author: ANDERSON, Paul H., Justice.

text:
    STATE of Minnesota, Respondent, v. Hector Manuel MEDRANO, Appellant.
    No. A07-1437.
    Supreme Court of Minnesota.
    June 26, 2008.

      John M. Stuart, Public Defender, Susan J. Andrews, Asst. Public Defender, St. Paul, for Appellant.
    Lori Swanson, Atty. General, Peter Reed Marker, Asst. Atty. General, St. Paul, Paul James Kiltinen, Dodge County Atty., Mantorville, for Respondent.
   OPINION

ANDERSON, Paul H., Justice.

On April 17, 2005, Hector Manuel Me-drano confessed to the murder of Jose Gallegos. After a full trial on the merits, a Dodge County jury found Medrano guilty of first-degree premeditated murder, in violation of Minn.Stat. § 609.185(a)(1) (2006); first-degree felony murder, in violation of Minn.Stat. § 609.185(a)(3) (2006); and second-degree intentional murder, in violation of Minn.Stat. § 609.19, subd. 1(1) (2006). The Dodge County District Court convicted Medrano of first-degree premeditated murder and sentenced him to life imprisonment. Medrano now appeals, arguing that the admission of his confession at trial was prejudicial error that entitles him to a new trial. We affirm.

The essential facts on this appeal are not in dispute. On March 21, 2005, Jose Gallegos did not come to work at his job with McNeilus Truck and Manufacturing in Dodge Center. Someone claiming to be Gallegos’s nephew called McNeilus later that day and said that Gallegos had gone to Mexico to take care of an emergency. Gallegos’s friend and co-worker, Jesse Torres, did not believe that Gallegos would go to Mexico without telling him and urged his supervisor to contact the police. In early April, when Gallegos remained missing from work, someone at McNeilus contacted the Dodge County Sheriffs Department about Gallegos’s absence. Around the same time, Gallegos’s neighbor told the Sheriffs Department that she noticed Gallegos had not been home for an extended period of time and that several very loud, “shady, seedy-looking people” were going in and out of Gallegos’s house.

On April 8, 2005, Investigator Jeremy Gunderson and Deputy Ryer Anderson went to Gallegos’s house to investigate Gallegos’s disappearance. Salvador Gallegos, Gallegos’s nephew, answered the door and consented to a search of the house. When searching the house, Gunderson and Anderson found appellant Hector Manuel Medrano with two young women — K.R. and S.B. — in a back bedroom. Gunderson asked Medrano about Gallegos, and Me-drano stated that Gallegos had gone to Mexico and was in treatment. When asked to identify himself, Medrano provided Gunderson and Anderson with a false name. But the officers subsequently found a wallet in the bedroom that contained Medrano’s driver’s license. When the officers ran a search of Medrano’s name, they discovered that a body-only warrant had been issued for him. Medra-no was then taken into custody and the officers continued to search Gallegos’s house. During their search, the officers discovered Gallegos’s Jeep in the garage and seized, among other things, black garbage bags and cleaning products found around the Jeep, keys to Gallegos’s Jeep, two ends of a coaxial cable, an insurance card with Gallegos’s name on it, and Gallegos’s Minnesota driver’s license and his passport.

Medrano was detained at the Freeborn County jail in Albert Lea as a result of the body-only warrant. While in jail, Medrano told another inmate, Robert King, that he had killed someone. According to King, Medrano explained that the man he killed was someone he was staying with and that this man was treating Medrano’s friend— the man’s nephew — badly. Medrano went on to tell King that he stabbed the man and put a belt around his neck. Medrano then showed King his finger and said he had cut it during the incident. Medrano stated that after he killed the man, he rolled the man’s body up in plastic or a blanket and he and his friend moved it, first to the basement of the house and eventually somewhere else. He also told King that he told the police that the man had gone to Mexico. King relayed this information to a Freeborn County jail guard. The report was then referred to a Freeborn County Deputy, who contacted the Rochester Police Department. The Rochester police checked their own missing persons reports and those of the Olmsted County Sheriffs Office, but none fit the description King had provided. Me-drano was subsequently released from the Freeborn County jail.

On April 14, 2005, Gallegos’s body was discovered in Pine Island Township. His body was in a ravine, wrapped in canvas with coaxial cables wound around it. At approximately 2:30 a.m. on April 15, Gun-derson and other officers executed a search warrant at Gallegos’s house. Me-drano and K.R. both were inside the house at the time. Both of them were transported to the Dodge County Sheriffs Office and questioned. When questioned, Me-drano denied any involvement in the death of Gallegos. After Medrano and K.R. were interviewed, they were taken to a hotel room because Gallegos’s house had been secured for the execution of the search warrant. Later that day, after learning about the information that Me-drano had given to King while in jail, officers arrested Medrano for the murder of Gallegos. Just before his arrest, Me-drano was questioned for the second time about the murder but again denied any involvement.

On Sunday, April 17, Sergeant Luke Nash transported Medrano to the Dodge County Sheriffs Office for a third police interview. While in Nash’s vehicle, Me-drano told Nash that he had not slept very well and was not “feeling very good.” Me-drano then told Nash that he planned to give a confession to the police and asked Nash to call ahead to request a male interviewer.

Chief Deputy James Trihey conducted the April 17 interview of Medrano at the Dodge County Sheriffs Office. Trihey gave Medrano a Miranda warning and asked if Medrano was willing to speak with him. Medrano responded with the following statement: “Yes, but I have just one question. So if I ask for a lawyer now, will there be a lawyer present now?” Trihey explained that it was not likely that Me-drano would be able to speak to an attorney until the next day. He also explained that if Medrano asked for an attorney, the interview would stop and the police would not speak to Medrano until he spoke to an attorney. Medrano then stated he still wanted to speak to Trihey and went on to confess to murdering Gallegos.

Medrano explained that in March, he was staying at a hotel in Rochester, Minnesota, when he met Salvador. Salvador had no place to stay, so Medrano invited Salvador to stay with him at the hotel. But Medrano had to check out of the hotel within a few days because he was running out of money. Eventually, the two men got a ride to Dodge Center and Salvador took Medrano to Gallegos’s house.

When Salvador and Medrano arrived at Gallegos’s house, no one was home, but Salvador had a key. After the two went inside, Medrano fell asleep for a few hours and when he woke up Salvador indicated that he wanted to leave. According to Medrano, Salvador said that he and Gallegos did not get along. The two men left but returned to the house three times during that day. The final time they returned to the house, Gallegos was home.

When Gallegos opened the door to Salvador and Medrano, Salvador and Gallegos talked for a minute and then Gallegos began accusing Salvador of taking one of Gallegos’s phone or credit cards. Eventually Medrano and Salvador went to a back bedroom and Salvador told Medrano that they could not stay at Gallegos’s house. After talking to Salvador about his relationship with Gallegos, Medrano then said to Salvador, “you act like you wanna kill him.” Salvador replied, “I do, but.” The conversation eventually ended and Salvador and Medrano left Gallegos’s house.

After leaving the house, Salvador and Medrano discussed finding a ride back to Rochester and staying at a shelter. After they were unable to think of anyone to give them a ride to Rochester, they decided to return to Gallegos’s house. During the walk back, they started talking about killing Gallegos. They discussed different options such as beating Gallegos, tying him up and taking him to the basement, or stabbing him with the knife that Salvador had with him. At some point during the conversation, Salvador gave Medrano his knife.

When Salvador and Medrano arrived at Gallegos’s house again, Gallegos answered the door and the two men went inside. According to Medrano, at that point he and Salvador “started to go towards” Gallegos “a couple of times” but then stopped, and Medrano retreated to the back bedroom. Salvador stayed in the kitchen area and according to Medrano, Salvador “was waiting on [Medrano] and [Medrano] was waiting on [Salvador].” Then Medrano came out of the bedroom to “[t]ry[ ] to find an opportunity.” Medrano then lit a cigarette while Gallegos was sitting nearby. When Medrano finished smoking his cigarette, he returned to the bedroom. Gallegos then went to the bathroom and according to Medrano, Salvador said to Medrano, “as soon as he comes out of the bathroom, we’ll get him then.” Me-drano replied, “all right.” When Gallegos came out of the bathroom, Salvador and Medrano came out of the bedroom and looked at each other, each waiting for the other to make the first move, but nothing happened. Medrano returned to the bedroom and Salvador went to the kitchen. Gallegos then said something, grabbed the phone, and headed toward his bedroom.

According to Medrano, this is when he and Salvador both “snapp[ed].” The two men went into the hallway and grabbed Gallegos. Medrano had the knife that Salvador had given him, and he used it to stab Gallegos in the back. Gallegos turned around, and this movement caused Medra-no to cut his finger with the knife. Medra-no then stabbed Gallegos in the back again while Gallegos was on the floor. At this point, Salvador took off his belt and used it to tie Gallegos’s hands. Medrano said he had expected Gallegos to die quickly after being stabbed in the back, but when Gallegos did not die, Medrano stabbed him in the chest. Gallegos stopped moving after being stabbed in the chest. Medrano then took off his own belt and used it to tie Gallegos’s feet.

Gallegos was still breathing at this point. Medrano then found another belt, put it around Gallegos’s neck, and pulled back on it until Gallegos stopped breathing. Me-drano then asked Salvador if he thought Gallegos was unconscious or dead. Salvador said he thought Gallegos was dead. Medrano and Salvador then took Gallegos’s body down to the basement, put it on a blanket, and left it there.

Salvador started cleaning the house with bleach. He then left with one of Gallegos’s credit cards, took some money out of an ATM, and rented a shampooing carpet cleaner. When Salvador returned, he and Medrano attempted to clean the house with the vacuum and some other cleaning products. At some point they gathered up all of their clothes and the shirt that Gallegos was wearing when he was killed and put them in a black bag. Medrano washed the knife he used to stab Gallegos, gave it back to Salvador, and told him to get rid of it. During the. interview, Medrano described the knife and drew a picture of it.

