This opinion will be unpublished and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
A06-1140

 

State of Minnesota,
Respondent,

vs.

Tony Darnell Moore,
Appellant.

 

Filed October 9, 2007

Affirmed

Halbrooks, Judge

 

Hennepin County District Court

File No. CR-01-102808

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)

 

Jill Clark, 2005 Aquila Avenue North, Golden Valley, MN 55427 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court order revoking his probation, appellant argues that the district court abused its discretion by proceeding with the probation-revocation hearing that was prompted by a second felony after the Rasmussen hearing in the new prosecution but before the trial.  Appellant also argues that he was denied fundamental fairness in the proceedings and that this court should compel the Fourth Judicial District Court to publish certain “policies” applying to criminal proceedings.  We affirm.

FACTS

            Appellant Tony Darnell Moore was on probation for a 2002 conviction of second-degree possession and third-degree sale of controlled substances.  On March 3, 2004, the Minneapolis Police Department drug squad executed a daytime knock-and-announce search warrant for the upper unit at 1900 Portland Avenue, a duplex with a common front door.

            Appellant was charged on October 4, 2004, with first-degree sale of controlled substance, which resulted in an arrest-and-detention order for probation violation.  A few days before the Rasmussen hearing, the state moved to proceed with a probation-revocation (Morrissey) hearing instead of trial.  The district court granted the motion.  Appellant moved that the state take the new charge to trial before the Morrissey hearing or that the Morrissey hearing be decided by a jury.  The district court denied those motions.  Appellant sought to have the district court judge, who presided over the Rasmussen hearing, removed under Minn. R. Crim. P. 26.03, subd. 13(4).  That motion was denied.  Appellant then petitioned this court for a writ of prohibition and a writ of mandamus.  In re Moore, A05-1501, at *1 (Minn. App. Aug. 23, 2005) (order op.).  This court denied both petitions on the grounds that (1) appellant had sufficient notice of the judge’s assignment on June 13, 2005, and his July 7, 2005 notice to remove was therefore untimely; (2) because the assigned judge had already presided over several appearances in the 2001 file, removal could be “for cause” only; and (3) appellant had not shown that there were any “unwritten rules” in the Fourth Judicial District governing the removal of judges.  Id. at *1-*2.

            The Morrissey hearing was held over several days, concluding with submission of written closing arguments.  The district court revoked appellant’s probation on March 20, 2006.  On April 28, the state moved to dismiss the new felony charge because any potential sentence arising out of a conviction would run concurrently with appellant’s sentence on the first conviction.  Appellant argued a series of post-revocation motions, seeking to vacate the probation revocation on the grounds that he was denied a jury trial and was deprived of due process and equal protection and that secret rules were utilized by the district court.  The district court denied appellant’s motions.  This appeal follows. 

D E C I S I O N

I.

            Appellant argues that he was denied a jury trial because the district court granted the state’s motion to proceed with a probation-revocation hearing on a 2002 conviction before the charges stemming from a 2004 arrest could be determined in a jury trial.  The district court has broad discretion in determining whether sufficient evidence exists for a probation revocation and will be reversed “‘only if there is a clear abuse of that discretion.’”  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)).  But constitutional issues arising during revocation proceedings are issues of law that this court reviews de novo.  State v. Phabsomphou, 530 N.W.2d 876, 877 (Minn. App. 1995), review denied (Minn. June 29, 1995). 

            Probation may be revoked if the district court finds upon clear and convincing evidence that probation has been violated.  Minn. R. Crim. P. 27.04, subd. 3(3).  Probation revocation must be supported by the Austin factors.  Therefore, “the [district] court must 1) designate the specific condition that was violated; 2) find that the violation was intentional or inexcusable; and 3) find that the need for confinement outweighs the policies favoring probation.”  Modtland, 695 N.W.2d at 606 (quoting Austin, 295 N.W.2d at 250).  Appellant here is not arguing that evidence of the Austin-factors is inadequate.  The issue is the timing of the probation-revocation hearing.

            “If the probationer has allegedly violated a condition of probation by commission of a crime, the court may postpone the revocation hearing pending disposition of the criminal case whether or not the probationer is in custody.”  Minn. R. Crim. P. 27.04, subd. 2(4) (emphasis added).  “May” is discretionary.  Phabsomphou, 530 N.W.2d at 878.  Furthermore, the date for the hearing must be within a reasonable time.  Minn. R. Crim. P. 27.04, subd. 2(4).  It is not reasonable to delay the hearing to create consecutive sentences when Minnesota Sentencing Guidelines presume concurrent sentences.  State v. Compton, 340 N.W.2d 358, 360 (Minn. App. 1983).

