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This opinion is nonprecedential except as provided by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
A23-0037

State of Minnesota,
Respondent,

vs.

Aaron Morris Swenson,
Appellant.

Filed July 31, 2023
Affirmed
Slieter, Judge

Redwood County District Court
File No. 64-CR-20-591

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

Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota; and

Travis J. Smith, William C. Lundy, Special Assistant County Attorneys, Slayton,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges his sentence because the district court imposed it in his
absence and because the sentence imposed was at the top of the presumptive guidelines
2
range. Because the district court’s error in imposing a sentence in appellant’s absence is
harmless beyond a reasonable doubt and imposition of the presumptive sentence was
within its discretion, we affirm.
FACTS
On March 12, 2021, a jury found appellant Aaron Morris Swenson guilty of first -,
second-, third-, and fifth-degree assault. The district court convicted Swenson of
first-degree assault and imposed a sentence of 161 months’ imprisonment, which is in the
middle of the presumptive range applicable to that offense. Swenson directly appealed,
and our court reversed his conviction for first-degree assault due to insufficient evidence
and remanded for further proceedings on the remaining counts. State v. Swenson, No.
A21-0848, 2022 WL 2195532, at *6 (Minn. App. June 20, 2022), rev. denied (Minn. Aug.
23, 2022).
On remand, the district court held a remote sentencing hearing. The state argued
for a 71-month, top-of -the-box sentence on the second-degree assault count. Swenson
argued for a 60-month, middle-of-the-box sentence because the district court had
previously imposed a middle-of-the-box sentence for first-degree assault. At the end of
the hearing, the district court “want[ed] to verify a couple of things” and “think about
sentencing for just a . . . moment,” and stated that it would “issue a sentencing order
following the hearing here today.” Later that day and without reconvening the sentencing
hearing, the district court issued a sentencing order and warrant of commitment sentencing
Swenson to 71 months’ imprisonment.
Swenson appeals.
3
DECISION
I. The district court’s error in sentencing Swenson in absentia was harmless
beyond a reasonable doubt.

