Alan L. Mitchell, St. Louis County Attorney, 100 N. Fifth Avenue West, #501, Duluth, MN 55802 (for Respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

Appellant Kevin Peter Anderson, convicted of driving after cancellation, contends he was denied his right to a fair trial because the trial judge made pretrial, in-chambers comments suggesting that he would set aside the verdict if appellant were acquitted and that in sentencing he would consider appellant's choice to proceed to trial with no defense. We conclude that these comments had no effect on appellant's trial, but we remand for resentencing by a different judge to avoid any possible appearance of bias in sentencing.

[I]f the jury came back and found him not guilty, I'd have to take the verdict away from him. I'd have to declare--you know, do something. Because there is no defense here.

The court also stated that it would "look at [appellant's] record very closely" and that appellant had "absolutely no defense," stating, in part:

[T]he Court's going to look at that when it gets to sentencing. And his record. * * * I don't know that I'll necessarily hold it against him. I don't think I will, but I certainly will look at his record very closely in view of his attitude about this.

Appellant nevertheless maintained his right to trial, and the trial proceeded with no objections by defense counsel and no evidentiary ruling by the judge. The jury returned a guilty verdict, and the court sentenced appellant to a one-year stayed sentence. As a condition of probation, appellant was required to serve nine months in the Northeast Regional Correction Center and pay a $3,000 fine.

We agree with appellant's contention that the trial judge in effect threatened to punish him for asserting his right to trial. We disagree, however, with appellant's contention that the judge's comments constituted a structural defect and transcended the criminal process. The impact and repetition of the judge's statements were tempered by their context: some comments were hypotheticals and some were contradicted by the judge's other comments. Appellant does not allege, nor does it appear, that the judge's comments had any impact on the trial itself. The judge made no evidentiary rulings during trial. Thus, while the judge's pretrial comments were improper, they do not demonstrate partiality that would warrant vacation of appellant's conviction.

Unlike specific evidence presented at trial, a defendant's decision to request a trial may not impact on his sentence. For example, a trial court may properly warn a defendant of the risks of asserting his right to trial, such as the judge learning facts that would support an upward sentencing departure. See State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983). Similarly, a judge's hypothetical pretrial comments concerning the basis for a sentencing departure made during informal plea discussions are proper. State v. Pierson, 368 N.W.2d 427, 431 (Minn. App. 1985). Further, a judge's accurate comment that, if convicted, defendant would be sent to a more restrictive prison does not make the defendant's resulting plea involuntary. See State v. Doughman, 340 N.W.2d 348, 353 (Minn. App. 1983), review denied (Minn. Mar. 15, 1984). To avoid any appearance of bias in sentencing appellant for this offense, we remand for resentencing by a different judge.

Affirmed in part, reversed in part, and remanded.