State v. McKissic, 2009 WL 670040, Minn.Ct.App., 3/17/2009. The state charged Mr. McKissic with failure to register as a predatory offender. Mr. McKissic decided to represent himself and eventually agreed to resolve the case. This resolution devolved into a blur of procedural requirements and legal jargon. Although it's unreported, it's worth of a look see.
Here are the apparent facts. Both Hennepin County and Ramsey County charged Mr. McKissic with failure to register; the specific accusation was that a Hennepin County conviction for interference with a 911 call extended Mr. McKissic's original period of registration. The Hennepin District Court, however, dismissed that Complaint for lack of venue. Ramsey County then amended its Complaint to limit the alleged registration failure to the original term of registration. (The amended allegation appeared to be that Mr. McKissic had moved without notifying the BCA.) Mr. McKissic moved to dismiss the Ramsey Complaint for three reasons: the previous Hennepin dismissal; lack of jurisdiction; and discovery violations. The court received the Hennepin dismissal papers but only in support of Mr. McKissic's dismissal motion. Ramsey denied the motion on all three grounds.
Here's where the resolution gets mushy. In essence, the court and parties interspersed procedures and jargon from two distinct rules, such that the appellate court could not ascertain which of two procedures had been undertaken. This confusion meant that it was not entirely certain just what could or could not be raised on appeal.
There were two criminal rules in play. The first is Rule 26.01, subd. 3, which the Court of Appeals denominated the "stipulated facts" rule. Here's what it says:
Subd. 3. Trial on Stipulated Facts. By agreement of the defendant and the prosecuting attorney, a determination of defendant’s guilt, or the existence of facts to support an aggravated sentence, or both, may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant's presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record. If this procedure is utilized for determination of defendant’s guilt and the existence of facts to support an aggravated sentence, there shall be a separate waiver as to each issue. Upon submission of the case on stipulated facts, the court shall proceed as on any other trial to the court pursuant to subdivision 2 of this rule. If the defendant is found guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.
The second rule is Rule 26.01, subd. 4, which the Court denominated as the "Lothenbach trial" rule. Here's what it says:
Subd. 4. Stipulation to Prosecution’s Case to Obtain Review of a Pretrial Ruling. When the parties agree that the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling otherwise makes a contested trial unnecessary, the following procedure shall be used to preserve the issue for appellate review. The defendant shall maintain the plea of not guilty. The defendant and the prosecuting attorney shall acknowledge that the pretrial issue is dispositive, or that a trial will otherwise be unnecessary if the defendant prevails on appeal. The defendant, after an opportunity to consult with counsel, shall waive the right to a jury trial under Rule 26.01, subdivision 1(2)(a), and shall also waive the rights specified in Rule 26.01, subdivision 3. The defendant shall stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence and may find the defendant guilty based on that evidence. The defendant shall also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial. The defendant and the prosecuting attorney must make the foregoing acknowledgments personally, in writing or orally on the record. The court after consideration of the stipulated evidence shall make an appropriate finding, and if that finding is guilty, the court shall also make findings of fact, orally on the record or in writing, as to each element of the offense(s).
Under the "stipulated facts" rule, a defendant is agreeing to a trial to the court instead of a jury, but on facts stipulated but not conceded. If the court trial results in a guilty finding, then a defendant may raise any appropriate issues on appeal. Under a "Lothenbach" trial, however, the court is presented with facts that are both stipulated and conceded. Any appeal is limited to adverse rulings of pretrial issues that both parties have agreed are dispositive.
So, the moral here: pick a rule and stick to it.
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