State v. Verschelde

• Decision Date: 06 May 1999
• Docket Number: No. C5-98-613,C5-98-613
• Citation: State v. Verschelde, 595 N.W.2d 192 (Minn. 1999)
• Parties: STATE of Minnesota, Respondent, v. Douglas Dwayne VERSCHELDE, Appellant.
• Court: Minnesota Supreme Court

Page 192

595 N.W.2d 192

STATE of Minnesota, Respondent, v. Douglas Dwayne VERSCHELDE, Appellant.

No. C5-98-613.

Supreme Court of Minnesota.

May 6, 1999.

SYLLABUS

A defendant has no right of appeal from a stay of adjudication entered pursuant to Minn.Stat. § 152.18, subd. 1 (1998).

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Minneapolis, Leonardo Castro, Chief Public Defender, Mankato, for appellant.

Michael A. Hatch, Atty. Gen., Robert A. Stanich, Asst. Atty. Gen., St. Paul, Ross E. Arneson, Blue Earth County Atty., Mankato, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, C.J.

Appellant, Douglas Dwayne Verschelde, was charged with possession of a controlled substance in the fifth degree, and moved the trial court to dismiss the complaint on constitutional grounds. After the trial court denied appellant's motion to dismiss the complaint, appellant waived his right to a jury trial and submitted the case to the trial court on stipulated facts pursuant to the procedure we outlined in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980). The trial court stayed adjudication and imposed probationary requirements pursuant to Minn.Stat. § 152.18, subd. 1 (1998). Appellant subsequently filed an appeal in the court of appeals, seeking review of the trial court's order denying the motion to dismiss. The court of appeals dismissed the appeal, determining that a stay of adjudication is not a final judgment or conviction appealable as of right under Minn. R.Crim. P. 28.02, subd. 2. See State v. Verschelde, 585 N.W.2d 429 (Minn.App.1998). We must now decide if, in the interest of justice, appellant is entitled to a right of appeal following a stay of adjudication entered pursuant to section 152.18, subd. 1.

The facts of this case are not in dispute. On November 17, 1995, appellant was discovered staggering around a Mankato parking lot. Appellant was detained by Officer Schmidt of the Mankato Police Department. Schmidt determined that appellant was intoxicated and unable to care for himself. Schmidt also concluded that it was necessary to transport appellant to a detoxification unit. Prior to transporting appellant, Schmidt searched appellant and found a black 35-mm film canister in his coat pocket. The canister contained a small amount of marijuana and several pills of alprazolam, also known as Xanax. Consequently, appellant was charged with one count of felony controlled substance crime in the fifth degree, Minn.Stat. § 152.025, subd. 2(1) (1998), and with one count of petty misdemeanor possession of a small amount of marijuana, Minn.Stat. § 152.027, subd. 4 (1998).

Appellant moved to dismiss the first count as a violation of his due process rights, arguing that alprazolam was not listed as a controlled substance in Minn.Stat. § 152.02 (1994). Section 152.02 provides a schedule of controlled substances, thus giving potential users notice of a substance's controlled status. The trial court denied appellant's motion, ruling that although alprazolam was not listed as a controlled substance in the statute, it was listed as a Schedule IV controlled substance under Minn. R. 6800.4240 (1995) prior to appellant's arrest, thus satisfying any due process requirements. In reaching its decision, the trial court relied on our decision in State v. King, 257 N.W.2d 693 (Minn.1977), which allowed the prosecution of a person for possession of a controlled substance listed in the regulatory rules, but not in the statute.

Following the trial court's denial of appellant's motion to dismiss, appellant waived his right to a jury trial and submitted the case to the trial court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d at 857-58. Appellant signed a document entitled "Petition to Enter a Lothenbach Plea and Stipulation of Guilt in a Felony Case Pursuant to Rule 15." While appellant used a guilty plea form, he significantly modified it and removed most references to an actual plea of guilty. However, as the petition/stipulation and subsequent hearing transcript demonstrate, there was some confusion at the trial level regarding the Lothenbach procedure, as both the parties and the court frequently characterized appellant's Lothenbach stipulation as a guilty plea.

