STATE OF MINNESOTA

IN COURT OF APPEALS

A05-822

State of Minnesota,
Respondent,

vs.

Abdirisak Dahir Jama,
Appellant.

Filed May 23, 2006

Affirmed

Stoneburner, Judge

Stearns County District Court

File No. T30419871

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

Mark C. Hansen, Assistant St. Cloud City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)

J. Matthew Holson, Assistant Stearns County Public Defender, Suite 310, 816 West St. Germain, St. Cloud, MN 56301 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges his conviction of disorderly conduct, arguing that the district court abused its discretion by allowing the state to charge an additional count of disorderly conduct rather than giving the jury a unanimity instruction. Appellant also challenges his sentence, arguing that he was impermissibly punished for exercising his right to a jury trial. We affirm.

FACTS

Appellant Abdirisak Dahir Jama was charged with one count of disorderly conduct under Minn. Stat. § 609.72 (2004), based on Jama’s involvement in a fight at a bar. The citation did not specify whether the charge was based on “brawling or fighting” under

section 609.72, subdivision 1(1), or on engaging in “ . . . boisterous, or noisy conduct . . . tending reasonably to arouse alarm, anger, or resentment in others” under section 609.72, subdivision 1(3).

At the beginning of trial, the district court told Jama that it was aware of the state’s plea offer to treat the charge as a petty misdemeanor. The district court explored with Jama whether Jama understood that no jail time could be imposed on conviction of a petty misdemeanor and “[if] we go forward with the trial . . . you are facing a misdemeanor charge and . . . [if] you are found guilty, that you would be likely to have jail imposed.” The prosecutor stated that he would be asking for an executed sentence of 90 days in jail. Jama opted to go to trial.

During a conference with the district court on the district court’s proposed jury instructions, Jama’s counsel asked the district court to instruct the jury that, to convict, they must unanimously agree on whether Jama’s conduct constituted “brawling or fighting,” or “boisterous and noisy conduct . . . tending reasonably to arouse alarm, anger, or resentment in others.”[1] The state responded by asking the district court to allow it to tab-charge an additional count of disorderly conduct or to instruct the jury that they could find Jama guilty if they found that he engaged in either “brawling and fighting” or in “boisterous conduct that disturbs the peace.” The district court denied Jama’s request for a unanimity instruction, allowed the state to add an additional count of disorderly conduct. The charges submitted to the jury specified that one count was a violation of Minn. Stat. § 609.72, subd. 1(1) and the other count was a violation of Minn. Stat. § 609.72, subd. 1 (3). The jury was instructed on both counts and was instructed that the state alleged that Jama was disorderly in two different ways but that only one behavioral incident was involved. The jury found Jama guilty of both counts.

The district court sentenced Jama to 90 days in jail, with all but 30 days stayed, over Jama’s objections that any jail time would violate his exercise of the right to trial and that the facts did not justify imposition of jail time. The district court responded that the sentence was based on Jama’s criminal record,[2] not on his decision to go to trial.

I heard the argument that your attorney has [made indicating that] any jail sanction here would be a punishment because of the fact that you exercised your right to a jury trial. I understand his argument, but you need to know that is not the Court’s reason behind a jail sentence. . . . The Court’s reason behind the jail sentence is I’ve looked at your criminal record. You have a felony in 2002 . . ., a felony . . . in 2003, I sentenced you just on Friday [for] an offense that occurred in 2003 . . ., and now this offense occurred in October of 2004. So it’s not [] a punishment for going to trial.

This appeal followed.

D E C I S I O N

I. Jury instructions

Jama argues that the district court abused its discretion by allowing the state to add an additional count of disorderly conduct in lieu of instructing the jury that they were required to agree unanimously on what conduct of Jama’s constituted disorderly conduct. Jama argues that the district court’s decision exaggerated the criminality of his behavior and was prejudicial, particularly in light of the fact that the district court had previously told the jury that he had been charged with one count of disorderly conduct. But the district court may allow an amendment to the complaint at any time before the jury reaches a verdict, as long as a different offense is not charged and the defendant’s rights are not prejudiced. Minn. R. Crim. P. 17.05. In this case, the amendment did not add a different charge; it merely stated the original charge with more particularity, and the district court explained to the jury that only one behavioral incident was involved. Jama has not established that his rights were prejudiced by this process. We conclude that the additional charge did not exaggerate Jama’s criminality or prejudice him, and the district court did not abuse its discretion.

