This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





David Rodriguez,




Filed January 24, 2006


Huspeni, Judge*


Polk County District Court

File No. KX-03-1671



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


Gregory Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)


John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            In challenging his conviction of first-degree DWI, and the subsequent denial of his postconviction petition challenging the conviction, appellant argues that the district court erred in ruling that an omnibus hearing was waived, that there was no denial of effective assistance of counsel, and that there was no seizure that violated appellant’s Fourth Amendment rights.  Because we agree with the district court that appellant waived his right to an omnibus hearing, received effective assistance of counsel, and was not subject to an unreasonable seizure, we affirm.


            Appellant David B. Rodriguez was driving a vehicle registered to Porfiria Delgado as he drove past Sergeant Vern Rasmussen, who recognized the vehicle as being registered to Delgado.  Rasmussen did not observe any traffic or equipment violations, but followed the vehicle.  Appellant pulled into a parking space, and Rasmussen pulled up behind appellant’s vehicle, partially blocking the driving lane.  Rasmussen did not activate his siren or emergency lights.  Due to the position of Rasmussen’s squad car, appellant could not back out of the parking space but could drive forward.   

            Rasmussen testified he followed appellant because he believed the male driver could be one of Delgado’s sons, none of whom currently had driving privileges.  Rasmussen testified he knew two of Delgado’s sons, but was unfamiliar with other sons.

            Rasmussen and appellant exited their vehicles; Rasmussen walked toward appellant and asked to see his driver’s license.  After viewing appellant’s Texas license, Rasmussen concluded he had previously been in contact with appellant and conducted a license check which revealed that appellant’s driving privileges had been canceled in Minnesota.  Appellant was arrested for driving after cancellation and transported to jail, where Rasmussen learned that appellant was on probation.  Appellant’s probation officer was contacted, arrived at the jail, and administered a urinalysis test that revealed the presence of opiates.     

            Appellant’s initial charge of driving after cancellation as inimical to public safety was dismissed and he was subsequently charged with first-degree driving while impaired in violation of Minn. Stat. §§ 169A.20, subd. 1(7), .24 (2002); gross misdemeanor driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2002); and violation of a restricted driver’s license under Minn. Stat. § 171.09(b)(1) (2002).  A probation violation was also filed in connection with a prior conviction, alleging that appellant violated the conditions of his probation by failing to remain law abiding and refraining from mood altering substances.  A public defender was appointed to represent appellant on the current charges.  An omnibus hearing scheduled for January 26, 2004, a pretrial hearing scheduled for February 2, 2004, and a trial date scheduled for February 10, 2004, were subsequently continued to February 23, 2004, March 1, 2004, and March 9, 2004, respectively.

            On February 24, 2004, appellant filed a substitution-of-counsel motion.  The motion had initially been signed by appellant and his new counsel on February 13, 2004, but not received and signed by the public defender until February 23, 2004.  At the pretrial hearing on March 1, 2004, the district court denied a continuance motion brought by appellant’s new counsel, and concluded that appellant had waived any omnibus issues because a motion for that hearing had not been filed. 

            A jury trial was scheduled for March 9, 2004.  On March 8, 2004, however, appellant pleaded guilty to first-degree felony driving while impaired, and was sentenced to the presumptive guideline term of 54 months.  His direct appeal was stayed by this court in order to permit him to pursue postconviction relief.  He did so, and after an evidentiary hearing on the postconviction petition, all relief sought was denied.  This appeal followed.



            Appellant argues that the postconviction court committed reversible error in failing to make independent findings of fact and conclusions of law, and instead ordering that “[t]he Court adopts the statement of facts and argument set forth in the State’s Memorandum of Law in Opposition to the Petition for Post-conviction Relief.”

            When reviewing a postconviction court’s findings, this court must determine whether there is sufficient evidentiary support in the record.  Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997).  This court must afford great deference to the district court’s findings of fact and will not reverse unless the findings are clearly erroneous.  State v. Bradford, 618 N.W.2d 782, 794 (Minn. 2000).  A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).  A petitioner for postconviction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2002); Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999). 

