This opinion will be unpublished and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

A04-1650

 

State of Minnesota,

Respondent,

 

vs.

 

Sharon Jean Hodge,

Appellant.

 

Filed ­­­August 9, 2005

Reversed and remanded

Dietzen, Judge

 

Mille Lacs County District Court

File No. K1-03-91

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

William P. Lines, Isle City Attorney, 220 South Central Avenue, Milaca, MN 56353 (for respondent)

 

Lawrence Hammerling, Bradford W. Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges her conviction of driving under the influence following a Lothenbach trial, arguing that the district court failed to obtain a waiver of her right to testify at a jury trial and failed to inform her of her inability to challenge the conviction based on sufficiency of the evidence.  Because we conclude that the district court failed to obtain the necessary waiver of appellant’s right to testify, we reverse and remand.

FACTS

 

            In the early hours of January 7, 2003, Isle Police Officer John Sammis noticed a car without a license plate light drifting over the fog line onto the shoulder.  Sammis stopped the car and asked its driver, appellant Sharon Hodge, if she had been drinking.  When Sammis detected a strong odor of alcohol, he asked appellant if she had been drinking; she admitted that she had consumed a few drinks.  He then requested that she take a preliminary breath test.  She agreed, and the test results revealed an alcohol concentration of .161.  Appellant also failed some field-sobriety tests.  As a result, Sammis arrested appellant for driving while under the influence.  Appellant took another breath test at the police station that revealed a .12 alcohol concentration.

            Following the denial of a motion to suppress the evidence gathered from the investigative stop, appellant waived her right to a jury trial and agreed to submit the case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found her guilty and sentenced her to 365 days in jail and imposed a $3,000 fine, but stayed all but $900 of the fine and 60 days in jail until completion of the appellate process.  Appellant now challenges her conviction.[1]

 

D E C I S I O N

            Appellant argues that the waiver of her right to a jury trial was invalid because the district court failed to obtain the waiver of her right to testify.  Appellant also argues that her agreement to a stipulated-facts trial under Lothenbach was invalid because the district court failed to inform her that she could not appeal the sufficiency of the evidence.  Both issues involve the interpretation of the rules of criminal procedure, which we review de novo.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).  We review each argument in turn.

I.

            Waiver of the Right to Testify        

 

Appellant argues that although she waived her right to a jury trial and agreed to submit the case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), she did not waive her right to testify.  A defendant who enters into a Lothenbach stipulation waives the right to a jury trial and agrees that the district court will decide her guilt or innocence based on a stipulated record.  Id. at 857-58.  The Lothenbach procedure “preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial.”  State v. Verschelde, 595 N.W.2d 192, 195 (Minn. 1999).  Minn. R. Crim. P. 26.01, subd. 3, has been linked to Lothenbach in the Minnesota Rules of Criminal Procedure.  See Minn. R. Crim. P.  26 cmt. (referring to Lothenbach); State v. Riley, 667 N.W.2d 153, 158 (Minn. App. 2003) (referring to connection between Lothenbach and rule 26.01), review denied (Minn. Oct. 21, 2003).  The rule was promulgated nine years after Lothenbach and states that before proceeding to a trial based on stipulated facts, such as a Lothenbach trial, the defendant must:

acknowledge and waive the rights to testify at trial, . . . have the prosecution witnesses testify in open court in the defendant’s presence, . . . question those prosecution witnesses, and . . . require any favorable witnesses to testify for the defense in court.  The agreement and the waiver shall be in writing or orally on the record.

 

Minn. R. Crim. P. 26.01, subd. 3 (emphasis added).

A defendant’s decision whether or not to testify is a fundamental constitutional right.  Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983).  Generally, if the record is silent on waiver, reviewing courts presume that “the decision not to testify was made . . . voluntarily and intelligently.”  State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980).  But the presumption does not apply to “a trial on stipulated facts in which the waiver to testify must be in writing or on the record.”  In re Welfare of M.E.M., Jr., 674 N.W.2d 208, 214 (Minn. App. 2004); accord State v. Halseth, 653 N.W.2d 782, 786 (Minn. App. 2002) (“The right to testify is a fundamental right that must be personally waived by a defendant.”).  Further, this court has repeatedly noted that rule 26.01 must be strictly construed.  See, e.g., State v. Thompson, 694 N.W.2d 117, 122 (Minn. App. 2005), review granted (Minn. Jun. 28, 2005); Halseth, 653 N.W.2d at 784; State v. Neuman, 392 N.W.2d 706, 709 (Minn. App. 1986); State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986); State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984).

Here, the district court had the following conversation on the record with appellant regarding the waiver:

Court:  You also understand that you have the right to remain silent at trial.  If you remain silent, . . . the jury cannot take that into account in determining whether or not the state has met its burden of proof; do you understand?

 

Appellant:  Right.

 

Court:  Do you also understand that you have the right to appeal from any error of law which might occur during the course of the jury trial?

 

Appellant:  Yes.

 

(Emphasis added).  Although appellant waived her right to remain silent, she did not waive her right to testify.  Because appellant’s waiver did not include any mention of the right to testify, and the rule is clear that a trial on stipulated facts must include a waiver of the right to testify, and the rule must be strictly construed, we must reverse and remand for a new trial.  See Halseth, 653 N.W.2d at 787 (reversing and remanding for new trial where record lacked waiver of defendant’s right to testify).

II.

Notice of the Inability to Challenge Sufficiency of the Evidence

            Appellant also argues that her waiver of a jury trial was invalid because the district court failed to inform her that with a Lothenbach trial, unlike a pure stipulated-fact trial under rule 26.01, subd. 3, she had only the right to preserve pretrial issues for appeal and not other issues such as sufficiency of the evidence. 

The difference between a Lothenbach trial and a Minn. R. Crim. P. 26.01, subd. 3 trial is that the former only protects a defendant’s right to appeal the pretrial issues, while the latter preserves all issues for appeal.  See generally Riley, 667 N.W.2d at 157-59 (discussing distinction and pertinent holding in State v. Busse, 644 N.W.2d 79 (Minn. 2002)).  While it is true that a stipulation for a Lothenbach trial preserves only pretrial issues for appeal, and not a sufficiency of the evidence claim, see Riley, 667 N.W.2d at 157, neither Lothenbach nor rule 26.01, subd. 3 require that the defendant be informed of or waive the right to challenge the sufficiency of the evidence.  Thus, the failure to inform appellant about the future unavailability of a sufficiency of the evidence claim does not by itself render her waiver invalid.  But because we must reverse and remand due to the lack of a waiver of the right to testify, this issue is moot.         

Because the district court failed to obtain a waiver of appellant’s right to testify, we reverse and remand for proceedings consistent with this opinion.

            Reversed and remanded.