Opinion
No. A04-1784.
Filed October 19, 2005.
Appeal from the District Court, Olmsted County, File No. K0-03-2002.
Mike Hatch, Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, (for appellant).
Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Douglas Dehn appeals his conviction and sentence for aiding and abetting a controlled-substance crime involving the manufacture of methamphetamine. Dehn argues that the warrantless search of the motel room in which the police discovered the methamphetamine laboratory he was running was unconstitutional. Dehn also argues that the district court (a) erred by denying his request for a downward dispositional departure and (b) violated his right to a jury trial under Blakely by calculating his sentence on the basis of a custody-status point not found by a jury. In his pro se reply brief, Dehn argues that he did not waive his right to an omnibus hearing knowingly and intelligently; alternatively, Dehn argues that his attorney's unilateral decision to waive an omnibus hearing constituted ineffective assistance of counsel. Because we conclude that the district court did not err and that Dehn's pro se claims are without merit, we affirm.
FACTS
In May 2003, relying on an informant's tip that appellant Douglas Dehn was operating a methamphetamine laboratory at Motel 6, Rochester law-enforcement officers obtained consent from the motel manager to enter room 124. The room had been rented to Aaron Huinker, a friend of Dehn's.
The officers knocked on the door, identified themselves, and stated that they had a search warrant. After receiving no response, they entered the room. Based on their observations, the officers concluded that there was an active methamphetamine laboratory in the room. The officers then secured the room, cleared the adjacent rooms, and obtained a search warrant, which they executed the next day.
Dehn was arrested and charged with aiding and abetting first-degree controlled-substance crime. Before trial, Dehn affirmatively waived his right to an omnibus hearing.
At trial, Huinker testified that (1) he was driving and saw Dehn leaving the American Legion Club; (2) Dehn flagged him down and asked him if they could go to Huinker's house to make methamphetamine; (3) Huinker told Dehn that he was not living at the house anymore; (4) Huinker also told Dehn that Huinker could rent a room but was short on money; (5) Dehn then gave Huinker money to rent a motel room; (6) Huinker understood that he would get free methamphetamine if he rented the room for Dehn; and (7) he and Dehn spent approximately 24 hours in the room.
Dehn testified that (1) he saw Huinker as Dehn was leaving the American Legion Club; (2) Huinker gave him a ride to a friend's apartment; (3) after learning that Huinker needed a place to stay and that the brakes in Huinker's car were not working, Dehn lent Huinker $100; (4) he contacted Huinker the next day to buy methamphetamine for a friend; (5) when Dehn arrived at Motel 6, he saw the informant — whom he had met through a friend — standing on a balcony; (6) the informant came to the parking lot and they both went to Huinker's room; (7) he was not involved in the methamphetamine-manufacturing process or giving Huinker money to rent the motel room for the purpose of manufacturing methamphetamine.
A jury found Dehn guilty of aiding and abetting first-degree controlled-substance crime. Dehn moved for a downward dispositional departure, claiming that he was amenable to treatment in a probationary setting. The district court denied Dehn's motion, reasoning that because of a prior conviction, Dehn was subject to a mandatory minimum prison sentence under Minn. Stat. § 152.021, subd. 3(b) (2002). After finding that Dehn had a custody-status point in his criminal-history score, the court sentenced Dehn to the presumptive sentence. This appeal from the judgment of conviction and the sentence follows.
DECISION I.
Dehn first argues that the warrantless search of the motel room was unconstitutional because the motel manager lacked actual or apparent authority to consent to the search and the search was not justified by an exception to the warrant requirement. The state argues that Dehn waived his right to raise the search issue on appeal by affirmatively waiving his right to an omnibus hearing. Alternatively, the state argues that Dehn lacked a sufficient expectation of privacy in the room to challenge the search.
Waiver
Before trial, Dehn's attorney affirmatively waived Dehn's right to an omnibus hearing. Counsel told the court that there were no omnibus issues and that "it would be our intent to waive any further omnibus proceedings and enter pleas of not guilty . . . and ask that this matter be placed on the jury trial calendar." The court replied, "All right. Mr. Dehn's right to an omnibus hearing is waived."
