This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA
IN COURT OF APPEALS
A04-2014

 

Randall Ricardo Wilson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed August 9, 2005

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court
File No. 01094765

 

Bradford William Colbert, L.A.M.P., Room 254, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)

 

Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

 

Appellant Randall Ricardo Wilson challenges the denial of his petition for post-conviction relief, arguing that (1) he did not have a proper trial; (2) the postconviction court erred in denying him an evidentiary hearing; and (3) the trial court erred in his sentencingBecause (1) the trial court followed proper procedure for a stipulated-facts trial; (2) appellant did not establish that he was entitled to a new trial or an evidentiary hearing; (3) the trial court did not err in applying certain aggravating factors to support the sentencing departure; and (4) Blakely does not apply retroactively, we affirm.

FACTS

Wilson was indicted by a grand jury for first-degree criminal sexual conduct committed against his eight-year-old daughter.  See Minn. Stat. § 609.342, subds. 1(g), 2 (2000).  Defense counsel and the prosecutor reached a “negotiation,” by which they agreed to submit certain documents to the court as evidence and, “after a sufficient waiver assuming the Court finds [appellant] guilty, [appellant] will receive a Crim Sex 1 charge, sentence of 270 months.”  The prosecutor stated that appellant had been prepared to enter an Alford[1]plea, but the parties agreed to a stipulated-facts trial “as an alternative with the understanding that [the trial court] will find [appellant] guilty based on the information we both submitted to [the trial court],” including the parties’ agreement to two grounds for departure -¾ the vulnerability of the victim and multiple forms of penetration.  The district court found appellant guilty. 

Appellant was sentenced to 270 months, an upward departure from the presumptive sentence and the sentence provided in the agreement of the parties.  The trial court explained that the departure was based on the following factors: age and vulnerability of the victim, position of trust, violation of the zone of privacy, and multiple acts of penetration that were particularly cruel.

Appellant filed a postconviction petition, requesting a new trial because the “proceeding” appellant participated in was not authorized under the Minnesota Rules of Criminal Procedure and because the victim had recanted in a videotaped statement and in an affidavit.  Alternatively, appellant asked that the trial court vacate the sentence and impose the presumptive sentence because the judge erred in finding aggravating factors.  When the state responded, it not only argued that appellant’s stipulated-facts trial was a proper procedure, but also that the recently released.  Blakely v. Washington, 124 S. Ct. 2531 (2004) decision, did not apply.  Appellant responded and incorporated Blakely into his argument.  The postconviction court denied appellant’s petition, and this appeal followed.

D E C I S I O N

An appellate court reviews “a postconviction proceeding to determine only whether sufficient evidence exists to support the postconviction court’s findings.”  Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002).  This court “will not disturb the postconviction court’s decision unless the court abused its discretion.”  Id.  Under Minn. Stat. § 590.04, subd. 3 (2004), the burden is on the petitioner to establish, by a fair preponderance of the evidence, the facts warranting relief. 

I.

 

Stipulated-Facts Trial

 

Construing rules of criminal procedure and reviewing possible violations of constitutional rights are questions of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998) (rules of criminal procedure); State v. Sewell, 595 N.W.2d 207, 211 (Minn. App. 1999) (constitutional rights), review denied (Minn. Aug. 25, 1999). Appellant argues that his stipulated-facts trial “was not really a trial, because the parties agreed that the court would find Wilson guilty of criminal sexual conduct in the first-degree” and because they agreed on an upward departure of 270 months for appellant’s sentence.  Appellant characterizes the trial as a “slightly modified guilty plea” that violates the rules of criminal procedure and appellant’s constitutional rights, requiring a new trial. 

The rules of criminal procedure provide that a trial on stipulated facts is a permissible form of trial.  Minn. R. Crim. P. 26.01, subd. 3.  The postconviction court stated in its order denying relief that the proceeding was a stipulated-facts trial and not a Lothenbach trial, and that appellant had validly waived his jury-trial rights.

