This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2232

 

 

State of Minnesota,

Respondent,

 

vs.

 

Merlin J. Sherer,

Appellant.

 

 

Filed January 23, 2007

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

 

Cook County District Court

File No. K9-04-90

 

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Timothy Christopher Scannell, Cook County Attorney, Cook County Courthouse, 411 West Second Street, Grand Marais, MN 55604 (respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

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

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from his conviction, appellant claims that the district court erred by (1) accepting his stipulation to his prior convictions of driving while intoxicated (DWI) and driving after cancellation (DAC) without a waiver of his right to a jury trial on those elements of the charged offenses; (2) not instructing the jury to consider each charge separately; (3) imposing felony sentences of 66 months to run concurrently with appellant’s sentence for a prior conviction based on a criminal-history score of 5; and (4) not imposing the sentences on the misdemeanor and gross-misdemeanor charges orally, in court.  We affirm on all issues except the concurrent imposition of appellant’s felony sentences, which we reverse and remand for the district court to modify to be imposed consecutively.

FACTS

            Cook County Deputy Sheriff Michael Bostrum was on routine patrol at 10:45 p.m. on June 11, 2004, when he determined that a car was traveling 74 mph in a 30 mph zone.  When the deputy pursued the car, the driver made a U-turn to evade him.  The deputy activated his lights and siren and pursued the vehicle, getting within 150 feet of the car when the car drove off the road, down an embankment into a swampy area, and got stuck.  The driver got out and ran into the woods.  The deputy called for assistance and did a computer check of the license plate; the owner of the vehicle was Ronald Salgy, Jr. 

While Deputy Bostrum waited for assistance, Salgy arrived, having been driven to the area by Jackie Kozlowski, who had heard on her police-scanner radio that Salgy’s car was in a ditch.  Salgy’s clothing was neat, and his demeanor was calm.  He told Deputy Bostrum that he had loaned his car to appellant Merlin John Sherer when they were together at the Grand Portage Lodge and Casino.

            Deputy Bostrum, Deputy Joseph Zallar, and two border-patrol agents then conducted a search of the adjacent wooded area.  Appellant was found about 20 feet into the woods, lying face down in a wet, muddy area and covered with moss, mud, and sticks.  Appellant had a strong odor of alcohol and needed assistance in walking. 

            As appellant was being led toward the squad car, he yelled to a vehicle slowly passing by, “Dad, Dad.  It took ’em an hour and a half to find me.”  Following his arrest, appellant was disruptive on the ride to jail.  At one point, Deputy Bostrum had to pull over because appellant was screaming and trying to remove his handcuffs.  Because appellant complained of chest pains, the deputy took appellant to the local hospital, where the deputy read appellant the implied-consent advisory.  Appellant voluntarily provided a urine sample, which evidenced an alcohol concentration of .19. 

            Appellant was charged with felony DWI, Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 1(1) (2002) (providing for first-degree DWI because of a prior DWI within the preceding ten years); felony DWI, Minn. Stat. §§ 169A.20, subd. 1(1), .24, subd. 1(2) (2002) (providing for first-degree DWI because of an alcohol concentration of .10 with a prior DWI conviction); fleeing a police officer in a motor vehicle, Minn. Stat. § 609.487, subd. 3 (2002); gross-misdemeanor driving after cancellation (DAC)-inimical to public safety, Minn. Stat. § 171.24, subd. 5(1) (2002); misdemeanor possession of an open bottle in a motor vehicle, Minn. Stat. § 169A.35, subd. 3 (2002); misdemeanor obstruction of legal process, Minn. Stat. § 609.50, subd. 2 (2002); and misdemeanor speeding, Minn. Stat. § 169A.14, subd. 2 (2002).  A jury convicted him of all charges. 

            At sentencing, the district court imposed sentences of 66 months for felony DWI with five years of conditional release and 22 months for felony fleeing to run concurrently with appellant’s prior sentence for a St. Louis County DWI, for which he was on probation.  Later that day, the district court issued a written sentencing order for the gross-misdemeanor and misdemeanor convictions, imposing concurrent 90-day jail sentences.  This appeal follows.

D E C I S I O N

I.

