This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-638

 

State of Minnesota,

Respondent,

 

v.

 

Frederick Arden Hamilton,

Appellant.

 

Filed March 25, 2003

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 01072122

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center Minneapolis, MN 55487 (for respondent).

 

John M. Stuart, State Public Defender, Theodora Gaїtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant).

 

Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant Frederick Hamilton challenges his conviction for solicitation of prostitution, arguing that the trial court abused its discretion in denying his request, made on the scheduled trial date, for a continuance to allow appellant to obtain private counsel. Appellant had contacted an attorney, who appeared at the hearing to support the request for a continuance. Appellant also argues that the denial of a continuance denied him his constitutional right to counsel of his choice. Finally, appellant argues that the agreed-on "trial" to the court on stipulated facts, which was not used to preserve any issues for appeal, was not an adversarial proceeding, and therefore violated appellant's due process right to a fair trial. We affirm.

FACTS

On August 30, 2001, appellant Frederick Hamilton was charged with one count of solicitation, inducement, and promotion of prostitution, Minn. Stat. 609.322, subd. 1(2) (2000). On September 26, 2001, appellant pleaded not guilty to the charged crimes. At this hearing, public defender Arthur Martinez told the district court that a trial was scheduled for November 26, 2001. Appellant was present at this hearing.

On November 26, 2001, the trial was continued until November 28, 2001, on the defense and prosecution's joint request, due to the unavailability of a prosecution witness. On November 28, 2001, appellant requested a continuance to obtain private counsel. The district court denied appellant's request for a continuance. Appellant stated that he was unaware that the matter was scheduled for trial, instead believing that it was a preliminary hearing.

The matter was then reassigned and proceedings began on the same day, November 28, 2001, at 3:42 P.M. Appellant's counsel moved for a continuance and leave for appellant to proceed pro se. Appellant told the district court that he had been thinking about firing defense counsel for some time and had decided that he was going to tell his public defender that day that he wanted to hire private counsel. Appellant said that he would feel better if counsel was not working for the state and that "he was concerned" about counsel's workload. Appellant also requested a continuance to prepare his case, deal with witnesses, and obtain records. Appellant also told the district court that he thought a pretrial hearing was scheduled for that day and not a trial.

The state argued that they were concerned that if a continuance was granted the two victims, the juvenile prostitutes, may not appear because they were afraid of appellant. The state also argued that appellant, first, made a speedy trial demand, and now appellant was attempting to delay proceedings so that the witnesses would not appear.

On November 29, 2001, the district court granted appellant's motion to proceed pro se and appointed Mr. Martinez as advisory counsel. Appellant again requested a continuance, stating that he wanted to obtain some records from Illinois and arrange for witnesses. The district court found appellant's explanation that he was unaware that it was a trial date "not credible and implausible" because the trial date was set in open court on September 26, 2001, with the defendant present. The district court also determined that appellant's reasons for discharging Mr. Martinez were not good reasons to discharge an attorney on the day of trial. The district court discussed the fact that defense counsel and appellant had not made contact after appellant bailed out of jail because appellant was not living at the last known address, only occasionally checked his mail, and did not inform either his attorney or the investigator of his whereabouts. The district court also recognized that appellant never returned phone calls made by defense counsel or the defense investigator. The district court noted that appellant's public defender, Arthur Martinez, a seasoned and respected criminal-defense attorney, was ready to proceed to trial. The district court stated that appellant claimed he had wanted to retain a private attorney for some time but that the district court has

heard nothing about who the lawyer is * * * [or] that he's been hired. So we've heard talk but no action on that front. And even if we accept this as something that's come up as early as Monday, I mean we've had * * * almost four full days.

 

The district court found there was substantial prejudice to the state because of the possibility that the witnesses, due to their age and the stress and anxiety of testifying, might not be available and also that appellant might contact the witnesses. However, the court then noted that the concept of fairness and the possibility of a long prison sentence weighed in favor of granting a continuance and outweighed the prejudice to the state. A continuance was granted until December 10, 2001. Appellant was told by the district court that it would be preferable for him to get an attorney as soon as possible. The court told him to be ready to go to trial on December 10, 2001. On December 10, appellant again told the district court that he was unable to proceed. Appellant told the district court that he was unable to prepare his case because he could not speak with Mr. Martinez and could not get the law materials needed to prepare. Appellant also told the court that he wanted to hire Keith Ellison to represent him. Mr. Ellison was not in the courtroom. The district court told appellant that Ellison would have to be "ready and sign on as [appellant's] counsel" that afternoon. During the proceedings held in the afternoon Ellison was present and told the court that appellant was making a good faith effort to retain him, that he had not yet been retained, and that he expected to be able to file a certificate of representation within one week. Mr. Ellison also requested a four to six week continuance in order to be retained and to become familiar with the file.

