This opinion will be unpublished and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

A05-771

 

State of Minnesota,

Respondent,

 

vs.

 

David R. Rozier,

Appellant.

 

Filed June 13, 2006

Affirmed

Ross, Judge

 

Hennepin County District Court

File No. 04000364

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0501 (for respondent)

 

Robert J. Shane, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge Presiding; Ross, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

In this appeal from convictions of third- and fifth-degree controlled-substance crime, appellant David Rozier argues that his jury-trial waiver is invalid because he did not waive his right to have the state’s witnesses testify in open court in his presence.  Rozier also argues that his sentence enhancement is improper because his waiver of the right to a jury trial on the factors supporting departure is incomplete and not knowing and intelligent.  We affirm.

FACTS

Appellant David Rozier was charged with third- and fifth-degree controlled-substance crime, in violation of Minn. Stat. §§ 152.023, subd. 2(1), .025, subd. 2(1) (2002), after the police executed a search warrant and discovered marijuana, cocaine, and several firearms in his apartment.  Rozier moved to suppress the evidence, but the district court denied his motion.

The state and Rozier submitted the case to the district court on stipulated facts for a determination on the merits.  Rozier acknowledged on the record that he had a right to have his guilt determined unanimously by a 12-member jury, to present evidence and testify on his own behalf, to call witnesses, and to “confront and cross-examine any witnesses who would testify against [him].”  Rozier personally waived those rights on the record.

The state sought to increase Rozier’s sentence under the firearm-enhancement statute.  See Minn. Stat. § 609.11, subd. 5(a) (2002) (imposing a mandatory minimum executed sentence of 36 months for convictions of certain offenses when the offender possessed a firearm during the commission of the offense).  Rozier was advised of his right to a jury determination of the facts supporting the application of the firearm-enhancement statute, and he waived that right on the record.  The state then introduced documents and witness testimony to support the statute’s application.  Rozier did not challenge the admission of the documents, but he cross-examined the state’s witnesses.

The district court found Rozier guilty of third- and fifth-degree controlled-substance crime.  Because the district court determined that the firearm-enhancement statute applied, it sentenced Rozier to two concurrent 36-month sentences.  Rozier appeals his convictions and sentences.

D E C I S I O N

I.

Rozier first implies that the district court violated his constitutional right to a jury trial, arguing that the failure to secure his personal waiver of his right to have prosecution witnesses testify in open court in his presence renders his jury-trial waiver incomplete.  His argument requires us to determine the validity of his waiver as a matter of constitutional law and criminal procedure.  We review both de novo.  Spann v. State, 704 N.W.2d 486, 489 (Minn. 2005) (reviewing constitutional challenges de novo);  see also State v. Lee, 706 N.W.2d 491, 493 (Minn. 2005) (construing and interpreting rules of criminal procedure de novo).

A criminal defendant has a federal and state constitutional right to a jury trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”  Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469 (1970) (describing waiver of federally protected constitutional rights); see also State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (noting requirement that waiver of Minnesota constitutional right to trial by jury must be “knowing, intelligent and voluntary”).  The controlling state procedural rule requires that to waive that right, the defendant must state his waiver “personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.”  Minn. R. Crim. P. 26.01, subd. 1(2)(a); State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004).  Strict compliance with the waiver procedure set forth in rule 26.01 is mandatory to ensure that the waiver is voluntary and intelligent.  State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. June 18, 2002).

Rozier’s challenge also requires us to consider the implication of the waiver requirements for a trial on stipulated facts.  In addition to waiving the right to a jury trial, a criminal defendant may stipulate to the evidence supporting the state’s case.  State v. Lothenbach, 296 N.W.2d 854, 857–58 (Minn. 1980).  Submitting a case in accordance with the Lothenbach procedure allows a defendant to expedite appellate review of a pretrial evidentiary ruling without going through a contested trial.  In re Welfare of R.J.E., 642 N.W.2d 708, 711 (Minn. 2002).

Nine years after the Lothenbach decision, the supreme court added a provision to the Minnesota Rules of Criminal Procedure specifically allowing for trial on stipulated facts.  See Minn. R. Crim. P. 26.01, subd. 3; State v. Riley, 667 N.W.2d 153, 158 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).  A stipulated-facts trial under the rules requires written or oral acknowledgement and waiver of the defendant’s “rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.”  Minn. R. Crim. P. 26.01, subd. 3.  A valid waiver under rule 26.01, subdivision 3, requires that the defendant waive each of these rights explicitly.  State v. Halseth, 653 N.W.2d 782, 785–87 (Minn. App. 2002) (explaining that more than just the right to jury trial must be waived under rule 26.01, subdivision 3).

