This opinion will be unpublished and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
State of Minnesota,
Wallace J. Beaulieu,
Filed July 6, 2004
Affirmed in part, reversed in part, and remanded
Beltrami County District Court
File No. K9-02-1783
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, Judicial Center Annex, Suite 40, 619 Beltrami Avenue Northwest, Bemidji, MN 56601-3066 (for respondent)
John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction and sentence for failure to register as a predatory offender, Wallace Beaulieu argues that the district court prejudicially erred in giving a no-adverse-inference jury instruction without his consent, ranking his crime as a severity-level IV offense, and imposing the statutory maximum sentence under the career-offender statute. In a pro se brief, Beaulieu asserts that he was denied his constitutional right to a speedy trial. Because the jury instruction did not affect Beaulieu’s substantial rights and because Beaulieu was not denied his constitutional right to a speedy trial, we affirm his conviction. But because the district court failed to make required findings in establishing the severity level for Beaulieu’s crime, we reverse and remand to the district court for further findings on sentencing.
F A C T S
Wallace Beaulieu has been a registered predatory offender since 1996. As a predatory offender, Beaulieu is required to inform the Bureau of Criminal Apprehension (BCA) of his current address and submit change-of-address notifications to the BCA in writing at least five days prior to moving.
In February 2002, Beaulieu completed a registration form that listed his current address as the Pennington County jail. Beaulieu was granted a furlough from the jail to attend a funeral on May 30, 2002, and he was ordered to return to jail on May 31, 2002. Beaulieu did not return to jail, and a warrant was issued for his arrest.
In August 2002, Beaulieu was arrested in Bemidji, Minnesota. Because Beaulieu had been previously convicted of failing to properly register with the BCA, the state charged him with knowingly failing to register as a predatory offender under Minn. Stat. § 243.166, subd. 5(c) (2002), which authorizes increased penalties for subsequent convictions of failing to register. Beaulieu did not testify at his jury trial, but he stipulated to knowing that “between May 19, 2002 and August 30, 2002, he was obliged to provide official written notice at least five days in advance of any proposed new living address.”
The jury found Beaulieu guilty. At the time of Beaulieu’s offense, the crime of failing to register as a predatory offender, a second offense, was unranked under the Minnesota Sentencing Guidelines, and the district court determined “that the appropriate ranking of that offense is a severity level IV.” The district court also determined that Beaulieu is a career offender as defined by Minn. Stat. § 609.1095, subd. 4 (2002), which authorizes statutory maximum sentences for offenders who commit six or more felonies. Beaulieu received the statutory maximum sentence of sixty months without the possibility of parole. Beaulieu appeals, arguing that the district court reversibly erred in (1) giving a no-adverse-inference instruction, (2) denying him a speedy trial, and (3) ranking his crime as a severity-level IV offense and imposing the statutory maximum sentence under the career-offender statute.
D E C I S I O N
A defendant’s right not to testify is guaranteed by both the United States and Minnesota Constitutions. U.S. Const. amend. V (stating no person shall be compelled to be a witness against himself); Minn. Const. art. I, § 7 (same). The district court ordinarily should obtain the defendant’s permission before instructing the jury on the defendant’s right not to testify and the jury’s duty not to draw any adverse inference from the exercise of that right. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988). But when the defendant fails to object to the instruction, we review the error only if it affected substantial rights. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (applying plain-error analysis when defendant failed to object to no-inference jury instruction). An erroneous no-inference instruction affects substantial rights “when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.” Id. (citation omitted). To show such significant effect the defendant bears a heavy burden of proof. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).
The district court, without obtaining Beaulieu’s consent, read to the jury CRIMJIG 3.17, which states:
The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case.
10 Minnesota Practice, CRIMJIG 3.17 (1999).
The state does not dispute that the absence of Beaulieu’s consent to the instruction was error but argues that the error did not affect his substantial rights. Beaulieu contends that prejudice resulted from drawing attention to his silence, which may have caused the jury to conclude he was hiding something; and that the instruction was confusing because the state admitted a transcript of Beaulieu’s testimony from a prior proceeding and referred to this transcript as Beaulieu’s “testimony.”
