This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Merlin J. Sherer,
Filed January 23, 2007
Affirmed in part, reversed in part, and remanded
Cook County District Court
File No. K9-04-90
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Timothy Christopher Scannell, Cook County Attorney, Cook County Courthouse, 411 West Second Street, Grand Marais, MN 55604 (respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.
On appeal from his conviction, appellant claims that the district court erred by (1) accepting his stipulation to his prior convictions of driving while intoxicated (DWI) and driving after cancellation (DAC) without a waiver of his right to a jury trial on those elements of the charged offenses; (2) not instructing the jury to consider each charge separately; (3) imposing felony sentences of 66 months to run concurrently with appellant’s sentence for a prior conviction based on a criminal-history score of 5; and (4) not imposing the sentences on the misdemeanor and gross-misdemeanor charges orally, in court. We affirm on all issues except the concurrent imposition of appellant’s felony sentences, which we reverse and remand for the district court to modify to be imposed consecutively.
Cook County Deputy Sheriff Michael Bostrum was on routine patrol at 10:45 p.m. on June 11, 2004, when he determined that a car was traveling 74 mph in a 30 mph zone. When the deputy pursued the car, the driver made a U-turn to evade him. The deputy activated his lights and siren and pursued the vehicle, getting within 150 feet of the car when the car drove off the road, down an embankment into a swampy area, and got stuck. The driver got out and ran into the woods. The deputy called for assistance and did a computer check of the license plate; the owner of the vehicle was Ronald Salgy, Jr.
While Deputy Bostrum waited for assistance, Salgy arrived, having been driven to the area by Jackie Kozlowski, who had heard on her police-scanner radio that Salgy’s car was in a ditch. Salgy’s clothing was neat, and his demeanor was calm. He told Deputy Bostrum that he had loaned his car to appellant Merlin John Sherer when they were together at the Grand Portage Lodge and Casino.
Deputy Bostrum, Deputy Joseph Zallar, and two border-patrol agents then conducted a search of the adjacent wooded area. Appellant was found about 20 feet into the woods, lying face down in a wet, muddy area and covered with moss, mud, and sticks. Appellant had a strong odor of alcohol and needed assistance in walking.
As appellant was being led toward the squad car, he yelled to a vehicle slowly passing by, “Dad, Dad. It took ’em an hour and a half to find me.” Following his arrest, appellant was disruptive on the ride to jail. At one point, Deputy Bostrum had to pull over because appellant was screaming and trying to remove his handcuffs. Because appellant complained of chest pains, the deputy took appellant to the local hospital, where the deputy read appellant the implied-consent advisory. Appellant voluntarily provided a urine sample, which evidenced an alcohol concentration of .19.
was charged with felony DWI,
sentencing, the district court imposed sentences of 66 months for felony DWI
with five years of conditional release and 22 months for felony fleeing to run
concurrently with appellant’s prior sentence for a
claims that the district court erred by accepting his stipulation to his prior
convictions of DWI and DAC without his personal waiver of his right to trial on
those elements of the charges in this matter.
“The interpretation of the rules of criminal procedure is a question of
law subject to de novo review.” A. C. Ford v. State, 690 N.W.2d
706, 712 (
right to a jury trial in a criminal case is constitutionally assured, U.S.
Const. amend. VI;
a jury must find that all elements of a crime have been proven beyond a
reasonable doubt in order to convict, the waiver of an element is a partial
waiver of a jury trial.
waivers serve a strategic purpose to avoid the potential that a jury could use
the prior conviction to prove criminality in the case at hand. Berkelman, 355 N.W.2d at 397 (stating
that defendant offered to waive a jury trial on an element because “he
justifiably feared that the jury might impermissibly use its knowledge of his
prior act of DWI in deciding whether he had driven under the influence at the
time charged”). To avoid the prejudicial
nature of prior convictions, district courts are strongly encouraged to accept
a defendant’s stipulation to prior convictions unless the prior convictions are
relevant to a disputed issue. Hinton,
702 N.W.2d at 282 n.1. The remedy on
appeal for a district court that erroneously refuses to accept the stipulation may
Here, appellant’s counsel stated before trial started that appellant asserted his “absolute right to stipulate outside of the presence of the jury his prior record for the express purpose of keeping that from the jury.” Appellant personally identified a certified copy of an August 2003 felony DWI conviction and stated that he knew that his driver’s license had been cancelled. Appellant’s counsel’s motion to stipulate was based on appellant’s desire to avoid placing the prior conviction before the jury, which might then determine appellant’s guilt based on the fact of a prior conviction. See Berkelman, 355 N.W.2d at 397.
stipulations were read to the jury. The
first was that appellant’s
A fair reading of the transcript leads us to conclude that appellant actively participated in the stipulation discussion. But it is also true that while appellant personally verified his past conviction and his understanding of its consequences, he did not explicitly agree to waive his right to a jury trial on those elements of the charges involved in this matter. Therefore, based on Wright and Hinton, we conclude that the district court’s failure to obtain appellant’s oral or written waiver was error. The issue then presented is whether the error was harmless.
new trial, even for a constitutional error, is not warranted if the state can
establish beyond a reasonable doubt that the error was harmless. Wright, 679 N.W.2d at 191. Harmless error is “[a]ny error, defect,
irregularity or variance which does not affect substantial rights,” and therefore
“shall be disregarded.”