The district court denied appellant's request for another continuance. Appellant then stated that he wanted Mr. Martinez, his original public defender, to represent him. Attorney Martinez stated that he was unable to proceed that day because appellant had not contacted him since the last hearing and Martinez had only limited contact with the investigator or appellant since the last court hearing. The district court denied appellant's request for yet another continuance, but recessed the trial until December 13, 2001.

On December 13, defense counsel stated to the court that appellant waived a jury trial and that he would voir dire appellant according to Minn. R. Crim. P. 26.01, which outlines "the things to be done on a stipulated facts [trial] and what should be waived." The court told appellant that by waiving a jury trial and proceeding by a trial on stipulated facts he would be giving up the right to cross-examine witnesses, the right to testify himself, and the right to have a jury trial. After appellant executed a document waiving his right to a jury trial, the court also explained what waiving a jury trial meant and questioned appellant as to his mental state and the ability to consult with counsel. The court also explained what a stipulated-facts trial is, the possibility of conviction, and that under a stipulated-facts trial all the statutory elements must be met before he could be found guilty. The court received into evidence the Minneapolis Police Department reports, a search warrant prepared and executed by Sergeant Schmidt, the statement of Melva Richards, and a Chicago police report of appellant's arrest.

On December 20, 2001, the court reconvened. The court stated that, as a matter of law, it was uncertain whether the complaint sufficiently sets forth the charge, particularly because there was no "reference to intentionally that is made in the Subdivision 1 of the statute" that appellant was charged with. The prosecution stated that the element of intent was incorporated in Minn. Stat. 609.321, subd. 7 (2000), which states that a person "promotes the prostitution of an individual" when he "knowingly" performs enumerated acts. After deliberation, the court then found that appellant had sufficient notice of the element of intent. The court initially requested that the attorneys submit briefs on the issue, but decided not to require the briefs because the court was required to render a verdict within seven days. Following a recess, the prosecution argued that the defect in the complaint was curable, that it was a pretrial issue that had not been challenged, that the element of intent was incorporated in the definition of promoting prostitution and, therefore, the requirements of probable cause and statutory notice of the offense were met, and that the state could amend the complaint at any time, including at trial.

The district court concluded that every element of the offense was proved, that the element of intent was incorporated in the definition of promoting prostitution, and agreed that the issues were pretrial legal issues that had not been timely raised and, thus, were waived. The court noted that its role in a stipulated facts trial was as a trier of fact and "not the caller of law." But, the court noted that it would not hesitate to find appellant not guilty if the defect had not been curable and if he had not been given sufficient notice by the use of the word "knowingly" in the definitions. The district court summed up and found that every element of the crime had been proved beyond a reasonable doubt. The court issued its findings of fact and verdict of guilty on December 28, 2001. This appeal follows.

D E C I S I O N

Appellant argues that the district court's denial of his request for a continuance was arbitrary and that as a result he was denied his constitutional right to be represented by an attorney. Appellant also contends that the district court abused its discretion when it denied his request because it was not unreasonable or designed to delay the trial.

The Sixth Amendment and Minn. Const. art. I, 6, provide that a criminal defendant has the right to the assistance of counsel for his defense. This right includes a fair opportunity to secure counsel of his choice. An indigent defendant has the right to be provided competent counsel in all criminal proceedings. But the right of an indigent to have appointed counsel does not give him the unbridled right to be represented by a court-appointed public defender of his choice. State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993). The granting of continuances is a matter within the trial judge's discretion, and the decision should be based on all facts and circumstances surrounding the request. State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). A defendant may not demand a continuance for the purpose of delay or obtain a continuance by arbitrarily choosing to substitute counsel at the time of trial. In determining whether the trial court was within its discretion in denying a motion for a continuance, this court looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial. State v. Huber, 275 Minn. 475, 482 148 N.W.2d 137, 142 (1967).

The district court did not abuse its discretion here when it denied appellant's motion for yet another continuance. The court could have granted appellant an additional continuance, but it was not error for the court not to do so. On November 28, 2001, the day the matter was scheduled for trial, appellant's public defender told the court that it was the first time that appellant stated that he was dissatisfied with his performance and wanted to hire a private attorney. Appellant admitted that he had been thinking about replacing his attorney for some time, but it was not until his trial date that he requested substitute counsel. Appellant's initial request for a continuance to seek other counsel was untimely, yet appellant was given additional time.

