This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-784

C4-02-785

 

State of Minnesota,

Respondent,

 

vs.

 

Azad Sidney Erfanian,

Appellant.

 

Filed January 7, 2003

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Hennepin County District Court

File No. 98105450

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487-0501 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, Minnesota 55414-3230 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant challenges his probation revocation and subsequent sentencing in this consolidated appeal, alleging the trial court erred by failing to recuse himself for bias, excluding bias evidence, and permitting amendment of the notice of probation violation.  Appellant further argues that the state did not prove a probation violation by clear and convincing evidence or that the alleged offenses were serious enough to warrant revocation.  With respect to sentencing, appellant argues that the trial court erred by imposing consecutive sentences, and his attorney erred by not opposing consecutive sentences, denying him effective assistance of counsel.  We affirm in part, reverse in part, and remand.

FACTS

            On July 18, 1997, Azad Sidney Erfanian admitted committing two felonies and was designated an extended jurisdiction juvenile (EJJ).  As a result of a plea negotiation, Erfanian received stayed consecutive adult sentences of 18 months for second-degree burglary and 36 months for second-degree assault, contingent on successfully completing juvenile probation.  On September 1, 1998, Erfanian pleaded guilty to fifth-degree assault.  As a result, the trial court revoked Erfanian’s EJJ designation.  The court imposed adult probation and stayed his 54-month sentence provided he serve a year in the workhouse. 

            Erfanian was charged with several offenses over the next three years.  On December 2, 2001, he was charged with fifth-degree assault for allegedly kicking Christina Lee, a former girlfriend, in the face at a party.  On January 22, 2002, Erfanian was cited for possession of marijuana,[1] resulting from a traffic stop.  The court filed an arrest and detention (A&D) order on January 30, 2002, for fifth-degree assault and careless driving.  In a letter dated February 13, 2002, the state notified Erfanian through his attorney that it intended to amend the A&D from careless driving to possessing marijuana in a motor vehicle.[2]

            At a hearing held February 22, 2002, Erfanian moved to disqualify the presiding judge for cause, but the trial judge refused to recuse himself.  On immediate appeal, the chief judge considered and denied Erfanian’s removal motion.  On February 25, 2002, the court held the probation revocation hearing.  Erfanian presented witnesses to refute the state’s charges and attempted to solicit testimony from defense witness Tina Doty that Amber Smith, a state witness, had threatened Doty to change her testimony.  The court sustained the state’s hearsay objection.  At the end of the hearing, the court permitted the state to amend the notice of probation violation from possession of marijuana in a motor vehicle to simple possession of marijuana as the charge appeared in the police report and on the citation.  The parties agreed to disregard the careless-driving charge as a probation violation and later continued the case for dismissal.  The court found Erfanian guilty of all charges, revoked his probation, and executed the previously stayed 54-month sentence.  This appeal followed.

D E C I S I O N

I

Judicial Bias

Erfanian argues that the trial judge made biased credibility determinations and should have recused himself or, at minimum, held the revocation hearing after the criminal trial, thereby allowing impartial jurors to make credibility and factual determinations. 

            The removal of judges in a criminal prosecution, whether for cause or as a matter of right, is governed by Minn. R. Crim. P. 26.03, subd. 13(3)-(6).  The chief judge of the judicial district hears and determines disqualification for cause motions.  Minn. R. Crim. P. 26.03, subd. 13(3).  When a motion to remove has been denied, the appropriate remedy is to file a writ of prohibition.  State v. Poole, 472 N.W.2d 195, 196-97 (Minn. App. 1991).

            Here, the trial judge denied Erfanian’s removal motion and the chief judge immediately considered the issue.  After a thorough review, the chief judge concluded that Erfanian’s claim of judicial bias was without merit.  Erfanian then proceeded with the revocation hearing.  On appeal, Erfanian again raises the issue of judicial bias.  But there is no evidence in the record that after the denial of his motion to remove, Erfanian sought a writ of prohibition, as he was required to do.  See id.  Instead, Erfanian continued with the revocation proceedings.  Because this issue is not properly before the court, we decline to review Erfanian’s claim of judicial bias.