Rozier argues that his waiver is invalid because he did not waive his right to have prosecution witnesses testify in open court in his presence, as stated in rule 26.01.  The record establishes that Rozier waived his right to a jury trial, personally and in open court, after being advised of his rights and after having consulted with counsel.  Rozier expressly waived his rights to a jury trial, to testify, to call witnesses to testify on his behalf, and “to confront and cross examine any witness who would testify against [him].”  He also stipulated to the state’s evidence establishing the elements of third- and fifth-degree controlled-substance crime.

Rozier’s argument concerning the substance of his waiver is essentially one of semantics; he mistakenly distinguishes the right as stated in the rule “to have the prosecution witnesses testify in open court in the defendant’s presence” from the constitutional right “to confront and cross examine any witness who would testify against [him].”  Despite the different verbiage, Rozier’s confrontation and cross-examination right is substantively equivalent to his right to have prosecution witnesses testify in his presence.  “The right of confrontation guaranteed by the constitution requires only that a witness against the accused must appear and testify in the latter’s presence in open court and submit to cross-examination.”  State v. Hines, 270 Minn. 30, 42, 133 N.W.2d 371, 379 (1964).  The record shows that Rozier waived the rights listed in rule 26.01, subdivision 3, albeit using slightly different language.  We conclude that Rozier’s waiver satisfies the constitutional requirements and the requirements of rule 26.01, subdivision 3, alike.

II.

Rozier next challenges whether he validly waived his right to a jury finding of the facts in support of the application of the firearm-enhancement statute.   Because the district court applied the firearm-enhancement statute and imposed two mandatory minimum sentences of 36 months, Rozier argues his sentence violates his Sixth Amendment right to a jury determination of sentencing under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  We review the Blakely constitutional question de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

In Blakely, the Supreme Court held that a district court may not impose a sentence greater than “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 542 U.S. at 303, 124 S. Ct. at 2537.  Under Blakely, the district court may not impose an upward durational departure from the Minnesota Sentencing Guidelines’ presumptive sentence based on judicial findings unless the defendant waives his right to a jury determination of the facts on which the departure is based.  State v. Shattuck, 704 N.W.2d 131, 133 (Minn. 2005); Hagen, 690 N.W.2d at 158.

Here, Rozier’s sentence reflects an upward durational departure from his presumptive sentence.  The firearm-enhancement statute provides a mandatory minimum sentence of 36 months for certain convictions when a defendant is in possession of a firearm at the time of the offense.  Minn. Stat. § 609.11, subd. 5(a) (2004).  Either actual or constructive possession will satisfy the firearm-enhancement statute, but in cases involving constructive possession, the state must also prove that the firearm possession increased the risk of violence.  State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999).  Rozier’s presumptive guidelines sentences are one year and one month stayed for the fifth-degree controlled-substance-crime conviction and 36 months stayed for the third-degree controlled-substance-crime conviction.  See Minn. Sent. Guidelines IV, V.  But the district court determined that Rozier possessed the firearms found in his apartment and that the firearms created a high risk of violence.  The district court therefore applied the firearm-enhancement statute and imposed two concurrent 36-month executed sentences.  See Minn. Stat. § 609.11, subd. 5(a).

But for the waiver, Rozier’s sentence triggers the constitutional concerns outlined in Blakely.  In State v. Barker, the Minnesota Supreme Court held that the firearm-enhancement statute is unconstitutional “to the extent that it authorizes the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.”  705 N.W.2d 768, 773 (Minn. 2005).  Whether the district court’s application of the firearm-enhancement statute violated Rozier’s rights under Blakely therefore depends on the validity of Rozier’s waiver of his right to a jury trial on the facts supporting the application of the enhancement statute.

