This opinion will be unpublished and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

A04-1586

 

State of Minnesota,

Respondent,

 

vs.

 

Antonio Romero Williams,

Appellant.

 

Filed November 1, 2005

Affirmed in part, reversed in part, and remanded

Dietzen, Judge

 

Hennepin County District Court

File No. 3061045

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and

 

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

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his convictions of and sentences for first-degree burglary, second-degree assault, two counts of kidnapping, and felon in possession of a firearm, arguing that (1) he was deprived of his right to counsel, (2) the evidence was insufficient to support a kidnapping conviction, (3) the jury instructions for the kidnapping count were erroneous, and (4) his sentences violated Blakely.  Appellant also raised several pro se arguments.  Because we conclude that appellant was not deprived of his right to counsel under the state and federal constitutions, the evidence was sufficient, the jury instructions did not constitute plain error, and appellant’s pro se arguments lack legal merit, we affirm the convictions.  But we conclude that his sentences violated Blakely, so we reverse and remand for resentencing.

FACTS

On the morning of August 24, 2003, R.A.G. was returning to her apartment when appellant Antonio Romero Williams and two accomplices forced her into the apartment at gunpoint.  Her husband, R.G., and their three children were in the apartment at this time.  Appellant and his accomplices each were holding a gun, and appellant was waving his gun in the air and asking “Where’s that b-tch at?”  Appellant was referring to A.T., a member of R.A.G.’s household at the time.  Appellant stated that he wanted to “kill” A.T. because she allegedly stole money from him the previous night.  Appellant ordered R.A.G. and R.G. to get down on the floor, and they complied, holding their three-year old down with them.  The other children were sleeping in a separate room throughout the incident.  Appellant then searched the apartment for A.T. to no avail and again asked about the whereabouts of A.T.  Because R.A.G. feared that appellant and his accomplices would hurt her and her family, she falsely told appellant that A.T. was across the street at another apartment building.

            Appellant then ordered R.A.G. to take him to A.T., forcing her to leave the apartment at gunpoint.  One of appellant’s accomplices stayed in the apartment with R.G. and the children, forcing him to stand against the wall holding his daughter.  R.G. testified that he feared that appellant and his accomplices would kill his wife or his children.  Holding his gun into R.A.G.’s back, appellant walked her to the other apartment building, but no one answered the door at the apartment where she had claimed A.T. was located.  Appellant spotted police officers when they exited the other apartment building, so he forced R.A.G. to go to the river with him, at which point he threw his gun into the river.  The police later arrested appellant and his accomplices and retrieved the weapon from the river.

            Appellant was subsequently charged with first-degree burglary, second-degree assault, two counts of kidnapping, and felon in possession of a firearm.  On September 12, 2003, the court appointed a public defender as appellant’s legal counsel.  The trial was scheduled to begin on December 10, 2003, but was continued until February 10, 2004, because of the public defender’s trial schedule.  During this time, appellant and his public defender began to experience differences regarding trial strategies.

            On February 10, 2004, the first day of trial, appellant stated, “I would like to fire [the public defender] as my attorney and I would like to ask the Court if I can hire a private counsel.  If not, I will proceed to represent myself.”  Appellant moved for a continuance to secure private counsel.  At the hearing on this motion, the district court warned appellant by stating, “You are scheduled for a jury trial, Mr. Williams.  It’s very serious charges here, . . . so I wouldn’t recommend that you represent yourself on this case.” Appellant, however, explained that he had a dispute with his public defender over the public defender’s refusal to “hire an investigator” and to speak with a person that appellant believed could be an important defense witness.  Appellant’s public defender agreed that they had a strained relationship because of a fundamental disagreement over how to proceed with the case.

            The district court granted appellant a one-day continuance to secure private counsel.  During arguments on the motion, the district court noted that appellant had been represented by counsel for four to five months without seeking other counsel and inquired about appellant’s ability to secure private counsel.  Appellant stated that his family was prepared to hire a private investigator and private counsel, adding, “[T]here’s plenty of lawyers out there, but my family has assured me that this is going to be taken care of.”  Appellant, however, immediately declined the continuance, stating, “I will represent myself.  I will make that decision right now.”  His attorney was asked to remain as stand-by counsel.