We conclude that the jury’s verdict was clearly not attributable to the error. The validity of the prior convictions was not contested. If necessary, the state could have presented appellant’s driving record to the jury. The jury instructions required the jury to make an element-by-element analysis, and the verdict is well supported by the testimony of the law-enforcement officers. Because we conclude that the jury’s verdict was “surely unattributable” to the error, appellant’s substantial rights were not adversely affected by it. Thus, any error was harmless.
Appellant contends that the district
court erred by not instructing the jury to consider each charge
separately. District courts are allowed
“considerable latitude in selecting the language of jury instructions.” State v. Baird, 654 N.W.2d 105, 113 (
We note that
appellant did not request the instruction he now claims was required or object to
the instructions. In the absence of an
objection at trial, we review such a claim for plain error affecting
appellant’s substantial rights. State v. Malaski, 330 N.W.2d 447, 451 (
the defendant’s conduct constitutes more than one offense, each such offense
may be charged in the same indictment or complaint in a separate count.”
trial of all offenses joined under Minn. R. Crim. P. 17.03, subd. 1, the jury
must be instructed to consider each of the charges separately.” State
v. Kates, 610 N.W.2d 629, 631 (
In this case, the defendant has been charged with multiple offenses. You should consider each offense, and the evidence pertaining to it, separately. The fact that you may find defendant guilty or not guilty as to one of the charged offenses should not control your verdict as to any other offense.
We conclude that the district court did not err. The jury’s determination of appellant’s guilt included seven charges, all of which stemmed from conduct within a short period of time on the same evening. Appellant does not argue that joinder of charges was prejudicial. His theory of defense was that it was Salgy and not he who was driving the car, not that he committed only some of the charged acts. While the district court did not give CRIMJIG 3.23, it listed all of the required elements and instructed the jury regarding the state’s proof-beyond-a-reasonable-doubt burden. Viewing the record as a whole, the instructions clearly indicated a separate reasoning process for the jury’s deliberation on each charge.
Appellant argues that the district
court erred by imposing the 66-month sentence for felony DWI to run concurrently
with his prior DWI sentence from St. Louis County (for which he was on
probation) and by utilizing a criminal-history score of five to calculate the
length of the presumptive sentence. This
issue has now been squarely addressed by the supreme court in State v.
Holmes, 719 N.W.2d 904, 907 (
[t]he court shall impose consecutive sentences when it sentences a person for:
. . . .
(2) a violation of section 169A.20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169A.20 . . . and the prior sentence involved a separate course of conduct.
Because appellant was convicted of a violation of this statute while he was on probation for a previous DWI, consecutive sentencing is mandated.
With respect to the issue of the appropriate criminal-history score to be used in calculation of the length of the sentence, the Holmes court instructs us that appellant’s criminal-history score of five is correct because section II.F. of the Minnesota Sentencing Guidelines does not apply to a section 169A.28 sentence. See Holmes, 719 N.W.2d at 909. Thus, the district court’s use of a criminal-history score of five when sentencing appellant was not error. We, therefore, reverse the concurrent imposition of the sentence and remand to the district court for imposition of a consecutive sentence based on a criminal-history score of five.
Appellant also argues that the district court erred by pronouncing his sentences for his misdemeanor and gross-misdemeanor convictions by written order and not orally. The district court issued a written order, imposing 90-day sentences to run concurrently, later on the day of the sentencing hearing. Without citing any legal authority, appellant asks this court to vacate those sentences.
interpretation of the rules of criminal procedure is a question of law subject
to de novo review.” A. C. Ford, 690 N.W.2d at 712. With few exceptions, a “[d]efendant must be
personally present at the sentencing hearing and at the time sentence is
a defendant does not obtain a right to be present at all sentencing hearings,
only the original hearing in matters of death or imprisonment. Calmes, 632 N.W.2d at 649-50. The defendant must receive “some notice of an
order before that order can be effective,” and “[t]o be effective, a court
order must become a part of the official record, whether by transcript or document.” Martinek v. State, 678 N.W.2d 714, 718
While we agree that the district court erred by not orally sentencing appellant on all convictions, because the district court’s written sentencing order was issued the same day as the sentencing hearing and because the comparatively brief, concurrent sentences do not prejudice appellant, we conclude that any error the district court made was harmless.
appellant argues that by operation of statute, his gross-misdemeanor DAC
conviction must be reduced to a misdemeanor.
A question of statutory construction is subject to de novo review. Holmes, 719 N.W.2d at 907.
appellant was sentenced for 90 days, concurrent with his prior sentences, for
gross-misdemeanor DAC, misdemeanor open bottle, misdemeanor obstruction of
justice, and misdemeanor speeding. The
90-day sentence for DAC is a misdemeanor sentence. See Minn. Stat. § 609.02, subd.
3. The statute automatically deems the
conviction a misdemeanor. See
Affirmed in part, vacated in part, and remanded.