This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-622

 

State of Minnesota,
Respondent,

vs.

Dwight David Ford,
Appellant.

 

Filed June 7, 2005

Affirmed

Stoneburner, Judge

 

Scott County District Court

File No. KX0110365

 

Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Pat Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

On appeal from conviction of first-degree criminal sexual conduct, appellant argues that (1) his right to a speedy disposition under the Interstate Agreement on Detainers (IAD) was violated; (2) the prosecutor’s misconduct in obtaining a judge’s removal distorted the adversarial process and requires reversal; (3) the victim’s accounts of the incident were too inconsistent to support the conviction; and (4) in the alternative, that a remand is required for a postconviction hearing on appellant’s claim of ineffective assistance of counsel.  Because we conclude that appellant waived timelines under the IAD, any misconduct on the part of the prosecutor was harmless error, the evidence was sufficient to support appellant’s conviction, and appellant has failed to establish the need for a hearing on his claim of ineffective assistance of counsel, we affirm.

FACTS

 

Appellant Dwight Ford was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i); subd. 2(a) & (b) (2000) (use of force or coercion to accomplish sexual penetration of an adult female that caused personal injury), and one count of criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(c); subd. 2 (2000) (use of force or coercion to accomplish sexual penetration) in connection with an incident that occurred at the home of the victim, A.T., in May 2001.  Appellant was in federal prison for a conviction of felon in possession of a firearm when he learned of the charges.  Appellant’s request for final disposition of the state charges was filed on November 6, 2002.  Appellant’s first appearance was on December 13, 2002, but trial did not occur until August 14, 2003. 

Appellant, through counsel, requested some, caused some, and agreed to all of the several continuances of the pretrial hearings and trial dates that occurred in this case.  On June 25, 2003, one of the trial dates agreed on by the parties, the retired judge who was assigned to the case discussed the case with counsel in chambers and indicated how he would rule on some of the issues.  Based on appellant’s understanding of that discussion, appellant waived his right to a jury trial.  Respondent moved for a continuance due to appellant’s last minute revelation of information about witnesses and his intent to assert the defense of fabrication.  On June 27, the Scott County Attorney, in an ex parte discussion, asked the trial judge to recuse himself, and on June 30, the county attorney wrote a letter to the court administrator, copying the trial judge and appellant’s attorney, indicating that the trial judge had informed the county attorney that he was voluntarily recusing himself.[1]

A different judge presided at a June 30 hearing on the state’s motion for a continuance.  Defense counsel requested that this judge take the case and reasserted appellant’s right to a jury trial, based on the change in judges.  This judge explained that due to his schedule, the earliest trial date would be August 12 if he took the case.  Defense counsel and appellant had a discussion off the record.  On the record, with appellant present, defense counsel stated:

COUNSEL:    Judge, I have spoken to [appellant] about the situation.  I have also spoken to him about his right to have a speedy decision.  At this point he would agree that [sic] August 12th date with Your Honor.

 

JUDGE:          Okay.

 

COUNSEL:    And we would waive any timelines.

 

JUDGE:          Okay. 

 

Based on this discussion, trial was set for August 12.  Defense counsel then asked the judge to adopt the rulings on pretrial motions that the recused judge had indicated he would be making.  The judge declined to do so and, after hearing arguments on the motions, denied the state’s motion to admit appellant’s prior convictions as Spreigl evidence, but allowed two prior convictions to be used for impeachment.  Two days before trial, on the record and after appropriate inquiry from the district court, appellant again waived his right to a jury trial.

At the bench trial, A.T. described how appellant came to her townhome intoxicated, asked to use her telephone, and then forced her to have sexual contact, hitting her three times and penetrating her with his finger and penis.  The first police officer on the scene, the registered nurse who examined A.T. at the hospital, and a detective who interviewed A.T. testified about what A.T. had told them.  There were some inconsistencies between A.T.’s testimony and the information A.T. gave to these witnesses, one being that A.T. told the first officer on the scene that appellant hit her once after the sexual contact. 

Appellant testified that A.T. had left a message asking him to come to her home because she had money to give him for some marijuana he had previously left there.  He testified that A.T. was waiting for him and after they had talked and smoked a “blunt,” she asked him to make love to her and they had consensual sex.  He denied digitally penetrating A.T.  Appellant testified that A.T. became angry when he refused to spend the rest of the night, and that he struck her once after she spat in his face.  A defense witness corroborated appellant’s claim that A.T. left a voicemail message for appellant and testified that appellant was sober when he borrowed her car to go to A.T.’s home.  The district court granted a three-day continuance in anticipation that a defense witness who was in Louisiana would return to testify.  But the witness failed to return to Minnesota, so the trial was concluded without his testimony.

The district court, acknowledging that the case turned entirely on the credibility of the witnesses and the reasonableness of their testimony, found that appellant intentionally sexually penetrated A.T. by force without her consent, causing personal injury.  The court found appellant guilty of both counts of criminal sexual misconduct and ordered a pre-sentence investigation. 