            Upon returning to the district court, appellant was again warned about proceeding pro se and was asked to state “clearly and unequivocally” whether he wanted to continue without an attorney.  Appellant responded, “I want to do it on my own.”  At that point, the district court ordered the prosecutor to supply appellant with all documents in her possession and to make the state’s witnesses available to an investigator if appellant were to retain one.  The district court also released appellant’s public defender as standby counsel after appellant refused his help, noting that appellant appeared ready to proceed pro se given his attentiveness and ability to ask intelligent questions.  Appellant was given six days to prepare his defense and hire an investigator before the court re-convened on February 17, 2004, for the omnibus hearing.

            At trial, appellant did not call any witnesses in his defense to controvert the testimony of the state’s witnesses nor did he object to the jury instructions.  On February 20, 2004, the jury found appellant guilty of first-degree burglary, two counts of kidnapping, second-degree assault, and felon in possession of a firearm.

On May 25, 2004, appellant was sentenced to a total of 240 months.  He received a 132-month sentence for first-degree burglary, a 21-month upward departure.  The district court departed based on its findings that the offense took place in the victims’ zone of privacy and that the victims were treated with particular cruelty and were particularly vulnerable.  For the two kidnapping offenses and second-degree assault offense, appellant received three consecutive 36-month sentences.  The presumptive sentence for each of the three convictions was 21 months; however, because the district court determined that appellant possessed a firearm during the offenses, the 36-month mandatory minimum under Minn. Stat. § 609.11, subd. 5(a) (2002), was applied to each.  Appellant also received a 60-month concurrent sentence for the prohibited person in possession of a firearm conviction.[1]

            On appeal, appellant contests his convictions and sentences.

D E C I S I O N

I.

Appellant raises five issues on appeal.  First, he argues that he was denied the right to legal counsel when the district court denied his motion for a continuance to seek substitute counsel.  The granting of a continuance to secure substitute counsel is within the discretion of the district court.  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  In determining whether the district court was within its discretion in denying a motion for a continuance, this court looks to whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.  See State v. Huber, 275 Minn. 475, 482, 148 N.W.2d 137, 142 (1967).

            The U.S. Const. amend. VI and Minn. Const. art. 1, § 6 provide a criminal defendant with the right to the assistance of counsel.  This right to counsel includes a fair opportunity to secure counsel of one’s own choice.  Fagerstrom, 286 Minn. at 298, 176 N.W.2d at 264.  Further, one who is indigent has the right to be provided counsel in all criminal proceedings at every stage of the criminal process.  Id. But the right of an indigent to counsel does not give him “the unbridled right to be represented by counsel of
his own choosing.”  Id. at 299, 176 N.W.2d at 264.  “Although he may request a substitution of counsel, his request will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.”  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).

Exceptional circumstances are those that affect a court-appointed attorney’s ability or competence to represent the client.  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 1970).  In Gillam, the supreme court held that the district court did not abuse its discretion in denying defendant’s request for a substitute attorney merely because the defendant disagreed with his court-appointed attorney about trial strategies and was generally dissatisfied with the representation.  Id. at 450.  Similarly, the existence of “personal tension” during the trial preparation has failed to constitute an exceptional circumstance that entitles a defendant to a substitute attorney.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  The supreme court acknowledged, however, that in certain circumstances an indigent defendant’s disagreements or dissatisfaction with his court-appointed attorney could affect the attorney’s ability or competence in representing the defendant.  Gillam, 629 N.W.2d at 450.

But the right to counsel must be balanced against the public interest in maintaining an efficient and effective judicial system.  State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005).  A motion for a continuance to secure substitute counsel is generally deemed untimely when it is made within close proximity to the time of trial.  See, e.g., State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998) (motion for continuance to hire private attorneys untimely when made the first date of trial).  A motion for substitute counsel has been found to be unreasonable where the defendant has not been diligent in procuring counsel, Courtney, 696 N.W.2d at 82; the defendant fails to demonstrate the ability to secure an alternative attorney, Worthy, 583 N.W.2d at 278; orthe request for a continuance is for the purpose of delay, Vance, 254 N.W.2d at 358.

