author: WILLIS, Judge. CRIPPEN, Judge

text:
    STATE of Minnesota, Respondent, v. Josefina Sanchez MENDOZA, Appellant, Veronica Soto Alvarez, Appellant.
    Nos. C5-01-994, C9-01-996.
    Court of Appeals of Minnesota.
    Jan. 31, 2002.

      Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Government Center, Rochester, MN, for respondent.
    John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Minneapolis, MN, for appellants.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and ANDERSON, Judge.
   OPINION

WILLIS, Judge.

In consolidated appeals, appellants challenge their sentences for convictions of conspiracy to commit controlled-substance crime in the first degree. They argue that the district court’s refusal to grant mitigated dispositional departures was improperly based on their alienage and national origin. We conclude that the district court did not sentence appellants on the basis of their national origin. But because the district court erred by considering their immigration status and possible deportation and therefore by not exercising its sentencing discretion, we reverse and remand for re-sentencing.

FACTS

Appellants Josefina Sanchez Mendoza and Veronica Soto Alvarez, both Mexican nationals, were charged with multiple counts of first-degree controlled-substance crime, a violation of Minn.Stat. § 152.021 (2000), and one count of conspiracy to commit first-degree controlled-substance crime, a violation of Minn.Stat. § 152.096, subd. 1 (2000). They negotiated plea agreements with the state under which they pleaded guilty to the counts of conspiracy and were allowed to argue for mitigated sentencing departures.

The complaints alleged that between March 2 and July 6, 2000, appellants conspired with each other to possess or sell cocaine. In pleading guilty, Sanchez Mendoza admitted that she and Soto Alvarez agreed to hold cocaine for later sale by a third party; Soto Alvarez admitted that at Sanchez Mendoza’s request, she received money for the cocaine on behalf of the third party. Both acknowledged that their convictions may affect their immigration status.

At the consolidated sentencing hearing, appellants moved for mitigated dispositional departures on the ground that they were amenable to probation; Soto Alvarez claimed the additional grounds of her young age, lack of criminal record and capacity for judgment, and minor role in the crime. The state argued that the record did not support mitigated departures and, alternatively, that because appellants would be deported if placed on probation, they were not amenable to probation.

The probation officer who prepared the presentence reports testified that (1) she had no basis for recommending mitigated dispositional departures; (2) the Immigration and Naturalization Service (INS) told her that it would begin deportation proceedings against appellants when they became available; (3) she could not supervise appellants’ probation if they were deported; and (4) “if one isn’t available for probation, being amenable is kind of a moot point.”

The district court determined that

[tjhese are cases that there are arguments both ways, and the complicating factor is obviously the INS situation, which makes the otherwise possible option of some kind of a local disposition really impossible and impractical!,]

and imposed 81-month prison sentences, which are within the presumptive-sentence range for appellants’ offenses and criminal-history scores of zero. See Minn. Sent. Guidelines IV, V. This consolidated appeal follows.

ISSUES

I. Did the district court err by basing its sentencing decision on appellants’ alien-age?

II. Did the district court err by basing its sentencing decision on appellants’ national origin?

ANALYSIS

A mitigated departure from a presumptive sentence under the sentencing guidelines may be imposed only if “substantial and compelling” circumstances are present. State v. Kindem, 813 N.W.2d 6, 7 (Minn.1981). A decision to depart from the sentencing guidelines rests within the district court’s broad discretion and will not be reversed absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). Only in a “rare case” will a reviewing court reverse a district court’s imposition of a presumptive sentence. Kindem, 313 N.W.2d at 7.

I.

Appellants argue that, although the district court recognized that substantial and compelling circumstances supported mitigated dispositional departures, it concluded that because they were subject to deportation, it could not order probation. They contend that because the district court would have departed from the presumptive sentence had they been United States citizens and thus not subject to deportation, the district court based its sentencing decision on their alienage. Sentencing a defendant on the basis of alienage is unconstitutional. United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir.1991).

Appellants’ argument assumes that the district court recognized that substantial and compelling circumstances were present. It did not; it stated only that there were “arguments both ways.” At best, this statement supports a claim that the district court acknowledged the existence of reasons both for and against departures. But the district court also stated that “the complicating factor is obviously the INS situation, which makes the otherwise possible option of some kind of a local disposition really impossible and impractical.”

Thus, the question arises of whether the district court (1) made a considered decision to impose presumptive sentences or (2) merely acknowledged that there were reasons for and against departures but decided, because appellants would be deported if placed on probation, that it had no choice but to impose presumptive sentences. If the district court has discretion to depart from a presumptive sentence, it must exercise that discretion by deliberately considering circumstances for and against departure. State v. Curtiss, 353 N.W.2d 262, 264 (Minn.App.1984); see State v. Spain, 590 N.W.2d 85, 88 (Minn.1999) (stating that a sentencing court has no discretion to depart from sentencing guidelines unless mitigating or aggravating factors are present).

This question, in turn, raises two issues. First, we must determine whether the district court’s consideration of appellants’ immigration status and possible deportation, as evinced by its reference to “the INS situation,” was proper and, if so, whether that status precluded probation as a possible sentencing disposition. If the district court properly considered appellants’ immigration status and correctly concluded that probation was precluded, the district court had no discretion to make mitigated dispositional departures and thus no discretion to exercise. Second, because the district court did not identify any circumstances supporting departure, we must determine whether such circumstances exist. If there are none, the district court had no discretion to depart from the presumptive sentence and thus no discretion to exercise. Spain, 590 N.W.2d at 88.

A. Immigration Status

Although we find no published Minnesota case that discusses the effect of immigration status on sentencing, the supreme court has held that possible deportation is a collateral, not a direct, consequence of a guilty plea and therefore is not a ground for plea withdrawal. Alanis v. State, 583 N.W.2d 573, 578-79 (Minn.1998); see Barragan v. State, 583 N.W.2d 571, 572-73 (Minn.1998) (stating that deportation alone is not a manifest injustice requiring postconviction relief). Direct consequences are those that “flow definitely, immediately, and automatically from the guilty plea — the maximum sentence and any fine to be imposed.” Alanis, 583 N.W.2d at 578. Deportation is not a direct consequence because it is not definite, immediate, or automatic; before deportation can occur, “the INS must exercise its discretion to commence deportation proceedings and, prior to deportation, there are various administrative procedures which must be followed.” Id. at 578-79.

Examination of the discussion of deportation in Alanis and its progeny makes it clear that deportation is “collateral” because immigration consequences are not controlled by Minnesota courts. The INS may or may not decide to commence deportation proceedings, or to complete them if commenced, and may or may not act within a reasonable period of time. An order by a Minnesota district court that a defendant be deported, or not be deported, could not direct the actions of the INS.

