This opinion will be unpublished and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
Joshua Lawrence Johnson,
Filed January 23, 2007
Affirmed in part, vacated in part, and remanded
Nicollet County District Court
File No. 52-CR-05-91
Lori Swanson, Attorney General, 1800
Michael K. Riley, Sr., Nicollet County Attorney, Kenneth R. White, Kristen E. Swanson, Assistant County Attorneys, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook,
Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.
Appellant challenges his stayed sentence of 60 months following his plea of guilty to one count of terroristic threats, arguing that (1) the district court abused its discretion in imposing an upward durational departure to the statutory maximum, (2) he did not waive his right to a jury trial on the aggravating factors justifying the court’s upward durational departure, and (3) the district court erred in determining that appellant was not entitled to jail credit for the time appellant spent in civil commitment at a state hospital between arrest and sentencing. We affirm the district court’s denial of credit for time appellant spent in civil commitment. But because we conclude that appellant’s waiver of a jury trial on aggravating factors was not valid, we vacate the sentence and remand for trial on those factors or for a waiver of the jury-trial right complying with Minn. R. Crim. P. 26.01, subd. 1(2)(a).
November 29, 2004, appellant Joshua Lawrence Johnson attended a meeting with
staff members concerning a probation warning for appellant’s behavior at the
Minnesota Sex Offender Treatment Program in
During the incident, appellant also repeatedly threatened to kill staff and harm their children and families. Appellant verbally abused and threatened specific individuals, calling them names such as: “b-tch,” “sl-t,” and “c-nt.” Appellant also made specific threats to employees, stating all of the following: “I’m going to watch your kids die”; “I’m going to kill all of you”; “I can’t wait to see your kids’ face when I am killing them”; “I will kill you sl-t”; “You’re all dead”; and “I will kill your kids and I will laugh when you see their bloody faces.” Appellant threatened another female employee, stating, “Deb, I’m going to rape you, you b-tch”; “I’m surprised you hadn’t [sic] been raped yet”; and “I could bite your [sic] right now you b-tch.”
The employees were
particularly traumatized because appellant made several references to Gary
Grimm, a staff member who was assaulted with a pipe in his home in 2003 and
left for dead “by a person believed to have been working for a resident of the
Mike G., the unit director of the residence hall, stated that appellant personally threatened him, stating, “I’m going to kill you, your whole f-cking family, and butt rape your children.” Like the other employees, Mike G. stated that the incident and appellant’s comments increased his concern about the safety and security of his family, noting that appellant “ha[d] a clear history of following through on this [sic] t[h]reats and also ha[d] a history of weapon making.”
charged with seven counts of terroristic threats in violation of Minn. Stat. §
609.713, subd. 1 (2004), and one count of misdemeanor fifth-degree assault in
violation of Minn. Stat. § 609.224, subd. 1 (2004). Appellant was subsequently transferred from
the St. Peter Security Hospital to the
guilty to one count (count 3) of terroristic threats, and the other counts were
dismissed. Appellant admitted to
“threaten[ing] to kill and harm Mike’s family and him,” knowing that it “might
make him afraid.” At his guilty-plea
hearing, appellant argued for jail credit for the time he had spent in the
At the sentencing
hearing, the state moved for an upward durational departure from the
presumptive sentence of 18 months stayed to a 60-month commitment to the
commissioner of corrections. Appellant
opposed the upward durational departure and again argued for jail credit for
time he spent in the
Later that day, the district court denied appellant’s request for jail credit and granted the state’s motion for an upward durational departure, sentencing appellant to the statutory maximum of 60 months, with a five-year stay of execution. In support of the upward departure, the district court noted appellant’s history of violent crime, the fact that appellant was on probation when the crime was committed, and the fact that multiple victims were involved.
After the district court sentenced appellant, the following exchange took place:
THE COURT: Mr. Johnson, do you want to come back and sit down one second. I have just sentenced you. And you know what, I made a mistake. If you would prefer, I can take that sentence back right now—and if you would prefer, I will give you a jury trial, and twelve people will have to decide that you actually—uhm—did those three things that I told you that you did. The three things for—that this is your fourth violent offense in three years, and the State has to prove that beyond a reasonable doubt. And then they would have to prove beyond a reasonable doubt that there were more than one victim in this case. Do you understand that?
THE DEFENDANT: Yeah. I understand that.