In paragraph 20 of the petition/stipulation document, appellant acknowledged that he had been told by his attorney and that he understood:

a. That [appellant's attorney] discussed this case with one of the prosecuting attorneys and that my attorney and the prosecuting attorney agreed that if I entered a plea of guilty, the prosecutor will do the following: ¹

Enter a plea / stipulation pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), to Count I: Possession of Controlled Substance--Fifth Degree (Felony) under the provisions of M.S. 152.18 Discharge and Dismissal. The State would dismiss Count II - Possession Small Amount of Marijuana - Petty Misdemeanor. Pursuant to M.S. 152.18 the Court, without entering a judgment of guilty (stay adjudication of guilt) defer further proceedings and place defendant on probation upon such reasonable conditions as it may require. It is the joint recommendation of the State and defense that no jail time be executed in this case. The conditions of the stay of adjudication will be suspended pending appeal. The attached stipulation is incorporated herein.

b. That if the court does not approve this agreement:

I[sic] I have an absolute right to then withdraw my plea of guilty and have a trial.

ii. Any testimony that I have given concerning the guilty plea could not be used against me unless I am charged with the crime of perjury based on this testimony.

The parties then appeared before the trial court on January 28, 1998, to present the petition/stipulation agreement to the court. At the hearing, appellant's attorney told the court that appellant "would enter under State v. Lothenbach a stipulated guilty plea to count one." The court then called appellant to the stand, and confirmed that appellant understood that he was entering a "plea." Following the questioning, the court accepted the petition and stipulation of facts as presented. After stating that "I'm specifically not accepting his plea of guilty or any of that," the court indicated that it would enter a stay of adjudication pursuant to section 152.18.

The terminology used in the petition/stipulation document and at the subsequent hearing reflects appellant's confusion regarding the effect of the Lothenbach procedure. Paragraph 20 conditions the terms of the agreement on the entering of a guilty plea, but one of the terms of the agreement is the entering of a Lothenbach stipulation. Similarly, at the hearing appellant offered to make a "stipulated guilty plea" pursuant to Lothenbach. As we discuss in the next section, the Lothenbach procedure specifically does not involve a guilty plea, making these statements contradictory and illogical.

Following the hearing, the trial court entered a stay of adjudication of guilt for five years pursuant to section 152.18, subd. 1. Section 152.18, subd. 1, operates independently from the Lothenbach procedure. It permits the trial court, with the offender's consent, to defer criminal proceedings for a first time drug offender and place the offender on probation with reasonable conditions imposed. Accordingly, with appellant's consent, the trial court stayed adjudication of guilt and ordered appellant to pay a $3,000 fine, complete a chemical treatment program with credit against the fine for costs incurred, and attend an Alcoholics Anonymous or Narcotics Anonymous program.

Appellant appealed the stay of adjudication to the court of appeals as a "final judgment," seeking review of the trial court's order denying appellant's motion to dismiss the first count of the complaint on the basis of a constitutional violation. The state filed a motion to dismiss the appeal, arguing that no final judgment had been entered. The court of appeals granted the state's motion to dismiss the appeal, determining that the stay of adjudication entered pursuant to section 152.18, subd. 1, was not an appealable final judgment. On a petition for further review, appellant now argues that this court should use its supervisory powers to create a right of appeal from a stay of adjudication entered pursuant to section 152.18, subd. 1. We will first discuss the Lothenbach procedure, and then address the substance of appellant's argument.

I.

Because of the confusion at the trial court level regarding the Lothenbach procedure, some discussion of the procedure is necessary. The Lothenbach court recognized that Minnesota, unlike some other states, did not allow a defendant to make a conditional guilty plea. Therefore, to preserve the right to appeal a pretrial issue, a defendant was required to plead not guilty, and then put himself and the state through a jury trial, even if no material facts were in dispute. To respond to this inefficient use of judicial resources, the Lothenbach court set forth a procedure that preserves a defendant's right of appeal and avoids an otherwise unnecessary jury trial. The Lothenbach procedure calls "for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution's case." Id. at 857 (relying on Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975)). Thus, a Lothenbach stipulation can benefit a defendant by preserving the defendant's right of appeal.

In the instant case, appellant submitted his petition/stipulation after the trial court denied his motion to dismiss the complaint. It is clear that what appellant submitted was a waiver of his right to a jury trial and a stipulation of facts to support a finding of guilt pursuant to Lothenbach. However, perhaps because appellant used a modified rule 15 guilty plea form, or perhaps because a Lothenbach stipulation...