Medrano explained to Trihey that he knew the murder took place on a Sunday because Gallegos had to be at work the next morning. Medrano stated that on Tuesday or Wednesday he called McNeilus Truck and Manufacturing, where Gallegos was employed, and told someone there that Gallegos had a family emergency in Mexico and would be back in a few days.

After 3 or 4 days, the body began to smell. That night, Salvador wrapped the body in a tarp and a cable, but it was another few days before he and Medrano actually removed it. During this time, Salvador used Gallegos’s credit cards to buy various items. Salvador and Medrano also pawned some of the items in Gallegos’s house, such as CDs, a television, a sander, and a drill. About a week after the murder, Salvador and Medrano took Gallegos’s body, put it in his jeep, and drove toward Rochester. They stopped near some woods, took out the body, and rolled it into a ditch.

After Medrano finished confessing to the murder of Gallegos, Trihey ended the interview and Sergeant Nash transported Medrano back to the jail. During the ride, Medrano told Nash that he was “feeling much better.” Medrano also said that he wanted to relay some more details to Trihey about the murder. Medrano then began to tell Nash about the location of the knife and other items connected to the murder. Nash stopped Medrano and said that Medrano should tell that information to Trihey but that Nash would pass it along to the appropriate people.

The next day, Medrano told Gunderson that the knife used to kill Gallegos was located at a car wash in Rochester. Gun-derson drove Medrano to the car wash, and Medrano indicated the bay in which the knife was hidden. Police officers recovered the knife in the location that Me-drano identified.

Medrano was subsequently indicted for first-degree premeditated murder, in violation of Minn.Stat. § 609.185(a)(1) (2006), and first-degree felony murder, in violation of Minn.Stat. § 609.185(a)(3) (2006). Atan omnibus hearing, Medrano argued that the district court should suppress his April 17 confession because he did not “clearly and unequivocally” waive his right to counsel. The court ruled that the confession was admissible because when Medrano asked Trihey when he would be able to obtain an attorney if he asked for one, Trihey asked Medrano the clarifying questions required by State v. Risk, 598 N.W.2d 642 (Minn.1999), and Medrano subsequently agreed to speak to Trihey.

At trial, Trihey testified about the April 17 interview with Medrano. The interview, which lasted over 2 and one-half hours, was then played for the jury in its entirety. Robert King testified to what Medrano had told him about the murder of his friend’s uncle when the two were in jail together. A forensic pathologist testified that Gallegos had four stab wounds, one of which was on the left side of his chest. She stated that the wounds could have been caused by a knife. She further testified that there was evidence that Gallegos could have been choked. A State expert also testified that the following items found in Gallegos’s house had Medrano’s DNA on them: four belts, blood found on a door jamb, and a pair of jeans found in one of the bedrooms. Further, an expert testified that one of the garbage bags found near Gallegos’s body came from the same roll as one of the garbage bags found in Gallegos’s garage. Another expert testified that the coaxial cables found wrapped around Gallegos and the cable end connectors found at Gallegos’s home fit together and that “the cable could’ve been connected at one time to the connecters.” The State also presented evidence that Salvador rented a carpet cleaner and that he had pawned property at a pawn shop the day after Gallegos’s murder. Evidence also showed that Medrano pawned a saw, a television, CDs, a sander, and a drill after Gallegos’s murder.

Medrano testified on his own behalf. His testimony was consistent with the confession he gave to Trihey during the April 17 interview. The jury found Medrano guilty of first-degree premeditated murder, first-degree felony murder, and second-degree intentional murder. See Minn. Stat. §§ 609.185(a)(1) (2006), 609.185(a)(3) (2006), 609.19, subd. 1(1) (2006). The district court sentenced Medrano to life imprisonment for first-degree premeditated murder. Medrano now appeals, arguing that the district court should have suppressed his confession because the Miranda warning given before the police questioned him impermissibly linked his right to counsel to a future event.

In California v. Prysock, the United States Supreme Court emphasized that it has never required a “talismatic incantation” of the Miranda warning. 453 U.S. 355, 360, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). Instead, courts “examinef] the warnings given to determine if the reference to the right to appointed counsel was linked with some future point in time after the police interrogation.” Id. at 360, 101 S.Ct. 2806. In Prysock, because the defendant was warned that he had a right to an attorney before and during questioning, the Court concluded that it was “ ‘not a case in which the defendant was not informed of his right to the presence of an attorney during questioning * * * or in which the offer of an appointed attorney was associated with a future time in court.’ ” Id. at 361, 101 S.Ct. 2806 (quoting United States v. Noa, 443 F.2d 144, 146 (9th Cir.1971)) (omission in original).

The Supreme Court later clarified the meaning of Prysock. In Duckworth v. Ea-gan, a defendant was given the following warning:

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.

492 U.S. 195, 198, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (emphasis in original). The Indiana Supreme Court upheld the conviction in Duckworth. Id. at 199, 109 S.Ct. 2875. The defendant then sought a writ of habeas corpus, which the United States District Court for the Northern District of Indiana denied. Id. The Court of Appeals for the Seventh Circuit reversed, concluding that the Miranda warning given implied that only an accused who can afford an attorney can have one present before answering questions and that if the defendant does not go to court, he is not entitled to counsel at all. Id. at 200, 109 S.Ct. 2875. But the Supreme Court reversed the Seventh Circuit Court of Appeals. Id. at 205, 109 S.Ct. 2875. The Court stated that Prysock stood for the proposition that a Miranda warning is insufficient only if it links the right to counsel to some future time after interrogation. Id. at 204, 109 S.Ct. 2875. The Court concluded that because the defendant in Duckworth was told he had a right to counsel before questioning, and considering the totality of the warning, the warning was sufficient. Id. at 205, 109 S.Ct. 2875. The Court also noted that under Indiana law, the warning was accurate because in Indiana, counsel is appointed at the defendant’s first court appearance. Id. at 204, 109 S.Ct. 2875.

In State v. Crisler, decided 2 months before Duckworth, we faced the same question of whether a warning is inadequate when it fails to state that the defendant has the right to counsel before and during questioning, and the warning implies that the defendant’s right to counsel is linked to some future point in time. 438 N.W.2d 670, 671 (Minn.1989). We recognized that under Prysock, a warning is defective if it implies the defendant can obtain counsel only at some future time after interrogation. Id. But we declined to determine whether the warning in Cris-ler was adequate because we concluded that any error was harmless. Id. at 672.

Nevertheless, in Crisler we warned that “a cryptic or paraphrased warning or a warning that deviates from the standard Miranda warning may later be determined.* * * to be inadequate.” Id. We went on to state, however, that police officers “who clearly and completely give a standard form Miranda warning containing [the] four carefully-worded individual warnings, or their equivalent, need not fear a later determination by this court that the warnings given were inadequate or misleading.” Id.; see also State v. Needham, 488 N.W.2d 294, 295 n. 1 (Minn.1992) (reiterating that a police officer who reads the standard form Miranda warning “need not fear a later determination by this court that the warning given was inadequate or misleading”). We indicated that the Miranda warning should contain the following four individual warnings:

(1) the suspect has the right to remain silent; (2) any statements made can and will be used against the suspect in a court of law; (3) the suspect has the right to talk to an attorney before being questioned and to have the attorney present during questioning by police; and (4) if unable to afford to hire an attorney, one will be appointed at no cost before any questioning if so desired.

Crisler, 438 N.W.2d at 672.

In this case, the April 17 interrogation in question began with Chief Deputy Trihey giving Medrano the following Miranda warning:

Q: Okay. And before we get started, Hector, I’m going to read you what is called the Miranda warning. Okay? (Pause) You have the right to remain silent. (Pause) Anything you say can and will be used against you in a court of law. (Pause) You have the right to talk to a lawyer now and have a lawyer present now or at any time during questioning. If you cannot afford a lawyer, one will be appointed for you without cost. (Pause) Do you understand each of these rights that I have explained to you?
A: Yes
Q: Okay. (Pause) And having these rights in mind, will you talk to me? (Pause)
A: Yes, but I have just one question. So if I ask for a lawyer now, will there be a lawyer present now?
Q: If you ask for a lawyer right now, (Pause) we’ll stop the interview. We won’t talk to you anymore until a lawyer can represent you but chances are you won’t be able to talk to a lawyer until tomorrow. (Pause) And so we wouldn’t, we wouldn’t talk to you anymore until then. (Pause) So that, that’s up to you. If you want to, if you want an attorney (Pause) then, then we have to stop right here. (Pause)
A: Okay.
Q: So you have to (Pause) make that decision (Pause) on whether you want to talk to me or, or you don’t.
A: I’ll talk to you.

Medrano asserts that the Miranda warning given at this interview was confusing and misleading because Trihey promised Medrano the right to an attorney “now” and then withdrew that right and linked it to a future event when he indicated that Medrano would likely be unable to speak to an attorney until the next day. Medrano argues that because the Miranda warning was invalid, his waiver of his Miranda rights was also invalid, making his subsequent confession inadmissible. The State responds that the Miranda warning given was proper under Crisler, and that because the warning did not violate Pry-sock and Duckworth by linking the right to counsel to a future event after questioning, the warning was constitutionally sound.

The Miranda warning initially given to Medrano was nearly identical to the warning we set out in Crisler. See 438 N.W.2d at 672. The only substantive difference between the Crisler warning and the one given to Medrano is the use of the word “now” versus the term “before questioning.” In Crisler, the warning indicated that an accused has “the right to talk to an attorney before being questioned and to have the attorney present during questioning.” Id. (emphasis added). In this case, Trihey told Medrano that he had “the right to talk to a lawyer now and have a lawyer present now or at any time during questioning.” (Emphasis added.) We conclude that the term “now” accurately and clearly described Medrano’s right to an attorney before questioning, which at the time the warning was given, was taking place now. Further supporting our conclusion is the fact that the term “now” is used instead of the term “before questioning” on the Hennepin County Attorney’s Miranda card we endorsed in a footnote in Crisler. See id. at 672 n. 2.

