Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Donald Edward Brown,
Dissenting, Klaphake, Judge
Sherburne County District Court
File No. K196400
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Walter Kaminsky, Sherburne County Attorney, Thomas D. Hayes, Assistant County Attorney, Sherburne County Courthouse, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Amundson, Judge.
Appellant seeks a new trial on the ground that his notice to remove the judge who presided over his trial was erroneously denied, and in the alternative seeks a reduction in his sentence on the ground that the wrong sentencing guidelines were used. Because we see no error in either the denial of the notice to remove or appellant's sentence, we affirm.
Appellant David Brown married E.R.D.'s mother in 1985, when E.R.D. was six years old. Appellant sexually abused E.R.D. until about 1992. E.R.D. then realized that she had been abused and reported the matter to her mother, an aunt, three school friends, school officials, and the police. Following a police investigation, appellant was charged with eight counts: counts 1-3: violating Minn. Stat. § 609.342, subd. 1(a), sexual penetration of a person under 13 by a person more than 36 months older between 1988 and 1991; count 4: violating Minn. Stat. § 609.342, subd. 1(h)(v), sexual penetration of a person under the age of 16 with whom he had a significant relationship and the abuse involved multiple acts committed over an extended period of time between 1988 and 1991; counts 5-7: violating Minn. Stat. § 609.343, subd. 1(a), sexual contact with a person under 13 by a person more than 36 months older between 1987 and 1992; and count 8: violating Minn. Stat. § 609.343, subd. 1(h)(v), sexual contact with a person under the age of 16 with whom he had a significant relationship and the abuse involved multiple acts committed over an extended period of time between 1987 and 1992.
On March 13, 1996, when these charges were brought, appellant was already before the court on a probation violation and two other matters, a misdemeanor fifth-degree assault of another victim and possession of a small amount of marijuana. At the rule 5 hearing on March 14, 1996, the judge noted, "My review of this complaint indicates that [appellant] made some statements which could be construed as admissions. It also indicates that he admitted to having a drinking problem." The judge then set bail at $40,000 in the felony case and $1,400 in the assault and ordered that appellant have no contact with E.R.D., her mother, or any juvenile females. The court also ordered appellant not to use or possess either alcohol or nonprescription controlled substances.
At the rule 8 hearing on March 22, 1996, appellant's counsel argued that bail should be reduced to $3,000 because it was appellant's first appearance on a felony, appellant had been honorably discharged from the Navy, and he had a GED, a job, and a local address. The prosecution argued that the felony charges were very serious, that E.R.D. feared appellant, that the victim of the alleged assault also feared appellant, and that appellant had shown no remorse. The judge observed that appellant had made illegal contact with the assault victim after a hearing on the victim's order for protection, that the judge had reviewed and signed an order for protection against appellant for E.R.D. and her mother, that the judge was concerned for appellant's victim's safety, and that the bail evaluator recommended that bail be maintained. The judge then set bail at the previous amount.
On April 12, 1996, three weeks after the rule 8 hearing, counsel for appellant filed a notice to remove the judge. The notice to remove did not allege that appellant had any cause to seek the judge's removal. The judge wrote on the notice, "I've already handled parts of this case. He'll have to set it on for a motion. Denied." Appellant's counsel was notified orally that the notice to remove was denied. At appellant's next hearing on April 25, 1996, the judge explained the denial.
[T]he reason I denied it is that I had handled the Rule 8 hearing with [appellant] at which time the issue of bail was argued and I made a decision; and, thus, your client no longer had any right to just remove me based upon the notice. He actually had to bring a Motion.
The matter was not discussed further. Appellant never brought a motion. He proceeded with that judge through two more pretrial hearings without raising the issue.
At the beginning of trial, appellant's attorney again requested that the judge be removed.
I have received repeated requests from [appellant] and I do today receive a current request from him, too, that you not be the trial judge. He, for your information, has been before you on a number of occasions on entirely unrelated matters. He feels that you are too familiar with himself and his family and are not predisposed to treat him fairly in this case. And he would ask that you allow [another district court judge] to be the trial court judge rather than yourself. In fact, he is really very insistent that that be done, is just not happy with proceeding with you as the trial court judge, your Honor.