Evidence of Witness Bias

            Erfanian contends that the trial court erred by excluding as hearsay a defense witness’s (Doty) testimony that a state witness (Smith) had threatened her in connection with her testimony.  We defer to the trial court’s exercise of discretion in evidentiary matters and will not disturb a court’s ruling absent a clear abuse of that discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). 

            The state argues that Erfanian did not make an offer of proof that the solicited testimony was offered to show bias and therefore Erfanian is precluded from claiming error on appeal.  See State v. Lee, 494 N.W.2d 475, 479 (Minn. 1992) (defendant failed to preserve claimed errors for appellate review by not making offer of proof).  Erfanian counters that, pursuant to Minn. R. Evid. 103(a)(2), the claimed error is preserved for appeal because it is clear from the exchange that the solicited testimony was offered to show Amber Smith’s bias against Erfanian.

            Here, the following exchange occurred:

Q [FINK]:                   Now, isn’t it true that one of his friends Amber called you yesterday to contact you about what’s going on here?

 

A [DOTY]:                  Yes.  Amber called me yesterday saying –

 

MR. FABER:             Objection, Your Honor.  It’s improper cross-examination.

 

MR. FINK:                 He opened it up, Judge.

 

THE COURT:            Sustained.

 

Q [FINK]:                   Has anyone threatened you as to what to say here today?

 

A [DOTY]:                  Yup.  I had a threat yesterday saying Amber—

 

MR. FABER:             Objection, Your Honor.

 

THE COURT:            On what grounds?

 

MR. FABER:             Hearsay.

 

THE COURT:            Sustained.

 

MR. FINK:                 I’d have no further questions, Judge.

 

It is apparent from this exchange that the alleged threat by Smith was offered to impeach Smith and illustrate her bias.  Moreover, impeachment testimony of a witness’s bias is not hearsay.  State v. Carillo, 623 N.W.2d 922, 928 (Minn. App. 2001) (finding testimony by defendant’s girlfriend offered for impeachment purpose to show bias where witness offered payoff for revised testimony), review denied (Minn. June 19, 2001).  Like in Carillo, the testimony here tends to show that Smith had a substantial interest in the outcome of the trial because she took measures to ensure a witness would not testify favorably for Erfanian. 

We conclude that the trial court erred when it excluded this testimony as hearsay.  Accordingly, we apply harmless error impact analysis to a trial court’s “erroneous exclusion of defense evidence.”  State v. Post, 512 NW.2d 99, 102 (Minn. 1994) (footnote omitted).  Error is harmless if we are “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.”   Id.  Error is prejudicial where there is a reasonable possibility the verdict might have been different had the evidence been admitted.  Id.  In completing “harmless error impact” analysis, our inquiry is not whether the jury could have convicted the defendant without the error, but whether the verdict was “surely unattributable” to the erroneous exclusion of defense evidence.  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quotation omitted).

            Erfanian argues that the trial court likely would have found that Smith was not a credible witness if the evidence of her threat had been introduced.  He further argues that because all three witnesses for the state “were close,” evidence of Smith’s bias might have tainted the credibility of these other witnesses.  We disagree. 

Smith was one of three witnesses who testified that Erfanian kicked Lee at the party.  The trial court found all three witnesses were credible.  The trial court found that neither Erfanian nor his witnesses were credible, given Erfanian’s obvious motive to lie and his affinity to all defense witnesses.  At least one of the defense witnesses could not remember when the party occurred, and others put Erfanian in different locations at the time of the assault.  We defer to the factfinder’s witness credibility and weight of testimony determinations.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. App. 1985).   Because the trial court disbelieved Erfanian and his witnesses, and because two state witnesses testified that Erfanian kicked Lee, it is unlikely that impeaching Smith by showing bias would have led the trial court to a different conclusion.  Furthermore, a finding that Smith was biased does not translate to a finding that the two other state witnesses were biased.  There is no evidence in the record that these witnesses made any threats, and the trial court found these witnesses to be credible.  We conclude that the erroneous exclusion of the “bias evidence” as hearsay was harmless error because the verdict was surely unattributable to the error.