A defendant waives an issue that is available to him but not raised in a pretrial motion. Minn. R. Crim. P. 10.03. A reviewing court will not decide issues raised for the first time on appeal, including constitutional questions of criminal procedure, unless justice requires that the issues be considered and doing so would not unfairly surprise a party to the appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
Dehn does not dispute that he waived his right to an omnibus hearing or that he otherwise failed to raise the search issue at trial. Instead, Dehn argues that this court should consider the search issue on appeal in the interests of justice because the issue is dispositive and can be decided on the record without additional fact-finding. But because by waiving an omnibus hearing Dehn deprived the state of the opportunity to establish an adequate factual record for the search, the search issue cannot be decided on the record without additional fact-finding. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding that because the state had not developed a factual record with respect to an issue not raised in the district court, resolution of that issue was not in the interests of justice); State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989) (declining to consider the validity of a stop because of the "paucity of the trial court record on th[at] issue").
The validity of the search was not an issue in the district court. The state did not, therefore, inquire about the reasons why the officers opted to enter the room before obtaining a search warrant. Entry without a warrant might have been justified by exigent circumstances. See State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992). But because Dehn waived his right to an omnibus hearing, the factual details of the entry were not developed. The record is therefore incomplete, and it is not in the interests of justice to consider the issue on appeal. Cf. State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003) (holding that because the record contained sufficient facts for the appellate court to consider alternative theories, there was legal support for the arguments, and alternative grounds would not expand relief previously granted, state did not waive issue raised for first time on appeal); State v. Balduc, 514 N.W.2d 607, 609-10 (Minn.App. 1994) (holding that because defendant put state on notice that usual omnibus issues would be contested and state had opportunity to respond to argument and to present relevant testimony, defendant did not waive challenge to lack of particularity in search warrant by failing to raise issue with specificity in pre-omnibus-hearing motion).
Legitimate Expectation of Privacy
Even if Dehn did not waive the search issue, because he lacked a legitimate expectation of privacy in the room, Dehn is precluded from challenging the constitutionality of the search.
The rights that the Fourth Amendment guarantees are personal and "may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." Rakas v. Illinois, 439 U.S. 128, 138, 99 S. Ct. 421, 428 (1978) (quotation omitted). To claim the protection of the Fourth Amendment, a defendant must thus establish that he personally has an expectation of privacy in the place searched and that his expectation is reasonable in light of property-law concepts or understandings that are recognized and permitted by society. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998); State v. Perkins, 588 N.W.2d 491, 492 (Minn. 1999) (holding that Fourth Amendment protection is not triggered unless aggrieved party demonstrates legitimate privacy interest).
In determining whether a person has a legitimate expectation of privacy in a particular area courts generally consider whether the person owned or possessed the area. See Rakas, 439 U.S. at 148, 99 S. Ct. at 433 (holding that passengers who asserted no property or possessory interest in vehicle lacked legitimate expectation of privacy in vehicle and were not entitled to suppression of seized items). Courts also consider the purpose for which the person was in the area and have distinguished between social and business purposes. See Carter, 525 U.S. at 90-91, 119 S. Ct. at 474 (stating that visitor for commercial purposes retains only a limited privacy interest because "[a]n expectation of privacy in commercial premises . . . is different from, and indeed less than, a similar expectation in an individual's home," and holding that defendants visiting another person's apartment for short time to package cocaine had no legitimate expectation of privacy in apartment); Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 1689-90 (1990) (stating that overnight guests have a legitimate expectation of privacy in another person's home); United States v. Sturgis, 238 F.3d 956, 958-59 (8th Cir. 2001) (holding that defendant who was merely visiting occupant of motel room for purpose of distributing controlled substances lacked reasonable expectation of privacy in room). Prior use of the area searched and the ability to exclude others from the area are also relevant factors. United States v. Lochan, 674 F.2d 960, 965 (1st Cir. 1982).
The privacy expectation associated with a person's home applies with "equal force" to a motel room during the rental period. United States v. Rambo, 789 F.2d 1289, 1296 (8th Cir. 1986). When evaluating a person's expectation of privacy in a motel room, courts consider whether the person paid for the room, whether he checked into the room and had a key, and whether he stayed in the room overnight or kept personal belongings there. See, e.g., State v. Larson, 760 F.2d 852, 855 (8th Cir. 1985) (holding that among factors to be considered when evaluating person's expectation of privacy in motel room are facts that occupier did not check into or pay for the room); State v. Reynolds, 578 N.W.2d 762, 765 (Minn.App. 1998) (stating that Fourth Amendment protection may be based on "a person's long-term connection to the premises, or his storing personal property on the premises").
