State v. Fellegy, No. A11–1097.

• Decision Date: 11 July 2012
• Docket Number: No. A11–1097.
• Citation: 819 N.W.2d 700
• Parties: STATE of Minnesota, Respondent, v. Stephen John FELLEGY, Appellant.
• Court: Minnesota Court of Appeals

819 N.W.2d 700

STATE of Minnesota, Respondent,

v.Stephen John FELLEGY, Appellant.

No. A11–1097.

Court of Appeals of Minnesota.

July 11, 2012.

Syllabus by the Court

The district court need not conduct an evidentiary hearing on a criminal defendant's pretrial motion to dismiss based on the defendant's claim under his right to equal protection that the charge arose from unconstitutional selective enforcement if the defendant has asserted facts that, even if proven, would not substantiate the claim. And a defendant's allegation that a different prosecutor in a different charging jurisdiction decided not to charge two individuals of a different race for the same offense that the defendant was charged with is not sufficient to substantiate an unconstitutional selective prosecution claim.

Lori Swanson, Attorney General, St. Paul, MN, and James P. Ratz, Aitkin County Attorney, Benjamin M. Smith, Assistant County Attorney, Aitkin, MN, for respondent.

Erick G. Kaardal, Mohrman & Kaardal, P.A., Minneapolis, MN, for appellant.

Considered and decided by WRIGHT, Presiding Judge; ROSS, Judge; and WILLIS, Judge.^*

OPINION

ROSS, Judge.

Stephen Fellegy caught a walleye out of season protesting what he views to be the state's unjust, favorable treatment of Ojibwe, the Native Americans whose treaty rights exempt them from prosecution for violating the state's fishing restrictions on Lake Mille Lacs. The state charged Fellegy, who is not Ojibwe, for his violation. Before trial, Fellegy challenged the charge as unconstitutional selective enforcement in violation of his constitutional right to equal protection under the law. The district court rejected Fellegy's challenge without holding an evidentiary hearing and found him guilty of illegal fishing. Fellegy appeals, arguing that he is entitled to an evidentiary hearing on his motion. We affirm the conviction because a district court need not conduct an evidentiary hearing to explore a pretrial claim of unconstitutional selective enforcement when the defendant has not asserted facts that, if proven, would substantiate the claim.

FACTS

Two days before the walleye fishing opener in May 2010, Stephen Fellegy caught a walleye on Lake Mille Lacs in Aitkin County. He kept the fish and announced his out-of-season catch in an internet website message read by Minnesota Department of Natural Resources conservation officers. The officers investigated. Fellegy told them that he had intentionally caught and kept the fish in protest over fishing rights. The Aitkin county attorney filed charges against Fellegy for taking the walleye out of season. SeeMinn.Stat. § 97C.395, subd. 1(a)(1) (2008).

Fellegy pleaded not guilty. The district court scheduled a court trial for November 2010. On the day set for trial, Fellegy appeared without counsel and explained his defense. He did not dispute that he took the walleye out of season. Instead, he defended based on a racially oriented equal protection theory, contending,

[The charge must be dismissed] based on the fact that during the same time frame in Minnesota and Wisconsin citizens harvested approximately 65 tons of walleyes from the same lake. In the end, solely based on skin color and ethnic origin this charge discriminates against me and should be dismissed; and if not dismissed, I should be found not guilty based on the protection of such discrimination.

He added, “[I]f other citizens harvested fish during the same time frame out of the same body of water ... I question how the lake could be considered closed.” The district court treated Fellegy's expression as a constitutional challenge arising from his right to equal protection and deemed it a pretrial motion to dismiss the charge. The district court directed the state and Fellegy to submit written memoranda on the motion before January 1, 2011.

On December 15, 2010, the state filed its brief on Fellegy's equal protection challenge. That same day, the district court judge presiding over the case recused himself and the matter was reset for a pretrial hearing to occur January 10. Fellegy sent a letter to the district court on December 23 explaining that he was retaining counsel and requesting that the pretrial hearing be rescheduled for a later date. He submitted no memorandum and made no request regarding the deadline.