The judge again observed that the notice to remove had been denied "because I had heard one, if not two, hearings by the time the Notice came in" and that appellant's attorney had never brought a formal motion requesting recusal. The judge pointed out that numerous court appearances and in-camera review of all discovery information had already occurred, that both sides had been informed who the trial judge would be, that the judge appellant requested might not be available for the length of the trial, and that because appellant had frequently been in court in unrelated matters, they would be "hard pressed" to find a judge with whom he had had no previous contact. The judge then acknowledged expressing frustration with appellant at the April 25 hearing, when appellant had argued at length that the order for protection unjustly deprived him of contact with his sons and the judge learned that he had seen the boys the night before. Finally, the judge noted two decisions favorable to appellant, i.e., the exclusion of evidence of his assault on E.R.D.'s mother as too prejudicial and the countermanding of a policy that he be brought to court in leg irons, and denied appellant's request for recusal.
The jury found appellant guilty on all eight counts. He was sentenced on count 5 to the presumptive 43 months and the mandatory minimum $10,500 fine and on count 1 to 196 months, an upward double durational departure, and the mandatory minimum fine of $12,000. The sentences were concurrent.
Appellant challenges the judge's failure to comply with his notice to remove. In the alternative, he challenges the judge's decision to sentence him on counts 1 and 5, using the 1989 Sentencing Guidelines, instead of on counts 4 and 8, using pre-1989 guidelines, which would have resulted in a maximum 24 months on count 8 and a double durational departure of 108 months on count 4.
I. Notice to Remove
not an affirmative showing of prejudice" and quoting Cermak for the proposition that a writ of prohibition is the proper challenge to denial of a motion to remove). Appellant's failure to seek a writ of prohibition following the denial of his notice to remove arguably waived his right to appeal that denial. We nevertheless address the issue on its merits.
The decision not to grant appellant's notice to remove, on these uncontroverted facts, was a legal issue. A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).
Minn. R. Crim. P. 26.03, subd. 13(4) provides:
The defendant or the prosecuting attorney may serve on the other party and file with the court administrator a notice to remove the judge assigned to a trial or hearing. The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing, but not later than the commencement of the trial or hearing. No notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice * * *.
The comment to the rule expands on this:
[A] party is not foreclosed from later serving and filing a notice to remove a judge who simply presided at an appearance under Rule 5 or Rule 8 in the case.
Minn. R. Crim. P. 26.03, subd. 13(4) cmt. Appellant relies on the comment to argue that the judge should have complied with his notice to remove. However, by the time appellant filed his notice to remove, the judge had done more than simply "preside at an appearance." At the rule 8 hearing, the judge heard argument, considered whether the safety of appellant's victims would be at risk if he were released, and made decisions as to bail and the conditions to be imposed on appellant. Because the judge had done more than "preside at an appearance," the decision not to comply with appellant's notice to remove was not erroneous.
Moreover, the comment on which appellant relies observes that Minn. R. Crim. P. 26.03, subd. 13(4) "is based on Minn. R. Civ. P. 63.03 * * *."
The advisory committee note [to this rule] indicates the revisions were intended "to make it clear that a party must file a notice to remove with respect to any individual judge the first time that judge presides in an action." In addition, "[t]he Committee also determined that a decision to remove a judge should be made before any proceedings before that judge take place, and the period in which the judge may be removed therefore ends absolutely at the time the trial or hearing commences."
Zweber v. Zweber, 435 N.W.2d 593, 594 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989). If Minn. R. Crim P. 26.03, subd. 13(4), was drafted with the same intent as Minn. R. Civ. P. 63.03, on which it is based, appellant lost his right to notice the removal of the judge from his case after the judge made decisions concerning him.
