This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Dennis Joseph Pearson, petitioner,





State of Minnesota,



Filed November 19, 2002


Hudson, Judge


Hennepin County District Court

File No. 99036922


Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, Minnesota 55101 (for appellant)


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


Jay M. Heffern, Minneapolis City Attorney, Mary Ellen Heng, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, Minnesota 55402 (for respondent)


            Considered and decided by Hudson, 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


            Appellant Dennis Joseph Pearson sought to withdraw his jury-trial waiver on mental incompetency grounds two weeks after his stipulated-facts trial and now challenges denial of postconviction relief.  We affirm. 


            On March 3, 2000, appellant waived his right to a jury trial and agreed to a stipulated-facts trial on two counts of gross-misdemeanor indecent exposure in exchange for dismissal of two other charges.  Appellant, represented by counsel, confirmed on the record that he understood the right he was waiving.  Nothing in the record indicates that appellant appeared confused, impaired, or otherwise incapable of appreciating the events that were transpiring.  The district court found appellant guilty and sentenced him to two consecutive terms of 365 days in jail but stayed imposition, provided that appellant abided by the terms of his probation.

            After violating his probation, appellant returned to court two weeks later, on March 17, 2000, and moved to withdraw his jury-trial waiver.  Appellant claimed that he was incompetent at the March 3 hearing because he was in a “dissociative state” during portions of the hearing, preventing him from understanding that the gross-misdemeanor offenses would be reduced to misdemeanors if he successfully completed probation.  Appellant also claimed that his mental condition may have been affected by an antidepressant medication he took the night before the hearing.

            The postconviction court concluded that appellant was competent at the time he waived his right to a jury trial.  The court examined the transcript of the March 3, 2000, hearing and determined that the terms of appellant’s settlement agreement were clearly explained.  Further, from the postconviction court’s actual recollection of the proceedings as well as its examination of the transcript, it found no indication that appellant was incompetent.  Consequently, the court denied appellant’s motion.

            On May 1, 2000, and September 1, 2000, appellant again appeared on probation violations and each time renewed his motion to withdraw his jury-trial waiver.  Appellant presented no additional evidence of incompetency at either appearance, but told the court that he believed he had been treated unfairly by the court’s repeated denials of his motion to withdraw his jury-trial waiver.  The trial court again denied appellant’s motion.

            More than one year later, on September 8, 2001, appellant filed a formal petition for postconviction relief.  Appellant’s counsel conceded that he had no new evidence to offer but wished to re-argue the jury-trial-waiver motion.  The court denied appellant’s motion for an evidentiary hearing concerning whether he knowingly and intelligently waived his right to trial by jury, stating that appellant could not raise this postconviction claim because he failed to appeal the court’s previous rulings on the motion.  This appeal followed.


This court reviews the decision of a postconviction court under an abuse of discretion standard.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  The scope of postconviction review is limited to whether the record sustains the postconviction court’s findings.  Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).  A criminal defendant who seeks postconviction relief bears the burden of demonstrating facts by “a fair preponderance of the evidence,” that warrant “reopening the case.”  Rainer, 502 N.W.2d at 787 (citing Minn. Stat. § 590.04, subd. 3).

Entitlement to a jury trial is a fundamental constitutional right, but this right can be waived if certain procedural safeguards are met.  State v. Roberts, 651 N.W.2d 198, 201 (Minn. App. 2002), pet. for review filed (Minn. Oct. 24, 2002).  Minn. R. Crim. P. 26.01, subd. 1(2), governs waiver of the right to a jury trial, providing in part that

[t]he defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.


Minn. R. Crim. P. 26.01, subd. 1(2)(a).  A defendant seeking to waive the right to a jury-trial must do so knowingly, intelligently, and voluntarily.  State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).  If not submitted in writing, a defendant must be present in court to personally communicate his or her jury-trial-waiver to the court.  State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002) (finding waiver invalid where not in writing or otherwise made part of record).

            The decision whether to accept a waiver of the right to jury trial is discretionary with the trial court.  State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979).  A defendant may withdraw his or her waiver, but must do so on a timely basis--that is, any time prior to the start of trial.  Minn. R. Crim. P. 26.01, subd. 1(3); see also State v. Jesmer, 293 Minn. 442, 196 N.W.2d 924 (1972) (finding reversible error where motion to withdraw waiver of jury trial filed day before trial date).   

            Here, however, appellant moved to withdraw his jury-trial waiver two weeks after he had been sentenced.  Therefore, appellant’s motion to withdraw his jury-trial waiver was untimely, and the postconviction court did not abuse its discretion in denying his motion on this basis alone. 