            Here, appellant had a seven-day Rasmussen hearing.  The district court denied most of appellant’s suppression motions and granted the state’s request to proceed with a Morrissey hearing instead of waiting for trial on the 2004 charge.  In its June 13, 2005 Rasmussen hearing memorandum, the district court noted its discretion under Minn. R. Crim. P. 27.04, subd. 2(4), and then explained that the decision to proceed with the Morrissey hearing was appropriate. 

The [c]ourt in this case feels it would be best to immediately go to a revocation hearing before trial.  The standard of law and process is different between a revocation hearing and a trial.  The standard of proof for a probation violation is clear and convincing.  Finally, the [c]ourt has already spent so much time on this case that it would only make sense to take a little more time and proceed directly to the probation revocation hearing and not delay, waiting for a trial to conclude.  Most of the evidence and testimony needed for the probation revocation hearing has already been presented in this proceeding.

 

            Appellant raised the issue again before and after the Morrissey hearing.  The district court recognized, in memoranda attached to its December 7, 2005 and July 17, 2006 orders, the similarity between this case and the argument presented in Phabsomphou.  In Phabsomphou, the defendant was on probation with the condition that he obey all federal, state, and local laws when he was subsequently charged with gross-misdemeanor domestic assault.  530 N.W.2d at 877.  The arrest and detention order also indicated violation of other chemical-dependency probation conditions that were subsequently dismissed.  Id.  Defendant requested that a Morrissey hearing be continued until after disposition of the criminal charge.  Id.  The district court denied the motion but granted limited-use immunity to defendant for his Morrissey-hearing testimony.  Id.  Following the hearing, the defendant’s probation was revoked, and the district court subsequently granted the state’s request to dismiss the domestic-assault charge.  Id.

            On appeal, this court noted that the use of “may” in Minn. R. Crim. P. 27.04, subd. 2(4), “indicates that the drafters intended to leave the district court with discretion to decide when revocation hearings would be held.”  Id. at 878.  Nonetheless, that determination did not eliminate the potential for a constitutional violation.  Id.  Because the district court granted the defendant limited-use immunity for his testimony, he was not denied due process.  Id. at 878-79.  In a later case, we held that the district court is not obligated “to unilaterally offer a defendant limited-use immunity at the revocation hearing” but that such immunity “may be useful in some cases.”  State v. Hamilton, 646 N.W.2d 915, 919 (Minn. App. 2002), review denied (Minn. Sept. 25, 2002), abrogated in part on other grounds, 695 N.W.2d 602 (Minn. 2005).

            Appellant’s claim that his strategy at the Rasmussen hearing would have been different had he known that the Morrissey hearing was to follow is inconsistent with the transcript in which appellant’s attorney said on the first day of the Rasmussen hearing that she learned of the state’s motion “a couple days ago.”  The district court, likewise, found:

            There is no question that [appellant] as well as everyone else participating in [appellant’s] case understood that after the Rasmussen hearing on [appellant’s] new charge that the [s]tate would be moving for an immediate probation revocation hearing on [appellant’s] old charge.  Regardless, even if [appellant] and his attorney did not understand the way [appellant’s] two cases would proceed (something this [c]ourt does not believe), this [is] not a violation of [appellant’s] constitutional rights and [appellant] has not been shown to be prejudiced by this in any way.

 

            The district court expressed its willingness to grant appellant limited-use immunity to neutralize any potential prejudice from his Rasmussen hearing testimony.  In its December 7, 2005 memorandum, the district court said that it “is prepared to . . . offer [appellant] limited use immunity for all statements made at the revocation hearing in order to protect [appellant’s] due process and jury trial rights.”  Similarly, the district court noted its offer in its July 17, 2006 memorandum.  The district court’s memorandum to its March 20, 2006 Morrissey order, likewise, responds to appellant’s rearguing

that his right not to self-incrimination has been violated.  This issue has been already decided by the [c]ourt and the [c]ourt has ruled that [appellant] may request that his Rasmussen hearing testimony be excluded from consideration in this probation revocation hearing.  However, this issue is moot because the [c]ourt does not need to consider [appellant’s] testimony at the Rasmussen hearing to decide whether or not to revoke [appellant’s] probation.

