State of Minnesota, Respondent, vs. Michael Peter Henderson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-867

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Peter Henderson,

Appellant.

 

Filed August 17, 2004 Affirmed in part and remanded in part

Peterson, Judge

 

Mille Lacs County District Court

File No. K202588

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Janice S. Kolb, Mille Lacs County Attorney, Christopher J. Zipko, Assistant County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN  56353; and

 

Mark K. Herzing, Certified Student Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN  56353 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from his conviction of and sentence for first-degree controlled substance crime appellant argues that (1) his right to a speedy trial was violated; (2) the district court abused its discretion in imposing an upward sentencing departure; and (3) the district court failed to grant his right of allocution at sentencing.  We affirm in part and remand in part. 

FACTS

Mille Lacs County Sheriff's Investigator Alan Marxhausen received judicial authorization to execute a search warrant at appellant Michael Peter Henderson's residence.  While two deputies were at the residence, another deputy stopped Henderson in his vehicle and held him in custody.  After recognizing the magnitude of the search, Marxhausen elected to complete the search in the morning.   

Marxhausen returned to the Mille Lacs County Jail to interview Henderson.  Henderson was given a Miranda warning, and he agreed to speak with Marxhausen.  Henderson admitted that he cooked methamphetamine for the past two years, the most recent time being within the last seven days, and that he last used methamphetamine at 9:00 o'clock that evening. When asked if he sold methamphetamine, he responded, "I…I survive off of, you now [sic]?  Probably like (inaudible) you know?  (Inaudible)." 

In the search of Henderson's residence officers found baby monitors around the house and a radio scanner tuned to the Mille Lacs County Sheriff's department dispatch frequency.  Officers also found multiple propane tanks with altered valves containing anhydrous ammonia, empty Toluol cans, drain cleaner, xylene, garbage bags containing empty pseudoephedrine-pill packets, containers holding ephedrine tablets and other containers holding a chemical sludge, a shop vacuum containing muriatic acid, needles, syringes, coffee filters that contained powder residue, lithium batteries, and a scale with a white powdery substance on it.  Officers found a loaded .410 caliber shotgun in one of the bedrooms. 

A jury found Henderson guilty of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 2a (2000), and use of a police radio during the commission of a crime in violation of Minn. Stat. § 609.856, subd. 1 (2000).  The district court found that the controlled-substance crime was a "major controlled substance offense" under Minnesota Sentencing Guidelines II.D.2.b(5) and imposed a 129-month sentence, which is a departure from the presumptive 86-month sentence.  The district court imposed a concurrent 13-month sentence for the remaining offense.  This appeal followed.

D E C I S I O N I.            Speedy Trial

            Under the United States and Minnesota Constitutions, and the Minnesota Rules of Criminal Procedure, criminal defendants are entitled to a speedy trial.  See U.S. Const. amend. VI; Minn. Const. art. I, § 6; Minn. R. Crim. P. 11.10; State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).  The district court's speedy-trial determination is subject to de novo review.  State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002) (stating "[w]e review de novo a lower court's ruling on constitutional questions"); State v. Sewell, 595 N.W.2d 207, 211 (Minn. App. 1999) (stating "[w]e review constitutional issues de novo."), review denied (Minn. Aug. 25, 1999).

In order to determine whether a delay in any given case constitutes a deprivation of the right to a speedy trial, courts are instructed to use the balancing test announced by the United States Supreme Court in Barker v. Wingo,407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).  The test provides that a court must consider: (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.

 

Windish, 590 N.W.2d at 315.  "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. (quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193).

1.         The length of delay

            We evaluate the length of delay to determine if further review of a defendant's speedy-trial claim is warranted.  Id.  (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192).  The length of delay

is to some extent a triggering mechanism in that until some delay, which is presumptively prejudicial, is evident the other factors need not be considered.  The delay in speedy-trial cases is calculated from the point at which the [S]ixth [A]mendment right attaches: when a formal indictment or information is issued against a person or when a person is arrested and held to answer a criminal charge.

  State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).  Henderson was charged on May 22, 2002, and his trial began on February 3, 2003; this nearly nine-month delay is long enough to trigger consideration of the remaining factors.  Jones, 392 N.W.2d at 235 (stating seven-month delay long enough to trigger consideration of other Barker factors).

2.         The reason for delay

            The rules of criminal procedure provide:

If the defendant so requests, the court shall allow the defendant at the Omnibus Hearing to enter a plea, including a not guilty plea, even if the Omnibus Hearing is continued or Omnibus Hearing issues are still pending for decision by the court. . . . If the defendant enters a plea other than guilty, a trial date shall then be set.  A defendant shall be tried as soon as possible after entry of a plea other than guilty.  On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney's or the defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period.  The time period shall not begin to run earlier than the date of the plea other than guilty.