This observation compels our conclusion that possible deportation because of immigration status is not a proper consideration in criminal sentencing. If the district court were to consider deportation as a factor in its sentencing decision, it would be considering a possible collateral consequence in arriving at an appropriate sentence for the defendant. We conclude that consideration of a possible collateral consequence, which is beyond the control of the district court and which may or may not occur, is not a valid consideration in deciding whether to impose a presumptive sentence or to depart from the guidelines. If possible deportation is considered a reason not to depart and the district court imposes a presumptive sentence as a result, the sentence may not be appropriate because it cannot be known with certainty whether deportation would have occurred.

We conclude, therefore, that the district court erred by considering appellants’ immigration status and possible deportation. This error, however, does not require reversal unless circumstances exist that would support a departure.

B. Circumstances Supporting Departure

The record shows that legitimate reasons for departure exist. Sanchez Mendoza was 23 years old during the time covered by the offense and had no prior criminal record. The probation officer testified that while Sanchez Mendoza was in jail, she gained insight into her chemical abuse, appeared determined to abstain from chemical use, and took classes to advance her education. Soto Alvarez was 19 years old at the beginning of the offense and had no prior criminal record. Medical reports indicate that she suffered from depression, which she claimed affected her capacity for judgment, and the probation officer testified that while Soto Alvarez was in jail, she made progress with her mental health.

We note that the record also shows that reasons for imposing presumptive sentences exist. Appellants conspired to possess or sell cocaine over at least four months, and the weight of cocaine sold in three transactions during that time exceeded 498 grams, nearly 50 times the weight necessary for a conviction of first-degree sale of a controlled substance. See Minn.Stat. § 152.021, subd. 1(1) (2000) (requiring minimum of 10 grams of cocaine for first-degree controlled-substance crime).

Because we cannot conclude from the record that the district court made a deliberate decision to impose presumptive sentences by weighing reasons for and against departure, we remand for the district court to sentence appellants without considering their immigration status and possible deportation and without assuming that they will be unavailable for probation because they will be deported. This is not that “rare” case in which we interfere with the district court’s exercise of its discretion, but one in which, we conclude, that such an exercise of discretion may not have occurred. See Curtiss, 353 N.W.2d at 264 (stating that consideration of circumstances is “central to the scheme of the sentencing guidelines” and avoids sentencing that is “either mechanical or callous”). We express no opinion on whether mitigated dispositional departures are appropriate.

II.

Appellants contend that the district court’s statements during the sentencing hearing indicate that it based its refusal to depart on their national origin. Sentencing a defendant on the basis of national origin is unconstitutional. Onwuemene, 933 F.2d at 651. Appellants refer to an exchange between the district court and Sanchez Mendoza’s counsel:

THE COURT: Well, here’s the twist, as I see it, that I wanted to pose to you. Ordinarily, of course, being placed on probation involves some higher measure of freedom than the institution, and I suppose even being in Mexico would imply a certain amount of that with respect to your client. But it strikes me that there was probably a real good reason why she wanted to leave Mexico, and it strikes me further that she’s clearly not going to get any medical, dental, psychiatric care in Mexico. I suspect they provide none of that for people without money there, not too unlike most places here, but a totally uncertain future, no educational or vocational training or help. She’ll have no job, so what she’ll have is this illusory freedom, which brings to mind the old Janis Joplin song.
Isn’t she better off in the facility in Shakopee where she’s going to get all of the dental, medical, psychiatric care she needs? She’s going to get room and board. She’s going to get the opportunity to get the education that would make her, even when sent back to Mexico, a productive citizen there, theoretically; and all she’s giving up is freedom, this illusory freedom that I’m not so sure she’s going to have much of in Mexico anyway. What do you say?
[COUNSEL]: That’s an interesting argument, Your Honor.
THE COURT: It’s what occurred to me.
[COUNSEL]: What you’re saying is Minnesota prison is better than living in Mexico.
THE COURT: That’s what I’m saying. That’s what I’m saying. I read her background; and to me, Shakopee is a better place than where she came from. I mean, in Shakopee she’s probably going to be safe. There aren’t going to be any uncles with submachine guns gunning down people in her presence. I’m not sure whether that was your client or [other counsel’s] but—
[COUNSEL]: That was my client.
THE COURT: There’s not going to be any of that kind of stuff. She apparently got the scar on her foot where she was shot in the foot by some knucklehead. She’s not going to face that in Shakopee, presumably. I mean, she’s going to be safer here than she’s going to be in Mexico. I would think, in a way, you might be looking at this. Are you sure you’ve talked to her? Are you sure she doesn’t prefer to go to Shako-pee? This four and a half years does involve a time where she could get an education.
[COUNSEL]: Your Honor, have you ever lived in Mexico?
THE COURT: No, I haven’t, and I don’t wish to; and the part that Americans go to are that thin little two blocks next to the beach. They don’t go inland three and four blocks where these people lived.
[COUNSEL]: She would prefer to go back to Mexico rather than prison * * *.

Although some of the district court’s remarks about Mexico may have been inappropriate, the record shows that the district court was primarily concerned about returning Sanchez Mendoza to what it considered to be an unsafe environment, which happened to be in Mexico. The district court reviewed the presentence report on Sanchez Mendoza’s background, which includes physical abuse by her father, murders of several family members by other family members, and an uncle who shot two persons with a machine gun in her presence and shot her in the foot. These incidents occurred in Mexico. We are not persuaded, after thoroughly reviewing the sentencing transcript, that the district court sentenced appellants to prison simply because they are Mexicans.

DECISION

The district court did not sentence appellants on the basis of their national origin but erred by considering appellants’ immigration status and possible deportation and therefore by not exercising its sentencing discretion. We reverse and remand for resentencing.

Reversed and remanded.

CRIPPEN, Judge

(dissenting).

Action on a guilty plea may be just even though it is proven that the defendant was not informed about collateral consequences of a conviction. Alanis v. State, 583 N.W.2d 573, 578-79 (Minn.1998). But it is quite another thing to suggest that collateral consequences of conviction must be ignored by counsel, the parties, or the court-or more specifically, that the trial court may not consider collateral consequences of a conviction in determining whether to make a downward dispositional departure. If there were authority for the latter conclusion, I would agree with the rationale carefully enunciated by the majority. There being no such authority, I respectfully dissent from the decision to reverse.


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. John Sheldon DICK, Appellant.
    No. C3-01-833.
    Court of Appeals of Minnesota.
    Feb. 5, 2002.

      Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Caia Johnson, Certified Student Attorney, St. Paul, MN; and Earl E. Maus, Cass County Attorney, Cass County Courthouse, Walker, MN, for respondent.

      John M. Stuart, Minnesota Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, SHUMAKER, Judge, and HALBROOKS, Judge.
   OPINION

STONEBURNER, Judge.