Appellant argues, and respondent concedes, that the postconviction court improperly stated that by failing to appeal the court’s earlier ruling, appellant forfeited the right to postconviction review.  A convicted criminal defendant is entitled to at least one state corrective process when constitutional violations are alleged.  State v. Knaffla, 309 Minn. 246, 251-52, 243 N.W.2d 737, 741 (1976).  This may be through either direct appeal or postconviction petition.  Id.  Thus, the postconviction court erred in finding that appellant waived his right to postconviction review. 

But the court nevertheless afforded appellant meaningful postconviction review of his claim of incompetency.  Appellant raised and argued the withdrawal-of-jury-trial waiver or “motion for withdrawal of waiver of jury trial” motion three times before filing the postconviction petition.  Appellant first raised the motion on March 17, 2000, and the court denied it.  Appellant raised the issue again on May 1, 2000, and the court denied it.  Appellant raised the issue a third time on September 1, 2000, and again, the court denied it.  At each of these hearings, the court found insufficient evidence of appellant’s incompetency, but advised appellant that the court would consider other evidence supporting appellant’s claim.  Appellant failed to present additional evidence of his incompetency at any of these hearings .

Appellant then filed a formal postconviction petition on September 8, 2001, seeking to set aside his waiver and subsequent conviction on the basis of incompetency.  The court denied the petition, stating that it had already ruled on the issue.  The court also found that, had it chosen to reconsider the claim on the merits, the court would still have denied it because: (1) appellant showed no signs of incompetency at the initial hearing; (2) appellant did not object to any of the procedures outlined during the initial hearing; and (3) appellant stated that he agreed with the structure of the settlement.

            In State v. Pietraszewski, 283 N.W.2d 887 (Minn. 1979), the supreme court held that a even a mentally ill criminal defendant may validly waive his or her right to a jury trial.  Id. at 889-90.  There, the defendant was incarcerated as a psychopathic personality in the Minnesota Security Hospital.  Id. at 889.  On appeal, Pietraszewski claimed he was mentally incompetent and could not validly waive his right to trial by jury.  The court concluded that “[t]he mere fact that the defendant is incarcerated or committed because of mental illness is not sufficient to invalidate a waiver.  A commitment because of mental illness is not a determination that a defendant is legally incompetent.”  Id. at 890.

            Similarly, in Fox v. State, 474 N.W.2d 821 (Minn. 1991), the defendant was incarcerated in the Minnesota Security Hospital and was taking Thorazine, an antipsychotic medication, in relatively small doses before and during his murder trial.  On postconviction appeal, Fox claimed that the drug impeded his ability to participate in his defense and that he was “unable to do anything without direction.”  Id. at 826.  The supreme court held that Fox was not entitled to re-open his case because he was taking relatively small doses of the drug, and he failed to corroborate his assertion that he could not function without direction or that he did not testify because the drug clouded his mind.  Id. at 825-26.

Here, appellant claimed he was mentally unstable and could not pay attention to and appreciate his surroundings.  Appellant maintains that, although he exhibited no outward manifestations of incompetency, he was in a “dissociative state” or “altered state of consciousness” at the time of the hearing, and he was incompetent as a result.  We find no merit in this claim.  Although appellant was receiving mental-health services, he was not, on this basis alone, incompetent to assert or waive his legal rights.  See Pietraszewski, 283 N.W.2d at 890 (holding psychopathic commitment not per se legal incompetence).  Appellant was unsure whether Amitriptyline, antidepressant medication he had taken the night before his trial, affected his mental condition.  Appellant stated, “I don’t know if the medication, you know, helped me for, uh, making me more not in tune.”  As in Fox, consumption of an antidepressant medication alone is insufficient to show incompetency by a preponderance of the evidence, when his claims of mental stupor were unsupported in the record.  See, e.g., Fox, 474 N.W.2d at 825-26 (holding consumption of antipsychotic medication insufficient to show mental incompetence where no outward manifestations of diminished capacity in record).

            Appellant also relies on various letters submitted by his treating psychiatrist, Dr. Hampton, who stated, inter alia, that based on his prior treatment and observations of appellant, appellant may have lapsed into a dissociative state during portions of the initial hearing.  But Dr. Hampton was not present at the March 3, 2000, hearing; therefore, his opinions do not conclusively establish appellant’s state of mind when he waived his right to a jury trial. 

            We hold that the postconviction court did not abuse its discretion in denying appellant’s petition for postconviction relief because (1) appellant filed his motion to withdraw his jury-trial waiver two weeks after his court trial and (2) appellant failed to carry his burden demonstrating his incompetency when he waived his right to a jury trial.