State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0711

State of Minnesota,
Respondent,

vs.

Nicholas James Link,
Appellant.

Filed March 2, 2020
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Olmsted County District Court
File No. 55-CR-18-6328

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, Je nnifer D. Plante, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from final judgment, appellant Nicholas James Link argues that
the three direct contempt determinations su mmarily made by the district court must be

2
reversed because his conduct did not constitu te criminal contempt . Alternatively, he
challenges the contempt sentences, arguing th at (1) two of the three 30-day contempt
sentences must be vacated because his con duct constituted a single behavioral incident,
(2) any contempt sentences must be served concurrently with the sentence imposed for his
underlying offense of violating an orde r for protection (OFP), and (3) the 90-day
cumulative contempt sentence exaggerates the criminality of his conduct. Because we hold
that the record supports the first contempt finding but does not support the second and third
contempt findings, we affirm th e first finding but reverse the second and third. As to the
sentences, only the first 30-day sentence remains, and we hold that the district court did
not err by ordering that it be served consecu tively with the sentence for Link’s violation-
of-an-order-for-protection offense. Accordingly, we affirm in part, reverse in part, and
remand to correct the warrant of commitment.
FACTS
On September 26, 2018, Link pleaded guilty to violating an OFP under Minn. Stat.
§ 518B.01, subd. 14(d)(1) (2018). The state agreed to recommend a sentence of 30 months’
imprisonment, which is in th e middle of the sentencing gui delines range, and to support
Link’s request to be released without monetary bail pending sentencing. The district court
accepted Link’s guilty plea and released him pe nding sentencing, with instructions to
comply with a presentence investigation ( PSI) and make all future court appearances.
Sentencing was scheduled for December 3. On November 26, 2018, Link’s assigned PSI
agent filed a notice with the district court sta ting that Link had failed to comply with the

3
PSI and detailing her efforts to contact him. On November 28, the dist rict court issued a
warrant for Link’s arrest.
Link was arrested on Decem ber 3 and appeared for a hearing on December 4. A
judge who had not presided over the previous proceedings in Link’s case presided over the
December 4 hearing. Link was assisted by a public defender who had not represented him
in the previous proceedings. Th e hearing began with the distri ct court incorrectly stating,
based on an error in the arrest warrant, that the warrant had issued because Link had failed
to appear for a rule 8 hearing in the case.1 See Minn. R. Crim. P. 8. Link then asked what
the rule 8 hearing was for and explained that he had pleaded guilty and was released until
sentencing. Link’s public defender stated, “I think he missed sentencing, Your Honor.”
The district court examined the case file and found that the warrant had actually issued due
to Link’s failure to comply with the PSI.
The district court then attempted to begin rescheduling sentencing, but Link
interjected that he was “actua lly thinking of maybe withdraw ing [his] plea.” The public
defender seemed surprised and asked Link if he had discussed a plea withdrawal with the
attorney who had represented him at the prev ious proceedings; Link replied that he had.
The district court and the clerk of court ha d a brief exchange about Link needing to
complete a PSI before sentenci ng, and Link again interjected that he wanted to get his

1 The warrant incorrectly stat es that Link failed to appe ar for a rule 8 hearing on
September 26, 2018, which is the date on which he appeared and pleaded guilty. But the
warrant correctly marks “Fail to appear for PSI” as the reason for its issuance.

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desire to withdraw his plea on the record. At this point, the following exchange occurred
between Link and the district court:
THE COURT: Mr. Link, how about if you not talk for a
minute here? How’s that sound?
LINK: Well, I’d just like to get it on the record that I’d like to
withdraw my plea from the last appearance.
THE COURT: Okay, Mr. Link, when I say don’t talk, I mean
don’t talk. You have a lawyer who’s representing you there at
counsel table. Your communications with the court—
LINK: I asked for no lawyer today.
THE COURT: Mr. Link, if you talk one more time when I
haven’t asked you a question, I’m going to hold you in
contempt of court.
LINK: I’m already in contempt of court.
THE COURT: Mr. Link, maybe this isn’t registering with
you. If you do that again, I’m going to hold you in contempt of
court and you’ll do jail time what ever happens with regard to
the—
LINK: I’m going to prison, Your Honor.
THE COURT: Yeah, and I can add more time to that,
Mr. Link. And, in fact, I find you in contempt of court, and I’m
adding 30 days to whatever prison sentence you get.
LINK: I would like it on the record that I will be withdrawing
my guilty plea from September 26th. That’s all I’m saying.
THE COURT: And now it’s 60 days. Would you like to go
for 90?
LINK: Thank you. That’s all I wanted to say.
THE COURT: Yeah. Now it’s 90.
LINK: I was talking to my lawyer. I’m sorry.
THE COURT: Okay, but now you weren’t. It’s 90 days.

