This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1036

 

State of Minnesota,

Respondent,

 

vs.

 

G. Bradford Merkl,

Appellant.

 

Filed June 19, 2001

Affirmed

Willis, Judge

 

Winona County District Court

File No. T8994381

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103; and

 

Charles E. MacLean, Winona County Attorney, 171 West Third Street, Winona, MN† 55987 (for respondent)

 

Karl W. Sonneman, Sonneman & Sonneman, P.A., 111 Riverfront, Suite 202, Winona, MN† 55987 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*


 

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

G. Bradford Merkl appeals from his conviction of and sentence for violation of a harassment restraining order, arguing that because the police failed to enforce the order on prior occasions, it was improper for them to enforce the order here.† In the alternative, Merkl argues that the order was vague.† Merkl also claims that he had a right to remove a pump belonging to the other party to the mutual restraining order under a Minnesota law that permits a landlord to move and store a tenantís abandoned property.† Finally, Merkl contends that he should not have been sentenced to more jail time than the other party received after that party pleaded guilty to violating the order.† Because (1) the prosecutor did not abuse its discretion in charging Merkl with violating the harassment restraining order, (2) Merklís vagueness challenge is untimely, (3) Merklís argument by analogy to Minnesota landlord-tenant law was not presented to the district court, and (4) the district court did not abuse its discretion in sentencing Merkl, we affirm.

FACTS

In 1990, Merkl conveyed 40 acres of real estate to the T.B.T.G. Foundation, of which he is the secretary-treasurer.† Acting within his authority on behalf of the T.B.T.G. Foundation, Merkl gave an acquaintance, Timothy T. Pendleton, permission to construct a residence on the property, and Pendleton did so.† Merkl and Pendletonís relationship soured over the years, and by July 1997, Merkl had caused the foundation to file a lawsuit against Pendleton, and Pendleton had sued Merkl.[1]

Pendleton obtained a harassment restraining order against Merkl in August 1997.† At Merklís request, the district court amended the order to also prohibit Pendleton from engaging in certain conduct.† Merkl was restrained from breaking and entering Pendletonís residence and damaging, moving, or stealing Pendletonís property.† The order included notice that it was filed on September 10, 1997, and provided that it would remain in effect until August 4, 1999.† Merkl admits that he was served with the order by mail in September 1997, that he read it upon receipt and was aware of its terms.

††††††††††† On June 22, 1999, Merkl removed a water pump that Pendleton had installed on the property to provide his house with fresh water.† Later that day, Merkl told the police that he had taken Pendletonís pump and would not return it until Pendleton penned some geese running loose on the property and cleaned up some roofing materials.† The police warned Merkl about the consequences of failing to return the pump.† On June 28, 1999, the police warned Merkl again, telling him that he would be arrested if the pump were not returned that day.† Merkl did not return the pump, and the police arrested him at midnight for violating the harassment restraining order.

††††††††††† Before Merklís trial, Pendleton also was charged with violating the harassment restraining order; he pleaded guilty and received a 60-day jail sentence, which was stayed for one year.

At a bench trial in April 2000, the district court determined that Merkl was guilty of violating the restraining order, finding that Merkl ďmoved [the pump] but also that he stole it and he stole it by temporary control,Ē taking the pump ďas a negotiating toolĒ and to harass Pendleton.† Merkl was sentenced to 90 days in jail, 60 days of which were stayed for one year.† Merkl moved to stay the sentence until all appeals are completed, and the district court granted his motion.† This appeal followed.

D E C I S I O N

Merkl argues that he should not have been charged for removing Pendletonís pump because the police did not arrest either Merkl or Pendleton for prior violations of the harassment restraining order and did not immediately arrest Merkl upon learning that he had removed the pump.† Merkl also claims that he was arrested not for taking Pendletonís pump but rather for failing to return it, an act that the harassment restraining order did not prohibit.

Minnesota law provides that a person subject to a harassment restraining order who is aware of the order and violates it has committed a misdemeanor.† Minn. Stat. ß 609.748, subd. 6(b) (1998).† Here, Merkl knew of the harassment restraining order, and he violated it when he removed the pump.† Merkl admitted that he had read the harassment restraining order when he received it and knew its terms, and that the order prohibited him from moving or stealing Pendletonís property.† We conclude that the prosecutor did not abuse his discretion in charging Merkl.† See State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (mem.) (stating that court should not interfere with prosecutorís exercise of charging function absent a clear abuse of discretion).

