This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Kevin Peter Anderson,


Filed May 6, 1997

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

St. Louis County District Court

File No. K6-95-301157

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, 100 N. Fifth Avenue West, #501, Duluth, MN 55802 (for Respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



Appellant Kevin Peter Anderson, convicted of driving after cancellation, contends he was denied his right to a fair trial because the trial judge made pretrial, in-chambers comments suggesting that he would set aside the verdict if appellant were acquitted and that in sentencing he would consider appellant's choice to proceed to trial with no defense. We conclude that these comments had no effect on appellant's trial, but we remand for resentencing by a different judge to avoid any possible appearance of bias in sentencing.


On November 30, 1995, appellant was stopped and arrested for driving after cancellation of his driver's license. Appellant stipulated that he knew his driver's license was revoked and that it had been revoked as inimical to public safety. See Minn. Stat. § 171.24, subd. 5 (1994). After appellant stipulated to the essential elements of the offense, the court questioned appellant's assertion of his right to trial. The court stated:

[I]f the jury came back and found him not guilty, I'd have to take the verdict away from him. I'd have to declare--you know, do something. Because there is no defense here.

The court also stated that it would "look at [appellant's] record very closely" and that appellant had "absolutely no defense," stating, in part:

[T]he Court's going to look at that when it gets to sentencing. And his record. * * * I don't know that I'll necessarily hold it against him. I don't think I will, but I certainly will look at his record very closely in view of his attitude about this.

Appellant nevertheless maintained his right to trial, and the trial proceeded with no objections by defense counsel and no evidentiary ruling by the judge. The jury returned a guilty verdict, and the court sentenced appellant to a one-year stayed sentence. As a condition of probation, appellant was required to serve nine months in the Northeast Regional Correction Center and pay a $3,000 fine.


Appellant claims that the trial court's comments were an egregious violation of due process. A criminal defendant is entitled to a fair trial. U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7. It is a fundamental violation of law for a judge to act with partiality. See Tumey v. Ohio, 273 U.S. 510, 522, 47 S. Ct. 437, 441 (1927) (noting that questions arise regarding nature and degree of judge's interest in case); see also Minn. Code of Jud. Conduct, canon 3 (1996) ("a judge shall perform the duty of the office impartially and diligently"). Partiality that constitutes a "structural defect" that "transcends the criminal process" is not subject to a harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 311, 312, 111 S. Ct. 1246, 1265 (1991).

We agree with appellant's contention that the trial judge in effect threatened to punish him for asserting his right to trial. We disagree, however, with appellant's contention that the judge's comments constituted a structural defect and transcended the criminal process. The impact and repetition of the judge's statements were tempered by their context: some comments were hypotheticals and some were contradicted by the judge's other comments. Appellant does not allege, nor does it appear, that the judge's comments had any impact on the trial itself. The judge made no evidentiary rulings during trial. Thus, while the judge's pretrial comments were improper, they do not demonstrate partiality that would warrant vacation of appellant's conviction.

Unlike specific evidence presented at trial, a defendant's decision to request a trial may not impact on his sentence. For example, a trial court may properly warn a defendant of the risks of asserting his right to trial, such as the judge learning facts that would support an upward sentencing departure. See State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983). Similarly, a judge's hypothetical pretrial comments concerning the basis for a sentencing departure made during informal plea discussions are proper. State v. Pierson, 368 N.W.2d 427, 431 (Minn. App. 1985). Further, a judge's accurate comment that, if convicted, defendant would be sent to a more restrictive prison does not make the defendant's resulting plea involuntary. See State v. Doughman, 340 N.W.2d 348, 353 (Minn. App. 1983), review denied (Minn. Mar. 15, 1984). To avoid any appearance of bias in sentencing appellant for this offense, we remand for resentencing by a different judge.

Affirmed in part, reversed in part, and remanded.