This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Affirmed in part, reversed in part, and remanded
Cass County District Court
File No. K1001097
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Earl E. Maus, Cass County Attorney, Cass County Courthouse, Box 3000, Walker, MN 56484 (for respondent)
John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Stoneburner, Judge.
Appellant Franklin William LaRose appeals a fifth-degree controlled substance conviction for possession of marijuana, arguing that state courts lack jurisdiction to enforce marijuana-possession laws against tribal members on reservations and that his conviction is invalid because he did not personally waive his trial rights. Because federal law grants states jurisdiction on certain reservations for criminal violations, we affirm on the jurisdiction issue. But because LaRose did not personally waive his trial rights, we reverse and remand for trial or personal waiver of the right to trial.
LaRose is an enrolled member of the Leech Lake Band of Ojibwe. He resides on the Leech Lake Reservation. On October 5, 2000, after receiving a tip that LaRose was growing marijuana, law enforcement officers executed a search warrant at LaRose’s home. During the search, officers found approximately 44 marijuana plants on LaRose’s property and several bags of marijuana in his home. LaRose was charged with fifth-degree possession. See Minn. Stat. § 152.025, subd. 2(1) (2000).
LaRose moved the district court to dismiss the case for lack of jurisdiction, but the court denied the motion. Just before a scheduled jury trial, LaRose, through counsel, agreed to submit the case to the court on stipulated facts. See Minn. R. Crim. P. 26.01, subd. 3. LaRose was present in court when his attorney and the prosecutor placed the agreement to try the case on stipulated facts on the record. Pursuant to the agreement, the state recommend minimal jail time in the event the district court found LaRose guilty and to a stay of sentence pending appeal by LaRose. But LaRose did not personally waive his right to a jury trial.
The district court found LaRose guilty of fifth-degree possession, stayed imposition of sentence for five years and placed LaRose on probation. This appeal follows.
1. Subject-matter jurisdiction
The determination of subject-matter jurisdiction is a question of law, which this court reviews de novo. State v. R.M.H., 617 N.W.2d 55, 58 (Minn. 2000). The ability of a state to exercise its jurisdiction over Native American matters is governed by federal statute or case law. State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997). Absent a federal mandate, a state may not assert jurisdiction over Native American tribes. Bryan v. Itasca County, Minn., 426 U.S. 373, 392, 96 S. Ct. 2102, 2113 (1976). But in Pub. L. 280, Congress granted Minnesota broad criminal jurisdiction and limited civil jurisdiction over reservations within the state of Minnesota. 18 U.S.C. § 1162(a) (1994); 28 U.S.C. § 1360 (1994).
LaRose argues that Minnesota lacks subject-matter jurisdiction to enforce marijuana-possession offenses on reservations, asserting that pursuant to a Cabazonanalysis, Minnesota’s marijuana-possession laws are regulatory in nature. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-08, 107 S. Ct. 1083, 1087 (1987) (holding that states have subject-matter jurisdiction with respect to criminal/prohibitory laws, but not civil/regulatory laws, on certain reservations pursuant to Pub. L. 280).
LaRose acknowledges that this court has previously determined that fifth-degree possession of marijuana is a criminal offense and that the state courts, therefore, have jurisdiction under Pub. L. 280. See State v. St. Clair, 560 N.W.2d 732, 734 (Minn. App. 1997). But LaRose asserts that, because the court in St. Clair did not address the Cabazonanalysis, the case is inapposite.
In Cabazon, the Supreme Court held that reservations were not subject to the laws concerning the gaming industry in California because the laws were regulatory in nature and “Congress’ primary concern in enacting Pub. L. 280 was combating lawlessness on reservations.” 480 U.S. at 208-15, 107 S. Ct. at 1088-91 (citation omitted). Because Pub. L. 280 is aimed at combating lawlessness, the Court approved an analysis focused on whether the law is criminal/prohibitory or civil/regulatory in nature:
[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation.