            Appellant claims that the district court erred by accepting his stipulation to his prior convictions of DWI and DAC without his personal waiver of his right to trial on those elements of the charges in this matter.  “The interpretation of the rules of criminal procedure is a question of law subject to de novo review.”  A. C. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). 

            The right to a jury trial in a criminal case is constitutionally assured, U.S. Const. amend. VI; Minn. Const. art. I, § 6, and enforced through Minn. R. Crim. P. 26.01, subd. 1.  A defendant may waive a jury trial with the district court’s approval if, after the district court advises the defendant of the right to trial by jury and the defendant has an opportunity to consult with counsel, the defendant personally waives the right “in writing or orally upon the record in open court.”  Minn. R. Crim. P. 26.01, subd. 1(2)(a).  Appellate courts review such stipulations for strict compliance to assure that the defendant waived his rights voluntarily and intelligently.  State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. June 18, 2002).

            Because a jury must find that all elements of a crime have been proven beyond a reasonable doubt in order to convict, the waiver of an element is a partial waiver of a jury trial.  See State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984).  Thus, a defendant who stipulates to an element of an offense must make an oral or written waiver based on the above procedure.  State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004).  The process likewise applies to a stipulation that the defendant has prior qualifying convictions to establish a felony-level offense.  State v. Hinton, 702 N.W.2d 278, 281-82 (Minn. App. 2005), review denied (Minn. Oct. 26, 2005).  This waiver cannot be delegated to defendant’s counsel.  Wright, 679 N.W.2d at 191. 

            Such waivers serve a strategic purpose to avoid the potential that a jury could use the prior conviction to prove criminality in the case at hand.  Berkelman, 355 N.W.2d at 397 (stating that defendant offered to waive a jury trial on an element because “he justifiably feared that the jury might impermissibly use its knowledge of his prior act of DWI in deciding whether he had driven under the influence at the time charged”).  To avoid the prejudicial nature of prior convictions, district courts are strongly encouraged to accept a defendant’s stipulation to prior convictions unless the prior convictions are relevant to a disputed issue.  Hinton, 702 N.W.2d at 282 n.1.  The remedy on appeal for a district court that erroneously refuses to accept the stipulation may be reversal.  Id.

            Here, appellant’s counsel stated before trial started that appellant asserted his “absolute right to stipulate outside of the presence of the jury his prior record for the express purpose of keeping that from the jury.”  Appellant personally identified a certified copy of an August 2003 felony DWI conviction and stated that he knew that his driver’s license had been cancelled.  Appellant’s counsel’s motion to stipulate was based on appellant’s desire to avoid placing the prior conviction before the jury, which might then determine appellant’s guilt based on the fact of a prior conviction.  See Berkelman, 355 N.W.2d at 397. 

            Two stipulations were read to the jury.  The first was that appellant’s Minnesota driver’s license was cancelled at the time of this incident and that he had received notice of the cancellation.  The second was that appellant was on probation at the time and that one of the conditions of his probation was that he abstain from drinking alcohol.

            A fair reading of the transcript leads us to conclude that appellant actively participated in the stipulation discussion.  But it is also true that while appellant personally verified his past conviction and his understanding of its consequences, he did not explicitly agree to waive his right to a jury trial on those elements of the charges involved in this matter.  Therefore, based on Wright and Hinton, we conclude that the district court’s failure to obtain appellant’s oral or written waiver was error.  The issue then presented is whether the error was harmless.

            A new trial, even for a constitutional error, is not warranted if the state can establish beyond a reasonable doubt that the error was harmless.  Wright, 679 N.W.2d at 191.  Harmless error is “[a]ny error, defect, irregularity or variance which does not affect substantial rights,” and therefore “shall be disregarded.”  Minn. R. Crim. P. 31.01.  “An error is harmless beyond a reasonable doubt if the guilty verdict actually rendered was ‘surely unattributable’ to the error.”  State v. Courtney, 696 N.W.2d 73, 80 (Minn. 2005) (citation omitted); see Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081 (1993) (enunciating the “surely unattributable” standard).  Such a determination requires a review of the full record.  Courtney, 696 N.W.2dat 80.

