State of Minnesota, Respondent, vs. Santana Rodriguez, Appellant.

State of Minnesota, Respondent, vs. Santana Rodriguez, Appellant. A05-966, Court of Appeals Unpublished, July 11, 2006.

This opinion will be unpublished and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

A05-966

 

 

State of Minnesota,

Respondent,

 

vs.

 

Santana Rodriguez,

Appellant.

 

 

Filed July 11, 2006

Affirmed

Lansing, Judge

 

 

Olmsted County District Court

File No. K1-03-4616

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414(for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Santana Rodriguez appeals from his convictions and sentences for three first-degree controlled substance crimes, arguing that the district court violated his right to a speedy trial and abused its discretion by declining to depart downward from the presumptive guidelines sentence.  In a pro se supplemental brief, Rodriguez submits a claim of ineffective assistance of trial counsel.  Because we conclude that good cause existed for the delay of Rodriguez's trial, the district court properly exercised its discretion in sentencing, and the ineffective-assistance-of-counsel claim is unsupported by the record, we affirm.

F A C T S

            The Minnesota Bureau of Criminal Apprehension (BCA), using a confidential reliable informant (CRI), set up three controlled buys of cocaine from Santana Rodriguez.  On September 27, 2002, the CRI purchased 26.8 grams of cocaine from Rodriguez in the parking lot of a grocery store.  On October 4, 2002, the CRI purchased 27.7 grams from Rodriguez in the parking lot of a liquor store.  And on November 13, 2002, the CRI bought 109 grams from Rodriguez at his apartment.

            On November 18, 2003, the state charged Rodriguez with three counts of first-degree controlled substance crimes.  On January 26, 2004, the state amended its complaint, and the court scheduled a trial for August.  Nine days before the trial was set to begin, Rodriguez filed a continuance motion, which the district court denied.  Rodriguez's attorney then sent the district court a letter requesting accommodation for his scheduling conflicts, and the court rescheduled the trial for January 2005. 

            Rodriguez filed a speedy-trial demand on September 7, 2004, and the district court set the case on the trial calendar for the period between October 27 and November 5, 2004.  Rodriguez's attorney sent a letter to the court and the prosecutor on October 6, again requesting scheduling accommodation.  He stated that he was "not necessarily requesting a continuance or withdrawing the speedy demand, but [he] would appreciate any effort that can be made to take [his] scheduling conflicts into account."  He noted that he had conflicts on October 27 and 28, and that he had another trial scheduled for the week beginning November 1.  The prosecutor responded that the sixty-day limit for holding a speedy trial expired on November 5, but that anytime during the current ten-day setting would be satisfactory.  On November 2 the court rescheduled the trial for the calendar setting between November 10 and 19 because the court had other speedy-trial requests and could not rework the calendar to try Rodriguez's case.

            On November 13 Rodriguez moved for dismissal because he did not receive a speedy trial.  The district court heard argument on this motion on November 15 and declined to dismiss because good cause existed for the delay.  The district court began the trial the same day and concluded it on November 17.  The jury found Rodriguez guilty of all three offenses.

            At sentencing Rodriguez moved for a downward durational or dispositional departure and requested that the court not use a cumulative criminal-history score when sentencing him for the second and third offenses.  The district court denied this motion and imposed the presumptive guidelines sentence for each offense.  In determining the criminal-history score for the second and third offense, the district court took into account the previously sentenced convictions and ordered that the three sentences run concurrently.

            Rodriguez appeals from his conviction and sentencing.  He argues that the district court denied his right to a speedy trial and abused its discretion by refusing to depart from the presumptive guidelines sentence and by increasing his criminal-history score for the second and third offenses.  In a pro se supplemental brief, Rodriguez asserts that he received ineffective assistance of trial counsel.

D E C I S I O N

I

            Both the federal and state constitutions guarantee criminal defendants the right to a speedy trial.  U.S. Const. amends. VI, XIV, § 1; Minn. Const. art. I, § 6.  Whether delays in trial scheduling violate a defendant's constitutional right to a speedy trial is a question of law, which we review de novo.  See State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002) (stating that constitutional issues are subject to de novo review).

