This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-341

City of Duluth,

Respondent,

vs.

Daniel Lenarz,

Appellant.

Filed November 12, 1996

Affirmed

Foley, Judge

[*]

St. Louis County District Court

File No. T3-95-601190

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; William A. "Tony" Blodgett, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for Respondent)

David J. Malban, 425 Providence Building, 332 West Superior Street, Duluth, MN 55802 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

Appellant Daniel Lenarz challenges the denial of his postconviction motion to vacate a conviction of assault under the Duluth City Code. First, appellant claims he was denied the right to a speedy trial. Second, he contends the trial court violated his right to a jury trial by denying his motion to reinstate statutory misdemeanor charges. We affirm.

FACTS

On January 20, 1995, Duluth police officers arrested appellant for disorderly conduct in violation of Minn. Stat. § 609.72 (1994), fifth-degree assault in violation of Minn. Stat. § 609.224 (1994), and driving while intoxicated in violation of Minn. Stat. § 169.121 (1994). Appellant was released on bail several days later.

At a pretrial hearing on March 1, 1995, the court denied appellant's motion to dismiss the DWI charge. In a pretrial hearing on April 5, the city attorney dismissed the DWI charge, and, with appellant's agreement, moved to amend the two remaining charges to violations of the Duluth City Code. The court granted the motion, amended the complaint, and dismissed the statutory charges.

Appellant contacted his attorney the next day, stating that he was unhappy with the loss of his jury trial right. At a hearing on May 2, appellant's attorney moved the court to reinstate the statutory misdemeanor charges and order a jury trial. The city attorney opposed the motion and the judge denied the requests.

On May 13, 1995, appellant filed a speedy trial demand. By notice dated May 12, the court administrator notified appellant, through his attorney, that the matter had been set for trial on July 14. The July trial date was later continued at appellant's request. In a notice dated July 18, the court administrator notified the parties that the court trial had been rescheduled to September 19, 1995.

On September 14, 1995, the city attorney's office requested a continuance because one of its two officer witnesses was scheduled to be out of town in training on the trial date. On September 19, the court administrator sent written notice to the parties that the matter was scheduled for trial on November 3, 1995. The parties and witnesses appeared ready for trial on the afternoon of November 3, but the court continued the trial until November 8, 1995.

The court trial began on November 8, 1995, and was concluded on November 9. Prior to commencement of the trial, appellant moved to dismiss the case because he had been denied his right to a speedy trial. The trial court denied this motion. Appellant next asked the trial court to reconsider the prior ruling denying his request to reinstate the statutory misdemeanor charges so that he could have a jury trial. The court also denied this motion and found him guilty of disorderly conduct and assault under the city code.

Appellant sought post-trial relief pursuant to Minn. R. Crim. P. 26.04, seeking to set aside his conviction on the grounds he was denied a speedy trial and the right to a jury trial on the statutory misdemeanor charges. He also sought to have his disorderly conduct conviction vacated. The trial court vacated appellant's conviction for disorderly conduct after finding that the elements of the assault conviction were identical to the elements of the disorderly conduct charge and concluding it would be unfair to impose both convictions. The trial court found appellant was not denied a speedy trial because he waived that right when he sought a continuance, and appellant was not prejudiced by the delay. The trial court refused to review the jury trial issue because that would require the court to review the prior decision of another district court judge.

D E C I S I O N

I. Speedy Trial

The Sixth Amendment to the United States Constitution and Article 1, § 6 of the Minnesota Constitution guarantees a defendant's right to a speedy trial. State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989).

The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.

Id. (quoting Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188 (1972)).

Minn. R. Crim. P. 6.06 provides that a defendant in a misdemeanor case

shall be tried as soon as possible after entry of a not guilty plea. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney's or the defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period. The time period shall not begin to run earlier than the date of the not guilty plea.

