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This opinion is nonprecedential except as provided by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
A23-0132

State of Minnesota,
Respondent,

vs.

Jesse Lee Fechner,
Appellant.

Filed December 26, 2023
Affirmed
Worke, Judge

St. Louis County District Court
File No. 69DU-CR-18-4072

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

Kimberly J. Maki, St. Louis County Attorney, Nathaniel T. Stumme, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Bjorkman, Judge; and Ede,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
In this direct appeal from the judgment of conviction for first-degree criminal sexual
conduct, appellant argues that the district court erred when it granted respondent’s
peremptory removal request and violated his right to a speedy trial. We affirm.
2
FACTS
In 2018, respondent State of Minnesota charged appellant Jesse Lee Fechner with
one of count first-degree criminal sexual conduct and one of count third-degree criminal
sexual conduct for conduct that occurred in 2011. See Minn. Stat. §§ 609.342, subd.
1(e)(ii); .344, subd. 1(d) (2010).
Fechner’s first court appearance on charges relevant to this appeal was in January
2019, after which Fechner was released on his own recognizance pending trial. Over the
next couple of years, Fechner’s trial date experienced several delays related to Fechner’s
multiple unrelated case files that were pending, 1 various administrative delays, and
scheduling issues caused by the COVID-19 pandemic.
In April 2021, Fechner was charged with DWI, in violation of his probation on one
of the unrelated criminal matters. Following a probation-violation hearing, Fechner was
held in custody pending the resolution of the alleged unrelated violation.
On January 12, 2022, a pretrial hearing on the charges relevant to this appeal was
held. At Fechner’s request, the district court continued the proceedings and recommended
that the parties submit availabilities for trial via email due to Fechner’s multiple case files.
The proceedings were continued without the district court making a substantive ruling.

1 The three case files included: the criminal sexual conduct relevant to this appeal, a
domestic-assault charge, and an alleged probation violation for felony
driving-while-intoxicated (DWI) offense. The district court sentenced Fechner to a stayed
sentence of 36 months for first- degree DWI, and later revoked the stay for the following
probation violations: (1) failure to report a probation violation; (2) failure to cooperate with
the search of his person and vehicle; (3) use or possession of mood -altering substances;
and (4) failure to provide a urine analysis.
3
On February 17, 2022, Fechner made a record of his request for a speedy trial.
When asked to confirm the judicial assignment of this case, the district court replied that it
noticed “that Judge Eichenwald was removed, but [it] did not see Judge Hylden had been
assigned.” The district court stated that it will “do horse trading,” if needed to keep the
scheduled trial dates. On April 15, Fechner, now acting pro se, submitted a second
speedy-trial demand.
The state moved for peremptory removal of the assigned judge on June 15, 2022 .
The district court granted the removal request. Fechner did not object to the removal.
At a final settlement conference, the district court expressed its concerns about
Fechner’s custody status given the number of criminal charges still pending resolution.
The district court summarized Fechner’s custody status as:
[released on his own recognizance] on the trial that’s coming
up. But there are other files that have either bail or no bail
settings set. [The district court’s] understanding is [f]ile . . .
17-3396 . . . was . . . [a] [p]robation violation. [And
Fechner]’s [currently] being held without bail pending
resolution of the [p]robation [v]olation in that file.