“A defendant’s constitutional right to be present [at trial] is grounded in the
Confrontation Clause of the Sixth Amendment and the Due Process Clause of the
Fourteenth Amendment.” Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005); State v.
Gillam, 629 N.W.2d 440, 450 (Minn. 2001). The Sixth Amendment’s Confrontation
Clause guarantees defendants the right to confront the witnesses against them, and the
Fourteenth Amendment Due Process Clause guarantees defendants “the right to be present
at all critical stages of trial,” when their “presence has a relation, reasonably substantial, to
the fullness of [their] opportunity to defend against the charge.” Ford, 690 N.W.2d at 712
(quotation omitted). The Minnesota Rules of Criminal Procedure provide a similar but
broader right to be present “for every stage of the trial.” Minn. R. Crim. P. 26.03, subd.
1(1); Ford, 690 N.W.2d at 712 (recognizing that the rule is broader than the constitutional
right); State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993) (same).
The Minnesota Rules of Criminal Procedure provide that a “defendant must be
present at the sentencing hearing and sentencing, unless excused under Rule 26.03, subd.
1(3).” Minn. R. Crim. P. 27.03, subd. 2(A). Rule 26.03 also states that a defendant “must
be present at arraignment, plea, and for every stage of the trial including . . . sentencing.”
Minn. R. Crim. P. 26.03, subd. 1(1)(h). Exceptions to the presence requirement do not
include sentencing in felony cases. See Minn. R. Crim. P. 26.03, subd. 1(3) (providing
exceptions for corporations; misdemeanor cases; gross misdemeanor cases; and felony
4
cases, when the court may, “on defendant’s motion, excuse the defendant’s presence except
at arraignment, plea, trial, and sentencing”), subd. 1(2) (allowing trials to “proceed to
verdict” if “[t]he defendant is absent without justification after the trial starts” or if “[t]he
defendant, after warning, engages in conduct that justifies expulsion from the courtroom”).
Instead, the defendant in a felony case has the right to be present at the imposition of a
sentence of imprisonment. State ex rel. Shetsky v. Utecht, 36 N.W.2d 126, 131 (Minn.
1949). Generally, we review a district court’s decision to proceed with a stage of trial in
the defendant’s absence for an abuse of discretion. See Gillam, 629 N.W.2d at 450.
As a preliminary matter, the state argues that we should review for plain error
because Swenson did not object to being sentenced in absentia. Plain error allows appellate
review of unobjected-to, and therefore forfeited, errors that are plain, affect substantial
rights, and seriously affect the fairness, integrity, or public reputation of judicial
proceedings. State v. Lilienthal, 889 N.W.2d 780, 784-85 (Minn. 2017); see also Minn. R.
Crim. P. 31.01 (“Any error that does not affect substantial rights must be disregarded.”).
The state concedes that the district court erred but argues that the error did not affect
Swenson’s substantial rights. Swenson asserts, based on State v. Wair, a nonprecedential
opinion from this court, that the standard we must apply is whether the error was harmless
beyond a reasonable doubt. No. A20-0470, 2021 WL 1082347, at *5 (Minn. App. Mar.
22, 2021), rev. denied (Minn. June 15, 2021); Minn. R. Civ. App. P. 136.01, subd. 1(c)
(stating that nonprecedential opinions are nonbinding but may be cited as persuasive
authority).
5
An error affected substantial rights if it “affected the outcome of the case” and “there
is a reasonable likelihood that the error had a significant impact on the proceeding.” State
v. Little, 851 N.W.2d 878, 884 (Minn. 2014) (quotation omitted). In contrast, an error is
harmless beyond a reasonable doubt if the outcome of the proceeding is “surely
unattributable to the error.” State v. McInnis, 962 N.W.2d 874, 886 (Minn. 2021)
(quotation omitted). The harmless- beyond-a-reasonable-doubt standard applies to
objected-to errors that implicate a constitutional right. State v. Davis, 820 N.W.2d 525,
533 (Minn. 2012); State v. Beaulieu, 859 N.W.2d 275, 278-80 (Minn. 2015) (applying plain
error to unobjected-to alleged constitutional error). Because the district court ended the
remote hearing immediately after indicating that it would issue a sentencing order after the
hearing, it is difficult to discern if Swenson had an opportunity to object such that we
should apply plain error review. However, we need not determine which standard to apply
because Swenson would not be entitled to relief even if we apply the more favorable
harmless-beyond-a-reasonable-doubt standard. Little, 851 N.W.2d at 884 (declining to
resolve dispute over the standard of review which did not impact the outcome of the
appeal).
Swenson argues that being sentenced in absentia was not harmless beyond a
reasonable doubt because, unlike Wair, in which our court concluded the same error was
harmless beyond a reasonable doubt, his sentence was not part of a plea agreement. See
2021 WL 1082347, at *5 (concluding that defendant’s absence at sentencing was harmless
“because appellant was sentenced to [an] agreed-upon 94-month sentence”). We are not
persuaded.
6
Swenson was present at his sentencing hearing and had the opportunity to present
arguments for his preferred sentence, through counsel and his allocution. The only portion
of sentencing during which Swenson was not present was the actual imposition of the
sentence, during which he would not have been allowed to speak even if he were present.
On this record, the nature of Swenson’s sentence is “surely unattributable” to his absence.
McInnis, 962 N.W.2d at 886. Therefore, Swenson is not entitled to relief.
II. The district court acted within its discretion by imposing a presumptive
sentence.
Swenson argues that his top-of-the-box sentence of 71 months’ imprisonment
should be modified to a middle- of-the-box sentence of 60 months’ imprisonment .
According to Swenson, because his previous sentence of 161 months’ imprisonment for
the since-reversed first-degree assault conviction was a middle-of -the-box sentence ,
imposing a top-of- the-box sentence now is unreasonable. Legal precedent compels our
disagreement.
“This court will not generally review a district court’s exercise of its discretion to
sentence a defendant when the sentence imposed is within the presumptive guidelines
range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), rev. denied (Minn. July
20, 2010); see also State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (noting that only in a
“rare case” will a reviewing court overturn a presumptive sentence); State v. Freyer, 328
N.W.2d 140, 142 (Minn. 1982) (noting that a presumptive sentence will generally not be
modified “absent compelling circumstances”).
7
In Delk, the defendant was initially convicted and sentenced on the most severe
count of which he was found guilty and received a sentence 12 months longer than the
middle-of-the-box sentence. 781 N.W.2d at 429. When the conviction underlying the
sentence was reversed and the case was remanded for proceedings on the remaining counts,
the defendant was convicted and sentenced on the next most severe count and received a
sentence 30 months longer than the middle-of-the-box sentence. Id. Our court rejected the
defendant’s request to “equalize” his sentence so it was in the same relative position within
the presumptive range as his sentence for the more severe offense had been. Id. Swenson
makes the same argument and, following Delk, we reject it.
Swenson was initially sentenced to 161 months’ imprisonment, which was in the
middle of the presumptive range of 138 months to 192 months for first-degree assault. 1
After our court reversed his conviction and remanded, he was sentenced to 71 months’
imprisonment, which is at the top of the presumptive range of 52 months to 71 months for
second-degree assault. Like in Delk, Swenson’s second sentence is not a departure, it is
for a different crime, and it is significantly shorter than the sentence initially imposed. Id.

1 Swenson’s presumptive sentence is increased by a three- month custody enhancement,
which the parties do not dispute.
8
at 428. Moreover, we have reviewed the record, and this is not the rare case in which the
imposition of a presumptive sentence is outside the district court’s broad discretion.2 Id.
Affirmed.

2 Swenson also contends that the sentence was based on the prosecutor’s statement that she
“adamantly disagree[d]” with our reversal of Swenson’s first-degree assault conviction and
that our opinion did not “reflect the state of the law and certainly d[id] not reflect the state
of the crime.” Though we too are concerned with the prosecutor’s comments, there is no
indication they influenced the district court’s sentencing decision, and they do not present
the “compelling circumstances” in which we will modify a presumptive sentence. Freyer,
328 N.W.2d at 142. As we noted about a similar argument in Delk, parties are free to
criticize our decisions, but prosecutors must keep in mind their responsibility “to seek
justice, not merely to convict.” 781 N.W.2d at 430 (quoting Young v. United States, 481
U.S. 787, 803 (1987)); see also Minn. R. Prof. Conduct 3.8 cmt. 1.