Moreover, in the statement that Trihey made in response to Medrano’s inquiry about when he could obtain an attorney, Trihey stated four times that if Medrano asked for an attorney, Trihey would stop the interview. More particularly, Trihey said:

1) “[i]f you ask for a lawyer right now, (Pause) we’ll stop the interview”;
2) “[w]e won’t talk to you anymore until a lawyer can represent you”;
3) “chances are you won’t be able to talk to a lawyer until tomorrow!,][a]nd so we wouldn’t * ⅜ * talk to you anymore until then”; and
4) “if you want an attorney * * * then we have to stop right here.”

We conclude that by making these statements, Trihey made it clear that if Medra-no invoked his right to have an attorney “now,” then even if no attorney were available until the next day, Medrano’s right to an attorney would be honored — the interrogation would cease until Medrano obtained an attorney. Thus, we conclude that Trihey accurately and unambiguously conveyed Medrano’s Miranda rights by indicating that Medrano had the right to an attorney before any police questioning. Because the Miranda warning complied with Duckworth and Prysock by not linking Medrano’s right to counsel to a future time after interrogation, we conclude that the warning given to Medrano was constitutionally sufficient.

We further conclude that Trihey’s statements that Medrano would not likely “be able to talk to a lawyer until tomorrow” did not make the warning constitutionally flawed. Again, the warning given to Medrano is insufficient only if it links the right to an attorney to a future event after interrogation. See Duckworth, 492 U.S. at 204, 109 S.Ct. 2875. Here, Trihey made it clear that if Medrano invoked his right to an attorney, no interrogation would take place until Medrano spoke to an attorney. The Supreme Court has said that a statement indicating when an attorney will be appointed “simply anticipates” the defendant’s question of when he will be able to obtain an attorney. Id. at 204, 109 S.Ct. 2875. In this case the statement was not merely in anticipation of, but in response to, Medrano’s question about when he would be able to speak to an attorney. Moreover, as in Duckworth, Trihey’s statements that Medrano would likely be unable to speak to an attorney until the next day appears to be an accurate statement because it was 7:00 p.m. on a Sunday and therefore it was not likely that the police would be able to contact any attorneys at that time.

Importantly, the Supreme Court has made it clear that “Miranda does not require that attorneys be producible on call,” but only that the suspect is informed of his right to appointed counsel before and during questioning, and that, if police cannot provide appointed counsel, they “not question a suspect unless he waives his right to counsel.” Duckworth, 492 U.S. at 204, 109 S.Ct. 2875. Thus, Trihey’s statement satisfied Duckworth because it clearly conveyed Medrano’s right to an attorney before police questioning and did not impermissibly link Medrano’s right to an attorney to a future time after interrogation.

Medrano nevertheless asserts that his case is distinguishable from Duckworth because under Indiana law a suspect is appointed an attorney at his first appearance, making the warning in Duckworth accurate. On the other hand, under Minn.Stat. § 611.262 (2006), in certain circumstances an accused may obtain an attorney before his first appearance. Medrano argues that because he could have had access to an appointed attorney before his first court appearance, Trihey’s statement that Me-drano would not likely be able to obtain an attorney until the next day failed to accurately articulate Medrano’s rights.

Medrano is mistaken that Duckworth turned on the fact that suspects in Indiana are not entitled to an appointed attorney until their first court appearance. While the Supreme Court began its analysis in Duckworth by pointing out that the warning about an appointed attorney was accurate under Indiana law, the Court went on to set out the principles discussed above and to reiterate that Pry sock requires only that the right to an appointed attorney not be linked to a future point after interrogation. 492 U.S. at 204, 109 S.Ct. 2875. Duckworth, therefore, did not turn on the Miranda warning’s accuracy under a specific state law. Moreover, as stated above, Trihey’s statement that Medrano would not likely be able to see an attorney until the next day was an accurate statement considering the circumstances.

Finally, Medrano makes the alternative argument that the Supreme Court has retreated from the rationale underlying Duckworth. In Dickerson v. United States, the Court held that the Miranda opinion set forth a constitutional rule that cannot be superseded by Congress. 530 U.S. 428, 429, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Medrano asserts that under Dickerson, a Miranda warning that passed constitutional muster in the past may no longer be valid. But as the State asserts, nothing in Dickerson suggests that a stricter reading of Miranda is now required or that the traditionally accepted Miranda warning is constitutionally flawed. See id. at 431-44, 120 S.Ct. 2326. The Court in Dickerson simply held that Congress cannot provide its own method of determining whether an accused’s in custody statement is made voluntarily. See id. at 444, 120 S.Ct. 2326. Moreover, as discussed above, Trihey’s Miranda warning to Medrano clearly and unambiguously conveyed to Medrano his right to an attorney before questioning.

For all the foregoing reasons, we conclude that the Miranda warning given to Medrano was not constitutionally flawed. Accordingly, there is no merit to Medra-no’s argument that his subsequent waiver of his Miranda rights was invalid. Therefore, we hold that the district court did not err when it concluded that Medra-no’s confession was admissible at trial.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . In State v. Risk, 598 N.W.2d 642, 648-49 (Minn. 1999), we concluded that

        in order to protect an accused's right against compelled self-incrimination under the Minnesota Constitution, police are required to cease questioning an accused once he or she has made an ambiguous or equivocal statement that could reasonably be construed as an invocation of the accused’s right to counsel, except for narrow questions designed to clarify the accused’s true desires regarding counsel.

      . Medrano admits that at the district court he argued that he did not clearly and unequivocally waive his right to counsel and not that the Miranda warning linked his right to counsel with some future event. But Medrano asserts that because a confession is not admissible unless a defendant’s waiver of his Miranda rights was valid, the district court implicitly concluded that Medrano’s Miranda waiver was valid. The State agrees that had the district court been presented with the issue currently before us, the district court would have likely found that Medrano’s waiver was valid.

      . Medrano does not argue any other basis for us to conclude that his waiver of his Miranda rights was not made voluntarily, knowingly, and intelligently. The record also indicates that it was Medrano who asked to speak to the police before the April 17, 2005 interview. Further, on the way to the interview, Medra-no voiced to the officer who was driving him to the police station that he had not been sleeping well and that he planned to confess to the murder. After the interview, on the way back to jail, Medrano told the same officer that he was feeling much better and that he wanted to tell Trihey more details about the murder. This sequence of events does not support a claim that Medrano’s waiver of his Miranda rights was invalid.


source: Caselaw Access Project

author: ANDERSON, PAUL H., Justice.

license: Public Domain

text:
    Moises Vidal ROBLEDO-KINNEY, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2244.
    Supreme Court of Minnesota.
    June 26, 2008.

      Moisés Vidal Robledo-Kinney, appellant pro se.
    Lori Swanson, Atty. General, Susan Ga-ertner, Ramsey County Atty., Mark Nathan Lystig, Asst. Ramsey County Atty., St. Paul, for Respondents.
   OPINION

ANDERSON, PAUL H., Justice.

In 1999, a Ramsey County jury found Moisés Vidal Robledo-Kinney guilty of first-degree murder, in violation of Minn. Stat. § 609.185 (2006); second-degree murder, in violation of Minn.Stat. § 609.19, subd. 1(1) (2006); second-degree unintentional murder, in violation of Minn.Stat. § 609.19, subd. 2(1) (2006); and kidnapping, in violation of Minn.Stat. § 609.25, subds. 1(3), 2(2) (2006). The Ramsey County District Court convicted Kinney of first degree murder and sentenced him to life imprisonment. We affirmed his conviction on direct appeal. Kinney subsequently petitioned for postconviction relief, which the postconviction court denied. We affirmed. Kinney filed two additional postconviction petitions, which were both denied by the postconviction court. In 2007, Kinney filed the current postconviction petition. The postconviction court in this matter denied relief, concluding that Kinney waived his claims by not arguing them on direct appeal. Kinney now appeals to our court.

The facts relevant to this appeal are as follows. On January 30, 1998, petitioner Moisés Vidal Robledo-Kinney and Joshua Christenson were involved in a fight while attending a birthday party at a home in Saint Paul. During the fight, Kinney and some other party goers wrapped masking tape around Christenson’s head — covering his eyes, nose, and mouth. Christenson was then beaten by several people and taken into the basement of the house. While in the basement, Kinney sodomized Christenson with a mop handle. Christen-son was then carried out to his car where he was stabbed by Kinney and another man. The car was later moved and abandoned nearby, where it was discovered the next day with Christenson’s dead body in the back seat.

In May 1998, Kinney was arrested for Christenson’s murder and soon thereafter attempted to negotiate a plea with the State. On June 1, a plea agreement was reached, but it was contingent on Kinney not having stabbed or sexually assaulted Christenson. Later on the same day, Kinney informed his attorney that he had both sexually assaulted and stabbed Christen-son. Kinney’s attorney did not inform the State what Kinney had told him. Kinney then gave a statement to the police indicating that he had sexually assaulted and stabbed Christenson. Based on Kinney’s statement, the State withdrew its plea agreement offer.

In July 1998, Kinney was indicted for first-degree murder, in violation of Minn. Stat. § 609.185 (2006); second-degree murder, in violation of Minn.Stat. § 609.19, subd. 1(1) (2006); second-degree unintentional murder, in violation of Minn. Stat. § 609.19, subd. 2(1) (2006); and kidnapping, in violation of Minn.Stat. § 609.25, subds. 1(3), 2(2) (2006). Following the indictment, Kinney moved the district court to specifically enforce the plea agreement, claiming detrimental reliance. The court denied the motion, concluding that a mutual mistake by both the State and Kinney’s attorney had occurred at the time of the plea agreement negotiations regarding the extent of Kinney’s involvement in Christenson’s death. The court also stated: “At best, the information obtained during the interview may be used to impeach [Kinney] should he testify at trial inconsistently with his June 1, 1998, statement. [Kinney] does not have the right to offer perjured testimony. Thus, there is no detriment in him being prohibited from doing so.” Kinney filed an appeal for discretionary review of the order. The court of appeals affirmed the district court.

