author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Gary Wayne KOUBA, Appellant.
    No. A04-2489.
    Court of Appeals of Minnesota.
    Feb. 7, 2006.

      Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, St. Paul, MN; and Earl E. Maus, Cass County Attorney, Cass County Courthouse, Walker, MN, for respondent.
    John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, 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.

Appellant argues that his constitutional right to consult with an attorney was violated because he was not advised of his right to counsel in a probation revocation hearing held under Minn.Stat. § 609.14, subd. 2 (2002). After the district court improperly extended appellant’s probation, his probation officer conducted a warrant-less search of his residence under the terms of his probation and seized evidence that led to his conviction for a new offense. Because appellant was not validly on probation at the time of the search, any evidence seized at that time or during a later warrant search premised on evidence obtained in the initial search, was obtained illegally and must be suppressed. We therefore reverse.

FACTS

On February 20, 2001, appellant Gary Wayne Kouba pleaded guilty to fifth-degree criminal sexual conduct involving a minor victim in violation of Minn.Stat. § 609.3451, subd. 1(1) (2000). He was sentenced to one year in jail, with all but 45 days stayed, and placed on probation for two years. Among the conditions of his probation, appellant was required to abide by state and federal laws, be truthful with his probation officer, submit to searches of his person and residence, refrain from contacting the victim, complete sex-offender treatment and all aftercare, and have no unsupervised contact with minors.

On February 10, 2003, appellant agreed to extend his probation for one year because he had not completed the required sex-offender treatment. He was represented by counsel at the probation hearing.

On February 9, 2004, one day before his extended probation was set to expire, the district court held a hearing for the purpose of again extending his probation. Apparently, appellant had still failed to complete his sex-offender treatment within the probationary period. At this hearing, appellant was not advised of the right to counsel or represented by counsel. At the beginning of the hearing, the court stated:

[T]he reason why we are here today is to allow Mr. Kouba the opportunity to rather than be in violation of his probation or get some sort of a warrant or stay, to extend his period of probation for one year from today’s date, to the 9th of February, 2005, in order that he may have an additional opportunity to complete some treatment that he is working on.

Following this hearing, the district court extended appellant’s probation for another year.

Approximately one week later, a Bureau of Criminal Apprehension special agent was administering a polygraph test to appellant as part of appellant’s sex-offender treatment. Just before he was to take the test, appellant admitted that he possessed a videotape of a juvenile masturbating and photographs depicting naked juveniles.

Appellant’s probation officer, Mary Ho-glund, was informed of appellant’s admission to a possible probation violation. Ho-glund met with appellant and placed him on a 72-hour hold. Consistent with internal policy, Hoglund also sought a police escort before initiating a search of appellant’s residence. Hoglund and Cass County Sheriffs Office Investigator Mike Diek-mann accompanied appellant to his house, where appellant revealed numerous videotapes showing minors in sexual poses and other pornographic materials. Hoglund and appellant participated in the search, with Diekmann merely observing, although at one point he questioned the identity of one of the juveniles who appeared in one of the videotapes. One videotape showed appellant having oral sex with a minor victim. After appellant’s arrest, police requested and obtained a search warrant for appellant’s residence that resulted in the recovery of more pornographic materials;

Appellant was charged with third-degree criminal sexual conduct, use of a minor in a sexual performance,. and possession of pornography involving minors under Minn. Stat. §§ 609.344, subd. 1(b), 617.246, subd. 2, 617.247, subd. 4(b) (2002). Appellant brought a pretrial motion to suppress all evidence obtained by the state “on the grounds that such evidence was seized in violation of the defendant’s constitutional and statutory protections against unreasonable searches and seizures.” After an omnibus hearing, the district court denied appellant’s motion to suppress evidence.

The parties agreed to try the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Appellant was convicted of use of a minor in a sexual performance, and of fourth-degree criminal sexual conduct under MinmStat. § 609.345, subd. 1(b) (2002). The district court imposed a stayed 15-month sentence and placed appellant on probation for ten years.

On appeal -from his conviction, appellant argues that his constitutional rights were violated because the initial search of his house was conducted without a search warrant, and the search was conducted after a probation revocation hearing at which appellant was not advised of his right to an attorney.

ISSUE

When appellant was not advised of his right to an attorney during a probation revocation hearing that resulted in the extension of his probation, did the later seizure of evidence pursuant to the conditions of appellant’s probation violate his constitutional rights so as to require suppression of that evidence?

ANALYSIS

Appellant claims that the district court erred by declining to suppress the

evidence seized in the warrantless entry of his residence. We review pretrial motions to suppress evidence by independently considering the facts to determine whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Right to Counsel

At the hearing to extend appellant’s probation on February 9, 2004, appellant was not represented by counsel nor was he given the opportunity to have counsel represent him. Because of this, appellant argues that his probation was erroneously extended. We agree.

Traditionally, the Sixth Amendment right to counsel attaches at the “critical stages” of criminal proceedings. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). The Minnesota Constitution guarantees a right of legal representation to anyone charged with a crime. Minn. Const. art. 1, § 6. See Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 793-97, 9 L.Ed.2d 799 (1963) (applying Sixth Amendment right to counsel to states via 14th Amendment); Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991) (“Minnesota has a long tradition of assuring the right to counsel.”); State v. Dumas, 587 N.W.2d 299, 301 (Minn.App. 1998) (“the right to counsel and the other procedural protections afforded criminal defendants are generally triggered by the threat of incarceration[.]”), review denied (Minn. Feb. 24,1999).

Specifically, “a defendant is entitled to representation at a probation revocation hearing.” State v. Ferris, 540 N.W.2d 891, 893 (Minn.App.1995); see State v. Balma, 549 N.W.2d 102, 104-05 (Minn.App.1996) (reaffirming existence of right to counsel in probation revocation proceedings); see also Mempa v. Rhay, 389 U.S. 128, 135-37, 88 S.Ct. 254, 257-58, 19 L.Ed.2d 336 (1967) (counsel must be provided during hearings that combine sentencing and probation revocation). The right to counsel is also expressly provided for in probation revocation proceedings under Minnesota statutes and rules of criminal procedure. Minn.Stat. § 609.14, subd. 2 (2002) (at probation revocation hearing, “defendant is entitled to be heard and to be represented by counsel”); Minn. R.Crim. P. 27.04, subd. 2(l)(a) (at probation revocation hearing, probationer must be advised of entitlement “to counsel at all stages of the proceedings”). The failure to advise a probationer of the right to counsel mandates reversal of a probation revocation. State v. Murray, 529 N.W.2d 453, 455 (Minn.App.1995).

The state asserts that the February 9 hearing pertained to appellant’s probation but did not constitute a probation revocation hearing, so appellant was not entitled to counsel. The district court considered and rejected appellant’s claim in its omnibus order:

The second [February 9, 2004] extension was a voluntary arrangement so the defendant would not be facing a probation violation. Because this did not constitute an adversarial proceeding, counsel was not required as would have had there been a probation violation that had been filed. Minn. R. Civ. P. 27.04.
Although in a perfect world, counsel would have been present, the Court does not find that jurisdiction was lost in this case because counsel was not appointed for [appellant] prior to his voluntarily extending the period of probation.... Although it would constitute better practice to give an advisory, the failure to do so in this case does not divest the Court of jurisdiction^]

We disagree with the district court’s conclusion that the February 9, 2004 hearing was not a probation revocation hearing.

Minn.Stat. § 609.135, subd. lc (2002) addresses a probationer’s failure to complete court-ordered treatment, requiring that within 60 days of the expiration of the probationary period the prosecutor or probation officer request “a hearing to determine whether the conditions of probation should be changed or probation should be revoked.” As such, and under the facts of this case, the hearing appellant received was a probation revocation hearing. The purpose of the hearing was to address appellant’s failure to complete his sex-offender treatment, a condition of his probation.

