Opinion
No. C9-01-769.
Filed February 19, 2002.
Appeal from the District Court, Hennepin County, File No. 00042805.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant Hennepin County Attorney, (for respondent)
John Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, (for appellant)
Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant was charged with felon in possession of a firearm, a violation of Minn. Stat. § 624.713, subd. 1(b) (1998) and entered a guilty plea contingent upon the district court ordering a downward sentencing departure. The district court refused to depart from the presumptive sentence, and appellant withdrew his guilty plea. A jury trial was held and the district court engaged in a lengthy colloquy with appellant regarding his right to testify. Appellant did not testify, and the jury found him guilty. Appellant then moved for a downward dispositional departure. The district court denied appellant's motion. Appellant now challenges the district court's colloquy and the refusal to dispositionally depart from the presumptive sentence. Because we find no error or abuse of discretion in the district court's actions, we affirm.
FACTS
On May 2, 2000, two Minneapolis police officers were performing surveillance in North Minneapolis from an apartment located at 1900 Upton Avenue. The officers saw appellant Cleo James Riddley leave a house located at 1911 Thomas Avenue North. Because the officers were in different rooms in the apartment building when they conducted the surveillance, appellant was subject to continuous observation. The officers observed appellant walk over to a dumpster and, after looking up and down the alley, retrieve a cased rifle from the dumpster. At some point, appellant placed the cased rifle in the trunk of his mother's vehicle.
The officers left the apartment and confronted appellant, ordering appellant to drop to the ground. He did not immediately comply. The officers then observed appellant throw something to his mother who was standing nearby. The officers looked around the area, including in the dumpster, but did not find the cased rifle.
The officers asked appellant's mother to consent to a search of the trunk of her car and she gave her consent to the search. When the officers opened the trunk, they found an unloaded, cased rifle. One of the officers recognized the rifle case as the one appellant retrieved from the dumpster.
A Minneapolis police sergeant interviewed appellant after he was arrested, and appellant admitted possessing the rifle. Appellant stated that while the rifle had been in his possession for nearly a week, he had decided to get rid of it. He then hid the rifle in a dumpster. Later, appellant was told by "Scars," the alleged owner of the rifle, that he would have to pay Scars $200 if he lost the rifle. Appellant stated that was why he went to the dumpster, retrieved the rifle, and put it in his mother's car's trunk.
Appellant pleaded guilty to the felon-in-possession charge on the condition that he could withdraw his plea if the district court did not depart dispositionally from the presumptive sentence. The district court decided not to depart, so appellant withdrew his guilty plea and proceeded to a jury trial.
After the state rested, the district court, outside the presence of the jury, advised appellant that he had the option to testify or not to testify. The district court explained that there were advantages and disadvantages to each choice, and that appellant should consult with his counsel. The district court also made it clear that it was appellant's decision whether or not to testify. Appellant chose not to testify. The jury returned a guilty verdict.
At sentencing, appellant requested that the district court dispositionally depart from the 60-month presumptive sentence. The district court refused to depart dispositionally and sentenced appellant to an executed 60-month prison term. This appeal followed.
DECISION I.
Appellant challenges the district court's lengthy colloquy, addressed directly to appellant, regarding appellant's right to testify. Absent contrary evidence in the record, we must presume appellant's choice not to testify was made voluntarily and intelligently. State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980).
Appellant argues that he would have testified if the "trial court had not intervened," and that he "had nothing to lose by testifying." Appellant cites authority from foreign jurisdictions to support his argument that the district court erred by performing the colloquy. See United States v. Pennycooke, 65 F.3d 9, 12 (3d Cir. 1995) (holding "that usually a court need not advise a defendant either directly or through a colloquy with counsel of his or her right to testify").
But in Pennycooke, the defendant challenged his conviction on the grounds that the district court did not obtain an on-the-record waiver of his right to testify. Id. at 10. The Pennycooke court found that an on-the-record colloquy is not required because it may be awkward and may cause the defendant to believe that the court feels the defense is insufficient. Id. at 11. Furthermore, the court found that an on-the-record waiver of the right to testify may be appropriate, but only when there is some indication to the court that defendant's right to testify may be wrongly suppressed if the court does not inquire. Id. at 12-13.
Pennycooke is distinguishable from this case. First, the district court here did converse with appellant about his right to testify or not to testify. Second, the district court did not actually obtain a waiver, but only asked if appellant understood his right. We do not find that this colloquy interfered in any way with appellant's right to testify and, therefore, Pennycooke simply does not apply.
We also recognize that our supreme court has expressly rejected a requirement that district courts perform an on-the-record colloquy with every defendant who does not take the stand in his own defense. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). But the supreme court has also acknowledged that placing a waiver of the right to testify on the record may save the court and defense counsel time in postconviction proceedings. Id. at 751-52. Therefore, the supreme court has explicitly approved on-the-record waivers of a defendant's right to testify. An on-the-record waiver need not be the end result of a colloquy with the court, and there is no authority holding such a process to be reversible error. Consequently, the district court did not err.
II.
Next, appellant argues that the district court abused its discretion when it declined to depart dispositionally from the presumptive 60-month executed sentence. Only in a "rare" case will we reverse a district court's imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Furthermore, as the supreme court has indicated, the Guidelines state that when substantial and compelling circumstances are present, the judge "may" depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.
Id.
Here, the jury found appellant guilty of felon in possession of a firearm. The mandatory minimum sentence is a 60-month, executed sentence, which was imposed here. See Minn. Stat. § 609.11, subd. 5(b) (2000). Absent a showing of an abuse of discretion by the district court, we must sustain the sentence. See State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).
Appellant argues that his past criminal history supports a sentencing departure and, consequently, the district court abused its discretion. We disagree. The record shows appellant's criminal history was sufficient to warrant imposition of the mandatory minimum sentence.
A review of the record shows that this case lacks the "substantial and compelling circumstances" necessary to find grounds for a departure from the presumptive sentence. Minn. Sent. Guidelines II.D. Appellant presents nothing that suggests the district court abused its discretion. Therefore, we conclude that the district court did not abuse its discretion when it denied appellant's motion for a downward dispositional departure.