The district court rescheduled the pretrial hearing for March 24, 2011. Fellegy, represented by counsel, filed a memorandum of law on March 21, 2011. Like his November 2010 oral argument, Fellegy's March 2011 written brief made a racially oriented equal protection challenge. But he based the challenge on different facts. Rather than claiming, as he had in November 2010, that he had been discriminated against because Native Americans can fish freely on Lake Mille Lacs in Aitkin County while he cannot, he claimed that he had been discriminated against because Native Americans had caught fish before the opener on Lake Bemidji in Beltrami County without being prosecuted. He attached a newspaper account of a single incident of apparently illegal fishing on Lake Bemidji and argued that although conservation officers in fact stopped two Native Americans from fishing in that instance, the Beltrami county attorney had not apparently charged the alleged offenders. Fellegy emphasized that this permissive treatment of the Native Americans by the Beltrami county attorney differed from how the Aitkin county attorney treated him.

A second judge presided over the March 24 hearing. The state inquired about the status of Fellegy's motion and reminded the court that the previous judge had ordered the parties to brief the equal protection issue. The district court stated that the file lacked any formal motion and that if a formal motion were filed it would be set for an evidentiary hearing. It then scheduled a conference and court trial for June 7, 2011. Fellegy did not formalize his motion or request an evidentiary hearing.

A third judge presided over the court trial on June 7. After meeting in chambers, the district court made a record of the procedural history. It declared that Fellegy had made two distinct motions and that by not briefing the equal protection argument that he made orally in November 2010 by the court's briefing deadline of January 1, 2011, he had waived the motion. It also denied the motion on the alternative ground that it failed as a matter of law under Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The district court treated Fellegy's March 2011 pleading as a different and new pretrial motion, and it denied it without reaching its merits, deeming it untimely. It then tried the case and found Fellegy guilty.

Fellegy appeals.

ISSUES

I. Did the district court abuse its discretion by deeming as waived the motion to dismiss that Fellegy raised orally on November 2010 or err by denying the motion on the merits?

II. Did the district court abuse its discretion by dismissing as untimely the motion that Fellegy raised in his March 2011 memorandum?

III. Did the district court abuse its discretion by failing to order an evidentiary hearing before denying Fellegy's motion to dismiss?

ANALYSIS

Fellegy challenges the district court's decision in several respects. He maintains that the district court erred by deeming as waived the motion that he raised orally on the originally scheduled trial date of November 2010, and he also contests the court's denial of that motion on the merits. He contends that the district court erred by denying as untimely the motion that he raised in his March 2011 memorandum. And he maintains that the district court was obligated to schedule an evidentiary hearing on that motion. We take up each argument in turn.

I

We are not persuaded by Fellegy's argument that the district court erroneously rejected his original, November 2010 motion.The district court first held that Fellegy waived the motion by failing to file a supporting memorandum before the January 1, 2011 deadline, and it also held that the November 2010 motion fails on the merits. The district court's holdings are unassailable.

We first address whether Fellegy forfeited his motion. We review the district court's decision for an abuse of discretion. C.f. State v. Hart, 723 N.W.2d 254, 259–60 (Minn.2006) (recognizing district court's authority to ensure that the court calendar runs on time and noting that “the district court has considerable discretion in scheduling matters and in furthering what it has identified as the interest of judicial administration and economy” (quotation omitted)). “Defenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available.” Minn. R.Crim. P. 10.01, subd. 2. Unless made during a trial or hearing, motions in a misdemeanor case must be made in writing and served with supporting affidavits on opposing counsel at least three days before the hearing and no more than 30 days after arraignment unless the court for good cause permits the motion to be made or served at a later time. Minn. R.Crim. P. 10.03, subd. 1, Minn. R.Crim. P. 32. Although Fellegy was unrepresented at the time of his motion, pro se litigants are generally held to the same standards as attorneys and must comply with all rules of procedure. See State v. Seifert, 423 N.W.2d 368, 372(Minn.1988).

Construing Fellegy's November 2010 assertions carefully, we conclude that he moved the district court to dismiss the charges because he had been the subject of a particular type of prosecutorial discrimination. He asserted that he had been the target of unconstitutional selective enforcement of the fishing laws based on his race specifically because, “during the same time frame” in which he took the walleye from Lake Mille Lacs, others, ...