 

            The conditions of appellant’s probation required that he “must not be charged with any misdemeanors, gross misdemeanors or felonies.”  Although a probation violation may not be based on a charge on which a defendant is acquitted at trial, “[t]his is not an inevitable result, however, or even a necessarily logical one” because of the different burdens of a criminal trial and probation revocation.  9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.50 (3d ed. 2001).  Regardless of a jury verdict on the new charge, appellant violated probation.  Thus, the district court was well within its discretion in setting appellant’s Morrissey hearing before a trial occurred on the subsequent charges.

II.

Appellant claims that his due-process rights were violated at the Morrissey hearing because he was denied “fundamental fairness.”  Without briefing the issues, appellant asserts several bases for his claim that he was denied fundamental fairness in the proceedings, including: (1) he was in essence held without bail because his bail was so high; (2) he was denied his right to a speedy hearing; (3) the district court considered evidence at the Morrissey hearing that was outside the record; (4) his closing argument was “essentially ignored”; (5) the district court’s obligation to require police to obey the law was not fulfilled; (6) the district court did not give appellant the presumption of innocence or consider evidence favorable to him; and (7) the delay in processing this case caused evidence to disappear.  Issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  Assignment of error in a brief based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc.,558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co.,290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).

In addition, we have examined appellant’s contentions, which in most cases amount to the reassertion of arguments that were made and rejected by the district court at the Rasmussen hearing, and find no merit in them.  It is clear from our review of the record that the district court devoted considerable time and effort to this matter to provide appellant with his right to due process.  In each instance, the district court issued detailed, well-reasoned orders and memoranda.  The Rasmussen hearing encompassed seven days and resulted in a 31-page order and memorandum, with the district court ultimately deciding to grant the state’s motion to proceed directly to a probation-revocation hearing.  Appellant subsequently sought a writ of prohibition before this court.  That was denied.

The district court then heard appellant’s multiple motions in preparation for the Morrissey hearing.  Appellant asserted 22 issues on which the district court ruled before conducting the probation-revocation hearing.

III.

            Appellant argues that the Fourth Judicial District has judicial policies that affect substantive law that are “copied to public but not private attorneys.”  “Determination of procedural matters is a function of the judiciary.  This authority arises from the court’s inherent judicial powers, and has been acknowledged by the legislature.”  State v. Nerz, 587 N.W.2d 23, 24 (Minn. 1998) (citations omitted); see also Minn. Stat. § 480.059, subd. 1 (2004) (“The supreme court shall have the power to regulate the pleadings, practice, procedure, and the forms thereof in criminal actions in all courts of this state by rules promulgated by it from time to time.”).  Thus, the supreme court has created rules of criminal procedure and general practice to ensure consistency in the district courts, which may enact their own local rules only through recommendation to and authorization by the supreme court.  Minn. R. Crim. P. 1.01, 1.03, 1.03 cmt.  The Fourth Judicial District has special rules for captioning, conciliation court, and arbitration.  Spec. R. Pract., Fourth Jud. Dist. 1, 2, 5. 

            When this court considered appellant’s writ of prohibition, we held that appellant “has not shown that there are ‘unwritten rules’ in the Fourth Judicial District governing the removal of judges.”  In re Moore, A05-1501, at *2.  Appellant claims to have discovered evidence of unwritten policies that adversely affected bail and the ability to remove from the Morrissey hearing the same judge who presided over the Rasmussen hearing.  Appellant claims to have been unable to obtain copies of these written policies.  In addition, appellant claims that an executive committee pre-decides issues for judges.

            In response to appellant’s argument, the district court informed appellant that a colleague, Judge Oleisky, published an article about the general operation of the executive committee in a Hennepin County Bar Association publication in the 1990s.  See Judge Allen Oleisky, Hennepin County District Court in Retrospect, Hennepin Lawyer, May-June 1990, at 17 (stating that a committee-run system reports to an elected Executive Committee “empowered to make policy for the bench as a whole”).  But the district court assured appellant that “I consulted with nobody, nobody, nobody, about [appellant’s] case other than the normal conversation that occurs between a Judge and [his law] clerk,” and “I assure you that I talked to nobody about [appellant] and nobody made this decision except me.  I got no direction from any other Judge of this [c]ourt.  I had no conversation with any other Judge of this [c]ourt about [appellant].  This decision was made by me and exclusively me.”  The district court reiterated this position in the July 17, 2006 memorandum.

This [c]ourt is not aware of any secret, clandestine or unpublished rules that affect this case or any other cases.  Furthermore, this court is not aware of any private cabal of judges in Hennepin County that covertly determine the outcomes of all or any of the cases.  Consequently, [appellant] is not being denied due process of law or equal protection of the law.

 

No evidence has been presented to the contrary. 

            Affirmed.