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This opinion will be unpublished and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
A19-1745

State of Minnesota,
Respondent,

vs.

Joshua James Dennison,
Appellant.

Filed August 31, 2020
Affirm in part, reverse in part, and remand
Cochran, Judge

Hennepin County District Court
File No. 27-CR-19-2849

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

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

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and
Cochran, Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Following a bench trial, appellant was conv icted of first-degree burglary (assault),
first-degree burglary (occupied dwelling), and domestic a ssault. The warrant of
commitment reflects that sentences were imposed for all three convictions.
On appeal, appellant argues that his convi ctions must be reversed because his
jury-trial waiver was invalid. Alternatively, he argues that one of his first-degree burglary
convictions and the associated sentence must be vacated because Minn. Stat. § 609.04
(2018) bars multiple convictions under the same statute where the convictions arose from
the same behavioral incident. Finally, he contends that his remaining sentences are
unlawful. Because Dennison’s jury-trial waiver was valid, we affirm in part. But because
the district court erred when it convicted Denni son of two counts of first-degree burglary
based on the same conduct and erred in sentencing, we reverse in part and remand.
FACTS
On January 21, 2019, appellant Jos hua James Dennison broke into his
ex-girlfriend’s apartment while she was asleep. His ex-girlfriend (the victim) woke up and
found Dennison in bed with her. The victim told Dennison to leave or she would call the
police. When the victim atte mpted to use her phone, Dennison hit her with his clothes.
The victim fled to a neighbor’s apartment, and the neighbor called the police.
The state charged Dennison with one count of first-degree burglary (assault) under
Minn. Stat. § 609.582, subd. 1(c) (2018), on e count of first-degree burglary (occupied

3
dwelling) under Minn. Stat. § 609.582, subd. 1(a) (2018), and one count of felony domestic
assault under Minn. Stat. § 609.2242, subd. 4 (2018).
At a pretrial omnibus hearing on March 19, 2019, Dennison appeared with a public
defender. At the hearing, Dennison requested to discharge his public defender, submitted
a petition to proceed pro se, and indicated that he wanted a bench trial. Dennison’s public
defender explained to the court that another attorney from the public defender’s office had
met with Dennison approximately a week before the hearing and “had a lengthy discussion
with him about the pros and cons of representing [himse lf].” The public defender’s
colleague also reviewed with Dennison a petition to proceed pro se.
During the hearing, the public defender went over the petition with Dennison on the
record. During the colloquy with the public defender, Dennison stated that he had been
taking medication but had stopped taking it afte r being taken into custody. The public
defender then asked Dennison if he was of a clear mind. Dennison stated that he was not
sure and requested the court give him street drugs to clear his mind. After the court
indicated that was not possible, the public defender proceeded with his questioning. The
public defender asked Dennison if he remembered talking w ith his colleague about the
petition to proceed pro se, and Dennison responded that he did. Dennison also recalled the
public defender and his colleagues telling him that he would be better off having a lawyer.
The public defender also asked Dennison if he understood that he would be held to
the same rules and standards as an attorney. Dennison conf irmed that he understood and
that he had “been trying to re ad up” on the law. The pub lic defender informed Dennison
that he could make motions and present his own evidence, and that he had a right to a

4
pre-trial hearing. The public defender also informed Dennison of his right to a trial by a
jury or a judge, and noted that was a decision that Dennison would need to make. At the
end of the questioning, the pu blic defender asked Dennison if he was of “clear enough
mind” to make the decision to waive his right to counsel and Dennison responded that he
was. The district court ultimately granted Dennison’s request to proceed pro se.
Before the public defender was dismissed, Dennison asked the court if a bench trial
would be faster than a jury trial. The public defender told Dennison that he would advise
against a bench trial. After Dennison aske d why the public defender recommend he not
proceed with a bench trial, the district cour t explained that with a bench trial, only one
person determines guilt whereas with a jury trial, “twelve peop le who don’t know
you . . . get together and they go through whatever evidence is presented and they
deliberate in the back room and they come up with whethe r or not you’re guilty or not
guilty.” Dennison stated that he would “b e more comfortable with one person judging
[him] instead of these twelve people that don’t know the law.” The district court informed
Dennison that it would instruct the jurors on the law, and suggested that a jury trial was his
“best bet.”
After a short recess, the district court de nied Dennison’s request to waive a jury
trial. The district court explained that it di d not believe that Dennison’s jury-trial waiver
was “intelligently entered into” or in his “best interest.” Dennison objected to the district
court’s decision and asserted that he had a right to waive a ju ry trial. Dennison reiterated
his request for a bench trial several more times before the hearing ended. But the district

