State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1975

State of Minnesota,
Respondent,

vs.

James Franklin Patten,
Appellant.

Filed November 20, 2017
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-16-4099

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
On review from appellant’s conviction of receiving profits from prostitution, he first
argues that he was denied his right to a speedy trial. Although appellant’s trial was
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postponed beyond the 60-day speedy-trial deadline, his defense was not prejudiced by the
delay, thus, we affirm his conviction. Second, appellant argues that the district court erred
by imposing a ten-year conditional release term and ordering him to register as a predatory
offender. The state agrees with appellant’s second argument. We reverse the challenged
terms of appellant’s sentence and remand to the district court for resentencing.
FACTS
This appeal arises out of appellant James Franklin Patten’s conviction of receiving
profits from prostitution in violation of Minn. Stat. § 609.322, subd. 1a(3) (2014).
On December 23, 2014, a hotel employee informed police that he believed Patten,
who had rented a room with E.H., was selling illegal drugs and was engaged in prostitution
activities. Police questioned E.H. and Patten , found narcotics in their hotel room, and
arrested them. E.H. told officers in a recorded statement that she worked for Patten as a
prostitute while in the hotel. Patten denied that he knew about E.H.’s prostitution activities.
E.H.’s recorded statement was consistent with her prior statements to police. In
September 2014, police arrested E.H. for drug possession and she told police that she was
Patten’s girlfriend and his “bottom,” a term that refers to the top woman in the hierarchy
of women promoted by a pimp. E.H. also said that she was a heroin addict and supported
her drug habit by prostitution. E.H. told officers that she supported Patten financially and
gave him money to buy drugs for the two of them.
On February 10, 2016, the state charged Patten with three counts stemming from
the December 23, 2014 incident: (1) promotion of prostitution in violation of Minn. Stat.
§ 609.322, subd. 1a(2); (2) receiving profits from prostitution in violation of Minn. Stat.
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§ 609.322, subd. 1a(3); and (3) engaging in sex trafficking in violation of Minn. Stat.
§ 609.322, subd. 1a(4). Patten made his first appearance on March 16, 2016. On April 13,
2016, Patten appeared again, entered a plea of not guilty, and made an in-custody speedy-
trial demand. The court scheduled the case for trial on June 13, 2016, and Patten remained
in custody.
Patten’s case was called for trial on June 14, 2016. The state requested a continuance
because the prosecutor was already in trial in a case involving another in-custody defendant
who had made a speedy -trial demand. Following questions from the district court, the
prosecutor stated “every one of my colleagues is occupied in this building this week it
seems.” The court noted Patten’s speedy -trial demand and found good cause to extend
Patten’s trial date.
Patten then waived his right to a jury trial and the parties discussed rescheduling the
trial. The judge told the parties that she was starting a double homicide trial and would be
unavailable for the next two weeks. Patten declined the option of going on “standby ,”
which would have allowed a different judge to try his case. Patten’s trial was rescheduled
for Friday, July 8, 2016.
Patten’s trial began as rescheduled and E.H. testified. E.H. recanted her prior
statements to investigators and testified that Patten was not aware of her prostitution
activities. E.H. explained that if she arranged a prostitution encounter while at the hotel,
she told Patten she had “to do something” and Patten would leave the hotel room. E.H.
also testified that she gave money to Patten to buy drugs, and Patten never asked how she
earned the money.
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In response to questions about her prior statements, E.H. testified that after charges
were filed, Patten’s friends and relatives attempted to “discourage” her from testifying.
E.H. also testified that others, whom she co uld not name, called her “bad names” and
“threatened” her to stop her from participating in the trial. Additionally, E.H. testified that
while Patten was in custody, he called E.H. on May 15, 2016, and told her that she “just
talked a little bit too much” [to the police] and that she just “ha[d] to fix it.”
At the end of the morning on July 8, the prosecutor informed the court that although
they were supposed to resume trial on Tuesday (July 12), the state’s “key witness,” a
Bloomington investigator, was unavailable. Patten repeated his speedy-trial objection, but
the trial was continued to July 22 . Patten’s trial resumed and was completed on July 22.
On July 25, the state dismissed the sex trafficking charge in its written closing argument.
The district court announced its verdict in open court on August 2, 2016, and filed
a written decision. The court found Patten not guilty of promoting prostitution but found
Patten guilty of rece iving profits from prostitution. The court sentenced Patten to 180
months in prison, imposed a 10- year conditional-release term , and ordered Patten to
register as a predatory offender. This appeal follows.
D E C I S I O N
I. Patten was not denied his constitutional right to a speedy trial.
“Criminal defendants have the right to a speedy trial under the constitutions of both
the United States and Minnesota.” State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015) (citing
U.S. Const. amend. VI; Minn. Const. art. I, § 6). To d etermine whether a defendant’s
speedy-trial right has been violated, Minnesota has adopted the four-factor test articulated
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by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct.
2182, 2192-93 (1972). See Taylor, 869 N.W.2d at 19. Under this test, we 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.” Taylor, 869
N.W.2d at 19. No single factor is either necessary or sufficient. Id. Instead, appellate courts
must “engage in a difficult and sensitive balancing process,” considering all the factors
together with any other relevant circumstances. Id. (quotation omitted.) This court reviews
a claimed speedy-trial violation de novo. Id.
A. Length of the delay
“The length of the delay is a ‘triggering mechanism’ which determines whether
further review is necessary.” State v. Windish , 590 N.W.2d 311, 315 (Minn. 1999). The
length of delay is calculated from “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). Under Minn. R. Crim. P. 11.09(b), a “trial
must start within 60 days” of a speedy-trial demand, unless good cause is shown. “A delay
that exceeds 60 days from the date of the demand raises a presumption that a violation has
occurred, and we must apply the remaining factors of the test.” Taylor, 869 N.W.2d at 19.
The state concedes that Patten has satisfied the first Barker factor because his trial
began after the 60-day speedy-trial deadline. Patten demanded a speedy trial on April 13,
2016, but his trial did not begin until July 8, 2016, which was 86 days after his demand.
Because a presumption is raised that a violation occurred, this court must examine the
remaining factors.
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B. Reason for the delay
The right to a speedy trial attaches at the time a defendant is arrested or charged;
therefore, we consider the reasons for the entire delay, not merely delay after the speedy -
trial demand. See State v. Osorio, 891 N.W.2d 620, 629 (Minn. 2017) (considering the
reason for delay before the defendant demanded a speedy trial). “The responsibility for
promptly bringing a case to trial rests with the state,” but different weights are assigned for
different reasons causing a delay. State v. Hahn, 799 N.W.2d 25, 30 (Minn. App. 2011),
review denied (Minn. Aug. 24, 2011). Any deliberate attempts to delay weigh heavily
against the state, while more “neutral reason[s],” such as the state’s negligence or
overcrowded courts, weigh only slightly against the state. Taylor, 869 N.W.2d at 20
(alteration in original) (quotation omitted). In contrast, the Minnesota Supreme Court has
“held on numerous occasions that when the overall delay in bringing a case to trial is the
result of the defendant’s actions, there is no speedy trial violation.” State v. Johnson, 498
N.W.2d 10, 16 (Minn. 1993).
First, we consider the predemand delays .
1 Patten objects to the delay between the
date that the state filed its complaint (February 10, 2016) and the date of his first appearance
(March 16, 2016). Patten was serving time in the workhouse on a different matter during