On appeal from convictions of first-degree burglary and terroristic threats, appellant John Sheldon Dick argues that (1) the district court abused its discretion by failing to sever two burglary charges brought against him; (2) the evidence was insufficient to establish that he intended to terrorize police officers; (3) the district court abused its discretion by refusing to instruct the jury on transitory anger as an exception to the charge of terroristic threats; and (4) the district court abused its discretion by imposing consecutive sentences on him for his convictions. Dick also raises several pro se arguments. Because the burglary charges arose out of a single course of conduct, the evidence was sufficient to support the conviction of ter-roristic threats and the court did not err in instructing the jury or in sentencing, we affirm.

FACTS

In the early morning hours of September 4, 2000, Mr. and Mrs. Frei, cabin owners in Cass County, heard a noise in the drive-out, garage-storage area under their cabin. They looked out and saw a car in the driveway. At about the same time, they heard the car leaving the yard and saw taillights. After a discussion about calling the sheriff, Mr. Frei checked the yard where he found a small gas can from his storage area. As he came back into the cabin, an alarm went off in an unoccupied cabin located about 1/2 mile from the Freis’ cabin. The Freis thought that the alarm would notify the Sheriff. They sat up for a while longer, then returned to bed, leaving lights on in the cabin and the yard. Sometime later Mrs. Frei saw the driveway light up from a car’s headlights and heard a car in the driveway. The Freis got up, turned on all of the lights and called 911 to report that someone had been in their basement, left and was coming back again. The car left the Freis’ yard again.

Officers dispatched to the area encountered the car coming out of the driveway of the unoccupied cabin onto the secluded, one-lane road that leads to the two cabins. The officers stopped the car and identified Dick as the driver. Dick told the police he had been banging on the door of the unoccupied cabin trying to get gas. There was a red, five-gallon gas can and a case of beer on Dick’s passenger seat. The Freis later identified the gas can and the case of beer as having come from their storage area.

The officers checked the unoccupied cabin and found that the cabin had been broken into and that the security keypad for the alarm system was ripped off of the wall. Dick, who was very intoxicated, became agitated when officers told him he was under arrest. Dick tried to kick out the back windows of the squad car and fought with officers when they tried to shackle his wrists to his ankles. He spit in one officer’s face and attempted to bite another. After he was shackled, Dick threatened to find out where the officers lived and kill them. He continued to yell obscenities and threats during transport to the law enforcement center.

The district court denied, without comment, Dick’s motion to sever the burglary charges for trial. A jury acquitted Dick of burglary in the second degree (unoccupied cabin) but found him guilty of burglary in the first degree (occupied cabin) and ter-roristic threats. This appeal followed.

ISSUES

I. Did the district court abuse its discretion by refusing to sever the charges of first-degree burglary and second-degree burglary?
II. Did the evidence presented at trial sufficiently support the jury’s conviction of Dick for terroristic threats?
III. Did the district court abuse its discretion by refusing to give Dick’s requested jury instruction on transitory anger?
IV. Did the district court abuse its discretion by imposing consecutive sentences for first-degree burglary and ter-roristic threats?
V. Is Dick entitled to a new trial or a reduction in sentence based on his pro se arguments?

ANALYSIS

I. Severance

1. Denial of motion to sever burglary charges

We review the denial of a motion to sever under an abuse of discretion standard. State v. Dukes, 544 N.W.2d 13, 20 (Minn.1996). Minn. R.Crim. P. 17.03, subd. 1 permits a defendant to be charged in the same complaint with more than one offense. On motion, the court shall sever offenses for trial if:

(a) the offenses or charges are not related;
(b) before trial, the court determines severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense or charge; or
(c)during trial, with the defendant’s consent or upon a finding of manifest necessity, the court determines severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each crime.

Minn. R.Crim. P. 17.03, subd. 3(1). Pursuant to the rule, a district court must first decide whether the joined offenses are related, and if so, the court must decide whether severance is nonetheless required because joinder would be prejudicial. State v. Profit, 591 N.W.2d 451, 459 (Minn.1999).

Offenses are related when they are “part of a single behavioral incident or course of conduct.” Id. at 458 (citations omitted). In determining whether the offenses are part of a single behavioral incident or course of conduct, courts examine (1) “how the offenses were related in time and geographic proximity;” and (2) “whether the actor was motivated by a single criminal objective.” Dukes, 544 N.W.2d at 20 (holding that the district court did not abuse its discretion in refusing to sever trials “where the time between the two crimes was a matter of only a few minutes, the proximity was within one block, and each crime was motivated by the objective of obtaining money through robbery.”) Here, Dick told the police he had been banging on the door of the unoccupied cabin, looking for gas. The alarm at the unoccupied cabin went off within fifteen minutes of the Freis having heard someone in their storage area and having seen a car leave their driveway. The Freis’ small gas can was taken from their storage area and left on their yard. A five-gallon gas can and a case of beer taken from the Freis’ storage area was found in Dick’s car. The Freis saw a car come up their driveway after the alarm went off in the unoccupied cabin. Only Dick’s car was found in the area.

The proximity of the cabins, the timing, and Dick’s stated objective of looking for gas support the district court’s conclusion that Dick’s presence at each cabin was part of a single course of conduct. Because the two incidents were sufficiently related to be joined for trial, the district court was not required to grant Dick’s motion to sever unless it determined that severance was appropriate to avoid prejudice. Here there is no record indicating that the district court considered the necessity of severance to avoid prejudice.

Dick argued that whether severance was nonetheless appropriate because of prejudice must be determined by this court under a Spreigl analysis for admissibility of other crimes evidence. We disagree.

A Spreigl analysis is required to determine whether joinder of unrelated offenses was prejudicially erroneous. Profit, 591 N.W.2d at 460-61 (stating that analysis for Spreigl evidence is useful framework for evaluating possible prejudicial effect of improperly joining unrelated offenses); State v. Kates, 610 N.W.2d 629, 631 (Minn.2000) (rejecting harmless error analysis for review of improper joinder of unrelated offenses, citing Profit, as holding that Spreigl analysis is proper framework for evaluating whether such joinder is so prejudicial that reversal is necessary). But there is no authority for the proposition that the propriety of joinder of related offenses must be analyzed on appeal under Spreigl.

We are mindful of this court’s holding that where a defendant has been acquitted of an unrelated criminal charge, the Spreigl test cannot be met as to that charge because it cannot be said that there is clear and convincing evidence that a defendant committed an offense of which he has been acquitted. State v. Kates, 616 N.W.2d 296, 300 (Minn.App.2000), review denied (Minn. Oct. 25, 2000). It would be absurd to conclude that joinder of related offenses is erroneous as a matter of law if a defendant is acquitted of one of the charged offenses. Here, Dick admitted to police of having been present at the unoccupied cabin. He was apprehended in the cabin driveway while the cabin alarm was sounding with items from the Freis’ cabin in his car. We hold that, under the facts of this case, the district court did not abuse its discretion by denying Dick’s motion to sever the related burglary charges for trial.