Regarding Fechner’s probation violation, the district court noted that “Fechner was
sentenced on that file to a 36-month stayed sentence.” And that Fechner had been in
custody “since April 2021.”
The matter proceeded to trial on July 19, 2022, 109 days after Fechner made his
speedy-trial demand. On the second day of trial, one of the state’s witnesses tested positive
for COVID-19. The state requested to continue the proceeding. Fechner opposed the
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state’s motion to continue the trial and objected to allowing the witness to testify over
video. The district court granted the continuance.
In August 2022, the three-day jury trial resumed. At the end of the trial, the jury
found Fechner guilty of first-degree criminal sexual conduct and third-degree criminal
sexual conduct. The district court imposed an executed sentence of 156 months for the
first-degree criminal- sexual-conduct conviction but did not adjudicate the third-degree
criminal-sexual-conduct conviction as a lesser included offense. This appeal followed.
DECISION
Removal
Fechner argues that the district court erred when it granted the state’s removal
motion because the removal was procedurally barred. See State v. Dahlin, 753 N.W.2d
300, 303 (Minn. 2008).
“A motion to remove a judge is procedural and therefore governed b y the Rules of
Criminal Procedure.” State v. Finch, 865 N.W.2d 696, 700 (Minn. 2015) (quotation
omitted). “The interpretation of those rules is a question of law subject to de novo review.”
Id. (quotation omitted).
Removal of a district court judge is subject to three requirements: (1) the party must
serve the notice to remove on the opposing counsel and file the notice to remove “with the
district court within seven days after the party receives notice of the name of the presiding
judge at the trial or hearing”; (2) notice to remove must be filed prior to the start of the trial
or hearing; and (3) notice to remove “is not effective against a judge who [has] already
5
presided at the trial . . . or . . . hearing if the removing party had notice the judge would
preside at the hearing.” Minn. R. Crim. P. 26.03, subd. 14(4).
Here, Fechner has failed to make a record of actual notice of the judge assigned to
the matter; therefore, the removal argument fails on the merits as Fechner has failed to
show that the state’s motion was untimely. Further, we note that the assigned judge cannot
be considered to have “already presided at the trial” because the scheduled omnibus hearing
did not result in a substantive ruling; the district court merely continued the proceedings.
See id., cmts (stating that “a party is not foreclosed from later serving and filing a notice to
remove a judge who simply presided at an appearance under Rule 5 or Rule 8 in the case”).
Considering, then, that its motion for removal was timely, the state was entitled as a matter
of right to the removal of the assigned judge from any further proceedings in this matter.
Dahlin, 753 N.W.2d at 303.
Speedy trial
Fechner argues that his right to a speedy trial was violated and that he was
prejudiced by that delay, requiring the reversal of his conviction. The state argues that the
delays were primarily administrative and nonprejudicial. Because Fechner was in custody
for an unrelated offense, he could not be prejudiced by the trial delay.
The United States and Minnesota Constitutions guarantee criminal defendants the
right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Because the right
to a speedy trial is a constitutional right, we review whether a defendant has been denied a
speedy trial de novo. State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017).
6
To determine whether a violation of a speedy-trial right occurred, Minnesota courts
analyze four nonexclusive factors established by the Supreme Court in Barker v. Wingo :
(1) length of the delay; (2) reason for the delay; (3) whether the defendant asserted his or
her speedy-trial right; and (4) whether the delay prejudiced the defendant. 407 U.S. 514,
530-33 (1972); State v. Paige, 977 N.W.2d 829, 837 (Minn. 2022) (applying Barker
factors). “None of the Barker factors is either a necessary or sufficient condition to the
finding of a deprivation of the right of a speedy trial . . . they are related factors and must
be considered together with such other circumstances as may be relevant.” Osorio, 891
N.W.2d at 628 (quotation omitted). Analyzing the Barker factors therefore involves a
“difficult and sensitive balancing process in which the conduct of both the [s]tate and the
defendant are weighed.” Id. (quotations and citations omitted).
Fechner argues that consideration of these factors demonstrates his right to a speedy
trial was violated. The state argues that none of the factors weighs in Fechner’s favor, and
his speedy-trial right was not violated. We analyze each factor in turn.
Length of delay

A 60-day delay is presumptively prejudicial and requires a weighing of the latter
three factors. State v. Windish, 590 N.W.2d 311, 315-16 (Minn. 1999); see also Minn. R.
Crim. P. 11.09(b) (requiring trial within 60 days of speedy-trial demand, unless the district
court finds “good cause” for delay). The longer a delay extends beyond that mark, the
more the presumption of prejudice “intensifies.” State v. Jones , 977 N.W.2d 177, 190
(Minn. 2022) (quotation omitted). The delay is calculated from the point at which the Sixth
Amendment right attaches, which is when a formal indictment is issued or when the person
7
is arrested and held to answer a criminal charge. State v. Jones, 392 N.W.2d 224, 235
(Minn. 1986).
Here, Fechner (1) was charged on December 12, 2018, (2) his speedy-trial demand
was submitted on April 15, 2022, and (3) the trial took place on August 2, 2022. Because
the delay was approximately 1,329 days from the charging date and 109 days from the
speedy-trial demand, review of the remaining three factors was triggered.
Cause of delay
A “deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government,” but a “more neutral reason such as negligence
should be weighted less heavily but nevertheless should be considered since the ultimate
responsibility . . . must rest with the government.” Osorio, 891 N.W.2d at 628.
This factor weighs slightly against the state. The first trial delay following
Fechner’s speedy-trial demand occurred on June 2, 2022. The state noted that it would not
be prepared to try the case on the originally scheduled trial date and acknowledged that it
was not aware of the speedy-trial demand. The record indicates that this delay was
attributable to the state and the multiple case files associated with Fechner. This type of
delay weighs less heavily against the state. See id. Accordingly, the 109-day delay from
Fechner’s speedy-trial demand to the July 19 trial date is attributable to the state and
afforded light weight.
2