 

Minn. R. Crim. P. 11.10 (emphasis added).

Henderson argues that the primary reason for the delay of his trial is that when his attorney attempted to assert Henderson's speedy-trial right at the omnibus hearing, the district court refused to allow Henderson to enter his plea and stated that it would not receive Henderson's plea until the issues raised at the omnibus hearing were decided.  Then the district court did not render its decision about issues raised at the August 16, 2002, omnibus hearing until December 16, 2002.  Henderson contends that the procedure followed by the district court violated Minn. R. Crim. P. 11.10, and, even though omnibus issues were still pending for decision by the court, he should have been allowed to enter a plea at the omnibus hearing.  Therefore, Henderson concludes, the 60-day speedy-trial requirement should have begun running from August 16, 2002.

            But Henderson's argument is based on the premise that he requested to enter a plea at the omnibus hearing, and the record does not support this premise.  At the end of the omnibus hearing, during a discussion about the briefing schedule, the following exchange occurred between Henderson's attorney and the district court:

[HENDERSON'S ATTORNEY]: For the purposes of the record, your Honor, Mr. Henderson would ask the Court to take note, as the Court's already done, in fact, take note of the fact he is in custody.  He is demanding speedy process at this point.

 

THE COURT: It'll be speedy but I won't receive the plea till the omnibus decision's in.

 

[HENDERSON'S ATTORNEY]: Very well.

 

THE COURT: I mean, plea's reserved till the end of the omnibus hearing.

 

[HENDERSON'S ATTORNEY]: We understand that and he is aware of that.  I just he just wanted me to express that for the record. 

 

            Henderson characterizes this exchange as a refusal by the district court to allow him to enter his plea at the omnibus hearing.  But nothing that Henderson's attorney said during the exchange can be construed as a request to enter a plea.  In fact, when the district court said that it would not receive a plea until it decided the issues that were raised during the omnibus hearing, Henderson's attorney responded, "Very well," which indicates agreement with that procedure.  The district court did not violate Minn. R. Crim. P. 11.10 by not accepting Henderson's plea when Henderson did not make a request to enter a plea. 

            The plain language of Minn. R. Crim. P. 11.10 requires the district court to allow the defendant to enter a plea rule "[i]f the defendant so requests," and a trial date shall be set "[i]f the defendant enters a plea other than guilty."  Because Henderson did not request to enter a plea at the omnibus hearing, and no plea was entered, the 60-day period required by Minn. R. Crim. P. 11.10 did not begin on August 16, 2002.  Henderson's not-guilty plea was entered during a settlement conference on January 8, 2003, and his trial began 26 days later on February 3, 2003.   

3.            Whether and when the defendant asserted his right to a speedy trial

            Henderson argues that because the district court's refusal to allow him to enter his plea at the omnibus hearing violated Minn. R. Crim. P. 11.10, this factor weighs in his favor.  But, as we have already discussed, the district court did not violate Minn. R. Crim. P. 11.10 by refusing to allow Henderson to enter a plea at the omnibus hearing.

            Henderson first asserted his right to a speedy trial on July 24, 2002, and he again asserted the right at the omnibus hearing on August 16, 2002.  But the record does not indicate that a plea was entered before January 8, 2003.  Because the plain language of rule 11.10 makes entering a plea the event that leads to a trial date being set and starts the 60-day period, asserting the right to a speedy trial without requesting to enter a plea is, at best, an equivocal assertion of Henderson's speedy-trial right.  Because Henderson did not request to enter a plea, the district court could reasonably conclude that Henderson did not object to delaying a plea until the omnibus issues were decided.  Therefore, this factor does not weigh in Henderson's favor.

4.            Prejudice

            We consider three factors in determining if a defendant was prejudiced by the delay: "(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired."  Windish, 590 N.W.2d at 318 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2182).  The third factor is the most serious.  Windish, 590 N.W.2d at 318 (citing Duggett v. United States, 505 U.S. 647, 655, 112 S. Ct. 2686 (1922)) (other citation omitted). 

Henderson asserts that he suffered prejudice because he was in jail for almost a year from the date he was arrested until the day he was sentenced.  While this delay caused Henderson anxiety and concern, there is no evidence that Henderson's defense was impaired by the delay.  We, therefore, conclude that because asserting the right to a speedy trial without requesting to enter a plea is, at best, an equivocal assertion of Henderson's speedy-trial right, and because Henderson's defense was not impaired by the delay in bringing him to trial, Henderson's right to a speedy trial was not violated.

II.            Sentencing

            A district court "has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present."  State v. Spain, 590 N.W2d 85, 88 (Minn. 1999); Minn. Sent. Guidelines cmt. II.D.01.  "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure."  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). 