2. Failure to instruct jury to consider charges separately

Dick correctly argues that the district court erred by failing to instruct the jury that each charge must be considered separately. See Kates, 610 N.W.2d at 631 (requiring that for trial of all offenses joined under Minn. R.Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately). Dick did not object to the jury instructions. Generally, failure to object to jury instructions before they are submitted to the jury results in a waiver of the right to raise the issue on appeal. State v. Richardson, 633 N.W.2d 879, 885 (Minn.App.2001).

This court may review “unob-jected-to jury instructions ‘if the instructions contain plain error affecting substantial rights or an error of fundamental law.’ ” Id. (quotation omitted). But a new trial for error in jury instructions is not required if the error was harmless. Id. By acquitting Dick of one charge, the jury demonstrated that it clearly understood that the charges should be considered separately. Therefore, in this case, failure to give the required instruction was harmless error.

II. Sufficiency of evidence of terroristic threats

In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn.1994) (citations omitted). “"While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.” State v. Bauer, 598 N.W.2d 352, 370 (Minn.1999) (citation omitted). The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. Jones, 516 N.W.2d at 549. A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.

A person is guilty of terroristic threats if he

[threatens * * * to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror * * *.

Minn.Stat. § 609.713, subd. 1 (2000). Dick contends that he was making drunken threats without “conscious effort to have his threats taken seriously.” He argues his conduct may have risen to the level of disorderly conduct but not terroristic threats. The district court appropriately instructed the jury that voluntary intoxication is not a defense to a crime but that the jury should consider whether the defendant was capable of forming the required intent. 10 Minnesota Practice, CRIMJIG 7.03 (1999); see also State v. Torres, 632 N.W.2d 609, 617 (Minn.2001) (stating that “the possibility of intoxication does not create the presumption that a defendant is thereby rendered incapable of intending to do a certain act” (citation omitted)). Dick’s contention that he lacked the requisite intent to commit ter-roristic threats because he was intoxicated was clearly rejected by the jury. According to the testimony, Dick threatened to kill the officers, to “find out where [the officers lived],” and to “skin” an officer. Dick was rageful. He spit at an officer and tried to bite and kick an officer. A reasonable jury could conclude, based on the testimony of the officers, that Dick’s threats satisfied the elements of the charge.

III. Failure to instruct on transitory anger

Dick argues that the district court abused its discretion by refusing to give his proposed instruction that

[t]he terroristic threat statute was not intended to penalize verbal threats expressing transitory anger. Transitory anger is short-hved anger that by its nature is not intended to terrorize.

The district court reasoned that the standard jury instruction on terroristic threats was sufficient. We agree. Although the charge of terroristic threats is not meant to encompass verbal threats expressing transitory anger without intent to terrorize, there is no authority for Dick’s contention that failure to include that language in a jury instruction is reversible error. See State v. Jones, 451 N.W.2d 55, 63 (Minn.App.1990), review denied (Minn. Feb. 21, 1990). The district court properly instructed the jury on the elements of ter-roristic threats, including instructions on the meaning of “intent” and “reckless disregard” and permitted Dick’s counsel to argue transitory anger. The court did not abuse its discretion by denying the proposed instruction on transitory anger. See State v. Lavastida, 366 N.W.2d 677, 680 (Minn.App.1985) (holding that instructions for terroristic threats were proper even though the court failed to instruct on transitory anger).

IV. Sentencing

Dick agrees that the Minnesota Sentencing Guidelines permit imposition of consecutive sentences for multiple felony convictions for crimes against persons, but argues that imposition of consecutive sentences in this case unfairly exaggerates the criminality of his acts and constitutes an abuse of discretion. See State v. Goulette, 442 N.W.2d 793, 794 (Minn.1989) (noting multiple victim exception permits consecutive sentencing without citing aggravating circumstances unless it would unfairly exaggerate criminality of defendant’s conduct). Specifically, Dick argues that his. extreme intoxication at the time of his crimes mitigates the seriousness of his offenses.

A reviewing court determines whether consecutive sentencing exaggerates criminality by examining sentences in similar cases. State v. Lee, 491 N.W.2d 895, 902 (Minn.1992). We are not persuaded that the district court abused its discretion or unfairly exaggerated Dick’s criminality by imposing consecutive sentences in this case and we reject the argument that intoxication is a mitigating factor.

V. Issues raised in pro se brief

The district court declined to address issues raised by Dick in his untimely motion for a new trial. Dick raises those issues in his pro se brief on appeal, arguing that he is entitled to a new trial or a reduction in sentence based on the interests of justice, alleged misconduct of the prosecutor, alleged irregularity in the proceedings, alleged undisclosed “newly discovered evidence,” alleged Miranda violations and alleged destruction of evidence. Our careful review of the record leads us to conclude that none of these claims have merit.

DECISION

The district court did not abuse its discretion by (1) refusing to sever the two counts of burglary against Dick; (2) refusing to instruct the jury on transitory anger; and (3) imposing consecutive sentences on Dick for his convictions. The state presented sufficient evidence at trial such that a reasonable jury could find that Dick committed the crime of terroristic threats. Dick’s pro se arguments are without merit.

Affirmed.


author: HANSON, Judge.

text:
    Jackie LENNARTSON, Respondent, v. ANOKA-HENNEPIN INDEPENDENT SCHOOL DISTRICT 11, Appellant.
    No. C6-01-1278.
    Court of Appeals of Minnesota.
    Feb. 5, 2002.

      Eric D. Satre, Connor, Satre & Schaff, L.L.P., Minneapolis; and Lawrence R. Altman, Minneapolis, for respondent.
    Eric J. Magnuson, Patrick J. Sauter, Peter D. Gray, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, for appellant.
    Considered and decided by HANSON, Presiding Judge, TOUSSAINT, Judge, and FOLEY, Judge.

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

   OPINION

HANSON, Judge.

In the underlying action, respondent sued her former employer for sexual discrimination. After the law firm representing respondent withdrew, the law firm for the former employer hired a lawyer who had been an associate in the law firm that formerly represented respondent, and then established an ethical wall between that lawyer and the lawyers representing the employer. Respondent moved to disqualify the law firm from representing the employer. The district court granted the motion, applying its interpretation of Rule 1.10(b) of the Minnesota Rules of Professional Conduct. Appellant argues the district court used an incorrect test for disqualification and, under the proper test, disqualification is not warranted. We reverse and remand.