Cabazon, 480 U.S. at 208-10, 107 S. Ct. at 1088-89 (citation omitted). The Court also cautioned that this “is not a bright-line rule.” Id. at 210, 107 S. Ct. at 1089.
Minnesota has expressly adopted the Cabazon analysis with a two-step test, articulated in State v. Stone:
The first step is to determine the focus of the Cabazon analysis. The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the case, the narrow conduct must be analyzed apart from the broad conduct. After identifying the focus of the Cabazon test, the second step is to apply it. If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/regulatory. If the conduct is generally prohibited, the law is criminal/prohibitory. In making this distinction in close cases, we are aided by Cabazon’s “shorthand public policy test,” which provides that conduct is criminal if it violates the state’s public policy.
Stone, 572 N.W.2d at 730.
The possession of a small amount of marijuana does not constitute a controlled-substance crime in the fifth degree. See Minn. Stat. § 152.025, subd. 2(1) (2000). But possession of a small amount is still prohibited and constitutes a petty misdemeanor, punishable by a fine of up to $300 and participation in a drug-education program. Minn. Stat. § 152.027, subd. 4 (2000), Minn. Stat. § 609.0331 (2000). Because Minnesota prohibits all marijuana possession, the laws are prohibitory/criminal, and the state has authority to apply this law on the Leech Lake reservation pursuant to Pub. L. 280. The district court therefore has subject-matter jurisdiction over the charge against LaRose, consistent with the holding in St. Clair, which held that the state had subject-matter jurisdiction over fifth-degree possession occurring on a reservation, and the holding in Stone, which uses St. Clair as an example of a clearly prohibitory law. See Stone, 572 N.W.2d at 731 n.7. The district court correctly determined that it had jurisdiction.
2. Waiver of trial right
LaRose also contends on appeal that the district court erred by failing to follow Minn. R. Crim. P. 26.01, subd. 1(2)(a), which requires personal waiver of trial rights. This court reviews interpretations of the rules of criminal procedure de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).
LaRose did not raise this specific issue at the district court level, and, generally, this court will not decide an issue that was not raised in the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But the panel will address the issue in the interests of justice. See Minn. R. Crim. P. 28.02, subd. 11.
Here, LaRose clearly negotiated the review of his subject-matter jurisdiction claim through a Lothenbach procedure. See State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980) (allowing a defendant to preserve an appeal for a pre-trial issue by stipulating to evidence and submitting to a bench trial). This procedure benefits the defendant, the state, and the court by saving the time and expense of a trial yet allowing a defendant to preserve the right to appeal pre-trial issues. LaRose was present in court when the agreement was placed on the record, and he was undoubtedly aware of the benefits of the procedure as well as the rights he was required to give up in order to obtain those benefits. But presumed knowledge and apparent waiver of the right to a jury trial does not fulfill the specific requirement that waiver of a jury trial must be made personally by a defendant, in writing or orally on the record in open court. See Minn. R. Crim. P. 26.01, subd. 1 (2) (a).
This court has interpreted rule 26.01 to clearly require personal waiver by the defendant:
The rule has a clear meaning – to guarantee the right of jury trial unless the record shows a clear waiver by the defendant himself either orally or in writing.
State v. Sandmoen, 390 N.W.2d 419, 424 (Minn. App. 1986). The rule is strictly construed. State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984). It is not sufficient for defense counsel to waive that right for the defendant, even if the defendant is present when counsel waives the right. Sandmoen, 390 N.W.2d at 423-24.
Here, respondent concedes that LaRose did not personally waive his right to a jury trial. The district court erred in permitting a bench trial without the requisite personal waiver. We, therefore, reverse and remand with directions to the district court to allow LaRose to personally make the required waiver or exercise his right to be tried by a jury.
Affirmed in part, reversed in part, and remanded.
Pub. L. 280 only applies in six states: Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. 18 U.S.C. § 1162(a). Red Lake Reservation, in Minnesota, is specifically excluded from Pub. L. 280.
 There is a narrow exception to the prohibition, for research purposes. See Minn. Stat. § 152.21, subd. 6 (2000).