State v. Strobel

• Decision Date: 19 November 2018
• Docket Number: A18-0057
• Citation: 921 N.W.2d 563
• Parties: STATE of Minnesota, Respondent, v. Donald Albert STROBEL, Appellant.
• Court: Minnesota Court of Appeals

921 N.W.2d 563

STATE of Minnesota, Respondent,

v.Donald Albert STROBEL, Appellant.

A18-0057

Court of Appeals of Minnesota.

Filed November 19, 2018

Review Granted January 29, 2019

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Smith, Tracy M., Judge.

LARKIN, Judge

Appellant challenges his convictions of first-degree sale of a controlled substance and second-degree possession of a controlled substance, arguing that the district court violated his right to a speedy trial. He also challenges his sentence for the first-degree controlled-substance offense, arguing that the sentence is based on an incorrect criminal-history score. We affirm appellant’s convictions, reverse his sentence for the first-degree controlled-substance offense, and remand for resentencing of that offense.

FACTS

Respondent State of Minnesota charged appellant Donald Strobel with one count of first-degree sale of a controlled substance and one count of second-degree possession of a controlled substance, alleging that Strobel sold methamphetamine to a confidential informant on five occasions between August and November 2016, and possessed methamphetamine on December 20, 2016. On December 21, 2016, Strobel, who was in custody, appeared before the district court for a rule 5 hearing. The district court ordered unconditional bail in the amount of $200,000. On January 4, 2017, the district court ordered conditional bail in the amount of $100,000.

On January 26, 2017, Strobel, who was still in custody, appeared before the district court for an omnibus hearing and demanded a speedy trial. The district court noted that it would have to make room in its trial schedule to accommodate the demand and stated, "We’ll find some way to get it heard before the [speedy-trial deadline of] 60 days expires." The district court scheduled the trial for March 20, 2017, within the 60-day timeframe.

On March 20, 2017, Strobel remained in custody, and the state was not prepared for trial. The state requested a continuance for two reasons. First, the state had discovered—that morning—that the Bureau of Criminal Apprehension (BCA) employee who had tested some of the controlled substances was on vacation. Second, the BCA had not yet tested the remainder of the substances. Strobel objected, but the district court granted the continuance for good cause, noting that the delay was caused by the BCA, and not by the prosecutor. The district court reduced Strobel’s conditional bail to zero and released him from custody with instructions to return for trial on April 10, 2017, approximately 75 days after Strobel’s demand for a speedy trial. The district court ordered conditions of release. The conditions included GPS monitoring and chemical testing, and they prevented Strobel from leaving the state, challenging extradition on the underlying charges if he left the state, and accessing or using alcohol.

Strobel’s trial was held on April 11 and 12, 2017. Strobel was present for the first day of trial. On the second day of trial, Strobel went to the courthouse and spoke to his attorneys, but he did not attend his trial that day. The district court issued a warrant for Strobel’s arrest, and the trial proceeded in his absence. The jury found Strobel guilty as charged, and the district court entered judgments of conviction. Strobel remained at large for nearly two months. He eventually appeared before the district court for sentencing, and the district court ordered him to serve concurrent prison terms of 115 and 108 months. Strobel appeals.

ISSUES

I. Was Strobel’s constitutional right to a speedy trial violated?

II. Was Strobel’s first-degree controlled-substance sentence based on an incorrect criminal-history score?

ANALYSIS

I.

Strobel contends that his constitutional right to a speedy trial was violated. The United States and Minnesota Constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. amend. VI ; Minn. Const. art. I, § 6. In determining whether a defendant’s right to a speedy trial has been violated, Minnesota courts apply the four-factor balancing test set forth in Barker v. Wingo , 407 U.S. at 530, 92 S.Ct. at 2192.

State v. Widell , 258 N.W.2d 795, 796 (Minn. 1977). The four factors are "(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant." State v. Windish , 590 N.W.2d 311, 315 (Minn. 1999) (citing Barker , 407 U.S. at 530-33, 92 S.Ct. at 2192-93 ). "None of the factors is either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id . (quotation omitted).