While appellant was not afforded the niceties of receiving written notice of his probation violation and other procedural formalities required by Minnesota law, the consequences to him, extended probation for another year, were the same as if he had received proper notice of a violation, proceeded to hearing, and received punishment. Appellant therefore should have been offered the right to consult with an attorney before appearing at a hearing at which he agreed to restraint of his liberty in the form of another year of extended probation. See State v. Hawanchak, 669 N.W.2d 912, 915 (Minn.App.2003) (reversing disorderly conduct and fifth-degree assault conviction where defendant’s right to counsel violated); Murray, 529 N.W.2d at 455 (reversing probation revocation where defendant not advised of right to counsel); see also State v. Austin, 295 N.W.2d 246, 251 (Minn.1980) (decision to revoke probation “cannot be a reflexive reaction to an accumulation of technical violations”).

We acknowledge that appellant’s present challenge to the February 9 probation extension could be viewed as an impermissible collateral attack. Such collateral attacks, however, are allowed in other instances where the defendant is unrepresented by counsel. For example, for purposes of enhanced penalty statutes in regard to sentencing, “[wjhere a defendant is unrepresented and there is no record of waiver of counsel, a prior conviction may be collaterally attacked on constitutional grounds and invalidated in a subsequent proceeding.” State v. Nordstrom, 331 N.W.2d 901, 904 (Minn.1983); see State v. Lang, 432 N.W.2d 478, 480 (Minn. App.1988). In such cases, the violation of a defendant’s right to be represented by counsel is “a violation of a pivotal constitutional right” that will support a collateral attack. State v. Warren, 419 N.W.2d 795, 798 (Minn.1988). Similarly, the failure of appellant to be offered his right to counsel mandates that he be allowed to challenge the validity of his probation extension, which in turn was the basis for the seized evidence that supported the search warrant leading to his current conviction.

We therefore conclude that because appellant was not advised of his right to counsel at the February 9 hearing, his probation was invalidly extended.

Basis for Warrantless Search

Appellant next argues that because he was not validly on probation, the war-rantless search of his residence had no basis. He reasons that without a valid basis to conduct a warrantless search, the evidence obtained during that search must be suppressed. He further argues that because the evidence seized during this search provided probable cause to support the search warrant, any evidence obtained under the search warrant must also be suppressed. We agree.

An individual has a reasonable expectation of privacy in his own home, and the warrantless search of a person’s home is generally prohibited under the United States and Minnesota Constitutions. U.S. Const. amend. IV; Minn. Const. art I, § 10; see State v. Othoudt, 482 N.W.2d 218, 224 (Minn.1992) (Minnesota courts do “not look kindly upon war-rantless entries of family residences.”). Police are prohibited from entering and searching a home without a warrant unless the state has shown either “(1) consent or (2) probable cause and exigent circumstances.” State v. Taylor, 590 N.W.2d 155, 157 (Minn.App.1999), review denied (Minn. May 18,1999).

In Minnesota, a search involving a person on probation for a criminal offense is not “strictly governed by automatic reference to ordinary search and seizure law,” and a probationer is entitled to less privacy protection than the average citizen. State v. Earnest, 293 N.W.2d 365, 368 (Minn.1980). While the Minnesota Supreme Court has declined to set forth a test less strict than that of the “reasonableness” standard applied in probable cause searches, it has recognized that the special status of a probationer may merit application of a different test that would be more invasive to a person’s privacy, such as the balancing test applied in administrative searches. Id. at 368-69.

Since the release of Earnest in 1980, Minnesota appellate courts have not further addressed the parameters of permissible searches of probationers. In two federal cases, United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) and Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Supreme Court considered the issue but did not adopt a specific test. Griffin applied an administrative-search test in upholding a warrantless search of a probationer’s home without probable cause. Griffin, 483 U.S. at 880, 107 S.Ct. at 3172. In a fact scenario very similar to this case, a statutorily required balancing test was applied that “require[d] no more than reasonable suspicion to conduct a search of [a] probationer’s house.” Knights, 534 U.S. at 121, 122 S.Ct. at 592.

Under any of the tests that have been applied in federal cases or under Minnesota law, we conclude that a warrantless search under a valid probation agreement does not violate the constitutional prohibitions of the Fourth Amendment. A consensual search is accepted as a reasonable search under the Fourth Amendment. Schneckloth vr Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); State v. Thompson, 578 N.W.2d 734, 740 (Minn.1998). Thus, a search pursuant to a valid probation agreement generally will not violate the Fourth Amendment.

Nevertheless, when the sole basis for the search rests on the probation agreement and when that agreement has been extended only after the probationer’s constitutional rights have been violated, the search itself becomes illegal. Generally, the “fruit of the poisonous tree” doctrine requires suppression of fruits of a constitutional violation. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); State v. Thompson, 273 Minn. 1, 20-21, 139 N.W.2d 490, 505-06 (1966). Typically, however, the constitutional violation arises because of police misconduct, and suppression is ordered to deter such misconduct. See Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416.

The Minnesota Supreme Court recently addressed application of the exclusionary rule in situations where conduct by civil servants or judicial officers, and not police, gave rise to the illegal seizure of evidence. Johnson v. State, 673 N.W.2d 144 (Minn. 2004). In Johnson, the supreme court declined to exclude admission of DNA evidence in a defendant’s rape trial where the DNA evidence was taken under an erroneous court order in a previous conviction. Id. at 149-50. In its analysis, however, the court relied in part on the fact that the purpose of the underlying statute violated by the admission of the evidence was not frustrated by allowing its admission. Id. at 150. Here, by contrast, the violation involved appellant’s constitutional right to be represented by counsel, a serious constitutional violation that calls for a different result. We therefore conclude that the evidence obtained as a result of the illegal extension of appellant’s probation must be suppressed. Furthermore, the warrant obtained by police after the initial search must also be suppressed because it was unsupported by probable cause without evidence of the prior, impermissible search. See State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985) (search conducted without “a warrant issued upon probable cause is ‘per se ’ unreasonable”).

DECISION

Because the extension of appellant’s probation was ordered after a hearing at which appellant was not offered legal counsel, the evidence obtained solely as a result of this probation extension, and as a result of the warrant subsequently obtained based on this evidence, must be suppressed. Accordingly, appellant’s conviction is reversed.

Reversed.

      . The state asserts that appellant impermissi-bly challenges the constitutionality of the search because the issue was not raised to or ruled on by the district court. When the district court denied appellant's motion to suppress the evidence, however, it addressed the issue of whether the search of his residence fell within Fourth Amendment prohibitions. The parties also discussed the facts pertinent to this issue at the omnibus hearing. Because the issue was impliedly raised at the omnibus hearing and was addressed by the district court, we may consider it on appeal. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (in general, defendant who does not raise an issue in district court waives right to raise issue on appeal); Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982) (appellate court can consider constitutional issues not raised to district court when required in interest of justice, when parties had adequate briefing time, and when issues implied at trial).


source: Caselaw Access Project

author: PETERSON, Judge.

license: Public Domain

text:
    Brian K. THOMPSON, et al., Appellants, v. FIRST STATE BANK OF FERTILE, Respondent, Stuart’s Towing and Repair, Respondent.
    No. A05-1328.
    Court of Appeals of Minnesota.
    Feb. 14, 2006.

      Rex A. Hammarback, Hammarback, Du-sek & Associates, PLC, East Grand Forks, MN, for appellants.
    Raymond J. German, Raymond J. German, Ltd, East Grand Forks, MN, for respondent First State Bank of Fertile.