1 Patten does not directly argue that delay between the date of the offense and the date that
the complaint was filed should be weighed against the state, but does point to the “fourteen
months” between the offense date (December 23, 2014) and charging date (February 10,
2016). The right to a speedy trial “does not apply to the period before a defendant is
indicted, arrested, or otherwise officially accused.” United States v. MacDonald, 456
U.S. 1, 6, 102 S. Ct. 1497, 1501 (1982). Therefore, the delay before Patten was charged
does not weigh against the state.
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this time period. Patten argues that the state’s failure to bring him to court earlier was a
failure to diligently pursue and prosecute its claim. At trial, t he state explained that the
delay was not deliberate because the state investigated Patten’s case until March 2016. The
record does not support the state’s claim. The state filed its complaint in February and did
not amend it. Presumably , the state had the evidence that it needed to prosecute when it
filed the complaint. Even assuming the state procured additional evidence after the
complaint was filed, that does not explain the delay in setting Patten’s first appearance.
Patten’s objection is valid, but there is no evidence the delay was intentional. Thus , the
predemand delay weighs only slightly against the state.
Next, we consider postdemand delays. Patten objects to the delay between the
scheduled trial date (June 14, 2016) and when the trial actually began (July 8, 2016), which
caused Patten’s trial to fall outside of the 60-day deadline. A speedy-trial date may be
continued for good cause. Minn. R. Crim. P. 11.09(b). On the first day of Patten’s
scheduled trial, the state sought a continuance because the prosecutor had begun a trial the
day before in another speedy -trial case and the court found good cause. But good cause
does not include calendar congestion unless exceptional circumstances exist. State v.
Griffin, 760 N.W.2d 336, 340 (Minn. App. 2009) (“[O]vercrowding in the court system is
not a valid reason for denying a defendant a speedy trial.”); see generally McIntosh v.
Davis, 441 N.W.2d 115, 119-20 (Minn. 1989) (describing exigent circumstances as “the
death of the trial judge or if the courthouse burned and there was no immediate space
available”). Here, the state failed to articulate any exceptional circumstances. While we
recognize the high demands placed on prosecutors and district courts to manage heavy
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criminal trial calendars, a district court abuses its discretion in finding good cause based
on a single prosecutor’s trial schedule when the in-custody defendant’s case was set for
trial more than 60 days earlier with the state’s acquiescence. After a careful review of the
record, we cannot discern any exceptional circumstances that provide good cause to
continue Patten’s speedy-trial date.
The state argues that the delay from June 14 to July 8 is partly attributable to Patten
because he was aware the assigned judge was unable to reschedule quickly and declined
“standby” status. We are not persuaded because the “standby ” status brings no guarantee
that Patten would have begun trial before July 8.
Thus, the state is responsible for delaying the start of Patten’s trial. Because there is
no evidence that the state deliberately delayed trial, the delay weighs slightly against the
state. See Taylor, 869 N.W.2d at 20 (stating that unintentional causes for delay “weigh less
heavily” against the state). In sum, the predemand and postdemand delays weigh slightly
against the state, because the state was responsible for those delays but did not intentionally
cause either delay.2

