author: BLATZ, Chief Justice.

text:
    Keith HENDERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. CX-02-2184.
    Supreme Court of Minnesota.
    March 4, 2004.

      Sara Goldman, Freedom Forum of New York City, New York City, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

On March 25, 1999, a jury found appellant Keith Henderson guilty of first-degree murder in violation of Minn.Stat. § 609.185(1) (2000), and guilty of a crime committed for the benefit of a gang in violation of Minn.Stat. § 609.229, subd. 2 (2000), in connection with the shooting death of Juwan Gatlin. The district court sentenced Henderson to life in prison on the first-degree murder conviction and imposed a consecutive five-year sentence for his conviction of a crime committed for the benefit of a gang. On January 11, 2001, we affirmed his conviction and sentence. State v. Henderson, 620 N.W.2d 688, 706 (Minn.2001). In July of 2002, appellant filed a Motion for Postconvietion Relief pursuant to Minn.Stat. § 590.01, subd. 1 (2002) based on ineffective assistance of trial counsel and selective prosecution. The postconvietion court denied relief without an evidentiary hearing. Appellant now appeals the decision of the postconvic- • tion court. We affirm.

The facts of this case are fully detailed in the direct appeal to this court. Henderson, 620 N.W.2d at 693-96. However, to provide context for the issues raised in this appeal, we will briefly summarize the facts relevant to the issues before us. Juwan Gatlin was shot to death on August 7, 1998, in an alley in Minneapolis. Gatlin was a member of the Mickey Cobra gang, a gang to which appellant Keith Henderson also belonged. Id. at 693. During the trial, evidence was introduced suggesting that Gatlin was murdered because he provided the police with information that resulted in the arrest and guilty pleas of two other members of the Mickey Cobras for a separate, unsolved murder. Id.

At trial, several witnesses, including April Bell, Herbert Williams, Dedra Johnson, and Cherry Bell, testified as to various occurrences or conversations they had with Mickey Cobra members believed to be involved in the murder. Id. at 693-95. Bell, herself a Mickey Cobra member, testified in great detail regarding events occurring on the day of the murder. Specifically, she testified that Darryl McKee and Donte Evans — two men alleged to have been with appellant at the time of the murder — were in her bedroom minutes before the murder occurred, retrieving a gun and discussing their plan to kill Gatlin. Bell also testified that she was with McKee, Evans, and appellant immediately after Gatlin was murdered because all three men came back to her house. While there, McKee and Evans changed their clothes, and the men discussed comments made by Gatlin when he was attacked.

Johnson, who was romantically involved with Gatlin, testified that she was with appellant when another man came to her house and told her that Gatlin had been murdered. According to Johnson, appellant responded to the news of Gatlin’s death with the statement, “I did it.” After seeing the shock on Johnson’s face, appellant said he was “playing.”

On September 14, 1998, after appellant was charged with the murder of Gatlin but months before the trial began, the parties entered into a stipulation and requested the court to order that neither appellant, “his attorney, or any of the above-referenced agents shall disclose or discuss any discoverable material with anyone else, and specifically not to persons not assigned to represent [appellant] on the above-referenced criminal matter.” At the time the stipulation was entered into, it was alleged that Gatlin, a Mickey Cobra, was murdered because he “snitched.” Thus, there was a concern that at least two of the witnesses, Bell and Williams, who were also Mickey Cobras, were vulnerable to retribution. The judge issued the order requested.

In addition to the aforementioned witnesses, at trial the state called Paul Givens to testify. Givens testified that while he was in jail with appellant, appellant confessed to the murder and the circumstances surrounding it. Givens had been declared incompetent to stand trial in an unrelated criminal charge against him in the spring of 1998 due to marginal intellectual capacity and dementia from severe head trauma. See Minn. R.Crim. P. 20.01 (2002). However, in the fall of 1998— approximately six months prior to his testifying in this case — Givens was declared competent to stand trial.

At trial, appellant’s counsel made a motion challenging the timing of the disclosure of Givens as a witness and challenged Givens as an incompetent witness under Minn.Stat. § 595.02 (2002). Appellant’s counsel claimed that the state had received information in late October or early November of 1998 from Givens that he had information about Gatlin’s murder and would testify against appellant, but that he was not notified of Givens’s cooperation until late January or early February of Í999. The trial proceedings commenced March 15, 1999. Counsel argued that the evidence put forth by Givens should have been excluded in part because the defense did pot have time to “get him psychologically evaluated.” In response to the motion by appellant’s counsel, the district court asked Givens a series of questions directed to determining Givens’s ability to discern truth from falsehood and to detect the possibility of mental illness. Finding Givens competent, the court denied the motion, and Givens was allowed to testify. Appellant was convicted of and sentenced for murder in the first degree and for a crime committed for the benefit of a gang.

On direct appeal, appellant raised five separate issues. We affirmed his convictions, holding that (1) the evidence proffered by appellant that the victim was not afraid of him was not relevant; (2) any error in failing to instruct the jury on accomplice testimony was harmless; (3) appellant did not make a prima facie case of racial discrimination in the state’s use of a peremptory strike; (4) the evidence was sufficient to support the convictions; and (5) the sentence of life in addition to a consecutive term of five years was permissible. Henderson, 620 N.W.2d at 698-706.

Subsequent to the direct appeal, appellant filed a petition for postconviction relief in July of 2002. Appellant argued that he was prejudiced by ineffective assistance of trial counsel and that he was selectively prosecuted based upon the racially discriminatory impact of Minn.Stat. § 609.229, the statute that penalizes crimes committed for the benefit of a gang. Without conducting a hearing on the petition, the postconviction court noted that the issues raised were known on direct appeal and therefore were barred by our decision in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). Nonetheless, the court went on to address the substantive claims but denied the petition, noting that all of appellant’s claims lacked factual support. Appellant then appealed to this court.

This case presents the court with the issue of whether appellant is entitled to an evidentiary hearing on his postcon-viction petition and the relief requested. In his petition, appellant reasserts and incorporates the arguments from his post-conviction petition. Appellant’s specific claims regarding ineffective assistance of trial counsel are two-pronged: (1) his counsel’s alleged failure to subject witness Givens to psychological evaluation; and (2) his counsel’s alleged failure to challenge the “protective order” issued by the district court.

Postconviction relief may be sought in Minnesota pursuant to Minn. Stat. 590.01, subd. 1. A postconviction courts rulings are reviewed under an abuse of discretion standard. State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994). Our inquiry is limited to determining] whether there is sufficient evidence to sustain the postconviction courts findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992). Additionally, when a defendant files for postconviction relief, he bears the burden of proving, by a preponderance of evidence, facts sufficient to warrant a reopening of the case. Hummel v. State, 617 N.W.2d 561, 564 (Minn.2000) (citing Hale v. State, 566 N.W.2d 923, 926 (Minn.1997)). In order to meet that burden, a petitioners allegations must be supported by more than mere argumentative assertions that lack factual support. Id.

A postconviction proceeding may require an evidentiary hearing. See Minn. Stat. 590.04, subd. 1 (2002). However, if the petition, files, and record conclusively show that the petitioner is entitled to no relief, a court need not conduct an eviden-tiary hearing. Id.; Hummel, 617 N.W.2d at 564 (citing Zenanko v. State, 587 N.W.2d 642, 644 (Minn.1998); Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990)).

Further, where a petition for postconviction relief otherwise meets the standards set forth in Minn.Stat. § 590.01 (2002), it may be procedurally barred due to the standard set forth in this court’s decision in Knaffla. “[W]here 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.” Knaffla, 243 N.W.2d at 741. This rule also applies if the petitioner should have known about the claim at the time of direct appeal. Boitnott v. State, 640 N.W.2d 626, 630 (Minn.2002) (citing Black v. State, 560 N.W.2d 83, 85 (Minn.1997)). The exceptions to this rule are where the claim is so novel that the legal basis was not available on direct appeal, or where the petitioner did not “deliberately and inexcusably” fail to raise the claim on direct appeal and fairness requires its consideration. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001) (citing Roby v. State, 531 N.W.2d 482, 484 (Minn.1995)).

In this case, appellant sets forth no evidence suggesting why his claims are not procedurally barred. As to appellant’s claim of ineffective assistance Of trial counsel, we have held that such claims are barred on petition for postconviction relief when such claims are known and 'not raised at the time of direct appeal, except where the claim requires additional fact-finding by the court. Ives v. State, 655 N.W.2d 633, 636 (Minn.2003); Hale v. State, 566 N.W.2d 923, 926 (Minn.1997); Black, 560 N.W.2d at 85. Appellant bases his ineffective assistance of trial counsel claim on his counsel’s failure to have Givens psychologically examined and on his counsel’s role in entering into a. stipulation with the state urging the district court to issue a protective order. Appellant objects to the stipulation and order because he believes they were a violation of his “due process and equal protection rights.”

' Appellant’s claims of ineffective assistance of trial counsel fail for several reasons. As an initial matter, there is no evidence that the claims were not known at the time of direct appeal, that any additional fact finding is necessary, or that any of the Knaffla exceptions apply. Further, if we were to address the merits, the record clearly'Shows that trial- counsel challenged the evidence provided by Givens and Givens’s competency on March 17, 1999.