5
court maintained its decision to deny Dennison’s request to waive a jury trial. The district
court set a trial date and explained the jury selection process to Dennison.
Two months later, on May 20, 2019, before the same district court judge, Dennison
repeated his request for a bench trial. This time the district court agreed to allow Dennison
to proceed with a bench trial. The trial started the next day. Before the trial started, the
court asked Dennison if it was still his desire to waive a jury trial, and Dennison responded,
“Yes.” The bench trial proceeded. After the bench trial, the district court found Dennison
guilty of all counts.
At sentencing, the district court imposed a sentence on only one of the first-degree
burglary charges. The district court based its sentence on a criminal-history score of three.
A sentencing worksheet in the record shows that Dennison’s criminal-history score was
calculated based on points assigned for eac h of Dennison’s prior convictions for
which a felony sentence was imposed and included a 201 6 fifth-degree
controlled-substance-possession conviction that carried a 0.5 criminal -history point.
Dennison did not object to his criminal-history-score calculation at sentencing. Dennison
requested a downward dispositional departure to a stayed sentence. The district court
denied his request and instead sentenced De nnison to 78 months’ imprisonment. Even
though the district court only pronounced a se ntence on one of the first-degree burglary
counts, the warrant of commitment shows 78-month sentences for all three counts.
Dennison appeals.

6
D E C I S I O N
Dennison argues that (1) his jury-trial waiver was invalid, (2) the district court erred
by convicting him of two counts of first- degree burglary that arose from the same
behavioral incident, (3) the district court erred when it sentenced him to an upward
departure on the domestic assa ult charge, and (4) the state failed to meet its burden of
proving that the 2016 fifth-degree cont rolled-substance-possession conviction was
properly included in his criminal-history score. We address each argument in turn.
I. Dennison’s jury-trial waiver was valid.
Dennison argues that his jury-trial wa iver was not knowin g, intelligent, and
voluntary because the district court failed to ensure that he understood “the basic elements
of a jury trial” when he renewed his request for a bench trial two months after the district
court denied his original request. We are not persuaded.
A criminal defendant has the constitutional right to a jury trial when charged with
an offense punishable by incarceration. State v. Kuhlman , 806 N.W.2d 844, 848
(Minn. 2011). But a criminal defendant may wa ive the constitutional right to a jury trial.
Id. Minnesota Rule of Criminal Procedure 26.01, subdivision 1(2)(a) sets forth four
requirements for waiving one’s right to a jury trial: (1) the waiver must be personal, (2) the
waiver must be written or on the record in open court, (3) the court must advise the
defendant “of the right to trial by jury,” and (4) the defendant must have had an opportunity
to consult with counsel. Strict compliance with rule 26.01, subdivision 1(2)(a) is required
for a valid waiver. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).

7
In addition to the requirements set forth by the rule, a defendant’s waiver of the right
to a jury trial must be knowin g, intelligent, and voluntary. Brady v. United States ,
397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970); see also State v. Little, 851 N.W.2d 878,
882 (Minn. 2014) (discussing knowing and intelligent requirements). To ensure a waiver
is “knowingly and voluntarily made,” the district court should engage in an on-the-record
colloquy focusing on “the basic elements of a jury trial.” State v. Ross, 472 N.W.2d 651,
654 (Minn. 1991).1 “The nature and extent of the inquiry may vary with the circumstances
of a particular case.” Id. A defendant’s familiarity with the judicial system, such as
through past convictions, and the extent of the defendant’s opportunity to consult with his
attorney can justify a less probing colloquy. Id. We review de novo whether a defendant
has been denied his constitutional right to a jury trial. Kuhlman, 806 N.W.2d at 848-49.
Based on the record as a whole, we conclude that Dennison knowingly, intelligently,
and voluntarily waived his right to a jury trial. At the Marc h hearing, the district court
advised Dennison of his right to a jury trial and explained the basic elements of a jury trial.
The district court also explained the differences between a jury trial and a court trial. The
record reflects that Dennison understood the di fferences between the two types of trials,

1 In Ross, the supreme court noted that there is no need for the defendant to have “an
exhaustive knowledge of all th e doctrinal subtleties of Sixth Amendment jurisprudence”
for a jury-trial waiver to be effective. 472 N.W.2d at 654 (quotation omitted). The supreme
court instead referred district courts to United States v. Delgado , 635 F.2d 889, 890 (7th
Cir. 1981). In Delgado, the Seventh Circuit Court of Appeals advised trial courts that they
should explain to the defend ant that “a jury is composed of twelve members of the
community, that the defendant may participate in the selection of the jurors, and that the
verdict of the jury is unanimous,” and that “if [the defendant] waives a jury, the judge alone
will decide guilt or innocence.” 635 F.2d at 890. Our supreme court commended these
“helpful guidelines” to the district courts. Ross, 472 N.W.2d at 654.