2 Patten argues that the state is responsible for the “lengthy delay” in completing the trial.
After the trial began on July 8, the prosecutor requested, and the court granted, a
continuance due to the unavailability of a state witness. Patten acknowledges that witness
unavailability supports a district court’s discretionary decision to continue a trial. Windish,
590 N.W.2d at 317. Because Patten cites no legal authority for a speedy -trial violation
based on a good-cause continuance after a trial has begun, we do not consider this argument
further. State v. Butcher , 563 N.W.2d 776, 780-81 (Minn. App. 1997) (explaining that
issues not adequately briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).
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C. Strength of speedy-trial demand
A defendant’s assertion of the right to a speedy trial “is entitled to strong evidentiary
weight.” State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989) (quoting Barker, 407 U.S.
514 at 531-32, 92 S. Ct. 2192-93). Courts evaluate “[t]he circumstances surrounding the
frequency and intensity of a defendant’s assertion of a speedy trial demand.” Windish, 590
N.W.2d at 318. Patten made his first speedy-trial demand on April 13, 2016. Patten’s initial
demand was clear and unequivocal and he reasserted the demand twice. The third Barker
factor weighs in favor of finding a speedy-trial violation.
D. Prejudice
Whether a defendant is prejudiced by trial delay is determined in light of three
interests served by the right to a speedy trial: “(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.” Taylor, 869 N.W.2d at 20 (quotation
omitted). The third interest, impairment of the defense, is the most important. Id.
First, regarding pretrial incarceration, Patten concedes that he was already serving
time on an unrelated matter when he was charged in February 2016. Patten remained in
custody until May 3, 2016, and argues that after May 3, the February charges were the only
reason for his continued incarceration. Second, regarding the accused’s anxiety, Patten
argues that his anxiety was heightened because he had just survived cancer and feared delay
in his treatment and programing, although he provides no details . The state contends that
Patten’s previous incarceration diminishes the likelihood he experienced any anxiety
waiting for trial.
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Regarding the third interest, Patten does not identify how the delay impaired his
defense. Because it is difficult to prove exactly how a case was impaired by delay, “[a]
defendant does not have to affirmatively prove prejudice; rather, prejudice may be
suggested by likely harm to a defendant’s case.” Windish, 590 N.W.2d at 318. To establish
that a delay harms the defense, a defendant must “suggest evidentiary prejudice.” Taylor,
869 N.W.2d at 20 (quotation omitted). Evidentiary prejudice may include damage to a
witness’s ability to recall “essential facts,” the unavailability of a witness, or im pairment
of representation. Jones, 392 N.W.2d at 235-36.
Patten fails to suggest any evidentiary prejudice. The state argues that Patten used
this pretrial period to procure E.H.’s retraction of her statements to police officers. The
state’s position has ample support in E.H.’s testimony and the district court’s findings of
fact. See State v. Patten, No. 27-CR-16-4099, at *5, *9 (Minn. Dist. Ct. Aug. 2, 2016)
(finding that while incarcerated, Patten pressured E.H. to “fix” her testimony). Because
Patten suggests no evidentiary impairment, the fourth Barker factor weighs against a
speedy-trial violation.
Upon balancing the Barker factors, we conclude that Patten was not denied his right
to a speedy trial. Although the length of delay raises a presumptive violation, the state’s
responsibility for the delay only weighs slightly against it because there was no evidence
that the state intentionally delayed to gain an advantage. Patten affirmatively demanded his
speedy-trial right, but he has not suggested any evidentiary prejudice from the delay. In
fact, Patten used the delay to pressure a witness to recant. Therefore, we conclude that the
balance of the Barker factors overcomes the presumption of a speedy-trial violation.
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II. Patten’s sentence should be modified to remove the conditional release and
predatory offender terms because neither is authorized by law.