Finally, separate from his ineffective assistance of trial counsel claim, appellant raises an equal protection claim of selective prosecution, based on the alleged racially discriminatory impact of Minn.Stat. § 609.229, the statute penalizing crime committed for the benefit of a gang. This claim was known or should have been known at the time of the direct appeal, and appellant offers no evidence that would support a holding that one of the Knaffla exceptions applies to necessitate an evi-dentiary hearing or postconviction relief.

Accordingly, the postconviction court’s denial of relief without an evidentiary hearing is therefore affirmed.

      . The "above-referenced agents” included two assistant Hennepin County attorneys, as well as an assistant Hennepin County public defender.

      . The motion on the record only referred to § 595.02 generally. A challenge to persons of unsound mind can be found under Minn.Stat. § 595.02, subd. (f), however, the record is unclear as to whether the motion was brought under this subdivision.


source: Caselaw Access Project

author: HANSON, Justice. ANDERSON, RUSSELL A., Justice,

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Johnnie Lee RHODES, Respondent.
    No. C7-03-80.
    Supreme Court of Minnesota.
    March 4, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Appellant.
    John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

We are asked to extend the holding in State v. Wukawitz, 662 N.W.2d 517, 520 (Minn.2003), to allow a defendant to withdraw his guilty plea or the court to modify the sentence where a mandatory conditional release term is not included in the maximum executed sentence described in the defendant’s plea petition but the defendant is on notice of the state’s intention to seek the term before sentencing and fails to object to its inclusion in the sentence. The court of appeals applied Wukawitz to hold that the plea was not intelligently entered and the sentence must be modified. We reverse.

Respondent Johnnie Lee Rhodes was charged with first-degree criminal sexual conduct under Minn.Stat. § 609.342, subd. lffiffi and subd. 2 (1998). On May 19, 1999, pursuant to a plea agreement with the state, Rhodes pleaded guilty. The written plea petition reflected agreement to a maximum executed sentence of 105 months and made no reference to the mandatory conditional release period required of sex offenders by Minn.Stat. § 609.109, subd. 7(a) (1998). The conditional release term was not discussed at the plea hearing.

On June 8, 1999, the Presentence Investigation report was issued. Its face sheet included a reference to “Conditional Release: 5 Years” and it concluded with the following “Recommendation”:

It is the recommendation of this Officer that the Court accept the proposed plea negotiation and sentence the defendant to 105 months commitment to the Commissioner of Corrections with jail credit of 270 days. It is further the recommendation of this Officer that the defendant be ordered to pay restitution to the victim’s family for their out-of-pocket expenses. As this is a sex offense, he is subject to the provision of a specimen for DNA analysis, registration as a convicted sex offender, and a five year Conditional Release period upon his release from custody.

At the sentencing hearing held on June 17, 1999, the state presented the plea agreement and specifically stated to the court that, “along with a prison sentence, Rhodes would be sentenced to a five-year period of conditional release.” Neither Rhodes nor his counsel objected to this statement and, when later given an opportunity to speak, neither Rhodes nor his counsel made any statement concerning the plea agreement or the conditional release term. When the district court sentenced defendant, the court stated that Rhodes was subject to the 5-year conditional release term and said “so you’ll be on the five-year conditional release after you get out of prison.” The court then asked Rhodes if there were any questions or anything that the court had missed and Rhodes’ counsel answered, “No, your Hon- or.” The judgment roll included the 5-year conditional release term.

Three years later, on August 14, 2002, Rhodes filed a petition for postconviction relief, requesting that he be allowed to withdraw his guilty plea or that the conditional release term be reduced to the term of supervised release so that the conditional release term would not cause him to be subject to Department of Corrections’ supervision longer than he would have been under a 105-month sentence. The post-conviction court denied Rhodes’ petition for relief because “[ajlthough the conditional-release term may have been absent in the plea petition itself, it was incorporated into Petitioner’s sentence at the sentencing hearing as required by law.” The court noted that “[tjhere is no requirement that the conditional release term be mentioned prior to sentencing. Rather, the statute specifically requires it to be included in the sentence.” The court concluded that Rhodes was aware of the 5-year conditional release term because it

was specifically outlined in the presen-tence investigation, it was part of the prosecutor’s request at sentencing, both Petitioner and his attorney were present when the terra was imposed by the Court, both Petitioner and his attorney were active participants at the hearing and Petitioner and his attorney were afforded the opportunity to object or inquire. All of this took place in open court with the Petitioner present.

In reaching its decision, the postconviction court relied upon an unpublished court of appeals opinion, State v. Norris, No. CX-01-1834, 2002 WL 485292, at *3 (Minn.App. April 2, 2002) (affirming the postcon-viction court’s denial of defendant’s motion to withdraw his guilty plea because defendant received notice of the conditional release term at the sentencing hearing and failed to object).

Rhodes appealed to the court of appeals, which held that the postconviction court abused its discretion by not modifying Rhodes’ sentence. The court of appeals concluded that Rhodes “did not intelligently enter his plea because he did not know all the direct consequences of his plea.” Rhodes v. State, No. C7-03-80, 2003 WL 21452143, at *4 (Minn.App. June 24, 2003). The court, mistakenly believing that Rhodes “does not ask to withdraw his guilty plea,” granted Rhodes’ alternative request that the “conditional release be modified so that it is concurrent and coterminous with his supervised release, but so that [Rhodes] would remain incarcerated until the normal supervised release date.” Id. at *2, *4.

The court of appeals noted that different panels of the court of appeals have reached differing conclusions as to whether post-conviction relief is appropriate under these circumstances. Id. at *3 n. 2 (citing Buford v. State, No. C4-01-2137, 2002 WL 31013691 at *3 (Minn.App. Sept.10, 2002) and Norris, 2002 WL 485292, at *2). We granted the state’s petition for further review.

We review a postconviction court’s decision to deny relief under an abuse of discretion standard. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Determining what the parties agreed to in a plea bargain is a factual inquiry for the postconviction court to resolve. Kochevar v. State, 281 N.W.2d 680, 687 (Minn.1979). But interpretation and enforcement of plea agreements involve issues of law that we review de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000).

A criminal defendant does not have an absolute right to withdraw a guilty plea once it is entered. Perkins v. State, 559 N.W.2d 678, 685 (Minn.1997). Rather, Minn. R.Crim. P. 15.05, subd. 1, provides that “[t]he court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” A manifest injustice exists if the plea is not accurate, voluntary and intelligent. Perkins, 559 N.W.2d at 688; see also ABA Standards for Criminal Justice, Pleas of Guilty 14-2.1.(b)(i)(c) (3d ed. 1999) (manifest injustice exists if “the plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed.”).

In a series of seven cases, we have considered issues concerning the addition of the conditional release term after the sentence has already been imposed. See Wukawitz, 662 N.W.2d at 523-25 (discussing previous cases). In situations where the addition of the conditional release term would result in a sentence that exceeded the maximum executed sentence agreed to in the plea bargain, we have held that the addition of the conditional release term violates the plea agreement. See, e.g., State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn.2000). But in each of those cases, the conditional release term was not mentioned at the sentencing hearing or included in the initial sentence. See, e.g., Wukawitz, 662 N.W.2d at 529 (“Our holding is limited to those situations where the original sentence did not include conditional release and the imposition of such a term after the fact would violate the plea agreement.”).

The state essentially advances two arguments in support of its contention that the present facts do not produce a manifest injustice and that Rhodes is not entitled to postconviction relief. First, the state argues that the postconviction court did not abuse its discretion in determining that Rhodes’ plea was intelligent because Rhodes was aware of the conditional release term. Second, the state argues that because Rhodes did not object to the conditional release term or move to withdraw his guilty plea when the conditional release term was imposed at sentencing, he waived his right to claim that the addition of the conditional release term was a breach of the plea agreement.

Rhodes argues that his decision to plead guilty was not intelligent because he was not informed about the mandatory period of conditional release at the time that he entered his guilty plea. Rhodes argues that the focus in ascertaining the validity of a guilty plea should be on what the defendant knew at the time he decided to plead guilty, not'what he may have subsequently learned from the presritence investigation report or at the sentencing hearing.

We agree with the state that the posteonvietion court did not abuse its discretion in determining that Rhodes’ plea was intelligently made. First, at both the time of his plea and of sentencing, Rhodes was on notice that the conditional release term for sex offenders was mandatory and could not be waived by the district court. The statutory requirement of a conditional release term was added in 1992, years before Rhodes entered his plea. Second, we recognized the mandatory nature of conditional release terms in State v. Humes, 581 N.W.2d 317, 319 (Minn.1998), and State v. Garcia, 582 N.W.2d 879, 881 (Minn.1998). Those decisions were issued on July 9, 1998, 10 months before Rhodes pleaded guilty on May 19, 1999. Third, the postconviction court could infer from Rhodes’ failure to object to the presen-tence investigation’s recommendation, the state’s request at the sentencing hearing and the court’s imposition of the sentence, that Rhodes understood from the beginning that the conditional release term would be a mandatory addition to his plea bargain. This third factor materially differentiates this case from Wukawitz and the precedent on which it relies. It also disproves any claim that Rhodes might make that the state had promised to recommend a sentence that did not include a conditional release term.

