State of Minnesota, Respondent, vs. Jose De Jesus Llovera, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-03-377

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jose De Jesus Llovera,

Appellant.

 

 

Filed December 30, 2003

Affirmed

Robert H. Schumacher, Judge

 

McLeod County District Court

File No. K102523

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael J. Junge, McCleod County Attorney, Mark A. Metz, Assistant County Attorney, 830 East 11th Street, Suite 214, Glencoe, MN 55336 (for respondent)

 

John M. Stuart, State Public Defender, Stephen L. Smith, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414

 

 

            Considered and decided by Schumacher, Presiding Judge; Randall, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Jose DeJesus Llovera appeals his conviction of one count of first-degree controlled substance offense in violation of Minn. Stat. § 152.021, subds. 2(1), 3(a) (2000) (possession of one or more mixtures of total weight of 25 grams or more containing cocaine, heroin, or methamphetamine) claiming there was no reasonable, articulable suspicion to expand the scope of the initial traffic stop, he did not voluntarily consent to the search of his vehicle and his person, and there was insufficient evidence to sustain his conviction.  We affirm.

FACTS

At the omnibus hearing, held July 11, 2002, state trooper Jim Nielsen and special agent Cory Skorczewski testified to the following.  On or about May 3, 2002, a confidential reliable informant (CRI) told Skorczewski that Llovera was in possession of a large amount of methamphetamine and would be traveling from Hutchinson to Winsted in a gray van with license plate number CGV-539.  Skorczewski observed the van in Hutchinson, and his partner, special agent Dan Niccum, contacted Nielsen.  Niccum told Nielsen the details of the information received from the CRI, explained that Llovera's driver's license was expired, and asked him to conduct a traffic stop of Llovera's vehicle based on the expired license.  Nielsen stopped the van in route to Winsted and asked Llovera to produce his driver's license.  Llovera gave Nielsen a valid driver's license.

Nielsen then asked Llovera to step out of the van, told him that his license was okay, and said that he was attempting to stop a number of vehicles to check for illegal drugs or weapons.  Nielsen asked Llovera if he could search the van and Llovera said "yes."  Nielsen got a consent form from the squad car, read it out loud to Llovera, and asked Llovera to sign it.  The form included the statement, "I understand that I have the right to refuse to consent to the search described above and refuse to sign this form."  Llovera told Nielsen that his English was "not so good."  Nielsen explained that Llovera could read the form in Spanish on the backside but Llovera signed the English side.  Nielsen searched the van but did not find any drugs.

            After searching the van, Nielsen told Llovera that he was concerned because his "meth detector had gone off."  He asked Llovera if he had any methamphetamine on him.  Llovera said he did not and patted his pockets.  Nielsen asked, "Can I see?"  In response, Llovera reached into his pockets and turned them inside out.  At this point, Nielsen recognized a Minnesota identification card in Llovera's hand and asked him if the identification card was his.  Llovera said yes.

Llovera also testified at the omnibus hearing.  He said that Nielsen took off Llovera's jacket, and while the officers had his jacket they searched the pockets and found the identification card.  Llovera testified that he did not voluntarily agree to the search.

Nielsen determined that the picture on the identification card was Llovera but that the name and birth date were different from what appeared on Llovera's drivers license.  Nielsen then arrested Llovera, patted him down, and found drugs under the waistline of his underwear.  Skorczewski asked Llovera if he had any other drugs on him and he pulled more drugs out of his underwear.  In total, the officers found 24.9 grams of methamphetamine and 1.2 grams of cocaine on Llovera.

D E C I S I O N

1.         Llovera's appeal raises the issue of whether Nielsen had reasonable, articulable suspicion to expand the scope of the initial traffic stop.  Although this issue was mentioned in passing during the Lothenbach-plea hearing, it was not argued or briefed on its merits before the district court and is not addressed by either of the court's pretrial orders.  Because this issue was not addressed by the district court we decline to address it on appeal.  See State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989) (stating appellate courts, usually, will not address issues which are not first addressed by the district court).

            2.         Llovera argues he did not voluntarily consent to a search of his vehicle or his person.  On appeal, the district court's finding of consent will not be overturned unless clearly erroneous.  State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).

In a warrantless search, the state has the burden of proving the defendant voluntarily consented to the search; voluntariness is a question of fact and based on the totality of the circumstances.  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  When determining whether the consent was voluntary, a court must examine the totality of the circumstances surrounding the search, including the nature of the encounter, the kind of person the defendant was, and what was said and how it was said.  Id.  Whether the defendant had knowledge of his right to refuse is only one factor in the totality of the circumstances test.  Id. at 881 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047 (1973)).

