State of Minnesota, Respondent, vs. Anthony Lee Nelson, Appellant.

State of Minnesota, Respondent, vs. Anthony Lee Nelson, Appellant. A04-749, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-749

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Lee Nelson,

Appellant.

 

Filed September 6, 2005

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Hennepin County District Court

File No.  03046187

 

 

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent);

 

John M. Stuart, State Public Defender, Suzanne Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HUDSON, Judge

            This appeal is from a conviction of and sentence for five counts of aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2002), and one count of felon in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  Appellant argues that (1) he did not knowingly and intelligently waive his right to counsel; (2) the district court erred in imposing consecutive sentences based on findings made by the court rather than a jury, in violation of his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004); and (3) the sentence is ambiguous and unfairly exaggerates the criminality of his conduct.  Because appellant's waiver of counsel was valid, and because Blakely does not apply to permissive consecutive sentences, we affirm the conviction and the consecutive nature of the sentences.  But because the district court erred in not using a zero criminal-history score, we reverse in part and remand to allow the court to reconsider the sentences.

FACTS

 

Appellant Anthony Nelson was charged with several aggravated robberies that occurred in the evening of July 5, 2003, at a Brooklyn Park apartment complex.  Appellant was also charged with being a felon in possession of a firearm at that time.

            Appellant demanded a speedy trial at the omnibus hearing.  On the date scheduled for trial, a continuance was ordered when a public defender was substituted for appellant's appointed counsel.  When the parties appeared for trial, an agreement to present the case to the court for a bench trial based on stipulated evidence fell through.  On the rescheduled trial date, appellant complained about his public defender's representation.  Appellant contended that the delays in the case had been caused by his public defender.  When the court asked him if he wanted to fire the public defender, appellant replied that he did.  The court explained that if he did so, appellant would be representing himself at trial that day.  Appellant was given an opportunity to consult with his public defender.

            The district court listed the charges for appellant and had the prosecutor detail the range of punishment for each offense.  The prosecutor then restated his plea offer of an aggregate sentence of 180 months.  The prosecutor, however, explained that if appellant was convicted of all counts following a trial, he would be asking for a departure from the presumptive aggregate sentence of about 350 months, relying on the particular cruelty of the robberies and the presence of children at those robberies.  The district court then outlined the minimum and maximum fines that could be imposed and noted that no affirmative defenses had been asserted.  The district court warned appellant that if he chose to represent himself he would be expected to fulfill the role of an attorney. 

            At that point, the public defender indicated that appellant wanted to raise the issue of the suggestive show-up identification procedures.  The district court agreed that appellant could do so during the court trial.

            Appellant completed a petition to proceed as pro se counsel and testified that he had read the petition, with the public defender answering his questions, and that he understood what the public defender's role as standby counsel would be.  Appellant stated that he had read the petition carefully and he had had sufficient time to discuss it with the public defender.  The district court granted appellant's request to represent himself at trial. 

            The district court made detailed findings of fact summarizing the testimony at trial.  The district court noted that the victims identified appellant as the man who had robbed them, identified the property that was seized from appellant or fell to the ground when he was arrested as being their recently stolen property, and identified the gun that appellant was carrying when arrested as the gun that had been pointed at them earlier.  The district court found appellant guilty on all counts. 

            At sentencing, the district court found that appellant had a criminal-history score of five, without considering any of the July 5, 2003 offenses.  The district court sentenced appellant first on the felon-in-possession count, imposing the presumptive sentence of 60 months and stating that this sentence was consecutive to the sentences imposed on the aggravated-robbery counts.  (The warrant of commitment and sentencing order, however, indicate that this sentence was concurrent.)  The district court then imposed concurrent sentences of 111 months on four of the aggravated-robbery counts.  On the fifth count, the district court departed by imposing a consecutive sentence, citing the presence of S.M.S.'s children during the offense, and imposed a 60-month sentence.

The district court stated that the aggregate sentence on these six counts was 117 months and that appellant would serve a minimum of 114 months in prison.  The sentencing order, however, indicates the aggregate sentence was 171 months.  The 171-month sentence was to be served consecutive to appellant's 2003 sentence for first-degree aggravated robbery.  This appeal follows. 

