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This opinion is nonprecedential except as provided by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
A22-1762

State of Minnesota,
Respondent,

vs.

Donalonte Jamar Wade,
Appellant.

Filed July 3, 2023
Affirmed
Smith, John, Judge*

Hennepin County District Court
File No. 27-CR-21-14122

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

Mary F. Moriarty, Hennepin County Attorney, Sarah J. Vokes, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Francis Herbert White III, Francis White Law, PLLC, Woodbury, Minnesota (for
appellant)

Considered and decided by Cochran, Presiding Judge; Frisch, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the district court’s sentencing order because the district court did not err
in determining that the appellant violated his presentence conditions of release and in
imposing a higher guidelines sentence consistent with the plea agreement.
FACTS
Respondent State of Minnesota charged appellant Donalonte Jamar Wade with one
count of felony first- degree aggravated robbery in July 2021. Wade entered into a plea
agreement with the state in July 2022. The plea agreement contemplated that Wade would
plead guilty to the charge and receive a 92-month sentence, the bottom of the presumptive
guidelines range. See Minn. Sent’g Guidelines 4.A (2020). The state agreed to dismiss all
other active charges against Wade as well as refrain from charging two uncharged offenses.
The plea agreement also provided for Wade to be conditionally released for one week of
Electronic Home Monitoring (EHM) prior to sentencing to undergo knee surgery.
The district court held a plea hearing at which it added a term to the plea agreement.
It required that Wade comply with the conditions of his presentence release and appear for
his sentencing hearing to receive the 92-month sentence; Wade would receive a higher
guidelines sentence of 123 months if he failed to appear for sentencing or otherwise
violated the conditions of release.
1 The district court then issued a conditional -release

1 Although Wade failed to order a copy of the plea-hearing transcript for the appellate
record, he conceded at the sentencing hearing that this oral provision was added to the plea
agreement. On appeal, Wade does not challenge the addition of this provision to the plea
agreement.
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order on August 3, 2022, consistent with the plea agreement. The conditions of release
included that Wade remain law abiding, attend all court appearances and appointments
with probation, and comply with EHM rules. The conditional-release order provided for a
furlough from EHM on August 16 for Wade’s scheduled surgery.
Hennepin County Community Corrections and Rehabilitation filed a
conditional-release violation report on August 11, 2022, alleging that Wade failed to abide
by EHM rules and failed to remain law abiding. The report stated that Wade did not return
from an EHM furlough on August 10. EHM staff learned that law enforcement in Isanti
County had conducted a traffic stop of Wade’s vehicle for expired tabs and subsequently
arrested Wade for felony fifth-degree drug possession and driving after revocation.
At the sentencing hearing, the state argued that Wade violated the conditions of
release and requested that the district court impose a 123-month sentence. Defense counsel
argued that Wade had not violated the conditions of release because he had only been
charged with, not convicted of, new offenses in Isanti County. The district court took
judicial notice of the conditional- release violation report that included information about
Wade’s new charges. The district court found that Wade also violated the conditions of
release by failing to comply with the EHM rules. The district court accepted Wade’s guilty
plea and sentenced him to 123 months in prison.
DECISION
Wade argues that the district court violated his due-process rights by determining
that he violated the conditions of release without holding an evidentiary hearing on the
issue. He contends that judicial notice of the allegations contained in the
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conditional-release violation report “cannot satisfy the burden of proof required” to subject
Wade to a loss of his liberty interest in the lower sentence contemplated by the plea
agreement. He suggests that the district court should have waited for the disposition of the
Isanti County case to determine whether Wade violated the conditions of release or held
an evidentiary hearing on the alleged violation.
As a threshold matter, we note that appellate courts “generally will not decide issues
which were not raised before the district court, including constitutional questions of
criminal procedure.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Furthermore, a
defendant’s failure to request an evidentiary hearing before sentencing results in forfeiture
of the issue on appeal. See State v. Schroeder , 401 N.W.2d 671, 675 (Minn. App. 1987)
(stating that a “defendant may not wait until appeal to contest the veracity of facts in the
presentence report” that the district court used to support an upward sentencing departure),
rev. denied (Minn. Apr. 23, 1987); see also State v. Booker, 348 N.W.2d 753, 755-56
(Minn. 1984) (holding that appellant forfeited a hearsay challenge to the presentence
investigation report on which appellant’s sentence was based because appellant did not
request an evidentiary hearing to challenge the information in the report).
Here, Wade claims that he “raised due-process concerns before the district court at
the sentencing hearing.” However, we are not convinced that he raised a due-process
argument at that time.
To support his claim, Wade cites to a portion of the sentencing-hearing transcript in
which defense counsel argued that Wade “has not actually violated those conditions of
release” and that “top of the box conditions are not warranted unless and until such time as
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the . . . Defendant is adjudicated as guilty of” the new criminal charges in Isanti County.
At oral argument before this court, Wade’s counsel also pointed to a portion of the
sentencing-hearing transcript in which Wade stated, “So, I would hope that the Court will
let me continue to do what I was doing or at least let me prove my innocence.” Wade’s
counsel argued that both he and Wade “obliquely” or “implicitly” requested an evidentiary
hearing through these statements. He also cited Emspak v. United States for the proposition
that “no ritualistic formula or talismanic phrase is essential in order to invoke” a
constitutional right. 349 U.S. 190, 194 (1955). In other words, he argued, Wade was not
required to utter “magic words” at the sentencing hearing to successfully preserve his
due-process claim on appeal.
We agree that there are no “magic words” a defendant must use to request an
evidentiary hearing or otherwise raise a due -process challenge. However, Wade did need
to articulate his request in some form. Our review of the sentencing-hearing transcript
leads us to conclude that Wade made no such request. He did not explicitly request an
evidentiary hearing or argue that he was entitled to any additional process. He did not ask
for the opportunity to elicit testimony from the author of the conditional-release violation
report or to present evidence to contradict the allegations in the report. We therefore
conclude that Wade forfeited this issue on appeal because he did not raise a due-process
claim in district court or request an evidentiary hearing to determine whether he violated
the conditions of his release.
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Even if we were to address Wade’s due- process argument on the merits, it would
fail. Appellate courts undertake a two-step analysis to determine whether the district court
violated a defendant’s right to due process:
A due-process analysis requires courts to consider whether the
state has interfered with a party’s liberty or property interest
and, if so, whether the procedures provided were
constitutionally sufficient. A constitutionally protected liberty
interest arises from a legitimate claim of entitlement rather than
simply an abstract need or desire or a unilateral expectation.

State v. Batchelor, 786 N.W.2d 319, 322-23 (Minn. App. 2010) (quotation omitted). A
defendant has no legitimate claim of entitlement to the sentence contemplated by a plea
agreement if he fails to comply with the conditions of the plea agreement. Id. at 323.
Here, the district court’s finding that Wade violated the conditions of release by
failing to abide by EHM rules is dispositive of this issue. Wade disputes that his new
criminal charges constituted a failure to remain law abiding, and at oral argument Wade’s
counsel argued that the criminal charges were the “proximate cause” of Wade’s alleged
violation of the EHM rules. However, there is no reasonable dispute that Wade did not
return from the EHM furlough and was terminated from the EHM program. And we
conclude that the district court’s judicial notice of the conditional-release violation report
was sufficient to support its finding that Wade failed to comply with the EHM rules. This
alone constitutes a violation of the conditions of release, which allowed the district court
to impose the 123-month sentence pursuant to the plea agreement. Therefore, we affirm
the district court’s sentence on these grounds.
Affirmed.