Dehn lacked a possessory or property interest in the room and did not, therefore, have a legitimate expectation of privacy. Huinker rented and paid for the room, and there is no evidence that Dehn checked in, had a key to the room, kept personal belongings there, or had control over the room and the ability to exclude others. Additionally, Dehn's interest in the room was purely commercial; Huinker testified that he and Dehn spent 24 hours in the room making methamphetamine, and Dehn testified that he went to the room to buy methamphetamine for a friend. Dehn did not, therefore, have a reasonable expectation of privacy in the room sufficient to permit him to challenge the validity of the search.
II.
Dehn next argues that the district court erred by concluding that he was subject to a mandatory minimum sentence because of a prior conviction of fifth-degree controlled-substance crime. We disagree with Dehn's contention.
Minn. Stat. § 152.021, subd. 3(b) (2002), provides that a person who is convicted of a first-degree controlled-substance crime must serve a minimum prison term if the person has a prior conviction for a controlled-substance crime. A defendant convicted of a subsequent controlled-substance crime is not eligible for probation until he has served the full minimum sentence. Minn. Stat. § 152.026 (2002); State v. Bluhm, 676 N.W.2d 649, 653-54 (Minn. 2004) (ruling that a sentencing court lacks discretion to place a defendant convicted of a subsequent controlled-substance crime on probation).
Dehn concedes that he pleaded guilty to a controlled-substance offense before he committed the present offense. He also concedes that if his conviction of the present offense qualifies as a "subsequent controlled-substance conviction," he is subject to a mandatory minimum prison term. But because when he committed the present offense he had pleaded guilty to but had not been sentenced for the previous offense, Dehn argues that the present conviction is not a "subsequent conviction." According to Dehn, a guilty plea results in a conviction only after a sentence is imposed.
Under Minnesota law, however, a person is convicted of a crime when the district court accepts and records a plea of guilty. Minn. Stat. § 609.02, subd. 5 (2002). The district court "shall reject or accept the plea" when the plea is tendered and the defendant is questioned, unless circumstances warrant postponing acceptance or rejection of the plea until a presentence investigation is completed. Minn. R. Crim. P. 15.04, subd. 3(1). But absent evidence that the court postponed its acceptance or rejection, the plea is presumed to have been accepted when tendered, and the defendant is deemed to have been convicted, whether or not he is also sentenced at that time. See id.; Minn. Stat. § 609.02, subd. 5; In re Woollett, 540 N.W.2d 829, 830 (Minn. 1995) (concluding that defendant was convicted of a felony on date he pleaded guilty); State v. Hegg, 409 N.W.2d 287, 288-89 (Minn.App. 1987) (rejecting implicit claim that defendant was convicted on the date he was sentenced), review denied (Minn. Sept. 18, 1987). Because the record in this case contains no indication that the court postponed its acceptance of Dehn's plea until sentencing, the plea is presumed to have been accepted on January 31, 2003, when Dehn tendered his plea and was questioned. See Minn. R. Crim. P. 15.04, subd. 3(1) cmt.
Dehn relies on Minn. R. Crim. P. 27.03, subd. 7, for the proposition that a person is "convicted" only after sentence is imposed. Dehn emphasizes language in the rule that provides that the "sentence or stay of imposition of sentence is an adjudication of guilt." Minn. R. Crim. P. 27.03, subd. 7. That language makes it clear that a defendant who receives a stay of imposition at sentencing has been adjudicated guilty, but it does not define when a conviction occurs. The focus of the cited subdivision is on the "clerk's record of a judgment of conviction," which shall include the plea, the verdict or findings, and the adjudication and sentence. Id.; see also Minn. R. Crim. P. 28.02, subd. 2 (providing that judgment shall be considered final when there is judgment of conviction and sentence is imposed or imposition of sentence is stayed).