D E C I S I O N

I

 

            Appellant argues that the district court failed to conduct an adequate inquiry into his waiver of his right to counsel.  He complains that the public defender he was discharging was allowed to do the questioning and that there was no inquiry into whether appellant was prepared for trial or needed additional time.  A finding that a defendant has validly waived his right to counsel will be reversed only if it is clearly erroneous.  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).

            The rule requires that before accepting a waiver of the right to counsel, the district court should advise the defendant of:

the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.

 

Minn. R. Crim. P. 5.02, subd. 1(4).  But a detailed, on-the-record inquiry is not always required.  See Worthy, 583 N.W.2d at 276.

            The district court outlined the charges for appellant, as well as the range of possible sentences, including minimum and maximum fines.  The district court noted that no notice of affirmative defenses had been given, although it did not advise appellant that there might be mitigating circumstances, and the district court told appellant that he would have to fulfill the role of an attorney at trial, although it did not explain the disadvantages of his doing so.  During this process, the public defender said little and did not take over the inquiry, as appellant's argument suggests.

            When a defendant has had the benefit of being represented by counsel before the waiver, the district court may presume that the advantages and disadvantages of proceeding pro se have been explained to him.  Id.  Appellant had not only been represented by this public defender for two months, and by another public defender before that, but also requested and was granted an opportunity to discuss the waiver with the public defender before he waived his right to counsel.

            The detailed, on-the-record inquiry provided in rule 5.02, subd. 1(4), is not always required for a valid waiver of the right to counsel.  In Worthy, there was not even a recitation of the charges or the potential punishments.  Id.  Although Worthy is an unusual case because the defendants were uncooperative and left the courtroom, the supreme court in State v. Brodie, 532 N.W.2d 557 (Minn. 1995), also affirmed a conviction despite a minimal inquiry into the waiver of the right to counsel.  The court in Brodie indicated that because the defendant had fired his attorney, and that attorney acted as standby counsel, the waiver was adequate.  Id.

            Worthy and Brodie indicate that a limited inquiry into the waiver of counsel is adequate if a defendant has been represented by counsel and has had an opportunity to consult with that attorney before the waiver, at least if the attorney then remains to serve as standby counsel.  Those conditions were all met here.  Thus, appellant's claim that the inquiry was inadequate and his complaint about the public defender's participation in the process are without merit.

            Appellant cites an opinion requiring a "penetrating and comprehensive examination" before accepting a waiver of counsel.  State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987).  But Rubin involved a guilty plea from a defendant "who ha[d] not even consulted with counsel about waiving counsel and pleading guilty."  Id. at 505.  And Rubin acknowledged that an alternative means of ensuring a valid waiver is to appoint temporary counsel to advise the defendant on the waiver.  Id. at 506.  Appellant had the advice of the public defender, whom he specifically asked to consult with him about the waiver, as well as an on-the-record inquiry that was more extensive than that in either Worthy or Brodie.

            Appellant argues, finally, that the district court did not inquire whether he needed more time to prepare for trial.  But as the state points out, appellant had demanded a speedy trial, and his primary complaint about the public defender's representation appears to have been that he had sought continuances without appellant's consent.  It is highly unlikely that appellant would have agreed to a continuance, even one to allow him time to prepare for trial.  When the district court informed him that if he fired the public defender he would be representing himself at trial "today," appellant did not protest.  And appellant had the services of the public defender as standby counsel, which alleviated any prejudice from appellant's lack of preparation time.

            Appellant has not shown that his waiver of the right to counsel was invalid or that the court's inquiry was inadequate.

II

Appellant argues that his sentences on the six counts were imposed in the wrong order and were otherwise improper, and that the consecutive sentencing on one count both exaggerates the criminality of his conduct and violates his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).

Despite some conflict between the sentencing transcript and the written records of the sentence, it appears that the district court properly imposed sentences on the six offenses in the order in which they occurred.  The district court sentenced appellant first on the felon-in-possession-of-a-firearm count, on the plausible assumption that appellant was in possession of the Tech-9 handgun before he encountered any of the victims.  The district court then sentenced appellant on the five aggravated-robbery counts in the order in which they occurred.