      Gerard D. Neil, East Grand Forks, MN, for respondent Stuart’s Towing and Repair.
    Considered and decided by PETERSON, Presiding Judge; RANDALL, Judge; and DIETZEN, Judge.
   OPINION

PETERSON, Judge.

In this appeal from summary judgment for a creditor and a towing company in the debtors’ action for wrongful repossession of a motor vehicle, appellant debtors argue that the district court erred by determining that the towing company completed the repossession without a breach of the peace. We affirm.

FACTS

Appellants Brian and Sarah Thompson obtained four loans from respondent First State Bank of Fertile. The loans were secured by liens on two vehicles: a 1988 Toyota 4Runner and a 1995 Chevy Tahoe. The loan agreements that the Thompsons signed state that if the Thompsons are in default, the bank may “[t]ake immediate possession of the [vehicles], but in doing so [the bank] may not breach the peace or unlawfully enter onto [the Thompsons’] premises.”

After the Thompsons defaulted on the loans, the bank hired respondent Stuart’s Towing and Repair to repossess the vehicles. Stuart Minske, the owner of Stuart’s Towing and Repair, testified-at a deposition that he drove to the Thompsons’ house to repossess the 1995 Chevy Tahoe. Minske drove his tow truck down an alley, backed the tow truck up to the Tahoe, hooked the Tahoe to the tow truck, and lifted the Tahoe’s rear wheels off the ground. Minske then noticed some personal items in the Tahoe and went to the door of the Thompsons’ house to see if the Thompsons wanted to remove the personal items.

Testimony regarding the conversation between Minske and Brian Thompson at the door conflicts, but it is undisputed that Thompson asked Minske to wait while he called the bank. Whether Thompson invited Minske into the house is disputed. Minske was in the house between 20 and 30 minutes. Thompson first called the bank, and he learned that his loan officer was on vacation. He then called his lawyer.

Thompson’s lawyer, James Fischer, testified in a deposition about the conversation between Thompson and Minske. Fischer only heard Thompson’s side of the conversation. Fischer testified that he heard Thompson say that “his lawyer advised him that the repo man does not have permission to remove that vehicle or take anything from his house, the keys.” He further testified that he did not hear Thompson tell Minske to leave his house. Fischer testified that Thompson “may have said something like my attorney said you can’t come in here, or something o[f] that sort.”

Minske testified that after leaning against the doorway for 15 minutes while Thompson was on the phone, he looked up and saw keys hanging above his head. Minske testified that he asked if the keys were for the Tahoe, Thompson did not tell him that he could not take the keys, and he took the keys. Thompson testified that he told Minske that he could not take the keys and that Minske walked into the house uninvited and began searching for the keys.

The Thompsons did not take any items out of the Tahoe, and Minske left with the Tahoe. Minske later repossessed • the Thompsons’ Toyota 4Runner from Crook-ston Auto Salvage. The bank sold the vehicles approximately six months later.

The Thompsons brought suit against the bank and Stuart’s Towing and Repair alleging that the repossession was wrongful under Minn.Stat. § 336.9-609 (2004) because Minske did not take possession of the Tahoe without breach of the peace. Based on its determinations that the repossession was complete before there was any contact between Minske and Thompson and that any conduct after the repossession was complete 'did not undo the repossession, the district court granted respondents summary judgment. This appeal follows.

ISSUES

1. Is this appeal timely with respect to respondent Stuart’s Towing and Repair?

2. Did Minske take possession of the Tahoe without breach of the peace?'

ANALYSIS

On appeal from a summary judgment, appellate courts

review whether there are any genuine issues of material fact and whether the district court erred in its application of the law. We view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.

STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.2002) (citations omitted).

1. Timeliness of appeal

Stuart’s Towing and Repair argues that this appeal is not timely as to it because all issues affecting it were adjudicated in a judgment entered on February 16, 2005, and the issues addressed in the May 16, 2005 judgment from which this appeal is taken do not involve Stuart’s Towing. Summary judgment was granted on February 15, 2005, and judgment was entered on February 16, 2005. But the February 15 order only partially adjudicated respondent First State Bank’s counterclaim because it did not determine the bank’s damages, and, therefore, the February 16 judgment was not appealable. See Minn. R. Civ.App. P. 103.03(a) (providing that appeal may be taken from final judgment or from partial judgment entered pursuant to Minn. R. Civ. P. 54.02); In re Commodore Hotel Fire & Explosion Case, 318 N.W.2d 244, 246-47 (Minn.1982) (holding that adjudication that there is liability, without determination of damages, is partial adjudication of claim and is not appealable).

In a March 15, 2005 order, the district court determined the bank’s damages. When judgment on the March 15, 2005 order was entered on May 16, 2005, there was a final judgment from which an appeal could be taken within 60 days. See Minn. R. Civ.App. P. 104.01, subd. 1 (providing that appeal may be taken from a judgment within 60 days after its entry). The Thompsons filed their appeal on July 7, 2005, which was within 60 days after the final judgment was entered.

2. Breach of the Peace

After a default, a secured party may take possession of collateral. Minn. Stat. § 336.9-609(a) (2004). In taking possession, the secured party may proceed “without judicial process, if it proceeds without breach of the peace.” Minn.Stat. § 336.9 — 609(b)(2) (2004). The Thompsons do not deny that they were in default on their loans or that their loan agreements authorized the bank to take immediate possession of their vehicles in the event of default; they contend that the self-help repossession of the Tahoe is invalid because the bank did not take possession without breach of the peace.

But it is undisputed that Minske backed his tow truck up to the Tahoe, hooked the Tahoe to the tow truck, and lifted the Tahoe’s rear wheels off the ground before he had any contact with Thompson. In James v. Ford Motor Credit Co., a car buyer who had financed the purchase of a car fell behind on monthly loan payments, and an agent of the creditor repossessed the car by removing it from a public parking lot. 842 F.Supp. 1202, 1204-05 (D.Minn.1994), aff'd on other grounds, 47 F.3d 961 (8th Cir.1995). About an hour later, the car buyer saw the creditor’s agent driving the car several miles away from the parking lot. Id. at 1205. The car buyer entered the car, an altercation ensued, and the car buyer gained control of the car and drove it home. Id. In determining whether the repossession violated the self-help repossession statute, the court applied the rule that “[o]nce a repossession agent has gained sufficient dominion over collateral to control it, the repossession has been completed,” Id. at 1209 (citing Wallace v. Chrysler Credit Corp., 743 F.Supp. 1228, 1233 (W.D.Va.1990)), and found that once the creditor’s agent had control of the car, the repossession was complete, and the car buyer’s violence could not dispossess the creditor of its right to possession. Id. We agree with the James court that .once a creditor has gained control of collateral, repossession is complete, and a debtor cannot regain legitimate control of the collateral by resisting or objecting to the creditor. Following a different rule would encourage confrontations between debtors and creditors, which would be contrary to the statutory goal of preventing breaches of the peace.

Here, Minske had attached the Tahoe to his tow truck and lifted the Tahoe’s rear wheels from the ground before he had any contact with Thompson. When he lifted the wheels from the ground, Minske gained sufficient dominion over the Tahoe to control it. Therefore, the repossession was complete when the wheels were lifted from the ground, and any objections to the repossession that Thompson made to Minske after that point could not dispossess the bank of its right to possession.

The Thompsons contend that even if a breach of the peace that would dispossess the bank of its right to possession could not occur after the. repossession was complete, a trespass that occurs during the repossession process constitutes a breach of the peace, and when Minske entered their property, he was trespassing. Therefore, they argue, the repossession was not completed without a breach of the peace. We disagree.