FACTS

Respondent Jackie Lennartson brought a sex-discrimination claim against appellant Anoka-Hennepin Independent School District 11 (School District). Lennartson retained Gregg Corwin of the law firm Gregg M. Corwin Associates Law Office, P.C. (Corwin Associates) to represent her, and the School District retained Rider, Bennett, Egan & Arundel, L.L.P. (Rider Bennett).

Corwin Associates employed lawyer Susanne Fischer, an associate, who took one deposition in connection with Lennartson’s sex-discrimination claim. In preparation for that deposition, Fischer reviewed Len-nartson’s file and discussed it with Corwin.

Shortly after Fischer took the deposition, Corwin Associates withdrew from representing Lennartson. Fischer then left Corwin Associates and began working for Rider Bennett. Before joining Rider Bennett, Fischer completed a conflicts and screening report in which she reported her involvement in the Lennartson case. Rider Bennett erected an ethical wall to ensure that Fischer would have no discussion concerning the Lennartson matter with the lawyers representing the School District. Approximately one month after hiring Fischer, Rider Bennett notified Len-nartson that it had hired Fischer.

Lennartson wrote to the district court (1) informing it that she had been unable to secure new representation, and (2) arguing that Rider Bennett should be disqualified from representing the School District because it had hired Fischer. The district court construed Lennartson’s letter as a motion to disqualify Rider Bennett. After a hearing, the district granted Lennart-son’s motion, ordered the School District to retain new counsel, and continued the trial for six months to allow new counsel to prepare for trial. This appeal followed.

ISSUE

Did the district court err when it disqualified Rider Bennett as the School District’s legal counsel?

ANALYSIS

A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Also, an appellate court independently reviews the district court’s interpretation of the Minnesota Rules of Professional Conduct. Prod. Credit Ass’n v. Buckentin, 410 N.W.2d 820, 823 (Minn.1987) (stating that to ensure uniform application, the reviewing court must retain the final, independent interpretive authority to define the scope and application of those rules).

The School District argues that the district court erred by disqualifying Rider Bennett based solely on its interpretation of Rule 1.10(b) of the Minnesota Rules of Professional Conduct. The School District asserts that the district court instead should have followed the three-part balancing test set forth by the Minnesota Supreme Court in Jenson v. Touche Ross & Co., 335 N.W.2d 720, 731-32 (Minn.1983). Conversely, Lennartson argues that the district court properly relied on the test set forth by Rule 1.10(b), because the Minnesota Supreme Court’s adoption of Rule 1.10 impliedly superceded the test for disqualification set forth in Jenson.

We begin with an assessment of the continued viability of the three-part test for disqualification set forth in Jenson, in light of the promulgation of the Rules of Professional Conduct two years later. Next, we analyze the present facts under the Jenson factors. Finally, we examine the present facts under Rule 1.10(b).

I

In 1983, the Minnesota Supreme Court addressed the question of disqualification in a situation in which Lawyer at Firm # 1, who represented Client # 1, later moved to Firm # 2, which represented Client # 2, a party adverse to Client # 1 in the same matter. Jenson, 335 N.W.2d at 730. Client # 1 moved to disqualify Lawyer’s associates and partners at Firm # 2 from representing Client #2. Id. The motion was based on the then effective Code of Professional Responsibility. Id. Client # 1 alleged violations of Canons 4 (protecting client confidences), 5 (independent professional judgment), and 9 (avoiding the appearance of professional impropriety). Id.

The court recognized that the Code of Professional Responsibility addressed the relationship between Lawyer and Client # 1, but did not address the rights of Client #2 to select its own lawyer, to proceed to trial without undue delay, and to avoid economic hardship. Id. at 731. The court determined that when a motion is made to disqualify Client # 2’s chosen lawyer, the court cannot look solely to the canons, but must follow an approach that also considers the rights of Client # 2. Id. at 731-732. The court therefore adopted a three-step approach to disqualification issues:

(a) Considering the facts and the issues involved, is there a substantial, relevant relationship or overlap between the subject matters of the two representations?
(b) If so, then certain presumptions apply: First, it is presumed, irrebuttably, that the attorney received confidences from the former client * * *. Second, it is also presumed, but subject to rebuttal, that these confidences were conveyed to the attorney’s affiliates.
(c) Finally, at this stage, if reached, the court weighs the competing equities.

Id. at 731-32 (citations omitted).

Two years after issuing its decision in Jenson, the Minnesota Supreme Court adopted the Minnesota Rules of Professional Conduct to replace the Minnesota Code of Professional Responsibility. Rule 1.10(b) provides as follows:

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) unless there is no reasonably apparent risk that confidential information of the previously represented client will be used with material adverse effect on that client because:
(1) any confidential information communicated to the lawyer is unlikely to be significant in the subsequent matter;
(2) the lawyer is subject to screening measures adequate to prevent disclosure of the confidential information and to prevent involvement by that lawyer in the representation; and
(3) timely and adequate notice of the screening has been provided to all affected clients.

Minn. R. Prof. Conduct 1.10(b).

Lennartson argues that Rule 1.10(b) su-perceded Jenson and eliminated any weighing of equities. In fact, Lennartson argues, and the district court agreed, that Rule 1.10(b) requires disqualification if any one of the three factors cannot be met. We will discuss below our interpretation of Rule 1.10(b), but will consider first whether the district court erred by not following Jenson, even if we assume that Rule 1.10(b) was violated.

We observe, first, that there is nothing in the Rules that explicitly states an intent to supercede Jenson. Further, the supreme court has continued to cite Jenson with approval even after it adopted the Rules. See, e.g., Buysse v. Baumann-Furrie & Co., 448 N.W.2d 865, 868-69 (Minn.1989) (stating that Jenson provided a well-defined approach to the question of disqualification); Prod. Credit Ass’n, 410 N.W.2d at 823-25 (citing Jenson when considering whether the subject matters of two representations were substantially related); Humphrey ex rel. State v. McLaren, 402 N.W.2d 535, 543 (Minn.1987) (citing Jenson for a flexible test for disqualification for a ‘substantial relationship’ between a current and prior client representation.).

As an error-correcting court, we are bound to follow the supreme court’s precedent. Despite the adoption of the Rules in 1985, the supreme court has given no indication of an intent to overrule Jenson. Moreover, the rationale in Jenson, that the former Code of Professional Responsibility did not address all interests raised in a motion to disqualify a client’s chosen counsel, applies equally to the present Rules of Professional Conduct. Thus, until the supreme court indicates otherwise, the balancing test for disqualification set forth in Jenson is controlling.

II

According to the facts presented, the Jenson test does not require Rider Bennett’s disqualification.

Substantial, Relevant Relationship

The School District concedes that, because Fischer reviewed Lennartson’s file and conducted a deposition on Len-nartson’s behalf in the same matter, a substantial relevant relationship or overlap between the subject matter of the two representations exists. See Jenson, 335 N.W.2d at 731.