THE COURT: And then the State would have to prove beyond a reasonable doubt that you were on felony probation when you committed these offenses. Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: And—may I have the file back. And they have to prove all of that beyond a reasonable doubt, and twelve people have to sit there and listen to it, and determine that they did prove it beyond a reasonable doubt. And if that doesn’t happen, I can’t give you an upward departure, like I just did. I can’t give you to the five years instead of the eighteen months. Would you rather have a jury decide that?
Appellant’s counsel initially demanded a jury trial on the aggravating factors, but then decided to “discuss the matter with [his] client before he ha[d] to make that decision.” Appellant’s counsel stated that he would “get back to the Court at the end of the day.” Ten days later, appellant’s counsel submitted a letter to the district court regarding the issue of a jury trial on the aggravating factors. In the letter, appellant’s counsel stated:
I don’t believe that there is a provision under the law for a jury trial on aggravating factors for crimes committed before August 1, 2005.
. . . .
Therefore, let this letter serve as a waiver of the jury trial the Court offered my client at the sentencing hearing on October 18, 2005 . . . .
The district court subsequently issued an order imposing a 60-month sentence with stay of execution and probation. The district court denied appellant’s request for jail credit on the ground that the time appellant spent in civil commitment was “unrelated to this offense.”
This appeal follows.
Appellant argues that he did not waive his right under Blakely v. Washington, 542
But a defendant
may waive his right to a jury trial. See id. at 310, 124
“The decision to depart from the
presumptive sentence rests with the district court and will generally not be
disturbed absent a clear abuse of discretion.”
Thompson, 694 N.W.2d at 121 (citing
State v. Givens, 544 N.W.2d 774, 776
The issue here is whether appellant knowingly, voluntarily, and intelligently waived his right to a jury trial on the aggravating factors under rule 26.01, subdivision 1(2)(a). One requirement under rule 26.01, subdivision 1(2)(a), is that the court advise defendants of their right to a trial by a jury. That requirement was met when the district court here advised appellant on the record of his right to a jury trial on the aggravating factors and asked appellant on the record if he understood his right to a jury trial.
In addition, rule 26.01, subdivision 1(2)(a), requires that a defendant has an opportunity to consult with counsel regarding the right to a jury trial. After initially demanding a jury trial on the aggravating factors, appellant’s counsel later decided to “discuss the matter with [his] client before he ha[d] to make that decision,” and “get back to the Court at the end of the day.” Thus, appellant had an opportunity to consult with his attorney regarding whether he should request a jury trial.
The final question
is whether appellant waived his right to a jury trial “personally in writing or
orally upon the record in open court.”
Minn. R. Crim. P. 26.01, subd. 1(2)(a).
In Thompson, the supreme court
held that a defendant’s waiver complied with rule 26.01, subdivision 1(2)(a),
when the district court directly asked defendant in court and on the record if
she wanted a jury or the court to decide whether a factual basis existed for
departure, to which defendant responded that she wanted the court to decide
rather than a jury. 720 N.W.2d at
827. In addition, the district court in Thompson asked defendant if she
understood that she was waiving her right for a jury to decide the issue based
on proof beyond a reasonable doubt, to which defendant replied, “Yes.”
did not waive his right to a jury trial “orally upon the record in open
court.” The letter to the district court
drafted by appellant’s attorney referencing appellant’s waiver is problematic
for a number of reasons. The waiver was
not “personally” signed by appellant as required under rule 26.01, subdivision
1(2)(a). In addition, it appears that
the attorney’s letter was mistaken in a couple of respects, thus rendering any
waiver by appellant unintelligent. The
supreme court held in
Because we conclude that appellant did not knowingly, voluntarily, and intelligently waive his right to a jury trial on the aggravating factors pursuant to rule 26.01, subdivision 1(2)(a), we vacate the sentence without addressing the factors cited by the district court and addressed in the briefs to justify the court’s decision to impose an upward durational departure. We remand for a jury trial on the sentence-enhancing factors or for a waiver of the jury-trial right complying with rule 26.01, subdivision 1(2)(a).
next argues that he should be given credit for the time he spent in the
Asfaha v. State, 665 N.W.2d 523 (
on appeal to the supreme court that “to ensure proportionality in sentencing,
the award of jail credit should not depend on whether the defendant is confined
in ‘jails, workhouses, [or] regional correctional facilities’ but instead
should depend on whether the defendant was in custody in connection with the
case is distinguishable from Asfaha
because at the time of this offense, appellant was committed to the St. Peter
Security Hospital pursuant to an existing civil-commitment order that predated
this charge by six years. Appellant was
later transferred to the
Affirmed in part, vacated in part, and remanded.