The 60-day limit in rule 6.06 is not mandatory, but merely raises the presumption that a violation of speedy trial rights has occurred, thus requiring the trial court to conduct a further inquiry. Friberg, 435 N.W.2d at 513. Rule 6.06 applies to prosecution for violation of a city ordinance "punishable either alone or alternatively by a fine or by imprisonment." Minn. R. Crim. P. 1.01 (term "misdemeanor" refers to local ordinance, charter provision, rule or regulation "[e]xcept where expressly provided otherwise"). Rule 6.06 therefore applies to the city ordinances here because they are each punishable by a fine. See Duluth City Code, 1959, as amended, § 1-7.

To determine whether a defendant's right to a speedy trial has been violated, the court must balance the following factors: (1) length of delay; (2) reason for delay; (3) defendant's assertion of right to a speedy trial; and (4) whether there was any prejudice to the defendant. Friberg, 435 N.W.2d at 512 (citing Barker, 407 U.S. at 530-32, 92 S. Ct. at 2192-93).

The standard of review is whether the trial court abused its discretion when it decided that there was good cause for the delay and the delay did not deny a party's speedy trial right. Friberg, 435 N.W.2d at 515. The record is reviewed "de novo" to determine if the trial court used the proper standard to evaluate whether there was good cause for the trial delay. McIntosh v. Davis, 441 N.W.2d 115, 120 (Minn. 1989); State v. Genung, 481 N.W.2d 130, 133 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). As discussed below, the trial court correctly applied the Barker factors because it looked at the length of the delay, the reason for the delay, appellant's demand for a speedy trial, and the issue of prejudice.

Length of Delay

The trial court determined that appellant waived his right to a speedy trial when he delayed the trial in July. Where a defendant's motions are the primary reason for delay, the defendant's claim of a violation of his speedy trial rights is less compelling. State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993). The court may deem a delay occasioned by the defendant to be "a temporary waiver of his speedy trial demand, which can only be revived when the defendant reasserts his speedy trial right." Id.

Here, appellant asserted his speedy trial demand by filing a written demand almost two weeks after his plea of not guilty. Later, at the request of appellant's counsel, the court continued the trial date set for July 14. The record contains no evidence that appellant reasserted his speedy trial right after he requested a continuance of the July trial date.[1] Thus, the delay here did not violate rule 6.06, and appellant has not met the first Barker factor, because he did not reassert his demand for a speedy trial.

Reason For Delay

Delays beyond the 60-day limit in Rule 6.06 raise a presumption that a violation has occurred and require the trial court to determine whether "good cause" for the delay exists. Friberg, 435 N.W.2d at 513. The record here shows that the trial date was continued three times, the first time by appellant, the second time at the request of the prosecutor, and the third time because of the crowded court calendar and a request by the prosecutor. Appellant was the primary cause of four months of the six-month delay.

Calendar congestion or other circumstances over which the prosecutor has no control constitute good cause for delays where the defendants have suffered no "unfair prejudice." Id. (citing State v. Jones, 392 N.W.2d 224, 234-36 (Minn. 1986) (seven-month delay did not violate defendant's right to speedy trial where defendant asserted right but court system was overburdened and no unfair prejudice resulted)); State v. Helenbolt, 334 N.W.2d 400, 405-06 (Minn. 1983) (fourteen-month delay did not violate defendant's speedy trial rights where state's pretrial appeal caused delay and only serious prejudice was faulty memory of state's witness); State v. Corarito, 268 N.W.2d 79, 80 (Minn. 1978) (six-month delay due to victim's hospitalization did not violate right to speedy trial where "prosecutor was not trying to delay the trial to hamper the defense" and defendant had not shown any unfair prejudice resulted from the delay)). But see State v. Kasper, 411 N.W.2d 182, 185 (Minn. 1987) (140-day delay violated defendant's speedy trial rights where prosecutor engaged in "legal maneuvering" in attempt to circumvent rule 6.06 by dismissing original tab charges for DWI and issuing formal complaint).

