State v. Ford, No. A04-622 (MN 6/7/2005)
| Decision Date | 07 June 2005 |
| Docket Number | No. A04-622.,A04-622. |
| Parties | State of Minnesota, Respondent, v. Dwight David Ford, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Scott County, File No. KX0110365.
Mike Hatch, Attorney General, and
Pat Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, (for appellant).
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
UNPUBLISHED OPINION
On appeal from conviction of first-degree criminal sexual conduct, appellant argues that (1) his right to a speedy disposition under the Interstate Agreement on Detainers (IAD) was violated; (2) the prosecutor's misconduct in obtaining a judge's removal distorted the adversarial process and requires reversal; (3) the victim's accounts of the incident were too inconsistent to support the conviction; and (4) in the alternative, that a remand is required for a postconviction hearing on appellant's claim of ineffective assistance of counsel. Because we conclude that appellant waived timelines under the IAD, any misconduct on the part of the prosecutor was harmless error, the evidence was sufficient to support appellant's conviction, and appellant has failed to establish the need for a hearing on his claim of ineffective assistance of counsel, we affirm.
Appellant Dwight Ford was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i); subd. 2(a) & (b) (2000) (), and one count of criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(c); subd. 2 (2000) () in connection with an incident that occurred at the home of the victim, A.T., in May 2001. Appellant was in federal prison for a conviction of felon in possession of a firearm when he learned of the charges. Appellant's request for final disposition of the state charges was filed on November 6, 2002. Appellant's first appearance was on December 13, 2002, but trial did not occur until August 14, 2003.
Appellant, through counsel, requested some, caused some, and agreed to all of the several continuances of the pretrial hearings and trial dates that occurred in this case. On June 25, 2003, one of the trial dates agreed on by the parties, the retired judge who was assigned to the case discussed the case with counsel in chambers and indicated how he would rule on some of the issues. Based on appellant's understanding of that discussion, appellant waived his right to a jury trial. Respondent moved for a continuance due to appellant's last minute revelation of information about witnesses and his intent to assert the defense of fabrication. On June 27, the Scott County Attorney, in an ex parte discussion, asked the trial judge to recuse himself, and on June 30, the county attorney wrote a letter to the court administrator, copying the trial judge and appellant's attorney, indicating that the trial judge had informed the county attorney that he was voluntarily recusing himself.1
A different judge presided at a June 30 hearing on the state's motion for a continuance. Defense counsel requested that this judge take the case and reasserted appellant's right to a jury trial, based on the change in judges. This judge explained that due to his schedule, the earliest trial date would be August 12 if he took the case. Defense counsel and appellant had a discussion off the record. On the record, with appellant present, defense counsel stated:
COUNSEL: Judge, I have spoken to [appellant] about the situation. I have also spoken to him about his right to have a speedy decision. At this point he would agree that [sic] August 12th date with Your Honor.
COUNSEL: And we would waive any timelines.
Based on this discussion, trial was set for August 12. Defense counsel then asked the judge to adopt the rulings on pretrial motions that the recused judge had indicated he would be making. The judge declined to do so and, after hearing arguments on the motions, denied the state's motion to admit appellant's prior convictions as Spreigl evidence, but allowed two prior convictions to be used for impeachment. Two days before trial, on the record and after appropriate inquiry from the district court, appellant again waived his right to a jury trial.
At the bench trial, A.T. described how appellant came to her townhome intoxicated, asked to use her telephone, and then forced her to have sexual contact, hitting her three times and penetrating her with his finger and penis. The first police officer on the scene, the registered nurse who examined A.T. at the hospital, and a detective who interviewed A.T. testified about what A.T. had told them. There were some inconsistencies between A.T.'s testimony and the information A.T. gave to these witnesses, one being that A.T. told the first officer on the scene that appellant hit her once after the sexual contact.
Appellant testified that A.T. had left a message asking him to come to her home because she had money to give him for some marijuana he had previously left there. He testified that A.T. was waiting for him and after they had talked and smoked a "blunt," she asked him to make love to her and they had consensual sex. He denied digitally penetrating A.T. Appellant testified that A.T. became angry when he refused to spend the rest of the night, and that he struck her once after she spat in his face. A defense witness corroborated appellant's claim that A.T. left a voicemail message for appellant and testified that appellant was sober when he borrowed her car to go to A.T.'s home. The district court granted a three-day continuance in anticipation that a defense witness who was in Louisiana would return to testify. But the witness failed to return to Minnesota, so the trial was concluded without his testimony.
The district court, acknowledging that the case turned entirely on the credibility of the witnesses and the reasonableness of their testimony, found that appellant intentionally sexually penetrated A.T. by force without her consent, causing personal injury. The court found appellant guilty of both counts of criminal sexual misconduct and ordered a pre-sentence investigation.
Defense counsel's motions for acquittal or a new trial, based on allegations of insufficient evidence, prosecutorial misconduct, and ineffective assistance of counsel, were held to be untimely. Appellant was sentenced and this appeal followed.
Because appellant's claim that he was denied a speedy disposition under the IAD is raised for the first time on appeal, we analyze the issue for plain error. Minn. R. Crim. P. 31.02 (). "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights." State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). "If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (quotation omitted).
"The [IAD] is a compact among 48 states, the United States, and the District of Columbia to establish procedures for resolving one state's outstanding criminal charges against a prisoner of another state." State v. Wells, 638 N.W.2d 456, 459 (Minn. App. 2002), review denied (Minn. Mar. 19, 2002). Federal law governs the construction and application of the compact. Id. In Minnesota, the IAD is codified in Minn. Stat. § 629.294, subd. 1 (2004), and requires that when a prisoner in another state requests final disposition of out-of-state charges for which a detainer has been lodged against him, the prisoner shall be brought to trial on the out-of-state charges within 180 days after the prisoner has given appropriate notice of his request for final disposition. Minn. Stat. § 629.294, subd. 1, Art. III(a). If a defendant is not brought to trial within the 180-day limit, the complaint is dismissed with prejudice. Id. at subd. 1, Art. V(c). "State" as used in the IAD includes the United States. Id. at subd. 1, Art. II (a).
It is undisputed that the IAD applies to appellant, who was serving a sentence in federal prison for a felon-in-possession-of-a-firearm conviction at the time he requested final disposition of the criminal sexual conduct charges pending in Minnesota, and appellant was not brought to trial within 180 days of his request for final disposition. But the Supreme Court has held that a defendant, or defendant's counsel, can waive the time limitation under the IAD. New York v. Hill, 528 U.S. 110, 117-18, 120 S. Ct. 659, 665-66 (2000). And this court has held that the time limitation can be waived either implicitly or explicitly. Wells, 638 N.W.2d at 461.
This case is similar to Wells. Defense counsel agreed to extend the deadlines on some occasions and counsel caused a delay by failing to timely disclose information about defenses to be raised and witnesses. And, the second judge directly questioned defense counsel in appellant's presence about the delay that would be caused by his accepting the case, as defense counsel requested, after the first judge recused himself. Defense counsel conferred with his client off the record and on the record agreed to waive any timelines. We conclude that there is not plain error in ...
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