This court has determined “that no violence or threat of violence need occur before a breach of the peace may be found.” Bloomquist v. First Nat’l Bank of Elk River, 378 N.W.2d 81, 86 (Minn.App.1985), review denied (Minn. Jan. 31, 1986). But this does not mean, that any entry onto the debtor’s property is a breach of the peace. In Bloomquist, the creditor’s agents repossessed the debtor’s business tools and equipment by removing a cracked window pane to enter the debtor’s business on a Saturday, when the business was closed. Id. at 83. This court held that the creditor’s breaking and entering the debtor’s business to repossess collateral constituted a breach of the peace, as a matter of law. Id. at 86. The circumstances of the repossession in Bloomquist, however, differ significantly from the repossession of the Thompsons’ Tahoe. Minske did not enter a closed building, or even open a closed gate, to reach the Tahoe; he simply drove his tow truck where any visitor could drive a car.

Commentators have explained that “[i]n general, the creditor may not enter the debtor’s home or garage without permission,” and the great majority of the cases agree “that entry into the debtor’s residence in the absence of the debtor is a breach of the peace.” 4 James J. White & Robert S. Summers, Uniform Commercial Code § 34-8, at 386 (5th ed.2002). But those commentators have also recognized that

[a]s one moves away from the residence itself to the yard, the driveway, and finally the public street, the debtor’s argument [that there has been a breach of the peace] becomes progressively more tenuous. We have found no case which holds that the repossession of an automobile from a driveway or a public street (absent other circumstances, such as the debtor’s objection) itself constitutes a breach of the peace, and many cases explicitly uphold such repossessions.

Id.

We agree that it is a tenuous argument that there has been a breach of the peace simply because a creditor enters a debtor’s yard or driveway to take possession of collateral. Under Minn.Stat. § 336.9-609(b)(2), a secured party has authority to take possession of collateral after default, if the secured party proceeds without breach of the peace.

A duty or authority imposed or created by legislative enactment carries with it the privilege to enter land in the possession of another for the purpose of performing or exercising such duty or authority in so far as the entry is reasonably necessary to such performance or exercise, if, but only if, all the requirements of the enactment are fulfilled.

Restatement (Second) of Torts § 211 (1965).

When this restatement principle is applied to Minn.Stat. § 336.9-609(b)(2), a secured party’s authority to take possession of collateral after default carries with it the privilege to enter another’s land for the purpose of taking possession of the collateral if the entry is reasonably necessary in order to take possession. And if the secured party has a privilege to enter another’s land to take possession of collateral after default, the entry is not a trespass because “a trespasser is ‘one who enters or remains on the [premises] without the express or implied consent of the possessor of land.’ ” Reider v. City of Spring Lake Park, 480 N.W.2d 662, 666 (Minn.App.1992) (quoting Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn.1982)), review denied (Minn. April 13,1992).

Applying these principles to the present case, we conclude that because Minske’s entry onto the Thompsons’ land was reasonably necessary to take possession of the Tahoe after the Thompsons defaulted on the loans secured by the Tahoe, Minske had a privilege to enter the Thompsons’ land, and, therefore, the entry was not a trespass. Because the entry was not a trespass, and- there is no evidence that Minske had any contact with the Thomp-sons before the Tahoe’s rear wheels were lifted from the ground, Minske completed the repossession without a breach of the peace.

3. Attomey/Client Privilege

Citing the district ■ court’s' order granting summary judgment, the Thomp-sons contend that the district court grant-" ed respondents summary judgment “because [the district court] had found that once the attorney client privilege is waived and an attorney testifies on behalf of the client, the client is not allowed to again seize the shield of his privilege and shut out all testimony to communications between his attorney and himself.” The Thompsons then argue that because Stuart Minske was present during Brian Thompson’s telephone conversation with his attorney, Thompson’s conversation was not a privileged attorney/client communication, and admitting evidence about the telephone conversation did not waive the attorney/client privilege. ' The Thompsons then conclude that “any other communications Brian Thompson made to his attorney privately and outside the presence of Stuart Minske remain[ ] confidential between the attorney and the client.” But the Thompsons do not identify any privileged communications between Brian Thompson and his attorney that have not remained confidential or explain how any violation of the attorney/client privilege affected the district court’s decision.

The only communication between Brian Thompson and his attorney that the district court refers to in its summary-judgment order is the telephone conversation that occurred while Minske was in the Thompsons’ house. Because the Thomp-sons contend that this conversation was not privileged, and they have not identified other communications that have not remained confidential, it is not apparent what error they claim the district court made with respect to privileged communications. Therefore, we deem the privileged-communications issue waived, and we will not address it. See In re Irwin, 529 N.W.2d 366, 373 (Minn.App.1995) (issue not adequately argued or briefed on appeal deemed waived), review denied (Minn. May 16, 1995); Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal a party must show error and that error caused prejudice).

DECISION

Because it was reasonably necessary for Minske to enter the Thompsons’ property in order to take possession of the Tahoe after the Thompsons defaulted on the loans secured by the Tahoe and Minske gained sufficient dominion over the Tahoe to control it before he had any contact with Thompson, Minske completed repossession of the Tahoe without a breach of the peace.

Affirmed.

      . The judgment was not entered pursuant to Minn. R. Civ. P. 54.02. See Minn. R. Civ. P. 54.02 (providing that when multiple parties are involved in an action, the district court may direct entry of a final judgment as to one or more but fewer than all parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment). The district court did not make the express determination required to enter a final judgment pursuant to Rule 54.02.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Ted BROWN, Respondent.
    No. A05-1793.
    Court of Appeals of Minnesota.
    Feb. 14, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Jan Kolb, Mille Lacs County Attorney, Christopher J. Zipko, Assistant County Attorney, Milaca, MN, for appellant.
    Steven J. Meshbesher, Meshbesher <& Associates, P.A., Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; WRIGHT, Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

In this pretrial appeal, the state challenges a district court order allowing respondent Ted Brown to plead guilty to the lesser offense of fourth-degree criminal sexual conduct and dismissing the indictment charging respondent with first- and third-degree criminal sexual conduct. Because the court clearly erred in enforcing an executory plea agreement, we reverse and remand for further proceedings.

FACTS

Respondent is charged with a sexual assault that occurred in the early morning hours of February 2, 2003, at a resort in Onamia. The grand jury indicted respondent on charges of first- and third-degree criminal sexual conduct. Early in 2005, trial was set for September 26, a motion hearing was scheduled for August 25, and a court order directed that plea negotiations should be concluded at least 30 days before trial.

At the beginning of August 2005, the state discovered a scheduling conflict that would make Wade Kish, the special prosecutor handling the case, unavailable for the September 26 trial date. Defense counsel Steven Meshbesher objected to a continuance of the trial date, citing the length of time the case had been pending.

On August 25, a day or two before the plea negotiation deadline, the parties assembled for the previously scheduled motion hearing. The matter apparently never went on the record. The court clerk’s notes for the day state: “inchamber conf[erence] — w[ith] att[orne]ys [ — ] no record made — further discussions w[ith] victim — Advise c[ou]rt 8/26.”

According to the district court’s memorandum filed a week later, a discussion on scheduling occurred in chambers; the court informed the parties it was “leaning” toward denial of continuance and asked the parties to discuss possible settlement. After

essentially an afternoon of discussion outside of the court’s presence, [an agreement was presented and t]he court expressed its willingness to accept those terms. There was discussion regarding taking the defendant’s plea on the record and prosecutor Kish requested that the plea be delayed as he had not yet notified the victim about the terms of the settlement and wished to do so before the plea was entered.

Kish later stated that he contacted the victim on August 26, the day after the agreement, and she opposed the proposed plea agreement. Kish notified Meshbesher’ the same day. On August 31, Assistant Mille Lacs County Attorney Chris Zipko called the clerk’s office informing them that the matter had not settled. Zipko added that he would be taking over the case and that he would appear the following day, September 1, for a motion hearing.