The district court then rescheduled Link’s sentencing hearing.
Link appeared for sentencing on Febr uary 8, 2019. The judge who originally
presided over Link’s plea hearing presided over Link’s sentencing hearing, and Link was
represented by the public defender who assisted him at the plea hearing. The district court
denied Link’s motion to withdraw his guilty plea and imposed the presumptive sentence of

5
30 months’ imprisonment for the OFP violation. It then addressed the contempt findings
and sentences from the December 4 hearing, stating that the judge at that hearing “indicated
that he was giving you 90 days for contempt of court. I will be adding that contempt of
court language to the sentencing order . . . generate[d] out of today’s hearing.” The district
court explained to Link that, once he had served his prison sentence for the OFP violation,
he would return to the jail to serve the cumulative 90-day c ontempt sentence. Link then
interrupted the district court to point out that the judge who imposed the contempt
sentences never stated whethe r the sentences were consecu tive or concurrent, and the
district court replied, “It’s a 90 day sentence . . . I’m ordering that because [the other judge]
ordered it, it’s going on this reco rd today and there is nothing to indicate to me that he
intended that to be concurrent. Contempt se ntences are generally consecutive and that’s
what I’m ordering here today.”
This appeal follows.
D E C I S I O N
I. The record supports the first contempt finding but does not support the second
and third.

Appellate courts review a district court’s contempt order for an abuse of discretion.
See Erickson v. Erickson , 385 N.W.2d 301, 304 (Minn. 1986); Crockarell v. Crockarell,
631 N.W.2d 829, 833 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).
Specifically, a contempt order is reviewed “for arbitrariness, capriciousness, and
oppressiveness.” State v. Schloegl, 915 N.W.2d 14, 20 (Minn. App. 2018) (quoting State
v. Tatum, 556 N.W.2d 541, 547 (Minn. 1996)), review denied (Minn. July 17, 2018).

6
Minnesota Statutes specify “two kinds ” of contempts of court: “direct and
constructive.” Minn. Stat. § 588.01, subd. 1 (2018). Direct contempts are those that occur
in the “immediate view and pr esence of the court” and ar ise either from “disorderly,
contemptuous, or insolent behavior toward the judge while holdi ng court, tending to
interrupt the due course of a trial or other judicial procee dings” or from “a breach of the
peace, boisterous conduct, or vi olent disturbance, tending to interrupt the business of the
court.” Id., subd. 2 (2018). Direct contempts “may be punished summarily, for which an
order shall be made reciting the facts as occu rring in the immediate view and presence of
the court or officer, and adjudging the person proceeded against to be guilty of a contempt,
and that the person be punished as therein specified.”2 Minn. Stat. § 588.03. Constructive
contempts, on the other hand, are those “not committed in th e immediate presence of the
court, and of which it has no personal know ledge” and arise from any one of eleven
statutorily specified “acts or omissions.” Minn. Stat. § 588.01, subd. 3 (2018). Constructive
contempts may not be punished summarily by the court. Tatum, 556 N.W.2d at 545.
Minnesota caselaw further categorizes contempts as either criminal or civil. See id.
at 544. This distinction is based on the purpose of the contempt order. A contempt order is
civil in nature if it “impos[es] a sanction that will be removed upon compliance with a court
order that has been defied.” Id. A civil contempt order is intended to be “remedial rather
than punitive because its purpose is to coerce compliance w ith [a court] order, not to

2 Link does not argue that the district court abused its discretion by failing to issue an order
consistent with the provisions of Minn. Stat. § 588.03 (2018), so we do not reach that issue
here.

7
vindicate the authority of the court.” Mower Cty. Human Servs. v. Swancutt, 551 N.W.2d
219, 222 (Minn. 1996). A cont empt order is criminal in nature if it “punish[es] the
contemnor for past behavior.” Tatum, 556 N.W.2d at 544 . “Criminal contempt is to
preserve the authority of the court by punishing past misconduct.” In re Welfare of E.J.B.,
466 N.W.2d 768, 770 (Minn. App. 1991) (quoting In re Welfare of A.W., 399 N.W.2d 223,
225 (Minn. App. 1987)).
The parties agree that this case involves direct, criminal contempt. This agreement
is supported by the re cord, as Link’s underlying conduct occurred in the presence of the
court and the contempt order was punitive, rather than remedial, in nature.
Link argues that the district court abused its discretion by finding him in direct
contempt of court based on his statements at the December 4 heari ng because he did not
make any statements contumaciously, in bad fa ith, and out of disrespect for the judicial
process and because the district court acted capriciously.
Link asserts that the legal standard for contempt was not satisfied because contempt
requires not only disobedience to the court but also bad faith and disrespect for the judicial
process. For support, he cites Minn. State Bar Ass’n v. Divorce Assistance Ass’n, Inc. ,
which states that “[o]ne limitation on the [dis trict] court’s admittedly broad discretion to
impose a contempt sanction is that such sanc tion is appropriate only where the alleged
contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial
process.” 248 N.W.2d 733, 740 (M inn. 1976) (emphasis added); see also Erickson , 385
N.W.2d at 304 (stating that a district court may utilize its contempt power “only where the
contemnor has acted contumaciously, in bad fa ith, and out of disrespect for the judicial