            Unquestionably, a court must be a “neutral factor in the interplay of [the] adversary system,” and must “ensure . . . integrity [at] all stages of the proceedings.”  State v. Mims, 306 Minn. 159, 168, 235 N.W.2d 381, 387 (1975).  In fulfilling this duty, the court’s “responsibility includes avoidance of both the reality and the appearance of any impropriety.”  Id.  Here, however, our painstaking review of the record convinces us that the postconviction court did not err when it adopted verbatim respondent’s statement of facts and argument.  Both are amply supported by the record produced during the evidentiary hearing on appellant’s postconviction petition.

            Caselaw also supports our conclusion that the court did not err in its verbatim adoption.  In Dukes v. State, 621 N.W.2d 246 (Minn. 2001), an evidentiary hearing was held and petitioner introduced expert testimony in support of his claim.  None of the testimony of the expert witness was reflected in the court’s findings.  Nonetheless, the Minnesota Supreme Court held that the district court’s verbatim adoption of the state’s proposed findings, conclusions, and order denying relief was not clearly erroneous and standing alone, the adoption of the state’s findings was insufficient to reverse.  Dukes, 621 N.W.2d at 259.

            At the postconviction hearing in this case, the court heard testimony from appellant’s initial public defender, Rasmussen, and appellant himself.  All issues addressed in respondent’s documents were presented through testimony.  Not only was a thorough hearing conducted, but appellant’s counsel was afforded the opportunity to review respondent’s findings of fact and conclusions of law and submit his own brief.  Cf. Pederson v. State, 649 N.W.2d 161, 164 (Minn. 2002) (postconviction court’s decision reversed and remanded where the parties did not have the opportunity to respond to proposed findings and conclusions prior to verbatim adoption).  Both appellant and respondent here were permitted to submit briefs after the postconviction hearing.

            The district court did not clearly err in the verbatim adoption of respondent’s memorandum of law in opposition to the petition for postconviction relief. 


            Appellant argues that he did not waive his right to an omnibus hearing, and that the district court’s denial of a continuance resulted in prejudice which materially affected the outcome of the proceedings against him.

            “The granting of a continuance is a matter within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.”  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  This court “must examine the circumstances before the trial court at the time the motion was made to determine whether the trial court’s decision prejudiced defendant by materially affecting the outcome of the trial.”  State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). 

            Under Minn. R. Crim. P. 8.03, a defendant who does not plead guilty shall have the option to either waive or demand a hearing to determine the admissibility of evidence.  Appellant argues he did just that.  Our review of the record, however, convinces us that denial of the continuance was not erroneous.  An omnibus hearing was initially scheduled for January 26, 2004, and then continued to February 23, 2004.  Between these two dates, appellant voluntarily retained new counsel.  Although he signed a substitution of counsel motion, discharged his public defender, and paid a retainer to his new counsel on February 13, this documentation and a substitution of counsel form signed by him was not received by the public defender until February 24, 2004,[1] one day after the scheduled omnibus hearing.  The district court denied the March 1, 2004 request of appellant’s new counsel for a continuance.  

            After an evidentiary hearing on appellant’s postconviction petition, the district court concluded that appellant’s counseled entry of a guilty plea to first-degree driving while impaired charge waived all non-jurisdictional defects otherwise present in the proceedings against him.  On appeal, respondent argues that the waiver surely includes the district court’s failure to grant a second continuance of the omnibus hearing.      

            “The traditional viewpoint in Minnesota . . . [is] that a guilty plea by a counseled defendant operates as a waiver of all non-jurisdictional defects . . . .”  State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980) (citing McLaughlin v. State, 291 Minn. 277, 190 N.W.2d 867 (1971)).  If appellant had wanted to preserve his right to appeal any pretrial issues, a Lothenbach procedure was the proper way to do so.  State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002).  At no time during the proceedings in this case did appellant make any attempt to preserve his right to appeal pursuant to Lothenbach.  At his guilty plea hearing, the court asked appellant if he understood the consequences of pleading guilty, if he had the opportunity to discuss his options with his attorney, and if he was voluntarily pleading guilty under his own free will.  Appellant answered yes to all questions.  At no time did appellant indicate he desired to preserve any rights to appeal pretrial issues, or any issues whatsoever.            