Here, the prosecutor did not engage in any legal maneuvering to delay the trial. Appellant caused the first delay when his trial counsel sought a continuance, with appellant's approval, to attend a class reunion. Curiously, the court administrator notified appellant of the July trial date on May 12, 1995, but it appears that appellant's counsel did not request the continuance until June or July.[2] A continuance based on an "eleventh hour" request by a defendant weighs against the defendant in a speedy trial inquiry. Friberg, 435 N.W.2d at 514-15.

When appellant's counsel requested a continuance to attend his class reunion, the court administrator rescheduled the hearing for September 19, 1995, more than 60 days after the July trial date. The record contains no evidence that appellant's counsel contacted the clerk at this time to mention that appellant had made a demand for a speedy trial, nor that he objected to the two-month delay after his request for a continuance. The supreme court has admonished defense attorneys for such behavior:

[D]efense attorneys should not be allowed to sit on their hands and acquiesce in the scheduling of trial dates they know are past the sixty-days prescribed by Rule 6.06. At a minimum, counsel notified of a trial date setting which is beyond the 60 day speedy trial requirement should notify the assignment clerk of the speedy trial demand.

Id. A defense attorney's failure to alert the court assignment clerk of the speedy trial demand weighs against the defendant. Id.

The second continuance occurred at the request of the prosecutor because one of the officers scheduled to testify would be out of town in training and not available to testify. The record contains no evidence that appellant objected to the continuance nor that he notified the clerk of his demand for a speedy trial. The final continuance was based primarily on court congestion and resulted in a further delay of only five days. Delay because of court calendar congestion should weigh less heavily against the prosecutor than a delay deliberately caused by a prosecutor. Jones, 392 N.W.2d at 234-36. Under the circumstances presented, the reasons for the delay weigh against appellant.

Assertion of Right

A defendant's assertion of the right for a speedy trial "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93 (quoted in Friberg, 435 N.W.2d at 515). A defendant is not required to continuously reassert his demand for a speedy trial. The court, however, may consider the frequency and force of the defendant's demand when weighing the third Barker factor because the frequency and force of a speedy trial demand "is likely to reflect the seriousness and extent of the prejudice which has resulted." Friberg, 435 N.W.2d at 515.

In Friberg, the defendants made only one demand for a speedy trial by filing a notice of demand after the hearing in which they pleaded not guilty, waited until the date of trial to remove the judge, and failed to inform the assignment clerk that a demand for a speedy trial had been made. Id. The supreme court concluded that this "minimal effort lends support to the trial court's conclusion that defendants did not suffer serious prejudice from the delay of trial." Id. Similar to Friberg, appellant made his demand for speedy trial by filing a written demand after his guilty plea hearing, sought a continuance just before his trial date, and repeatedly failed to inform the clerk that he had made a speedy trial demand. The record here, similar to Friberg, demonstrates a weak assertion of appellant's right to a speedy trial.

Prejudice to Accused

The final factor we consider is whether appellant has been prejudiced by the trial delay. Prejudice is not confined solely to whether the delay affected the strength of a defendant's case, but the court should also consider prejudice resulting from "interference with the person's liberty, disruption of employment, financial hardship, strain on friendships and associations, and anxiety and stress to the defendant and defendant's family." State v. Brook, 381 N.W.2d 885, 889 (Minn. App. 1986) (citing Moore v. Arizona, 414 U.S. 25, 26-27, 94 S. Ct. 188, 190 (1973)).

The trial delay here did not cause appellant to spend extra time in jail or disrupt his employment, and there is no evidence that the continuances caused financial hardship. Appellant contends the continuances caused him anxiety and stress. Stress, anxiety, and inconvenience are experienced by anyone involved in a trial and, standing alone, are not sufficient to show prejudice under the Barker test in a misdemeanor proceeding. Friberg, 435 N.W.2d at 515.

