State of Minnesota v. Warren Fred Nelson

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0765

State of Minnesota,
Respondent,

vs.

Warren Fred Nelson,
Appellant.

Filed February 1, 2016
Affirmed
Reilly, Judge

Hennepin County District Court
File Nos. 27-CR-13-27591, 27-CR-12-13924

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Warren F. Nelson, Aurora, Colorado (pro se appellant)

Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.
 UNPUBLISHED OPINION

REILLY, Judge

Appellant pleaded guilty to fifth-degree controlled-substance crime. On appeal, he

argues that he was denied a timely omnibus hearing and ruling, a speedy trial, and effective

assistance of counsel. He also challenges the validity of his plea and contends that there is

an error on the district court’s register of actions. We affirm.

FACTS

In May 2012, a police officer arrested appellant Warren Fred Nelson pursuant to an

active warrant. During a search incident to the arrest, the officer discovered a pill that was

identified as Vicodin and a baggie containing a substance that was identified as cocaine.

Nelson was charged with two counts of fifth-degree controlled-substance crime, and he

filed a motion to suppress the evidence. An omnibus hearing was scheduled to be held in

June 2012, and was continued several times and eventually held in January 2014. In

November 2014, Nelson agreed to a plea deal and pleaded guilty to one count of fifth-

degree controlled-substance crime for possession of 0.4 grams of cocaine. During the plea

hearing, the district court stated on the record that it had denied Nelson’s motion to

suppress.

Nelson filed this appeal to challenge his controlled-substance conviction and the

results of four other criminal matters in which he was the defendant. This court issued an

order clarifying that this appeal would resolve issues relating to only the controlled-

substance conviction because the other criminal matters are outside of the scope of appeal.

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 DECISION

I.

Nelson argues that he was denied a timely omnibus hearing and ruling.1 “The

Omnibus Hearing must start within 42 days of the Rule 5 [first] appearance if it was not

combined with the Rule 8 [second appearance] hearing, or within 28 days of the Rule 5

appearance if it was combined with the Rule 8 hearing.” Minn. R. Crim. P. 11.01(a). “The

court may continue the [omnibus] hearing or any part of the hearing for good cause related

to the case.” Minn. R. Crim. P. 11.06. The decision to grant or deny a continuance in a

criminal proceeding lies within the discretion of the district court. State v. Larson, 788

N.W.2d 25, 30-31 (Minn. 2010). A defendant must show prejudice to justify reversal of

such a decision. Johnson v. State, 697 N.W.2d 194, 198 (Minn. 2005).

The first appearance was held on May 7, 2012, and an omnibus hearing was

scheduled for June 13, 2012, within 42 days. The omnibus hearing was continued several

times and held on January 17, 2014. The reasons for these continuances are not entirely

clear from the appellate record because Nelson did not order transcripts of the hearings

where the continuances were granted. See Minn. R. Civ. App. P. 110.02, subd. 1 (stating

1
Nelson’s main arguments on appeal relate to the timing of hearings and the omnibus
ruling in his case. We note that “[a] guilty plea by a counseled defendant has traditionally
operated, in Minnesota and in other jurisdictions, as a waiver of all non-jurisdictional
defects arising prior to the entry of the plea.” State v. Jeffries, 806 N.W.2d 56, 64 & n.4
(Minn. 2011) (quotation omitted) (clarifying that “[a]lthough we have used the term
‘waiver,’ the effect of a guilty plea is more accurately described as a forfeiture”); see also
State v. Smith, 749 N.W.2d 88, 97 (Minn. App. 2008) (“[W]hen [appellant] pleaded guilty,
his speedy-trial right evaporated, and any delay up to that time was nullified by his plea.”).
But we address Nelson’s arguments because they are raised in the context of a challenge
to the voluntariness of his guilty plea.

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that appellant has responsibility to order relevant transcripts on appeal); Minn. R. Crim. P.

28.02, subd. 9 (“To the extent applicable, the Minnesota Rules of Civil Appellate Procedure

govern preparation of the transcript of the proceedings and the transmission of the

transcript and record to the Court of Appeals . . . .”). But the record reflects that Nelson

completed a six-month in-patient treatment program between the time that he was charged

and the omnibus hearing, that he was residing outside of Minnesota for a time, and that this

case was tracking along with Nelson’s other criminal matters. On this record, we conclude

that the district court did not abuse its discretion by granting continuances of the omnibus

hearing.