Communication of Confidences

As to the communication of confidences, the presumption that Fischer received confidences from Lennartson is irrebuttable under Jenson. But, the presumption that Fischer conveyed these confidences to the School District can be rebutted. And, according to the district court’s findings, it was effectively rebutted because [n]o evidence exists that client secrets or other information has been shared by Ms. Fischer with other Rider, Bennett attorneys.

This finding was supported by the evidence that (1) Fischer did not communicate any client confidences to Rider Bennett; (2) Fischer is one of 140 lawyers at Rider Bennett and she and her staff work on a different floor than the School District’s lawyers and their staff; (3) Fischer and the School District’s lawyers do not share support staff or storage areas; (4) Rider Bennett placed all the files relating to the Lennartson matter in a storage cabinet inside the office of one of the School District’s lawyers; (5) Rider Bennett instructed Fischer and her staff to have no contact with the Lennartson files and not to discuss the matter with lawyers or staff involved in the School District’s defense; and (6) Rider Bennett instructed the School District’s lawyers and their staff that they must not discuss the Len-nartson matter with Fischer or her staff.

Based on the district court’s findings, which are not clearly erroneous, we conclude that Rider Bennett rebutted the presumption that Fischer conveyed confidences obtained from Lennartson to Rider Bennett.

Balancing the Equities

Jenson instructs the court to weigh the competing equities. At the disqualification hearing, the district court identified the following equities:

1. The delay a disqualification would create for the School District, because it would have to hire new counsel, and the new counsel would need time to prepare;
2. The additional cost the School District would incur by hiring new counsel who would have to learn the entire case;
3. Lennartson’s perception that Fischer’s employment with Rider Bennett would place her at a disadvantage;
4. Lennartson’s desire to delay the trial to allow her additional time to obtain representation;
5. Repeated continuances result in denying other litigants the right to have their cases heard promptly; and
6. The public’s perception that the adversary system works and that a lawyer who represents them will do so with complete devotion.

An additional equity is the School District’s right to be represented by the attorney of its choice. See In re Estate of Janecek, 610 N.W.2d 638, 642 (Minn.2000) (stating that a party has a substantial right to be represented by its attorney of choice).

Only two of the equities (Lennartson’s perception that she would be disadvantaged and the public’s perception of lawyer devotion) even arguably weigh in favor of Rider Bennett’s disqualification. Those equities were not considered sufficient to require disqualifications in Jenson, and they are likewise insufficient here.

III

The discussion above assumes that Rule 1.10(b) was violated under the facts of this case. But we conclude otherwise, and this provides an alternative basis for our decision.

In the memorandum attached to its disqualification order, the district court determined that Rule 1.10(b) was conjunctive; that is, each of the three factors must be satisfied. Thus, the district court would read Rule 1.10(b) to require that the lawyer establish that (1) the information communicated by the Client is unlikely to be significant in a later matter; and (2) an ethical wall was erected; and (3) notice was given. The district court concluded that Rider Bennett failed the first factor of the conjunctive test, thereby faffing the entire test.

While we agree that the format of Rule 1.10(b) is one that is typically associated with a conjunctive rule, we interpret the rule to be conjunctive in part and disjunctive in part. The district court’s interpretation would deprive the second factor, the erection of an ethical wall, of any meaning or function. This is because, if the information communicated is not significant, there would be no need for an ethical wall, and if the information communicated is significant, the erection of an ethical wall would be deemed unavailing. In order to give any meaning to the ethical wall factor, it is necessary to conclude that the rule was intended to be both conjunctive and disjunctive; that is, (1) either the information communicated is unlikely to be significant or (2) an ethical wall must be erected and (3) appropriate notice must be given.

Here, the parties agree that the information obtained by Fischer is likely to be significant. Thus, Rule 1.10(b) required that Rider Bennett erect an ethical wall and notify Lennartson that it had hired Fischer. Rider Bennett did erect an ethical wall, the effectiveness of which is not challenged, and Rider Bennett did give notice. Accordingly, we conclude that Rule 1.10(b) was not violated.

DECISION

Because the Jenson test for disqualification is controlling law, and an analysis under Jenson does not require Rider Bennett’s disqualification, we reverse the disqualification order and remand for trial.

Reversed and remanded.


text:
    STATE of Minnesota, Respondent, v. John XIONG, Appellant.
    No. C3-01-1173.
    Court of Appeals of Minnesota.
    Feb. 5, 2002.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, for respondent.
    John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by HANSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

HANSON, Judge.

This appeal arises from an order revoking appellant’s probation for his conviction as a felon in possession of a firearm. Appellant argues that the district court erred by revoking his probation because the state failed to present clear and convincing evidence that he violated the conditions of his probation; he did not receive notice that failure to maintain contact with his probation officer would be presented as one of the grounds for revocation; and he received ineffective assistance of counsel. We affirm.

FACTS

Appellant John Xiong was charged with possession of a firearm by an ineligible person under Minn.Stat. § 624.713, subd. 1(b) (1998). He pleaded guilty to the charge and was sentenced to 60 months in prison. The district court stayed execution of the sentence and placed him on 15-years probation. The conditions of Xiong’s probation included the requirements that he report to his probation officer as directed, obey all laws, and have no contact with gang members.

Approximately three months after Xiong’s sentencing, his probation officer reported that Xiong had violated his probation by using cocaine, and recommended that the court revoke his probation. At the probation-revocation hearing, the district court noted that at the time of his arrest, Xiong was in the company of gang members — a second violation. Xiong admitted both violations and the district court found Xiong in violation of his probation. The district court ordered Xiong to serve four months in the workhouse, but otherwise continued his probation on the original terms and conditions.

The following year, Xiong’s probation officer reported that Xiong had violated his probation again, and once more recommended that the district court vacate the stay of execution. This time, the probation officer alleged that Xiong failed to report an arrest to his probation officer, used intoxicants, and had contact with gang members.

Approximately eight months later, Xiong was arrested on the probation-violation warrant. At the probation-revocation hearing, Xiong was represented by counsel, who stated:

Counsel: Your Honor, I have advised my client that he’s entitled to a contested hearing. My client has informed me that it is not his desire to have that contested hearing but [he] does have an explanation. Is that correct, Mr. Xiong?
Xiong: Yes.

.. The district court then asked Xiong some limited questions. Xiong admitted that he did not report his arrest to his probation officer. He also admitted that he had been using cocaine and marijuana in connection with the first notice of alleged probation violation, but did not address any use of intoxicants in connection with the second notice. Finally, he admitted that he was at his girlfriend’s house when a gang member arrived. He was allowed to explain that he did not intend to have contact with the gang member. He stated:

Your Honor, I had no intention of having people come over there to my girlfriend’s house. She has brothers too, you know. It’s not like I called them to come over there. I just went there to pick up my girl and take her to work. I was only there for what, ten minutes, five minutes. The friends that you violated me for, he was only there a couple of minutes, a couple of seconds. He stopped and he left.