This court has “observed continuing confusion over the distinction between a stipulated-facts trial under rule 26.01 and a stipulated-facts trial under [State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980)].”  State v. Riley,667 N.W.2d 153, 158 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).  Lothenbach sets forth “a procedure that preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial.”  State v. Verschelde, 595 N.W.2d 192, 195 (Minn. 1999).  It protects a defendant’s right to appeal pretrial issues, but in a stipulated-facts trial under rule 26.01, subdivision 3, all issues are preserved for appeal.  See State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002) (explaining that Lothenbach procedure preserves pretrial issues for appeal); Minn. R. Crim. P. 26.01, subd. 3 (providing that defendant may appeal from judgment of conviction and raise issues on appeal just as from any trial).  Appellant argues that Busse stands for the proposition that Lothenbach and rule 26.01 stipulated-facts trials are the same, but this court in Riley made clear that the two types of trials are distinguishable based on their different “effect on a defendant’s right to challenge the sufficiency of the evidence.”  667 N.W.2d at 157.  This court has interpreted Busse to mean that “an appellant may not challenge the sufficiency of the evidence after a Lothenbach trial on stipulated facts because the Lothenbach procedure is used to submit a case to the district court while ‘preserving pretrial issues for appeal.’”  Id.

A stipulated-facts trial under rule 26.01, subdivision 3, requires either a written or oral waiver of the defendant’s right to testify at trial, to have prosecution witnesses testify in the defendant’s presence, to question those witnesses, and to have favorable witnesses for the defense testify.  See also State v. Halseth, 653 N.W.2d 782, 785-87 (Minn. App. 2002) (explaining that more than just the right to jury trial must be validly waived under subdivision 3).  “[S]trict compliance is required in order to assure that [waivers are] voluntarily and intelligently made.”  State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002) (quotation omitted), review denied (Minn. June 18, 2002); see also Halseth, 653 N.W.2d at 784 (stating that rule 26.01 is strictly construed)

The record reflects that the parties’ agreement was made on the record, allowing the court to proceed “as on any other trial to the court.”  See Minn. R. Crim. P. 26.01, subd. 3.  Appellant stated that he understood that he would have a stipulated-facts trial, not a jury trial, and that he knowingly and intelligently waived each of his rights under the rule.  Moreover, the district court did not come to a preordained result.  The district court stated on the record that it had examined the submitted evidence, made findings, and determined that the evidence satisfied each element of the crime beyond a reasonable doubt.  Therefore, we conclude appellant received a proper stipulated-facts trial under the rule.

II.

Recantation and Supportive Affidavits

 

Appellant argues that the postconviction court erred by failing to either grant a new trial or hold an evidentiary hearing because of the victim’s recantation and the affidavits of various family members supporting the victim’s new assertions. 

Traditionally, courts have looked with disfavor on motions for a new trial based on recantation unless the circumstances are extraordinary and unusual.  State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (Minn. 1977).  Minnesota uses a three-prong test in order to determine whether a recantation warrants a new trial.  Opsahl v. State, 677 N.W.2d 414, 422-23 (Minn. 2004).  By a preponderance of the evidence, the petitioner has the burden of proving facts such that: “(1) the court must be reasonably well-satisfied that the testimony in question was false; (2) without that testimony the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.”  Id.at 423.  The focus should be on the first and second prongs, Dukes v. State, 660 N.W.2d 804, 818 (Minn. 2003), and if the postconviction court finds that the first prong of the test is not met, it need not complete the analysis, see Williams v. State, 692 N.W.2d 893, 897 (Minn. 2005).

The postconviction court here made detailed findings regarding why the recantation was not credible by drawing a distinction between the victim’s statements of recantation on the videotape and her statements of recantation in her subsequent affidavit.  See State v. Davis, 422 N.W.2d 296, 299-300 (Minn. App. 1988) (affirming trial court because it “made detailed findings as to why the recantation was not credible”).  The postconviction court found that the victim stated in her affidavit that she “lied on my dad because I was [m]ad at him,” but she stated in the videotape simply that she lied and did not provide an explanation.  Further, she accused another man of abuse in the affidavit, but not in the video.  The postconviction court found these inconsistencies, and the timing of the video (the victim mentions Easter, which would put the making of the video several months before her affidavit), to weigh against authenticity.  Finally, the court found that the victim’s body language and her lack of remorse for lying, along with her desire not to go to “juvenile,” indicated that she was forced or threatened to recant. See Hill, 312 Minn. at 521-23, 253 N.W.2d at 383-84 (1977) (affirming trial court’s “clear and comprehensive” findings that victim had been subject to a “pattern of pressure and harassment after trial” to recant).  The postconviction court also found that the affidavits supporting the recantation, made by various family members and the victim, to be untrustworthy.  In light of the record before us, we conclude that the postconviction court did not abuse its discretion in denying appellant’s request for a new trial. 