8
process” (quotation omitted)). Link argues that his statements, especially when viewed in
the context of the hearing as a whole, were no t made disrespectfully or in bad faith, as he
was attempting to speak on his own behalf when everyone else in the courtroom—
including his attorney—was unfamiliar with his case. He argues that he was merely making
a legitimate legal request to withdraw his guilty plea.
The state responds that the contempt inquiry turns only on whether the defendant’s
behavior interrupted the proceedings and hindered the administration of justice and that the
defendant’s purpose for the behavior is irrelevant. The state cites no supporting authority,
but its assertion seems to reference Minn. St at. § 588.01, subd. 2, which defines direct
contempts as arising from acts that include “disorderly, contemptuous, or insolent behavior
toward the judge while holding court, tending to interrupt the due course of a trial or other
judicial proceedings.” But the state’s position reads out the first part of the definition and
ignores the caselaw appropriately cited by Link. Furthermore, to the extent that the state’s
argument implies that the statute supersedes th e caselaw, this argument fails because the
statutory definition of direct contempt cited above, found in Minn. Stat. § 588.01, subd. 2,
dates back to 1905 and was thus in place well before the cited caselaw. See 1905 Minn.
Laws ch. 91, § 4637, at 989.
We turn, then, to whether the record supports the district court’s determination that
Link acted contumaciously, in bad faith, and out of disrespect for the judicial process. See
Minn. State Bar Ass’n , 248 N.W.2d at 740. Here, the co nduct found to be contemptuous
consisted of speaking directly to the district court after instruction from the district court
to remain silent. Link’s statements were br ief and non-profane, and the record does not

9
indicate that he was raising his voice. As Link points out, this case is distinguishable from
others where the contemnors engaged in behavior such as shouting obscenities directed at
the district court or throwing objects in the courtroom. See, e.g., Schloegl, 915 N.W.2d at
20.
The sequence of the exchange leading to the first contempt finding was that (1) the
district court instructed Link to speak only to his attorney, (2) Link interrupted and stated
that he did not want an attorney at the heari ng, (3) the district cour t threatened him with
contempt of court, (4) Link stated that he was already in contempt, (5) the district court
began explaining that it could add jail time for Link, (6) Link interrupted again to state he
was already going to prison, and (7) the distri ct court found Link in contempt and added
30 days to his sentence. The second and third contempt findings rapidly followed, as Link
spoke again to say that all he wanted was fo r the record to reflect that he would be
withdrawing his guilty plea, and the district court responded, “And now it’s 60 days. Would
you like to go for 90?” Link replied, “Thank you. That’s all I wanted to say,” to which the
district court responded, “Yeah. Now it’s 90.” When Link then stated that he had only been
speaking to his attorney in the prior statement, the district court replied, “Okay, but now
you weren’t. It’s 90 days.”
With respect to the first contempt finding, the district court repeatedly instructed
Link to remain quiet, and Link repeatedly disobeyed that instruction. In doing so, he acted
contumaciously, in bad faith, and out of disrespe ct for the judicial process. The district
court did not act capriciously by punishing this behavior. We conclude that the record
supports the first contempt finding.

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We cannot, however, uphold the second and third contempt findings on this record.
The statement by Link that gave rise to the second contempt finding merely relayed Link’s
legal position. Importantly, Link was speaking on his own behalf, albeit out of turn, in the
context of a hearing at which everyone else in the courtroom was unfamiliar with his case
and at which he had had to correct misunderstandings about his case. Although the act of
speaking out of turn may be characterized as disrespectful, the content of the statement was
not disrespectful to the court or the judici al process. Neither was the content of his
statement that prompted the third contempt finding—that finding ended up being based on
Link’s response to the district court explaini ng that he had been talking to his lawyer.
Moreover, it is troubling that the third contempt finding was preceded by a question from
the district court that appeared to invite Link into a power struggle (“Would you like to go
for 90?”). The court’s power to summarily punish direct contempts is “an arbitrary power,
born of necessity, which must be exercised with great prudence.” State ex rel. Russell v.
Dist. Court, Fourteenth Judicial Dist., Polk Cty., 62 N.W. 831, 832 (Minn. 1895). On this
record, the second and third contempt dete rminations, imposed for Link’s brief, non-
profane statements relaying his legal position, did not meet this standard. We reverse the
second and third contempt findings and re mand for correction of the warrant of
commitment.3

3 We note that, even if all three contempt findings were supported by the record, the
sentences for the second and third contempts w ould have to be vaca ted because all three
contempts occurred as part of a single behavioral incident. “To protect people convicted of
multiple offenses from having th e criminality of their conduc t exaggerated, Minn. Stat.
§ 609.035 . . . prohibits multiple sentences for offenses that were committed as part of a
single behavioral incident.” State v. Hawkins, 511 N.W.2d 9, 13 (Min n. 1994). This rule

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II. The district court did not err by ord ering that Link’s contempt sentence be
served consecutively with his OFP-violation sentence.