            We conclude that the jury’s verdict was clearly not attributable to the error.  The validity of the prior convictions was not contested.  If necessary, the state could have presented appellant’s driving record to the jury.  The jury instructions required the jury to make an element-by-element analysis, and the verdict is well supported by the testimony of the law-enforcement officers.  Because we conclude that the jury’s verdict was “surely unattributable” to the error, appellant’s substantial rights were not adversely affected by it.  Thus, any error was harmless.

II.

 

            Appellant contends that the district court erred by not instructing the jury to consider each charge separately.  District courts are allowed “considerable latitude in selecting the language of jury instructions.”  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004). 

We note that appellant did not request the instruction he now claims was required or object to the instructions.  In the absence of an objection at trial, we review such a claim for plain error affecting appellant’s substantial rights.  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983).  An appellant has a heavy burden of showing that the error was prejudicial, meaning that there is “a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict” and that the error affected the outcome.  State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (quotation omitted). 

            “When the defendant’s conduct constitutes more than one offense, each such offense may be charged in the same indictment or complaint in a separate count.”  Minn. R. Crim. P. 17.03, subd. 1.  Multiple offenses may be tried together as long as (1) the offenses are related and (2) trying the offenses together is not prejudicial.  State v. Profit, 591 N.W.2d 451, 458-59 (Minn. 1999); see Minn. R. Crim. P. 17.03, subd. 3(1) (establishing the test for severance of offenses).  Related offenses arise out of a “single behavioral incident or course of conduct” or common plan.  Profit, 591 N.W.2d at 458. 

            “[F]or trial of all offenses joined under Minn. R. Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately.”  State v. Kates, 610 N.W.2d 629, 631 (Minn. 2000).  The supremecourt supported its holding in Kates with the United States Eighth Circuit Court of Appeals’ model jury instruction that states, “Keep in mind that each count charges a separate crime.  You must consider each count separately, and return a separate verdict for each count.”  Id. at n.4 (quoting Eighth Circuit Manual of Model Jury Instructions, Criminal, 3.05 (West 1996)).  The jury instruction established as a result of Kates states:

In this case, the defendant has been charged with multiple offenses. You should consider each offense, and the evidence pertaining to it, separately.  The fact that you may find defendant guilty or not guilty as to one of the charged offenses should not control your verdict as to any other offense.

 

10 Minnesota Practice, CRIMJIG 3.23 (2006); see id., cmt. (stating that the instruction was drafted in response to Kates).

            We conclude that the district court did not err.  The jury’s determination of appellant’s guilt included seven charges, all of which stemmed from conduct within a short period of time on the same evening.  Appellant does not argue that joinder of charges was prejudicial.  His theory of defense was that it was Salgy and not he who was driving the car, not that he committed only some of the charged acts.  While the district court did not give CRIMJIG 3.23, it listed all of the required elements and instructed the jury regarding the state’s proof-beyond-a-reasonable-doubt burden.  Viewing the record as a whole, the instructions clearly indicated a separate reasoning process for the jury’s deliberation on each charge. 

III.

 

            Appellant argues that the district court erred by imposing the 66-month sentence for felony DWI to run concurrently with his prior DWI sentence from St. Louis County (for which he was on probation) and by utilizing a criminal-history score of five to calculate the length of the presumptive sentence.  This issue has now been squarely addressed by the supreme court in State v. Holmes, 719 N.W.2d 904, 907 (Minn. 2006). 

            Minn. Stat. § 169A.28, subd. 1 (2002), provides that

                        [t]he court shall impose consecutive sentences when it sentences a person for:

 

                        . . . .

 

                        (2) a violation of section 169A.20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169A.20 . . . and the prior sentence involved a separate course of conduct.

 

Because appellant was convicted of a violation of this statute while he was on probation for a previous DWI, consecutive sentencing is mandated.

            With respect to the issue of the appropriate criminal-history score to be used in calculation of the length of the sentence, the Holmes court instructs us that appellant’s criminal-history score of five is correct because section II.F. of the Minnesota Sentencing Guidelines does not apply to a section 169A.28 sentence.  See Holmes, 719 N.W.2d at 909.  Thus, the district court’s use of a criminal-history score of five when sentencing appellant was not error.  We, therefore, reverse the concurrent imposition of the sentence and remand to the district court for imposition of a consecutive sentence based on a criminal-history score of five.

