Opinion
No. C5-95-1648.
Filed June 11, 1996.
Appeal from the District Court, Houston County, File No. K293470.
Hubert H. Humphrey III, Attorney General, Alison E. Colton, Assistant Attorney General, (for Respondent).
James A. Fabian, Houston County Attorney, (for Respondent).
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, (for Appellant).
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Daniel Carl Link appeals his convictions for second-degree possession of a controlled substance, selling alcoholic beverages without a license, and furnishing alcoholic beverages to a minor, arguing that (1) he did not waive a jury trial personally in writing or orally on the record, (2) the trial court erred by failing to make findings of fact to support its general finding of guilty, and (3) the trial court abused its discretion by refusing to depart from the sentencing guidelines. We affirm.
FACTS
After receiving a tip about a party with possible illegal activity in October 1993, a Houston County deputy sheriff arranged for an officer and a 17-year-old minor to attend the party undercover. At the party, the officer asked Link how much a beer was, and Link told him $5. They each gave gave Link a marked $5 bill in exchange for a plastic glass. The minor testified that Link did not ask his age, although Link claims that he asked and the minor replied that he was "of age."
The officer told Link he "was looking for a really good time." Link sold him a brownie containing marijuana for $5. The officer told Link he was also looking for a "trip." A few minutes later, Link approached the officer with his fingers pinched together and said "open up." The officer declined, and Link put whatever he had into his own mouth. Link was arrested and a search of his pockets revealed a bag of money, including the marked $5 bills, and 117.5 units of LSD.
Link was charged with second-degree possession of a controlled substance, selling alcoholic beverages without a license, and furnishing an alcoholic beverage to a minor, in violation of Minn. Stat. § 152.022, subds.2(3), 3(a) (1992), Minn. Stat. §§ 340A.401, 340A.702(1) (1992), and Minn. Stat. §§ 340A.503, subd. 2(1), 340A.702(8) (1992). Link pleaded not guilty and initially requested a jury trial. Because a letter from his attorney stated that Link waived his right to a jury trial, a court trial was held. Link was found guilty of all counts. At sentencing, the court refused Link's request for a downward dispositional departure from the presumptive sentence of 48 months. In an affidavit filed with the court in support of his motion to stay imposition of the sentence pendiing appeal, Link stated that he "waived [his] right to a jury trial."
DECISION
1. Link argues that his convictions must be reversed and the case remanded for a new trial because the trial court did not ask him about his decision to waive his right to a jury trial. The waiver of a jury trial must be knowing, intelligent, and voluntary. State v. Ross , 472 N.W.2d 651, 653 (Minn. 1991). Whether waiver of a jury trial is intelligently made depends "upon the unique circumstances of each case." Adams v. United States ex rel. McCann , 317 U.S. 269, 278, 63 S.Ct. 236, 241 (1942).
Under the Minnesota Rules:
The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.
Minn.R.Crim.P. 26.01, subd. 1(2)(a). Strict compliance with rule 26.01 is required to assure that a waiver is intelligently and voluntarily made. State v. Sandmoen , 390 N.W.2d 419, 423 (Minn.App. 1986). The Sandmoen court stated:
The rule has a clear meaning — to guarantee the right of jury trial unless the record shows a clear waiver by the defendant himself either orally or in writing.
Id. at 424.
The record here contains written evidence that Link waived his right to a jury trial. Link himself stated in an affidavit "[t]hat on the advice of my trial counsel, * * * [I] waived my right to a jury trial." Although this affidavit was filed after the trial, when considered in conjunction with the following circumstances of this case, it indicates a knowing, intelligent, and voluntary waiver. See State v. Pietraszewski , 283 N.W.2d 887, 890 (Minn. 1979) (although trial court should have more thoroughly questioned defendant following his jury trial waiver in open court, there was "sufficient evidence in the entire record" to determine that waiver was voluntarily and intelligently made). First, his attorney stated in a posttrial affidavit that he and Link discussed the jury trial issue "at some great length" and the "decision to waive the jury was made by the Defendant, and I supported him in this decision." Second, Link did nothing during the court trial to indicate that he had not agreed to it. Third, his attorney sent a letter to the court administrator saying that Link "wants to waive the jury * * *."
2. Link argues that the trial court erred by failing to make specific findings of fact to support its general finding of guilty. The rules provide that in a case tried without a jury, within seven days of a general finding of guilty or not guilty, the court shall "specifically find the essential facts in writing on the record." Minn.R.Crim.P. 26.01, subd. 2. But the rule further states that
[i]f the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.Id. While written findings would help us in our review, we conclude that in a case with overwhelming evidence such as this, specific findings to support Link's convictions may be inferred from the general finding of guilty. See State v. Totimeh , 433 N.W.2d 921, 924 (Minn.App. 1988) (finding on specific element of crime can be assumed from general finding), review denied (Minn. Feb. 22, 1989).
3. A sentencing court should use the presumptive sentence unless there are "substantial and compelling circumstances" justifying departure. Minn. Sent. Guidelines I.4; State v. Garcia , 302 N.W.2d 643, 647 (Minn. 1981). Sentencing matters rest within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. Garcia , 302 N.W.2d at 647. Only in rare cases will this court overturn a trial court's refusal to depart from the guidelines. State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981).
Link argues that the trial court abused its discretion by refusing to depart dispositionally from the sentencing guidelines because the record shows that he is particularly amenable to treatment. We disagree.
There is in the record sufficient evidence that Link is not amenable to treatment. As the trial court stated in its order denying Link's motion to stay imposition of the sentence, Link
has a history of avoiding justice; as evidenced by his failure to make himself available for probation supervision in 1991 in Allamakee County, Iowa.
When the State of Iowa attempted to transfer Link's probation supervision to Minnesota, it was not accepted because Link regularly missed appointments. Furthermore, even if Link was found to be amenable to treatment, the trial court was not required to stay execution of a presumptively executed sentence. See State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982) (while finding of amenability to treatment justifies dispositional departure, it does not mandate it). The trial court did not abuse its discretion.