In effect, appellant was granted at least three continuances. The trial was originally scheduled for November 26, 2001, and was continued until the 28th for the prosecution to obtain witnesses. The court on November 29, 2001, granted a continuance to December 10, 2001, for appellant to prepare for trial. At that time the court stated that appellant should appear on December 10, ready for trial and also told appellant "to get a lawyer on board as soon as possible." When appellant returned to court on December 10, he stated that he had talked with an attorney, but had not hired him. The court recessed until the afternoon and told appellant that he had better return with counsel retained. When court reconvened, the prospective counsel appeared and stated that he had not been retained, but there were discussions and that he expected a retainer within a week. This did not comply with the court's instructions at the November 25 appearance. Further, although the court did not formally grant a continuance (by name) on December 10, when attorney Martinez was reappointed counsel, the case was recessed until December 13. Thus, appellant was given an additional three days to prepare for trial.

On these facts, the court did not abuse its discretion in refusing appellant's request for another continuance and did not deny him his counsel of choice. The court gave appellant every reasonable opportunity to retain private counsel.

II.

 

Appellant argues that his trial on stipulated facts was not authorized by the rules of criminal procedure and did not satisfy constitutional requirements for a trial because it was essentially a guilty plea without an explicit admission of guilt. Appellant argues that the purported trial was, in fact, an Alford plea and not a Lothenbach stipulation.[1] We disagree.

Appellant's reliance on Minn. R. Crim. P. 15.01 governing guilty pleas is misplaced. There is no indication in the record that appellant pleaded guilty. A defendant enters an Alford plea by pleading guilty to an offense while maintaining his innocence, because he reasonably believes, and the record establishes, that the state has sufficient evidence to obtain a conviction. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The fact that a defendant is entering an Alford plea must be indicated explicitly on the record. There is nothing in this record that indicates that this was an Alford plea. See State v. Goulette, 258 N.W.2d 758, 761 (Minn.1977) (stating it is "absolutely crucial that when an Alford-type plea is offered the trial court should not cavalierly accept the plea but should assume its responsibility to determine whether the plea is voluntarily, knowingly, and understandingly made"). The term, "Alford plea" was not even mentioned. See Ecker, 524 N.W.2d. at 717 (stating that it is important for counsel or the judge to indicate explicitly on the record that defendant is entering Alford-type plea). The record shows that the district court explained to appellant what a Lothenbach trial, a trial on stipulated facts, meant. We reject appellant's argument that he was deprived of a fair trial. Minn. R. Crim P. 26.01 specifically allows for a trial on stipulated facts.

Minn. R. Crim. P. 26.01, subd. 3 (2002), states:

By agreement of the defendant and the prosecuting attorney, a case may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall 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. Upon submission of the case on stipulated facts, the court shall proceed as on any other trial to the court. If the defendant is found guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.

Under Rule 26.01 appellant acknowledged and waived his rights to testify at trial, to have the prosecution witnesses testify in open court in appellant's presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and waiver are on the record. The rule provides that the district court then proceeds as in any other trial to the court. The court did. It weighed the evidence and determined that the state proved appellant's guilt by proof beyond a reasonable doubt.

An examination of the record reveals enough evidence to support the district court's conclusion that appellant was guilty of promoting prostitution. According to the Minneapolis police report, one of the victims told Sergeant Schmidt that appellant was "a pimp and told [her and her sister, the other victim] the rules of prostitution while working for him." According to the victims, they worked as prostitutes through appellant's Minneapolis and Chicago escort services, and that appellant had, at times, transported them to Chicago, Illinois to work on the streets as prostitutes as well as taking them to Gary, Indiana truck stops. In addition, appellant took nude photographs of the victims to advertise on the Internet. The record contained evidence of appellant's violence and threats of violence. One of the victims had been beaten when she expressed her desire to leave appellant's control, and appellant threatened to kill her if she tried. The victims both witnessed appellant purchase a shotgun on one of their trips to Chicago, Illinois.

Taking the record as a whole, the evidence was sufficient for the court to find appellant guilty of promoting prostitution.

Affirmed.



[1] A Lothenbach stipulation is an agreement whereby the defendant agrees to have the case tried on stipulated facts. This agreement waives the defendants right to a jury-trial and to confront witnesses. See State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).