IV.

 

            Appellant also argues that the district court erred by pronouncing his sentences for his misdemeanor and gross-misdemeanor convictions by written order and not orally.  The district court issued a written order, imposing 90-day sentences to run concurrently, later on the day of the sentencing hearing.  Without citing any legal authority, appellant asks this court to vacate those sentences. 

            “The interpretation of the rules of criminal procedure is a question of law subject to de novo review.”  A. C. Ford, 690 N.W.2d at 712.  With few exceptions, a “[d]efendant must be personally present at the sentencing hearing and at the time sentence is pronounced.”  Minn. R. Crim. P. 27.03, subd. 2.  At the hearing, the court accepts statements from the prosecutor, victim, defense counsel, and defendant.  Id., subd. 3.  Defendant’s presence at sentencing is a matter of due process.  State v. Calmes, 632 N.W.2d 641, 649 (Minn. 2001). 

            But a defendant does not obtain a right to be present at all sentencing hearings, only the original hearing in matters of death or imprisonment.  Calmes, 632 N.W.2d at 649-50.  The defendant must receive “some notice of an order before that order can be effective,” and “[t]o be effective, a court order must become a part of the official record, whether by transcript or document.”  Martinek v. State, 678 N.W.2d 714, 718 (Minn. App. 2004).  Furthermore, “a defendant does not automatically acquire a vested interest in an erroneous sentence.”  Calmes, 632 N.W.2d at 647 (citing DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st Cir. 1993), cert. denied, 511 U.S. 1032 (1994)).  Only “after the defendant has served so much of his sentence that [its] expectations as to its finality have crystallized” is it unfair to enhance a sentence.  State v. Humes, 581 N.W.2d 317,321 n.22 (Minn. 1998) (citing United States v. Lundien, 769 F.2d 981, 987 (4th Cir. 1985), cert. denied, 474 U.S. 1064 (1986)); see Calmes, 632 N.W.2d at 644-45 (explaining Humes).  “[O]nly in an ‘extreme case’ will a revision be so unfair that it amounts to a violation of due process.”  Calmes, 632 N.W.2d at 647 (quoting DeWitt, 6 F.3d at 35).  The Calmes court was clear about the frequency of success.  Id.  “[S]uch cases will be rare.”  Id.

While we agree that the district court erred by not orally sentencing appellant on all convictions, because the district court’s written sentencing order was issued the same day as the sentencing hearing and because the comparatively brief, concurrent sentences do not prejudice appellant, we conclude that any error the district court made was harmless.

            Alternatively, appellant argues that by operation of statute, his gross-misdemeanor DAC conviction must be reduced to a misdemeanor.  A question of statutory construction is subject to de novo review.  Holmes, 719 N.W.2d at 907.  Minnesota law provides that “[n]otwithstanding that a conviction is for a gross misdemeanor, the conviction is deemed to be for a misdemeanor if . . . the sentence imposed is within the limits provided by law for a misdemeanor as defined in section 609.02.”  Minn. Stat. § 609.13, subd. 2 (2002).  Minnesota law defines a misdemeanor as “a crime for which a sentence of not more than 90 days or a fine of not more than $1,000, or both, may be imposed.”  Minn. Stat. § 609.02, subd. 3 (2002).  A gross misdemeanor is defined as “any crime which is not a felony or misdemeanor.”  Id., subd. 4 (2002).

            Here, appellant was sentenced for 90 days, concurrent with his prior sentences, for gross-misdemeanor DAC, misdemeanor open bottle, misdemeanor obstruction of justice, and misdemeanor speeding.  The 90-day sentence for DAC is a misdemeanor sentence.  See Minn. Stat. § 609.02, subd. 3.  The statute automatically deems the conviction a misdemeanor.  See Minn. Stat. § 609.13, subd. 2(1).  Therefore, on remand, we direct the district court to correct the record to so reflect.

            Affirmed in part, vacated in part, and remanded.