Neither of these arguments meets the heavy burden of proof necessary to demonstrate a significant effect on the jury’s verdict. Because the instruction specifically admonishes the jury to draw no inference, a general claim that the jury would believe defendant is hiding something is an insufficient demonstration of prejudice. We also reject for two reasons the argument that the interplay between the instruction and the admission of a transcript of Beaulieu’s testimony in a previous case resulted in prejudice because it confused the jury. First, the district court clearly stated in the instruction “that defendant has not testified in this case.” Second, the previous testimony was an admission by Beaulieu that he had not returned to jail after the furlough. Thus, to the degree the jury might have thought that the admission was not Beaulieu’s previous testimony, that belief would have undermined the weight the jury would give to the admission, which would have the effect of weakening the state’s case, not Beaulieu’s. Beaulieu has not satisfied his burden to show a reasonable likelihood that the instruction prejudiced him by affecting the outcome of the trial, and the plain-error rule cannot be invoked to provide review.
In a pro se supplemental brief, Beaulieu argues that he was denied his constitutional right to a speedy trial. Under the United States and Minnesota Constitutions and the Minnesota Rules of Criminal Procedure, criminal defendants are entitled to a speedy trial. See U.S. Const. amends. VI, XIV; Minn. Const. art. I § 6; Minn. R. Crim. P. 11.10. In Minnesota, a defendant must be tried within sixty days after demanding a trial unless good cause is shown for the delay. Minn. R. Crim. P. 11.10. The time period shall not begin to run earlier than the date of a plea other than guilty. Id. “If trial is not commenced within 120 days after such demand is made and such a plea is entered, the defendant, except in exigent circumstances, shall be released. . . .” Id.
To determine whether a delay constitutes a deprivation of the right to a speedy trial, we apply a balancing test, considering (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant. State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977). Whether an appellant’s constitutional right to a speedy trial was violated is a question of law, which we review de novo. State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002) (stating constitutional issues are reviewed de novo).
The record shows that on November 7, 2002, Beaulieu entered a plea of not guilty and demanded a speedy trial. On December 16, 2002, Beaulieu requested that the judge assigned to hear his case recuse himself. A hearing was held on the recusal motion on January 2, 2003. At the January hearing, Beaulieu again referred to his speedy-trial demand. The district court acknowledged Beaulieu’s speedy-trial demand but informed Beaulieu that his trial would probably be delayed by a recusal. The district court gave Beaulieu time to consult with his attorney on how to proceed, and Beaulieu ultimately decided to maintain the request for recusal. The district court judge recused himself on January 7, 2003, and a new judge was assigned to the case on January 15.
Beaulieu moved for a bail reduction and a hearing was held on January 21, 2003. At the hearing, defense counsel informed the court of Beaulieu’s speedy-trial demand, stated that “the demand is about 79 days out” and requested that Beaulieu be released and placed on electronic monitoring. The district court informed the parties that Beaulieu’s trial could be set for the first week of February, and defense counsel stated that Beaulieu did not have a “problem” with that. The trial was held February 6, 2003.
Beaulieu’s speedy-trial demand began to run on November 7, 2002. Under Minn. R. Crim. P. 11.10, Beaulieu was entitled to a trial by January 5, 2003. Although his trial was not until February 6, 2003, Beaulieu was not denied his constitutional right to a speedy trial. First, the trial delay was caused, in major part, by asking the original judge assigned to his case to recuse himself. See State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) ("[W]hen the overall delay in bringing a case to trial is the result of the defendant's actions, there is no speedy trial violation."). Second, Beaulieu’s attorney consented to having his trial during the first week of February. See State v. Curtis, 393 N.W.2d 10, 12 (Minn. App. 1986) (stating that when a defendant has accepted without objection a trial date that is more than sixty days from the date of the speedy-trial demand, the defendant has waived his right to strict compliance with the sixty-day rule). Under these circumstances, we conclude that Beaulieu’s constitutional right to a speedy trial was not violated.
The Minnesota sentencing guidelines are represented by a grid, with categories of offense-severity levels for the offense of conviction on the vertical axis and offender criminal-history scores on the horizontal axis. Minn. Sent. Guidelines IV. The guidelines assign a severity level to most offenses, but certain offenses are left unranked.