Appellant's reliance on State v. Dailey, 284 Minn. 212, 169 N.W.2d 746 (1969) (granting new trial because judge ignored defendant's timely filed affidavit of prejudice) is misplaced. Dailey predates Minn. R. Crim. P. 26.03; the judge in Dailey had not conducted any previous hearings; and the defendant in Dailey learned of both the trial date and the judge's identity less than 48 hours before trial began, when 24 of those hours were a legal holiday.
The proper method for appellant to challenge the denial of his notice to remove was a writ of prohibition, not this appeal. Notwithstanding this, we conclude that the judge did not err in denying a notice to remove after hearing argument and making decisions in the case.
[T]he trial court [has] discretion in choosing which offense is the "most serious." Neither the statute itself [Minn. Stat. § 609.035, providing that when a defendant's conduct constitutes more than one offense he may be sentenced on only one conviction] nor the case law construing it implies that such a limitation should exist.
State v. Alt, 529 N.W.2d 727, 731 (Minn. App. 1995), review denied (Minn. July 20, 1995). Therefore, the trial court's choice of counts 1 and 5 must stand unless the court abused its discretion.
The purpose of Minn. Stat. § 609.035 is to protect the defendant from multiple punishment.
* * * *
[However, t]he policy of the statute encompasses an assumption that the trial court will sentence on the most serious offense. The statute implies no further protection when, as here, what is by some measurement arguably the "more serious" offense carries the less severe potential punishment.
Id. Appellant is not entitled to choose counts with shorter sentences by arguing that multiple acts with a victim under 16 are more serious than single acts with a victim under 13. "The court may impose "the highest sentence which any of [the convictions] carries." Id. (quoting the advisory committee comment to Minn. Stat. § 609.035). The court did not abuse its discretion in sentencing appellant under counts 1 and 5.
The court used the 1989 Guidelines because it found that at least one act of sexual penetration of a victim under 13 (count 1) and one act of sexual contact with a victim under 13 (count 5) had occurred after August 1, 1989. Appellant does not challenge this finding. Instead, he relies on State v. Goldenstein, 505 N.W.2d 332, 347 (Minn. App. 1993) (holding that when multiple offenses are an element of the crime, the date of the earliest offense should be used as the date of the conviction offense), review denied (Minn. Aug. 17, 1993) to argue that the court should have sentenced him on the multiple-offense counts using pre-1989 guidelines. Goldenstein is distinguishable because it involved no testimony relevant to when the offense occurred, compelling whatever presumption as to time that favored the defendant. Here, testimony from several individuals showed how old E.R.D. was when various incidents of abuse occurred.
There was no abuse of discretion in appellant's sentence.
Dated: January 9, 1998
Judge Roland C. Amundson
KLAPHAKE, Judge (dissenting).
I respectfully dissent.
First, I do not believe that appellant waived his right to appeal the denial of his notice to remove by failing to seek a pretrial writ of prohibition. Such a writ might have been the "proper" remedy to review his notice to remove at the time the judge denied that notice. It is not, however, the "exclusive" remedy. In other instances, a reviewing court has granted a writ of prohibition at the pretrial stage of a proceeding to review an issue that arguably could have been raised posttrial by appeal from the judgment, albeit with possibly inadequate or ineffectual results. Cf. Brooks Realty, Inc. v. Aetna Ins. Co., 268 Minn. 122, 128-29, 128 N.W.2d 151, 155 (1964) (where alternative to issuing writ of prohibition was to wait to correct error of law until after trial and appeal, remedy inadequate and writ issued to restrain effect of erroneous pretrial order determining that certain issues barred by collateral estoppel); Juster v. Grossman, 229 Minn. 280, 288, 38 N.W.2d 832, 837 (1949) (writ of prohibition recognized as proper remedy, partly because reversal on posttrial appeal of discovery order restraining taking of properly noticed deposition would be inadequate remedy).