            Here, appellant brought his motion for a continuance to secure substitute counsel the first day of trial.  The trial was originally set two months earlier, but was continued due to a conflict with his public defender’s trial schedule.  Appellant admitted that his current attorney had been representing him for approximately four or five months and that differences arose early in their relationship.  See Courtney, 696 N.W.2d at 82 (lack of diligence demonstrated by the defendant’s failure to procure new counsel despite considerable time to become aware of any differences and to make alternative arrangements).  And appellant did not demonstrate the ability to secure private counsel.  Initially, appellant claimed that his family had taken care of securing private counsel.  But later he admitted that no attorney had been hired, and that his girlfriend had only been in contact with “some lawyers.”

            Finally, the record does not demonstrate that the appellant was prejudiced.  The district court granted appellant a continuance until the following day to secure private counsel; however, appellant immediately rejected this opportunity, instead choosing to represent himself.  Then the district court gave appellant six additional days to prepare for trial.  To assist in his pro se defense, the prosecutor provided appellant copies of all documents in her possession and agreed to make witnesses available to appellant’s private investigator if one were retained.  On this record, appellant has failed to show prejudice that materially affected the outcome of the trial.

II.

            Second, appellant contends that the evidence was insufficient to prove kidnapping and that the state only proved that appellant had the requisite intent for false imprisonment.  Appellant also argues that the state failed to prove that he confined the victims for the purpose of terrorizing them because the sole purpose of confinement was to locate a third party who resided with the victims.

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking 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).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

Here, the state presented uncontroverted evidence that appellant intended to terrorize the victims.  R.A.G. testified that appellant and two accomplices pushed her into her residence with a gun and forced her and her husband to get down on the floor.  Appellant proceeded to wave the gun and repeatedly ask “where’s the b-tch at” (referring to A.T., a member of the household), while the accomplices searched the apartment.  Appellant then forced R.A.G. out of her home at gunpoint to search for A.T. so that appellant could “kill her.”  R.A.G. further testified that, throughout the entire ordeal, she was afraid that appellant and his accomplices would hurt her, her husband, or her three children, who were present in the home.  R.G. testified to similar events, adding that after his wife was removed from the apartment, he was forced to stand against a wall holding the couple’s baby.  He also testified that he feared that appellant and his accomplices would kill his wife or his children.

Based on the record, the evidence reasonably supports the jury’s verdict.  Appellant’s contention that the sole purpose of confinement was to locate A.T. rather than to terrorize lacks merit.  The testimony presented at trial provides sufficient basis for a jury to conclude that appellant intended to terrorize the victims to elicit information about A.T.’s whereabouts.

III.

            Third, appellant contends that the district court committed plain error in instructing the jury that “terrorizing a person means placing the person in fear of bodily harm.”  Appellant argues that the district court should have stated that to “terrorize” means placing a person in fear of great bodily harm.

            District courts are allowed considerable latitude in selecting the language in jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  This court will not reverse a district court’s decision unless the instructions constitute an abuse of discretion.  Alhom, 394 N.W.2d at 490.  

            In general, “a party waives the right to appeal a jury instruction by failing to object to it at trial.”  State v. Glowacki, 630 N.W.2d 392, 398 (Minn. 2001); Minn. R. Crim. P. 26.03, subd. 18(3).  Here, appellant made no objections to the jury instructions.  Because appellant did not object to the jury instructions at trial, our review on appeal is limited to whether the jury instructions constituted plain error.

Under a plain-error analysis, appellant must show: (1) error; (2) that was plain; and (3) that affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Minn. R. Crim. P. 31.02).  If those three prongs of the test are met, this court may correct error if it seriously affects the fairness and integrity of the judicial proceedings.  Id.  “An instruction is in error if it materially misstates the law.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  An error is plain if it is “clearly contrary to the law at the time of appeal.”  State v. Johnson, 699 N.W.2d 335, 340 (Minn. App. 2005) (quotation omitted).

Here, the district court followed the standard instructions of CRIMJIG 15.02, which explain the elements kidnapping.  10 Minnesota Practice, CRIMJIG 15.02 (1999); see also Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979) (“[D]etailed definitions of the elements to the crime need not be given in the jury instructions if the instructions do not mislead the jury or allow it to speculate over the meaning of the elements.”).  The standard instructions used by the district court have also been endorsed by the Minnesota Supreme Court.  State v. Ferguson, 561 N.W.2d 901, 902 (Minn. 1997) (stating that the district court should have instructed the jury on kidnapping according to CRIMJIG 15.02).  Because the instructions given by the district court neither misstate nor contradict the law, we conclude that the jury instruction regarding the meaning of to “terrorize” did not constitute plain error.