Amendment of Notice of Probation Violation

            Erfanian was originally charged with fifth-degree assault and careless driving.  At the revocation hearing, the state withdrew the careless-driving charge and added a possession-of-marijuana-in-a-motor-vehicle charge.[3]  At the conclusion of evidence, the state again amended the violation to petty misdemeanor possession of marijuana.  Erfanian argues that he did not receive adequate notice of the possession-of-marijuana charge, and contends that had he known the correct charge, he would have offered a different defense.  Erfanian argues further that the two offenses—possession of marijuana in a motor vehicle and petty misdemeanor possession of marijuana—require significantly different defenses and therefore he was prejudiced by the state’s amended charge.  We disagree. 

Minn. R. Crim. P. 17.05 governs amendment of complaints and permits the court to do so any time before verdict or finding.  An amendment may “restate[] with particularity” the original offense but may not charge a new or different offense.  State v. Miller, 352 N.W.2d 524 (Minn. App. 1984), review denied (Minn. Nov. 9, 1984); Minn. R. Crim. P. 17.05.  An amendment is impermissible if a defendant’s substantial rights are prejudiced by the addition of an additional or different offense.  Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).  Allowing an amendment to a complaint under Rule 17.05 is discretionary with the trial court.  State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995). 

Written notice of the alleged grounds for revocation must be provided to the probationer.  Minn. Stat. § 609.14, subd. (2) (2002); State v. Enebak, 272 N.W.2d 27, 29 (Minn. 1978).  Notice is adequate if it prepares the probationer to refute the allegations against him.  Enebak, 272 N.W.2dat 29.  In Enebak, the probationer’s written notice of violation listed “engaging in illegal activities with a known prostitute” as grounds for revocation.  Id. at 28.  Apparently, no sexual activity had occurred, but the prostitute’s statement, of which Enebak was provided a copy, disclosed that the prostitute declined Enebak’s deviate sexual proposals.  Id.  The Minnesota Supreme Court concluded that although the written notice of probation violation was less than adequate, Enebak had received actual notice of the specific grounds for revocation when he received a copy of the prostitute’s statement.  Id.  The court concluded that actual notice in that case was adequate to permit Enebak to refute the allegations against him.  Id. 

In Miller, defendant was arrested for driving under the influence and driving with an alcohol concentration of .10 or more.  State v. Miller, 352 N.W.2d at 525.  After the state rested its case, the trial court granted the state’s motion to amend the complaint, to reflect a charge of Miller’s physical control of a vehicle while intoxicated rather than driving a vehicle while intoxicated.  Id.  On appeal, this court found the amendment did not allege a new offense, but “merely restated with particularity” the original complaint of driving under the influence.  Id. at 526.  Therefore, Miller had not been prejudiced.  Id.  

Here, Erfanian received a copy of the police report and the original citation--both documents correctly identified possession of marijuana as the basis for his probation revocation.  At the end of the hearing, the trial court allowed the state to amend the notice of probation violation from possession of marijuana in a motor vehicle, a misdemeanor it had not proven, to possession of a small amount of marijuana, a petty misdemeanor.  But, like in Miller, the amendment “merely restated with particularity” the charge of possession of marijuana.  See id.  The amendment, in conjunction with the police report and the original citation, provided adequate notice to allow Erfanian to refute the charge against him. 