We need not reach the state’s alternative argument on waiver. We reverse the decision of the court of appeals and affirm the district court’s denial of postconviction relief.

Reversed.

ANDERSON, RUSSELL A., Justice,

(dissenting).

I respectfully dissent. In my view, the majority opinion has disregarded essential and elementary constitutional principles surrounding the district court’s acceptance of a plea of guilty when that plea is made pursuant to a plea agreement that provides that the guilty plea may be withdrawn if the district court does not sentence in accordance with the agreement. The plea agreement in this ease, promised by the prosecutor and agreed to by the court, allowed Rhodes to withdraw his guilty plea if the sentence exceeded 105 months of confinement.

Before accepting a plea of guilty, the district court must assure through advice and inquiry that the defendant understands the nature of the charge and the consequence of the plea, including any sentencing provisions, and the relinquishment of constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When a defendant enters a plea of guilty based upon a promise or agreement, the court must assure that the promise is fulfilled or the defendant be allowed to withdraw his plea. Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see also State v. Wukawitz, 662 N.W.2d 517, 526 (Minn.2003). Allowing the state to breach a promise that induced a guilty plea violates due process. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000). “The tender of a guilty plea, once accepted by a court, ‘is and must be a most solemn commitment.’ ” Wukawitz, 662 N.W.2d at 526 (quoting Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968)).

In this case, the promise made by the prosecuting attorney to Rhodes was recited in the Rule 15 petition, and further clarified during the plea hearing. The Rule 15 petition, which Rhodes signed and said he understood, provided:

I have been told by my attorney and understand: That my attorney discussed this ease with one of the prosecuting attorneys and they agreed that if I entered a plea of guilty, the prosecutor will do the following: (Give substance of plea agreement)
P[lead] to charge, 120 months
C[ourt] has said 105.
The prosecutor clarified that in return for Rhodes’ plea of guilty, the prosecutor promised to recommend the sentence that the district court had agreed to impose during in-chambers plea discussions, noting:
[T]he State had originally, in terms of the negotiations in this matter offered 120 months. However, during the process of discussion with the Court in chambers, the Court had offered 105 months — or that is actually what Mr. Schnech [defense counsel] caused the Court to agree to — and where we are at this point, the State would indicate that we would not in any way be opposed to that and would be going along with 105 months.

No one, not even the majority, contends that the addition of 60 months of conditional release was a part of the sentence that the prosecutor promised to recommend and the district court agreed to impose in the plea agreement. Absent withdrawal of the plea agreement, the prosecutor is bound to keep the promise he made and to recommend to the court a sentence that does not exceed the sentence agreed to in that agreement. Santobello, 404 U.S. at 262, 92 S.Ct. 495. The prosecutor’s failure to do so constitutes a violation of due process. United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir.1996).

Minnesota Rule of Criminal Procedure 15.01(12) requires the court to ask the defendant “[wjhether defense counsel has told the defendant and the defendant understands that if the court does not approve the plea agreement, the defendant has an absolute right to withdraw the plea of guilty and have a trial.” (Emphasis added.) As the commentary to Rule 15 indicates, “[wjhenever the court rejects the plea agreement, whether on tender of plea or after receipt of the pre-sentence report, or after plea, the court shall so inform the defendant and give the defendant an opportunity to affirm or withdraw the plea, if entered.” Minn. R.Crim. P. 15 cmt. Here, the district court accepted Rhodes’ plea of guilty pursuant to a plea agreement which provided “that if the court does not approve this agreement I have an absolute right to then withdraw my plea of guilty and have a trial.” The plea agreement, which the district court expressly facilitated and agreed to, provided that Rhodes would be sentenced to a term of imprisonment not to exceed 105 months and provided Rhodes the opportunity to withdraw his guilty plea if the court intended to exceed that sentence.

Under these circumstances, when the district court accepted Rhodes’ guilty plea, the court was bound by the plea agreement that induced the plea and its sentence could not exceed the sentence provided for in the plea agreement. State v. Jumping Eagle, 620 N.W.2d 42, 44-45 (Minn.2000); State v. Garcia, 582 N.W.2d 879, 882 (Minn.1998). “It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn.” Kochevar v. State, 281 N.W.2d 680, 687 (Minn.1979). If the district court did not intend to follow the plea agreement, the court should have notified Rhodes and allowed him to withdraw his guilty plea or accept, following supplemental Rule 15 advice and inquiry, the sentencing modifications the court intended to impose.

Never before have we said, as the majority does today, that a prosecutor can violate the plea agreement by recommending a sentence greater than he agreed to recommend in the plea agreement; and never before have we said, as the majority does today, that the district court is allowed to impose a sentence greater than the sentence provided for in a plea agreement which allows withdrawal of the guilty plea if the court intends to sentence in excess of the agreed sentence.

If the prosecutor intends to recommend a sentence greater than the sentence he promised to recommend in the plea agreement, or if the district court intends to impose a greater sentence than that promised in the plea agreement, both the prosecutor and the district court must inform the defendant of their intent and, as promised in the plea agreement, allow withdrawal of the guilty plea. Kochevar, 281 N.W.2d at 687. A defendant, particularly a 17-year-old juvenile like Rhodes, who enters a guilty plea pursuant to an agreement providing for a maximum sentence or plea withdrawal, should be entitled to rely upon the prosecutor and the district court to honor the agreement, or else permit him to withdraw his plea.

Finally, the majority would “infer” that Rhodes knew that an additional 60 months of conditional release was part of the plea agreement. Such an inference, however, is not permitted because both the U.S. Constitution and Rule 15 require a precise inquiry into the defendant’s understanding of the terms of the plea agreement in order to assure that the plea is voluntary and not induced by false promises. See U.S. Const. amends.V, XIV; Minn. R.Crim. P. 15 (state equivalent of Fed. R.Crim.P. 11); Boykin, 395 U.S. at 243-44, 89 S.Ct. 1709; McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (construing Fed. R.Crim.P. 11). A plea agreement providing for 105 months of confinement cannot be interpreted, by inference on a silent record, to include an additional 60 months of conditional release.

I would reverse and remand as required by our decision in State v. Wukawitz.

      . We have recognized that some plea agreements contemplate recommendations by the parties without binding the court to a specific sentence and that in such cases the court’s failure to follow the recommendation does not violate due process. State v. Wukawitz, 662 N.W.2d 517, 522 n. 3 (Minn.2003). That is not the case here, however, for Rhodes’ plea was made pursuant to an agreement providing for a sentence of 105 months, which, if not followed, would permit withdrawal of the plea.


author: GORDON W. SHUMAKER, Judge.

text:
    In the matter of the arbitration between Cristian KLINEFELTER, Respondent, v. CRUM AND FORSTER INSURANCE COMPANY, Appellant.
    No. A03-895.
    Court of Appeals of Minnesota.
    Feb. 24, 2004.

      Joseph F. Kueppers, Kueppers, Hackel & Kueppers, P.A., St. Paul, MN, for Respondent.
    George C. Hottinger, Erstad & Riemer, P.A., Minneapolis, MN, for Appellant.
    Cameron M. Parkhurst, Parkhurst Law Firm, Roseville, MN, for amicus curiae Minnesota Trial Lawyers’ Association.
    Considered and decided by SHUMAKER, Presiding Judge; and RANDALL, Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant insurance company challenges the judgment entered on the district court’s order denying its motion to vacate an arbitrator’s award and affirming the award of no-fault benefits to respondent, who was injured in an automobile accident during the course of his employment.

FACTS

This is a no-fault insurer’s appeal from the district court’s denial of the insurer’s motion to vacate a no-fault arbitration award.

Respondent Cristian Klinefelter is the insured. He was injured in an accident while driving his own vehicle in the performance of work for his employer, Quicksilver Express Courier. Safeco Insurance Company was Quicksilver’s workers’ compensation insurer. Appellant Crum and Forster Insurance Company provided no-fault insurance for Klinefelter’s vehicle.

Safeco paid workers’ compensation benefits to Klinefelter for several months and then terminated benefits because Klinefel-ter changed physicians without prior consent from Safeco in contravention of a workers’ compensation rule. Klinefelter then claimed no-fault benefits from Crum and Forster. The claim was arbitrated, and the arbitrator found in Klinefelter’s favor. Crum and Forster paid the award.

About a year later, Klinefelter filed another claim for workers’ compensation benefits with the workers’ compensation division, and he also requested permission to change physicians. Crum and Forster intervened, seeking reimbursement for the no-fault benefits it had paid. For various reasons, the workers’ compensation court denied Klinefelter’s claim and request and denied Crum and Forster’s petition for reimbursement. The workers’ compensation court of appeals affirmed. Klinefelter v. Quicksilver Express Courier, 2003 WL 465509 (Minn. Workers’ Comp. Ct. Apps. Jan. 6, 2003).

