This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Sharon Jean Hodge,
Filed August 9, 2005
Reversed and remanded
Mille Lacs County District Court
File No. K1-03-91
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
William P. Lines, Isle City Attorney,
Lawrence Hammerling, Bradford W. Colbert, Legal Assistance
to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
Appellant challenges her conviction of driving under the influence following a Lothenbach trial, arguing that the district court failed to obtain a waiver of her right to testify at a jury trial and failed to inform her of her inability to challenge the conviction based on sufficiency of the evidence. Because we conclude that the district court failed to obtain the necessary waiver of appellant’s right to testify, we reverse and remand.
In the early hours of January 7, 2003, Isle Police Officer John Sammis noticed a car without a license plate light drifting over the fog line onto the shoulder. Sammis stopped the car and asked its driver, appellant Sharon Hodge, if she had been drinking. When Sammis detected a strong odor of alcohol, he asked appellant if she had been drinking; she admitted that she had consumed a few drinks. He then requested that she take a preliminary breath test. She agreed, and the test results revealed an alcohol concentration of .161. Appellant also failed some field-sobriety tests. As a result, Sammis arrested appellant for driving while under the influence. Appellant took another breath test at the police station that revealed a .12 alcohol concentration.
Following the denial of a motion to suppress the evidence gathered from the investigative stop, appellant waived her right to a jury trial and agreed to submit the case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found her guilty and sentenced her to 365 days in jail and imposed a $3,000 fine, but stayed all but $900 of the fine and 60 days in jail until completion of the appellate process. Appellant now challenges her conviction.
D E C I S I O N
that the waiver of her right to a jury trial was invalid because the district
court failed to obtain the waiver of her right to testify. Appellant also argues that her agreement to a
stipulated-facts trial under Lothenbach
was invalid because the district court failed to inform her that she could not
appeal the sufficiency of the evidence.
Both issues involve the interpretation of the rules of criminal
procedure, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (
Waiver of the Right to Testify
that although she waived her right to a jury trial and agreed to submit the
case pursuant to State v. Lothenbach,
296 N.W.2d 854 (Minn. 1980), she did not waive her right to testify. A defendant who enters into a Lothenbach stipulation waives the right
to a jury trial and agrees that the district court will decide her guilt or
innocence based on a stipulated record.
acknowledge and waive the rights to testify at trial, . . . have the prosecution witnesses testify in open court in the defendant’s presence, . . . question those prosecution witnesses, and . . . 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.
Minn. R. Crim. P. 26.01, subd. 3 (emphasis added).
decision whether or not to testify is a fundamental constitutional right. Jones
v. Barnes, 463
Here, the district court had the following conversation on the record with appellant regarding the waiver:
Court: You also understand that you have the right to remain silent at trial. If you remain silent, . . . the jury cannot take that into account in determining whether or not the state has met its burden of proof; do you understand?
Court: Do you also understand that you have the right to appeal from any error of law which might occur during the course of the jury trial?
(Emphasis added). Although appellant waived her right to remain silent, she did not waive her right to testify. Because appellant’s waiver did not include any mention of the right to testify, and the rule is clear that a trial on stipulated facts must include a waiver of the right to testify, and the rule must be strictly construed, we must reverse and remand for a new trial. See Halseth, 653 N.W.2d at 787 (reversing and remanding for new trial where record lacked waiver of defendant’s right to testify).
Notice of the Inability to Challenge Sufficiency of the Evidence
Appellant also argues that her waiver of a jury trial was invalid because the district court failed to inform her that with a Lothenbach trial, unlike a pure stipulated-fact trial under rule 26.01, subd. 3, she had only the right to preserve pretrial issues for appeal and not other issues such as sufficiency of the evidence.
between a Lothenbach trial and a
Minn. R. Crim. P. 26.01, subd. 3 trial is that the former only protects a
defendant’s right to appeal the pretrial issues, while the latter preserves all
issues for appeal. See generally Riley, 667 N.W.2d at 157-59 (discussing distinction
and pertinent holding in State v. Busse,
644 N.W.2d 79 (
Because the district court failed to obtain a waiver of appellant’s right to testify, we reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.