8
and understood his right to a jury trial. Moreover, after the district court denied Dennison’s
initial request for a bench trial, Dennison repe ated his request for a bench trial multiple
times before the hearing ended, noting that he had the “right to choose” between a jury trial
and a bench trial. See Minn. R. Crim. Pro. 26.01, subd. 1(2)(a) (a defendant “may waive a
jury trial on the issue of guilt provided the defendant does so personally, in writing or on
the record in open court”).
Dennison argues that because the district court denied his jury-trial-waiver request
at the March hearing, the district court was required to conduct an additional, detailed
colloquy when he made the request again before trial in May. We are not persuaded.
In determining whether Dennison’s jury-trial waiver was valid, we look at the entire
record, not solely the May waiver discussion. See State v. Pietraszewski, 283 N.W.2d 887,
890 (Minn. 1979) (concluding that there was sufficient evidence in the “entire record” for
the district court to determine a waiver wa s voluntarily and inte lligently waived). The
record demonstrates that De nnison was familiar with the j udicial system. Dennison had
five prior hearings with the court over a period of several months. And Dennison had the
opportunity to consult with counsel when he first attempted to waive his right to a jury trial
in March. While the district court could have asked more probing questions after he again
requested to waive his right to a jury trial in May, the circumstances of Dennison’s case
support the district court’s less-probing colloquy. See Ross, 472 N.W.2d at 654. Therefore,
a less-probing colloquy was sufficient. Id.
Further, Dennison cites no authority that requires the district court to conduct a new,
detailed inquiry in circumstances such as thes e. While a waiver may be invalid if the

9
prosecutor later amends the complaint to add a more serious charge, that did not occur in
this case. Cf. Little, 851 N.W.2d at 883 (holding that “when the State amends the complaint
after a defendant’s jury-trial waiver, the district court must obtain a renewed waiver of the
defendant’s right to a jury trial on the newl y added charge”). Instead, Dennison went to
trial on the original charges.
Taken as a whole, the record demonstrat es that Dennison’s decision to waive his
right to a jury trial was knowing, intelligent, and voluntary. See Pietraszewski, 283 N.W.2d
at 890 (finding that a one-question colloquy was sufficient where the trial court had
“numerous contacts” with the defendant prior to trial). Therefore, we conclude that
Dennison’s waiver was constitutionally valid.
II. The district court erred by convicting Dennison of two counts of first-degree
burglary that arose from the same behavioral incident.

Dennison next argues, and the state ag rees, that Dennison should have been
convicted of and sentenced for only one count of first-degree burglary. Dennison contends
that the district court erred by entering convictions for both counts of first-degree burglary,
in violation of Minn. Stat. § 609.04, because both convic tions arose out of the same
behavioral incident.
“Section 609.04 bars multiple convictions under different sections of a criminal
statute for acts committed during a single behavioral incident.” State v. Jackson ,
363 N.W.2d 758, 760 (Minn. 1985). However, “the protections of section 609.04 will not
apply if the offenses constitute separate criminal acts.” State v. Bertsch, 707 N.W.2d 660,
664 (Minn. 2006).

10
Here, Dennison was convicted of two forms of first-degree burglary—first-degree
burglary (assault) under Minn. Stat. § 609. 582, subd. 1(c) and first-degree burglary
(occupied dwelling) under Minn. Stat. § 609.582, subd. 1(a). Both crimes arise under the
same criminal statute. See Jackson, 363 N.W.2d at 760 n.1 (reversing so that a conviction
could be vacated where defendant was convicted of two crimes that arose under different
subdivisions of the same stat ute). Thus, the protections of section 609.04 apply unless
Dennison’s offenses constitute separate criminal acts. See Bertsch, 707 N.W.2d at 664.
The inquiry into whether two offenses are separate criminal acts is analogous to an
inquiry into whether multiple offenses constituted a single behavioral incident under Minn.
Stat. § 609.035 (2018). Bertsch, 707 N.W.2d at 664. Determining whether two intentional
crimes are part of a single behavioral incident requires consideration of the time and place
of the crimes and whether the criminal co nduct was motivated by a single criminal
objective. State v. Bauer, 792 N.W.2d 825, 828 (Minn. 2011). The state has the burden of
proving that the crimes were not part of a single behavioral incident. State v. Zuehlke ,
320 N.W.2d 79, 82 (Minn. 1982). We “review the district court’s finding of fact under a
clearly erroneous standard, and its applica tion of the law to those facts de novo.”
State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020).
Both of Dennison’s burglary convictions were based on the same behavioral
incident—Dennison entering the victim’s apartment and assaulting her. And the
convictions do not meet the “any other crime” exception because both convictions specify
burglary as the crime committed. See, e.g. , State v. Holmes , 778 N.W.2d 336, 341
(Minn. 2010) (“The phrase ‘any other crime’ means a crime that requires proof of different