The district court revisited the June 1 statement during jury selection when Kinney attempted to get the State to enter into a stipulation informing the jury that Kinney had given the police a statement, but that the contents of the statement were inadmissible. During this discussion, the court clarified what it had meant at the plea agreement hearing. The court stated that it was inappropriate to use Kinney’s statement to the police in any fashion— referencing laws indicating that the statement should be treated as if it does not exist at all. But the court stated that if the defense sought to use the statement at trial, this use would essentially be a waiver and the substance of the statement would be admissible.

At trial, Kinney’s defense theory was that although he participated in the beating of Christenson, he was not involved in the acts that caused Christenson’s death. Kinney did not testify on his own behalf. When waiving his right to testify, Kinney stated on the record that it was his understanding that if he took the stand, his June 1, 1998, statement to the police could be admitted into evidence. The jury found him guilty of one count of first-degree murder, two counts of second-degree murder, and one count of kidnapping. Minn. Stat. §§ 609.185; 609.19, subds. 1(1), 2(1); 609.25, subd. 1(3); 609.05 (2006). The district court convicted him of first-degree murder and sentenced him to life in prison without the possibility of release.

On direct appeal, Kinney argued, among other things, that he was denied the right to testify in his own defense because of the district court’s comments that his June 1, 1998, statement to the police could be used to impeach him if he testified at trial. Robledo-Kinney, 615 N.W.2d at 29. In our opinion affirming Kinney’s conviction, we recognized that statements made in connection with an offer to plead guilty are not admissible for any purpose. Id. at 30 (citing Minn. R. Evid. 401). But we stated that at the plea agreement hearing, the district court simply indicated what it “might do if in fact Kinney took the stand and testified inconsistently] with his June 1, 1998, statement.” Id. at 30. Thus, we concluded that the court “did not make a final determination as to how, or even if, Kinney’s statement could be used at trial.” Id. at 31. We also concluded that Kinney should have understood that the statement could not be used for impeachment or any other purpose unless Kinney himself sought to use it to mislead the jury. Id. at 31. We based this conclusion on the district court’s subsequent discussion during jury selection indicating that the statement should be treated as if it does not exist at all. Accordingly, we affirmed Kinney’s conviction, concluding that the court did not prevent Kinney from testifying at trial. Id. at 32.

In 2001, Kinney filed his first petition for postconviction relief, asserting that his trial counsel was ineffective because his attorney gave Kinney incorrect advice about the consequences of testifying. More particularly, Kinney argued that he waived his right to testify at trial because his attorney told him that if he testified, his June 1, 1998, statement to police would be admissible. The postconviction court denied relief, concluding that the issue was waived because Kinney did not raise it on direct appeal. The court further concluded that on direct appeal, we already rejected Kinney’s argument that he was denied his right to testify at trial because he thought his statement to the police could be used for impeachment purposes. Finally, the postconviction court concluded that Kinney failed to show that his trial counsel’s actions fell below an objective standard of reasonableness or that but for trial counsel’s errors, the trial outcome would have been different.

Kinney appealed the postconviction court’s denial of relief. We concluded that the legal and factual basis for the ineffective assistance of trial counsel claim was known at the time of direct appeal, and that no additional fact-finding was necessary to evaluate the claim. Robledo-Kinney v. State, 637 N.W.2d 581, 585-86 (Minn.2002). Accordingly, we affirmed the postconvietion court’s denial of relief on the ground that Kinney waived his ineffective assistance of trial counsel claim when he failed to raise it on direct appeal. Id. at 587.

In 2003, Kinney filed a second petition for postconviction relief, which the post-conviction court also denied. In 2004, Kinney filed a third postconviction petition identical to his second petition. The post-conviction court again denied relief. In 2007, Kinney filed the current petition for postconviction relief claiming ineffective assistance of trial and appellate counsel. The postconviction court summarily denied relief, concluding that Kinney had waived both ineffective assistance of counsel claims. Kinney appeals, arguing that he should not be barred from bringing his claims.

When reviewing a postconviction court’s denial of relief, we have “an obligation to extend a broad review of both questions of law and fact.” Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (internal quotation omitted). On review, we examine issues of law de novo and issues of fact for sufficiency of the evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn.2007). “Postconviction courts are required to hold an evidentiary hearing and make findings of fact and conclusions of law ‘[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief.’ ” Id. (quoting Minn.Stat. § 590.04, subd. 1 (2006)). “An evidentiary hearing is unnecessary if the petitioner fails to allege facts that are sufficient to entitle him or her to the relief requested.” Id. The allegations must be “more than argumentative assertions without factual support.” Id. (internal quotations omitted).

Further, when a “direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). But we will consider a claim otherwise barred by Knaffla if either 1) “the claim’s novelty was so great that its legal basis was not reasonably available when direct appeal was taken,” or 2) “fairness so requires [review] and * * * the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.” Leake, 737 N.W.2d at 535 (internal quotations omitted).

Kinney claims that his appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel on direct appeal. Kinney filed multiple postconviction petitions before filing the current petition. Because Kinney previously petitioned for postconviction relief, we conclude that he already had ample opportunity to raise his ineffective assistance of appellate counsel claim. Moreover, as stated above, in the first postconviction proceeding we concluded that Kinney either knew or should have known about his ineffective assistance of trial counsel claim on direct appeal. Because Kinney should have known about his ineffective assistance of trial counsel claim at the time of his direct appeal, he also should have known about his ineffective assistance of appellate counsel claim when he filed his first postconviction petition. This is so because his ineffective assistance of appellate counsel claim is based on his ineffective assistance of trial counsel claim. Kinney offers no explanation for why he did not raise his ineffective assistance of appellate counsel claim in his first postconvietion petition or in his second and third petitions. We therefore conclude that because Kinney failed to raise his ineffective assistance of appellate counsel in his first postconviction petition, the claim is barred by Knaffla.

Finally we note that one of the grounds for Kinney’s ineffective assistance of trial counsel claim is his assertion that he did not testify at his trial because trial counsel erroneously advised him that if he did testify, his June 1, 1998, statement to police could be admitted to impeach him. Based on the record, it appears that Kinney may have misunderstood the consequences of testifying at trial; but we addressed this issue on direct appeal. See Robledo-Kinney, 615 N.W.2d at 30. Further, even if Kinney’s counsel was ineffective for his advice regarding the consequences of Kinney testifying, we conclude that the trial outcome would not have been different but for that error. First, the overall evidence against Kinney was strong, including testimony from several eyewitnesses who were sequestered during trial. Second, Kinney made the following statement to the court during trial: “I’m not going to lie. I haven’t lied to the police and I still won’t.” This statement appears to be confirmation that Kinney was truthful when he gave the police his statement and that he would continue to tell the truth, which implies that if asked, he would describe his participation in the incident consistently with his statement to police. Thus, even if Kinney had testified, he would only have confirmed what the State witnesses testified to and what he told police during plea negotiations.

Affirmed.

MAGNUSON, C. J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . A more detailed statement of the facts of the events surrounding the January 30, 1998, incident can be found in our opinions on Kinney's direct appeal and his first petition for postconviction relief. See State v. Robledo-Kinney, 615 N.W.2d 25 (Minn.2000); Robledo-Kinney v. State, 637 N.W.2d 581 (Minn.2002).

      . Kinney filed a pro se brief raising four additional claims: 1) he is entitled to specific enforcement of the plea agreement because he detrimentally relied on that agreement when he gave his statement to police on June 1, 1998; 2) his grand jury indictment and his trial were tainted by the State’s improper use of his June 1 statement; 3) the district court erred when it denied his request for an instruction on a lesser, but not included, offense; and 4) the prosecutor deprived him of a fair trial by committing misconduct during closing argument. Robledo-Kinney, 615 N.W.2d at 32-33. We concluded that these claims lacked merit. Id.

      . In his second and third postconviction petitions, Kinney argued the following: 1) the district court erred when it denied Kinney's request for a diminished capacity defense; 2) Kinney received ineffective assistance of trial counsel; and 3) the district court erred "when it sentenced petitioner in reasonable presence of 'judicial bias' by means of incomplete sentencing and in lieu of apparent coercion between the state’s prosecution and said tribunal to obtain it's [sic] conviction.”

      . Additionally, in Sutherlin v. State, we stated that when a party’s ineffective assistance of trial counsel claim is deemed waived, that party then claiming that appellate counsel was ineffective for not raising the trial counsel claim “is in effect simply recharacterizing an issue that he should have raised on direct appeal,” and should therefore be barred from bringing the claim. 574 N.W.2d 428, 435 (Minn.1998).


author: COLLINS, Judge.

text:
    Daniel Joseph REEVES, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A07-1237.
    Court of Appeals of Minnesota.
    June 24, 2008.

      Peter J. Timmons, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, Peter D. Magnuson, Matthew Frank, Joan M. Eichhorst, Assistant Attorneys General, St. Paul, MN, for respondent.

      Considered and decided by STONEBURNER, Presiding Judge; LANSING, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

Appellant Daniel Joseph Reeves challenges the district court order sustaining the revocation of his driving privileges, arguing that (1) since he did not fail the preliminary breath test (PBT), there was no probable cause for his arrest for driving while impaired (DWI) and (2) Hennepin County’s “FasL-Track” program, which dictates the scheduling of implied-consent hearings, violates Minn.Stat. § 169A.53, subd. 3(a) (2006) and his due-process rights. We affirm.

FACTS

Reeves was stopped on September 16, 2006, by an officer who observed his vehicle change lanes without signaling, weave within its lane, and touch the right-lane divider several times, all within a one-mile distance. Following the stop, the officer “noticed that [Reeves] had bloodshot and watery eyes and that there was an odor of an alcoholic beverage coming from the vehicle.” Reeves admitted that he had been drinking. The officer ordered Reeves out of the vehicle and observed that Reeves “was swaying a little bit” as he exited.

While conducting the horizontal gaze nystagmus (HGN) field sobriety test, the officer noticed that Reeves smelled of alcohol. The officer “noted four clues,” two in each eye, and testified that Reeves thus failed the HGN test.

Although Reeves swayed, put his foot down, and used his arms for balance while performing the “one-legged stand” field sobriety test, the officer considered Reeves’s performance of this test to be satisfactory.