But even if the instructions were erroneous, the error would not have affected appellant’s substantial rights or the fairness and integrity of the proceeding.  The uncontroverted evidence demonstrates that appellant terrorized the victims in such a manner as to place them in fear of great bodily harm and even death.  Thus, it is unlikely that the jury instruction defining “terrorize” as simply fear of bodily harm affected the outcome of the trial.

IV.

            Fourth, appellant contends that his sentence totaling 240 months was improper for the following reasons: (1) the upward departure from the presumptive sentence violated appellant’s constitutional rights under Blakely; (2) the district court improperly imposed consecutive sentences; and (3) the district court erred by imposing mandatory minimums under Minn. Stat. § 609.11, subd. 5(a) (2002).

            A.        Upward Departure

            Appellant contends that the sentencing court’s upward departure from the presumptive 111-month sentence for his first-degree burglary conviction under the Minnesota Sentencing Guidelines violated appellant’s Sixth Amendment right to a jury trial under Blakely.  542 U.S. 296, 124 S. Ct. 2531 (2004).  Appellant argues that the district court imposed the upward departure of a 132-month sentence based on a judicial finding of aggravating factors that should have been made by a jury or admitted by a defendant.  The appeal of appellant’s sentence under the Minnesota Sentencing Guidelines presents a constitutional issue, which this court reviews de novo.  State v. Robinson, 699 N.W.2d 790 (Minn. App. 2005).

            In Blakely, the United States Supreme Court applied the rule from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  Blakely, 542 U.S. at  ___, 124 S. Ct. at 2536.  That rule states that besides the fact of a prior conviction, a judge is proscribed from finding additional facts—facts not admitted by the defendant nor submitted to the jury—to impose a sentence above the statutory maximum.  Id. at 2537.  The Minnesota Supreme Court has concluded that Blakely applies to upward durational sentencing departures under the guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005), pet. for reh’g granted (Minn. Oct. 6, 2005).  Because this appeal was filed after Blakely’s effective date, appellant is entitled to the application of Blakely.  See State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).

            Here, the district court based the upward departure of 21 months on its finding of three specific aggravating factors:  the location of the offense within the victims’ zone of privacy; the treatment of the victims with particular cruelty based on the presence of their young children; and the particular vulnerability of the victims.  These factors were neither admitted by appellant nor found by the jury; therefore, appellant’s sentence for his first-degree burglary conviction violates the rule of law enunciated in Blakely and the conviction must be reversed and remanded for resentencing.

B.        Consecutive Sentences

Appellant and respondent agree that the district court erred in imposing consecutive sentences for his convictions of kidnapping and second-degree assault contemporaneously with an upward durational departure on the first-degree burglary sentence; the parties disagree, however, on the appropriate remedy upon remand.  See Minn. Sent. Guidelines II.F, cmt. II.F.04 (consecutive sentencing is not permissive “when the court has given an upward durational departure on any of the current offenses”).  Because we reverse and remand the upward durational departure on the 132-month burglary sentence under Blakely, we decline to reach the consecutive sentencing issue.  Upon resentencing, the district court will need to consider the interrelationship of the multiple sentences under the sentencing guidelines. 

C.        Mandatory Minimum Sentences

            Appellant argues that the imposition of the mandatory minimum sentences on the two kidnapping and second-degree assault convictions violated his constitutional right to a jury trial under Blakely.  Appellant’s ordinary presumptive sentence for the two counts of kidnapping and one count of second-degree assault is 21 months for each offense.  The district court imposed a sentence of 36 months for each count based on its finding under section 609.11, subd. 5(a), that appellant possessed a firearm at the time of the two kidnappings and second-degree assault.  Respondent asserts that imposition of the mandatory minimum sentences under Minn. Stat. § 609.11, subd. 5(a), in this case does not violate Blakely because the jury made the appropriate findings justifying the sentence enhancements. 

            Under Minn. Stat. § 609.11, subd. 5(a):

[A]ny defendant convicted of [a qualifying offense]. . . in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law. 

