may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed May 4, 1999
Hennepin County District Court
File No. 95074990
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.[*]
Appellant Stephen Danforth contends the district court erred by: (1) denying his request for a continuance; and (2) denying his notice of removal of the sentencing judge. In his pro se brief, appellant raises several challenges to his sentencing. We affirm.
examine the circumstances before the trial court when the motion was made to determine whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.
Id. To find reversible error, the court must find the error affected the outcome of the case. State v. Jones, 451 N.W.2d 55, 61 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).
A sentencing hearing should be scheduled so that "the parties have adequate time to prepare and present arguments regarding the issue of sentencing." Minn. Stat. § 244.10, subd. 1 (1996). Due process requires that a defendant have notice, an opportunity to be heard, and an opportunity to confront and cross-examine witnesses at a sentencing hearing. State v. Kortkamp, 560 N.W.2d 93, 96 (Minn. App. 1997).
On May 27, 1998, the district court continued appellant's sentencing pending findings by the court psychologist, Dr. Lawrence Panciera, Ph.D., L.P., due to the court no later than June 19, 1998. Sentencing was rescheduled for August 4, 1998. The psychological report (Panciera Report) was dated July 1, 1998, and presumably was received by the court soon after. Appellant's counsel received the report July 21, but was unable to get it to appellant immediately due to a "lockdown" at the Stillwater Correctional Facility. Appellant requested a continuance on July 30, 1998, to secure more time to address the information in the report. On August 3, 1998, the court held a phone conference with the prosecutor and counsel for appellant on the matter, and the court refused to continue the sentencing. Sentencing was concluded the following day.
Appellant contends the district court erred because appellant had inadequate time to prepare to confront and cross-examine Dr. Panciera at the sentencing hearing and inadequate time to produce an expert to refute the Panciera Report. We disagree. The record indicates: (1) appellant and his counsel were aware that the psychological report was being compiled as of the May 27, 1998, court order; (2) appellant knew his psychological condition would be at issue; (3) appellant could have, but did not, hire his own expert prior to receiving the Panciera Report at any time between May 27 and July 21; (4) appellant had one to two weeks after receiving the Panciera Report to prepare for the hearing; and (5) appellant did not attempt to either examine or subpoena Dr. Panciera. We conclude appellant had ample opportunity to prepare to refute the Panciera Report and was not materially prejudiced because his continuance request was denied.
Appellant argues that because he did not receive the court's notice of its intent to sentence him as a patterned sex offender under Minn. Stat. § 609.1352 (1996), it was error for the court to apply that statute. We disagree. At appellant's original sentencing, the court found the patterned sex offender factors were present, but did not sentence according to the statute. On appeal, this court directed the district court to follow the sentencing scheme in the patterned sex offender statute. See State v. Danforth, 573 N.W.2d 369, 377 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998) (interpreting Minn. Stat. § 609.1352). Because that opinion was issued on December 16, 1997, appellant had notice in December 1997 that he would be sentenced as a patterned sex offender.
Appellant argues the court erred in denying his motion for removal of the judge who presided at his sentencing. Whether a removal notice is proper is a question of law. Citizens State Bank v. Wallace, 477 N.W.2d 741, 742 (Minn. App. 1991). 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). Failure to honor a proper removal notice is reversible error requiring a new hearing. Citizens State Bank, 477 N.W.2d at 742 (stating rule in context of civil case).
A defendant may serve notice to remove a judge assigned to a hearing, but the defendant must serve and file that notice within seven days after receiving notice of which judge is to preside at the hearing, and not later than the commencement of the trial or hearing. Minn. R. Crim. P. 26.03, subd. 13(4). Notice to remove is not effective against a judge who has already presided at a trial, omnibus hearing, or other evidentiary hearing except upon a showing of cause. Id.
The district court notified the parties as to which judge would be presiding in this matter in a conference call on July 16, 1998. Appellant did not request removal until the hearing on August 4. Appellant argues the seven-day rule should not apply because he did not receive the Panciera Report until a week before the date set for resentencing, and he did not have an opportunity to discuss the matter with counsel until after the deadline for filing had passed. We disagree. The rule allowing removal does not provide exceptions or extensions for events that occur after a judge is assigned. We conclude notice of removal was not timely, and the district court did not err by denying the removal request.
For the court to sentence a defendant as a patterned sex offender, it must find that the defendant needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. Minn. Stat. § 609.1352, subd. 1(a)(3). The finding must be based on a professional assessment, and the assessment
must contain the facts upon which the conclusion is based, with reference to the offense history of the offender or the severity of the current offense, the social history of the offender, and the results of an examination of the offender's mental status unless the offender refuses to be examined.
Id. The statute continues:
The conclusion may not be based on testing alone. A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.
Id. (emphasis added).
Appellant refused to submit to testing or interviews for his professional assessment, so the court psychologist based his evaluation on records submitted to the court and on research in a previously implied psychological report. We conclude the district court did not err by relying on the Panciera Report because: (1) it was appropriate to look at information more than ten years old to determine whether appellant's criminal sexual behavior is "engrained"; (2) the report was proper even though Dr. Panciera compiled it without direct contact with appellant because the statute allows a defendant to be sentenced under the statute without a direct psychological screening. See Minn. Stat. § 609.1352, subd. 1(a)(3) (stating assessment must contain results of examination of offender's mental status unless offender refuses to be examined); (3) the court did not err in allowing the report to rely on documents not in the court file, because the statute requires a broad look into a defendant's background. See Minn. Stat. § 609.115, subd. 1 (1996) (stating presentence investigation reports may be based on individual's "characteristics, circumstances, needs, potentialities, criminal record and social history, the circumstances of the offense and the harm caused by it to others and to the community"); and (4) appellant's hearsay concerns are unfounded, because the introduction of hearsay evidence at a sentencing hearing does not violate a defendant's due process rights. State v. Adams, 295 N.W.2d 527, 536 (Minn. 1980).
Finally, we conclude the court did not err by allowing the Panciera Report to be filed after the court's deadline because the court has the discretion to set and extend nonstatutory deadlines. See Housing & Redev. Auth. v. Kotlar, 352 N.W.2d 497, 500 (Minn. App. 1984) (finding trial court within its discretion in setting deadline to produce documents and dismissing case when documents were not filed before deadline).
Here, the district court was instructed by this court to impose a double durational departure according to the patterned sex offender statute if certain findings were made. See Danforth, 573 N.W.2d at 377 (interpreting Minn. Stat. § 609.1352). The state appealed the original sentence within the prescribed time period and appellant did not have a crystallized expectation in his sentence. We conclude the court did not err in increasing appellant's original sentence.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.