This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-2054

State of Minnesota,

Respondent,

vs.

Stephen Danforth,

Appellant.

Filed May 4, 1999

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 95074990

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.[*]

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

KALITOWSKI, Judge

Appellant Stephen Danforth contends the district court erred by: (1) denying his request for a continuance; and (2) denying his notice of removal of the sentencing judge. In his pro se brief, appellant raises several challenges to his sentencing. We affirm.

D E C I S I O N

I.

The decision to grant a continuance is vested in the sound discretion of the trial court. State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984). In determining whether the trial court soundly exercised its discretion, this court must

examine the circumstances before the trial court when the motion was made to determine whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.

Id. To find reversible error, the court must find the error affected the outcome of the case. State v. Jones, 451 N.W.2d 55, 61 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).

A sentencing hearing should be scheduled so that "the parties have adequate time to prepare and present arguments regarding the issue of sentencing." Minn. Stat. § 244.10, subd. 1 (1996). Due process requires that a defendant have notice, an opportunity to be heard, and an opportunity to confront and cross-examine witnesses at a sentencing hearing. State v. Kortkamp, 560 N.W.2d 93, 96 (Minn. App. 1997).

On May 27, 1998, the district court continued appellant's sentencing pending findings by the court psychologist, Dr. Lawrence Panciera, Ph.D., L.P., due to the court no later than June 19, 1998. Sentencing was rescheduled for August 4, 1998. The psychological report (Panciera Report) was dated July 1, 1998, and presumably was received by the court soon after. Appellant's counsel received the report July 21, but was unable to get it to appellant immediately due to a "lockdown" at the Stillwater Correctional Facility. Appellant requested a continuance on July 30, 1998, to secure more time to address the information in the report. On August 3, 1998, the court held a phone conference with the prosecutor and counsel for appellant on the matter, and the court refused to continue the sentencing. Sentencing was concluded the following day.

Appellant contends the district court erred because appellant had inadequate time to prepare to confront and cross-examine Dr. Panciera at the sentencing hearing and inadequate time to produce an expert to refute the Panciera Report. We disagree. The record indicates: (1) appellant and his counsel were aware that the psychological report was being compiled as of the May 27, 1998, court order; (2) appellant knew his psychological condition would be at issue; (3) appellant could have, but did not, hire his own expert prior to receiving the Panciera Report at any time between May 27 and July 21; (4) appellant had one to two weeks after receiving the Panciera Report to prepare for the hearing; and (5) appellant did not attempt to either examine or subpoena Dr. Panciera. We conclude appellant had ample opportunity to prepare to refute the Panciera Report and was not materially prejudiced because his continuance request was denied.

Appellant argues that because he did not receive the court's notice of its intent to sentence him as a patterned sex offender under Minn. Stat. § 609.1352 (1996), it was error for the court to apply that statute. We disagree. At appellant's original sentencing, the court found the patterned sex offender factors were present, but did not sentence according to the statute. On appeal, this court directed the district court to follow the sentencing scheme in the patterned sex offender statute. See State v. Danforth, 573 N.W.2d 369, 377 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998) (interpreting Minn. Stat. § 609.1352). Because that opinion was issued on December 16, 1997, appellant had notice in December 1997 that he would be sentenced as a patterned sex offender.

II.

Appellant argues the court erred in denying his motion for removal of the judge who presided at his sentencing. Whether a removal notice is proper is a question of law. Citizens State Bank v. Wallace, 477 N.W.2d 741, 742 (Minn. App. 1991). A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Failure to honor a proper removal notice is reversible error requiring a new hearing. Citizens State Bank, 477 N.W.2d at 742 (stating rule in context of civil case).

A defendant may serve notice to remove a judge assigned to a hearing, but the defendant must serve and file that notice within seven days after receiving notice of which judge is to preside at the hearing, and not later than the commencement of the trial or hearing. Minn. R. Crim. P. 26.03, subd. 13(4). Notice to remove is not effective against a judge who has already presided at a trial, omnibus hearing, or other evidentiary hearing except upon a showing of cause. Id.

The district court notified the parties as to which judge would be presiding in this matter in a conference call on July 16, 1998. Appellant did not request removal until the hearing on August 4. Appellant argues the seven-day rule should not apply because he did not receive the Panciera Report until a week before the date set for resentencing, and he did not have an opportunity to discuss the matter with counsel until after the deadline for filing had passed. We disagree. The rule allowing removal does not provide exceptions or extensions for events that occur after a judge is assigned. We conclude notice of removal was not timely, and the district court did not err by denying the removal request.

III.

Appellant argues he was not accorded his right of allocution at his sentencing hearing, and was therefore denied due process. We disagree. The right of allocution does not allow appellant to give "any information" before sentence, as appellant contends, but instead allows him only to give "any matter relevant to the question of sentence." Minn. R. Crim. P. 27.03, subd. 3. Because the district court gave appellant ample opportunity and instruction to focus his comments on the sentencing issues, we conclude the district court did not violate appellant's right of allocution by cutting short his statement.

IV.

