This opinion will be unpublished and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
State of Minnesota,
Abdirisak Dahir Jama,
Stearns County District Court
File No. T30419871
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Mark C. Hansen,
J. Matthew Holson, Assistant Stearns County Public Defender, Suite 310, 816 West St. Germain, St. Cloud, MN 56301 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
Appellant challenges his conviction of disorderly conduct, arguing that the district court abused its discretion by allowing the state to charge an additional count of disorderly conduct rather than giving the jury a unanimity instruction. Appellant also challenges his sentence, arguing that he was impermissibly punished for exercising his right to a jury trial. We affirm.
Appellant Abdirisak Dahir Jama was charged with one count of disorderly conduct under Minn. Stat. § 609.72 (2004), based on Jama’s involvement in a fight at a bar. The citation did not specify whether the charge was based on “brawling or fighting” under
section 609.72, subdivision 1(1), or on engaging in “ . . . boisterous, or noisy conduct . . . tending reasonably to arouse alarm, anger, or resentment in others” under section 609.72, subdivision 1(3).
At the beginning of trial, the district court told Jama that it was aware of the state’s plea offer to treat the charge as a petty misdemeanor. The district court explored with Jama whether Jama understood that no jail time could be imposed on conviction of a petty misdemeanor and “[if] we go forward with the trial . . . you are facing a misdemeanor charge and . . . [if] you are found guilty, that you would be likely to have jail imposed.” The prosecutor stated that he would be asking for an executed sentence of 90 days in jail. Jama opted to go to trial.
During a conference with the district court on the district court’s proposed jury instructions, Jama’s counsel asked the district court to instruct the jury that, to convict, they must unanimously agree on whether Jama’s conduct constituted “brawling or fighting,” or “boisterous and noisy conduct . . . tending reasonably to arouse alarm, anger, or resentment in others.” The state responded by asking the district court to allow it to tab-charge an additional count of disorderly conduct or to instruct the jury that they could find Jama guilty if they found that he engaged in either “brawling and fighting” or in “boisterous conduct that disturbs the peace.” The district court denied Jama’s request for a unanimity instruction, allowed the state to add an additional count of disorderly conduct. The charges submitted to the jury specified that one count was a violation of Minn. Stat. § 609.72, subd. 1(1) and the other count was a violation of Minn. Stat. § 609.72, subd. 1 (3). The jury was instructed on both counts and was instructed that the state alleged that Jama was disorderly in two different ways but that only one behavioral incident was involved. The jury found Jama guilty of both counts.
The district court sentenced Jama to 90 days in jail, with all but 30 days stayed, over Jama’s objections that any jail time would violate his exercise of the right to trial and that the facts did not justify imposition of jail time. The district court responded that the sentence was based on Jama’s criminal record, not on his decision to go to trial.
I heard the argument that your attorney has [made indicating that] any jail sanction here would be a punishment because of the fact that you exercised your right to a jury trial. I understand his argument, but you need to know that is not the Court’s reason behind a jail sentence. . . . The Court’s reason behind the jail sentence is I’ve looked at your criminal record. You have a felony in 2002 . . ., a felony . . . in 2003, I sentenced you just on Friday [for] an offense that occurred in 2003 . . ., and now this offense occurred in October of 2004. So it’s not  a punishment for going to trial.
This appeal followed.
I. Jury instructions
Jama argues that the district court
abused its discretion by allowing the state to add an additional count of
disorderly conduct in lieu of instructing the jury that they were required to
agree unanimously on what conduct of Jama’s constituted disorderly
conduct. Jama argues that the district
court’s decision exaggerated the criminality of his behavior and was
prejudicial, particularly in light of the fact that the district court had
previously told the jury that he had been charged with one count of disorderly
conduct. But the district court may
allow an amendment to the complaint at any time before the jury reaches a
verdict, as long as a different offense is not charged and the defendant’s rights
are not prejudiced.
Regarding the district court’s
failure to give a unanimity instruction, “unanimity is not required with
respect to the alternative means or ways in which the crime can be
committed.” State v. Begbie, 415 N.W.2d 103, 105 (
As a preliminary matter, the state
argues that because Jama failed to file a petition for discretionary review,
this court lacks jurisdiction to consider his challenge to the constitutionality
of his misdemeanor sentence, citing Minn. R. Crim. P. 28.02, subd. 3, which
provides that sentences, other than felony sentences, may be reviewed only “in
the interests of justice and upon petition of the defendant . . . provided that
the petition shall be served and filed within thirty (30) days after entry of
the order appealed.” This argument was
rejected in State v. Whitledge, 500
N.W.2d 488 (
Jama asserts that because the
pre-trial plea offer would have precluded jail time, the imposition of jail
time impermissibly punished him for exercising his constitutionally protected
right to a jury trial. A person may not
be punished for doing what the law allows him or her to do. Bordenkircher
v. Hayes, 434
In the give-and-take of plea
bargaining, however, there is no element of punishment or retaliation so long
as the accused is free to accept or reject the plea. Bordenkircher,
Nonetheless, when the district court
takes a hand in plea bargaining, discusses a tentative sentence, and imposes a
harsher sentence than the sentence discussed, “the record must affirmatively
show that the court sentenced the defendant solely upon the facts of his case
and his personal history, and not as punishment for his refusal to plead
guilty.” State v. Mollberg, 310
In this case, the district court clearly stated that it based the sentence on Jama’s criminal history rather than his decision to go to trial. Cf. id. at 716-17 (reversing sentence when district court’s statements created inference that appellant was punished more severely because of his assertion of the right to trial and nothing in the record dispelled that inference); United States v. Stockwell, 472 F.2d 1186, 1187-88 (9th Cir. 1973) (remanding sentence when record left unrebutted the presumption that the court punished defendant with longer sentence for electing to stand trial).
Jama argues that the district court’s statement that it based the sentence on his criminal history is not credible because it is inconsistent with the district court’s willingness to accept the plea bargain to treat the offense as a petty misdemeanor. But the district court referred to a recent sentence and review of the presentence-investigation report traditionally prepared after trial. There is no evidence in the record that the district court was aware of either of these factors at the time the plea agreement was offered.
 The district court agreed to remove any reference to “abusive” language because the state’s theory of the case was clearly not based on that portion of the statute.
 The district court noted that it had sentenced Jama on a different charge the previous week and had reviewed the most recent presentence-investigation report before imposing jail time.