On September 1, the district court summarized what had occurred on August 25, concluding that there was “an agreement in this matter that would entail a stay of adjudication for a period of zero to five years to a plea of 4th Degree Criminal Sexual Conduct.” The court acknowledged learning that the victim was opposed to the settlement and that the state had withdrawn its offer, but the court stated it had “indicated to counsel in chambers my understanding is that an offer was made and has been accepted.”

Kish stated that he thought he -had made it “abundantly clear to both the Court and Mr. Meshbesher” in the earlier discussion that the agreement “was not to be considered an official offer as we wanted to run it by the victim before we actually extended the official offer, that we were going to do that right away that day.” Kish stated that they agreed to wait, and he contacted the victim the next day.

Kish agreed with the district court’s recollection that there had been discussion about respondent getting a psychosexual evaluation done and about his entering the guilty plea that day (August 25), but that Kish had requested they hold off until the victim was notified. Meshbesher asserted that there had been “an official offer made and an official acceptance made.” Meshbesher added that he had contacted a psychologist to conduct the psychosexual examination and that respondent was prepared to pay the $1,500 fee for the evaluation. After Kish called to withdraw from the agreement, Mesh-besher stated that “[his] client because of his financial circumstances put it on hold.”

The district court pointed out the prosecution’s request to continue the trial date due to Kish’s scheduling conflict and stated that the prosecution’s withdrawal of its plea offer “creates a situation where a continuance is granted de facto.... ” The court then ruled that a plea offer had been made by the prosecution and accepted by the defense.

The court proceeded to take an Alford plea from respondent. At the conclusion of the plea, the court stayed setting a sentencing hearing pending a pretrial appeal by the state. The court later granted respondent’s motion to supplement the record for appeal, following a hearing on October 27.

ISSUES

1. Did the district court err in enforcing the plea agreement after the prosecution withdrew from it when the court had not yet accepted the plea?

2. Was there a manifest injustice justifying the district court in accepting respondent’s plea to a lesser offense over the prosecutor’s objection?

ANALYSIS

To prevail in a pretrial appeal, the state must show clearly and unequivocally that the district court erred and that it’s ruling, unless reversed, will have a critical impact on the outcome of the prosecution. State v. Jones, 518 N.W.2d 67, 69 (Minn. App.1994), review denied (Minn. July 27, 1994). Here, the reduction of the charge from first-degree to fourth-degree criminal sexual conduct, along with the stay of adjudication and other favorable terms of the plea, critically impact the prosecution.

Interpretation of the rules of criminal procedure is a question of law, which this court reviews de novo. State v. Whitley, 649 N.W.2d 180, 183 (Minn.App. 2002). Interpretation of plea agreements is also a question of law subject to de novo review. State v. Rhodes, 675 N.W.2d 323, 326 (Minn.2004). The district court’s factual findings, however, are subject to a clearly erroneous standard of review. State v. Critt, 554 N.W.2d 93, 95 (Minn. App.1996), review denied (Minn. Nov. 20, 1996).

1.

The state argues that it had a right to withdraw from the plea agreement when it was merely executory in nature, before a plea had been entered on the record, unless respondent could demonstrate detrimental reliance or prejudice. See State v. Johnson, 617 N.W.2d 440, 443 (Minn.App.2000).

In Johnson, this court affirmed the denial of a motion for specific enforcement of a plea agreement. Id. at 443. According to defense counsel, the prosecutor obtained the county attorney’s approval of a plea agreement, and the deal was “an official offer on the table.” Id. at 442. Based on a later reassessment of the strength of the state’s evidence, the prosecutor withdrew the plea offer. Id. This court held “that the state may withdraw from a plea agreement at any time before a defendant enters a guilty plea and the trial court accepts the plea, unless the defendant has detrimentally relied upon the agreement.” Id. at 443; see 5 Wayne R. LaFave, et al., Criminal Procedure § 21.2, at 96 (2d ed.1999) (describing this as the “prevailing doctrine”).

Several undisputed facts establish, under Johnson, that the plea agreement was merely executory: (1) it was agreed that the prosecutor was going to discuss the plea agreement with the victim; (2) the district court did not accept a guilty plea from respondent on August 25; and (3) respondent was going to arrange a psycho-sexual examination before the plea was entered. In these circumstances, Johnson establishes that the state was entitled to withdraw the plea offer unless respondent had detrimentally relied on it. And Johnson’s clear holding makes it unnecessary to determine whether the offer was considered “official,” whether it was conditioned on the approval of the victim, or whether there was a handshake to seal a “gentleman’s agreement.” Although respondent argues the agreement was not “executory” because the district court found there was a formal and unconditional offer and acceptance, those findings are irrelevant under Johnson and under the prevailing doctrine from other jurisdictions. Id. at 442-^13.

Respondent argues that he detrimentally relied on the plea agreement, or at least should have the opportunity to present evidence of detrimental reliance. But respondent has not suggested any act taken in reliance on the agreement that would establish detrimental reliance. (Respondent’s counsel conceded in the district court that the arrangements for the psy-chosexual evaluation, to be paid for by respondent, were cancelled when the state withdrew from the agreement.) Respondent argues that he would have been prejudiced by the “de facto continuance” sought by the state. But, since the district court accepted his plea more than three weeks before the September 26 trial date, there was no “de facto continuance.” And respondent does not suggest exactly how such a continuance would have prejudiced him.

On the undisputed facts of this case, Johnson requires reversal of the district court’s order. Even if Johnson could be read narrowly to only permit prosecutors to withdraw plea offers in good faith, the victim’s opposition to the agreement in this case constitutes a more substantial basis for withdrawal than the prosecutor’s second thoughts in Johnson.

2.

Respondent argues that the district court properly permitted him to plead guilty to a lesser offense over the state’s objection because allowing the plea was necessary to avoid a manifest injustice. The court may accept a plea of guilty to a lesser offense if the court is satisfied “that the prosecution cannot introduce evidence sufficient to justify the submission of the offense charged to the jury or that it would be a manifest injustice not to accept the plea.” Minn. R.Crim. P. 15.07. This court has held that the “manifest injustice” warranting acceptance of a plea to a lesser offense could refer “to situations like a dishonored plea bargain, or to prosecutorial decisions based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’” State v. Favre, 428 N.W.2d 828, 831 (Minn.App.1988) (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985)).

Respondent argues that the prosecutor here committed an “abuse of process” in manipulating the plea negotiations to obtain a de facto continuance of trial, and that this constitutes a “manifest injustice.” But respondent cites no authority holding that “abuse of process” by the prosecutor, such as respondent alleges here, constitutes “manifest injustice” equivalent to a prosecution impermissibly based on race, religion, or other arbitrary classification. Moreover, there is no factual support for respondent’s claim.

The prosecution made repeated attempts in the weeks before the August 25 hearing to obtain a continuance of the September 26 trial date. The prospect that a continuance would be denied, in accord with the announced “leaning” of the district court, may have motivated the prosecution to make a favorable plea offer. But there is nothing in the record to dispute the prosecutor’s asserted reason for withdrawing from the plea agreement, namely, that the victim opposed it. It is undisputed that all parties knew that Kish was going to notify the victim, and that that was the reason for deferring entry of the plea. Neither the district court nor respondent on appeal has suggested any basis for believing that the prosecutor anticipated the victim would oppose the agreement.

Moreover, the record contradicts any suggestion that the prosecutor withdrew the state’s offer to get a “de facto” continuance. Perhaps the strongest evidence against the theory of “abuse of process” is that, after the state withdrew from the plea agreement, it reassigned the case from Kish to Zipko. If the state had engineered the plea agreement to avoid Kish’s scheduling conflict, it would not have immediately reassigned the case to another attorney when the trial date had not changed.