11
statutory elements than the crim e of burglary.” (quotation omitted)); State v. Mitchell ,
881 N.W.2d 558, 563-65 (Minn. App. 2016), review denied (Minn. 2016). Because
Dennison’s first-degree burglary convictions fall under the same criminal statute and arose
out of a single behavioral incident, the district court erred by entering convictions for both
counts. Accordingly, we remand to the dist rict court to vacate the conviction and the
corresponding sentence of one of the two first-degree burglary counts. See Mitchell ,
881 N.W.2d at 564.
III. The district court erred when it senten ced Dennison to an upward departure
for domestic assault.

Dennison next argues that the 78-month sentence imposed on count three (felony
domestic assault) is an impermissible upward departure and must be reversed. The state
agrees. At the sentencing hearing, the dist rict court orally imposed the presumptive
guidelines sentence of 78 months’ imprisonm ent for one of Dennison’s first-degree
burglary convictions, and did not impose a sentence for the additional first-degree burglary
count or the felony domestic assault count. But the wa rrant of commitment shows a
78-month executed sentence for each of the three offenses.
A district court’s unambiguous oral pron ouncement of a sentence controls over a
conflicting written order. State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002). Here,
the district court did not pronounce a sentence for the felony domestic assault count. The
warrant of commitment is therefore incorrect. Accordingly, we reverse and remand for the
district court to issue an amended warrant of commitment that does not indicate a sentence
for this offense.

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IV. The state did not prove Dennison’s 2016 fifth-degree controlled-substance-
crime conviction qualified as a felony in calculating his criminal-history score.

Finally, Dennison argues that the district court erred by determining that his 2016
fifth-degree controlled-substa nce-crime conviction qualified as a felony (rather than a
gross misdemeanor) for purposes of calculating his criminal-history score. He maintains
that the state failed to prove that the prior offense would have been classified as a felony
under the offense definitions applicable on the date of the current offense. See Minn. Sent.
Guidelines 2.B.7.a (2018). Thus, Dennison argues, the dist rict court erred because his
criminal history score lacked a sufficient evidentiary basis. The state argues that the record
supports the district court’s classification of the 2016 conviction as a felony in its
calculation of Dennison’s criminal-history score.
“A defendant’s criminal-history score is calculated, in part, by allotting points for
each of a defendant’s prior convictions for which a felony sentence was imposed.”
State v. Williams, 771 N.W.2d 514, 521 (Minn. 2009 ). “The classification of a prior
offense as a felony is determined by current Minnesota offense definitions ( see Minn.
Stat. § 609.02, subds. 2-4a) and sentencing policies.” Minn. Sent. Guidelines 2.B.7.a. The
state bears the burden of proof at sentencing to show that a prior conviction qualifies for
inclusion within the crim inal-history score. State v. Edmison , 379 N.W.2d 85, 87, n.1
(Minn. 1985). We review a district court’s criminal-history score determination for an
abuse of discretion. State v. Strobel , 921 N.W.2d 563, 573 (Minn. App. 2018), aff’d,
932 N.W.2d 303 (Minn. 2019) (Strobel I); see also State v. Edwards, 900 N.W.2d 722, 727
(Minn. App. 2017), aff’d mem. , 909 N.W.2d 594 (Minn. 2018); State v. Stillday ,

13
646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002) (“[W]e
will not reverse the district court’s determina tion of a defendant’s criminal history score
absent an abuse of discretion.”).2
The district court imposed a sentence of 78 months for Dennison’s first-degree
burglary offense. The imposed sentence was the presumptive sentence based on a
criminal-history score of three. See Minn. Sent. Guidelines 4. A. The criminal-history
score of three was comprised, in part, of Dennison’s 2016 conviction for fifth-degree
possession of a controlled substance. Dennison was allocated 0.5 felony criminal-history
point for this offense.3
At issue here is whether the 2016 convi ction for fifth-degree possession of a
controlled substance was improperly classified as a felony in Dennison’s criminal-history
score calculation, rather than a gross misdem eanor. We conclude that it was improperly
classified because the state failed to produce evidence demonstrating that the 2016 offense
would have been a felony at the time of Dennison’s current offense committed in
January 2019.