            In Minnesota, a defendant's trial must begin within sixty days of his demand for a speedy trial unless good cause is shown for the delay.  Minn. R. Crim. P. 11.10.  To determine whether a delay deprived a defendant of his right to a speedy trial, we examine (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant.  State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  These related factors are balanced "together with such other circumstances as may be relevant"; no factor is independently necessary or sufficient to conclude that the defendant did not receive a speedy trial.  Id. at 315 (quotation omitted).

When a trial occurs more than sixty days after a defendant demands a speedy trial, the length of delay is presumptively prejudicial and triggers consideration of the remaining factors.  Windish, 590 N.W.2d at 315; State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).  Because the trial occurred sixty-nine days after Rodriguez filed his demand for a speedy trial, we turn to the other three factors.

On the second factor, the reason for delay, we note that court congestion alone is insufficient to establish good cause for delaying a trial beyond the sixty-day limit.  McIntosh v. Davis, 441 N.W.2d 115, 119-20 (Minn. 1989).  But if the delay results from an overcrowded calendar or other circumstances over which the state has no control, "it weighs less heavily against the state than would deliberate attempts to delay trial."  Friberg, 435 N.W.2d at 513-14.  Overcrowded calendars or reasons outside the state's control can be good cause for delays absent a showing of prejudice.  State v. Jones, 392 N.W.2d 224, 234-36 (Minn. 1986) (holding that seven-month delay did not deprive defendant of right to speedy trial).

Additionally, when a defendant's conduct is partly responsible for preventing the case from going to trial, the delay does not amount to a speedy-trial violation.  See State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) ("[W]hen the overall delay in bringing a case to trial is the result of the defendant's actions, there is no speedy trial violation.").  The failure to object to a trial date beyond the sixty-day limit may function as a waiver of strict compliance with the sixty-day limit.  State v. Curtis, 393 N.W.2d 10, 12 (Minn. App. 1986).

The record establishes two primary reasons for the delay of Rodriguez's trial beyond the sixty-day limit.  First, the district court's competing demands for speedy trials pushed Rodriguez's trial setting beyond the sixty-day limit.  The state confirmed by letter that it was willing and able to proceed to trial before the expiration of the sixty-day limit, and the record contains no suggestion that it exercised any control over the delayed setting.  Second, defense counsel submitted a letter to the court requesting accommodation for his scheduling conflicts.  Although the letter does not constitute a motion for a continuance or a withdrawal of the speedy-trial demand, the defense attorney's request significantly limited the possibility of honoring the sixty-day demand.  In light of the defense attorney's relatively recent continuance request, the letter may have also signaled to the court that Rodriguez was not seeking to enforce strict compliance with the sixty-day rule. 

Notably, Rodriguez did not object to the rescheduling that moved the trial date beyond the sixty-day request.  Instead, Rodriguez waited until the sixty days expired and immediately filed a motion to dismiss.  The combination of the court's crowded calendar, the defendant's conduct in initiating scheduling requests, and the defendant's failure to object to the rescheduling suggest that the second factor weighs in favor of the state. 

It is undisputed that Rodriguez asserted his right to a speedy trial.  Because he filed a demand for a speedy trial with the court, the third factor weighs in Rodriguez's favor.

Turning to the final factor, we evaluate whether the delay prejudiced the defendant.  Three underlying policies govern this evaluation:  preventing oppressive pretrial incarceration, minimizing the anxiety of the accused, and limiting impairment of the defense.  Windish, 590 N.W.2d at 318.  The final policy consideration is the most important.  Id. 

To support his argument that the delay resulted in prejudice, Rodriguez points to his long separation from his family.  But the nine-day extension beyond the sixty-day limit does not automatically translate into oppressive incarceration.  Rodriguez does not point to any increase in anxiety resulting from the additional days.  Instead, his argument is directed to the entire separation that began with the filing of the complaint and extended through trial.  His demand for a speedy trial, however, is the operative framework for assessing prejudice.  We find nothing in the record or in Rodriguez's brief that suggests the delay impaired his defense.  Although the Windish factors do not require proof of a specific impairment, Rodriguez has alleged no general impairment.  See Windish, 590 N.W.2d at 318-19 (recognizing that impairment of defense is difficult to prove and that defendant need only show likely harm to case).  We conclude that the nine-day delay did not prejudice Rodriguez. 

Because the circumstances demonstrate that good cause existed for extending his trial date and that the rescheduling did not prejudice him, Rodriguez has not demonstrated that the district court erred by refusing to dismiss the complaint for failure to provide a speedy trial.