Klinefelter then petitioned for no-fault arbitration of medical expenses and wage losses. Crum and Forster opposed any award. The arbitrator awarded a total of $8,267.98 to Klinefelter, and Crum and Forster moved the district court to vacate the award, arguing that the arbitrator had exceeded his powers by making a legal determination and that the no-fault claim was barred by collateral estoppel or res judicata. The district court denied the motion and confirmed the award, and Crum and Forster brought this appeal.

ISSUES

1. Did the arbitrator exceed his authority by impliedly ruling that the workers’ compensation court decision did not bar arbitration of the no-fault claim?

2. Was the injured individual barred by collateral estoppel or res judicata from arbitrating the no-fault claim after the workers’ compensation court denied benefits?

ANALYSIS

Crum and Forster argues that, under the no-fault law, workers’ compensation benefits are primary and that once there has been a final denial of those benefits in the workers’ compensation system, a claimant is barred from seeking the same benefits through no-fault insurance. The insurer contends that, although the arbitrator did not expressly make a legal determination, he did so impliedly by allowing the no-fault claim. And because legal determinations are not within an arbitrator’s powers, to the extent the award was based on legal conclusions the insurer argues that it must be vacated.

Minnesota policy strongly favors the finality of arbitration awards. Erickson v. Great Am. Ins. Cos., 466 N.W.2d 430, 432 (Minn.App.1991). Thus, a court may vacate an arbitration award only upon satisfaction of specific statutory grounds, one of which is that the arbitrator exceeded his authority. Minn.Stat. § 572.19, subd. 1(3) (2002). We determine de novo whether an arbitrator exceeded his authority. State v. Berthiaume, 259 N.W.2d 904, 909 (Minn.1977). The burden of establishing that the arbitrator exceeded his authority is on the party who challenges the award. County of Hennepin v. Law Enforcement Labor Servs., Local No. 19, 527 N.W.2d 821, 824 (Minn.1995). Any doubts about the scope of arbitrability are to be resolved in favor of the arbitration. Johnson v. Piper Jaffray, Inc., 530 N.W.2d 790, 795 (Minn.1995).

Under Minnesota’s No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (2002), an arbitrator has the authority to find facts and to apply the law to those facts in awarding, suspending, or denying no-fault benefits. Gilder v. Auto-Owners Ins. Co., 659 N.W.2d 804, 807 (Minn.App.2003). An arbitrator’s findings of fact are final. Barneson v. W. Nat’l Mut. Ins. Co., 486 N.W.2d 176, 177 (Minn.App.1992). When applying the law to the facts, an arbitrator has authority to decide a legal question, but the arbitrator’s legal determination is subject to de novo review by the district court. Gilder, 659 N.W.2d at 807.

Arbitrator’s Authority

Crum and Forster’s argument is that Klinefelter was collaterally es-topped or precluded by res judicata from obtaining a no-fault arbitration award after the workers’ compensation court of appeals had made a final denial of the same benefits. The insurer’s first argument relates to the arbitrator’s implied legal determination that Klinefelter’s no-fault claim was not barred by collateral estop-pel. Collateral estoppel raises questions of both fact and law. In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn.App.1993), review denied (Minn. Oct. 19, 1993). The question of whether to apply or not to apply the doctrine of collateral estoppel is a legal issue. When that issue arguably is pertinent to an arbitration proceeding, the arbitrator necessarily must decide it to determine whether or not the arbitration may be held. The insurer’s argument that the arbitrator here was not authorized to hold the arbitration because he thereby impliedly decided that collateral estoppel does not apply is both spurious and contradictory. Had the arbitrator ruled that, because of the workers’ compensation determination, Klinefelter was collaterally estopped from bringing a no-fault claim, the arbitrator would thereby have decided a legal question. The only difference is that the legal question would have been decided in Crum and Forster’s favor. As we have noted, an arbitrator has the authority to decide the applicability of the law, but the decision is subject to de novo review. Gilder, 659 N.W.2d at 807. Thus, the district court did not err in denying the insurer’s motion to vacate the award on the ground that the arbitrator exceeded his authority.

Applicability of Collateral Estoppel

When a person is injured through the use of a motor vehicle while performing duties for an employer, it is possible that insurance coverage under both a workers’ compensation policy and a no-fault policy could be triggered. In such a case, the law requires that workers’ compensation benefits be paid first: “Basie economic loss benefits shall be primary with respect to benefits, except for those paid or payable under a workers’ compensation law.” Minn.Stat. § 65B.61, subd. 1 (2002).

Crum and Forster cites this statute for the proposition that Klinefelter is collaterally estopped from seeking no-fault benefits because he litigated essentially the same issues in the workers’ compensation system and was denied benefits. Collateral estoppel precludes the re-litigation of an issue that a party has had a full and fair opportunity to litigate in a prior proceeding and as to which there has been final adjudication on the merits. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn.1990).

The effect of Crum and Forster’s reading of this provision would be to treat workers’ compensation benefits as both exclusive and final. Thus, a motor vehicle user in Klinefelter’s situation would be required to proceed not first but only through the workers’ compensation system and then to accept as final the benefits, if any, he is able to obtain there. And according to the insurer’s reading, if there were, as here, no workers’ compensation benefits payable, that would end the matter. The supreme court has commented on the untenability of this outcome: “Although the no-fault act declares that workers’ compensation benefits are primary, they can hardly be primary if they are not payable at all under the workers’ compensation act.” Patrin v. Progressive Rehab Options, 497 N.W.2d 246, 248 (Minn.1993). We could end here with a determination that the use of the word “primary” in the no-fault statute and the Patrin decision lead us inexorably to the conclusion that collateral estoppel does not preclude an injured claimant from seeking no-fault benefits after first seeking workers’ compensation benefits. But there are also other reasons to reject Crum and Forster’s position.

The workers’ compensation act and the no-fault act are to be read harmoniously. Raymond v. Allied Prop. & Cas. Ins. Co., 546 N.W.2d 766, 767 (Minn.App.1996), review denied (Minn. July 10, 1996). “The statutes, therefore, must be construed with reference to each other.” Colonial Ins. Co. v. Minn. Assigned Risk Plan, 457 N.W.2d 209, 210 (Minn.App.1990), review denied (Minn. July 31, 1990). And “[i]t is presumed that the same general legislative policy underlies the statutes.” Id.

The acts share the general policy of providing to injured persons medical and wage loss compensation quickly and efficiently. The workers’ compensation act is intended “to assure the quick and efficient delivery of indemnity and medical benefits to injured workers.” MinmStat. § 176.001 (2002). A major purpose of the no-fault act is “to encourage appropriate medical and rehabilitation treatment of the automobile accident victim by assuring prompt payment for such treatment.” MinmStat. § 65B.42(3) (2002).

In addition to construing the acts in terms of their shared purposes, we must read the no-fault act as coordinating its benefits in such a manner as to avoid overcompensation of the motor-vehicle user. The no-fault act was adopted in part “to provide offsets to avoid duplicate recovery.” Minn.Stat. § 65B.42(5) (2002). In pursuit of this purpose, the legislature included in the no-fault act a section providing rules for coordinating benefits payable under the no-fault act with those payable through the workers’ compensation law. MinmStat. § 65B.61 (2002). There would be no reason to coordinate benefits if an injured person such as Klinefelter were entitled to receive only workers’ compensation benefits. And the supreme court recognized that a no-fault insurer must pay benefits even if there might be workers’ compensation coverage: “[A] no-fault reparation obligor [must] pay benefits such as medical expense and income loss before they become overdue, regardless of what might be the ultimate outcome of the workers’ compensation claim.” Record v. Metro. Transit Com’n, 284 N.W.2d 542, 545 (Minn.1979). If a no-fault insurer overpays, it is entitled to reimbursement from the workers’ compensation carrier or the insured. Minn.Stat. § 65B.54, subd. 3 (2002).

When read together in the context of their general policies and coordination features, the workers’ compensation act and the no-fault act provide a system through which a person who is injured while using his own motor vehicle in his work for an employer must seek benefits first from a responsible workers’ compensation insurer. He can then look to his no-fault insurer for benefits not already provided, subject, of course, to statutory and policy limitations. If some workers’ compensation benefits are already being provided but do not fully compensate him, he might yet make a claim for the uncompensated items against his no-fault carrier.

In addition to the plain language of the no-fault statute making workers’ compensation benefits only primary and not exclusive, and the policy considerations underlying the workers’ compensation and no-fault laws, collateral estoppel does not apply because Klinefelter did not have a full and fair opportunity to litigate the identical issue in both forums, as required for an estoppel bar. See, e.g., Heine v. Simon, 674 N.W.2d 411 (Minn.App.2004) (holding that collateral estoppel does not apply and an injured claimant is not precluded from recovering damages in a tort action for a claim for lost wages after a workers’ compensation determination that wage loss was not caused by the claimant’s accident). The statutory schemes, substantive rules, and procedural limitations of the respective acts are sufficiently dissimilar that only in the broadest and most abstract sense can it be said that the claims in the two forums were identical.