Although respondent’s abuse-of-process argument is aimed at the trial continuance issue, we also address the fact that Fame introduces the prospect of accepting a plea based on the “manifest injustice” of a “dishonored plea bargain.” That term was not explained in Fame and no authority was cited for construing it as a “manifest injustice.” 428 N.W.2d at 831. But if the term extends to a withdrawn plea offer, or at least to any withdrawal of a plea offer, it would conflict with Johnson, which allows prosecutorial withdrawals from “executo-ry” plea agreements.

The Minnesota Supreme Court’s decision in State v. Streiff, 673 N.W.2d 831, 835 n. 3 (Minn.2004), suggests that the roots for Fame’s, dishonored-plea reference are in an unpublished opinion of this court, an opinion that does not deal with a withdrawn offer. The term “dishonored plea bargain” had not been used in a reported Minnesota decision before Fame. Cf. State v. Anderson, 520 N.W.2d 184, 187-88 (Minn.App.1994) (addressing whether restitution order “dishonored” terms of plea agreement). There appears to be no authority holding that the state improperly “dishonors” a plea bargain by withdrawing from an executory plea agreement.

LaFave, et al. distinguishes between “broken bargains,” occurring after the guilty plea has been entered, and “withdrawn offers,” occurring before the plea has been entered. LaFave, supra. The Streiff court indicated that at the plea-bargaining stage “discretion rests almost entirely with the prosecutor.” 673 N.W.2d at 836. Although Streiff did not involve a withdrawn plea agreement, the Streiff court’s analysis suggests that a district court would have no authority to enforce a plea agreement against the prosecution unless a plea had actually been entered. And that is what Johnson holds. 617 N.W.2d at 443. Harmonizing the holdings in Johnson and Fame, a “dishonored plea bargain” generally must be construed to refer to a plea agreement that has been violated after the plea was entered.

Even if we concluded that the term could be read more broadly, there would be no dishonored plea bargain in the facts of this case. The victim rights statute requires that prosecutors notify crime victims of proposed plea agreements and advise them of their right to object to a plea agreement or a proposed disposition. Minn.Stat. § 611A.03, subd. 1 (2004). Although the victim’s opposition here did not obligate the prosecutor to scuttle the agreement, it provided a much stronger reason for withdrawing from the agreement than the prosecutor’s second thoughts in Johnson. There was not a “manifest injustice” warranting acceptance of a plea to a lesser offense.

Because the district court erred in enforcing the plea agreement discussed on August 25, we need not address the state’s argument that the court impermissibly interjected itself into the plea negotiations. In addition, because the state’s argument is based on the district court’s enforcement of the plea agreement, not its participation in the negotiations, this does not present a substantially different claim.

3.

The remaining issues derive from motions filed by the parties and deferred to this panel.

The state moved to strike items that the district court admitted to supplement the record and the district court’s September 2, 2005 memorandum. This court’s record is limited to “the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Minn. R.Crim. P. 28.02, subd. 8.

The district court admitted affidavits of Meshbesher, another attorney in his firm, and a defense investigator. These documents relate to what occurred in and outside the court chambers on August 25 during the plea negotiations. Because the district court has determined that the record should be supplemented by those affidavits, we deny the state’s motion to strike them. We note that the documents are primarily relevant to the question of whether the district court impermissibly interjected itself into plea negotiations, an issue we have found unnecessary to resolve.

The newspaper article received by the district court does not purport to supplement the record as to what occurred in district court, and therefore it is not properly part of the record on appeal. The transcript of an unrelated Anoka County case, also received, is outside the record on appeal. The state’s motion to strike these two documents and all discussion of them in respondent’s brief is granted.

The district court’s September 2 memorandum explaining the court’s decision is properly included in the record on appeal because it is part of the court’s ruling and does not involve new evidence. The state’s motion to strike this document is denied.

Respondent filed a motion to submit supplemental briefing based on the documents accepted by the district court to supplement the record. Because we conclude that two of the documents are not properly part of the record on appeal and the other three do not relate to the issue that we have decided, we deny the motion for supplemental briefing.

Respondent filed a motion to strike portions of the state’s brief discussing the facts of the alleged offense. Although respondent argues that these facts are not relevant to the issues on appeal, the facts are taken from documents that were filed in the district court and are a proper part of the record on appeal. See Minn. R.Crim. P. 28.02, subd. 9. Respondent’s motion to strike is denied.

Finally, respondent filed a motion for an award of $6,000 in attorney fees plus $357.87 in costs. A respondent is entitled to reasonable attorney fees and costs in responding to a pretrial appeal filed by the state. Minn. R.Crim. P. 28.04, subd. 2(6). An award of $4,500 in attorney fees and $357.87 in costs is reasonable for responding to this appeal, and the prosecution shall pay attorney fees and costs in that amount to respondent.

DECISION

The district court erred in enforcing the withdrawn plea agreement, which was still executory, and in accepting respondent’s guilty plea to a lesser offense over the prosecutor’s objection. The matter is remanded for further proceedings. The state’s motion to strike is granted in part and denied in part. Respondent’s motions on the record and on supplemental briefing are denied. But respondent is awarded $4,500 in attorney fees and $357.87 in costs for responding to this appeal.

Reversed and remanded; motions granted in part and denied in part.

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

      . Although respondent did not present this issue to the district court, we address it because it has been thoroughly briefed on appeal and the record is adequate to decide it.

      . The decision to accept a plea to a lesser offense over the prosecutor's objection may violate the separation of powers. See State v. Streiff, 673 N.W.2d 831, 834 (Minn.2004) (noting that the history of Minn. R.Crim. P. 15.07 “demonstrates the state's separation of powers concerns”).

      . We reject respondent’s argument that this appeal must be dismissed or remanded for a further record. Appellant is responsible for ensuring that an adequate appellate record is presented to decide the issues raised by appellant. State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984). As respondent points out, plea negotiations and discussions in chambers on August 25 occurred off the record, and later there was sharp disagreement among the parties as to whether the plea agreement was conditioned on the victim’s approval. The state of the record would preclude our review of a claim premised on the district court’s participation in negotiations. But there is a sufficient record to review the dispositive issue here, that is, the court's accepting, over the state's objection, a plea agreement that was still executory.


author: KAPSNER, Justice.

text:
    2006 ND 23
    Brenda M. HILGERS, Plaintiff and Appellee v. Douglas G. HILGERS, Defendant and Appellant.
    No. 20050146.
    Supreme Court of North Dakota.
    Jan. 31, 2006.
    Rehearing Denied March 29, 2006.

      Brenda M. Hilgers, plaintiff and appel-lee; no appearance.
    Douglas G. Hilgers (on brief), pro se, Duluth, MN, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Douglas Hilgers appeals from a district court “letter opinion” entered after this Court exercised its supervisory authority in Hilgers v. Hilgers, 2004 ND 95, ¶ 26, 679 N.W.2d 447, and directed the district court to address his “requests for a determination of Brenda Hilgers’ child support obligation and for modification of his spousal support obligation and payments of arrearages.” The district court ordered Douglas Hilgers to pay Brenda Hilgers $36.96 in an offsetting child support obligation and accepted Brenda Hil-gers’ waiver of any claim against Douglas Hilgers for unpaid spousal support. We affirm the court’s decision on child support, spousal support, and arrearages, and we do not address his issues about contempt.