II

When sentencing a defendant for multiple offenses, a court should impose only one sentence if the actions underlying the charges arise from a single behavioral incident.  Minn. Stat. § 609.035, subd. 1 (2002); State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000).  To determine whether conduct arose from a single behavioral incident, the sentencing court considers the "time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective."  State v. Carr, 692 N.W.2d 98, 101 (Minn. App. 2005) (quotation omitted).  Because convictions that arise from separate behavioral incidents are subject to separate punishments, a court, when imposing multiple sentences on the same day, may use the preceding convictions to increase a defendant's criminal-history score when determining the presumptive guidelines sentence for a subsequent conviction.  See State v. Soto, 562 N.W.2d 299, 302-03 (Minn. 1997) (discussing calculation of criminal-history score when sentencing multiple offenses on same day); State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981) (interpreting sentencing guidelines to permit use of preceding convictions to determine criminal-history score for subsequent offenses sentenced on same day).

A district court has broad discretion in imposing a sentence.  State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).  A departure from the presumptive guidelines sentence, however, must be supported by the presence of aggravating or mitigating factors.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  A downward departure requires a showing of "substantial and compelling circumstances."  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  But the presence of a mitigating factor does not mandate a departure from the presumptive guidelines sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  Therefore, we will reverse a district court's imposition of the presumptive sentence only in rare cases.  Kindem, 313 N.W.2d at 7.

Rodriguez asserts two errors in sentencing.  He first contends that the three offenses should qualify as one behavioral incident and that the district court should not have used his preceding convictions to enhance his criminal-history score when sentencing him for the subsequent convictions.  His argument is not supported by the law or by the facts.

The three controlled buys did not occur at the same time.  A week separated the first two offenses, and almost six weeks elapsed between the second and third offenses.  Neither did the transactions occur in the same place.  The first transpired in a grocery store's parking lot, the second occurred in a liquor store's parking lot, and the last one took place in Rodriguez's home.  Although all three offenses arguably have the same criminal objective of making money, the "criminal plan of obtaining as much money as possible is too broad an objective to constitute a single criminal goal within the meaning of section 609.035."  Soto, 562 N.W.2d at 304.  Because the offenses did not occur at the same time or place and do not have a single criminal objective, the district court did not err by imposing multiple sentences.  Therefore, the sentencing court's use of the preceding convictions to calculate Rodriguez's criminal-history score when sentencing him for the subsequent convictions was appropriate.  See id. (concluding that district court did not err when using Hernandez method in determining sentence).

Rodriguez next asserts that the court abused its discretion by refusing to depart from the guidelines sentence because the BCA engaged in sentencing entrapment when it arranged the controlled buys.  To establish sentencing entrapment, Rodriguez has the burden of establishing that "he was predisposed only to sell smaller amounts of cocaine and that he had neither the intent nor the resources for selling the larger amount he was entrapped into selling."  Id. at 305.  The record shows that Rodriguez is accustomed to dealing in "quantities of cocaine" and that these quantities exceed an ounce.  Although the last offense was for approximately four ounces, nothing in the record suggests that Rodriguez was not predisposed to sell this quantity.  See id. (concluding that increased quantity in series of controlled buys did not constitute sentencing entrapment).

Because the record does not support a determination that the BCA engaged in sentencing entrapment, the BCA's conduct does not constitute a mitigating circumstance that would require a downward departure.  Even if Rodriguez's argument on the BCA's conduct had established a mitigating circumstance, the district court nonetheless retains discretion on whether to impose or alter the presumptive guidelines sentence.  See State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (stating that, when factors both for and against granting downward departure exist, decision is matter of discretion for district court), review denied (Minn. Jan. 14, 1991).  The district court did not abuse its discretion by refusing to depart from the guidelines sentence.

Finally, Rodriguez asserts in his pro se supplemental brief that he received ineffective assistance of trial counsel.  His assertion of this claim has no accompanying legal or factual support and is therefore waived.  See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (holding that allegations in brief without argument or supporting legal authority are waived).  Furthermore, our review of the record discloses no basis for a determination that his trial counsel's representation fell below an objective standard of reasonableness.  See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (setting forth requirements for proving ineffective assistance of counsel.

            Affirmed.