State v. Dennison, A19-1745
| Decision Date | 31 August 2020 |
| Docket Number | A19-1745 |
| Parties | State of Minnesota, Respondent, v. Joshua James Dennison, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirm in part, reverse in part, and remand
Hennepin County District Court
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and Cochran, Judge.
UNPUBLISHED OPINION
Following a bench trial, appellant was convicted of first-degree burglary (assault), first-degree burglary (occupied dwelling), and domestic assault. The warrant of commitment reflects that sentences were imposed for all three convictions.
On appeal, appellant argues that his convictions must be reversed because his jury-trial waiver was invalid. Alternatively, he argues that one of his first-degree burglary convictions and the associated sentence must be vacated because Minn. Stat. § 609.04 (2018) bars multiple convictions under the same statute where the convictions arose from the same behavioral incident. Finally, he contends that his remaining sentences are unlawful. Because Dennison's jury-trial waiver was valid, we affirm in part. But because the district court erred when it convicted Dennison of two counts of first-degree burglary based on the same conduct and erred in sentencing, we reverse in part and remand.
On January 21, 2019, appellant Joshua James Dennison broke into his ex-girlfriend's apartment while she was asleep. His ex-girlfriend (the victim) woke up and found Dennison in bed with her. The victim told Dennison to leave or she would call the police. When the victim attempted to use her phone, Dennison hit her with his clothes. The victim fled to a neighbor's apartment, and the neighbor called the police.
The state charged Dennison with one count of first-degree burglary (assault) under Minn. Stat. § 609.582, subd. 1(c) (2018), one count of first-degree burglary (occupieddwelling) under Minn. Stat. § 609.582, subd. 1(a) (2018), and one count of felony domestic assault under Minn. Stat. § 609.2242, subd. 4 (2018).
At a pretrial omnibus hearing on March 19, 2019, Dennison appeared with a public defender. At the hearing, Dennison requested to discharge his public defender, submitted a petition to proceed pro se, and indicated that he wanted a bench trial. Dennison's public defender explained to the court that another attorney from the public defender's office had met with Dennison approximately a week before the hearing and "had a lengthy discussion with him about the pros and cons of representing [himself]." The public defender's colleague also reviewed with Dennison a petition to proceed pro se.
During the hearing, the public defender went over the petition with Dennison on the record. During the colloquy with the public defender, Dennison stated that he had been taking medication but had stopped taking it after being taken into custody. The public defender then asked Dennison if he was of a clear mind. Dennison stated that he was not sure and requested the court give him street drugs to clear his mind. After the court indicated that was not possible, the public defender proceeded with his questioning. The public defender asked Dennison if he remembered talking with his colleague about the petition to proceed pro se, and Dennison responded that he did. Dennison also recalled the public defender and his colleagues telling him that he would be better off having a lawyer.
The public defender also asked Dennison if he understood that he would be held to the same rules and standards as an attorney. Dennison confirmed that he understood and that he had "been trying to read up" on the law. The public defender informed Dennison that he could make motions and present his own evidence, and that he had a right to apre-trial hearing. The public defender also informed Dennison of his right to a trial by a jury or a judge, and noted that was a decision that Dennison would need to make. At the end of the questioning, the public defender asked Dennison if he was of "clear enough mind" to make the decision to waive his right to counsel and Dennison responded that he was. The district court ultimately granted Dennison's request to proceed pro se.
Before the public defender was dismissed, Dennison asked the court if a bench trial would be faster than a jury trial. The public defender told Dennison that he would advise against a bench trial. After Dennison asked why the public defender recommend he not proceed with a bench trial, the district court explained that with a bench trial, only one person determines guilt whereas with a jury trial, "twelve people who don't know you . . . get together and they go through whatever evidence is presented and they deliberate in the back room and they come up with whether or not you're guilty or not guilty." Dennison stated that he would "be more comfortable with one person judging [him] instead of these twelve people that don't know the law." The district court informed Dennison that it would instruct the jurors on the law, and suggested that a jury trial was his "best bet."
After a short recess, the district court denied Dennison's request to waive a jury trial. The district court explained that it did not believe that Dennison's jury-trial waiver was "intelligently entered into" or in his "best interest." Dennison objected to the district court's decision and asserted that he had a right to waive a jury trial. Dennison reiterated his request for a bench trial several more times before the hearing ended. But the districtcourt maintained its decision to deny Dennison's request to waive a jury trial. The district court set a trial date and explained the jury selection process to Dennison.
Two months later, on May 20, 2019, before the same district court judge, Dennison repeated his request for a bench trial. This time the district court agreed to allow Dennison to proceed with a bench trial. The trial started the next day. Before the trial started, the court asked Dennison if it was still his desire to waive a jury trial, and Dennison responded, "Yes." The bench trial proceeded. After the bench trial, the district court found Dennison guilty of all counts.
At sentencing, the district court imposed a sentence on only one of the first-degree burglary charges. The district court based its sentence on a criminal-history score of three. A sentencing worksheet in the record shows that Dennison's criminal-history score was calculated based on points assigned for each of Dennison's prior convictions for which a felony sentence was imposed and included a 2016 fifth-degree controlled-substance-possession conviction that carried a 0.5 criminal-history point. Dennison did not object to his criminal-history-score calculation at sentencing. Dennison requested a downward dispositional departure to a stayed sentence. The district court denied his request and instead sentenced Dennison to 78 months' imprisonment. Even though the district court only pronounced a sentence on one of the first-degree burglary counts, the warrant of commitment shows 78-month sentences for all three counts.
Dennison appeals.
Dennison argues that (1) his jury-trial waiver was invalid, (2) the district court erred by convicting him of two counts of first-degree burglary that arose from the same behavioral incident, (3) the district court erred when it sentenced him to an upward departure on the domestic assault charge, and (4) the state failed to meet its burden of proving that the 2016 fifth-degree controlled-substance-possession conviction was properly included in his criminal-history score. We address each argument in turn.
Dennison argues that his jury-trial waiver was not knowing, intelligent, and voluntary because the district court failed to ensure that he understood "the basic elements of a jury trial" when he renewed his request for a bench trial two months after the district court denied his original request. We are not persuaded.
A criminal defendant has the constitutional right to a jury trial when charged with an offense punishable by incarceration. State v. Kuhlman, 806 N.W.2d 844, 848 (Minn. 2011). But a criminal defendant may waive the constitutional right to a jury trial. Id. Minnesota Rule of Criminal Procedure 26.01, subdivision 1(2)(a) sets forth four requirements for waiving one's right to a jury trial: (1) the waiver must be personal, (2) the waiver must be written or on the record in open court, (3) the court must advise the defendant "of the right to trial by jury," and (4) the defendant must have had an opportunity to consult with counsel. Strict compliance with rule 26.01, subdivision 1(2)(a) is required for a valid waiver. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).
In addition to the requirements set forth by the rule, a defendant's waiver of the right to a jury trial must be knowing, intelligent, and voluntary. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970); see also State v. Little, 851 N.W.2d 878, 882 (Minn. 2014) (). To ensure a waiver is "knowingly and voluntarily made," the district court should engage in an on-the-record colloquy focusing on "the basic elements of a jury trial." State v. Ross, 472 N.W.2d 651, 654 (Minn. 1991).1 "The nature and extent of the inquiry may vary with the circumstances of a particular case." Id. A defendant's familiarity with the judicial system, such as through past convictions, and the extent of the defendant's opportunity to...
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