This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Christopher A. Hondl,



Filed February 10, 2004

Affirmed in part and Remanded

Kalitowski, Judge


Steele County District Court

File No. K3-02-1326


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)


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


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of third-degree assault, arguing that the district court abused its discretion in requiring appellant to wear restraints throughout the course of his trial and in applying an upward departure to appellant’s sentence under Minn. Stat. § 609.1095, subd. 2 (2002), while denying appellant supervised release under Minn. Stat. § 609.1095, subd. 3(a) (2002).  We affirm the conviction, but remand to the district court for resentencing.




The decision to require a criminal defendant to wear restraints while in court is within the discretion of the district court, and we will not overturn a district court’s decision absent an abuse of discretion.  State v. Shoen, 578 N.W.2d 708, 713 (Minn. 1998) (Shoen I).  But “[r]equiring a criminal defendant to appear in shackles or restraints is an inherently prejudicial practice that is constitutionally permissible only when ‘justified by an essential state interest specific to each trial.’”  Shoen I, 578 N.W.2d at 713 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 1346 (1986)).  In determining whether restraints are justified, courts consider the following factors:  (1) the seriousness of the charge; (2) the defendant’s temperament and character; (3) the defendant’s age and physical attributes; (4) the defendant’s past record; (5) the defendant’s prior escapes or attempted escapes; (6) threats made by the defendant to cause a disturbance; (7) the size and mood of the audience; (8) the nature and security of the courtroom; and (9) any less restrictive available alternatives.  State v. Stewart, 276 N.W.2d 51, 62 n.5 (Minn. 1979).  “A trial court need not wait for a defendant to cause disruptions to require restraints; rather, the need for restraints may be inferred ‘from attributes of the defendant or his prior conduct.’”  State v. Chambers, 589 N.W.2d 466, 475 (Minn. 1999) (ruling that a district court did not abuse its discretion in making a defendant wear an inconspicuous leg brace where the defendant was facing a serious charge, had a history of fleeing police, was young, and in apparent good health) (citing Stewart, 276 N.W.2d at 62).

Here, appellant argues that he was impermissibly restrained throughout trial.  Respondent points out in its brief that it was never stated on the record whether appellant was restrained throughout trial, but respondent does not contest the fact in its brief.  Thus, we will assume appellant was restrained, although our review of the record indicates that he was restrained only while he was being transported to and from the courthouse.

If the district court orders a defendant to wear restraints, it shall state the reasons for the restraints on the record and outside the presence of the jury.  Minn. R. Crim. P. 26.03, subd. 2(c).  Assuming that the district court ordered appellant to wear restraints during trial, the reasons for the restraints were not clearly stated in the record as required by Minn. R. Crim. P. 26.03, subd. 2(c).  While it is error to require a defendant to wear restraints without stating reasons on the record, this court will examine the record to determine if the decision was objectively justified.  State v. Lehman, 511 N.W.2d 1, 3 (Minn. 1994).  If the record supports the district court’s decision, the error is harmless.  Id

Here, a review of the record indicates that if appellant was required to wear restraints throughout the trial, that decision was justified.  Appellant was charged with third-degree assault, a violent felony, for an unprovoked attack on his cellmate.  Appellant was convicted of second-degree assault in 1991, two counts of fifth-degree assault in 1994, two counts of second-degree assault in 1997, third-degree assault in 1997, and he was in jail pending trial on first-degree and second-degree assault charges at the time of the current offense.  Appellant is six feet tall, weighs 210 pounds, and was 31 years old at the time of trial.  This case is factually distinguishable from Shoen I in that Shoen was a “model prisoner” with no prior history of violence who did not pose a threat to others.  578 N.W.2d at 709-10.  Here, appellant was charged with a violent felony, had been convicted of violent felonies in the past, had displayed violent behavior while incarcerated, is young, and is in good health.  On these facts, we conclude it would not be an abuse of discretion if the district court ordered appellant to wear restraints throughout the trial.

            Moreover, an appellant required to wear restraints in front of a jury during trial is not harmed unless the jury is aware that appellant is wearing a restraint.  State v. Shoen, 598 N.W.2d 370, 378 (Minn. 1999) (Shoen II).  Here, there is no evidence that any of the jurors saw appellant wearing restraints while in the courtroom.  Appellant never argued at trial that the restraint may have been visible to the jury in the courtroom.  And a review of the record does not establish prejudice from jury awareness that appellant was wearing restraints during the trial.

            While appellant argues that one of the jurors may have seen him wearing restraints outside the courtroom, seeing a defendant in restraints outside the courtroom is “far different from seeing a criminal defendant restrained in the courtroom throughout the trial.”  Shoen II, 598 N.W.2d at 378.  Moreover, Shoen II noted that

while the unusual sight of a criminal defendant restrained throughout trial may likely lead a jury to believe that the defendant is an especially dangerous individual, the sight of a criminal defendant restrained during transport to or from the courtroom is likely to be seen for just what it is—standard law enforcement practice.


Id. (citation omitted).

            Moreover, the member of the jury that appellant claims may have seen him in restraints before the second day of the trial was excused and did not take part in deliberations.  Although appellant argues that the juror may have communicated to other jurors that he saw appellant in restraints, there is no evidence of this.  Further, the district court instructed the jurors on several occasions that they were not to discuss the case amongst themselves before the conclusion of the trial.  Because we conclude that the record supports the district court’s decision requiring appellant to wear restraints and appellant was not prejudiced by this decision, we affirm the conviction.


            The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            Appellant contends, and respondent concedes, that the district court erred in denying him supervised release after sentencing him to an upward durational departure under Minn. Stat. § 609.1095, subd. 2.  Although we are not bound by respondent’s concession, we agree. 

            Minn. Stat. § 244.05, subd. 1b(a) (2002), provides that a criminal defendant

sentenced to prison for a felony offense committed on or after August 1, 1993, shall serve a supervised release term upon completion of the inmate’s term of imprisonment . . . .  The amount of time the inmate serves on supervised release shall be equal in length to the amount of time remaining in the inmate’s executed sentence after the inmate has served the term of imprisonment and any disciplinary confinement period imposed by the commissioner.


For purposes of this statute, “term of imprisonment” is the period of time equal to two-thirds of the inmate’s executed sentence.  Minn. Stat. § 244.01, subd. 8 (2002).  Thus, under this statute, appellant would be entitled to supervised release after serving two-thirds of his 60-month sentence.

            In contrast, Minn. Stat. § 609.1095, subd. 3(a), states that “[a]ny person convicted and sentenced as required by this subdivision is not eligible for probation, parole, discharge, or work release, until that person has served the full term of imprisonment imposed by the court, notwithstanding sections 241.26, 242.19, 243.05, 244.04, 609.12, and 609.135.”  Thus, someone sentenced under this subdivision is denied supervised release.

            But here, appellant was given an upward durational departure from the presumptive sentence under Minn. Stat. § 609.1095, subd. 2.  And defendants sentenced under subdivision 2 to an upward departure are specifically excluded from the provisions in subdivision 3(a).  Minn. Stat. § 609.1095, subd. 3(a).  This statute does not grant the district court discretion to deny a felon supervised release.

            We thus conclude that a felon sentenced under Minn. Stat. § 609.1095, subd. 2, would be entitled to supervised release pursuant to Minn. Stat. § 244.05, subd. 1b(a).  And because the district court abused its discretion in denying appellant supervised release, we remand for resentencing.

            Affirmed in part and remanded.