 

For purposes of this statute, the term “had in possession” includes both actual and constructive possession.  State v. Royster, 590 N.W.2d 82, 83-84 (Minn. 1999).  An individual has constructive possession of a firearm if that person consciously exercises dominion and control over it.  State v. Willis, 320 N.W.2d 726, 728-29 (Minn. 1982).  If the sentence was enhanced based on constructive possession, the next inquiry on appeal is whether the constructive possession “increased the risk of violence.”  See Royster, 590 N.W.2d at 85.

Appellant contends that in light of Blakely, his three 36-month firearm-enhanced sentences are unconstitutional because he was entitled to have a jury determine whether he possessed the firearm at the time of the kidnapping and second-degree assault offenses, and whether the firearm’s presence increased the risk of violence.  In State v. Barker, the district court sentenced the defendant under section 609.11, subdivision 5, “the firearm-enhancement statute,” after it found that Barker possessed a handgun at the time he possessed drugs.  692 N.W.2d 755, 757 (Minn. App. 2005), review granted (May 17, 2005).  Instead of receiving the stayed presumptive sentence for the felony drug offense, Barker received an executed mandatory minimum sentence of 36 months under the enhancement statute.  Id. at 757.  On appeal, this court stated that the section 609.11 mandatory minimum is a new presumptive sentence entirely determined by a judicial finding.  Id. at 760.  The court explained that “[t]he mandatory-minimum statute functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence.”  Id.  Therefore, the Barker court concluded that Minn. Stat. § 609.11 should be treated the same as an upward departure from the presumptive sentence for purposes of Blakely.  Id. 

Here, the jury did find appellant guilty of felon in possession of a firearm as well as burglary and assault, both of which required use of a “dangerous weapon.”  The only “dangerous weapon” about which the jury was instructed was a firearm.  The jury also found appellant guilty of two kidnapping offenses after being instructed that appellant was charged with using or possessing a firearm while committing the kidnapping offenses.  But a finding that appellant violated section 609.11, subdivision 5(a) cannot be inferred from these guilty verdicts alone.  Although the guilty verdicts may implicitly suggest that appellant possessed a firearm during the offenses, they cannot replace the explicit findings required by Blakely.  “Before the statute may be applied, it must be found, based on all the facts and circumstances, that the defendant possessed a firearm and that doing so increased the risk of violence from the commission of the crime.”  Barker, 692 N.W.2d at 760. Based on Blakely, we conclude that the question of whether appellant committed the kidnapping and assault offenses while “in possession of a firearm” was not implicit in the jury’s guilty verdicts and needs to be remanded for further proceedings. 

Because we reverse the imposition of the mandatory minimum sentences on Blakely grounds, we decline to address appellant’s second contention that the imposition of the mandatory minimum sentences in these circumstances improperly “double counts” the use of a firearm.

D.        The Remedy

            Appellant asserts that if any aspect of his sentencing violates Blakely, he is entitled to the presumptive sentence on remand.  The issue of the appropriate remedy on remand, however, is currently an unsettled area of the law.  The supreme court recently stated that:

[W]e leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with those cases.  It is the legislature that created the Sentencing Guidelines system and retains authority over its development.  For us to engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines and sentencing statutes would require rewriting them, something our severance jurisprudence does not permit.

 

Shattuck, 704 N.W.2d at 148.[2] Because the Shattuck opinion responds to the issues raised by appellant, we remand for resentencing consistent with Shattuck. 

Finally, on remand the propriety of each sentence imposed by the sentencing court is likely to be affected by the reversal of any other sentence.  See State v. Rohda, 358 N.W.2d 39, 41 (Minn. 1984).  But the total sentence imposed on remand cannot be greater than the 240-month sentence originally imposed.  State v. Coe, 411 N.W.2d 180, 182 (Minn. 1987).

V.

Fifth, appellant raises several arguments in his pro se brief, none of which merits reversal of his convictions or a new trial.  Appellant’s arguments relating to his denial of right to counsel and insufficiency of the evidence duplicate issues discussed above.  From our review of the record, we find no merit in appellant’s assertions of lack of notice of the charges against him or prosecutorial misconduct. 

Affirmed in part, reversed in part, and remanded.