I

[¶ 2] In order to provide context to the issues raised on appeal, we briefly outline the procedure leading up to the district court’s April 15, 2005, “letter opinion.” Douglas and Brenda Hilgers were married in 1980 and had four children. In 1998, Brenda Hilgers sued Douglas Hilgers for divorce in Ward County District Court, and following default divorce proceedings, a divorce judgment was entered in September 1998. At the time of the divorce, two of the children were minors. Brenda Hilgers, who lived in Bottineau, was awarded custody of the parties’ two minor children, and Douglas Hilgers, who lived in Duluth, Minnesota, was awarded reasonable visitation and ordered to pay Brenda Hilgers $977 per month in child support and $500 per month in spousal support until their minor son became 19 or graduated from high school. In October 1998, Douglas Hilgers unsuccessfully moved for relief from the default judgment.

[¶ 3] Douglas Hilgers’ child support obligation for the two minor children was later reduced to $610 per month effective December 1, 2000. In Hilgers v. Hilgers, 2002 ND 173, ¶ 1, 653 N.W.2d 79 (.Hilgers I), we affirmed the district court’s denial of Douglas Hilgers’ motion for a change of custody and refusal to appoint a guardian ad litem for his minor son, but reversed and remanded for the court to create a visitation schedule and to explain its rationale for setting December 1, 2000, as the effective date of the child support reduction.

[¶ 4] While the appeal in Hilgers I was pending, Douglas Hilgers moved to review and modify his spousal support obligation, claiming his net monthly income was almost $1,400 less than the amount relied upon in the default divorce proceeding. After the remand in Hilgers I, the district court set a visitation schedule and explained its rationale for reducing the child support effective December 1, 2000. In March 2003, Douglas Hilgers sent a letter to the district court, complaining about the court’s refusal to grant a hearing on his motion regarding his spousal and child support obligations. Also in March 2003, Douglas Hilgers was convicted in Botti-neau County District Court of removing his minor son from the state in 2001, in violation of the custody decree. See State v. Hilgers, 2004 ND 160, 685 N.W.2d 109, cert. denied, — U.S.-, 125 S.Ct. 1613, 161 L.Ed.2d 280 (2005). Immediately after the March 2003 conviction, Douglas Hilgers moved to temporarily change custody of his minor son, and the district court granted his motion pending a hearing. Douglas Hilgers again moved for review and modification of his child and spousal support obligations and sought to have Brenda Hilgers pay child support. After a hearing, the district court changed custody of the minor son to Douglas Hil-gers, terminated his child support obligation effective April 2, 2003, and ordered Brenda Hilgers to pay $168 per month in child support from that date. The court did not address spousal support.

[¶ 5] In June 2003, Douglas Hilgers filed another motion for modification of the support orders, asking the court to issue a child support order, to terminate his spousal support obligation, to order Brenda Hilgers to pay “custodial parent spousal support,” and to review the withholdings of his wages. The court denied Douglas Hil-gers’ request for spousal support from Brenda Hilgers. In July 2003, Douglas Hilgers filed a motion for all the relief that either had been denied or had not been addressed. He complained that he had not received any child support from Brenda Hilgers. He requested withholding of Brenda Hilgers’ wages, termination of his spousal support obligation, and an explanation regarding the denial of spousal support for him. In an August 2003 letter, the court indicated the matter was still venued in Ward County, but the court did not mention the child or spousal support issues. Douglas Hilgers appealed to this Court from the district court’s letter opinion.

[¶ 6] On May 5, 2004, this Court dismissed Douglas Hilgers’ appeal from the district court’s “letter opinion,” but exercised its supervisory authority and directed the court to address Brenda Hilgers’ child support obligation and Douglas Hil-gers’ spousal support obligation and payment of arrearages. Hilgers v. Hilgers, 2004 ND 95, ¶¶ 15, 26, 679 N.W.2d 447 (Hilgers II).

[¶ 7] However, on September 4, 2003, and while his appeal was pending in Hil-gers II, Douglas Hilgers secured a stay pending appeal of the child and spousal support orders “as effected by the Grand Forks Regional Child Support Enforcement Unit.” On February 25, 2004, Douglas Hilgers filed a motion to find Brenda Hilgers and an attorney with the child support enforcement unit in contempt of court for intercepting his federal income tax refund of $440. He claimed the interception violated the stay pending appeal, and he sought discovery from the child support enforcement unit. On April 29, 2004, the district court ordered a change of venue of the contempt proceeding from Ward County to Grand Forks County. On May 13, 2004, a district court judge in Grand Forks County returned the case to Ward County, stating the Ward County district court judge did not have jurisdiction to change venue because of the pending appeal in Hilgers II.

[¶ 8], Meanwhile, ,on May 5, 2004, this Court issued its supervisory decision in Hilgers II, at ¶ 26, directing the district court to address Douglas Hilgers’ “requests for a determination of Brenda Hil-gers’ child support obligation and for modification of his spousal support obligation and payments of arrearages.” On August 20, 2004, the district court wrote a letter to Douglas Hilgers, which stated:

In the simplest of terms tell me what you would like to be done and I will see if I can comply with your request. I am assuming your son is now 18 years of age. Has he graduated from high school? I will try to do what I can for you and for your son but I need to know what you want and what you base your request on. Please try to make it as simple as possible.

[¶ 9] Douglas Hilgers sent the district court a letter, dated November 18, 2004, in which he mentioned an evidentiary hearing about the contempt issue and the financial status of the parties. Douglas Hilgers sent the district court additional letters that were filed on December 3, 2004, December 17, 2004, and December 23, 2004. In those letters, he complained about his criminal conviction and requested an evi-dentiary “hearing in the matter of the Custody, Contempt, and Orders/Findings of the Civil Court.” In the letter filed on December 23, 2004, Douglas Hilgers indicated the North Dakota Supreme Court’s analysis in Hilgers II was “fraught with many factual mis-references.” He claimed Brenda Hilgers had not resided in Minot since she was 18, his son had not resided with Brenda Hilgers since February 2001, and there had been a misapplication of spousal and child support from that date forward. Douglas Hilgers also referred to the sentencing at his criminal hearing and to amounts of past child and spousal support awards as not being equitable. He referred to spousal support and Brenda Hilgers’ income and sought an extension of child support for two more years for his youngest son, who had turned 18. Douglas Hilgers complained about the interception of his tax refund in that letter, the loss of his homestead, and the failure to appoint a guardian ad litem to protect the best interest of the children and to compel Brenda Hilgers to transfer certain property in Wisconsin to the children. Douglas Hilgers also complained about and sought relief from the arrearages for his spousal support obligation. On December 21, 2004, the district court sent Douglas Hil-gers a letter, informing him the matter would be set for hearing.

[¶ 10] On December 31, 2004, upon retirement of the district court judge, the case was reassigned to a different district court judge, the Honorable William W. McLees. On January 5, 2005, Judge McLees wrote the parties, explaining the court would limit the issues at the hearing to those identified in Hilgers II. A hearing was scheduled for February 28, 2005, with notice to Douglas and Brenda Hilgers. On February 3, 2005, Douglas Hilgers filed a “Petition For Writ of Mandamus Upon the District Court ... Affidavit/Motion for Investigation and Sanction for Contempt,” and served the document on Brenda Hil-gers. In his petition for writ of mandamus, he complained about the court’s decision to limit the issues at the scheduled hearing. He argued his due process rights had been curtailed. He again complained about child support and spousal support issues and that his youngest son was never afforded a guardian ad litem. He also raised issues about statements in this Court’s opinion in Hilgers II. His petition referred to Brenda Hilgers’ income and mentioned that his taxes had been repeatedly intercepted. He also referred to his petition for contempt of the parties responsible for the tax interception. His petition also complained about the original default divorce decree and the denial of a hearing to vacate that judgment. His petition mentioned visitation and that the youngest son had not lived with Brenda Hilgers while she was receiving spousal and child support. Douglas Hilgers sought protection of the children’s rights and relevant financial information and records to enable a just and equitable decision and to assess the issues of contempt. He also sought to compel the testimony of a witness.