Xiong’s probation officer summarized the violations and stated:

On top of the violation, that is Mr. Xiong has just admitted to an aggravating factor which would be that I haven’t seen him in the last 8 months. He failed to report to me after the last violation. His whereabouts were unknown until this week. He was picked up by the St. Paul Police Department. They pulled him over. He got out and attempted to flee until he was finally apprehended.

Xiong’s counsel also stated: “He’s also supposed to have contact with [h]is [probation officer]. He did not do that.”

The district court then made the following oral findings:

I find that you’re in violation of the terms and conditions of probation imposed by this Court * * * in that you failed to report an arrest to your probation officer. You failed to abstain from intoxicants. You failed to avoid contact with known gang members. You failed to maintain regular contact with your probation officer as you were supposed to. I find the violations were intentional and inexcusable.
I also find in your case that the policy in favor of probation is outweighed by the need for incarceration in your case.

The district court revoked Xiong’s probation and executed his original 60 month sentence. This appeal followed.

ISSUES

I. Was the state obligated to prove the alleged probation violations by clear and convincing evidence after Xiong waived a “contested hearing?”
II. Did the district court err by considering Xiong’s failure to maintain regular contact with his probation officer, when that conduct was not specified in the notice as a probation violation?
III. Did Xiong receive ineffective assistance of counsel?

ANALYSIS

I

Xiong argues that the district court erred when it found Xiong in violation of his probation because (1) the state failed to present clear and convincing evidence of the first two alleged violations — failure to report an arrest and use of intoxicants; and (2) the state failed to prove that the third alleged violation — contact with a gang member — was intentional and inexcusable.

Rule 27.04 of the Minnesota Rules of Criminal Procedure provides the procedural framework for probation revocation. Subdivision 2 requires that the probationer be advised of the violation charged and of the following information concerning a revocation hearing:

b. That unless waived, a revocation hearing will be held to determine whether there is clear and convincing evidence that the probationer has violated any conditions of probation and that probation should therefore be revoked;
d. That at the hearing both the prosecution and the probationer shall have the right to offer evidence, present arguments, subpoena witnesses, and call and cross-examine witnesses, provided, however, that the probationer may be denied confrontation by the court when good cause is shown that a substantial risk of serious harm to others would exist if it were allowed. Additionally, the probationer shall have the right at the revocation hearing to present mitigating circumstances or other reasons why the violation, if proved, should not result in revocation.

Minn. R.Crim. P. 27.04, subd. 2(l)b, d.

Subdivision 3 describes the revocation hearing and states:

(3) Finding of Violation of Conditions of Probation. If the court finds upon clear and convincing evidence that any conditions of probation have been violated, or if the probationer admits the violation, the court may proceed as follows:
b. Execution of Sentence. If execution of sentence initially imposed was stayed and probationer placed on probation, the court may continue the stay and place the probationer on probation in accordance with the provisions of Minn.Stat. § 609.135, or order execution of the sentence previously imposed.

Minn. R.Crim. P. 27.04, subd. 3(3)b; see also Minn,Stat. § 609.14, subd. 3(2) (2000) (stating that the district court may order execution of a sentence previously imposed and stayed if it finds the probationer has violated the terms of probation).

Before the district court can revoke probation, it must (1) specify what condition or conditions the probationer violated, (2)find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn.1980).

Clear and Convincing Evidence

Xiong argues that the district court erred by revoking his probation because the state failed to prove the alleged violations by clear and convincing evidence. Xiong’s argument is misplaced. After Xiong waived a contested hearing, the state was no longer required to present clear and convincing evidence of the violations.

Although counsel’s statement that Xiong waived a “contested hearing” is not ideally precise, and the district court might have sought clarification, the only reasonable interpretation to give that statement was that Xiong intended to waive the right to participate in the first part of a two-part revocation hearing. The first part involves an evidentiary hearing where both the prosecution and probationer may offer evidence to prove or disprove the alleged violations. See Minn. R.Crim. P. 27.04, subd. 2(l)b, d. The second part allows the probationer to present mitigating circumstances or other reasons why the violation, once proved or admitted, should not result in revocation. See Minn. R.Crim. P. 27.04, subd. 2(l)d. When a probationer waives the first part of a revocation hearing, the state is no longer obliged to present evidence to prove the violations, and the district court may base its finding on the violation report and the probationer’s waiver, which serves as a stipulation to the state’s allegations in the violation report. See Minn. R.Crim. P. 27.04, subd. 3(3)b.

When Xiong waived a contested hearing, he waived the requirement under the rule that the state present clear and convincing evidence of the alleged violations.

Intentional and Inexcusable Contact

Xiong argues that the district court erred by finding that his contact with a gang member was intentional and inexcusable. Although Xiong waived the first part of the two-part revocation hearing, he reserved the right to present mitigating circumstances in the second part of the hearing. See Minn. R.Crim. P. 27.04, subd. 2(l)b, d. The district court allowed Xiong to provide his explanation and to argue that his contact with a gang member was inadvertent, not initiated by him and, thus, not intentional but excusable. The district court listened to Xiong’s explanation but did not find it persuasive.

In light of the warnings the district court gave Xiong at the time of the original sentence, and reiterated when he was first cited for probation violations, it was clear that Xiong was expected to avoid any gang contact whatsoever. The court acted within its discretion by finding that Xiong’s presence at his girlfriend’s home, where he could expect gang members to visit, was an intentional and inexcusable violation of the condition of his probation.

II

Xiong argues that the district court erred by considering his failure to maintain contact with his probation officer because the notice of alleged violations did not identify this conduct as a violation.

While the district court found that Xiong had failed to maintain regular contact with his probation officer, it does not appear that the district court treated this finding as a separate probation violation. Xiong’s probation officer only referred to this conduct as an “aggravating factor.” Xiong’s counsel did not challenge that statement; to the contrary, he acknowledged that Xiong was “supposed to have contact with his [probation officer]. He did not do that.”

III

In his pro se brief, Xiong argues that he received ineffective assistance of counsel because his attorney (1) failed to adequately explain the implications of waiving his right to a “contested hearing,” (2) failed to provide an interpreter, (3) failed to inform Xiong he could offer corroborating testimony or documentation, and (4) maintained a negative attitude.

To prevail on a claim of ineffective assistance of counsel a claimant

must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

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)) (citation omitted).

Xiong does not elaborate on his assertions, makes no reference to the record, and cites no authority. Accordingly, we decline to reach the merits of this issue and Xiong’s right to pursue it in a petition for postconviction relief is preserved. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn.2000) (holding that a claimant should raise an ineffective assistance of counsel claim in a postconviction proceeding rather than on direct appeal).