Link next argues that because the district court judge at the December 4 hearing did
not explicitly state that Link’s contempt sent ences were to be served consecutively with

applies to contempt sentences. See State v. Lingwall, 637 N.W.2d 311 (Minn. App. 2001).
In Lingwall, this court reviewed an exchange between a defendant and the district court
that was structurally similar to the one in this case. 637 N.W.2d at 312-13. There, after the
district court reinstated a bail bond and set a trial date, the defendant stated, “This is f--
king stupid,” and the following exchange ensued:

THE COURT: That’s contempt, sir, and that is six months.
THE DEFENDANT: I ain’t did anything.
THE COURT: You are done.
THE DEFENDANT: My f--king a-s.
THE COURT: That’s another six months.
THE DEFENDANT: Suck my d--k, too.
THE COURT: That’s another six months. He’s up to a year
and a half. Take him to the workhouse.

Id. On appeal, Lingwall argued that, because his contumacious conduct occurred as part of
a single behavioral incident, the district court erred by imposing three separate sentences.
Id. at 314. This court agreed and vacated two of the three sentences. Id. at 315. We reasoned
that Lingwall’s statements occurred “in the same courtroom, at very nearly the same time,”
and “all appeared to have the same objective of flaunting Lingwall’s disrespect for the
court.” Id. at 314. Similarly here, Link’s statements occurred at nearly the same time and
in the same proceeding, and all appeared to have the same purpose of informing the court
that he intended to withdraw his guilty plea. We would accordingly vacate the second two
contempt sentences.

We note also that we need not reach Link’s argument that a 90-day cumulative contempt
sentence exaggerates the crimin ality of his conduct because we reverse the second two
contempt determinations. Additionally, Link has not shown that one 30-day sentence is
disproportionate to his offense. See State v. Smallwood, 594 N.W.2d 144, 157 (Minn. 1999)
(stating that an appellate court “will not interfe re with a [district] court’s discretion in
sentencing unless the sentence is disproportionate to the offense”).

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his OFP-violation sentence, the district court judge at the February 8 hearing was without
authority to order that the sentences be served consecutively.
In Minnesota, multiple sentences are presumed to run concurrently unless the court
specifies that they are to run consecutively. Minn. Stat. § 609.15, subd. 1 (2018). At the
time that the sentence is imposed , the district court must preci sely state on the record the
terms of the sentence—includin g whether multiple sentences ar e to run concurrently or
consecutively. State v. Rasinski, 527 N.W.2d 593, 594-95 (Minn. App. 1995) (citing Minn.
R. Crim. P. 27.03, subd. 4(A)). The power to summarily sentence contempt is limited to
the judge in whose presence the contempt occurred, so the inquiry is whether the judge at
the December 4 hearing—not the judge at the February 8 hearing—precisely stated on the
record that Link’s contempt sentence was to run consecutively with his OFP-violation
sentence. See In re Contempt of Armentrout, 480 N.W.2d 685, 688 (Minn. App. 1992).
When the district court made the first contempt finding at the December 4 hearing,
it stated that it was “ adding 30 days to whatever prison senten ce” Link received for the
OFP violation. (Emphasis added.) Link argues that this “adding” lan guage is insufficient
to precisely state on the record whether the sentences are to run concurrently or
consecutively. He argues that this was an “informal comment,” which cannot transform a
presumptively concurrent sentence into a consecutive one, and cites Rasinski for support.
See 527 N.W.2d at 595. Rasinski is distinguishable, though. In Rasinski, we rejected the
argument that the district court had made a precise declaration of consecutive sentences
based entirely on off-the-record stat ements by the district court. See id. Here, the district
court stated on the record that it was adding the contempt sentence to the sentence for the

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OFP-violation conviction. The district court’ s statement was sufficien tly precise to state
the consecutive nature of the contempt sentence.
In sum, we affirm the first contempt fi nding and its corresponding sentence of 30
days in jail to be served consecutively with Link’s sentence for his OFP offense. We reverse
the second and third contempt fi ndings and remand to the district court for correction of
the warrant of commitment.
Affirmed in part, reversed in part, and remanded.