2 Because our precedent clearly establishes an abuse-of-discretion standard for reviewing
the district court’s criminal-history score calculation in a particular case, we reject
Dennison’s argument that we re view this issue de novo. But see State v. Scovel , 916
N.W.2d 550, 554 (Minn. 2018) (noting that interpretation of the Minnesota Sentencing
Guidelines is a question of law subject to de novo review on appeal). We also recognize
that Dennison did not dispute his criminal-history score calculation before the district court.
Our review is still proper because Dennison ca nnot forfeit review of his criminal-history
score. See State v. Strobel, 932 N.W.2d 303, 305-06 (Minn. 2019) (Strobel II) (noting that
an appellant cannot forfeit review of a criminal-history score because a sentence based on
an incorrect criminal-history score is an illegal sentence).
3 The amount of points allotted for a particular offense depends upon the severity level of
the offense. Minn. Sent. Guidelines 2.B.03.

14
As noted above, “[t]he classification of a prior offense as a petty misdemeanor,
misdemeanor, gross misdemeanor, or felony is determined by current Minnesota offense
definitions (see Minn. Stat. § 609.02, subds. 2-4a) and sentencing policies.” Minn. Sent.
Guidelines 2.B.7.a. The Minnesota Supreme Court has determined that the phrase “offense
definitions,” as used in this provision of the guidelines, re fers to “the element-based
definitions of crimes” found in statutes, and that “the classification of a prior offense [as a
petty misdemeanor, misdemeano r, gross misdemeanor, or felony] is determined by
reference to the statute setting forth the elements of the crime.” Strobel II, 932 N.W.2d at
304, 309-10.
According to the presentence investigation report, Dennison has a 2016 conviction
for fifth-degree controlled substance possession fo r an offense that o ccurred in 2015. At
that time, possession of any amount of a cont rolled substance, other than a small amount
of marijuana, was a felony. See Minn. Stat. § 152.025, subd . 2(a)(1) (2014). But the
fifth-degree controlled-substance-crime statute has since been amended, see 2016 Minn.
Laws ch. 160, § 7, at 583-85, and at the time of the current offense (January 2019), a person
possessing certain amounts of a controlled substance may be gu ilty of only a gross
misdemeanor under specified circumstances. See Minn. Stat. § 152.025, subd. 4(a) (2018).
Thus, without additional information, it is impossible to determine whether the 2016
conviction at issue would have been a gross misdemeanor or a felony under the statute
applicable at the time of the current offense. And the state did not introduce any additional

15
information that would support the decision to classify the conviction at issue as a felony.4
Consequently, the state did not meet its bur den of proving that the 2016 fifth-degree
controlled-substance-crime conviction should be classified as a felony for the purpose of
calculating Dennison’s crim inal-history score. Cf. Williams, 910 N.W.2d at 740
(indicating that the state bear s the burden of proving that a prior conviction qualifies for
inclusion in a defendant’s criminal-history score).
Despite the state’s failure to prove th at the 2016 controlled-substance-crime
conviction should be classified as a felony, the district court sentenced Dennison according
to a criminal-history score that included the 2016 conviction as a felony. Because the state
failed to meet its burden of proof, we reverse and remand the matter for resentencing. See
Strobel I, 921 N.W.2d at 577. On remand, the dist rict court should provide the state an
opportunity “to further develop the sentenci ng record so that the district court can
appropriately make its determination.” State v. Outlaw , 748 N.W.2d 349, 356 (Minn.
App. 2008), review denied (Minn. July 15, 2008).
Affirmed in part, reversed in part, and remanded.

4 The state argues that the presentence investigation report included a case number, which
contained documents to show that the conviction qualifies as a felony under the applicable
statute. The state’s argument is unpersuasive. The only references to the 2016 conviction
in the record appear in the presentence investigation report and sentencing worksheet, and
they do not indicate the amount of controlled substances Dennison possessed. Moreover,
we decline to review case records that were not submitted to the district court for the first
time on appeal. See State v. Colvin , 645 N.W.2d 449, 453 (Min n. 2002). (“Appellate
courts have no more business finding facts af ter a court trial than after a jury trial.”); see
also Fontaine v. Steen , 759 N.W.2d 672,679 (Minn. App. 2009) (“It is not within the
province of appellate courts to determine issues of fact on appeal.” (quotation omitted)).