[¶ 11] At the hearing, the district court stated it would consider only the issues specified in this Court’s decision in Hilgers II, and it would not consider other issues raised by Douglas Hilgers. At the hearing, Brenda Hilgers waived any claim to unpaid spousal support and arrearages. In a “letter opinion” dated April 15, 2005, the court ultimately ordered Douglas Hil-gers to pay Brenda Hilgers a total of $36.96 in an offsetting child support obligation.

II

[¶ 12] Douglas Hilgers appeals from the court’s April 15, 2005, “letter opinion.” A “letter opinion” generally is not appealable. Hilgers, 2004 ND 95, ¶ 15, 679 N.W.2d 447. However, an appeal may be taken from a memorandum decision if it was intended to be the final order of the court. American Ins. Co. v. Midwest Motor Express, Inc., 554 N.W.2d 182, 183 n. 1 (N.D.1996). The district court’s “letter opinion” stated that after Douglas Hilgers paid Brenda Hilgers the $36.96 offset for child support, all issues directed to be considered had been resolved and the “Ward County Clerk of District Court can officially close this file.” We conclude the district court intended the “letter opinion” to be a final decision of the court, and the appeal from that decision is properly before this Court.

III

[¶ 13] Douglas Hilgers argues the district court erred by not certifying familiarity with the record under N.D.R.Civ.P. 63.

[¶ 14] Rule 63, N.D.R.Civ.P., provides that “[i]f a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.” Our rule is derived from the corresponding federal rule, and although we are not compelled to interpret our rules in the same manner as federal courts interpret the federal rule, decisions of the federal courts may be persuasive in interpreting our rule. Weigel v. Weigel, 1999 ND 55, ¶ 7, 591 N.W.2d 123. Rule 63, F.R.Civ.P., provides authority for substituting one judge for another judge who is unable to proceed, thus enabling an ongoing civil trial or hearing to proceed. 12 James Wm. Moore, Moore’s Federal Practice § 63.02[1] (2005). The rule applies after a trial or hearing in a civil action has commenced and the trial judge ' is unable to proceed. Id. at § 63.02[2]. The plain language of F.R.Civ.P. 63 indicates “the certification of familiarity requirement applies to all cases in which a successor judge replaces another judge unable to proceed with a trial or hearing that has commenced.” Canseco v. United States, 97 F.3d 1224, 1226 (9th Cir.1996). We conclude N.D.R.Civ.P. 63 does not apply to this case, because the hearing had not commenced when Judge McLees was assigned this case after the previous judge retired. Judge McLees conducted the evidentiary hearing in this case, and he was not required to make a certification under N.D.R.Civ.P. 63.

IV

[¶ 15] In his remaining claims, Douglas Hilgers essentially argues the district court erred in refusing to hear and consider other issues raised by him in his petition for writ of mandamus and his request for a contempt sanction, including issues about past visitation, spousal support, child support, the appointment of a guardian ad litem for the children, and Brenda Hilgers’ financial circumstances.

[¶ 16] In Hilgers II, 2004 ND 95, ¶ 26, 679 N.W.2d 447, this Court directed the district court to address Douglas Hil-gers’ “requests for a determination of Brenda Hilgers’ child support obligation and for modification of his spousal support obligation and payments of 'arrearages.” At the hearing, both parties presented statements under oath. The parties essentially settled the issues about Douglas Hil-gers’ spousal support obligation and ar-rearages, and Brenda Hilgers waived any claim to spousal support arrearages in an amount she said was about $20,000. The remaining issue decided by the district court involved the parties’ child support obligations. The district court reviewed available records and concluded Douglas Hilgers owed Brenda Hilgers $3,304.21 in child support and she owed him $3,267.25 in child support. The court offset their respective obligations and ordered Douglas Hilgers to pay Brenda Hilgers a total of $36.96. There was evidence presented to the district court to support the court’s offset of the parties’ child support obligations, and we will not retry those issues. We conclude the district court did not err in offsetting the parties’ child support obligation. Moreover, to the extent Douglas Hilgers attempts to raise issues that have been decided against him in the prior civil proceedings and the criminal action, we conclude the district court did not err in denying his requests.

[¶ 17] While the appeal was pending in Hilgers II, Douglas Hilgers asked the district court to find Brenda Hilgers and the Grand Forks Regional Child Support Enforcement Unit in contempt for intercepting his federal tax return in violation of a stay pending appeal. After this Court’s decision in Hilgers II, he again asked the district court to proceed on the contempt issue. The district court refused to consider that issue and it has not been decided by a court. Moreover, this record does not reflect that the child support enforcement unit was a party to, or was given notice of the February 28, 2005, hearing. Under these circumstances, we decline to address Douglas Hilgers’ claims about contempt. He may pursue the contempt issue for the tax interception upon proper notice and designation of the appropriate parties. However, to the extent his claim involves money intercepted in payment of child support, that issue has been resolved by the determination of offsetting child support claims decided by Judge McLees.

V

[¶ 18] We affirm the district court’s decision about spousal and child support, and we decline to address Douglas Hilgers’ claims about contempt.

[¶ 19] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.


author: CROTHERS, Justice.

text:
    2006 ND 18
    STATE of North Dakota, Plaintiff and Appellee v. Albert William SCHRUM, Defendant and Appellant.
    No. 20050267.
    Supreme Court of North Dakota.
    Jan. 31, 2006.
    Albert William Schrum (submitted on brief), pro se, Jamestown, defendant and appellant.
    Jerod E. Tufte (submitted on brief), State’s Attorney, Steele, for plaintiff and appellee.
   CROTHERS, Justice.

[¶ 1] Albert William Schrum appeals from an amended judgment. We reverse and remand, granting Schrum credit for 13 days’ time served prior to entry of the original criminal judgment.

I

[¶ 2] Schrum pled guilty to attempted robbery and felonious restraint and was sentenced to 15 years’ imprisonment, ten years to serve. Schrum was incarcerated for 13 days prior to entry of the criminal judgment. The judgment did not give credit for time served.

[¶ 3] Schrum moved to amend the judgment, requesting credit for the 13 days he spent in jail. He supplied affidavits to the district court indicating he was arrested on the charges 13 days prior to posting bond and being released. The court granted the motion, in part, crediting Schrum for two days.

[¶ 4] Schrum appeals, arguing he should have been credited for the full 13 days.

II

[¶ 5] A criminal defendant’s sentence must be credited for time served in custody on that charge. N.D.C.C. § 12.1-32-02(2). However, a defendant is not to be credited for time spent in custody for an unrelated charge. State v. Trudeau, 487 N.W.2d 11, 14 (N.D.1992). Schrum argues he should be credited for the time spent incarcerated between his arrest and his posting bond. The State argues the district court was correct in crediting Schrum for only two days because he was incarcerated on other charges during the remaining 11 days.

[¶ 6] Schrum had the burden of showing his entitlement to the additional credit for time served. Cue v. State, 2003 ND 97, ¶ 12, 663 N.W.2d 637. The district court’s denial of the additional credit, the State argues, indicates Schrum did not meet this burden. We disagree. Schrum’s affidavits provide a chronology of the time between his initial arrest on these charges and his subsequent transfers and release. The incarceration records supplied to the district court correspond to Schrum’s account. There is no evidence that Schrum served less than 13 days prior to sentencing on these charges. The district court’s order that Schrum should be credited for only two days is clearly erroneous.

Ill

[¶ 7] The district court’s amended judgment is reversed, and we remand to give Schrum credit for the additional 11 days (totaling 13 days) he served prior to entry of the original criminal judgment.

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