This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-848

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Edward Turner,

Appellant.

 

Filed April 15, 2003

Reversed and remand; motion denied

Willis, Judge

 

Pennington County District Court

File No. K601767

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103; and

 

David M. Olin, Pennington County Attorney, Courthouse, Box 396, Thief River Falls, MN† 56701 (for respondent)

 

Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN† 55105 (for appellant)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.

 

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Charles Edward Turner appeals his conviction of felony domestic assault under Minn. Stat. ß 609.2242, subd. 4 (2000), arguing that he did not knowingly and intelligently waive his right to a jury trial.† Because the record shows that the district court failed to comply with Minn. R. Crim. P. 26.01, subd. 1(2)(a), we reverse and remand.

FACTS

††††††††††† In December 2001, Turner threw items at his wife, pushed her onto a bed, and threatened to kill her.† Turnerís wife reported the incident to the Thief River Falls police who subsequently arrested Turner.† Because he had been convicted in April and October 2000 of domestic assaults against his wife, the state charged Turner with felony domestic assault.

At a pretrial hearing in January 2002, Turnerís attorney requested a bench trial.† Turner did not waive a jury trial personally in writing or orally on the record.† The district court found Turner guilty of domestic assault and sentenced him to an executed term of 29 months.† This appeal follows.

D E C I S I O N

I.

††††††††††† Turner argues that his waiver of the right to a jury trial was not knowing or intelligent because the district court failed to advise him of his right to a jury trial and he neither waived that right in writing nor orally on the record in open court.

††††††††††† The Minnesota Rules of Criminal Procedure allow a defendant to waive a jury trial if he does so knowingly and intelligently:

The 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).† Strict compliance with the jury-trial waiver requirement is intended to assure that the waiver is voluntarily and intelligently made.† State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).

††††††††††† The record does not show that Turner (1) was advised by the district court of his right to a jury trial, (2) had an opportunity to consult with his lawyer regarding his right to a jury trial, or (3) personally in writing or orally on the record in open court waived his right to a jury trial.† The state acknowledges that the district court failed to comply with rule 26.01, subd. 1(2)(a).

Relying on a 1925 decision of the Minnesota Supreme Court, the state argues that Turnerís conviction nevertheless need not be reversed because, by failing to object, Turner ďacquiescedĒ to a court trial.† See State v. Graves, 161 Minn. 422, 424, 201 N.W. 933, 934 (1925) (holding that defendant waived right to jury trial because he neither objected to bench trial nor argued in his motion for a new trial that he was denied a jury trial).† But the stateís reliance on Graves is misplaced.† The amended rules of criminal procedure govern all criminal actions commenced after January 1, 1990.† In re Rules of Criminal Procedure, No. C1-84-2137 (Minn. Dec. 13, 1989) (order).† Accordingly, because rule 26.01 did not exist when Graves was decided, the holding in Graves has no application here.[1]

Since rule 26.01 in its current form was adopted, this court has held that even if a convicted defendant was represented by counsel who purported to waive a jury trial on the defendantís behalf, the waiver is invalid if the district court fails to comply with rule 26.01, subd. 1(2)(a).† See State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002) (reversing and remanding when defendantís jury-trial waiver did not comply with rule 26.01, subd. 1(2)(a)).† We conclude that Turner cannot be deemed to have acquiesced to a court trial.

II.

The state also argues that Turner cannot assign as error the jury-trial waiver because he failed to object to the district courtís noncompliance with rule 26.01, and, thus, the issue can be reviewed on appeal only if there was plain error.† See generally State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (applying plain-error analysis when defendant waived jury-instruction issue by failing to object at trial).† We apply plain-error analysis to unobjected-to error when a defendantís decision to not object to an issue at trial serves as a waiver of that issue on appeal.† See State v. Peterson, 533 N.W.2d 87, 91 (Minn. App. 1995); see also Minn. R. Crim. P. 31.02.† But a waiver of the constitutional right to a jury trial must be effected in accordance with the rules of criminal procedure.† See State v. Roberts, 651 N.W.2d 198, 201-02 (Minn. App. 2002) (discussing waiver of right to 12-person jury), review denied (Minn. Dec. 17, 2002).† Here, the procedure set forth in Minn. R. Crim. P. 26.01, subdivision 1(2)(a), was not followed.† Turner did not, therefore, waive his right to a jury trial, and the plain-error test does not apply.

A waiver of the right to a jury trial must be personal, explicit, and in accordance with rule 26.01.† See State, City of Tracy v. Neuman, 392 N.W.2d 706, 709 (Minn. App. 1986) (holding that failure of defendant to waive jury trial either in writing or orally on the record in open court requires reversal of conviction and remand for a new trial).† The requirements of rule 26.01 are clear.† Because those requirements were not followed here and Turner did not personally and explicitly waive his right to a jury trial, his conviction is reversed and this matter is remanded to the district court for proceedings not inconsistent with this opinion.

III.

††††††††††† The state moves to strike portions of Turnerís brief as containing improper argument.† Because the disputed statements have not affected our consideration of the merits, we decline to strike them from the brief.† See Kelly v. City of Minneapolis, 598 N.W.2d 657, 665 n.7 (Minn. 1999).†

Reversed and remanded; motion denied.

 



[1] The Minnesota Rules of Criminal Procedure were first adopted effective July 1, 1975.† In re Rules of Criminal Procedure, No. 45517 (Minn. Feb. 26, 1975) (order).