Next, the officer administered a PBT. After an unsuccessful attempt, the officer was able to obtain a reading of .067. A second reading of .077 was obtained from a slightly larger breath sample.

Reeves was then arrested for DWI and he submitted to a blood test administered pursuant to the implied-consent law, which he failed. On November 1, 2006, Reeves’s driver’s license was revoked. Reeves petitioned for judicial review on November 9, and his implied-consent hearing was scheduled to occur 130 days later, March 19, 2007. On November 13, 2006, Reeves sought and was granted a stay of revocation; his driving privileges were reinstated the next day, and all references to the implied-consent revocation were removed from his driving record pending the hearing.

At the implied-consent hearing, Reeves challenged the revocation, arguing that (1) there was no probable cause for his arrest and (2) Hennepin County’s “Fast-Track” program, which dictates the scheduling of implied-consent hearings, violated Minn. Stat. § 169A.53, subd. 3(a) (2006), and his due-process rights. The district court rejected both arguments, and this appeal follows.

ISSUES

1. Did the officer have probable cause to arrest Reeves for DWI?

2. Did Hennepin County’s “Fast-Track” program violate Reeves’s statutory or constitutional rights?

ANALYSIS

I.

Reeves argues that the district court erred in finding that there was probable cause to arrest him for DWI because he twice “passed” a preliminary breath screening test (PBT), with readings of .067 and .077. We disagree.

“[T]he duty of the reviewing court is simply to ensure that the officer had a substantial basis for concluding that probable cause [for arrest for DWI] existed at the time of invoking the implied consent law.” State v. Olson, 342 N.W.2d 638, 641 (Minn.App.1984) (citation omitted).

When a PBT is warranted, the results “must be used for the purpose of deciding whether an arrest should be made.” Minn.Stat. § 169A.41, subd. 2 (2006). But driving while “under the influence of alcohol” or driving with an alcohol concentration of .08 or more are two of seven independent grounds for committing the crime of DWI. Minn.Stat. § 169A.20, subd. 1(1), (5) (2006). An officer may lawfully arrest a person for DWI when there is probable cause to believe that a violation has occurred. Overline v. State, 406 N.W.2d 23, 25-26 (Minn.App.1987). Probable cause to arrest a person for DWI exists when the facts and circumstances available at the time of arrest reasonably warrant a prudent and cautious officer to believe that an individual was driving while under the influence. Olson, 342 N.W.2d at 640. While the determination is based on the totality of the circumstances, there is no “mechanical or numerical equation.” State v. Driscoll, 427 N.W.2d 263, 265 (Minn.App.1988) (quotation omitted). In addition, reviewing courts should pay great deference to an officer’s determination of probable cause. Olson, 342 N.W.2d at 640-41.

In this case, the officer relied on his objective observations and his experience as a patrol officer in arresting Reeves for DWI. The officer observed seven indicia of intoxication prior to effecting the arrest: (1) erratic driving; (2) bloodshot/watery eyes; (3) odor of alcohol; (4) admission of drinking; (5) swaying; (6) failing four of six “clues” during the HGN field sobriety test; and (7) some difficulty completing the “one-legged stand” field sobriety test. Despite the PBT results, the officer had a substantial basis for determining he had probable cause to make this DWI arrest because the totality of the circumstances indicated that Reeves was driving while under the influence of alcohol.

Moreover, it is not inconsistent for a DWI arrest and invocation of the implied-consent law to be based on driving while under the influence of alcohol even though the driver’s blood-alcohol concentration is within the legal limit. The implied-consent law is triggered

when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired), and ...
(1) the person has been lawfully placed under arrest for violation of section 169A.20 ... or (4) the screening test was administered and indicated an alcohol concentration of 0.08 or more.

Minn.Stat. § 169A.51, subd. 1(b) (2006) (emphasis added). A PBT reading less than .08 does not negate the other bases of probable cause supporting arrest for DWI and invocation of the implied-consent law. See State v. Shepard, 481 N.W.2d 560, 562 (Minn.1992) (“The state may obtain a[DWI] conviction even if the driver’s blood alcohol concentration was less than [the legal limit] provided the state shows that the driver had drunk enough alcohol so that the driver’s ability or capacity to drive was impaired in some way or to some degree.”). Although in this case the PBT results were less than the legal limit, independent probable cause to arrest Reeves for DWI nonetheless remained. Thus, invocation of the implied-consent law was justified.

The district court did not err in concluding that the officer had probable cause to arrest Reeves for DWI, because the totality of the circumstances indicated that Reeves was driving while under the influence of alcohol in violation of section 169A.20, subd. 1(1).

II.

Reeves next contends that his driver’s-license revocation must be rescinded because Hennepin County’s Fast-Track program violates MinmStat. § 169A.53, subd. 3(a) (2006), as well as his right to due process. We disagree. In Riehm v. Comm’r of Pub. Safety, this court recently rejected identical challenges to Ramsey County’s similar scheduling policy. 745 N.W.2d 869 (Minn.App.2008), review denied (Minn. May 20, 2008).

As an initial matter, respondent Commissioner argues that Reeves lacks standing to challenge the program. But an identical argument was addressed and disposed of in Riehm:

[AJppellant has standing to challenge the district court’s [standing order] policy because he asserts he suffered a “direct and personal harm” likely to be remedied by this court: his driver’s license was revoked, and his implied-consent hearing was not held within 60 days after the filing of his petition for review.

745 N.W.2d at 873. Reeves, who asserts he suffered the same harm, thus has standing here.

Turning to the merits, the application of law to undisputed facts is reviewed de novo. Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007). Reeves argues that section 169A.53, subd. 3(a) was violated because his hearing was scheduled to be held 130 days after the petition was filed. The implied-consent hearing “must be held at the earliest practicable date, and in any event no later than 60 days following the filing of the petition for review.” Minn. Stat. § 169A.53, subd. 3(a). But “a district court has considerable discretion in scheduling matters.” Riehm, 745 N.W.2d at 874 (quotation omitted). Moreover, “the implied-consent statute, which requires that hearings be held within 60 days, is directory, and not mandatory.” Id. at 875. And, when a statutory rule is directory, a petitioner is not entitled to relief unless the lack-of-compliance caused him prejudice. Id. at 876.

Reeves’s claim of prejudice hinges on the seven days he was without his driving privileges before he was granted a stay pending the implied-consent hearing. “But where the stay provision in the statute has been successfully invoked to restore the driver’s privileges and in the absence of a showing of prejudice beyond the short number of days [nine] at issue in this case ... the driver’s right to procedural due process has not been violated.” Bendorf, 727 N.W.2d at 417. Thus, Reeves’s claim of prejudice fails because he was without his driving privileges for an even shorter period of time than was Ben-dorf.

The district court correctly rejected Reeves’s challenges to the Fast-Track program.

DECISION

We affirm the district court order sustaining Reeves’s driver’s-license revocation because (1) the officer had probable cause to arrest Reeves for DWI, despite PBT readings less than .08, when the totality of the circumstances indicated that Reeves was driving while under the influence in violation of Minn.Stat. § 169A.20, subd. 1(1) (2006), and (2) Reeves’s loss of his driving privileges for seven days did not demonstrate that he was unjustly prejudiced by the Fast-Track program,

Affirmed,

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

      . The district court found that "[t]he parties do not dispute that [Reeves] was without his driving privileges for seven days.” The record is unclear as to how this calculation was made. In any event, Reeves has not disputed the district courts calculation on appeal.


author: CROTHERS, Justice.

text:
    2008 ND 112
    David A. OVERBOE, Plaintiff and Appellant v. Susanne BRODSHAUG, Defendant and Appellee.
    No. 20070263.
    Supreme Court of North Dakota.
    June 5, 2008.

      David A. Overboe, pro se, Fargo, ND, plaintiff and appellant.
    Christopher M. McShane, Ohnstad Twiehell, P.C., West Fargo, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] David Overboe appeals from an order vacating a default judgment that had awarded him $21,334.57 and from a subsequent judgment awarding him $3,642.75 in his action against Susanne Brodshaug to collect attorney fees for representing her in a divorce action. We conclude the district court did not abuse its discretion in vacating the default judgment, did not err in allowing Brodshaug to use defensive recoupment to Overboe’s collection action, did not err in refusing to apply N.D.C.C. §§ 13-01-14 and 13-01-15 to Overboe’s claims, and did not err in applying the usury statutes to his action. We affirm the order vacating the default judgment and the subsequent judgment.

I

[¶ 2] In 1996, Overboe orally agreed to represent Brodshaug in her divorce action. After a trial, a divorce judgment was entered in May 1997. In April 1998, Over-boe filed a post-judgment motion in the divorce action, seeking to find Brodshaug’s ex-husband in contempt and to vacate property division and spousal support provisions in the divorce judgment. The court denied Brodshaug’s motion in June 1998, concluding she had failed to follow the proper procedure for contempt or for relief from the divorce judgment.

[¶ 3] In February 1999, Overboe served a summons and complaint on Brod-shaug in this collection action, seeking $11,145.01 for legal fees and service charges for his representation of her in the divorce action. Brodshaug’s counsel served Overboe with a notice of appearance in March 1999. In January 2004, Overboe filed the summons and complaint in the district court and served Brod-shaug’s counsel with an affidavit, an eight-day notice before entry of a default judgment, and a notice of hearing for a default judgment under N.D.R.Civ.P. 55. Brod-shaug served and filed an answer in February 2004, denying she owed Overboe the amount sought in his complaint, claiming his calculation of service charges violated N.D.C.C. §§ 47-14-09 and 47-14-10, and alleging Overboe was not entitled to recover attorney fees for his negligent representation of her in the post-judgment proceedings. In February 2004, the district court held a hearing on Overboe’s request for a default judgment, at which Overboe submitted an affidavit of proof stating Brod-shaug owed him “$11,145.01 plus service charges, costs and disbursements in the amount of $10,189.56 for legal services performed.” At the hearing, the court noted that neither Brodshaug nor her counsel were present and that her counsel’s office had been telephoned to ask whether counsel would be attending the hearing. The court stated it had been informed counsel was out of the office. In March 2004, the court entered a default judgment against Brodshaug for $21,334.57. Overboe did not thereafter serve Brodshaug with a notice of entry of the default judgment.