Appellant argues the court improperly relied on the Panciera Report in his sentencing and that it was not timely filed. The trial court has discretion to determine what type of evaluations to admit into evidence. Peterson v. Peterson, 408 N.W.2d 901, 904 (Minn. App. 1987), review denied (Minn. Sept. 23, 1987). A trial judge is not bound by the same rules of evidence in sentencing as in the trial. State v. Adams, 295 N.W.2d 527, 535 (Minn. 1980).

For the court to sentence a defendant as a patterned sex offender, it must find that the defendant needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. Minn. Stat. § 609.1352, subd. 1(a)(3). The finding must be based on a professional assessment, and the assessment

must contain the facts upon which the conclusion is based, with reference to the offense history of the offender or the severity of the current offense, the social history of the offender, and the results of an examination of the offender's mental status unless the offender refuses to be examined.

Id. The statute continues:

The conclusion may not be based on testing alone. A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.

Id. (emphasis added).

Appellant refused to submit to testing or interviews for his professional assessment, so the court psychologist based his evaluation on records submitted to the court and on research in a previously implied psychological report. We conclude the district court did not err by relying on the Panciera Report because: (1) it was appropriate to look at information more than ten years old to determine whether appellant's criminal sexual behavior is "engrained"; (2) the report was proper even though Dr. Panciera compiled it without direct contact with appellant because the statute allows a defendant to be sentenced under the statute without a direct psychological screening. See Minn. Stat. § 609.1352, subd. 1(a)(3) (stating assessment must contain results of examination of offender's mental status unless offender refuses to be examined); (3) the court did not err in allowing the report to rely on documents not in the court file, because the statute requires a broad look into a defendant's background. See Minn. Stat. § 609.115, subd. 1 (1996) (stating presentence investigation reports may be based on individual's "characteristics, circumstances, needs, potentialities, criminal record and social history, the circumstances of the offense and the harm caused by it to others and to the community"); and (4) appellant's hearsay concerns are unfounded, because the introduction of hearsay evidence at a sentencing hearing does not violate a defendant's due process rights. State v. Adams, 295 N.W.2d 527, 536 (Minn. 1980).

Finally, we conclude the court did not err by allowing the Panciera Report to be filed after the court's deadline because the court has the discretion to set and extend nonstatutory deadlines. See Housing & Redev. Auth. v. Kotlar, 352 N.W.2d 497, 500 (Minn. App. 1984) (finding trial court within its discretion in setting deadline to produce documents and dismissing case when documents were not filed before deadline).

V.

Appellant argues the court erred by imposing a more severe sentence than that proposed in plea bargain negotiations and imposed at his original sentencing. We disagree. The court is not limited to a sentence proposed by the state and declined by defendant. State v. Ackerley, 296 Minn. 495, 496, 207 N.W.2d 272, 273 (1973). Further, the state may appeal a defendant's sentence without offending double jeopardy principles even though its success might deprive the defendant of the benefit of a more lenient sentence. United States v. DiFrancesco, 449 U.S. 117, 132, 101 S. Ct. 426, 435 (1980). Also, if a defendant does not have a crystallized expectation of finality in his or her sentence, there is no due process or double jeopardy bar to amending it. State v. Humes, 581 N.W.2d 317, 321 (Minn. 1998).

Here, the district court was instructed by this court to impose a double durational departure according to the patterned sex offender statute if certain findings were made. See Danforth, 573 N.W.2d at 377 (interpreting Minn. Stat. § 609.1352). The state appealed the original sentence within the prescribed time period and appellant did not have a crystallized expectation in his sentence. We conclude the court did not err in increasing appellant's original sentence.

VI.

Appellant contends the court violated his due process rights by substituting a different judge for his sentencing hearing from the judge who presided at trial. We disagree. The judge who presided at appellant's trial retired and the substitute judge stated in the record that he was acquainted with the file and the remaining issues and that he was fully capable of going forward with the case. Cf. Minn. R. Crim. P. 26.03, subd. 13(1) (allowing substitution even during trial if judge is disabled from proceeding and substitute judge certifies familiarity with record).

VII.

Appellant argues the district court improperly penalized him for exercising his rights of freedom of speech and against self-incrimination. We disagree. Appellant chose not to cooperate with the evaluator for the psychological report. The court did not comment negatively on appellant's decision not to participate, and the report makes no negative inferences based on appellant's refusal to speak. Although the report may have benefited from appellant's participation, appellant was not punished for expressing his rights and his First and Fifth Amendment rights were not violated.

VIII.

Appellant contends the language in Minn. Stat. § 609.1352, subd. 1, is unconstitutionally vague. Appellant did not raise this argument at the district court so we decline to address it here. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding appellate courts only consider matters presented to and considered by district court).

IX.

Appellant argues the court cannot sentence him as a patterned sex offender because the state did not give notice until trial of its intent to pursue sentence enhancement under the statute. We disagree. The statute in question is a sentencing provision that neither affects the charges filed in a criminal complaint nor adds any elements of a crime. Therefore, the state was not required to notify appellant at the time of the original complaint that the prosecution would seek sentencing under the statute. See State v. Christie, 506 N.W.2d 293, 298 (Minn. 1993) (holding that patterned sex offender statute did not add elements of crime and did not create presumption of guilt, but only introduced factors that come into play after defendant has been found guilty of particular crime).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.