This opinion will be unpublished and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
Anthony Lee Nelson,
Filed September 6, 2005
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 03046187
Mike Hatch, Attorney General,
Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent);
John M. Stuart, State Public
Defender, Suzanne Senecal-Hill, Assistant State Public Defender,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from a conviction of and sentence for five counts of aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2002), and one count of felon in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002). Appellant argues that (1) he did not knowingly and intelligently waive his right to counsel; (2) the district court erred in imposing consecutive sentences based on findings made by the court rather than a jury, in violation of his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004); and (3) the sentence is ambiguous and unfairly exaggerates the criminality of his conduct. Because appellant’s waiver of counsel was valid, and because Blakely does not apply to permissive consecutive sentences, we affirm the conviction and the consecutive nature of the sentences. But because the district court erred in not using a zero criminal-history score, we reverse in part and remand to allow the court to reconsider the sentences.
Anthony Nelson was charged with several aggravated robberies that occurred in
the evening of July 5, 2003, at a
Appellant demanded a speedy trial at the omnibus hearing. On the date scheduled for trial, a continuance was ordered when a public defender was substituted for appellant’s appointed counsel. When the parties appeared for trial, an agreement to present the case to the court for a bench trial based on stipulated evidence fell through. On the rescheduled trial date, appellant complained about his public defender’s representation. Appellant contended that the delays in the case had been caused by his public defender. When the court asked him if he wanted to fire the public defender, appellant replied that he did. The court explained that if he did so, appellant would be representing himself at trial that day. Appellant was given an opportunity to consult with his public defender.
The district court listed the charges for appellant and had the prosecutor detail the range of punishment for each offense. The prosecutor then restated his plea offer of an aggregate sentence of 180 months. The prosecutor, however, explained that if appellant was convicted of all counts following a trial, he would be asking for a departure from the presumptive aggregate sentence of about 350 months, relying on the particular cruelty of the robberies and the presence of children at those robberies. The district court then outlined the minimum and maximum fines that could be imposed and noted that no affirmative defenses had been asserted. The district court warned appellant that if he chose to represent himself he would be expected to fulfill the role of an attorney.
At that point, the public defender indicated that appellant wanted to raise the issue of the suggestive show-up identification procedures. The district court agreed that appellant could do so during the court trial.
Appellant completed a petition to proceed as pro se counsel and testified that he had read the petition, with the public defender answering his questions, and that he understood what the public defender’s role as standby counsel would be. Appellant stated that he had read the petition carefully and he had had sufficient time to discuss it with the public defender. The district court granted appellant’s request to represent himself at trial.
The district court made detailed findings of fact summarizing the testimony at trial. The district court noted that the victims identified appellant as the man who had robbed them, identified the property that was seized from appellant or fell to the ground when he was arrested as being their recently stolen property, and identified the gun that appellant was carrying when arrested as the gun that had been pointed at them earlier. The district court found appellant guilty on all counts.
At sentencing, the district court found that appellant had a criminal-history score of five, without considering any of the July 5, 2003 offenses. The district court sentenced appellant first on the felon-in-possession count, imposing the presumptive sentence of 60 months and stating that this sentence was consecutive to the sentences imposed on the aggravated-robbery counts. (The warrant of commitment and sentencing order, however, indicate that this sentence was concurrent.) The district court then imposed concurrent sentences of 111 months on four of the aggravated-robbery counts. On the fifth count, the district court departed by imposing a consecutive sentence, citing the presence of S.M.S.’s children during the offense, and imposed a 60-month sentence.
The district court stated that the aggregate sentence on these six counts was 117 months and that appellant would serve a minimum of 114 months in prison. The sentencing order, however, indicates the aggregate sentence was 171 months. The 171-month sentence was to be served consecutive to appellant’s 2003 sentence for first-degree aggravated robbery. This appeal follows.
Appellant argues that the district
court failed to conduct an adequate inquiry into his waiver of his right to
counsel. He complains that the public
defender he was discharging was allowed to do the questioning and that there
was no inquiry into whether appellant was prepared for trial or needed
additional time. A finding that a
defendant has validly waived his right to counsel will be reversed only if it
is clearly erroneous. State v. Worthy, 583 N.W.2d 270, 276 (
The rule requires that before accepting a waiver of the right to counsel, the district court should advise the defendant of:
the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.
