State v. Cheng, C5-00-1004.

• Decision Date: 22 March 2001
• Docket Number: No. C5-00-1004.,C5-00-1004.
• Citation: State v. Cheng, 623 N.W.2d 252 (Minn. 2001)
• Parties: STATE of Minnesota, Respondent, v. Mong Danny CHENG, Petitioner, Appellant.
• Court: Minnesota Supreme Court

623 N.W.2d 252

STATE of Minnesota, Respondent, v. Mong Danny CHENG, Petitioner, Appellant.

No. C5-00-1004.

Supreme Court of Minnesota.

March 22, 2001.

Rehearing Denied April 19, 2001.

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.

Mike Hatch, Attorney General, Susan Gaeetner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAUL H. ANDERSON, Justice.

The Ramsey County Attorney charged appellant, Mong Danny Cheng, with four counts of second-degree murder in connection with a July 1999 drive-by shooting in Saint Paul. Following a probable cause hearing, a Ramsey County District Court judge was assigned to handle Cheng's trial and all further proceedings in the case. After failed plea negotiations, Cheng appeared in court and attempted to plead guilty to second-degree murder, which the court concluded he could do. Rather than allowing Cheng to plead guilty, the county attorney dismissed the charges and Cheng was released.

A month later, a Ramsey County grand jury indicted Cheng for first-degree murder, together with five other lesser counts arising out of the July 1999 shooting. The case was then reassigned to the same judge. The county attorney filed a notice to remove this judge under Minn. R.Crim. P. 26.03, subd. 13(4)¹, but the judge ruled that the notice to remove her was not timely filed because she already had ruled on substantive issues. The county attorney then petitioned the Minnesota Court of Appeals for a writ of prohibition prohibiting the assigned judge from hearing the case and a writ of mandamus requiring the Chief Judge of the Ramsey County District Court to reassign the case. The court of appeals issued a writ of prohibition as requested. We reverse, vacate the writ of prohibition, and remand.

Shortly after midnight on July 22, 1999, Peter Xiong and a group of other persons were sitting outside a Saint Paul residence. A minivan slowly approached the group and eight to ten shots were fired at the group from inside the minivan. The minivan then sped off. Peter Xiong was killed by a gunshot to the chest and four other persons were taken to the hospital with injuries from the gunfire. A confidential informant notified the Minnesota Gang Strike Force that appellant Mong Danny Cheng was one of the individuals involved in the shooting. After further investigation, Cheng was charged with four counts of second-degree murder in connection with Xiong's death.² Cheng was arraigned on December 1, 1999, before Ramsey County District Court Judge Louise Dovre Bjorkman and on December 28 Cheng entered a not guilty plea at a probable cause hearing presided over by Judge Dale B. Lindman.

On January 6, 2000, Judge Judith M. Tilsen was assigned to handle all further proceedings involving the charges against Cheng, including trial. Neither party filed a notice to remove Judge Tilsen upon receiving notification of her assignment to the case. On March 9, 2000, a dispositional conference was held before Judge Tilsen. At this hearing, only scheduling matters were dealt with on the record; however, the parties acknowledge that other matters were discussed. In particular, Cheng claims that at this hearing the state gave notice of an intent to proceed to the grand jury to obtain a first-degree murder indictment. The next day, the state contacted Cheng's counsel and discussed a plea agreement in which Cheng would plead guilty to one count of second-degree murder and receive a sentence at the low end of the guidelines range. The state also indicated that Cheng's counsel would be free to discuss a sentence departure with the judge. After receipt of this offer, Cheng's attorney expressed an intent to accept the plea agreement. On March 22, an assistant county attorney and Cheng's attorney met with Judge Tilsen in her chambers to discuss resolution of the case. Cheng asserts that at this meeting the state restated its earlier offer to permit him to plead guilty to the most serious count on the complaint. He also asserts that the state agreed to recommend a sentence of 331 months, but that Cheng's counsel could request a downward departure. No record was made of this conference.

