This opinion will be unpublished and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
Keith Alan Zerwas,
Pine County District Court
File No. K200683
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, MN 55063 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of attempted first-degree criminal sexual conduct, appellant Keith Alan Zerwas argues that the district court abused its discretion by denying a second continuance of the sentencing hearing to obtain a second sex-offender evaluation as promised in the plea agreement. Zerwas also argues that he should have been given an opportunity to withdraw his guilty plea because the court’s denial of a continuance breached the plea agreement. We affirm.
Zerwas was charged with several criminal-sexual-conduct offenses, third-degree assault, and malicious punishment of a child based on allegations that Zerwas had sexually abused his teen-aged daughter beginning during the summer of 1997 and continuing until the spring of 2000. Pursuant to a plea agreement, Zerwas pleaded guilty to a charge of attempted first-degree criminal sexual conduct, and the remaining charges were dropped. The presumptive guidelines sentence for the offense was an executed term of 43 months in prison. The plea agreement provided:
The county will agree to a dispositional departure if [Zerwas] is amenable to criminal sexual treatment. The issue of whether [Zerwas] is amenable will first be determined by a psychosexual evaluation. If deemed not amenable, [Zerwas] shall have the option of a second psychosexual evaluation. The parties may then argue to the court if they cannot agree on amenability. If amenable to treatment, the county will cap jail at 120 days.
At the plea hearing, Zerwas testified that he had reviewed the case, the plea agreement, and his trial rights with his attorney and that he understood everything. Zerwas testified that his attorney had very carefully reviewed the plea petition with him and had reviewed some things several times. Defense counsel explained that due to Zerwas completing only the ninth grade and possibly suffering lingering effects from a childhood brain injury, defense counsel was very careful to make sure that Zerwas understood his trial rights and the plea agreement. At the plea hearing, the district court went over the plea agreement and Zerwas’s trial rights very specifically.
On March 14, 2001, a licensed social worker, Don L. Moyer of Five County Mental Health Centers, conducted a sex-offender evaluation of Zerwas. Moyer found that Zerwas was not amenable to treatment.
On May 9, 2001, at the scheduled sentencing hearing, Zerwas requested a continuance. Defense counsel explained that he had not yet received the evaluation from Five County Mental Health and, thus, did not know whether a second evaluation would be necessary. Defense counsel told the court that he would assist Zerwas in obtaining a second evaluation if necessary. Defense counsel believed that it would be more appropriate for him to assist Zerwas than for a probation officer to do so because a probation officer’s job was to represent the state’s interest, not just Zerwas’s. Defense counsel estimated that if a second evaluation were needed, it would take two to three weeks to get an appointment and another two to three weeks before the report would be ready. The district court continued the sentencing until July 19, 2001.
On May 21, 2001, the district court issued an order releasing the evaluation from Five County Mental Health and a separate order authorizing the public defender’s office to employ a second evaluator to assess Zerwas’s amenability to treatment. After the order was issued, defense counsel, who was going on vacation in June, turned the file over to another attorney in his office to follow up on obtaining a second psychosexual evaluation. A second evaluation was scheduled for July 18, 2001, only one day before the continued sentencing hearing. In mid-July, Zerwas’s case was returned to the original defense counsel. On July 18, 2001, Zerwas contacted defense counsel and said that when he called to verify his appointment for the second evaluation, he was told that he would not be able to make it in time for the appointment because it was a four-hour trip to the evaluator’s office. Defense counsel told Zerwas to immediately call and reschedule his appointment, which Zerwas did, for July 31, 2001.
At the continued sentencing hearing on July 19, 2001, defense counsel requested a second continuance, noting that even if Zerwas had made it to the evaluation the previous day, the report would not have been completed in time for the evaluation. The district court denied a further continuance, explaining:
I believe that Mr. Zerwas was aware of the sentencing date when sentencing was continued from May 9, I believe it was scheduled for today’s date. Now, Mr. Zerwas has some responsibility in making sure that assessment is done in a timely fashion.
[Defense counsel] can make his record regarding what [the other defense counsel] did and the appointment that [the other defense counsel] made for this assessment, but Mr. Zerwas has a responsibility as well and in making sure that those appointments are made in a timely fashion.
It appears to this Court to be late in dates, on the day of sentencing and go once again and ask the Court to continue sentencing in this matter, because there hasn’t been the second sexual offender evaluation. Beyond that the Court has reviewed the report from the social worker that is dealing with the victim in this case the Court is concerned about how these continuances have impacted the child, it states, “before Court she is fearful to numbness. The foster mother or foster mom is getting verbal abuse and her behavior deteriorates” another line is, “that the victim is certainly frightened of him, Mr. Zerwas, in the outcome.” For her is very serious and devastating to put this child through another continuance and to leave the matter in limbo until we have a second sexual offender evaluation does not seem fair to this Court, or to this victim.