The district court outlined the charges for appellant, as well as the range of possible sentences, including minimum and maximum fines. The district court noted that no notice of affirmative defenses had been given, although it did not advise appellant that there might be mitigating circumstances, and the district court told appellant that he would have to fulfill the role of an attorney at trial, although it did not explain the disadvantages of his doing so. During this process, the public defender said little and did not take over the inquiry, as appellant’s argument suggests.
When a defendant has had the benefit
of being represented by counsel before the waiver, the district court may
presume that the advantages and disadvantages of proceeding pro se have been
explained to him.
The detailed, on-the-record inquiry
provided in rule 5.02, subd. 1(4), is not always required for a valid waiver of
the right to counsel. In Worthy, there was not even a recitation
of the charges or the potential punishments.
Worthy and Brodie indicate that a limited inquiry into the waiver of counsel is adequate if a defendant has been represented by counsel and has had an opportunity to consult with that attorney before the waiver, at least if the attorney then remains to serve as standby counsel. Those conditions were all met here. Thus, appellant’s claim that the inquiry was inadequate and his complaint about the public defender’s participation in the process are without merit.
Appellant cites an opinion requiring
a “penetrating and comprehensive examination” before accepting a waiver of
counsel. State v. Rubin, 409 N.W.2d 504, 506 (
Appellant argues, finally, that the district court did not inquire whether he needed more time to prepare for trial. But as the state points out, appellant had demanded a speedy trial, and his primary complaint about the public defender’s representation appears to have been that he had sought continuances without appellant’s consent. It is highly unlikely that appellant would have agreed to a continuance, even one to allow him time to prepare for trial. When the district court informed him that if he fired the public defender he would be representing himself at trial “today,” appellant did not protest. And appellant had the services of the public defender as standby counsel, which alleviated any prejudice from appellant’s lack of preparation time.
Appellant has not shown that his waiver of the right to counsel was invalid or that the court’s inquiry was inadequate.
Appellant argues that his sentences on the six counts were imposed in the wrong order and were otherwise improper, and that the consecutive sentencing on one count both exaggerates the criminality of his conduct and violates his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).
Despite some conflict between the sentencing transcript and the written records of the sentence, it appears that the district court properly imposed sentences on the six offenses in the order in which they occurred. The district court sentenced appellant first on the felon-in-possession-of-a-firearm count, on the plausible assumption that appellant was in possession of the Tech-9 handgun before he encountered any of the victims. The district court then sentenced appellant on the five aggravated-robbery counts in the order in which they occurred.
The district court did state that the
felon-in-possession sentence was “consecutive to” the aggravated-robbery
counts. Because those counts were
sentenced after the felon-in-possession count, they should have been made
concurrent with the felon-in-possession count.
As indicated, the district court stated at
sentencing that the felon-in-possession sentence was consecutive to the aggravated-robbery counts. But this appears to be a misstatement or an
error in transcription because it conflicts with the sentencing order and with
the aggregate sentence imposed. The district
court’s statement in the sentencing transcript that the aggregate sentence was
117 months is also erroneous, but may be readily corrected to 171 months, the figure
stated in the written sentencing documents and the figure that matches the
114-month minimum imprisonment term that the district court pronounced. See State
v. Staloch, 643 N.W.2d 329, 331 (
Appellant also argues that there was an error
in the calculation of his criminal-history score similar to that which occurred
in State v. Pince, 358 N.W.2d 435
(Minn. App. 1984). We agree. In Pince,
the district court made two current, concurrent terms consecutive to several
prior unexpired sentences.
The guidelines provide that “[f]or each
offense sentenced consecutive to another offense(s), other than those that are
presumptive [consecutive], a zero criminal history score” shall be used.
The district court’s error in using the full
criminal-history score on these four counts does not necessarily require an
outright reversal. This appears to be a
case in which it is appropriate, as the state suggests, to remand for
resentencing. See generally State v.