In this regard, we find Nat'l Indem. Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748 (Minn.1984), instructive. The supreme court held that an arbitrator enforcing an insurer’s right to indemnity under the no-fault act was not bound by factual findings of a jury in a prior tort action. Id. at 751. The court noted that “fact finding in judicial proceedings and in arbitration actions are independent.” Id. (citing McDonald v. City of W. Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984)). Although Nat’l Indem. Co. dealt with the alleged preclusive effect of findings in a prior tort action, we see no meaningful distinction in principle between that case and the attempt here to bind the arbitrator to the formal decision of the workers’ compensation court of appeals.

Applicability of Res Judicata

Res judicata precludes the re-litigation of entire claims rather than just specific issues. Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978). We have already noted that the issues before the workers’ compensation court and the arbitrator, having arisen under different substantive and procedural rules, were not sufficiently identical to permit a collateral-estoppel effect. The same reasons apply to the res judicata argument. The workers’ compensation claim and the no-fault claim were not identical, and the litigation of the claim in the workers’ compensation forum did not provide a full and fair opportunity to litigate the no-fault claim.

Appellant’s Case Authorities

We have carefully considered the primary cases that Crum and Forster relies on here, and we find them to be inapplicable. First, in Am. Family Ins. Group v. Udermann, 631 N.W.2d 424 (Minn.App.2001), review denied (Minn. July 17, 2001), an injured employee entered into a settlement agreement with the workers’ compensation carrier that precluded further recovery, including future chiropractic benefits. Id. at 425. When the employee filed a no-fault claim for chiropractic expenses incurred after the settlement agreement, this court determined that, because workers’ compensation is generally primary and the settlement agreement contemplated future chiropractic costs, any no-fault benefits would duplicate the employee’s recovery. Id. at 428. Because one of the purposes of the no-fault act is to provide offsets to avoid duplicate recovery, when an employee receives benefits under both systems, the no-fault benefits are reduced by the amount of workers’ compensation benefits paid. Griebel v. Tri-State Ins. Co., 311 N.W.2d 156, 159 (Minn.1981). In this case, there is no duplication of benefits because the workers’ compensation carrier has not paid (has in fact denied) Klinefelter’s request for medical expenses; nor has there been a settlement agreement with the workers’ compensation carrier contemplating all future benefits.

Crum and Forster also relies on a New Hampshire ease in which the court determined that collateral estoppel barred an injured motorist from relitigating causation against her insurance carrier in a common-law action for negligence after the workers’ compensation court and the compensation appeals board had previously decided against the motorist and had found that her physical and psychiatric condition were not caused by the automobile accident. Farm, Family Mut. Ins. Co. v. Peck, 143 N.H. 603, 731 A.2d 996, 998-99 (N.H.1999). We are not, however, bound by the holding of the New Hampshire court. Farm Family did not involve statutorily required arbitration proceedings, as here, but rather dealt with a common-law claim of negligence. See Minn.Stat. § 65B.525, subd. 1 (2002) (mandating arbitration of no-fault claims of $10,000). Unlike the New Hampshire court, we must adhere to the statutory requirements of and policy behind Minnesota’s no-fault act.

Finally, the insurer emphasized in oral argument that if it were not held that the workers’ compensation decision has preclusive effect on the arbitrability of the no-fault claims, the insurer as reparation obligor would have no opportunity for reimbursement as provided in Minn.Stat. § 65B.54, subd. 3 (2002) (stating that the obligor is entitled to reimbursement for certain no-fault payments). And, according to the insurer, the absence of a reimbursement source supports its estoppel argument. We are not aware of any authority, and the insurer has cited none, that provides that insurance coverage is conditional on the carrier’s opportunity to recover reimbursement for benefits paid to an insured under an insurance policy. When a person buys an insurance policy, he is entitled to unconditional coverage as long as any claim satisfies the requirements of the policy, irrespective of whether the insurer can ever recoup its payments from another source.

DECISION

The no-fault arbitrator did not exceed his authority in awarding no-fault benefits after a workers’ compensation court denied workers’ compensation benefits, because the workers’ compensation and no-fault statutes are two different sets of laws with different purposes and standards and the findings by a workers’ compensation court are not binding on a no-fault arbitrator. There is no rule that, if the secondary carrier cannot obtain reimbursement, an injured person entitled to benefits will not receive coverage.

Affirmed.

      . We recognize that the legislature nullified the rule in Record in which the supreme court allowed stacking of no-fault and workers’ compensation benefits. See 1980 Minn. Laws ch. 539 §§ 2, 3 (amending Minn.Stat. § 65B.61, subds. 1, 2, to prevent stacking of no-fault and workers' compensation benefits in excess of $200 a week); Hoben v. City of Minneapolis, 324 N.W.2d 161, 162-63 (Minn.1982) (noting that legislature superseded rule in Record that allowed for stacking of no-fault and workers’ compensation benefits). By amending the statute, the legislature did not, however, alter the general purpose of the statute, for which we cite the Record case here.


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Appellant, v. Wade Allen VOLKMAN, Respondent.
    No. A03-1123.
    Court of Appeals of Minnesota.
    March 2, 2004.

      Mike Hatch, Attorney General, St. Paul; and Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Shakopee, for appellant.
    Bruce A. dander, Jordan; and Dennis W. Strid, Dennis Strid & Associates, Minneapolis, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, RANDALL, Judge, and CRIPPEN, Judge.

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

   OPINION

KLAPHAKE, Judge.

The state appeals the district court’s order suppressing evidence discovered during a consensual search of respondent Wade Allen Volkman’s vehicle. The district court suppressed the evidence based on its interpretation of State v. Fort, 660 N.W.2d 415 (Minn.2003), rejecting the state’s argument that the evidence was admissible because it inevitably would have been discovered during an inventory search of the vehicle.

Because the police officer here had a reasonable and articulable suspicion of criminal activity based on his observations during a lawful stop, we conclude that his request for consent to search respondent’s vehicle did not impermissibly expand the scope of the stop. Further, we conclude that the district court failed to consider the appropriate standards for inventory searches and for admission of evidence that inevitably would have been discovered during a properly conducted inventory search. We therefore reverse the district court’s suppression order and remand for further proceedings consistent with this opinion.

FACTS

At about 7:50 a.m. on June 12, 2002, Scott County Deputy Sheriff John Kvasn-icka was sent to investigate a report of a man passed out in a truck on Vergus Avenue in Scott County. Vergus Avenue is a narrow, winding, graveled road, with steep ditches on both sides; on one side, the ditch leads down to a lake.

Kvasnicka found respondent slumped over in the driver’s seat with his head resting against the driver’s side door. Kvasnicka woke respondent by tapping on the window and opened the door to see if he needed medical assistance. Kvasnicka observed that respondent was disoriented, his eyes were red and bloodshot, and he was confused about where he was. Respondent stated that he did not need medical assistance, but Kvasnicka was concerned because respondent “seemed to be confused” and “it took him a long time to answer questions.” Respondent claimed that he was tired and had pulled off the road to sleep at about 4:00 a.m., some four hours earlier. Kvasnicka asked respondent to get out of the truck and asked him for his name. Respondent gave the name of his brother, Adam Scott Volkman; although Kvasnicka had had prior contacts with both respondent and his brother, he did not know them well enough to tell them apart.

By this time, Kvasnicka
was under the impression that [respondent] was possibly under the influence of some type of controlled substance. I did not suspect alcohol. I could not smell any alcohol. At that point I was not going to let him drive just because of his state of confusion and that[] also raised my suspicion that there possibly [were] drugs inside of the vehicle.

Twenty minutes after being awakened, Kvasnicka testified that respondent still appeared “groggy.” At this point, Kvasn-icka decided that the truck would have to be towed, because respondent appeared unable to drive safely.

Kvasnicka asked respondent if he could search his truck, without telling respondent that he could refuse; respondent consented. Respondent was not handcuffed and was not under arrest, but Kvasnicka agreed that respondent was being “detained” as “[p]ossibly under the influence of drugs.” A second deputy sheriff, Daryn Krai, searched the truck and discovered a white powder wrapped in a coffee filter, inside a leather pouch, hidden in a toolbox in the truck. Respondent was handcuffed and placed in the squad car.

Krai testified that respondent appeared “very tired and his eyes were not — I don’t know how to say it but he just appeared very tired at the scene, very groggy.” Krai agreed that he would not have been comfortable allowing respondent to drive, but probably would have let someone pick him up and drive the truck. Krai stated, however, that he deferred to Kvasnicka, because the incident occurred on Kvasnic-ka’s side of the county. Kvasnicka proceeded to arrange for towing of respondent’s truck. Prior to the tow, a third deputy sheriff correctly identified respondent as Wade Allen Volkman. Respondent had three outstanding warrants.

At the omnibus hearing, the state offered to introduce evidence of the Scott County Sheriffs inventory policy. The district court accepted the inventory policy, but opined that its relevancy was limited because “it’s the sheriffs policy regarding an inventory search but he can have whatever policy he wants, it doesn’t make it right.... And it would be sort of like me relying on the sheriff for legal advice as to when an inventory could be done or not.”

