This opinion will be unpublished and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

CX-01-554

 

 

Luis Guillermo Ramos-Bar,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 2, 2001

Affirmed

G. Barry Anderson, Judge

 

 Hennepin County District Court

File No. 99008377

 

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55487 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Amundson, Presiding Judge, Peterson, Judge and Anderson, Judge.

 

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            Appellant Luis Guillermo Ramos-Bar challenges the district court’s order denying his petition for postconviction relief, arguing that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial because there is new evidence that strengthens his defense.  We affirm.

FACTS

L.J., appellant’s estranged wife, obtained a restraining order against appellant barring him from the couple’s Minneapolis residence.  On January 29, 1999, appellant returned to the residence to pick up some personal belongings.  According to L.J., appellant attempted to reconcile with her and, when she refused, pinned her on a bed and forcibly subjected her to sexual penetration.  L.J. reported that appellant then grabbed a box cutter and slashed her chest.  L.J. escaped and ran into the street.  A passerby summoned an ambulance and police.

In January 1999, the state charged appellant with two counts of first-degree criminal sexual conduct, violations of Minn. Stat. § 609.342, subd. 1(c), 1(e)(i) (1998), and one count of second-degree assault, a violation of Minn. Stat. § 609.222, subd. 1 (1998).  In June 1999, appellant waived his right to a jury trial and his right to challenge the search of his home and the consequent seizure of evidence from the home.  Appellant agreed to submit the case to the court on stipulated facts in exchange for the state’s reduction of the charges to third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subd. 1(c) (1998).  The district court found appellant guilty of third-degree criminal sexual conduct and ordered a presumptive, 64-month prison sentence.  

In November 2000, appellant filed a petition for postconviction relief, asking that the district court vacate his conviction on the basis that his waiver of a jury trial was not knowing, intelligent, and voluntary because he has since discovered witnesses who could testify to L.J.’s untruthfulness and incompetency as a witness.  The district court denied appellant’s petition, finding that appellant knew about L.J.’s alleged reputation for untruthfulness and chemical-abuse problems at the time of the waiver.  The district court concluded that the evidence was not newly discovered and thus did not render appellant’s waiver invalid.  This appeal followed.

D E C I S I O N

            Appellant argues that the district court abused its discretion by denying his petition for postconviction relief.  A petitioner seeking postconviction relief must establish, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2000).  A district court may dismiss a petition for postconviction relief without an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2000).  We will not disturb a district court’s decision to deny a postconviction petition absent an abuse of discretion.  State v. Bliss,457 N.W.2d 385, 391 (Minn. 1990).  A district court has not abused its discretion if the record contains sufficient evidence to sustain the district court’s findings.  Burns v. State,621 N.W.2d 55, 60-61 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).

Appellant submitted the question of his guilt to the district court on stipulated facts. When a case is submitted on stipulated facts, the defendant must waive his right to a jury trial.  State v. Sandmoen, 390 N.W.2d 419, 423-24 (Minn. App. 1986).  The waiver of a jury trial must “be knowing, intelligent and voluntary.”  State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).  The district court must ascertain that the defendant understands “the basic elements of a jury trial.”  Id. at 654.  Minn. R. Crim. P. 26.01, subd. 3, mandates that before proceeding on stipulated facts, the defendant must:

acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record. 

 

Id. 

            When reviewing a defendant’s claim that his waiver is invalid, we look to the totality of the circumstances and rely on evidence that sufficiently demonstrates the defendant’s waiver was knowing, voluntary, and intelligent.  State v. Pietraszewski,283 N.W.2d 887, 890 (Minn. 1979).

            In this case, appellant’s counsel, on the record, explained the rights appellant would waive by stipulating to the facts and submitting the case to the court.  These rights included the right to a jury trial, the right to present testimony, the right to question witnesses, and the right to contest the admissibility of the state’s evidence.  Appellant’s counsel told him the expected sentence, given his criminal-history score and the severity of the crime.  Appellant stated to the district court that he read the petition both with his attorney and by himself, and twice indicated that he understood the rights he was waiving.  When the district court told appellant that it would find him guilty and explained the stipulation was essentially a guilty plea, appellant indicated that he understood.   

            In other words, appellant does not dispute that both his attorney and the court fully explained, and that he understood, the rights he waived.  Instead, appellant claims that he has since learned that there are witnesses who could testify to L.J.’s reputation for untruthfulness and incompetency as a witness.  In the autumn of 1999, an investigator from the office of the Hennepin County Public Defender conducted an inquiry concerning L.J. in an unrelated case.  Appellant offers the investigator’s report, which shows that the investigator interviewed a number of witnesses, including appellant, asking questions about L.J.  Appellant contends that, had he known of these witnesses, his defense would have been stronger and he would not have waived his rights but would have proceeded to a jury trial.  

             A new trial based on newly discovered evidence will be granted if a petitioner establishes:

(1) that the newly discovered evidence was not within the petitioner’s or his counsel’s knowledge before trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that it is not cumulative, impeaching, or doubtful evidence; and (4) that the evidence would probably produce a different or more favorable result. 

 

Wieland v. State,457 N.W.2d 712, 714 (1990) (citation omitted). 

We do not believe that appellant’s evidence meets this test.  Appellant told the investigator that he and L.J. lived together for approximately four years before their 1998 marriage.  Appellant indicated that “he has been put in jail five times because [L.J.] has made up lies” about him, that L.J. “is a great liar and can look someone straight in the face while lying to them,” and that L.J. is “very untruthful.”  Appellant told the investigator about several incidents that took place in 1998, concerning L.J.’s chemical-use problems, and that he believed L.J. had a theft conviction from “several years ago.”  Appellant told the investigator that his former landlord may have information concerning L.J.’s credibility.  

Thus, the evidence appellant claims is “new” was known to him at the time he waived his right to a jury trial.  See Johnson v. State,486 N.W.2d 825, 828 (Minn. App. 1992) (evidence not newly discovered if defendant knew of its existence before trial), review denied (Minn. Aug. 27, 1992).  Although appellant contends that he did not possess this evidence until his interview with the investigator in September 1999, the content of the report demonstrates that he knew of L.J.’s alleged reputation for untruthfulness, her chemical-use problems, and prior theft conviction well before the June 1999 waiver of his right to a jury trial.  We conclude that the evidence is not “newly discovered.”

In addition, appellant’s knowledge of L.J.’s reputation for untruthfulness or her chemical-use issues could have been easily confirmed and corroborated by appellant’s and his counsel’s due diligence between the January 1999 charging date and appellant’s June 1999 waiver.  Indeed, this information was eventually developed by the office of appellant’s counsel, albeit in an unrelated matter.  See, e.g., State v. Hole,400 N.W.2d 430, 435 (Minn. App. 1987) (holding no abuse of discretion by denying new-trial motion where defendant’s new evidence consists of witnesses who could have been discovered with due diligence prior to trial); Saiki v. State,375 N.W.2d 547, 549-50 (Minn. App. 1985) (holding no abuse of discretion by denying new-trial motion where petitioner did not show that a witness who would have bolstered his defense could not have been discovered with due diligence prior to entering a guilty plea), review denied (Minn. Dec. 19, 1985).

            We conclude that the district court did not abuse its discretion by denying appellant’s petition for postconviction relief because the evidence appellant now claims would have caused him to proceed to a jury trial was available to, and could have been developed by, him at the time he waived that right.

Affirmed.