may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ricardo Sheldon King,
Filed May 13, 1997
Affirmed and remanded
Hennepin County District Court
File No. 96019378
Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Ricardo King appeals his conviction of controlled substance crime in the second degree for the sale of cocaine under Minn. Stat. § 152.022, subd. 1(1), arguing that (1) he did not knowingly and intelligently waive his right to a jury trial, (2) the district court's clerical mistakes warrant a reversal of his conviction, and (3) he was denied effective assistance of counsel. We affirm, but remand for the correction of clerical mistakes.
In March 1996, King was arrested at his residence as the result of a second executed search warrant. Police officers recovered 4.5 grams of cocaine in individually wrapped packages and a handgun. King was charged with third-degree controlled substance crime for possession of cocaine under Minn. Stat. § 152.023, subd. 2(1), and second-degree controlled substance crime for sale of cocaine under Minn. Stat. § 152.022, subd. 1(1). The complaint states that King admitted he was "going to sell most of the cocaine."
On June 26, 1996, King pleaded guilty to the August 1995 charge of second-degree controlled substance crime for possession. On the same date, it appears from the transcript that in exchange for King's guilty plea the charge of second-degree controlled substance crime for sale was not pursued.
Also on June 26, 1996, with regard to the March 1996 charges, King denied that he told the police officers he intended to sell the cocaine. King urged the court to view the videotape of his police interview to confirm that he did not say he would sell the cocaine.
The district court recommended that the March 1996 charges be tried by the court on stipulated facts without a jury. The court told King that if it viewed the videotape and found that King stated no intention to sell the cocaine, it would drop the second-degree controlled substance crime for sale and sentence King to probation for the lesser charge of third-degree controlled substance crime for possession. However, if the court found King did express an intent to sell the cocaine, it would find King guilty of second-degree controlled substance crime for sale and sentence him to 48 months in prison. King agreed to a trial on stipulated facts and waived his right to a jury trial.
The court reviewed the videotape of the police interview and concluded that King expressed an intent to sell the cocaine. On August 29, 1996, the court found King guilty of second-degree controlled substance crime for sale and sentenced him to 48 months in prison. The district court did not file its order and findings of fact until October 17, 1996. This appeal followed.
King argues that his waiver of the right to a jury trial was not knowing or intelligent. King claims that because the district court failed to inform him that a jury's verdict must be unanimous, he did not effectively waive his right to a jury trial.
The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.
Minn. R. Crim. P. 26.01, subd. 1(2)(a). The waiver of a jury trial must be "knowing, intelligent and voluntary." State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991). The district court must ascertain that the defendant understands the basic elements of a jury trial. Id. at 654.
King stated in open court that (1) he understood he had a right to a jury trial, (2) he had discussed with his attorney his right to a jury trial, and (3) he understood he was giving up the right to confront witnesses. King was assisted by counsel, who presumably informed him of the advantages and disadvantages of a jury trial. Also, King was not unfamiliar with the judicial system, having been convicted of obstructing legal process in 1992.
On May 21, 1996, King signed a petition to enter a plea of guilty to the August 1995 charge of second-degree controlled substance crime for possession. The petition informed King of the basic elements of a jury trial, including:
15. I have been told by my attorney and I understand:
a. That if I wished to plead not guilty I am entitled to a trial by a jury of 12 persons and all 12 persons would have to agree I was guilty before the jury could find me guilty.
c. That with knowledge of my right to a trial I now waive my right to a trial.
Although the district court did not explicitly tell King that a jury's decision has to be unanimous, the omission does not invalidate King's waiver. See Ross, 472 N.W.2d at 654 (Minn. 1991) (finding valid waiver where defendant was not told jury's decision had to be unanimous). We find that King knowingly, intelligently, and voluntarily waived his right to a jury trial.
2. Filing of Order.
King argues that because the district court did not file its order and general findings within seven days after the June 26, 1996 hearing and because of numerous clerical mistakes in the record, "the interests of justice and the integrity of the criminal justice system require that appellant's conviction for a controlled substance offense be reversed."
Minn. R. Crim. P. 26.01, subd. 2, provides that
[i]n a case tried without a jury, the court, within 7 days after the completion of the trial, shall make a general finding of guilty, [or] not guilty * * *. The court, within 7 days after the general finding in felony and gross misdemeanor cases, shall in addition specifically find the essential facts in writing on the record.
The seven-day limit for the court to file findings of fact is directory, not mandatory. State v. Thomas, 467 N.W.2d 324, 326 (Minn. App. 1991). This court will not reverse a conviction for the failure of a district court to meet this time limit unless the defendant has been "'prejudiced through the impairment of substantial rights essential to a fair trial.'" Id. (citation omitted).
King's trial ended June 26, 1996. The district court did not issue its findings of facts within the time prescribed by Minn. R. Crim. P. 26.01, subd. 2. There is no evidence, however, that the delay prejudiced King.
3. Clerical Mistakes.
There are clerical mistakes apparent on the face of the district court record. See Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930) (defining clerical mistakes as those apparent on face of record and capable of being corrected by referencing record). The mistakes are:
(1) The warrant of commitment resulting from the trial on stipulated facts shows that King was found guilty of third-degree controlled substance crime for possession. It should show that King was found guilty of second-degree controlled substance crime for sale.
(2) The district court's findings of fact state that on August 24, 1995, King gave a statement in which he expressed his intention to sell cocaine seized at his residence. The findings of fact should state that King gave the statement on March 7, 1996.
(3) The district court's order should show that King was sentenced to 48 months on count two, complaint no. 96019378, not on count one.
Minn. R. Crim. P. 27.03, subd. 8, provides that
[c]lerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.
We remand to the district court for the correction of the clerical mistakes noted.
4. Effective Assistance of Counsel.
King argues pro se that he was denied effective assistance of counsel. King claims that his attorney instructed him not to read the petition to enter a plea of guilty and did not answer all his questions. He also states that his attorney "rushed through [trying] to end the case without appellant's best interest, appellant's counsel seemed as though he always had somewhere else to be."
An attorney provides effective representation by exercising the "customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances." Marhoun v. State, 451 N.W.2d 323, 328 (Minn. 1990) (citation omitted). King bears the burden of proving his attorney did not provide effective representation and "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. King has not borne his burden.
Affirmed and remanded.
[ ]1Minn. Stat. § 152.01, subd. 15a, defines "sell" as:
(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or
(2) to offer or agree to perform an act listed in clause (1); or
(3) to possess with intent to perform an act listed in clause (1).