On June 9, 2003, the district court issued its order suppressing the drug evidence, based on the recent decision of State v. Fort, 660 N.W.2d 415 (Minn.2003). The court concluded that Kvasnicka did not have a reasonable and articulable suspicion of criminal activity that would permit him to expand the scope of the traffic stop by asking for consent to search. In a footnote to the order, the district court stated that because respondent’s arrest resulted from an unlawful search, the drug evidence must be suppressed, although it would have been discovered during an inventory search.

On July 11, 2003, the state asked the court to vacate its order of June 9, by finding that Fort did not have retroactive application. The district court denied the state’s motion on August 7, 2003. This appeal followed.

ISSUES

1. Did the district court err by concluding that the deputy sheriffs had impermis-sibly expanded the scope of the investigatory stop by asking for consent to search respondent’s truck?

2. Did the district court err in its interpretation of the law regarding inventory searches and the inevitable discovery of evidence?

ANALYSIS

1. Standard of Review

The prosecuting attorney may appeal from a pretrial order if the district court’s “alleged error, unless reversed, will have a critical impact on the outcome of the trialf.]” Minn. R.Crim. P. 28.04, subd. 2(2). The suppression of the drug evidence here meets the standard of critical impact. See State v. Holmes, 569 N.W.2d 181, 184 (Minn.1997) (stating dismissal of charge following suppression of “all the evidence” meets critical impact element). Where the facts are not in dispute, the issue of whether the district court’s pretrial order is erroneous is a question of law, subject to de novo review. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). The state must show that the district court “clearly and unequivocally erred” in its ruling. State v. Bell, 557 N.W.2d 603, 605 (Minn.App.1996) (quotation omitted), review denied (Minn. Mar. 18, 1997).

In a recent case, the Minnesota Supreme Court reaffirmed that a police officer must have a reasonable, articulable suspicion of criminal activity in order to expand the scope of a routine traffic stop beyond the underlying justification for the stop. State v. Fort, 660 N.W.2d 415 (Minn.2003). In particular, the supreme court concluded that the suspect’s consent, taken alone, is insufficient to permit expansion of a routine traffic stop; the police officer must have a reasonable, articulable suspicion of further criminal activity in order to request consent to expand the stop. Id. at 418. The supreme court concluded that testimony that the suspect seemed nervous, avoided eye contact, and was stopped in a “high drug” area” was insufficient to justify expansion of the scope of the stop. Id. at 419.

Fort, however, does not prohibit consensual searches; rather, it clarifies and emphasizes the need to justify the expansion of the scope of the stop with something that is more than a hunch or a whim. Investigative stops, and the expansion of the scope of the stop, are permitted where a police officer can point to a particularized basis for suspecting criminal activity. Id. at 418; see also State v. George, 557 N.W.2d 575, 578 (Minn.1997). The question, then, is'whether the deputy sheriff articulated a particularized basis for suspecting criminal activity that would permit expansion of the scope of the stop.

Kvasnicka’s initial investigation of a motorist slumped over his steering wheel was clearly lawful. During this part of the encounter, he acquired additional information based on respondent’s physical conduct. Respondent stated he had been sleeping in that location for approximately four hours, yet he was still groggy and disoriented. Respondent was confused about where he was, his eyes were red and bloodshot, and his demeanor was consistent with intoxication, yet Kvasnicka smelled no alcohol. Although respondent stood outside his vehicle for 20 minutes conversing with the deputies, he was still “groggy,” according to the testimony of both deputies. Both deputies agreed that respondent appeared unfit to drive and Kvasnicka concluded that what he observed was consistent with intoxication by-drugs other than alcohol. These observations, unlike the subjective conclusions in Fort, presented a particularized reason for expansion of the original stop and a basis for Kvasnicka’s request for consent to search the vehicle.

We therefore conclude that the district court erred in suppressing the drug evidence. Because the district court did not reach the issue of whether consent was freely and voluntarily given, and because the record does not include evidence on this issue, we do not address it here. Based on our decision to remand, the issue of validity of the consent is yet to be determined and may be raised on remand, if appropriate.

2. Inventory Search/Inevitable Discovery

As an alternative, the state argues that the drug evidence would inevitably have been discovered during a lawful inventory search. In reference to this, the district court opined that the drug evidence must still be suppressed because respondent’s arrest resulted from an illegal search. That conclusion was error.

An inventory search is an exception to the search warrant requirement. State v. Ture, 632 N.W.2d 621, 628 (Minn.2001). An inventory search is not based on probable cause; this type of search is deemed reasonable because the police are performing administrative or earetaking functions of protecting the property of the owner of an impounded vehicle and shielding the police from claims that property was lost or destroyed while a vehicle was impounded. Holmes, 569 N.W.2d at 186. The critical factor in approving an inventory search is whether the search was carried out in accordance with the standard procedure of the law enforcement agency. Id. at 187.

Here, Kvasnicka testified that as a matter of department policy, when a driver appears unable to safely drive, the vehicle will be impounded if illegally parked. The state introduced into evidence a copy of the department’s impoundment and inventory policy. The district court gave little weight to the department policy because it was a policy formulated by the sheriff. Department policy, however, is a critical consideration in determining whether an inventory search is valid. Id.; see State v. Rodewald, 376 N.W.2d 416, 421 (Minn.1985).

The second part of the state’s argument is that evidence illegally obtained need not be suppressed if it inevitably would have been discovered by other, lawful means. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Rodewald 376 N.W.2d at 422.

When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation ... If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.

Nix, 467 U.S. at 443-44, 104 S.Ct. at 2508-09 (footnote omitted).

The record suggests that under department policy, respondent’s truck would have been impounded, either because respondent appeared unfit to drive or because he was arrested pursuant to the warrants, and that the drug evidence would have been discovered during an inventory search. Without adequate findings by the district court, however, we are unable to determine if department policy was followed in this instance. On remand, we direct the district court to fully consider department policy and whether it would lead to the inevitable discovery of the drug-evidence.

DECISION

The district court erred by suppressing the drug evidence based on State v. Fort, 660 N.W.2d 415 (Minn.2003) alone and by ■ failing to apply the appropriate standards for inventory searches. Based on this record, the questions of voluntariness of the consent to search and compliance with a standard department policy for inventory searches remain unresolved. We therefore reverse and remand this matter for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    CLEAR CHANNEL OUTDOOR ADVERTISING, INC., f/k/a Eller Media Company, a Delaware corporation, Appellant, v. CITY OF ST. PAUL, Respondent.
    No. A03-1013.
    Court of Appeals of Minnesota.
    March 2, 2004.

      Marvin A. Liszt, David K. Nightingale, Bernick and Lifson, P.A., Minneapolis, MN, for appellant.
    Manuel Cervantes, St. Paul City Attorney, Eric D. Larson, Assistant City Attorney, St. Paul, MN, for respondent.
    John H. Herman, Michael A. Ponto, Craig S. Coleman, Faegre & Benson, LLP, Minneapolis, MN, for Amici Curiae St. Paul Area Chamber of Commerce and Minnesota Automobile Dealers Association.
    Considered and decided by KLAPHAKE, Presiding Judge, RANDALL, Judge, and HARTEN, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Clear Channel Outdoor Advertising, Inc. (Clear Channel) brought a declaratory judgment action challenging respondent City of St. Paul’s (the city) denial of an application for building permits to effect repairs to three billboards. The district court granted summary judgment in favor of the city and denied Clear Channel’s motion for summary judgment, but permitted Clear Channel to amend its complaint to include a regulatory takings cause of action. The district court denied the city’s second motion for summary judgment and certified the following question as important and doubtful:

Where damage to a billboard in legal non-conforming use is less than 51% of the aggregate replacement cost of the sign and sign structure, did the City of St. Paul act lawfully in denying permits to Clear Channel for repairs to its sign by applying a standard that prohibits repair where the damage exceeds 51% of the replacement cost of the sign face[?]

Because we conclude that the city acted arbitrarily and unreasonably by inconsistently interpreting its ordinances, we answer the certified question in the negative. We therefore reverse the district court’s order denying Clear Channel’s motion for summary judgment and remand for entry of summary judgment in favor of Clear Channel in the declaratory judgment action.

FACTS

Clear Channel owns several outdoor advertising signs in the city, including the three signs at issue here. All three signs are in commercially zoned areas in the city and are legal nonconforming signs due to height, size, or location.

On May 30, 1998, a severe windstorm swept through the city, damaging these three signs and others owned by Clear Channel. Specifically, the three signs lost all or nearly all of the area known as the display surface, the portion of the sign structure to which the advertising material is fastened, as well as the actual advertising material fastened to the display surface. All three signs are roof signs and have a metallic, tower-like structure to which the display surface is fastened. The supporting structures sustained very little damage. The display surfaces, considered alone, were nearly 100% destroyed. The cost or value of repairing them represented between 14% and 22% of the replacement cost of the entire sign structure, including display surface and support structure.