            Even if we were to assume for the sake of further analysis that appellant did not waive his right to challenge the denial of a continuance of the omnibus hearing, we would find no error in that denial.  Although appellant’s substitution-of-counsel motion was not filed until February 24, 2004, he and his new counsel were fully aware on February 13 that an omnibus hearing was to be held on February 23, and that a proper motion needed to be filed.  The public defender (appellant’s first attorney) testified at the evidentiary hearing that he, along with appellant and his new counsel, discussed appellant’s wish to file an omnibus motion and it was understood that his new attorneys would handle the case beginning February 13, 2004. 

            The facts of this case are unlike those of In re Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn. 1977), where defense counsel was out of town on the day of the scheduled hearing and the court determined that defendant “should not be made to suffer the consequences of failure of representation.”  Here, appellant had ample time to file the required motion papers after he retained new counsel.  He was not prejudiced by the district court’s decision to deny his request for a continuance.


            Appellant alleges that his first attorney, the public defender,[2] performed below an objective standard of reasonableness because he put the onus on appellant to determine whether any omnibus issues existed and failed to file any omnibus motions; appellant urges that but for that deficient performance, the outcome of the proceedings against him would have been different.  We note again that appellant entered a counseled plea of guilty, and a guilty plea “operates as a waiver of all non-jurisdictional defects.”  Lothenbach, 296 N.W.2d at 857.  The issue of inadequacy of counsel is a non-jurisdictional one.  Therefore, it has been waived.  

            Even if, however, for the sake of further analysis, we were to address the merits of the ineffective-assistance-of-counsel issue, appellant’s argument would fail.  The United States Supreme Court has stated, “the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984).   

            In Dukes, the Minnesota Supreme Court held that in order to prove an ineffective-assistance claim, the defendant must satisfy a two-pronged test.  621 N.W.2d at 252 (as set forth in Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  Appellant must first “show by a preponderance of the evidence that his counsel’s performance was so deficient that it fell below an objective standard of reasonableness.”  Id.  “An attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  Id.  Next, appellant must “show by a preponderance of the evidence that his counsel’s error so prejudiced the defendant at trial that a different outcome would have resulted but for the error.”  Id.  “The performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.”  Strickland, 466 U.S. at 688, 104 S. Ct. at 2065.  When examining all the circumstances, this court is to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”  Id. at 689, 104 S. Ct. at 2065.   

            In support of his argument that the onus to decide whether any omnibus issues existed was placed upon him, appellant refers to a letter written to him by the public defender, wherein the attorney stated that it was “important that you review . . . documents to determine whether there are any omnibus issues in your case.”  The letter cited by appellant, however, is dated October 29, 2003, and refers to the initial charges against him.  Those charges were later dismissed; the charges to which appellant pleaded guilty were filed November 4, 2003.  The letter, therefore, provides no support for his argument.     

            Further, the record reflects that the public defender met with appellant and discussed the issues in this case on more than one occasion.  The public defender requested an omnibus hearing.  There is no evidence that he put the onus on appellant to determine the issues to be raised in that hearing.  The public defender also met with appellant and his privately retained counsel to discuss this case and to assure that appellant’s new counsel was thoroughly knowledgeable on the issues.   

            Appellant also complains of the failure of the public defender to actually file the omnibus hearing motion.  The record reflects, however, that the public defender and new counsel met and discussed Fourth Amendment issues.  There is nothing in the record to indicate that the public defender, who was replaced on February 13, 2004, had any continuing obligation to file the motion.

            Lastly, even if appellant could show by a preponderance of the evidence that counsel’s performance fell below acceptable levels, he must also satisfy the second prong of the ineffectiveness test, which requires that it be shown by a preponderance of the evidence that absent the ineffective performance the outcome of his trial would have been different.  Dukes, 621 N.W.2d at 252.  Appellant argues that if he had been granted an omnibus hearing, he would have prevailed on his Fourth Amendment argument that no articulable suspicion supported the stop of his vehicle and all evidence seized would have been suppressed.  As our analysis below indicates, appellant would have failed in his argument at an omnibus hearing.  Evidence would not have been suppressed, and the outcome would not have changed.