Merkl also argues that the harassment restraining order was vague and thus should be given the same construction as a criminal statute because ď[t]he language of the restraining order is much like a criminal statute that prohibits particular behaviors or actions.Ē† Merkl contends that the harassment restraining order violated his due-process rights because it was so confusing that

[a] person of common intelligence could not know here if they were about to be charged under the restraining order, for what they would be charged or when they would be charged.

The state argues that this challenge is untimely because it was not filed within 60 days of the issuance of the amended order.

††††††††††† A challenge to the validity of a harassment restraining order must be brought in an appeal from the order.† State v. Harrington, 504 N.W.2d 500, 503 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993).† Rule 104.01, subdivision 1, provides, in pertinent part:

Unless a different time is provided by statute, an appeal may be taken * * * from an appealable order within 60 days after service by any party of written notice of its filing.

 

Because Merkl was served with the order in September 1997, and the order included written notice of its filing, his vagueness challenge is untimely.[2]

Next, Merkl claims that he had a right to remove Pendletonís pump and store it under Minn. Stat. ß 504.24, subd. 1 (1998), which permits a landlord to move and store a tenantís abandoned property.† Because Merkl did not present this argument to the district court, it is not properly before us.† See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that reviewing courts generally will not decide issues not raised before the district court).† But, in any event, as the state correctly points out, section 504.24, subdivision 1, applies to personal property that has been left on a landlordís premises after a tenant has abandoned the premises, and Pendleton had not abandoned the premises.

Finally, Merkl argues that the district court erred in sentencing him.† Appellate courts review sentencing decisions under an abuse-of-discretion standard.† State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995).

Merkl contends that because both he and Pendleton violated the harassment restraining order, the district court abused its discretion by imposing a longer sentence on Merkl than Pendleton had received by plea bargaining.† Merkl cites no authority for his argument, and our review of Minnesota caselaw reveals none.[3]† Rather, we note that the Minnesota Supreme Court has, in several cases, refused to reduce a criminal defendantís sentence to that received by an equally culpable accomplice.† See, e.g., State v. Vazquez, 330 N.W.2d 110, 112-13 (Minn. 1983); State v. Williams, 337 N.W.2d 387, 390-91 (Minn. 1983).† In those cases, the supreme court considered whether the sentences were unduly harsh when compared with the sentences imposed on others who committed similar misconduct and whether the sentences imposed were within the presumptive-sentence range.† Vazquez, 330 N.W.2d at 113; Williams, 337 N.W.2d at 391.† Here, Merkl does not argue that his sentence was unduly harsh compared with those of others who have violated a harassment restraining order, and Merklís sentence is within the permissible range for such violations.† See Minn. Stat. ß 609.748, subd. 6(b) (providing that it is a misdemeanor to knowingly violate harassment restraining orders).†

We disagree with Merklís contention that the difference between his and Pendletonís sentences is explained by his refusal to enter a guilty plea.† By proceeding to trial, Merkl must be deemed to have accepted the risk that he could receive a sentence longer than he would have received by plea bargaining or than that received by Pendleton.† See Williams, 337 N.W.2d at 391 (explaining that there are numerous factors that defendants must weigh before deciding to go to trial and that defendants who so choose are deemed to have accepted the risk of a longer sentence).† We conclude that the district court did not abuse its discretion in sentencing Merkl.

Affirmed.



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

[1] The consolidated civil action among Merkl, the T.B.T.G. Foundation, and Pendleton is the subject of this courtís opinion in T.B.T.G. Foundation v. Pendleton, No. C7-00-615, 2000 WL 1693626 (Minn. App. Nov. 14, 2000).

[2] Because the police warned Merkl twice about the consequences of failing to return the pump, his claim that he was confused as to whether, for what, and when he might be charged is not persuasive.

[3] Merkl cites cases addressing the selective enforcement of criminal statutes in support of his contention that the same sentence must be imposed on persons who have violated the same harassment restraining order.† But there was no selective enforcement of the harassment restraining order here, as both Merkl and Pendleton were charged with violations.