We also conclude that the postconviction court did not abuse its discretion in denying an evidentiary hearing because the record conclusively shows that appellant is not entitled to relief.  See Minn. Stat. § 590.04, subd. 1 (2004).  See also Opsahl, 677 N.W.2d at 423 (stating that “argumentative assertions without factual support” are not enough to require evidentiary hearing).  The record supports the postconviction court’s findings that the victim was pressured to recant, as well as its findings regarding the lack of trustworthiness of the family-member affidavits.  See Crisler v. State, 520 N.W.2d 22, 25 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994) (concluding that an evidentiary hearing will not be required if affidavits are not “of such a persuasive nature as to require an evidentiary hearing”).  The postconviction court did not abuse its discretion by finding the affidavits unpersuasive, and by finding the record to be wanting of factual support which would require an evidentiary hearing.

Furthermore, appellant’s lack of due diligence in filing his petition for postconviction relief weighs against granting an evidentiary hearing.  Although unexcused delay is not determinative, it does raise questions regarding the legitimacy of the petitioner’s claim.  See, e.g, Whelan v. State, 298 Minn. 545, 545, 214 N.W.2d 344, 345 (1974) (petitioner delayed bringing petition for two years after learning his victim recanted and therefore did not act with due diligence).  Here, the victim’s recantation occurred sometime in the spring of 2003, when she was videotaped, and then in August 2003, when she signed the affidavit.  The postconviction petition was not filed until June 2004.  The postconviction court did not abuse its discretion by denying appellant an evidentiary hearing. 

III.

 

Sentencing

 

The trial court sentenced appellant to 270 months, basing its upward departure not only on the suggestions made by the parties in their stipulation, but also on the additional factors of the position of trust and violation of the victim’s zone of privacy.  A district court must state its reasons for departure, and the reasons must justify the departure.  Williams v. State, 361 N.W.2d 840, 843 (Minn. 1985); Minn. Sent. Guidelines II.D.  The decision whether to depart from the sentencing guidelines rests within the trial court’s discretion and will not be reversed absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996); State v. Dominguez, 663 N.W.2d 563, 567 (Minn. App. 2003) (applying abuse-of-discretion standard to review of sentence).  “Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines.”  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002).

Appellant argues that there are no substantial and compelling reasons for the departure.  There appears to be no dispute that two of the four bases for departure were improper: the vulnerability of the victim due to age and appellant’s violation of the position of trust.  See Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003) (stating that facts determining degree of seriousness of offense cannot be used a basis for departure).  But, appellant acknowledged that the other two aggravating factors, zone of privacy and multiple acts of penetration, could be used for the departure.  Nevertheless, he argues that this court should overturn the trial court’s sentence because the presumptive sentence has already been increased by the legislature, and departures should not be “too easily allowed.”[2]  See State v. Norton, 328 N.W.2d 142, 147 (Minn. 1982) (warning against easily allowing durational departures of greater than two times presumptive sentence, so as to prevent loss of uniformity in sentencing and to prevent overpopulating prisons).  First, we note the departure here is not even double the presumptive sentence, because appellant was sentenced to 270 months, and his presumptive sentence was 156-166 months.  Further, the trial court found that there was “sufficient evidence in the record to justify departure based on any one” of the four stated factors.  See State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992) (noting that multiple incidents of penetration alone can justify departure).  Based on the record before us, the reasons for departure given by the trial court were sufficient.

Appellant also argues that Blakely applies retroactively to his sentencing and that this court erred in its decision in State v. Houston, 689 N.W.2d 556 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005), holding Blakely does not apply retroactively to convictions that became final in the same period, as appellant’s.  We decline to reconsider that decision.

Affirmed.



[1]  See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).

[2] At oral argument, appellant argued that violation of the victim’s zone of privacy was an improper aggravating factor because the acts occurred at the victim’s grandmother’s home.  We struggle to see the merit in this argument because the victim undoubtedly felt safe when she would stay there while visiting her father.  See State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992) (recognizing that violation of zone of privacy “encompasses the fact that the violator deliberately trespassed in a place where the victim felt particularly safe”).  Regardless, appellant raises the argument for the first time here.  Failure to raise an argument before the trial court or brief the argument for this court waives the argument.  State v. Tracy, 667 N.W.2d 141, 145 (Minn. App. 2003).