This opinion will be unpublished and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

A03-1759

 

Ann Violet Jussila, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed June 29, 2004

Affirmed

Harten, Judge

 

Clay County District Court

File No. K6-01-1908

 

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

 

Lisa Nelson Borgen, Clay County Attorney, 807 North Eleventh Street, P.O. Box 280, Moorhead, MN 56560; and

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            On appeal from an order denying postconviction relief, Ann Jussila argues that her jury-trial waiver was not knowing, voluntary, and intelligent and that her sentence is contrary to law.  We affirm.

FACTS

            On 28 October 2001, police attempted to stop a car driven by Ann Jussila because she was driving erratically.  Jussila led police on an 11-mile high-speed chase, during which she collided with a police car and crashed into vehicles stopped at a railroad crossing.  After the crash, police approached Jussila’s car and noticed “a strong odor of alcoholic beverages.”  Jussila was arrested, and blood tests showed that her blood-alcohol concentration was .29.   

Jussila was charged with multiple offenses; at an omnibus hearing, she waived her right to a jury trial.  After a bench trial, the district court found Jussila guilty of fleeing a peace officer, second-degree DWI, felony criminal vehicular operation, and two counts of criminal vehicular operation.  Jussila was sentenced as follows: stay of imposition of sentence with 120 days in jail for fleeing a peace officer; stay of execution of 12 months and one day stayed for felony criminal vehicular operation, running consecutive to any sentence for fleeing a peace officer; 12 months with ten months stayed for second-degree DWI, running concurrent to her sentence for fleeing a peace officer; and two 12-month sentences with ten months stayed for criminal vehicular operation, running consecutive to each other and to her sentence for fleeing a peace officer.  Under the various stays, the district court  placed Jussila on probation. 

The Department of Corrections filed a probation violation report alleging that Jussila failed to comply with the conditions of her probation and recommending that the stays be revoked.  A revocation hearing was held on 26 August 2002 and the district court revoked the stays and imposed or executed Jussila’s sentences. 

Approximately one year after her sentencing, Jussila moved for postconviction relief, arguing that her convictions should be reversed because the district court did not ensure that she understood her right to a jury trial before accepting her jury-trial waiver and that her sentence should be modified because it is contrary to law.  The postconviction court denied these motions and Jussila now appeals.

D E C I S I O N

On appeal from a postconviction proceeding, the reviewing court will not disturb the postconviction court’s decision absent an abuse of discretion.  Gustafson v. State, 477 N.W.2d 709, 712 (Minn. 1991).  

1.         Jury Trial Waiver

 

Under both the United States and Minnesota Constitutions, a defendant is entitled to a trial by jury.  U.S. Const. art. III, § 2, cl. 3, amend. VI; Minn. Const. art. I, §§ 4, 6.  The accused may waive this constitutional right if the waiver is “knowing, intelligent, and voluntary.”  State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991). 

The Minnesota Rules of Criminal Procedure set out the procedure for jury trial waiver:

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).  The district court has discretion whether to accept the waiver and, before doing so, should be satisfied that the defendant was informed of her rights and that the waiver was voluntary.  State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979). 

The following exchange took place between the district court and Jussila at an omnibus hearing:

The Court:  . . .  But I need, Ms. Jussila, to ask you whether you’re willing to give up your right to have a jury trial in these charges and have the case just tried before me.

 

[Jussila]:  Yes, I’m willing.  [Defense counsel] and I talked about it and I was explained everything.  

 

Jussila does not dispute that she waived her right to a jury trial during this exchange.  Rather, she asserts that her waiver was deficient because the district court did not ensure she understood the basic elements of a jury trial, as required by United States v. Delgado, 635 F.2d 889 (7th Cir. 1981).  In Delgado, the court held that a defendant should be informed that a jury is composed of 12 members of the community, that the defendant may participate in the selection of jurors, that the verdict of the jury is unanimous, and that if a jury is waived a judge will decide guilt or innocence.  Id. at 890.  But while Delgado provides “helpful guidelines” in ensuring that the waiver is voluntary and intelligent, it is not a binding format that Minnesota courts are obligated to follow.  Ross, 472 N.W.2d at 654.  In Minnesota, “[t]he nature and extent of the inquiry may vary with the circumstances of a particular case.”  Id. 

Jussila clearly stated on the record that she was willing to waive her right to a jury trial.  She advised the district court that she had discussed the waiver with her attorney, and that her attorney explained the implications of the waiver.  Although further inquiry by the district court may have been helpful in ensuring that Jussila understood the implications of her waiver, such an inquiry is not required.  Under these circumstances, Jussila’s waiver was knowing, voluntary, and intelligent.  See Pietraszewski, 283 N.W.2d at 890 (concluding jury-trial waiver was valid where court asked defendant if he was willing to waive a jury trial and defendant replied, “That’s true, Your Honor”).  Thus, the postconviction court did not abuse its discretion by denying Jussila’s motion to reverse her convictions.

2.         Sentencing

“When multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred.”  Minn. Sent. Guidelines cmt. II.B.101.  This court will not interfere with the district court’s exercise of its broad discretion in sentencing as long as the sentence is authorized by law.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

Jussila argues that the postconviction court abused its discretion by denying her motion to modify her sentence because the court failed to sentence her in the order in which her offenses occurred.  The district court determined that the order of Jussila’s offenses was indistinguishable and first sentenced her for the crime of fleeing a peace officer.  But the crime of DWI occurs the moment an intoxicated person drives, operates, or takes physical control over a motor vehicle.  See Minn. Stat. § 169A.20, subd. 1(1) (2000), (stating “[i]t is a crime for any person to drive, operate, or be in physical control of any motor vehicle” while under the influence of alcohol); Minn. Stat. § 169.26A, subd. 2 (2000) (stating second-degree DWI is a gross misdemeanor).  Thus, Jussila argues that the crime of driving while impaired occurred prior to her crime of fleeing a peace officer and the district court’s order of sentencing constitutes an abuse of discretion. 

Although Jussila’s crimes were not sentenced in the proper order, a remand for resentencing is not required because the court’s error is harmless.  Minn. Stat. § 609.035, subd. 5 (2000) states:

[A] prosecution or conviction for [fleeing a peace officer] is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.  If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the sentencing guidelines.

 

See also Minn. Sent. Guidelines II.F.6.  (authorizing permissive consecutive sentences for fleeing a peace officer).  Thus, under the plain language of Minn. Stat. § 609.035, subd. 5, the district court may impose a consecutive sentence for Jussila’s fleeing offense.  Because Jussila will serve the same amount of time whether the district court first sentenced her for the crime of fleeing a peace officer or second-degree DWI, we conclude that the district court’s error is harmless.  See State v. Willis, 364 N.W.2d 498, 501 (Minn. App. 1985) (no reversal where sentencing error harmless).

Affirmed.