Regarding the district court’s failure to give a unanimity instruction, “unanimity is not required with respect to the alternative means or ways in which the crime can be committed.” State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987) (quotation omitted) (holding that jury’s failure to agree on which victim defendant terrorized did not violate right to unanimous verdict), review denied (Minn. Jan. 20, 1988); see also State v. Stempf, 627 N.W.2d 352, 354-55 (Minn. App. 2001) (stating that unanimity is not required when the district court determines that “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime”). The alternatives in the disorderly-conduct statute are means of committing a single offense rather than independent elements of the offense. Therefore, the district court did not abuse its discretion in denying Jama’s request for a unanimity instruction in this case. And by allowing the state to add an additional charge of disorderly conduct, the district court ensured that the jury agreed on which conduct constituted disorderly conduct.

II. Sentence

As a preliminary matter, the state argues that because Jama failed to file a petition for discretionary review, this court lacks jurisdiction to consider his challenge to the constitutionality of his misdemeanor sentence, citing Minn. R. Crim. P. 28.02, subd. 3, which provides that sentences, other than felony sentences, may be reviewed only “in the interests of justice and upon petition of the defendant . . . provided that the petition shall be served and filed within thirty (30) days after entry of the order appealed.” This argument was rejected in State v. Whitledge, 500 N.W.2d 488 (Minn. 1993), review denied (Minn. Aug. 24, 1993). Whitledge holds that the rule, which is based on Minn. Stat. § 244.11, does not apply to constitutional arguments relating to a sentence or to arguments that a sentence is not authorized by law, because those challenges pre-existed, and are preserved by Minn. Stat. § 244.11 (expanding post-guidelines sentencing review). Id. at 489. Jama raises a constitutional challenge to his sentence, accordingly this court has jurisdiction to review his misdemeanor sentence.

Jama asserts that because the pre-trial plea offer would have precluded jail time, the imposition of jail time impermissibly punished him for exercising his constitutionally protected right to a jury trial. A person may not be punished for doing what the law allows him or her to do. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668 (1978). Therefore, a defendant’s decision to reject a plea offer and stand trial may have no bearing on the sentence the court chooses to impose. Hess v. United States, 496 F.2d 936, 938 (8th Cir. 1974) (reversing sentence and remanding for clarification of factors that motivated sentence where, before imposing sentence, court noted that “there ha[d] been no admission of sins . . . [but] a determination to pursue every remedy”).

In the give-and-take of plea bargaining, however, there is no element of punishment or retaliation so long as the accused is free to accept or reject the plea. Bordenkircher, 434 U.S. at 363, 98 S. Ct. at 668. The Supreme Court has noted that, ‘[w]hile confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Id.at 364, 98 S. Ct. at 668 (quotations omitted).

Nonetheless, when the district court takes a hand in plea bargaining, discusses a tentative sentence, and imposes a harsher sentence than the sentence discussed, “the record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.” State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976) (quotation omitted). Courts may not use their sentencing power “as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice.” United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982).

In this case, the district court clearly stated that it based the sentence on Jama’s criminal history rather than his decision to go to trial. Cf. id. at 716-17 (reversing sentence when district court’s statements created inference that appellant was punished more severely because of his assertion of the right to trial and nothing in the record dispelled that inference); United States v. Stockwell, 472 F.2d 1186, 1187-88 (9th Cir. 1973) (remanding sentence when record left unrebutted the presumption that the court punished defendant with longer sentence for electing to stand trial).

Jama argues that the district court’s statement that it based the sentence on his criminal history is not credible because it is inconsistent with the district court’s willingness to accept the plea bargain to treat the offense as a petty misdemeanor. But the district court referred to a recent sentence and review of the presentence-investigation report traditionally prepared after trial. There is no evidence in the record that the district court was aware of either of these factors at the time the plea agreement was offered.

Affirmed.

[1] The district court agreed to remove any reference to “abusive” language because the state’s theory of the case was clearly not based on that portion of the statute.

[2] The district court noted that it had sentenced Jama on a different charge the previous week and had reviewed the most recent presentence-investigation report before imposing jail time.