By statute, a conviction occurs when the court accepts and records a plea of guilty. See Minn. Stat. § 609.02, subd. 5. In this case, there is no evidence that the court deferred acceptance of Dehn's plea until sentencing. We therefore conclude that the plea was accepted when tendered and Dehn therefore had a prior conviction when he committed the present offense, even though he had not been sentenced for the previous offense.
Even if the district court erroneously concluded that Dehn was subject to a mandatory minimum sentence, the district court did not abuse its discretion by refusing to consider Dehn's motion for a dispositional departure.
A district court has broad discretion in sentencing criminal defendants. State v. Law, 620 N.W.2d 562, 564 (Minn.App. 2000), review denied (Minn. Dec. 20, 2000). But a district court "has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present." State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999); see Minn. Sent. Guidelines cmt. II.D.01. "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure." State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).
A person convicted of a first-degree controlled-substance crime may receive a downward dispositional departure if the person is amenable to probation and can show that he or she has been accepted into an approved treatment program. Minn. Stat. § 152.152 (2002); see State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990). Dehn argued that he was amenable to probation but failed to show that he had been accepted into a treatment program. Dehn did not, therefore, meet his burden of proving that he satisfied the criteria for a downward dispositional departure.
Because the record reflects that Dehn was not amenable to probation, even if Dehn had been accepted into a treatment program, a departure would not have been appropriate. This was Dehn's sixth felony offense. Dehn has been through inpatient treatment programs three times, failed to complete probation for a previous offense, and committed the present offense while he was out on bail for another drug-related offense. Accordingly, even without the prior conviction, a downward departure would not have been appropriate.
III.
Dehn also argues that his sentence violated his right to a jury trial under Blakely because it was based on a judicial finding that his criminal-history score included a custody-status point. But this court has ruled that whether a custody-status point exists is not a question that must be submitted to a jury. State v. Brooks, 690 N.W.2d 160, 163 (Minn.App. 2004), review granted (Minn. Mar. 15, 2005).
Dehn argues that because the supreme court granted review in Brooks, this court's decision in Brooks is not final. But until the supreme court reverses Brooks, our decision in Brooks controls the disposition of the custody-status point issue. See Stubbs N. Mem'l Med. Ctr., 448 N.W.2d 78, 83 (Minn.App. 1989) (stating that "[t]he function of this court is primarily decisional and error correcting, rather than legislative or doctrinal"), review denied (Minn. Jan. 12, 1990).
Because under current law Blakely does not require a jury to find the existence of a custody-status point, the district court did not violate Dehn's Sixth Amendment rights by finding that Dehn's criminal-history score included a custody-status point.
IV.
In his pro se reply brief, Dehn argues that because his attorney did not obtain his consent to the waiver or explain the significance of waiving an omnibus hearing, he did not waive his right to an omnibus hearing knowingly and intelligently. Dehn also argues that his attorney's unilateral decision to waive an omnibus hearing constituted ineffective assistance of counsel. Dehn's pro se arguments lack merit.
Involuntary Waiver
The right to an omnibus hearing is a procedural rather than a constitutional right. Procedural rights are implemented by motion and are not subject to the rigorous waiver standard applicable to fundamental rights. See Minn. R. Crim. P. 10.01 (providing that all trial defenses, objections, and requests determinable without trial shall be asserted by motion to dismiss or grant appropriate relief); id. 10.03 (providing that defendant waives defenses by failing to include them in pretrial motion); Wainwright v. Sykes, 433 U.S. 72, 86, 97 S. Ct. 2497, 2506 (1977) (stating that although "a defendant has a right . . . to object to the use of [his] confession and to have a fair hearing and a reliable determination on the issue of voluntariness[,] . . . the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession" (emphasis added) (quotation omitted)).
Competent counsel may waive constitutional and procedural rights for tactical reasons, provided that the decision to waive a particular right is within counsel's strategic control and the defendant personally agrees to the waiver or acquiesces in counsel's decision by failing to object. See Henry v. Mississippi, 379 U.S. 443, 450-51, 85 S. Ct. 564, 569 (1965) (holding that counsel's tactical decision to forego a contemporaneous objection bars direct review of claims waived by failure to object, even when the waiver is made without consulting defendant, unless the circumstances are exceptional); United States v. Lee, 374 F.3d 637, 650 (8th Cir. 2004) (stating that circumstances are exceptional when defendant neither personally waives right nor acquiesces in waiver); United States v. Plitman, 194 F.3d 59, 63-64 (2d Cir. 1999) (stating that counsel may stipulate to admission of hearsay and thereby waive defendant's confrontation right when decision to stipulate is tactical and there is no indication that defendant objected); United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980) (stating that counsel may waive defendant's right to confront and cross-examine witnesses as long as defendant does not object and counsel's decision can be said to be a legitimate trial tactic or part of a prudent trial strategy); cf. Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S. Ct. 1245, 1248-49 (1966) (holding that defendant's right to plead not guilty and have a trial could not be waived by counsel when defendant expressed in open court a desire not to plead guilty).