So for those two reasons and just being that Mr. Zerwas you have responsibility in making sure these matters are done in a timely fashion not just the lawyers that are involved in representing you and the impact of another continuance on the victim.
The district court sentenced Zerwas to the presumptive sentence.
1. The decision whether to grant a continuance is vested in the district court’s sound discretion and will not be reversed absent an abuse of discretion. State v. Sanders, 598 N.W.2d 650, 654 (Minn. 1999). The decision should be based on all the facts and circumstances surrounding the request. State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). The reviewing court must look to whether there was material prejudice to the defendant in preparing or presenting his case. State v. Bailey, 262 N.W.2d 406, 409 (Minn. 1977).
The district court denied Zerwas’s motion for a second continuance in part because it found that Zerwas had some personal responsibility to ensure that his second evaluation was performed in a timely manner. Zerwas argues that it was improper to assign any responsibility to him given his limited mental abilities. Zerwas claims that he suffers lingering effects from a childhood brain injury, and Moyer concluded that Zerwas had suffered cognitive damage, resulting in difficulty expressing himself and some disinhibition. But the record contains no evidence indicating that Zerwas was incapable of scheduling and keeping track of appointments. Instead, the record shows that when defense counsel told Zerwas to immediately call and reschedule his appointment, Zerwas did so.
Zerwas was present at the May hearing when the sentencing was continued until July 19, and he signed a notice of sentencing dated May 9 showing that sentencing was rescheduled for July 19. At the May hearing, defense counsel stated that it would take two to three weeks after the evaluation for a report to be prepared. Although his attorney scheduled the evaluation, Zerwas should have known that conducting the evaluation on July 18 would not allow enough time for the report to be prepared before sentencing and could have attempted to have the evaluation rescheduled. At the May hearing, the district court specifically instructed Zerwas, “[Y]ou are going to have to do whatever you have to do to cooperate in getting this completed in a timely fashion.”
More importantly, Zerwas failed to even attend the scheduled appointment on July 18, and he offers no reasonable excuse for that failure. Had Zerwas attended the appointment, he would have been in a better position to request a continuance because it would have required a continuance of only a few weeks until a report was produced, and Zerwas would not have been in a position to cause any further delays. See State v. Miller, 488 N.W.2d 235, 239-40 (Minn. 1992) (“Criminal defendants could stall their trials indefinitely if they were able to gain continuances merely by refusing to cooperate with [evaluators]”).
In denying the continuance, the district court also considered the impact of a further continuance on the victim, which is an appropriate consideration. Cf. State v. Beveridge, 277 N.W.2d 198, 199 (Minn. 1979) (citing potential prejudice to state as factor supporting denial of defendant’s request for a continuance).
Zerwas argues that denying a second continuance was improper because sentencing him before he obtained a second evaluation violated the plea agreement. The plea agreement, however, did not guarantee Zerwas a second evaluation; it gave him “the option of a second psychosexual evaluation.” Zerwas was given the opportunity, including financial assistance, to obtain a second evaluation, but he failed to exercise that option.
Finally, it has not been shown that Zerwas was prejudiced by the denial of a second continuance. Zerwas presented no evidence that a second evaluator would have found him amenable to probation. See State v. Smith, 367 N.W.2d 497, 503 (Minn. 1985) (upholding denial of defendant’s request for a continuance when record did not show that denial prevented defendant from obtaining expert testimony that he would otherwise have been able to obtain; defendant had about one month to obtain expert analysis before presenting his case and made no offer of proof that, with a continuance of a few more weeks, his expert would have been able to rebut state’s expert). We note that the record supports the first evaluator’s finding that Zerwas was not amenable to treatment.
2. Zerwas argues that the district court breached the plea agreement by sentencing him before he obtained a second psychosexual evaluation and, therefore, the case should be remanded for a hearing on whether he should be allowed to withdraw his plea.
“On demonstration that a plea agreement has been breached, the court may allow withdrawal of the plea, order specific performance, or alter the sentence if appropriate.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (citations omitted). The district court has discretion to determine the appropriate remedy. United States v. McGovern, 822 F.2d 739, 746 (8th Cir. 1987) (citing Santobello v. New York, 404 U.S. 257, 263, 92 S. Ct. 495, 499 (1971)).
But as already discussed, the plea agreement did not guarantee Zerwas a second evaluation; it gave him “the option of a second psychosexual evaluation.” Zerwas was given the opportunity, including financial assistance, to obtain a second evaluation, but he failed to exercise that option. Consequently, there is no basis to conclude that the district court breached the plea agreement.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.