State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1158

State of Minnesota,
Respondent,

vs.

Shawn Pierre Belland, II,
Appellant.

Filed July 19, 2021
Affirmed
Smith, Tracy M., Judge

Red Lake County District Court
File No. 63-CR-20-22

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

Mike LaCoursiere, Red Lake County Attorney, Red Lake Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Florey, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from a final judgment of conviction of se cond-degree assault,
appellant Shawn Pierre Belland, II, argues that his sentencing hearing, which was held
remotely via videoconference because of the COVID-19 pa ndemic, was closed to the
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public in violation of his Si xth Amendment right to a public trial. He asserts that his
sentence therefore must be vacated and the matter remanded for a new sentencing hearing.
Belland bases his claim of courtroom closure entir ely on the fact that the record does not
contain a written notice of the sentencing hearing. We conc lude that the record is
insufficient to determine whether the district court violated Belland’s right to a public trial.
Therefore, we affirm.
FACTS
In May 2020, Belland pleaded guilty to second-deg ree assault with a dangerous
weapon. Because of the COVI D-19 pandemic, his plea hear ing was held remotely. The
district court record contains a notice of that pretrial hearing, wi th a copy to Belland,
directing that the recipient must appear fully prepared and must notify the court if the
recipient’s address changes. The notice also explains that the hearing will be held remotely
and provides directions as to how to join the remote hearing by phone or video.
Belland’s sentencing hearing was also held remotely. But the district court record
does not contain a similar notice of hearing. Nevertheless, the state and Belland appeared
at the remote sentencing hearing, and the di strict court sentenced Belland to an executed
prison term of 29 months.
Belland appeals.1

1 Respondent the State of Minnesota did not file a brief in this appeal, and we ordered that
the appeal proceed under Minn. R. Civ. App. P. 142.03.
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DECISION
Belland argues that his sent encing hearing was impermissibly closed in violation of
his constitutional right to a public trial. Th e United States and Minnesota Constitutions,
using identical language, grant criminal defe ndants the right to a public trial: “In all
criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . .” U.S.
Const. amend. VI; Minn. Const. art. I, § 6. The right to a public trial applies during all
phases of a trial. Presley v. Georgia , 558 U.S. 209, 213, 130 S. Ct. 721, 723-24 (2010);
State v. Brown, 815 N.W.2d 609, 617 (Minn. 2012).
But the right to a public trial is not absolute. State v. Taylor , 869 N.W.2d 1, 10
(Minn. 2015). Rather, the closure of a courtr oom during a criminal proceeding may be
justified if (1) “‘the party seeking to close the hearing . . . advance[s] an overriding interest
that is likely to be prejudiced ,’” (2) the closure is “‘no broader than necessary to protect
that interest,’” (3) the district court consid ers “‘reasonable alternatives to closing the
proceeding,’” and (4) the district court makes “‘findings adequate to support the closure.’”
State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995) (alteration omitted) (quoting Waller
v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984)).
Not all restrictions on access during a tr ial raise constitutional concerns—“[s]ome
restrictions on access to the courtroom are so in significant that they do not amount to a
‘true closure’ of the courtroom.” State v. Petersen , 933 N.W.2d 545, 551 (Minn. App.
2019) (quoting Taylor, 869 N.W.2d at 11). To determine whether a “true closure” occurred,
courts look to several factors, including wh ether (1) the courtroom was cleared of all
spectators; (2) the proceedings remained open to the public and press; (3) there were
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periods where the public was absent; and (4) the defendant, the defendant’s family and
friends, or other witnesses were excluded. Id.
Whether the district court violated a de fendant’s right to a public trial is a
constitutional question that we review de novo. See Brown, 815 N.W.2d at 616. A violation
of the public-trial right “is considered a struct ural error that is not subject to a harmless
error analysis.” State v. Bobo , 770 N.W.2d 129, 139 (Minn. 2009). The re medy for a
violation “should be approp riate to the violation.” State v. McRae, 494 N.W.2d 252, 260
(Minn. 1992); see also Waller, 467 U.S. at 50, 104 S. Ct. at 2217 (remanding to the district
court to redo an unconstitutionally closed suppr ession hearing and to order a new trial if
necessary based on the outcome of the suppression hearing).
With that background, we turn to Belland’s argument. As an initial matter, we note
that no Minnesota precedential decision has dete rmined that the constitutional right to a
public trial applies to a sentencing hearing. The state did not file a brief in this appeal and
thus does not argue that the right to a pub lic trial does not apply. We assume without
deciding that the right applies to a sentencing hearing.
The first question in assessing whether Belland’s constitutional right was violated
is whether a true closure actually occurred. Belland’s sole basis for asserting that his
sentencing hearing was closed is that the record contains a notice of his remote plea
hearing, which included information about how hearing participants could log in, but the
record contains no notice of the later remote sentencing hearing, at which the participants
in fact logged in and participated. Belland argues that the lack of a notice of his sentencing
hearing shows that the district court violated his right to a public trial. But the lack of a
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record of notice to the parties of the sentencing hearing does not establish that the hearing,
when it occurred, was in fact cl osed to the public. The record is insufficient to determine
whether any of the factors for determining wh ether a true closure occurred were present.
See Petersen, 933 N.W.2d at 551. And, without the establishment of a true closure, we do
not reach the question of whethe r a closure was unconstitutional. See Fageroos , 531
N.W.2d at 201-02.
Because the record is not sufficient for this court to determine that a closure
occurred, we reject Belland’s argument that hi s constitutional right to a public trial was
violated. We do so without prejudice to his ability to petition for po stconviction relief in
the district court. See State v. Gustafson , 610 N.W.2d 314, 321 (Minn. 2000) (affirming
appellant’s conviction without prejudice to appellant’s right to raise claims in a
postconviction proceeding).
Affirmed.