The district court did state that the felon-in-possession sentence was "consecutive to" the aggravated-robbery counts.  Because those counts were sentenced after the felon-in-possession count, they should have been made concurrent with the felon-in-possession count.  See Minn. Stat. § 609.15, subd. 1(a) (2004) (providing that the district court in later sentence shall specify whether the sentences shall run consecutively or concurrently).  Because it appears that the district court intended to make the sentences concurrent, however, this error does not affect the ultimate sentence.

As indicated, the district court stated at sentencing that the felon-in-possession sentence was consecutive to the aggravated-robbery counts.  But this appears to be a misstatement or an error in transcription because it conflicts with the sentencing order and with the aggregate sentence imposed.  The district court's statement in the sentencing transcript that the aggregate sentence was 117 months is also erroneous, but may be readily corrected to 171 months, the figure stated in the written sentencing documents and the figure that matches the 114-month minimum imprisonment term that the district court pronounced.  See State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002) (holding that a written sentencing order may be used to clarify an ambiguous sentencing transcript); cf. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999) (stating that the written judgment is conclusive, as against the sentencing transcript, on whether a conviction has been formally adjudicated for an offense).

Appellant also argues that there was an error in the calculation of his criminal-history score similar to that which occurred in State v. Pince, 358 N.W.2d 435 (Minn. App. 1984).  We agree.  In Pince, the district court made two current, concurrent terms consecutive to several prior unexpired sentences.  Id. at 436.  This court held that the court erred in failing to use a zero criminal-history score for the current sentences.  Id. at 437.  The district court here made appellant's aggregate sentence consecutive to his 2003 sentence but did not use a zero criminal-history score in calculating the aggregate sentence.

The guidelines provide that "[f]or each offense sentenced consecutive to another offense(s), other than those that are presumptive [consecutive], a zero criminal history score" shall be used.  Minn. Sent. Guidelines II.F.  The district court appears to have applied this principle only to the sentence made consecutive to other currently imposed sentences and not to those made consecutive to appellant's previously imposed sentence.  Because all of the current sentences were made consecutive to appellant's prior sentence, all should have been calculated using a zero criminal-history score.  The four concurrent aggravated-robbery sentences, then, using a zero criminal-history score, would be 48 months, rather than 111 months, which would make appellant's aggregate sentence for the July 5, 2003 offenses 108 months, rather than 171 months.  See Minn. Sent. Guidelines IV.

The district court's error in using the full criminal-history score on these four counts does not necessarily require an outright reversal.  This appears to be a case in which it is appropriate, as the state suggests, to remand for resentencing.  See generally State v. McAdory, 543 N.W.2d 692, 69798 (Minn. App. 1996) (remanding sentence that the district court thought was a permissible consecutive sentence to allow the court to consider whether departure was appropriate).  The district court erroneously believed that 111 months was the correct presumptive sentence on the four aggravated-robbery counts.  It seems possible that, had the district court known the presumptive sentence was actually 48 months (using a zero criminal-history score), it would have made one or more of those sentences consecutive to the other current sentences.  It could have done so without departure because all of the aggravated robbery offenses were "crimes against persons" having different victims.  See Minn. Sent. Guidelines II.F. (stating that consecutive sentencings are permissive when an offender is convicted of multiple current felonies for crimes against persons).  Although the robberies of S.M.S., L.N., L.W., and E.H.W. were all part of the same course of conduct, the robbery of M.S.S. occurred separately.  On remand, the district court may consider making the sentences for the other robberies consecutive to the sentence for the robbery against M.S.S.

Appellant also argues that the cumulative sentence for the July 5, 2003 offenses exaggerates the criminality of his conduct.  See generally State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (concluding that the imposition of five consecutive sentences for assaults against different victims, in addition to life sentence for first-degree murder unfairly exaggerated the criminality of defendant's conduct).  We disagree. 