Shortly after the storm, Clear Channel submitted applications to repair two other signs damaged in the same storm; these applications were granted. In granting both applications, the city’s planning commission noted that the display surfaces were only one component of the larger structure and that repairs could be made because the damage was less than 51% of the replacement cost of the entire structure. Further, the planning commission stated that historically these .repairs were allowed without a sign permit. The plam ning commission’s decision was affirmed by the city council.

A citizen’s group, Scenic Minnesota, thereafter sued the city over the decision to permit repair of these two signs. In that court action, the district court decided that Clear Channel had properly followed relevant ordinances by applying for a building permit in order to make repairs to a nonconforming legal sign.

On June 22, 2000, Clear Channel applied for building permits to repair the three signs at issue here, following the procedure set forth by the earlier district court opinion. On October 17, the zoning department denied Clear Channel’s application for building permits, concluding that because more than 51% of each of the signs was destroyed, these nonconforming signs could not be repaired under the applicable ordinances. The zoning administrator interpreted the language of the applicable city ordinances to prohibit repair of a legal nonconforming sign if either the sign or the sign structure sustained more than 51% damage. St. Paul, Minn., Legislative Code § 66.301(2) (1956 & Aug. 13, 2003). The zoning administrator concluded that when the ordinances referred to “sign,” it encompassed the term “sign face.” The term “sign face” is not defined in the ordinances, and it is unclear whether the zoning administrator considered the “sign face” to be the display surface or the actual advertising material.

Clear Channel sought review of the zoning administrator’s denial- of its application for building permits. The planning commission denied the appeal on January 26, 2001, stating that the zoning administrator had correctly interpreted the ordinances as requiring “a two-hurdle test for signs and sign structures. If either is more than 51 percent damaged, the repairs or modifications or renovation must meet all the other regulations in the sign chapter of the code.”

Clear Channel thereafter sought review before the city council of the. planning commission’s decision. By resolution of March 14, 2001, the city council affirmed the planning commission’s decision applying the 51% test, to either sign or sign structure. On June 22, Clear Channel brought this declaratory judgment action, alleging that the city’s denial of its permit applications was unreasonable, arbitrary, capricious, and contrary to law.

On February 4, 2002, the district court granted the city’s summary judgment motion and denied Clear Channel’s motion for summary judgment in the declaratory judgment action. On February 12, the district court permitted Clear Channel to amend its complaint, adding a regulatory takings cause of action.

On January 13, 2003, the district court denied the city’s second motion for summary judgment. On February 14, the court denied Clear Channel’s motion for reconsideration of the February 4, 2002 order. On June 10, 2003, the district court certified the question to this court as important and doubtful.

CERTIFIED QUESTION

Where damage to a billboard in legal nonconforming use is less than 51% of the aggregate replacement cost of the sign and sign structure, did the city act lawfully in denying permits to Clear Channel for repairs to its signs by applying a standard that prohibits repair where the damage exceeds 51% of the replacement cost of the sign face?

ANALYSIS

1. Standard of Review

“Interpretations of state statutes and existing local zoning ordinances are questions of law that this court reviews de novo.” Buss v. Johnson, 624 N.W.2d 781, 784 (Minn.App.2001). Zoning decisions of a municipal body that require judgment and discretion are reviewed to determine whether the municipal body acted arbitrarily, capriciously, or unreasonably, and whether the evidence reasonably supports the decision made. See Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). An action is reasonable, or not arbitrary, when it bears a reasonable relationship to the purpose of the ordinances. See Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 227, 125 N.W.2d 846, 851 (1964). Despite a municipality’s broad discretionary power, however, the reviewing court may reverse the municipality’s decision if its reasons are “legally insufficient or if the decision is without factual basis.” Amoco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 117 (Minn.App.1986).

2. Interpretation of Ordinances

“A zoning ordinance should be construed (1) according to the plain and ordinary meaning of its terms, (2) in favor of the property owner, and (3) in light of the ordinance’s underlying policy goals.” SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn.App.1995), review denied (Minn. Jan. 5, 1996). Policy goals of the city’s sign ordinances include “reduc[ing] the number of nonconforming signs in the city, particularly billboards” and ensuring that “nonconforming signs shall not be enlarged upon, expanded or extended[.]” Legis. Code §§ 66.101(8), .301. The ordinances also state:

It is further the intent of this chapter to permit legal nonconforming signs existing on the effective date of this chapter ... to continue as legal nonconforming signs provided such signs are safe, are maintained so as not to be unsightly, and have not been abandoned or removed[.]

Legis. Code § 66.301. In short, the underlying goals of the ordinances are to protect current nonconforming signs, while gradually phasing them out of existence.

The city’s decision to deny Clear Channel building permits for repairs is based on its interpretation of Legis. Code § 66.301(2), which states: “Should [a legal nonconforming] sign or sign structure be destroyed by any means to an extent greater than fifty-one (51) percent of its replacement cost, it shall not be reconstructed except [as a conforming use].” The ordinances define “sign” as “[t]he use of words, numerals, figures, devices, designs or trademarks the purpose of which is to show or advertise a person, firm, profession, business, product or message.” Legis. Code § 66.121. “Sign structure” is defined as “[a]ny structure which supports or is capable of supporting any sign as defined in this chapter. A sign structure may be a single pole; it may not be an integral part of a building.” Id. Because there are two separate definitions, the city interprets this to create a two-hurdle step that must be overcome before a building permit for repairs can be issued. That is, the city maintains that if either the sign or the sign structure sustains damage greater than 51% of its replacement cost, the entire nonconforming use may not be reconstructed.

The flaw in the city’s analysis is its loose use of its own term, “sign.” According to the plain language of the ordinances, “sign” refers only to the printed matter affixed to the sign structure. “Sign face,” the term used by the zoning administrator, is not defined, but “display surface” is, as the “area made available by the sign structure for the purpose of displaying the advertising message.” Legis. Code § 66.106. Interpreting the plain language of the ordinances, as we must, the phrase “display surface” refers to the flat surface that Clear Channel sought to replace and is clearly considered part of the sign structure. Although it is not clear from the record, the zoning administrator seems to refer to the display surface as the “sign face.”

At oral argument, the city asserted that the destruction of the sign, or the printed matter, prohibits the reconstruction of both the sign and sign structure. If this interpretation is correct, each time printed matter is replaced, it could be considered destroyed “by any means,” thus ending the entire nonconforming use. This is an absurd result that contradicts the purposes of both the city’s sign ordinances and the law on nonconforming uses, which seeks to balance the gradual elimination of nonconforming uses with the legitimate rights of property owners. See Buss, 624 N.W.2d at 786. This position is also in apparent direct conflict with exemptions contained in the city’s sign ordinances, which allow poster replacements without the need for a permit. Legis. Code § 66.405(1).

The city asserts that even if its interpretation has changed, a municipality cannot be estopped from correctly enforcing its ordinances, despite a property owner’s reliance on previous city action, and that a municipality’s interpretation of its own ordinances is entitled to some deference. See Frank’s Nursery Sales, 295 N.W.2d at 609. Further, the city reminds us that our scope of review is narrow and that we must affirm the city’s actions if those actions are at least doubtful or fairly debatable. Id. at 607-08. The city’s interpretation of its ordinances, however, appears to be a moving target, much like the city of Roseville’s interpretation in Frank’s Nursery Sales.

In that case, Roseville added a restrictive definition of “lawn and garden center” to its ordinance in order to defeat Frank’s Nursery’s application for a building permit. Id. at 606. In finding Roseville’s action to be arbitrary and capricious, the supreme court first construed the term “lawn and garden center” according to its plain and ordinary meaning and then construed the zoning ordinance strictly against Roseville and in favor of the property owner. Id at 608. While acknowledging the general deference given to a municipal interpretation, the supreme court noted that the new definition of “lawn and garden center” did not arise “until continuing community pressure compelled the council to attempt to redefine the term.... While these circumstances are not dispositive, they justify giving less weight to the city’s present interpretation than might otherwise be accorded.” Id. at 609.

Similarly, here, the city’s recent creation of a two-hurdle test defies the plain language of the ordinances, ignores the property rights of Clear Channel, and appears to arise from community pressure. We therefore decline to accept the city’s interpretation of its ordinances, and construe them strictly against the city.

DECISION

The city’s denial of Clear Channel’s application for building permits to repair legal nonconforming advertising signs is arbitrary and not reasonably related to the language or purposes of its ordinances. We therefore answer the certified question in the negative; reverse the district court’s order of February 4, 2002, which granted summary judgment to the city and denied it to Clear Channel; and remand this matter to the district court for further proceedings consistent with this opinion.

Certified question answered in the negative; reversed and remanded.


text:
    In the Matter of the WELFARE OF B.R.C.
    No. A03-663.
    Court of Appeals of Minnesota.
    March 2, 2004.

      John M. Stuart, State Public Defender, Jodie Lee Carlson, Assistant State Public Defender, Minneapolis, for appellant B.R.C.
    Mike Hatch, Attorney General, St. Paul; and Lisa N. Borgen, Clay County Attorney, Scott G. Collins, Assistant County Attorney, Moorhead, for respondent State.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, and KLAPHAKE, Judge, and WILLIS, Judge.
   OPINION

KLAPHAKE, Judge.