Erfanian argues that the two offenses require significantly different defenses.  We disagree.  At the revocation hearing, Erfanian tried to establish that the marijuana belonged to someone else in the vehicle as a defense to the possession-of-marijuana-in-a-motor-vehicle charge.[4]  Thus, Erfanian effectively proffered a defense to the possession-of-marijuana charge.  We conclude, as the trial court did, that essentially the same offenses were involved and that the same witnesses would have testified on either charge.  Because Erfanian received actual notice of the allegations against him and was able to present a defense to the possession-of-marijuana charge, he was not prejudiced by the amendment of the notice of probation violation.  The trial court acted within its discretion in allowing the amendment. 

II

Erfanian argues that the evidence does not support the trial court’s finding that he assaulted Lee and the record does not reflect that the state’s witnesses were more credible than his own.  We review a trial court’s factual findings for clear error.  State v. Hendry, 636 N.W.2d 158, 163 (Minn. App. 2001), review denied (Minn. Jan. 29, 2002).  A factual finding is clearly erroneous “if this court, after reviewing the record, reaches the firm conviction that a mistake was made.”  State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).  We leave a trial court’s findings intact so long as they are reasonably supported by facts in the record.  State v. Schluter, 653 N.W.2d 787, 793 (Minn. App. 2002).  Moreover, we defer to the trial court’s ability to judge witness credibility.  Id.  Of course, a factfinder “is free to question a defendant’s credibility, and has no obligation to believe a defendant’s story.”  Ostrem, 535 N.W.2d at 923. 

Erfanian argues that the state’s witnesses were not credible because they had been drinking on the night of the assault and because his witnesses consistently contradicted the state’s witnesses.  Moreover, he contends that Lee’s bias was obvious because she acknowledged that she hated him.  But a review of the record indicates that Lee and two other state witnesses gave consistent accounts of the assault—each testified that Erfanian kicked Lee in the face.  See id. (inconsistencies in state’s case not reversible error if evidence as whole consistent with verdict).  The trial court was fully aware that these witnesses had been drinking on the night in question because they so testified.  Nevertheless, the trial court believed them and disbelieved Erfanian and his witnesses who denied that Erfanian kicked Lee.  The function of the factfinder is to “choose between conflicting factual accounts and determine the credibility, reliability, and weight to be given to witnesses’ testimony.”  State v. White, 357 N.W.2d 388, 390 (Minn. App. 1984).  A reviewing court does not retry the facts.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  Erfanian is essentially requesting this court to substitute its judgment for that of the trial court and re-evaluate the credibility of each witness.  This we decline to do, giving due regard to the trial court’s witness credibility determinations. 

We conclude that the trial court’s finding that Erfanian committed the assault and violated his probation is supported in the record and the court’s credibility determinations are not clearly erroneous.

III

Erfanian next argues that the trial court abused its discretion by revoking his 54-month stay because the probation officer recommended a lesser sanction and the offenses were not serious enough to warrant revocation.  We disagree.

“The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is clear abuse of that discretion.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  Here, the record shows that the trial court disagreed with the probation officer’s recommendation of extending Erfanian’s sentence by 90 days.  The trial court questioned whether the probation officer had made an informed judgment given that she did not know the number of convictions Erfanian had while on probation.  But even assuming, arguendo, that the probation officer was making an informed recommendation, the trial court stated that it simply did not agree with her.  We note the probation officer’s report is not binding on the trial court and it need not follow the recommendation.  State v. Halverson, 373 N.W.2d 618, 621 (Minn. App. 1985).  “Sentencing is a judicial function, not a probation officer’s function.”  Id.  The trial court did not abuse its discretion when it did not follow the probation officer’s recommendation on sentencing. 