[¶ 4] In November 2006, Brodshaug moved to vacate the default judgment. The district court granted Brodshaug’s motion and vacated the default judgment. Overboe thereafter replied to Brodshaug’s answer, asserting her legal malpractice claim was barred by a two-year statute of limitations. The court subsequently denied Overboe’s motion for summary judgment on his assertion that Brodshaug’s legal malpractice claim was barred by the two-year statute of limitations. In February 2007, Brodshaug disclosed that her expert witness, Mark Fraase, was expected to testify at trial regarding “divorce procedures, spousal support, and other related matters.”

[¶ 5] After a bench trial, the district court found Overboe and Brodshaug entered into an oral agreement for Overboe to represent Brodshaug in her divorce; the agreement included an understanding for the price of the services but did not include an agreement for service charges or late fees for unpaid balances; the parties agreed Brodshaug would pay Overboe upon completion of his representation of her; Overboe worked for Brodshaug until June 1998; Brodshaug owed Overboe $8,455.50 for legal services, of which $3,598.50 represented legal services for her post-judgment motion, which the court found Overboe did not perform in a reasonably careful and competent manner; Overboe sporadically sent Brodshaug bills, with no billing statements from August 1998 to December 2006; from February 1997 until August 1998, Overboe charged Brodshaug a monthly service charge of 1.5 percent per month on all unpaid balances, including past service charges and charges less than 30 days old; and the parties agreed Overboe would extend credit to Brodshaug until Overboe had completed his representation of her. The court decided N.D.C.C. § 13-01-14 was not applicable because Overboe intended to extend credit for a period beyond thirty days and he had failed to comply with the monthly notice requirement for billings in N.D.C.C. § 13-01-15. The court decided the interest charged by Overboe for the unpaid balance of attorney fees exceeded the rate allowed under N.D.C.C. § 47-14-09 and was usurious, ordered forfeiture of the usurious interest under N.D.C.C. §§ 47-14-09 and 47-14-10, reduced the principal due for attorney fees by the $3,598.50 incurred for the post-judgment work the court found was not done in a competent manner, and applied a 25 percent penalty to reduce the remaining principal under N.D.C.C. § 47-14-10. As a result, the court awarded Overboe $3,642.75 in his action against Brodshaug.

II

[¶ 6] Overboe argues the district court abused its discretion in vacating the default judgment. He claims Brodshaug failed to show sufficient grounds under N.D.R.Civ.P. 60(b) to justify vacating the default judgment and she failed to show she had a meritorious defense to the action. He claims that Brodshaug failed to establish extraordinary grounds for relief under N.D.R.Civ.P. 60(b)(vi) and that she was limited to relief under N.D.R.Civ.P. 60(b)(iii).

[¶ 7] Rule 60(b), ND.R.Civ.P., authorizes a district court to grant relief from a judgment for “fraud ... misrepresentation, or other misconduct of an adverse party,” or for “any other reason justifying relief from the operation of the judgment.” The decision to grant or deny a motion vacating a default judgment is within the discretion of the district court. Beaudoin v. South Tex. Blood & Tissue Ctr., 2005 ND 120, 1133, 699 N.W.2d 421; Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681. Absent an abuse of discretion, we will not reverse a district court’s decision to vacate a default judgment. Filler v. Bragg, 1997 ND 24, ¶ 9, 559 N.W.2d 225. “A [district] court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misinterprets or misapplies the law.” Id. “A [district] court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Beaudoin, at ¶ 33 (quoting Gepner, at ¶ 13).

[¶ 8] In Beaudoin, 2005 ND 120, ¶ 33, 699 N.W.2d 421 (quoting Gepner, 2001 ND 207, ¶ 14, 637 N.W.2d 681), this Court explained the following standards for consideration of motions to vacate a default judgment under N.D.R.Civ.P. 60:

“This Court has emphasized that N.D.R.Civ.P. 60(b) is to be liberally construed and applied, and trial courts should be more lenient in granting motions to vacate default judgments than in vacating judgments in cases which have been tried on their merits. The relevant factors were summarized in CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 803 (N.D.1990) (citations omitted):
This court has long encouraged trial courts to be more lenient when entertaining Rule 60(b) motions to vacate default judgments as distinguished from “litigated” judgments, that is, judgments entered after trial on the merits. While a trial court certainly has discretion to grant or deny a Rule 60(b) motion to vacate a default judgment, the range of that discretion is limited by three important considerations. First, Rule 60(b) is remedial in nature and should be liberally construed and applied. Second, decisions on the merits are preferable to those by default. Third, as a consequence of the first two considerations, where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.
Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶¶ 13-14, 637 N.W.2d 681 (internal citations and quotations omitted); see also Suburban Sales & Serv., Inc. v. District Court of Ramsey County, 290 N.W.2d 247, 252 (N.D.1980) (noting that no cases were discovered in which our trial courts were held to have abused their discretion in vacating a judgment, but citing several occasions in which our trial courts abused their discretion in refusing to vacate a judgment under Rule 60(b)).”

Beaudoin, at ¶ 33.

[¶ 9] In First Nat’l Bank v. Bjorgen, this Court also described several relevant criteria for district courts to consider in deciding motions for relief from a judgment:

“[T]he general desirability that a final judgment should not be lightly disturbed; the procedure provided by Rule 60(b) is not a substitute for an appeal; the Rule should be liberally construed for the purpose of doing substantial justice; whether, although the motion is made within the maximum time, if any, provided by the Rule, the motion is made within a reasonable time; if relief is sought from a default judgment or a judgment of dismissal where there has been no consideration of the merits, whether in the particular case the interest of deciding cases on the merits outweighs the interest in orderly procedure and in the finality of judgments, and whether there is merit in the defense or claim, as the case may be; if relief is sought from a judgment rendered after a trial on the merits, whether the mov-ant had a fair opportunity to present his claim or defense; whether there are any intervening equities which make it inequitable to grant relief; and any other factor that is relevant to the justice of the judgment under attack.”

389 N.W.2d 789, 796 n. 9 (N.D.1986) (quoting In re Estate of Jensen, 162 N.W.2d 861, 875 (N.D.1968)).

[¶ 10] During the hearing on Brodshaug’s motion to vacate, the district court identified two reasons for vacating the default judgment: (1) an answer had been filed before the default judgment was entered and the hearing on the motion for default judgment was not therefore can-celled, as typically is done in those situations; and (2) Overboe did not serve Brod-shaug with a notice of entry of a default judgment, explaining the delay between the default judgment and Brodshaug’s motion to vacate. The court said Brodshaug’s failure to show up at the hearing on the motion for default judgment was not “the best practices method,” but explained the hearing should have been cancelled after the answer was filed. The court’s explanation for vacating the default judgment establishes the court’s decision was the product of a rational mental process by which the facts and law were stated and considered together for the purpose of achieving a reasoned and reasonable determination. We cannot say the court’s decision was arbitrary, capricious, or unreasonable, and we therefore conclude the court did not abuse its discretion in vacating the default judgment.

Ill

[¶ 11] Overboe argues the district court erred in failing to dismiss Brod-shaug’s legal malpractice claim against Ov-erboe under the two-year statute of limitations for malpractice actions in N.D.C.C. § 28-01-18. He claims Brodshaug’s legal malpractice claim accrued in June 1998, when he sent Brodshaug a letter informing her “the Court indicated he] screwed up” in her post-judgment motion. Overboe argues Brodshaug’s claim for legal malpractice in February 2004 was barred by the two-year statute of limitations for legal malpractice claims. Brodshaug responds her malpractice allegations are defensive recoupment and arise out of the same transaction as Overboe’s claim for attorney fees.

[¶ 12] The two-year statute of limitations in N.D.C.C. § 28-01-18(3) applies to legal malpractice actions. Riemers v. Omdahl, 2004 ND 188, ¶ 6, 687 N.W.2d 445. Here, Overboe’s representation of Brodshaug ended in 1998, and she raised issues about the competency of his representation in her February 2004 answer, Brodshaug’s claim would ordinarily be barred by the two-year statute of limitations. In Minex Res., Inc. v. Morland, 467 N.W.2d 691 (N.D.1991), however, this Court discussed the application of defensive recoupment in the context of the statute of limitations:

“Recoupment is an equitable doctrine with its own unique characteristics: it must arise out of the same transaction that is the subject matter of the plaintiffs action and it can only be used to reduce or avoid the plaintiffs recovery. It is not a “weapon of offense.” Recoupment cannot be used to obtain affirmative relief. Recoupment differs from a counterclaim, which may arise out of a separate transaction and allows for affirmative relief and recovery in excess of that sought by the plaintiff, and from a setoff, which involves a transaction unrelated to the plaintiffs action. Recoupment is purely defensive.
“Counterclaims and setoffs are usually barred by operation of a statute of limitation. On the other hand, it is widely held that a statute of limitation does not defeat defensive recoupment, but that it survives as long as the plaintiffs cause of action exists. We agree with the weight of authority that a claim in the nature of a recoupment defense survives as long as the plaintiffs cause of action exists, even if affirmative legal action upon the subject of recoupment is barred by a statute of limitations.”

Minex, at 699 (citations omitted).

[¶ 18] Brodshaug’s allegations about Overboe’s representation were to reduce or to avoid Overboe’s attempt to recover attorney fees for his representation of her. We conclude her claim is a defensive re-coupment and is not barred by the statute of limitations under the rationale of Mi-nex.

IV

[¶ 14] Overboe argues the district court abused its discretion in admitting into evidence expert testimony by attorney Mark Fraase in violation of the disclosure requirements of a scheduling order that required disclosure of the substance and factual basis of the expert’s testimony. Brodshaug’s disclosure of Fraase said the “expert is expected to testify at trial regarding divorce procedures, spousal support, and other related matters.” Overboe argues Brodshaug’s disclosure did not provide the substance and factual basis of Fraase’s opinion as required by the court’s order. At trial, Overboe objected to Fraase’s testimony, arguing Overboe had never received the factual bases for the expert’s testimony. The court decided Brodshaug’s disclosure complied with N.D.R.Civ.P. 16.

