State v. Swenson
| Docket Number | A23-0037 |
| Decision Date | 31 July 2023 |
| Parties | State of Minnesota, Respondent, v. Aaron Morris Swenson, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).
Redwood County District Court File No. 64-CR-20-591
Keith Ellison, Attorney General, St. Paul, Minnesota; and Jenna M Peterson, Redwood County Attorney, Redwood Falls, Minnesota and Travis J. Smith, William C. Lundy, Special Assistant County Attorneys, Slayton, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Slieter, Judge.
Appellant challenges his sentence because the district court imposed it in his absence and because the sentence imposed was at the top of the presumptive guidelines range. Because the district court's error in imposing a sentence in appellant's absence is harmless beyond a reasonable doubt and imposition of the presumptive sentence was within its discretion, we affirm.
On March 12, 2021, a jury found appellant Aaron Morris Swenson guilty of first-, second-, third-, and fifth-degree assault. The district court convicted Swenson of first-degree assault and imposed a sentence of 161 months' imprisonment, which is in the middle of the presumptive range applicable to that offense. Swenson directly appealed, and our court reversed his conviction for first-degree assault due to insufficient evidence and remanded for further proceedings on the remaining counts. State v. Swenson, No. A21-0848, 2022 WL 2195532, at *6 (Minn.App. June 20, 2022), rev. denied (Minn. Aug. 23, 2022).
On remand, the district court held a remote sentencing hearing. The state argued for a 71-month, top-of-the-box sentence on the second-degree assault count. Swenson argued for a 60-month, middle-of-the-box sentence because the district court had previously imposed a middle-of-the-box sentence for first-degree assault. At the end of the hearing, the district court "want[ed] to verify a couple of things" and "think about sentencing for just a . . . moment," and stated that it would "issue a sentencing order following the hearing here today." Later that day and without reconvening the sentencing hearing, the district court issued a sentencing order and warrant of commitment sentencing Swenson to 71 months' imprisonment.
Swenson appeals.
"A defendant's constitutional right to be present [at trial] is grounded in the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment." Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005); State v. Gillam, 629 N.W.2d 440, 450 (Minn. 2001). The Sixth Amendment's Confrontation Clause guarantees defendants the right to confront the witnesses against them, and the Fourteenth Amendment Due Process Clause guarantees defendants "the right to be present at all critical stages of trial," when their "presence has a relation, reasonably substantial, to the fullness of [their] opportunity to defend against the charge." Ford, 690 N.W.2d at 712 (quotation omitted). The Minnesota Rules of Criminal Procedure provide a similar but broader right to be present "for every stage of the trial." Minn. R. Crim. P. 26.03, subd. 1(1); Ford, 690 N.W.2d at 712 (); State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993) (same).
The Minnesota Rules of Criminal Procedure provide that a "defendant must be present at the sentencing hearing and sentencing, unless excused under Rule 26.03, subd. 1(3)." Minn. R. Crim. P. 27.03, subd. 2(A). Rule 26.03 also states that a defendant "must be present at arraignment, plea, and for every stage of the trial including . . . sentencing." Minn. R. Crim. P. 26.03, subd. 1(1)(h). Exceptions to the presence requirement do not include sentencing in felony cases. See Minn. R. Crim. P. 26.03, subd. 1(3) (), subd. 1(2) (). Instead, the defendant in a felony case has the right to be present at the imposition of a sentence of imprisonment. State ex rel. Shetsky v. Utecht, 36 N.W.2d 126, 131 (Minn. 1949). Generally, we review a district court's decision to proceed with a stage of trial in the defendant's absence for an abuse of discretion. See Gillam, 629 N.W.2d at 450.
As a preliminary matter, the state argues that we should review for plain error because Swenson did not object to being sentenced in absentia. Plain error allows appellate review of unobjected-to, and therefore forfeited, errors that are plain, affect substantial rights, and seriously affect the fairness, integrity, or public reputation of judicial proceedings. State v. Lilienthal, 889 N.W.2d 780, 784-85 (Minn. 2017); see also Minn. R. Crim. P. 31.01 (). The state concedes that the district court erred but argues that the error did not affect Swenson's substantial rights. Swenson asserts, based on State v. Wair, a nonprecedential opinion from this court, that the standard we must apply is whether the error was harmless beyond a reasonable doubt. No. A20-0470, 2021 WL 1082347, at *5 (Minn.App. Mar. 22, 2021), rev. denied (Minn. June 15, 2021); Minn. R. Civ. App. P. 136.01, subd. 1(c) ().
An error affected substantial rights if it "affected the outcome of the case" and "there is a reasonable likelihood that the error had a significant impact on the proceeding." State v. Little, 851 N.W.2d 878, 884 (Minn. 2014) (quotation omitted). In contrast, an error is harmless beyond a reasonable doubt if the outcome of the proceeding is "surely unattributable to the error." State v. McInnis, 962 N.W.2d 874, 886 (Minn. 2021) (quotation omitted). The harmless-beyond-a-reasonable-doubt standard applies to objected-to errors that implicate a constitutional right. State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012); State v. Beaulieu, 859 N.W.2d 275, 278-80 (Minn. 2015) (). Because the district court ended the remote hearing immediately after indicating that it would issue a sentencing order after the hearing, it is difficult to discern if Swenson had an opportunity to object such that we should apply plain error review. However, we need not determine which standard to apply because Swenson would not be entitled to relief even if we apply the more favorable harmless-beyond-a-reasonable-doubt standard. Little, 851 N.W.2d at 884 ().
Swenson argues that being sentenced in absentia was not harmless beyond a reasonable doubt because, unlike Wair, in which our court concluded the same error was harmless beyond a reasonable doubt, his sentence was not part of a plea agreement. See 2021 WL 1082347, at *5 (concluding that defendant's absence at sentencing was harmless "because appellant was sentenced to [an] agreed-upon 94-month sentence"). We are not persuaded.
Swenson was present at his sentencing hearing and had the opportunity to present arguments for his preferred sentence, through counsel and his allocution. The only portion of sentencing during which Swenson was not present was the actual imposition of the sentence, during which he would not have been allowed to speak even if he were present. On this record, the nature of Swenson's sentence is "surely unattributable" to his absence. McInnis, 962 N.W.2d at 886. Therefore, Swenson is not entitled to relief.
Swenson argues that his top-of-the-box sentence of 71 months' imprisonment should be modified to a middle-of-the-box sentence of 60 months' imprisonment. According to Swenson, because his previous sentence of 161 months' imprisonment for the since-reversed first-degree assault conviction was a middle-of-the-box sentence, imposing a top-of-the-box sentence now is unreasonable. Legal precedent compels our disagreement.
"This court will not generally review a district court's exercise of its discretion to sentence a defendant when the sentence imposed is within the presumptive guidelines range." State v. Delk, 781 N.W.2d 426, 428 (Minn.App. 2010), ...
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