McAdory, 543 N.W.2d 692, 697–98 (Minn. App. 1996) (remanding sentence that the
district court thought was a permissible consecutive sentence to allow the
court to consider whether departure was appropriate). The district court erroneously believed that
111 months was the correct presumptive sentence on the four aggravated-robbery
counts. It seems possible that, had the district
court known the presumptive sentence was actually 48 months (using a zero
criminal-history score), it would have made one or more of those sentences
consecutive to the other current sentences.
It could have done so without departure because all of the aggravated
robbery offenses were “crimes against persons” having different victims. See
Appellant also argues that the cumulative sentence for the July 5, 2003 offenses exaggerates the criminality of his conduct. See generally State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (concluding that the imposition of five consecutive sentences for assaults against different victims, in addition to life sentence for first-degree murder unfairly exaggerated the criminality of defendant’s conduct). We disagree.
Norris has generally been applied when consecutive sentences are imposed on several counts. Here, if the felon-in-possession sentence is construed as concurrent rather than consecutive, in accordance with the written sentencing records, only the fifth aggravated-robbery sentence was made consecutive. And the district court cited the presence of S.M.S.’s children during that robbery as an aggravating factor justifying a consecutive sentence. Appellant has not cited any case in which Norris has been applied to a sentencing in which only two sentences are consecutive. And there were five victims here, without including the children. By remanding to allow consideration of additional consecutive sentences, we necessarily conclude that appellant’s argument that the cumulative sentence exaggerates the criminality of his conduct is without merit.
Appellant’s final challenge to the sentence
is his claim that consecutive sentencing based on judicial findings violated
his right to a jury trial under Blakely. This court has held, in State v. Senske, 692 N.W.2d 743, 749 (Minn. App. 2005), review denied (
Appellant has filed a pro se supplemental brief in which he argues that he was denied his right to a speedy trial, that the prosecutor presented false testimony at trial, and that at least one of the show-up identification procedures was impermissibly suggestive.
Appellant was not tried until more than four
months after his speedy-trial demand on August 7 of that year. By rule, trial should begin in
Appellant was scheduled to be tried on
October 1, 2003, which was within the 60-day period. But on that date there was a substitution of
his public defender. Appellant claims that
he was not aware of this substitution and even appears to question whether it
occurred. But the district court record
verifies that it occurred. And the district
court, in denying appellant’s post-trial motion to dismiss on speedy-trial
grounds, found that there was a substitution of counsel and a defense request
for a continuance. If appellant claims
otherwise, it is his burden, as the appealing party, to provide a transcript of
the October 1 appearance to show it did not occur or that it should not be
counted as a delay attributable to the defense.
See generally State v. Anderson,
351 N.W.2d 1, 2 (
The trial also was delayed on November 24 and 25, when the defense first agreed to a trial on stipulated evidence and then could not reach agreement with the state on a stipulation. This delay was at least partially attributable to the defense.
Appellant claims that he was prejudiced by
his pretrial incarceration. But
appellant was faced with a revocation of his probation on his prior
sentence. There is no prejudice from
pretrial incarceration if the defendant is already in custody on another
offense. State v. Windish, 590 N.W.2d 311, 318 (
Appellant’s claim that the prosecutor presented perjured testimony asks this court to assess the credibility of a prosecution witness, M.S.S., the first aggravated-robbery victim. But the subject of the allegedly inconsistent testimony is so minor that it was not even mentioned by the district court in its extensive findings of fact to support the finding of guilt. Any inconsistency was for the district court to consider when judging the overall credibility of that witness’s testimony.
Appellant also argues that the show-up conducted with M.S.S. was impermissibly suggestive. M.S.S. testified at trial that he had two encounters with appellant, the later of which occurred when the two men were only five to six feet apart. And police had conducted an earlier show-up with a different suspect, whom M.S.S. could not identify as the robber. Moreover, M.S.S. testified that he could identify appellant without even having to get out of the squad car to get a better look at him. The show-up was not impermissibly suggestive.
Finally, appellant requests a stay of this direct appeal and remand for postconviction proceedings. This request is both untimely and an improper pro se submission by a defendant represented by counsel.
Affirmed in part, reversed in part, and remanded.