2 We note further delay to the trial date occurred due to Fechner’s absence pending his
completion of a treatment program.
8
The second trial delay is attributable to neither party, as it occurred when one of the
state’s witnesses contracted COVID-19 and was unavailable to testify. Fechner contends
that this should weigh heavily against the state as it is a result of the previous delay 3 and
represents a purely strategic choice. Fechner objected to the state’s request for a
continuance; however, he also objected to allowing the state’s witness to testify over a
video alternative. As such, the delay caused by the state’s witness contracting COVID-19
is neutral and does not weigh against either party. See Paige, 977 N.W.2d at 839
(explaining that delays arising from external factors, such as a witness’s unavoidable
unavailability or a judge’s death, do not weigh against the state).
Assertion of the right
We consider not only whether a defendant demanded a speedy trial, but also the
“frequency and force” of the demand. Paige, 977 N.W.2d at 840. “[T]he frequency and
force of a demand must be considered when weighing this factor [because] the strength of
the demand is likely to reflect the seriousness and extent of the prejudice which has
resulted.” State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).
Here, Fechner submitted a pro se demand for a speedy trial on April 15, 2022. He
also objected to each of the state’s continuance requests. But Fechner only expressly
invoked a speedy-trial demand in one of his objections and did not mention it in any of the

3 Fechner asserts that because the previous delay was attributable to the state, it had
“opened the door to subsequent delays.” Fechner cites to no legal authority to support his
argument. State v. Bursch, 905 N.W.2d 884, 889 (Minn. App. 2017) (“Arguments are
forfeited if they are presented in a summary and conclusory form, do not cite to applicable
law, and fail to analyze the law when claiming that errors of law occurred.”).
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scheduling conferences leading up to trial. This factor does not weigh against the state, as
it does not suggest Fechner experienced an excessive or particularly serious form of
prejudice from the delays to his trial.
Prejudice
This court considers three interests when determining whether a defendant suffered
prejudice: “(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and
concern of the accused; and (3) preventing the possibility that the defense will be
impaired.” State v. Taylor, 869 N.W.2d 1, 20 (Minn. 2015) (quotation omitted). The third
interest, preventing impairment of the defense, is the “most serious.” Id.
The first two interests are not implicated when the defendant is already in custody
for another reason, as is the case here. Id. Fechner, however, argues that his custody
amounted to a set of special circumstances that require a departure from existing law and
that the first two factors be analyzed, despite his custody status. 4 In raising this assertion,
Fechner points to quotes from the district court at a scheduling conference, stating that
Fechner’s custody status was “concerning” and “wrong.” However, if Fechner was being
held in custody for a probation violation, that offense would result in a sentence of 36
months. The district court determined that Fechner be credited for time served. Despite
the length of the delay to adjudicate the probation violation, there is no reason to depart

4 State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (explaining that this court “is
bound by supreme court precedent and the p[recedential] opinions of the court of appeals”),
rev. denied (Minn. Sept. 21, 2010).
10
from existing caselaw, and Fechner has not otherwise shown that his custody caused
prejudicial harm above the kind foreseen in Taylor to his case.
Aside from general concerns about being in custody, Fechner points to no evidence
on the record that indicates prejudice on his behalf. Here, the first two interests are not
implicated because Fechner was already in custody for an unrelated probation violation. 5
See Taylor, 869 N.W.2d at 20. Further, while Fechner argues that his custody status
presents a unique circumstance, the district court imposed a 36-month sentence for his
probation violation prior to the trial. Because Fechner’s argument is not supported by facts
on the record regarding the third Taylor prong or why the delay prevented him from
presenting his defense, the final Barker factor does not weigh in favor of Fechner.
Balancing
Fechner has demonstrated a basic element of a speedy-trial violation—that his trial
was delayed beyond 60 days from the speedy-trial demand. However, other factors balance
against that consideration. Fechner sought continuances, prioritizing other considerations
over speed, which caused delays. He has not shown that he suffered any impairments to

5 Importantly, although Fechner was on probation when he was charged with this offense,
the criminal conduct occurred before his probationary period began and thus cannot be
considered a probation violation. See Minn. R. Crim. P. 27.04 (to initiation a
probation-revocation proceeding “a summons or warrant” must be issued by the district
court that is “based on a written report . . . showing probable cause to believe a probationer
violated probation”). Additionally, Fechner’s probation violation was adjudicated on July
20, where the presiding judge sentenced him to 36 months, with credit for the time served.
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his defense because of the delay. Therefore, the delay does not implicate Fechner’s right
to a speedy trial.
Affirmed.