Norris has generally been applied when consecutive sentences are imposed on several counts.  Here, if the felon-in-possession sentence is construed as concurrent rather than consecutive, in accordance with the written sentencing records, only the fifth aggravated-robbery sentence was made consecutive.  And the district court cited the presence of S.M.S.'s children during that robbery as an aggravating factor justifying a consecutive sentence.  Appellant has not cited any case in which Norris has been applied to a sentencing in which only two sentences are consecutive.  And there were five victims here, without including the children.  By remanding to allow consideration of additional consecutive sentences, we necessarily conclude that appellant's argument that the cumulative sentence exaggerates the criminality of his conduct is without merit.

Appellant's final challenge to the sentence is his claim that consecutive sentencing based on judicial findings violated his right to a jury trial under Blakely.  This court has held, in State v. Senske, 692 N.W.2d 743, 749 (Minn. App. 2005), review denied (Minn. May 17, 2005), that Blakely does not apply to permissive consecutive sentencing under the sentencing guidelines.  Appellant's argument is contrary to this court's analysis in Senske.  But based on the analysis discussed above, we reverse the sentence and remand for resentencing consistent with this opinion.

III

Appellant has filed a pro se supplemental brief in which he argues that he was denied his right to a speedy trial, that the prosecutor presented false testimony at trial, and that at least one of the show-up identification procedures was impermissibly suggestive. 

Appellant was not tried until more than four months after his speedy-trial demand on August 7 of that year.  By rule, trial should begin in Minnesota within 60 days after the date of the speedy-trial demand unless good cause is shown for delaying trial past that date.  Minn. R. Crim. P. 6.06, 11.10.  In determining whether a delay constitutes a violation of the right to a speedy trial, this court must consider (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted the right; and (4) whether the delay prejudiced the defendant.  State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977).  When the delay is due to the defendant's actions, however, there is no speedy-trial violation.  State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993).

Appellant was scheduled to be tried on October 1, 2003, which was within the 60-day period.  But on that date there was a substitution of his public defender.  Appellant claims that he was not aware of this substitution and even appears to question whether it occurred.  But the district court record verifies that it occurred.  And the district court, in denying appellant's post-trial motion to dismiss on speedy-trial grounds, found that there was a substitution of counsel and a defense request for a continuance.  If appellant claims otherwise, it is his burden, as the appealing party, to provide a transcript of the October 1 appearance to show it did not occur or that it should not be counted as a delay attributable to the defense.  See generally State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984) (holding that an appellant claiming trial error had the burden of providing a complete transcript or equivalent record). 

The trial also was delayed on November 24 and 25, when the defense first agreed to a trial on stipulated evidence and then could not reach agreement with the state on a stipulation.  This delay was at least partially attributable to the defense.

Appellant claims that he was prejudiced by his pretrial incarceration.  But appellant was faced with a revocation of his probation on his prior sentence.  There is no prejudice from pretrial incarceration if the defendant is already in custody on another offense.  State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999).  Appellant makes no showing that his ability to present a defense was impaired, which would be the most serious type of prejudice from a delay in the trial.  Given the defense role in the two post-August 7 continuances, the lack of a showing of prejudice, and the limited extent of the delay, appellant's speedy-trial rights were not violated.

Appellant's claim that the prosecutor presented perjured testimony asks this court to assess the credibility of a prosecution witness, M.S.S., the first aggravated-robbery victim.  But the subject of the allegedly inconsistent testimony is so minor that it was not even mentioned by the district court in its extensive findings of fact to support the finding of guilt.  Any inconsistency was for the district court to consider when judging the overall credibility of that witness's testimony.

Appellant also argues that the show-up conducted with M.S.S. was impermissibly suggestive.  M.S.S. testified at trial that he had two encounters with appellant, the later of which occurred when the two men were only five to six feet apart.  And police had conducted an earlier show-up with a different suspect, whom M.S.S. could not identify as the robber.  Moreover, M.S.S. testified that he could identify appellant without even having to get out of the squad car to get a better look at him.  The show-up was not impermissibly suggestive.

Finally, appellant requests a stay of this direct appeal and remand for postconviction proceedings.  This request is both untimely and an improper pro se submission by a defendant represented by counsel.

            Affirmed in part, reversed in part, and remanded.