The cases cited by the majority, however, arose under a different procedural posture than this case. In three of the cases, the defendant sought a pretrial writ of prohibition to challenge a trial judge's denial of a notice to remove. See, e.g., State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984) (although case arose on appeal from judgment, defendant previously sought pretrial writ of prohibition that had been denied; on appeal, supreme court noted this, but nevertheless addressed merits of removal issue and determined trial judge did not act erroneously); State v. Laughlin, 508 N.W.2d 545, 546-47 (Minn. App. 1993) (pretrial petition for writ of prohibition); State v. Poole, 472 N.W.2d 195, 196-97 (Minn. App. 1991) (same). In one of the cases, this court addressed the trial judge's refusal to disqualify himself, even though we noted that the proper remedy was to seek a writ of prohibition. State v. Yeager, 399 N.W.2d 648, 652 (Minn. App. 1987) (issue addressed on appeal from judgment of conviction); see also State v. Kramer, 441 N.W.2d 502, 505 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989). In no case has a reviewing court held that a defendant has waived the issue because he failed to petition for a pretrial writ of prohibition.
Rather, the rules provide that
[o]n appeal from a judgment, the court may review any pretrial or trial order or ruling * * *. The court may review any other matter as the interests of justice may require.
Minn. R. Crim. P. 28.02, subd. 11. Thus, I would hold that appellant has not waived his right to challenge the trial judge's denial of his notice to remove by failing to file a pretrial writ of prohibition.
Second, I believe that the trial judge erred in denying appellant's notice to remove. Under Minn. R. Crim. P. 26.03, subd. 13(4), a defendant is entitled to one removal "as a matter of right." A notice to remove must be filed "not later than the commencement of the trial or hearing," and "[n]o notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice[.]" Id. A comment to this rule explains that a party is not precluded from filing a notice to remove a judge "who simply presided at an appearance under Rule 5 or Rule 8 in the case." Minn. R. Crim. P. 26.03 cmt.
I believe that the majority's analysis ignores the plain language of the rule and the explicit language of this comment. The majority concludes that the trial judge did more than "preside at an appearance" because the judge heard argument and made a decision. I disagree. The trial judge here "simply presided" at appellant's rule 5 hearing and then at his rule 8 hearing. At the first hearing, the judge reviewed the complaint and set bail; at the second, the judge heard arguments from counsel and set bail at the previous amount. Neither of these hearings can be considered an "evidentiary" hearing, at which parties are sworn, evidence is presented, and the merits of a case are considered.
I would not disregard the language of the rule and the comment, as the majority does, merely because the comment also states that rule 26.03, subd. 13(4) is "based on Minn. R. Civ. P. 63.03." Rule 63.03 is more general and provides that no notice to remove "may be filed * * * against a judge * * * who has presided at a motion or any other proceeding of which the party has notice." This language is substantially different from the specific language of rule 26.03, subd. 13(4), which disallows removal notice to be filed against a judge who has already presided "at the trial, Omnibus Hearing, or other evidentiary hearing." Cf. Minn. Stat. § 645.26, subd. 1 (when statutory provisions irreconcilable, particular or special provision prevails over general).
Finally, a claim involving a trial judge's failure to honor a proper request for automatic removal is not subject to a harmless error analysis. Ellis v. Minneapolis Comm'n on Civil Rights, 295 N.W.2d 523, 525 (Minn. 1980) (failure to honor proper affidavit of prejudice under rule 63.03 is reversible error requiring new trial). Because the trial judge here erred in refusing to remove herself, I believe appellant is entitled to a new trial.
 Appellant challenges neither the judge's conduct during trial nor the double durational departure.
 Appellant attempts to counter these cases with State v. Strom, No. C1-91-2481 (Minn. App. Aug. 4 1992) (relying on a civil case to hold that writ of prohibition is not the exclusive remedy for denial of a notice to remove). As an unpublished decision of this court, Strom is without precedential value; appellant cannot rely on it to counter established case law.
 Minn. R. Crim. P. 28.02, subd. 1 also provides: "Except as provided by law for the issuance of the extraordinary writs * * *, defendant may obtain review of orders and rulings of the district courts * * * only by appeal as provided by these rules." However, nothing in the law states that a pretrial writ of prohibition is the exclusive method of obtaining review.