“The court must make findings and determinations on the omnibus issues in writing

or on the record within seven business days of the Omnibus Hearing.” Minn. R. Crim. P.

11.07 (2014).2 After the omnibus hearing, the district court kept the record open for the

parties to submit closing arguments through written briefs. Defense counsel indicated

during a hearing in March 2014, that those briefs were forthcoming. Briefs were not filed

by either party, but the record does not indicate when the district court was made aware

that briefs would not be filed. The district court denied Nelson’s motion to suppress during

the plea hearing in November 2014. The delay of the omnibus ruling does not justify

reversal of Nelson’s conviction.

2
After the omnibus hearing, rule 11.07 was amended to read: “The court must make
findings and determinations on the omnibus issue(s) in writing or on the record within 30
days of the issue(s) being taken under advisement.” Minn. R. Crim. P. 11.07 (Supp. 2015).

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 II.

Nelson contends that he was denied a speedy trial. The United States and Minnesota

Constitutions guarantee a criminal defendant a right to a speedy trial. U.S. Const. amend.

VI; Minn. Const. art. I, § 6. A four-part balancing test is used to determine whether a delay

in a case violated this right. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). “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.” Id. (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92

S. Ct. 2182, 2191-93 (1972)). “None of these factors is either a necessary or sufficient

condition to the finding of a deprivation of the right of speedy trial. Rather, they are related

factors and must be considered together with such other circumstances as may be relevant.”

State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015) (quotation omitted). A claim that the right

to a speedy trial was violated is reviewed de novo. Id.

A defendant must be tried as soon as possible after entry
of a plea other than guilty. On demand of any party the trial
must start within 60 days of the demand unless the court finds
good cause for a later trial date. The time period begins on the
date of the plea other than guilty.

Minn. R. Crim. P. 11.09(b) (2014).3 “In Minnesota, delays beyond 60 days from the date

of demand raise a presumption that a violation [of the right to a speedy trial] has occurred.”

Windish, 590 N.W.2d at 315-16. But “[w]hen the overall delay in bringing a case to trial

3
After the plea hearing, rule 11.09(b) was amended to read: “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) (Supp. 2015).

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is the result of the defendant’s actions, there is no speedy trial violation.” Taylor, 869

N.W.2d at 20 (quotation omitted); see also State v. Ray, 659 N.W.2d 736, 748 (Minn. 2003)

(concluding that there was no violation of right to speedy trial where “the procedural

history of the case makes clear that the delays were the result of defense counsel requests”).

The appellate record does not reflect that Nelson demanded a speedy trial. See

Barker, 407 U.S. at 532, 92 S. Ct. at 2193 (emphasizing “that failure to assert the right [to

a speedy trial] will make it difficult for a defendant to prove that he was denied a speedy

trial”). The record does reflect that, after the omnibus hearing, a trial was scheduled and

then continued a number of times with Nelson’s agreement, at Nelson’s request, or because

Nelson failed to appear.

And these continuances did not prejudice Nelson. “Prejudice . . . should be assessed

in the light of the interests of defendants which the speedy trial right was designed to

protect,” namely, “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety

and concern of the accused; and (iii) to limit the possibility that the defense will be

impaired.” Id. Nelson was on conditional release pending trial, and his defense at trial was

not impaired because he pleaded guilty and this case did not go to trial. Nelson contends

that his criminal proceedings have caused financial hardship and have impacted his

personal life, but he fails to identify problems beyond those typically associated with

having several criminal matters pending. Cf. State v. Friberg, 435 N.W.2d 509, 515 (Minn.

1989) (stating that “[t]he only prejudice attested to . . . was the stress, anxiety and

inconvenience experienced by anyone who is involved in a trial” and concluding that

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defendants were not denied right to speedy trial). Based on the record and all relevant

factors, we conclude that Nelson was not denied his right to a speedy trial.

III.

Nelson argues that he received ineffective assistance of counsel. A criminal

defendant has a constitutional right to the effective assistance of counsel. Fort v. State,

861 N.W.2d 674, 677 (Minn. 2015). To prevail on a claim of ineffective assistance of

counsel, a defendant must show “(1) that his counsel’s representation ‘fell below an

objective standard of reasonableness’; and (2) ‘there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v.

Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). “The objective

standard of reasonableness is defined as representation by an attorney exercising the

customary skills and diligence that a reasonably competent attorney would perform under

similar circumstances.” State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014) (quotation

omitted) (noting that “counsel’s performance is presumed to be reasonable”). A claim of

ineffective assistance of counsel involves a mixed question of fact and law and is reviewed

de novo. State v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012); see also Hawes v. State,

826 N.W.2d 775, 783 (Minn. 2013) (stating that appellate court need not address both parts

of Strickland test if one is determinative).