            Appellant argues that his constitutional right to be free of illegal searches and seizures was violated by Rasmussen’s actions.  We note once more that “[t]he traditional viewpoint in Minnesota . . . [is] that a guilty plea by a counseled defendant operates as a waiver of all non-jurisdictional defects, including Fourth Amendment claims.”  Lothenbach, 296 N.W.2d at 857 (Minn. 1980).  While appellant could have preserved his right to appeal any Fourth Amendment issues pursuant to procedures set forth in Lothenbach, he failed to do so.

            As we have done with the other issues raised here, however, even if we were to address the merits of this argument, appellant’s argument fails.  The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated.”  U.S. Const. Amend. IV.  Under the Minnesota Constitution, a seizure occurs when the circumstances surrounding the incident indicate that “a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  This court must view the reasonable-person standard objectively.  Id. The totality of circumstances determines whether a seizure has occurred.  United States v. Johnson, 326 F.3d 1018, 1022 (8th Cir. 2003).  Some of the factors this court should consider are, “the threatening presence of several officers, the display of a weapon by an officer, . . . physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”  In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).    

            The numerous cases cited by appellant to argue that he was subjected to a seizure are distinguishable on their facts, most especially on the question of whether a reasonable person would have believed that he or she was not free to leave.  We agree with the reasoning of the district court in observing

[appellant’s] vehicle was not “stopped” for purposes of Fourth Amendment scrutiny, and [appellant] failed to provide any testimony whatsoever that would indicate that Officer Rasmussen attempted to seize him when Officer Rasmussen approached [appellant] and asked for his driver’s license. . . . [Officer Rasmussen] had prior experience with the vehicle being operated by unlicensed drivers; he was aware the vehicle was registered to a Mrs. Delgado, and was often driven by one of her sons; he observed a lone male driver of the vehicle, he followed the vehicle into the parking lot without turning on his emergency lights or siren; . . . he did not prevent the vehicle from leaving because there was no one in front of [appellant’s] car, and [appellant] could have driven forward without any impediment; . . . he did not recognize the driver of the vehicle but knew it was not Mrs. Delgado or one of the two sons he knew, but did not know if it was one of her other sons.


            The district court relied on State v. Vohnoutka, 292 N.W.2d 756 (Minn. 1980), in reasoning that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car.  Also informative is State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999), in which the court noted that “a person generally is not seized merely because a police officer approaches him in a public place or in a parked car and begins to ask questions.” 

            In completing our analysis, we note that even if a seizure is presumed to have occurred here, articulable suspicion present to support the seizure could have been found.  As noted by the district court, Rasmussen knew that the Delgado vehicle was sometimes driven by an unlicensed driver; he knew some of Delgado’s sons but did not know others.  Calling upon his experience and expertise and particular involvement with this vehicle, Rasmussen could have reasonably suspected the driver to be one of Delgado’s unlicensed sons.

            A final note:  The crux of appellant’s Fourth Amendment argument is that because there was an illegal seizure, the results of the urinalysis conducted by his probation officer at the jail must be suppressed.  We agree, however, with the district court’s observation that

even if this Court determined that [appellant] carried his burden to establish that there was a potential omnibus issue which [he] might have succeeded in bringing . . . there is no legal basis to suppress the urine sample collected . . . as part of the conditions of [his] sentence. . . .  [Appellant] acknowledged at the [probation revocation] hearing that he was subject to the random search/UA . . . .  [Appellant] entered an admission to the probation violations . . . one week prior to his entering a guilty plea in this matter.  There is simply no basis to conclude that the urine sample [appellant] provided was improperly seized by his probation agent [much less by or at the direction of law enforcement].


The reasoning of the district court is persuasive.  The purpose behind appellant’s random urinalysis was to ensure that he was complying with the terms of his probation.  There was no search conducted by law enforcement when his probation officer collected the sample for the urinalysis test. 

            Because we have determined that all issues raised by appellant in this combined direct appeal and appeal from denial of his postconviction petition were waived by his counseled guilty plea, and because we find that even if addressed on the merits, those issues were properly decided by the district court, we affirm.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] Apparently this documentation was initially mailed to an incorrect address.

[2] Appellant makes no allegation of ineffectiveness against the privately retained attorney who represented him from and after February 13, 2004.