We conclude that counsel's decision to waive an omnibus hearing and instead have Dehn testify at trial was a legitimate tactical decision; counsel could reasonably have concluded that Dehn stood a better chance of persuading the jury that he had no connection with the room than of persuading the court that he had a legitimate expectation of privacy in the room. Counsel's decision may also have been necessary to prevent Dehn from perjuring himself. The record contains no evidence that Dehn personally agreed to counsel's decision, but it clearly shows that Dehn acquiesced in the decision by failing to object. Dehn is therefore bound by counsel's decision to waive an omnibus hearing unless the decision was within Dehn's control.
A decision is generally within the defendant's control if it involves fundamental rights. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983). A decision is within counsel's control, on the other hand, when it involves matters requiring the "superior ability of trained counsel" in assessing strategy. Id. at 751, 103 S. Ct. at 3313. Thus, decisions that are "personal and crucial to the accused's fate," including the decision to plead guilty or to waive a jury trial, the right to be present at trial, the assistance of counsel, the right to testify, and the right to an appeal, are within the defendant's control. Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1435 (3d Cir. 1996). By contrast, decisions related to the means used at trial to obtain a particular result, including the decision to bar the state's use of unconstitutionally obtained evidence, to obtain dismissal of an indictment, to strike an improper jury instruction, or to raise a particular nonfrivolous claim on appeal, are within counsel's tactical control. See Jones, 463 U.S. at 751, 103 S. Ct. at 3312; 3 Wayne R. LaFave et al., Criminal Procedure § 11.6(a), at 600 (2d ed. 1999).
The decision to waive an omnibus hearing — and thereby to forego an objection to the constitutionality of the search — required the ability of counsel in assessing strategy and was thus within counsel's exclusive control. So was the decision to forego a motion to suppress. See Wainwright, 433 U.S. at 93, 97 S. Ct. at 2509 (stating that "the decision to assert or not to assert constitutional rights or constitutionally based objections at trial is necessarily entrusted to the defendant's attorney"). Because Dehn acquiesced in the decision by failing to object, the decision is binding on him, even if counsel failed to obtain his consent.
Ineffective Assistance
An appellant claiming ineffective assistance of counsel has the burden of showing by a preponderance of the evidence that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel's errors the outcome of the proceedings would have been different. Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001). Attorneys meet the objective standard of reasonableness when they provide their clients with "the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances." State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). Appellate courts generally accord particular deference to counsel's decisions regarding trial tactics. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (stating that "[c]ounsel must, after all, have flexibility to represent a client to the fullest extent possible" and that "trial tactics should not be reviewed by an appellate court, which, unlike counsel, has the benefit of hindsight").
Counsel's decision to waive an omnibus hearing in this case was a tactical decision. As mentioned previously, Dehn could not have testified at the omnibus hearing that he had a legitimate expectation of privacy in the room — as he would have been required to do to challenge the search — and, at the same time, testify at trial — as he did — that he had no connection with the room. Counsel made a tactical decision to forego an omnibus hearing in favor of having Dehn testify at trial. Counsel had broad discretion to determine trial tactics, and this court will not on appeal second-guess counsel with the benefit of hindsight. Generally, when a decision rests with counsel, the lack of consultation with the defendant does not constitute ineffective assistance of counsel. Lewis v. Alexander, 11 F.3d 1349, 1353 (6th Cir. 1993) (concluding that tactical choice not to employ a particular defense without first informing defendant does not amount to constitutionally deficient performance).
Because Dehn has not met his burden of proving that counsel's performance fell below an objective standard of reasonableness, his ineffective-assistance claim fails.
Affirmed.