Erfanian also argues that the probation violations were not serious enough to warrant revocation of his probation and execution of his previously stayed sentence.  We disagree.  If viewed singularly the offenses may not seem serious, but when viewed collectively, a different picture develops.  Erfanian has committed seven crimes since he was first placed on probation in 1997, not including the two crimes that were the subject of the revocation hearing.  Revocation and commitment to prison is appropriate if (1) public safety requires probationer’s confinement to protect the public from further criminal activity; (2) confinement is most effective method of meeting probationer’s need for correctional treatment; or (3) failure to revoke would unduly depreciate the seriousness of the violation.  State v. Austin, 295 N.W.2d at 251.  The record shows that Erfanian has not remained law abiding while on probation.  Erfanian received extensive services in both the juvenile and adult systems, but has not been rehabilitated, as evidenced by his continuing criminal behavior.  Thus, the trial court concluded that incarceration was required because probation had utterly failed and the record amply supports this conclusion.  At present, Erfanian is apparently engaging in more positive behavior including making restitution payments and attending school, but given Erfanian’s past behavior, the trial court acted within its discretion when it revoked his probation. 

IV

Appellant next argues that when he was originally sentenced for the second-degree burglary and second-degree assault offenses, he should have received concurrent and not consecutive sentences.  He contends that the imposition of consecutive sentences is an upward departure not supported by the evidence.   

            Departure from the presumptive sentence is within the trial court’s discretion and absent a clear abuse of that discretion, we will not disturb its determination.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.”  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted).

Erfanian’s 54-month consecutive sentence was the result of a plea agreement at the EJJ revocation hearing in 1997.  Generally, when an offender is simultaneously convicted of multiple offenses, concurrent sentencing is presumptive.  Minn. Sentencing Guidelines II.F.  But the Minnesota Supreme Court held in State v. Givens, 544 N.W.2d 774 (Minn. 1996), that a defendant may relinquish his right to be sentenced under the guidelines, and the plea agreement alone is sufficient justification for the sentencing departure if the defendant’s waiver is made knowingly, intelligently, and voluntarily.  Id. at 777.  In addition, the defendant must have been advised of his or her right to be sentenced under the guidelines and have an opportunity to consult with counsel.[5]  Id.

Here, the record shows no evidence of a valid waiver.  There is no indication that Erfanian knowingly, intelligently, and voluntarily waived his right to be sentenced under the guidelines.  See id.  There is no evidence in the record that his attorney or the sentencing court ever advised Erfanian of this right.  See id.  Furthermore, there is no discussion by the sentencing court that the plea negotiation represented an upward departure from the sentencing guidelines.  See id.  Because Erfanian did not knowingly waive his right under Givens,the plea agreement alone cannot support the sentencing court’s departure from the sentencing guidelines. 

We conclude the sentencing court abused its discretion when it sentenced Erfanian consecutively.  Accordingly, we reverse and remand for the sentencing court to articulate substantial and compelling reasons justifying the upward departure from the sentencing guidelines, or in the alternative, modify the sentence. 

V

Finally, we consider Erfanian’s claim that he was denied the effective assistance of counsel.  He contends that his attorney’s failure to argue that the presumptive guidelines sentence was concurrent and not consecutive entitles him to a sentence modification or the right to withdraw his guilty plea.  We disagree.

To establish a claim of ineffective assistance of counsel, the defendant must show two elements:  (1) counsel’s representation “fell below an objective standard of reasonableness”; and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).  “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’”  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quotation omitted).

            Erfanian’s consecutive sentence was the result of a plea agreement.  At the time the trial court revoked Erfanian’s EJJ status, a defendant could waive the right to be sentenced under the guidelines as part of a plea agreement.  See Givens, 544 N.W.2d at 774.  If we had concluded that Erfanian validly waived his right to be sentenced under the guidelines when he accepted the plea agreement, then the presumptive sentence under the guidelines would be irrelevant.  As such, Erfanian’s attorney did not act unreasonably when he did not challenge Erfanian’s consecutive sentence as contrary to the sentencing guidelines.  We conclude that Erfanian was not denied effective assistance of counsel.    

Affirmed in part, reversed in part, and remanded.