Appellant also claims prejudice because his witnesses' memories faded due to the lapse of time. The trial court found otherwise, explaining that the witnesses appeared to have "clear" recollections and nothing suggested that the witnesses had forgotten anything. We must defer to this finding. See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (factfinder, not court of appeals, determines witness credibility and weighs their testimony). Under these circumstances, the final Barker factor does not favor appellant.

Considering the Barker factors in light of all the circumstances here, the trial court did not abuse its discretion when it ruled that there was good cause for the trial delay and that the delay did not violate appellant's right to a speedy trial.

II. Jury Trial

Appellant contends that the trial court violated his right to a jury trial when it denied his motion to reinstate the statutory misdemeanor charges. We disagree.

Appellant first contends that his agreement to dismiss the misdemeanor charges and amend the complaint to include two ordinance violations was required under Minn. R. Crim. P. 23.04 and State v. Johnson, 514 N.W.2d 551, 555 (Minn. 1994). Thus, he claims the court should have reinstated the statutory charges when he withdrew his approval. Here, the amendment of the complaint to a city code violation created a situation distinguishable from that of certification under rule 23.04 and Johnson. Unlike the statutory misdemeanor charges, the charged violations under the city code are not punishable by incarceration. Thus, the amendment resulted in a new classification of offense, not merely a petty misdemeanor treatment for a misdemeanor offense punishable by incarceration. See Minn. R. Crim. P. 23.04. The issue here is not one of certification; rule 23.04 does not apply.

Appellant maintains, alternatively, that the court should have treated his agreement to the amendment as a waiver of his right to a jury trial, hereby allowing him to withdraw the waiver anytime before the trial began. See Minn. R. Crim. P. 26.01, subd. 1(3) (waiver of jury trial may be withdrawn by defendant any time before commencement of trial). We disagree. Rule 26.01, subd. 1(3) only applies when violation of the charged offenses subject a defendant to punishment by incarceration. See Minn. R. Crim. P. 26.01, subd. 1(1)(a) (providing for right to jury trial "in any prosecution for an offense punishable by incarceration"); Minn. R. Crim. P. 26.01, subd. 1(1)(b) ("[i]n any prosecution for violation of a misdemeanor not punishable by incarceration, trial shall be to the court"). Waiver of jury trial rights is not at issue here because appellant does not have a right to a jury trial under the city code.

The trial court commented that it could have approved the amendment of the complaint over the objection of appellant. We agree. The court may freely allow the prosecutor to amend a complaint or file a new complaint or tab charge prior to trial and the attachment of jeopardy, provided there is probable cause that the defendant committed a different offense from that charged in the complaint. Minn. R. Crim. P. 3.04, subd. 2(b); Minn. R. Crim. P. 11.05 ("complaint may be amended as prescribed by these rules"); State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990) (trial court is "free to allow an amendment charging an additional or greater offense" prior to attachment of jeopardy). It is undisputed that probable cause existed here to support the city code charges.

It is not the role of the accused to dictate to the prosecuting authority how to proceed in charging a case. Generally, the prosecutor has considerable discretion regarding what charge to file against a defendant. State v. Krotzer, 548 N.W.2d 252, 256-57 n.3 (Minn. 1996) (Coyne, J. dissenting). In light of the prosecutor's discretion to charge and the established rules of criminal procedure regarding amendment of the complaint, appellant's motion to reinstate the statutory misdemeanor charges lacks any basis in law.

Affirmed.

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

[ ]1 Appellant has included in his appendix a letter from his attorney's assistant dated September 15, 1995, in which the assistant informed appellant that she had "requested that [the trial] be set on the court calendar as soon as possible." We strike this letter from the record on appeal, because it is not contained in the record before the trial court. Minn. R. Civ. App. P. 110.01 ("papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases").

[ ]2 It is likely that appellant's attorney made the continuance request in July resulting in a continuance to September, because the record indicates that the court administrator routinely gave trial dates two months after a request.