Defense counsel’s motions for acquittal or a new trial, based on allegations of insufficient evidence, prosecutorial misconduct, and ineffective assistance of counsel, were held to be untimely.  Appellant was sentenced and this appeal followed.

D E C I S I O N

 

I.          Timelines under IAD

 

Because appellant’s claim that he was denied a speedy disposition under the IAD is raised for the first time on appeal, we analyze the issue for plain error.  Minn. R. Crim. P. 31.02 (providing that plain errors or defects affecting substantial rights may be considered by the court on appeal although they were not brought to the attention of the

trial court).  “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing State v. Griller,583 N.W.2d 736, 740 (Minn. 1998)).  “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id.(quotation omitted).

“The [IAD] is a compact among 48 states, the United States, and the District of Columbia to establish procedures for resolving one state’s outstanding criminal charges against a prisoner of another state.”  State v. Wells, 638 N.W.2d 456, 459 (Minn. App. 2002), review denied (Minn. Mar. 19, 2002).  Federal law governs the construction and application of the compact.  Id.  In Minnesota, the IAD is codified in Minn. Stat. § 629.294, subd. 1 (2004), and requires that when a prisoner in another state requests final disposition of out-of-state charges for which a detainer has been lodged against him, the prisoner shall be brought to trial on the out-of-state charges within 180 days after the prisoner has given appropriate notice of his request for final disposition.  Minn. Stat. § 629.294, subd. 1, Art. III(a).  If a defendant is not brought to trial within the 180-day limit, the complaint is dismissed with prejudice.  Id. at subd. 1, Art. V(c).  “State” as used in the IAD includes the United States.  Id. at subd. 1, Art. II (a). 

It is undisputed that the IAD applies to appellant, who was serving a sentence in federal prison for a felon-in-possession-of-a-firearm conviction at the time he requested final disposition of the criminal sexual conduct charges pending in Minnesota, and appellant was not brought to trial within 180 days of his request for final disposition.  But the Supreme Court has held that a defendant, or defendant’s counsel, can waive the time limitation under the IAD.  New York v. Hill, 528 U.S. 110, 117-18, 120 S. Ct. 659, 665-66 (2000).  And this court has held that the time limitation can be waived either implicitly or explicitly.  Wells, 638 N.W.2d at 461. 

This case is similar to Wells.  Defense counsel agreed to extend the deadlines on some occasions and counsel caused a delay by failing to timely disclose information about defenses to be raised and witnesses.  And, the second judge directly questioned defense counsel in appellant’s presence about the delay that would be caused by his accepting the case, as defense counsel requested, after the first judge recused himself.  Defense counsel conferred with his client off the record and on the record agreed to waive any timelines.  We conclude that there is not plain error in this case regarding the IAD timelines because appellant both implicitly and explicitly waived his rights under the IAD. 

II.        Prosecutorial misconduct

Appellant’s claim of prosecutorial misconduct regarding the prosecutor’s role in the first judge’s recusal was not raised until after the verdict was issued.  “When assessing prosecutorial misconduct, the reviewing court must first examine the challenged conduct to determine whether the prosecutor erred, and then, only if there is error must the court decide whether the conduct was so prejudicial in light of the entire record that the defendant was denied a fair trial.”  State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995).  “Depending on the gravity of the error, we may review a claim of prosecutorial misconduct although an appellant failed to object at trial.”  State v. Wright, 686 N.W.2d 295, 307 (Minn. App. 2004), review granted (Nov. 23, 2004).  If it can be said with certainty that any misconduct was found harmless beyond a reasonable doubt, the defendant will not be granted a new trial.  State v. Ashby, 567 N.W.2d 21, 27-28 (Minn. 1997).

Minnesota Rule of Professional Conduct 3.5(g), states that a lawyer will not communicate as to the merits of a case with the judge of the pending proceeding except for communications made in the course of official proceedings, in a letter also provided to opposing counsel, and other circumstances not applicable to this case.  Appellant argues that the prosecutor improperly contacted the first judge, and this error is a “structural defect” in the adversarial process, not subject to the harmless error analysis and requiring reversal.  See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265 (1991) (stating that some constitutional errors are not subject to harmless error analysis and distinguishing between “trial errors” which are subject to harmless error review and “structural errors” which are not).  We disagree.  Structural defects are defects that make the trial process an unreliable vehicle to determine guilt or innocence; and make the criminal punishment appear fundamentally unfair.  Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265. 

Even if inappropriate, the ex parte contact involved in this case did not affect the fairness of appellant’s trial.  Appellant was tried by a judge whose participation he requested and who made de novo rulings on all issues involving the trial.  Appellant does not assert any defects that made the trial unreliable for determination of guilt or innocence.  “Ensuring all litigants a fair trial is a central goal of the judiciary.”  State v. Erickson, 589 N.W.2d 481, 484 (Minn. 1999).  Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  Because the recusal of the first judge did not affect the fundamental fairness of appellant’s trial, we conclude that any prosecutorial misconduct that may have occurred in bringing about that recusal was harmless error and does not entitle appellant to a reversal or a new trial. 