A speedy-trial determination involves a "difficult and sensitive balancing process." Barker , 407 U.S. at 533, 92 S.Ct. at 2193. "Whether a defendant has been denied a speedy trial is a constitutional question subject to de novo review." State v. Osorio , 891 N.W.2d 620, 627 (Minn. 2017). We therefore consider each of the Barker factors de novo.

The Length of the Delay

"The length of the delay is a ‘triggering mechanism’ which determines whether further review is necessary." Windish , 590 N.W.2d at 315 (quoting Barker , 407 U.S. at 530, 92 S.Ct. at 2192 ). "Where the length of the delay is ‘presumptively prejudicial’ there is a necessity for inquiry into the remaining factors of the test." Id . (quoting Barker , 407 U.S. at 530, 92 S.Ct. at 2192 ). "In Minnesota, delays beyond 60 days from the date of demand raise a presumption that a violation has occurred." Id. at 315-16 ; see Minn. R. Crim. P. 11.09(b) ("On demand of any party ... trial must start within 60 days unless the court finds good cause for a later trial date.").

Here, the delay between Strobel’s speedy-trial demand on January 26, 2017, and the beginning of his trial on April 11, 2017, was approximately 75 days. Although minimal, this delay is sufficient to trigger further inquiry into the remaining factors.

The Reason for the Delay

The second Barker factor is the reason for the delay, "including whether it is attributable to [the defendant] or the state." State v. Sistrunk , 429 N.W.2d 280, 282 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988). "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Barker , 407 U.S. at 531, 92 S.Ct. at 2192. "A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id .

"Normally, the unavailability of a witness constitutes good cause for delay. However, a prosecutor must be diligent in attempting to make witnesses available and the unavailability must not prejudice the defendant." Windish , 590 N.W.2d at 317 (citation omitted); see also State v. Chute , 887 N.W.2d 834, 845 (Minn. App. 2016) (unavailability of police officer held against state under second Barker factor), aff’d on other grounds , 908 N.W.2d 578 (Minn. 2018).

Here, the state was not prepared to try its case on the original trial date, because the prosecutor had just learned that a BCA employee was on vacation and unavailable to appear as the state’s witness. Additionally, the BCA had not completed its testing of the alleged controlled substances. The state did not assert that it had subpoenaed the BCA witness. Nor did the state assert that it had communicated with the BCA witness before trial or otherwise attempted to ensure the availability of its BCA witness and evidence for trial.

This lack of diligence weighs against the state. See Windish , 590 N.W.2d at 317 ("The state did not produce any evidence of its efforts to ensure [the witness’s] appearance. This lack of diligence weighs against the state.").

Strobel urges this court to weigh this factor heavily in his favor, because "it is improper for the prosecution intentionally to delay to gain some tactical advantage over defendants or to harass them." Barker , 407 U.S. at 531 n.32, 92 S.Ct. at 2192 n.32 (quotation omitted). But the record does not suggest that the state deliberately delayed Strobel’s trial. Because the record does not suggest that the state deliberately attempted "to delay the trial in order to hamper the defense," id. at 531, 92 S.Ct. at 2192, this factor weighs in favor of finding a speedy-trial violation, but not heavily.

Whether Strobel Asserted His Right to a Speedy Trial

"The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Id. at 531-32, 92 S.Ct. at 2192-93. The frequency and force of the demand may be weighed when assessing this factor. Id . at 528-29, 92 S.Ct. at 2191.

"In felony cases, a defendant may plead guilty as early as the Rule 8 hearing. The defendant cannot enter any other plea until the Omnibus hearing under Rule 11." Minn. R. Crim. P. 5.08. "If the defendant enters a plea other than guilty, a trial date must be set." Minn. R. Crim. P. 11.09(a). "A defendant must be tried as soon as possible after entry of a plea other than guilty. On demand of any party after entry of such plea, the trial must start within 60 days unless the court finds good cause for a later trial date." Minn. R. Crim. P. 11.09(b).

Strobel demanded a speedy trial at his January 26, 2017 omnibus hearing, which was his first opportunity to make such a demand under the rules of criminal procedure. The...