Patten argues that his sentence should be modified to vacate the predatory offender
and conditional release terms because neither is authorized by law. The state concedes that
the predatory-offender statute and the conditional-release statute do not apply to Patten’s
conviction and agrees that these sentencing terms should be vacated . Interpreting a
sentencing statute is a question of law, which appellate courts review de novo. State v.
Noggle, 881 N.W.2d 545, 547 (Minn. 2016).
Minn. Stat. § 609.3455 , subd. 6 (2014), provides that persons convicted of certain
enumerated offenses shall be placed on conditional release for ten years. In addition, the
Minnesota legislature requires persons charged with or convicted of certain offenses to
register as predatory offenders.3 See Minn. Stat. § 243.166, subd. 1b (2014); Minn. Stat. §
243.167, subd. 2 (2014). Patten was convicted of receiving profits from prostitution in
violation of Minn. Stat. § 609.322, subd. 1a(3), which is not enu merated as a qualifying
offense in either the conditional- release statute or in the predatory -offender statutes. We
conclude, therefore, that the ten-year conditional-release term and the predatory -offender
registration requirement term should be vacated from Patten’s sentence.

3 We note that Minn. Stat. § 243.166, subd. 1b(a)(2), requires persons charged with
violating Minn. Stat. § 609.322, subd. 1(a)(2), promotion of the prostitution of a minor and
Minn. Stat. § 609.322, subd. 1(a)(3), engaging in sex trafficking of a minor to register as
predatory offenders. Patten was not charged with either of these offenses.
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Thus we affirm Patten’s conviction, reverse the contested terms of Patten’s
sentence, and remand to vacate the conditional release and predatory offender registration
terms, consistent with this opinion.
Affirmed in part, reversed in part, and remanded.