On March 30, Cheng appeared at a hearing before Judge Tilsen, but the state was not present so the question of the plea was continued. Later that same day, the state informed Cheng's counsel that it would counter any request by Cheng for a downward departure in sentencing by asking for an upward departure, but that it might still agree to a guidelines sentence. Five days later, the state informed Cheng's counsel that it would no longer accept a guilty plea to second-degree murder and instead intended to seek a first-degree murder indictment from the grand jury.³

The next day, April 5, Cheng appeared before Judge Tilsen and indicated that he was prepared to "plead guilty to the top count of the complaint, murder in the second degree, crime benefiting a gang, and that he would receive a guideline sentence for the low end of the box of 331 months." An assistant county attorney was present and indicated that the state was not prepared to accept a plea on any count. After first indicating that there had been extensive discussions off the record, Judge Tilsen ruled that under Minn. R.Crim. P. 8.01, Cheng "can plead to the charges, straight plea, at any time." Judge Tilsen asked Cheng's attorney if it was Cheng's intention to plead to the charges and she indicated that it was. However, before Cheng could enter a guilty plea, the state dismissed the charges against him and the court ordered him to be released. Judge Tilsen then gave a narrative explaining why, but for the dismissal, she would have permitted Cheng to plead guilty to second-degree murder. Judge Tilsen explained that because the charge against Cheng was for a homicide, Rule 8.01 requires that the state notify the court of its intent to proceed to the grand jury and that the state must proceed to the grand jury within 14 days of Cheng's appearance under Rule 8. Judge Tilsen went on to explain that the state had negotiated in bad faith with Cheng. On appeal, the state asserts that at this hearing Judge Tilsen refused to grant a continuance so that the state could take the case to a grand jury. However, the state did not make such a request on the record, nor did the state appeal from any such ruling.

On May 3, 2000, Cheng was indicted on six counts arising out of the July 22, 1999 shooting: one count of first-degree murder during a drive-by shooting in violation of Minn.Stat. §§ 609.185, subd. 3 (2000), 609.11, and 609.05; one count of second-degree murder—crime committed for the benefit of a gang—in violation of Minn. Stat. §§ 609.229, 609.11, and 609.05; and four counts of attempted first-degree murder during a drive-by shooting in violation of Minn.Stat. §§ 609.185, subd. 3, 609.17 (2000), 609.11, and 609.05. On May 3, 2000, the case was assigned to Judge Tilsen to handle all further proceedings.

On May 9, 2000, the state filed a notice to remove Judge Tilsen under Minn. R.Crim. P. 26.03, subd. 13(4). The notice to remove was referred to Judge Tilsen for a determination of whether it was timely filed. The judge set the matter for a hearing and requested briefing. Both sides submitted briefs to the court and at a hearing on May 24 were permitted to present oral arguments. At the hearing, Judge Tilsen specifically addressed the state's assertion that she had called the clerk's office and requested that Cheng's new file be assigned to her calendar. Judge Tilsen explained that she had not requested that the case be assigned to her after the indictment issued. She stated that she had contacted the Chief Judge of the Ramsey County District Court prior to the grand jury being convened and asked what would happen if an indictment issued. Judge Tilsen stated that the chief judge informed her that the case would continue to be assigned to her. Judge Tilsen then restated the explanation provided by the chief judge that "when a case is filed by Complaint, an order [is issued] assigning a particular murder case to a particular judge. After indictment is issued, there is no new order. * * * It is assumed to be the same case, assigned to the same judge."

Following this explanation, Judge Tilsen ruled that the notice to remove was not timely filed because she had ruled on substantive issues in the case. Judge Tilsen explained that there had been discussions about "the facts of the case, the possible admission of evidence, the possible negotiations, the possible number of months." Judge Tilsen reiterated her earlier finding that the state had negotiated in bad faith. She also expressed concern about her perception of a pattern in the county attorney's office of not negotiating in good faith, but then clarified that this pattern was not the basis for her decision. Finally, she stated that the obvious reason for the state's notice of removal was its desire to avoid her earlier substantive rulings on the case. She stated, "I don't think it's a huge jump to say that it is because of this Court's posture and involvement with the case charged by Complaint that the State has now filed a Notice of Removal. So, the issue of whether or not I have ruled on substantive issues is settled. I have."

Following Judge Tilsen's ruling that the notice to remove was not timely filed, the state contacted the district's chief judge by letter to request that he appoint another judge to hear the case. In the letter, the state apprised the chief judge that he had a duty to assign a judge other than Judge Tilsen, that no kind of hearing was permitted on this matter, and that his duty was mandatory, not discretionary. The chief judge denied the state's request, concluding that had...