III.       Sufficiency of the evidence

 

When the sufficiency of the evidence is raised on appeal, this court’s standard of review is the same for bench trials as it is for jury trials.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  This court performs a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that “the [court] believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The possibility that a defendant is innocent does not require reversal of verdict, as long as the evidence on the whole makes the possibility of innocence seem unreasonable.  State v. Gates, 615 N.W.2d 331, 338 (Minn. 2000).

Appellant argues that A.T.’s testimony was inconsistent and could not sustain the convictions, or at most, could only sustain a conviction of third-degree criminal sexual conduct.  There are minor inconsistencies in the accounts A.T. gave at trial and the accounts she gave to the state’s other witnesses.  But A.T. consistently reported that the sexual contact was not consensual, appellant hit her, penetrated her with his finger and his penis on the floor of her living room, and once it was over, called her a “‘ho.”  Only one witness testified that A.T. told him that appellant only struck her once after the sexual contact.  The outcome of this trial, as acknowledged by the trial court, turned on witness credibility, and this court defers to the credibility determinations of the fact finder.  See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  “Inconsistencies in [a] witness[’s] testimony do not require reversal if the testimony as a whole is consistent and credible.”  State v. Thao, 634 N.W.2d 245, 246 (Minn. App. 2001), conviction aff’d, rev’d for re-sentencing, 649 N.W.2d 414 (Minn. 2002).  The evidence is sufficient to support the credibility determinations of the trial court.

IV.       Ineffective assistance of trial counsel

 

Minnesota applies the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, (1984), two-pronged test to claims of ineffective assistance of counsel.  Dukes v. State, 660 N.W.2d 804, 810 (Minn. 2003).  Ineffective assistance of counsel claims require the defendant to prove that the representation “fell below an objective standard of reasonableness and that 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) (quoting Strickland, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984) (defendant must show deficient performance and resulting prejudice)).  Scrutiny of defense counsel’s performance should be highly deferential.  Dukes, 660 N.W.2d at 811.  An evidentiary hearing on a claim of ineffective assistance of counsel is required if specific allegations, if proven, indicate that counsel was negligent and that the outcome of the trial would have been different.  Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991).

Appellant asserts several areas in which he claims he received ineffective assistance of counsel.  Appellant’s first claim, that he was pressured into waiving his right to a jury trial, is without merit.  The district court appropriately discussed the waiver with appellant on the record at length.  The record demonstrates that appellant’s waiver was knowing, intelligent, and voluntary.  Likewise, the waiver of timelines under the IAD occurred in appellant’s presence with appellant’s explicit consent or implicit consent though silence.  The psychological assessment of appellant, completed in connection with sentencing, found that appellant was very capable of making and understanding his legal decisions.  The record does not demonstrate that counsel pressured appellant into waiving the IAD timelines, and the decision to waive the timelines constitutes trial strategy not ineffective assistance of counsel. 

Appellant’s argument that defense counsel did not properly research A.T.’s former allegations of rape against another man and her crime of dishonesty also fails to establish a claim of ineffective assistance of counsel.  “The extent of counsel’s investigation is considered a part of trial strategy.”  Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).  Even if defense counsel did not pursue this information provided by appellant, the presumption is strong that counsel’s performance was a reasonable part of trial strategy.  And defense counsel’s failure to request that the sheriff arrest a witness who did not appear to testify is trial strategy and reasonable, particularly when the witness was out of the state and had a potential motive to testify against appellant because he also had a sexual relationship with A.T.  Appellant’s subjective interpretation of some of defense counsel’s comments as indicating a lack of enthusiasm for appellant’s case and disdain that appellant was not a paying client are insufficient to show ineffective assistance of counsel, as are the harsh words allegedly addressed to appellant by counsel in the court room.  The record reveals that counsel advocated extensively for appellant, making appropriate pretrial motions, questioning witnesses, objecting to the state’s questions, procuring a continuance in the hopes of presenting an additional witness, and making a detailed closing argument that pointed out discrepancies in the testimony.  The record does not reveal that any disputes between appellant and trial counsel occurred in the presence of the trial court or had any effect on the presentation of the defense or the outcome of the trial.

While failure to file a timely motion for a new trial fell below an objective standard of reasonableness, in this case, there is not a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.  The motion was based on sufficiency of the evidence, alleged prosecutorial misconduct regarding the recusal of a judge, and ineffective assistance of counsel, and we have determined that none of these claims warrant reversal or a new trial.  Appellant has failed to demonstrate a need for a hearing to resolve any issues involving his claim of ineffective assistance of counsel, and the record does not support his claim.

Affirmed.