Following a bench trial, appellant B.R.C. was found guilty of aiding and abetting first-degree criminal damage to property for vandalizing equipment and other property belonging to a mining operation. See Minn.Stat. § 609.595, subd. 1(3) (2002) (damage reducing value of property by more than $500). On appeal, he claims that the evidence was insufficient because it consisted solely of circumstantial evidence and uncorroborated accomplice testimony. Appellant further claims that he was denied effective assistance of counsel when his trial attorney conceded that he was only guilty of shooting at an old pickup truck, which the attorney claimed was worth less than $500.

Because counsel failed to obtain appellant’s consent before he conceded appellant’s guilt and because we will not assume acquiescence when a juvenile is involved and the record fails to show that counsel’s strategy was reasonable, we reverse and remand for a new trial. Given our decision on this issue, we need not address appellant’s alternative issue challenging the sufficiency of the evidence.

FACTS

Over Labor Day weekend 2002, property owned by Aggregate Industries was damaged. The property was located mainly in the “south” gravel pit, which was leased by Aggregate; a “north” gravel pit, which was located about one mile away, was leased by a different company.

According to Aggregate’s safety manager, Mark Bluth, fire extinguishers were set off in a portable office, resulting in damage to computers, bullet holes were discovered in the portable generators, windows were shot out of an operations shack, and a bulldozer caterpillar was missing. Bluth followed the bulldozer’s tracks into the north pit. The person who had taken the bulldozer had tried to push another piece of machinery and had damaged the bulldozer’s air conditioner. Bluth estimated Aggregate’s damages as totaling almost $13,000 and submitted an affidavit of loss to that effect.

On cross-examination, Bluth was questioned about a 1967 Ford F-Series pickup truck that had been damaged. Bluth testified that the truck belonged to Aggregate, that it was operable, and that it cost $904.68 to repair the windows on the truck, which had been shot out.

The day before Aggregate discovered the vandalism, a sheriffs deputy had stopped some minors who were in one of the pits looking for an all terrain vehicle (ATV) that they claimed had broken down. Interviews with the minors eventually led deputies to interview J.G.M., who admitted driving the ATV to the north pit with appellant and P.A.B. that weekend, and who claimed that appellant shot the pickup truck. J.G.M. initially denied that any of them went into the south pit or caused any other damage.

Deputies then interviewed appellant, who denied shooting at any windows or other property and who claimed that J.G.M. caused all of the damage. Appellant claimed that he thought P.A.B. might have shot at the pickup truck.

J.G.M. was reinterviewed. Again he claimed that appellant shot the pickup truck. He now claimed, however, that appellant and P.A.B. took the guns and caused all of the damage in the south pit. J.G.M. only admitted to having driven the bulldozer and denied shooting at anything.

The following day, deputies interviewed P.A.B. P.A.B. claimed that he shot the pickup truck, but that J.G.M. drove around on the ATV and caused all of the other damage. P.A.B. claimed that he did not see appellant shoot any property.

J.G.M. pleaded guilty to first-degree criminal damage to property and was subpoenaed to testify at appellant’s and P.A.B.’s joint bench trial. J.G.M., who was driving the ATV, testified that he first stopped by an old blue farm truck and that one of the other two boys shot at the windows. J.G.M. claimed that he “did not know who it was” because he was driving. J.G.M. then claimed that he then dropped the other two boys off in the south pit, while he rode around on the ATV. He admitted that he drove the bulldozer, but denied shooting at anything. He claimed that P.A.B. and appellant kept their rifles with them. He further claimed that he heard shots, but that he did not see the other two boys shoot at anything.

P.A.B. testified at trial, but appellant did not. P.A.B. claimed that he shot the window out of the blue truck; when asked if appellant shot at the truck, P.A.B. responded “Not that I seen, no.” P.A.B. further claimed that J.G.M. left him and appellant alone for a while, and drove off on the ATV with appellant’s rifle. P.A.B. claimed that he heard shots, but that he did not see J.G.M. shoot anything. P.A.B. denied that he shot at any of the property.

At the end of the state’s case, appellant’s attorney moved for acquittal on the ground that the only evidence presented by the state regarding appellant’s involvement

is that he shot at the '67 pickup truck, and the value of that .'.. did not exceed $500.00 by any stretch of the imagination, but we would request a lesser included offense of criminal damage to property in the — well, the gross misdemeanor level or the misdemeanor level and ask the Court to find [appellant] guilty of that.

Appellant’s attorney further stated:

[Appellant] did admit to his involvement in an attempt to plead guilty to crimfinal] damage to property at an earlier hearing, [which was later withdrawn,] and I believe that is what he is guilty of. The only issue was that we didn’t believe he was necessarily responsible or should be held responsible as an accomplice to first degree because of his level of involvement, and because the amount of restitution was so great[.]

The district court found appellant guilty of aiding and abetting first-degree criminal damage to property. In particular, the court found:

That the statements provided by each of the juveniles during the investigation by the Clay County Sheriffs Department implicated some involvement by each of the juveniles in the acts of vandalism, although each tries to blame another for the bulk of the damage. The reality is that all three juveniles were in the gravel pit area for 5 to 6 hours. The rifles brought to the gravel pit by the minor child and P.A.B. were responsible for much of the damage. Logic suggests that the only reasonable inference is that all three juveniles were involved in the vandalism.

The district court found appellant guilty of aiding and abetting first-degree criminal damage to property. He was adjudicated delinquent, placed on supervised probation, and ordered to complete a 21-day Wilderness Endeavors Program. The court also ordered him. to pay joint and several restitution of over $13,000.

ISSUE

Was appellant denied effective assistance of counsel when his attorney conceded his guilt in shooting at the pickup truck?

ANALYSIS

Appellant argues that his attorney was ineffective when he conceded appellant’s guilt to a lesser crime of third-degree criminal damage to property, a misdemeanor. Minn.Stat. § 609.595, subd. 2 (2002). At trial, appellant’s attorney argued that the evidence only supported finding appellant guilty of damaging the truck, which the attorney claimed was worth less than $500.

In order to show ineffective assistance of counsel, a defendant must affirmatively show that his counsel’s representation “ ‘fell below an objective standard of reasonableness’ ” and that, “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)). While a defendant must generally prove prejudice to show ineffective assistance, prejudice will be presumed in certain cases. Dukes v. State, 621 N.W.2d 246, 254 (Minn.2001).

In particular, where counsel admits or concedes a defendant’s guilt without the defendant’s consent, counsel’s performance is considered deficient and prejudice is presumed. State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984). Absent consent, a defendant is entitled to a new trial unless the record shows that he acquiesced to the concession. Dukes, 621 N.W.2d at 254. Acquiescence may be shown when a defense attorney uses the strategy of conceding guilt throughout trial and the defendant fails to object. State v. Provost, 490 N.W.2d 93, 97 (Minn.1992). Acquiescence may also be implied when the concession of guilt is an “understandable” strategy, the defendant was present at the time the concession was made, and the defendant admits he understood the implications of the concession but did not object. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn.2003).

Here, the record fails to show that appellant consented or otherwise acquiesced to his attorney’s strategy. Indeed, the concession of guilt was inconsistent with appellant’s prior statement to police and with the statements of his accomplices. Moreover, counsel’s references to appellant’s prior admissions in his withdrawn guilty plea were error, because evidence regarding a withdrawn guilty plea may not be admitted in a criminal trial. Minn. R. Evid. 410.

Appellant’s attorney apparently made the concession in an attempt to convince the court to find appellant guilty of a misdemeanor and avoid a felony conviction. While it may be a reasonable trial strategy to concede an adult defendant’s guilt to a lesser-included offense in the hope of persuading the fact finder to acquit him or her of the greater charge, juvenile dispositions are not necessarily tied to a misdemeanor/felony distinction. Thus, the strategy of appellant’s attorney was not reasonable in this juvenile proceeding.

Appellant’s attorney also assumed that if appellant were found guilty of misdemeanor criminal damage to property, he could not be held accountable for the entire amount of restitution. This assumption was incorrect. The level of an offense has little bearing on the amount of restitution a court may impose. See State v. Terpstra, 546 N.W.2d 280, 283 (Minn.1996) (holding that court may order restitution for total amount of loss in excess of monetary parameters of offense).

Finally, we question whether a juvenile defendant should be held to the same standard as an adult in this instance. A decision to make a concession of guilt as a trial strategy is, like a guilty plea, a decision that may be made only by a defendant and only with the defendant’s consent. See State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991). While the formalities attendant to a guilty plea may not be necessary, fairness requires that a defendant’s consent to a concession of guilt be given voluntarily, knowingly, and only after full appraisal of the consequences. Given a juvenile’s lack of maturity, we believe that a juvenile defendant’s consent should be express and placed on the record before a concession of guilt can be made.

DECISION

Appellant received ineffective assistance of counsel when his trial attorney conceded appellant’s guilt without appellant’s consent on the record. We therefore reverse and remand for a new trial.

Reversed and remanded.