[¶ 15] Rule 16(d)(4), N.D.R.Civ.P., authorizes a district court to hold a pretrial conference to deal with limitations or restrictions on the use of expert testimony under N.D.R.Ev. 702. After a pretrial conference, the court must issue an order that controls the subsequent course of the action. N.D.R.Civ.P. 16(g). See Merrill Iron & Steel, Inc. v. Minn-Dak Seeds, Ltd., 334 N.W.2d 652, 658 (N.D.1983). We review a court’s ruling at trial about compliance with an order issued after a pretrial conference under the abuse of discretion standard. Id. While we are concerned about Brodshaug’s inadequate disclosure, we also note the lack of any effort by Overboe to remedy the deficiency until the brink of trial. On this record, and considering Overboe’s familiarity with the subject matter of the expert’s testimony, we cannot say the court’s decision allowing Brodshaug’s expert to testify was arbitrary, capricious, or unreasonable. We conclude the court did not abuse its discretion in allowing Brodshaug’s expert to testify.

V

[¶ 16] Overboe argues the district court’s findings of fact are clearly erroneous. He attacks the following findings:

II
The parties agreed [Brodshaug] would pay [Overboe] upon completion of [Over-boe’s] representation of [Brodshaug] for the services [Overboe] rendered on behalf of [Brodshaug],
VII
From October 1996 until August 1998, [Overboe] sent bills to [Brodshaug] sporadically. The billing statements were not sent each month. [Brodshaug] did not receive any billing statements during a period from August of 1998 to December of 2006.
IX
It was agreed to by the parties that [Overboe] would extend credit to [Brod-shaug] until [Overboe] had completed his representation of [Brodshaug],
XI
The services provided by [Overboe] after the Notice of Entry of Service of Judgment was served did not satisfy the implied term of the oral agreement requiring [Overboe] to work in a reasonably careful and competent manner.

[¶ 17] In Edward H. Schwartz Const., Inc. v. Driessen, we outlined our standard of review of findings of fact under the clearly erroneous standard:

“A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction the trial court made a mistake. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court. On appeal, we do not reweigh conflicts in the evidence, and we give due regard to the trial court’s opportunity to judge the credibility of the witnesses.”

2006 ND 15, ¶ 6, 709 N.W.2d 733 (quoting Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144).

[¶ 18] Although Overboe claims Brod-shaug’s evidence was not believable and was self-serving, evidence in this record supports each of the district court’s findings, and we do not reweigh that evidence. We are not left with a definite and firm conviction the court made a mistake, and we therefore conclude the court’s findings are not clearly erroneous.

VI

[¶ 19] Overboe argues the district court erred in deciding the interest he charged on her unpaid balance for attorney fees was usurious.

A

[¶ 20] Overboe argues the district court erred in concluding N.D.C.C. § 13-01-14 was not applicable. The court decided N.D.C.C. § 13-01-14 was not applicable because Overboe intended to extend credit longer than 30 days and because Overboe failed to comply with the notice requirements of N.D.C.C. § 13 — 01— 15.

[¶ 21] Under N.D.C.C. § 13-01-14(1), a creditor may charge “a late payment charge on all money due on account from thirty days after the obligation of the debt- or to pay has been incurred.” The late payment charge may not exceed one and three-fourths percent per month and may be charged only if, when the obligation was incurred, the creditor did not intend to extend any credit beyond thirty days and any late payment of the obligation was not anticipated. N.D.C.C. § 13-01-14(2) and (3). “A creditor may not charge the account receivable late payment charge ... unless the creditor promptly supplies the debtor with a statement as of the end of each monthly period, or other regular period agreed upon ... in which there is any unpaid balance.” N.D.C.C. § 13-01-15(1). The statement must identify “a. [t]he percentage amount of the late payment charge which will be charged beginning thirty days after the obligation is incurred ...[,] b. [t]he unpaid balance at the end of the period[,] c. [the] identification of any amount debited to the debtor’s account during the period!,] d. [any] payments made by ... the debtor ... during the period!, and] e. [t]he amount of the late payment charge.” N.D.C.C. § 13-01-15(2)(a-e).

[¶ 22] In Royal Jewelers, Inc. v. Kopp, 365 N.W.2d 525, 527 (N.D.1985), a debtor on the balance of an open account for personal jewelry argued N.D.C.C. § 13-01-14 was not applicable to service charges to the account “because it was apparent that credit would be extended beyond thirty days and that late payment was anticipated.” This Court said, “unless [N.D.C.C. § ]13 — 01—14 applie[d], there [was] no legal or contractual basis for a 1.5% per month finance charge, and [the creditor] would be limited to the presumed rate of interest of 6% per annum under N.D.C.C. § 47-14-05.” Royal Jewelers, at 527. This Court said the district court made no findings about whether the creditor intended to extend credit to the debtor beyond thirty days or whether late payment was anticipated under N.D.C.C. § 13-01-14. Royal Jewelers, at 527. This Court said no usury claim was made, and reversed and remanded the award of service charges for findings on the predicate facts for the applicability of N.D.C.C. § 13-01-14. Royal Jewelers, at 527. This Court said if N.D.C.C. § 13-01-14 was not applicable, the creditor was “only entitled to judgment for the presumed rate of interest of 6% per annum on its account balances” under N.D.C.C. § 47-14-05. Royal Jewelers, at 527.

[¶ 23] Although Overboe claims the district court clearly erred in finding the underlying factual predicates for the application of N.D.C.C. §§ 13-01-14 and 13-01-15, we have concluded those factual determinations are not clearly erroneous. Under those factual findings, the court did not err in deciding those statutes were not applicable to Overboe’s charges.

B

[¶ 24] Overboe nevertheless argues the district court erred in applying the usury statutes in N.D.C.C. §§ 47-14-09 and 47-14-10. He claims Brodshaug cannot claim usury because she did not actually pay a usurious interest rate.

[¶ 25] Our analysis of Overboe’s argument requires consideration of the interrelationship and application of N.D.C.C. § 47-14-05 and our usury statutes, N.D.C.C. §§ 47-14-09 and 47-14-10, to the district court’s findings. Section 47-14-05, N.D.C.C., provides:

“Interest for any legal indebtedness must be at the rate of six percent per annum unless a different rate not to exceed the rate specified in section 47-14-09 is contracted for in writing. All contracts must bear the same rate of interest after maturity as they bear before maturity, and any contract attempting to make the rate of interest higher after maturity is void as to the increase of interest, except for a charge for late payment penalty charged in addition to interest which may not exceed fifteen dollars or fifteen percent of the late payment, whichever is less, unless otherwise agreed to in any commercial, agricultural, or real estate note or mortgage.”

Section 47-14-09(1), N.D.C.C., provides:

“Except as otherwise provided by the laws of this state, a person, either directly or indirectly, may not take or receive, or agree to take or receive, in money, goods, or things in action, or in any other way, any greater sum or greater value for the loan or forbearance of money, goods, or things in action than five and one-half percent per annum higher than the current cost of money as reflected by the average rate of interest payable on United States treasury bills maturing in six months in effect for North Dakota for the six months immediately preceding the month in which the transaction occurs, as computed and declared on the last day of each month by the state banking commissioner, but that in any event the maximum allowable interest rate ceiling may not be less than seven percent, and in the computation of interest the same may not be compounded; provided, however, that a minimum interest charge of fifteen dollars may be made. A contract may not provide for the payment of interest on interest overdue, but this section does not apply to a contract to pay interest at a lawful rate on interest that is overdue at the time such contract is made. Any violation of this section is deemed usury.”

Section 47-14-10, N.D.C.C., provides:

“The taking, receiving, reserving, or charging of a rate of interest greater than is allowed by the laws of this state relative to usury shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it or which has been agreed to be paid thereon, and in addition thereto, a forfeiture of twenty-five percent of the principal thereof. In case the greater rate of interest has been paid, the person by whom it has been paid, or that person’s legal representative may:
1. Recover back twice the amount of interest thus paid, together with twenty-five percent of the principal from the person taking or receiving the same, but an action must be commenced for such purpose within four years after the time when the usurious transaction occurred; or
2. Offset twice the amount of such interest against any indebtedness which the person who paid the same owes to the party or parties receiving such usurious interest.”

[¶ 26] In T.F. James Co. v. Vakoch, 2000 ND 9, ¶¶ 1-2, 604 N.W.2d 459, this Court considered a usury claim in the context of a landlord and tenant relationship. This Court concluded the lease was not subject to the usury statutes and reversed and remanded for application of N.D.C.C. § 47-14-05. T.F. James, at ¶¶ 1, 7, 13. This Court explained:

“This Court interpreted and analyzed the relationship between sections 47-14-09 and 47-14-05, N.D.C.C., in Oil Inv., Inc. v. Dallea Petroleum Corp., 152 N.W.2d 415, 418 (N.D.1967). Dallea Petroleum defaulted on a promissory note. The holder of the note, Oil Investment, sued and recovered principal and interest due on the note. The note contained a clause making the rate of interest after maturity higher than the rate before maturity. On appeal, Dallea Petroleum contended the note was usurious and the lower court should have applied the penalty for usury. This Court held the note was not usurious. In interpreting these statutes, we said “interest before maturity is compensation for the use of money and is regulated by Section 47-14-09, N.D.C.C., and that interest allowed after maturity is considered compensation for damages for the wrongful detention of money and is regulated by Section 47-14-05, N.D.C.C.” Id. at 418. The Court concluded “any provision in any contract providing for a higher rate after maturity than before maturity, regardless of the rate, is void as to such increase and will have no other effect on the contract.” Id. at 420.
“Although sections 47-14-05 and 47-14-09 have been amended since Dallea, their core language has not changed. It is apparent the interest charged here was not before maturity, nor was it compensation for the use of money. It was compensation for damages for the wrongful detention of money. As such, section 47-14-05, N.D.C.C., applies to the transaction, not N.D.C.C. § 47-14-09.
“Under section 47-14-05, N.D.C.C., post-maturity interest rates and late fees are limited. Royal Jewelers, Inc. v. Kopp, 365 N.W.2d 525, 527 (N.D.1985) (holding Royal Jewelers was entitled only to interest allowed under 47-14-05 where customer was charged “service charges” for the balance on an open account). Unlike section 47-14-09, however, a violation of 47-14-05 does not constitute usury. See Dallea, 152 N.W.2d at 418-20 (finding N.D.C.C. § 47-14-05 applies to the note, but the note is not usurious).”