Nelson argues that defense counsel was ineffective because she failed to file a brief

containing her closing arguments on the omnibus issues. But the district court resolved the

omnibus issues without briefing, Nelson does not challenge the omnibus ruling, and he has

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not shown that there is a reasonable probability that the omnibus ruling would have been

different if a brief had been filed. Nelson also argues that defense counsel was ineffective

because she failed to file a motion to dismiss the charges after an omnibus hearing was not

held in a timely manner. Whether to file a motion in a criminal matter is a strategic decision

that we decline to review for competence. See, e.g., Carridine v. State, 867 N.W.2d 488,

494 (Minn. 2015) (stating that failure to file motion to suppress evidence was related to

unreviewable trial strategy); State v. Nissalke, 801 N.W.2d 82, 111 (Minn. 2011) (stating

that failure to file motion on spoliation of evidence fell “squarely within tactical decisions

properly left to the discretion of trial counsel” (quotation omitted)). Nelson’s claim that he

received ineffective assistance of counsel is without merit.

IV.

Nelson challenges the validity of his guilty plea. A plea must be accurate, voluntary,

and intelligent to be valid, and a defendant bears the burden of showing that his plea was

invalid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Manifest injustice exists if a

plea is not valid, and a court must allow plea withdrawal when necessary to correct manifest

injustice. Barrow v. State, 862 N.W.2d 686, 691 (Minn. 2015) (citing Minn. R. Crim. P.

15.05, subd. 1). Assessing the validity of a plea presents a question of law that is reviewed

de novo. Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012).

Nelson argues that there was insufficient evidence to convict him of fifth-degree

controlled-substance crime. A defendant waives a challenge to the sufficiency of the

evidence by pleading guilty. State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002). Nelson’s

argument fails even if we construe the argument as a challenge to the accuracy of his plea.

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The requirement that a plea be accurate “requires an adequate factual basis” that

“establish[es] sufficient facts on the record to support a conclusion that defendant’s

conduct falls within the charge to which he desires to plead guilty.” Munger v. State, 749

N.W.2d 335, 337-38 (Minn. 2008) (quotations omitted). During the plea hearing, Nelson

established an adequate factual basis by admitting that he possessed 0.4 grams of cocaine

on May 2, 2012, in Hennepin County. Cf. Minn. Stat. § 152.02, subd. 3(1)(d) (2010)

(listing cocaine as a Schedule II controlled substance); Minn. Stat. § 152.025, subd. 2(a)(1)

(2010) (stating that a person is guilty of fifth-degree controlled-substance crime if “the

person unlawfully possesses one or more mixtures containing a controlled substance

classified in Schedule I, II, III, or IV, except a small amount of marijuana”).

Nelson also challenges the voluntariness of his plea, arguing that he was “coerced,

manipulated, maneuvered and forced into taking the guilty plea agreement” because of

delays in resolving his case and ineffective assistance of counsel. The requirement that a

plea be voluntary “ensures a defendant is not pleading guilty due to improper pressure or

coercion,” and “[w]hether a plea is voluntary is determined by considering all relevant

circumstances.” Raleigh, 778 N.W.2d at 96; see also State v. Ecker, 524 N.W.2d 712, 718

(Minn. 1994) (“When an accused is represented by counsel, the voluntariness of the plea

depends on whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” (quotation omitted)). Nelson confirmed by signing the plea

petition that he was “satisfied that [his] attorney ha[d] represented [his] interests and ha[d]

fully advised [him]” and that he was pleading guilty “freely and voluntarily.” He

confirmed during the plea hearing that he was not being forced to plead guilty. And as we

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have discussed, the record reflects that continuances in this case were granted at Nelson’s

request or for his benefit, and he has not established that he received ineffective assistance

of counsel. Nelson has not shown that his plea was involuntary.

V.

Nelson contends that the district court committed fraud because the register of

actions lists a hearing on August 11, 2014, a date on which he states that he “was not in

town.” During the plea hearing, defense counsel explained: “[A]t our last appearance, . . .

Nelson, who had made numerous appearances beforehand, wasn’t able to be here. He

became stranded on his way back to Minnesota.” The August 11 hearing was continued to

November 17 because Nelson was not present. Nelson’s argument that the register of

actions contains an error is without merit.

Affirmed.

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