            The district court sentenced Henderson to 129 months, which is a 43-month upward departure, based on its determination that Henderson's offense is a major controlled-substance offense.  A major controlled-substance offense is

an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense.  The presence of two or more of the circumstances listed below are aggravating factors with respect to the offense:  . . .

(c)the offense involved the manufacture of controlled substances for use by other parties; or

(d)the offender knowingly possessed a firearm during the commission of the offense; . . . or

(f)the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; . . .

 

Minn. Sent. Guidelines II.D.2.b(5).

Based on the quantity of methamphetamine involved, Henderson's acknowledgement that he sold methamphetamine to support himself, the shotgun discovered during the search of Henderson's home, and the period of time during which the drug manufacturing occurred, the district court found that factors (c), (d), and (f) were proved and imposed an upward durational departure based upon its determination that the presence of two or more of the listed factors made Henderson's offense more onerous than the usual offense.

After the district court sentenced Henderson, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In Blakely, the Court considered whether the State of Washington's sentencing procedure deprived the petitioner of "his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."  Id. at 2536.  The petitioner in Blakely pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm.  Id. at 2534-35.  Under the Washington criminal code, second-degree kidnapping is a class-B felony that carries a maximum statutory sentence of ten years, but the Washington Sentencing Reform Act further limited the sentencing range to 49-53 months and permitted the judge to impose a sentence above that range upon finding "substantial and compelling reasons justifying an exceptional sentence."  Id. at 2535 (quoting Wash. Rev. Code § 9.9A.120(2) (2000)).  During sentencing, the judge imposed an exceptional sentence of 90 months, which was based on the judge's finding that the petitioner acted with "deliberate cruelty," a statutorily enumerated ground for departure under the Washington Sentencing Reform Act.  Id. at 2535. 

The United States Supreme Court held that because the exceptional sentence the judge imposed was not based solely on "facts reflected in [a] jury verdict or admitted by the [petitioner]," Washington state's sentencing procedure did not comply with the Sixth Amendment to the United States Constitution, and, therefore, the petitioner's sentence is invalid.  Id. at 2537-38.

Like the sentencing departure in Blakely, the upward departure in Henderson's sentence is not based solely on facts reflected in a jury verdict or admitted by the petitioner; it is based on the district court's determination that three specific aggravating factors were proved.  Because the district court could not have considered whether basing Henderson's sentence on these three factors is permissible under Blakely, we remand for reconsideration of Henderson's sentence in light of Blakely.

III.       Right of Allocution

            Henderson argues that because the district court failed to afford him the opportunity to address the court before sentencing, the case should be remanded. 

Before pronouncing sentence, the court shall give the prosecutor, the victim, and defense counsel an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence.  The court shall also address the defendant personally and ask if the defendant wishes to make a statement in the defendant's own behalf and to present any information before sentence including, in the discretion of the court, oral statements from other persons on behalf of the defendant.

 

Minn. R. Crim. P. 27.03, subd. 3. 

            Before pronouncing sentence, the district court did not ask Henderson if he wished to make a statement in his own behalf or present any information.  But this does not automatically entitle Henderson to relief.  The supreme court has recognized that "the law does not require the sentence to be vacated if by a presentence investigation there is adequate assurance . . . that the court took into account the defendant's version of the circumstances leading to his conviction and other background information which is normally considered in mitigation of the penalty."  State ex rel. Napiwoski v. Tahash, 278 Minn. 56, 58, 153 N.W.2d 138, 140 (1967).  The state argues that the court had the benefit of a presentence investigation containing Henderson's view of the case. 

Citing State v. Young, 610 N.W.2d 361, 364 (Minn. App. 2000), review denied (Minn. Apr. 25, 2000), Henderson does not argue that the presentence investigation was inadequate; he simply asserts his right of allocution.  In Young, the defendant was not offered an opportunity for allocution.  Id.  As in the present case, the state argued that the court had the benefit of a presentence investigation that contained Young's view of the case.  Id.  This court held that the district court erred in not extending the right to allocution, stating "the rule is clear.  A defendant has a right to allocution before the court imposes sentence."  Id.

We conclude that the district court erred by not asking Henderson before sentencing if he wished to make a statement in his own behalf or present any information.  But because we are remanding to permit the district court to reconsider Henderson's sentence in light of Blakely, we need not determine whether the presentence investigation report was adequate to ensure that the court took into account Henderson's version of the circumstances leading to his conviction.  Instead, it is sufficient to simply remind the district court that before pronouncing sentence on remand, the court shall ask Henderson if he wishes to make a statement in his own behalf or present any information.

            Affirmed in part and remanded in part.

 

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.