s impartiality might reasonably be questioned.
 The notice did not indicate the basis on which removal was requested but did refer to Minn. Stat. §§ 487.40 (2000) and 542.16 (2000). The former outlines procedures for removal in county courts, which under Minn. Stat. § 487.191 (2000) have mergedwith the district courts. The latter outlines procedures for removal in the district courts and provides both for removal as a matter of right and removal for cause.