Rozier argues that a valid waiver of the right to a jury trial on the facts supporting an upward departure requires a waiver of the rights listed in Minn. R. Crim. P. 26.01, subd. 3, citing State v. Thompson, 694 N.W.2d 117 (Minn. App. 2005) review granted (Minn. June 28, 2005).  It is true that in Thompson this court held that a defendant’s general waiver of her right to a jury trial did not constitute a waiver of the rights listed in rule 26.01, subdivision 3.  694 N.W.2d at 123.  But Thompson presented an obviously distinguishable situation.  There, the district court naturally applied the waiver procedure regarding a stipulated-facts trial as set forth in rule 26.01, subdivision 3, because the defendant stipulated to the facts supporting the departure.  Id. at 122-123.  By contrast, when a defendant does not stipulate to the facts supporting a departure, a waiver of the right to a jury trial to establish those facts need not follow the rule 26.01, subdivision 3, procedure.  State v. Zulu, 706 N.W.2d 919, 926 (Minn. App. 2005).

Here, rather than stipulate to facts, Rozier engaged in a contestedhearing on the application of the firearm-enhancement statute.  The state presented witnesses to establish the elements of the statute, and Rozier challenged their credibility on cross-examination.  The relevant process is therefore identical to the procedure at issue in Zulu, where the “matter was not submitted on stipulated facts but on cross-examined testimony.”  706 N.W.2d at 926.  The record shows that at the end of the state’s presentation, Rozier chose not to testify and the defense rested.  By Rozier’s active exercise of the rights listed in rule 26.01, subdivision 3, he proved no need to waive those rights.  Id.  We conclude that because Rozier did not stipulate to the elements of the firearm-enhancement statute but instead exercised his rights identified in rule 26.01, subdivision 3, Rozier’s waiver of his right to a jury trial did not need to incorporate waiver of those additional rights.

Rozier’s waiver of his right to a jury trial on the facts supporting the application of the firearm-enhancement statute must still “be knowing, voluntary, and intelligent.”  Hagen, 690 N.W.2d at 158.  Rozier argues that because he was not informed that, under Royster,the state is required to establish both possession of a firearm and that the firearm increased the risk of violence, his waiver of the right to a jury trial was not knowing, voluntary, and intelligent.  See Royster, 590 N.W.2d at 85.  We disagree.

We are aware of no constitutional requirement that a defendant must be informed of each element of an underlying criminal charge or aggravating factor for his waiver of the right to a jury trial on the charge or on the aggravating factor to be knowing, voluntary, and intelligent.  A defendant need only understand the nature of the right to a jury trial and the effect of waiving that right in order to establish a knowing and intelligent waiver of that right.  See State v. Ross, 472 N.W.2d 651, 654 (Minn. 1991).  The proceeding and supreme court decision in Ross is especially instructive.  There, the district court had engaged in a particularly nondetailed colloquy with a defendant attempting to waive his right to a jury trial.  Id. at 653.  The defendant acknowledged he had a right to a jury of 12 persons, denied any coercion regarding his waiver, declared he had the equivalent of a high-school education, acknowledged adequate time to discuss the waiver with his attorney, and affirmed simply that it was his decision “to waive his right to a jury trial.”  Id.  The Ross defendant argued on appeal that the district court’s generalized inquiry failed to ask the “searching questions” necessary to establish a valid jury-trial waiver.  Id.  The supreme court rejected this argument, holding that the district court’s inquiry “provided an adequate basis for granting the defendant permission to waive his right to a trial by jury.”  Id. at 654.  Justice Simonett explained that “[t]here is no need . . . for the defendant to have an exhaustive knowledge of all the doctrinal subtleties of Sixth Amendment jurisprudence.”  Id. (quotation omitted).  The Ross court clarified that the critical inquiry is only “whether the defendant understands the basic elements of a jury trial.” Id.

The record shows that Rozier was informed and understood that to apply the firearm-enhancement statute, the district court would have to find that “the guns that [he] possessed at the time of [his] arrest were in fact possessed or used to facilitate [his] drug crimes.”  The record also shows that Rozier acknowledged that the presumptive sentences for his offenses were probation, that application of the firearm-enhancement statute would increase his sentences to a minimum of three years, and that he had a right to have a jury determine the facts supporting application of the enhancement statute.  Rozier then personally waived that right on the record.  He also expressly agreed to waive his right to have a jury determine whether he possessed the firearms “pursuant to State v. Royster.”  Although the record does not show that Rozier was informed of the elements of the firearm-enhancement statute, it does show that Rozier understood his right to a jury trial to determine the enhancement factor and the consequences of waiving that right.  We conclude that Rozier knowingly, voluntarily, and intelligently waived his right to a jury trial on the facts supporting the application of the firearm-enhancement statute.

Affirmed.