T.F. James, at ¶¶ 6-8 (footnotes omitted).

[¶ 27] Here, the core language of N.D.C.C. §§ 47-14-05 and 47-14-09 has not changed since T.F. James and Dallea. As applied to this case, however, the district court found that Overboe and Brod-shaug agreed Brodshaug would pay Over-boe upon completion of his representation of her, that Overboe continued working for Brodshaug until June 1998, and that from February 1997 to August 1998, Overboe charged Brodshaug a monthly service charge of 1.5 percent per month on all unpaid balances, including past service charges and charges less than 30 days old. There is evidence in this record supporting the court’s findings, and they are not clearly erroneous.

[¶ 28] The court’s findings reflect Ov-erboe was charging Brodshaug “service charges” on her bill before the bill was due in June 1998, when Overboe quit representing Brodshaug, which constitutes compensation for the use of money, not compensation for damages for the wrongful detention of money, and triggers application of the usury statutes under T.F. James, 2000 ND 9, ¶¶ 6-8, 604 N.W.2d 459 and Dallea, 152 N.W.2d at 418. Under the court’s findings, Overboe charged Brod-shaug an interest rate higher than that permitted by N.D.C.C. § 47-14-09 before he completed his representation of her in June 1998, which was the date the court found the parties had agreed Brodshaug would pay Overboe for his services.

[¶ 29] Overboe relies on Lindberg v. Burton, 41 N.D. 587, 171 N.W. 616 (1918), to support his argument the usury statutes are not applicable because Brodshaug did not actually pay him any interest. In Lindberg, this Court recognized the predecessor to N.D.C.C. § 47-14-10 applied to two different situations:

“It is first provided that where usurious interest has been knowingly contracted for, but not paid, the entire interest on the note or other evidence of indebtedness is forfeited. It is next provided that where such usurious interest has been paid the person by whom it has been paid, or his legal representative, may recover back, from the person who has taken or received it, twice the amount of the interest paid, in an action commenced within two years from the time the usurious transaction occurred. The purpose and effect of statutory provisions similar to section 6076, supra, have been considered by many of the courts of this country, including the Supreme Court of the United States. And the authorities are generally agreed that the statute provides for two different contingencies, or two distinct classes of usury cases, and prescribes a different penalty as to each class. They further agree that in cases falling within the first provision — i.e., where usurious interest has been knowingly contracted for, but not paid-all interest on the usurious obligation is ipso facto forfeited, the debtor can defend against any claim for interest, and the creditor can recover only the sum lent without any interest whatever. But in cases falling within the second provision — i.e., where the debtor has in fact paid interest upon the usurious contract — he cannot plead such payment either as a credit on, or as an offset or counterclaim to, the principal; but his only remedy is to maintain the action to recover the penalty provided for in the second part of section 6076, supra. In other words, the courts uniformly hold that the remedy afforded by the statute is exclusive, and that a party who desires to claim the right granted by the statute must avail himself of the remedy therein prescribed, and can resort to no other form or mode of procedure.”

41 N.D. at 592-93, 171 N.W. at 618 (citations omitted). In Lindberg, the debtors’ action was maintained under the second prong of the statute, authorizing a person who had paid usurious interest to recover twice the amount of the interest alleged to have been paid. Here, Brodshaug did not pay the interest and her claim is predicated upon the first prong of the statute. Overboe’s reliance on Lindberg is misplaced.

[¶ 30] Although Brodshaug did not make any usurious payments to Overboe, charging a rate greater than allowed by the usury statutes triggers the usury sanctions under the first prong of N.D.C.C. § 47-14-10. Based on the district court’s findings in this case, we conclude the court did not err in applying the usury statutes to Overboe’s claims.

VII

[¶ 31] We affirm the order vacating the default judgment and the subsequent judgment.

[¶ 32] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 114
    BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff and Appellee v. James S. FAIL and Fail Antique Auto, Inc., d/b/a Fail Antique and Customizing, Defendants and Appellants.
    No. 20070212.
    Supreme Court of North Dakota.
    June 9, 2008.

      Stephen W. Plambeck (argued) and Jason R. Crance (appeared), Nilles, Ilvedson, Plambeck & Seibo, Ltd., Fargo, ND, for plaintiff and appellee.
    Patrick W. Fisher, Fisher, Olson & Jun-tunen, Ltd., Grand Forks, ND, for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] James S. Fail and Fail Antique Auto, Inc., doing business as Fail Antique and Customizing, appealed from a judgment declaring that Burlington Northern Railroad Company, now known as BNSF Railway Company, has a valid and enforceable railroad easement on their property. We affirm.

I.

[¶ 2] In 1989, Burlington Northern Railroad Company (“BNSF”) conveyed land in Grand Forks to Glacier Park Company. BNSF had constructed railroad tracks on the land to service a potato warehouse. The quitclaim deed, which was recorded with the Register of Deeds, reserved the following in BNSF:

[A] railroad easement including the right, privilege and easement to construct, maintain, repair, renew, use, operate over, replace or remove railroad tracks, drainage facilities and appurtenances thereto in, along, over, upon or across that portion of the premises herein conveyed, as shown shaded on the attached Exhibit “B” and by this reference made a part hereof.

Through the years, the property was conveyed to others by deeds noting the conveyance was subject to any existing easements. After Fail Antique Auto, Inc., (“Fail Antique”) acquired the property in 1992, Fail claimed the property was not encumbered by a valid easement and told BNSF he would be charging a fee for its use of his land.

[¶ 3] After Fail barricaded the tracks in 1993, BNSF obtained a restraining order and a district court granted partial summary judgment in favor of BNSF on the issue of whether BNSF had a valid railroad easement on the property. The district court decided the extent of the railroad easement should be determined at trial.

[¶ 4] Fail Antique subsequently filed for bankruptcy and proceedings in the case halted. After bankruptcy proceedings concluded, Fail posted the property and issued a notice of criminal trespass to BNSF, warning BNSF that it would be prosecuted if it attempted to service the potato warehouse. BNSF obtained another temporary restraining order pending a trial to resolve the issue of the extent of the railroad easement. Following trial, the district court concluded BNSF' had a valid railroad easement on the property extending “16 feet out in each direction from the mid-point between the two sets of tracks.”

II.

[¶ 5] Fail argues the district court erred in determining, through erroneous findings of fact and conclusions of law, that the original quitclaim deed was sufficient to reserve an easement in BNSF. We fully review conclusions of law and mixed questions of law and fact under the de novo standard. State v. Torgerson, 2000 ND 105, ¶ 3, 611 N.W.2d 182.

[¶ 6] Section 47-05-02.1(1), N.D.C.C., enacted in 1977, provides that “[t]he area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.” The legislative history of this section, enacted as House Bill 1087 of the 1977 Legislative Assembly (1977 N.D. Sess. Laws ch. 426, § 1), shows that as introduced the bill required that the easement be described “with particularity” but after hearing in the Senate Agricultural Committee, those words were deleted and the word “properly” was inserted. Thus the statute requires that the easement be “properly described” rather than described . “with particularity.” The minutes further reveal that the concern of the proponents of the bill was with “blanket” easements whereby a utility or a railroad would have a blanket easement over any portion of the property.

[¶ 7] Although we have not heretofore had the occasion to decide a case applying this particular provision, it is a long-standing principle that a reservation must be clearly expressed in a deed and described with enough certainty so it can be identified as to its location. Royse v. Easter Seal Society for Crippled Children and Adults, Inc., 256 N.W.2d 542, 545 (N.D.1977) and cases cited therein. Furthermore, we have said that exceptions or reservations of property in a deed should be set forth with the same prominence as the property granted and should be so explicit as to leave no room for doubt. North Shore, Inc. v. Wakefield, 530 N.W.2d 297, 300 (N.D.1995). We have also said that to require less “would be encouraging practices which would lend themselves readily to fraud and deception.” Royse, at 545. We see no different purpose in the requirements of N.D.C.C. § 47-05-02.1(1) nor in the requirements of N.D.C.C. § 47-04-31, providing that an instrument of conveyance containing a reservation for the future construction of any railroad or highway must specifically locate or describe by metes and bounds such right of way.

[¶ 8] The quitclaim deed in question reserved a railroad easement in the portion of the premises conveyed that is “shown shaded on the attached Exhibit ‘B’.” At the time of the quitclaim deed, railroad tracks had already been constructed on the property in question. Exhibit B shows the stretch of railroad tracks, depicted by two lines running parallel to each other. The tracks themselves and an area on either side of the track lines were shaded in. There is an arrow pointing to the shaded area on either side of the tracks and “32'” is written next to the arrow. At the bottom of Exhibit B, there is a box that is also shaded, with the words “TRACK EASEMENT RESERVED” written beside it, presumably to assist others in understanding the drawing.

[¶ 9] This is not a new reservation. The easement was reserved nearly two decades ago. The reservation was not for “future” construction of the railroad. The railroad tracks were in place when Fail obtained the property well over a decade ago and remain in place. There can be no doubt as to the location of the easement. The only thing that has changed with respect to the easement is that BNSF began using the easement to service the potato warehouse. Under these circumstances, Exhibit B properly describes a railroad easement on Fail’s property and the shaded area, along with the arrow indicating “32,” sufficiently set out the area of land to be covered by the easement.

[¶ 10] We affirm.

[¶ 11] ALLAN L. SCHMALENBERGER, D.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 12] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of CROTHERS, J., disqualified.