When persons are convicted of offenses excluded from the Offense Severity Reference Table, judges should exercise their discretion by assigning an offense a severity level which they believe to be appropriate. Factors which a judge may consider when assigning a severity level to an unranked offense include but are not limited to: 1) the gravity of the specific conduct underlying the unranked offense; 2) the severity level assigned to any ranked offense whose elements are similar to those of the unranked offense; 3) the conduct of and severity level assigned to other offenders for the same unranked offense; and 4) the severity level assigned to other offenders engaged in similar conduct.
Id. at cmt. II.A.05; see also State v. Kenard, 606 N.W.2d 440, 443 (Minn. 2000) (proposing these factors). No single factor is controlling, and this list of factors is not exhaustive. Kenard, 606 N.W.2d at 443. Appellate courts generally will not interfere with the exercise of the district court’s broad discretion in applying the Minnesota Sentencing Guidelines. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).
In 2002 the offense of failure to register as a predatory offender for a second or subsequent time was unranked by the Sentencing Guidelines Commission. See Minn. Sent. Guidelines V (2002). The state moved the district court to impose severity-level IV for Beaulieu’s offense because severity-level II was imposed in calculating Beaulieu’s first sentence for failure to register as a predatory offender. The state argued that “recidivism for this offense should result in a commensurate doubling of the severity level for successive convictions.” The state also submitted a chart compiled by the Minnesota Sentencing Guidelines Commission, which shows a data compilation of the severity-level rankings that have been assigned to Beaulieu’s offense between January 2000 and July 2002. The chart shows that failure to register has been ranked from severity-level I to severity-level VI and that failure to register a second or subsequent time has been ranked from severity-level I to severity-level III. Beaulieu did not make any arguments on which severity level should be assigned to his offense.
At sentencing, the district court determined that the appropriate severity level for Beaulieu’s second offense of failing to register as a predatory offender is IV. But the district court did not make any findings that specifically address the factors listed in Minn. Sent. Guidelines cmt. II.A.05. This lack of findings requires remand. See Kenard, 606 N.W.2d at 442-43 (concluding district court abused its discretion, in part, by failing to note on the record what factors were considered in determining the severity level for an unranked offense). Thus, we remand this issue to the district court for further findings that show what factors the court considered in determining the severity level for Beaulieu’s offense.
Beaulieu also argues that the severity level for his crime should be reduced because after his sentencing the Sentencing Guidelines Commission ranked failure to register as a predatory offender, second offense, as a level III crime. “Modifications to the Minnesota Sentencing Guidelines and associated commentary will be applied to offenders whose date of offense is on or after the specified modification effective date.” Minn. Sent. Guidelines III.F (emphasis added). The effective date for the modification of the severity level for Beaulieu’s crime was August 1, 2003. See Minnesota Sentencing Guidelines Commission, Effective dates for Modifications of the Sentencing Guidelines August 2003, at http://www.msgc.state.mn.us/Guidelines/mods03augeffect.pdf. Because Beaulieu’s crime occurred almost one year before this modification, he is not entitled to a reduced sentence due to the sentencing-guidelines modification.
Beaulieu’s reliance on State v. Coolidge, 282 N.W.2d 511 (Minn. 1979), is misplaced. Beaulieu cites Coolidge for the proposition that statutes mitigating punishment are applied to offenses committed before their effective date if final judgment has not been reached in a case. Id. at 514. Coolidge is distinguishable because the statute under which the defendant was convicted in that case was amended and then repealed after the date of the offense, but before final judgment had been reached. Id. In this case, the statute under which Beaulieu was convicted has not been changed.
Because we remand this issue to the district court for further findings that show what factors the court considered in determining the severity level for Beaulieu’s offense, we do not reach Beaulieu’s sentencing-departure argument. We note that on remand of the sentencing issue, the district court should take into consideration the Supreme Court’s holding in Blakely v. Washington, 542 U.S. ___, ____ S. Ct. ____ (2004).
Affirmed in part, reversed in part, and remanded.