Here, the search of the van took place at approximately 1:30 p.m.  Llovera agreed to Nielsen's request to search the van.  Llovera signed a consent form that Nielsen read to him.  The form stated that Llovera had the right to say no.  Although Llovera told Nielsen that he did not understand English very well, Nielsen testified that he conversed "easily" in English with Llovera and he told Llovera the consent form could be read in Spanish.  Conflicting statements are a question of witness credibility that is left to the discretion of the trier of fact.  Walker v. State, 394 N.W.2d 192, 196 (Minn.App.1986), review denied (Minn. Nov. 26, 1986).  Given Nielsen's testimony, the district court's finding of consent cannot be said to be clearly erroneous.

The search of Llovera's person took place shortly after the search of the van.  Nielsen and Skorczewski were both present.  Nielsen and Skorczewski testified that Llovera, in response to the questions about whether he had anything in his pockets, pulled his pant pockets inside out.  Nielsen testified that at this point he saw the identification card in Llovera's hand.  According to Llovera's testimony, Nielsen took off Llovera's jacket and found the identification card inside a  jacket pocket.  Again, conflicting statements are a question of witness credibility that is left to the trier of fact. Walker, 394 N.W.2d at 196.  The district court's finding of consent cannot be said to be clearly erroneous.

            3.         Llovera argues the evidence presented is not sufficient to sustain the conviction.  He does not deny that he possessed 24.9 grams of methamphetamine and 1.2 grams of cocaine.  Rather, he argues Minn. Stat. § 152.021, subd. 2(1), does not allow combining the weight of the methamphetamine and the weight of the cocaine to meet the statutory minimum of 25 grams.  Statutory construction is a question of law, which this court reviews de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

When the words of a law in their application to an existing situation are free from ambiguity this court applies the statute's plain meaning.  Minn. Stat. § 645.16 (2002); State v. Kelbel, 648 N.W.2d 690, 701 (Minn. 2002).  Section 152.021, subd. 2(1), provides a person is guilty of a controlled substance crime in the first degree if "the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing cocaine, heroin, or methamphetamine[.]"  Mixture "means a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity."  Minn. Stat. § 152.01, subd. 9a (2000).

The statute is not ambiguous.  The language "possesses one or more mixtures" and "total weight" indicates the weights of both the cocaine and methamphetamine possessed by Llovera may be combined.  Llovera possessed one bag of methamphetamine and one bag of cocaine.  The methamphetamine weighed 24.9 grams and the cocaine weighed 1.2 grams.  Thus, the total weight possessed was 26.1 grams.  The evidence was sufficient to sustain the conviction.

4.         In his pro se brief, Llovera argues by imposing the 81-month sentence the district court improperly allowed the parties to negotiate the sentence as part of the Lothenbach procedure.  See State v. Lothenbach 296 N.W.2d 854 (Minn. 1980).  Lothenbach outlines the procedure whereby a defendant may preserve the right to appeal an adverse pretrial ruling by waiving a jury trial and stipulating to facts the prosecution would present.  Id. at 857-58.  The proper procedure for sentencing is set forth in rule 27.03 of the Minnesota Rules of Criminal Procedure.  During a sentencing hearing, the district court must allow the prosecutor, defense counsel, and the defendant the opportunity "to make a statement with respect to any matter relevant to the question of sentence including recommendation as to sentence."  Minn. R. Crim. P. 27.03, subd. 3.  For felony cases, if the court's sentence departs from the sentencing guidelines the court must state, on the record, findings of fact as to the reasons for the departure.  Minn. R. Crim. P. 27.03, subd. 4(C).

            Here, pursuant to Lothenbach, Llovera stipulated to facts, waived his right to a jury trial, and preserved the issues subject to pretrial suppression rulings for appeal.  At the Lothenbach-plea hearing, both the prosecutor and defense counsel discussed a sentence of 81-months if the court found Llovera guilty.  The court stated that if Llovera was found guilty he would have "the right to be sentenced at a separate hearing."  At the sentencing hearing, the prosecution recommended the court impose a guideline sentence of 81-months, 54 to be served in prison and 27 on supervised release.  Llovera was given the opportunity to argue or otherwise object.  Llovera's counsel said, "the 81-month sentence was the sentence which was stipulated by the State as part of the Lothenbach plea."  When asked if he had anything else to say, Llovera's counsel said "no."  The court asked Llovera if he had anything to say and Llovera also said "no."  The court then imposed the guideline sentence of 81-months.  Because these facts conform with requirements of Lothenbach and of rule 27.03 we find the district court did not err in sentencing Llovera.

5.         In his pro se brief, Llovera raises the issue of ineffective assistance of counsel.  Because the merits of this claim are more appropriately addressed in a postconviction proceeding, we decline to reach this issue.  See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (stating that ineffective-assistance-of-counsel claim is more appropriately raised in postconviction proceeding).

            Affirmed.