DECISION

The district court did not abuse its discretion when it revoked Xiong’s probation based on the violation report and Xiong’s waiver of a contested hearing.

Affirmed.


text:
    2002 ND 12
    In The Matter of The JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 2 With Chambers in Minot, North Dakota, Northwest Judicial District.
    No. 20020004.
    Supreme Court of North Dakota.
    Jan. 15, 2002.
   ORDER

[¶ 1] On January 3, 2002, the Supreme Court received notification the Honorable Everett Neis Olson, Judge of the District Court with chambers in Minot, Northwest Judicial District, would not seek reelection when his term expired at the end of this year. Judge Olson's declaration that he does not intend to seek reelection to Judgeship No. 2 created a judicial vacancy under Section 27-05-02.1(4), N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy be filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] In October and November, 2001, this Court had occasion to receive and review testimony on judicial service needs, population and caseload trends, and other criteria identified in Administrative Rule 7.2, Section 4, in the Northwest Judicial District. This review and the associated consultation were conducted in light of the untimely death of the Honorable Glenn Dill, III, who held Judgeship No. 6, with chambers at Minot, in the Northwest Judicial District. See In the Matter of the Judicial Vacancy In District Judgeship No. 6, with Chambers In Minot, North Dakota, Northwest Judicial District, 637 N.W.2d 3, 2001 ND 199.

[¶ 4] We take judicial notice of the information contained in that file, including information resulting from the consultation with judges and lawyers of the Northwest Judicial District. An additional hearing was not conducted in Minot concerning the vacancy in Judgeship No. 2. For purposes of the consultation provided for under Section 27-05-02.1(4), N.D.C.C., the November 27, 2001, consultation with lawyers and judges of the district is sufficient for determining the disposition of this vacancy. See e.g., In the Matter of the Judicial Vacancy In District Judgeship No. 2, with Chambers In Grand Forks, North Dakota, Northeast Central Judicial District, 606 N.W.2d 907, 2000 ND 35.

[¶ 5] We have reviewed whether the transfer of the vacant office to another judicial district is warranted in light of the information received.

• [¶ 6] This order is based on the determination that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 2 at Minot in the Northwest Judicial District be filled; that an election for this office be held; and that this office appear on the 2002 primary and general election ballots in North Dakota.

[¶ 8] Dated at Bismarck, North Dakota, this 15th day of January, 2002.

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


author: MARING, Justice.

text:
    2002 ND 14
    STATE of North Dakota, Plaintiff and Appellant v. Stephen Andrew PERREAULT, Defendant and Appellee.
    No. 20010180.
    Supreme Court of North Dakota.
    Jan. 18, 2002.

      Mark R. Boening, Assistant State’s Attorney, Cass County Courthouse, Fargo, for plaintiff and appellant.
    Dennis D. Fisher, Stefanson, Plambeck, Foss & Fisher, Moorhead, MN, for defendant and appellee.
   MARING, Justice.

[¶ 1] The State appeals from a memorandum and order dated June 21, 2001, which dismissed an information charging Stephen Perreault with theft. We reverse and remand for further proceedings.

I

[¶ 2] Stephen Perreault, Michael Howard, and Roger Nelson were principals in a business known as Great Marketing Ideas, LLC (“Great Marketing”). Howard and Nelson were the primary investors in the company, while Perreault was responsible for the daily operation of Great Marketing. To further their business ventures, Great Marketing obtained a $400,000 line of credit from Union State Bank of Fargo, North Dakota.

[¶ 3] In September of 2000, Howard and Nelson suspected Perreault of writing checks against the line of credit for personal debts he incurred prior to his going into business with Howard and Nelson. After Howard and Nelson discovered the draws made by Perreault, Perreault began negotiating to buy out Howard’s and Nelson’s shares of Great Marketing. The parties discussed a tentative purchase price, but no agreement was ever reached. Howard then contacted Detective Tammy Lynck of the Fargo Police Department and told her he suspected Perreault of embezzlement. Detective Lynck investigated the matter and obtained a search warrant. Subsequent to the search of his apartment, Perreault was arrested and charged with theft.

[¶ 4] After his arrest, Perreault filed a motion for return of property. In an affidavit in support of his motion, Perreault did not dispute that he wrote checks for personal debts on Great Marketing’s line of credit, rather, he contended he was authorized to write these checks as a draw against his share of the future profits of Great Marketing. A hearing on the motion was held on November 8, 2000, but was continued to November 22, 2000. The trial court characterized the November 22 hearing as an “Omnibus Hearing” where it intended to address a number of issues. The first issue the trial court intended to address was the motion for return of property. Second, the court intended to address the validity of the search warrant under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The final purpose of the hearing was to serve as a preliminary hearing to determine whether probable cause existed to believe Perreault committed the crime charged. The hearing was continued until December 8, 2000. At the close of the hearing, the trial court called for post-trial briefs addressing the good-faith exception to the warrant requirement under U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), probable cause issues, and civil dispute doctrine issues.

[¶ 5] On June 21, 2001, the trial court issued a memorandum and order dismissing the charges against Perreault. In its memorandum, the trial court found Detective Lynck’s investigation “lacking in some basic ways.” As a result, the court found the magistrate who issued the search warrant “was kept in the dark as to the actual nature of the dispute between the parties.” Thus, the court concluded there were substantial questions regarding the validity of the search warrant. However, the trial court did not resolve the search warrant issues, nor did it determine whether probable cause existed to believe Perreault committed the crime charged. Rather, the trial court dismissed the information charging Perreault with theft because it concluded the charges were an attempt by Howard and Nelson to enforce a civil claim against Perreault in a criminal prosecution. The State filed its appeal from the order dismissing the information on July 17, 2001.

II

[¶ 6] In reviewing an appeal from a dismissal of an information at a preliminary hearing, we will not reverse a trial court’s findings of fact if “after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the findings and if the trial court’s decision is not contrary to the manifest weight of the evidence.” State v. Berger, 2001 ND 44, ¶ 11, 623 N.W.2d 25. We apply this deferential standard of review because the trial court has the best opportunity to observe and assess credibility of witnesses. Id. However, questions of law decided at a preliminary hearing are fully renewable. State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996).

III

[¶ 7] Rule 12(b), N.D.R.Crim.P., provides in part, “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.”

[T]he purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered. The court is obliged to confine itself to the face of the information. Further, for purposes of the motion, all well-pleaded facts are taken to be true.

State v. Howe, 247 N.W.2d 647, 652 (N.D.1976) (citation omitted). The trial court dismissed the information in this case based on what it termed the “Civil Dispute Doctrine” of State v. Brakke, 474 N.W.2d 878 (N.D.1991).

[¶ 8] In Brakke, Ronald Brakke was convicted of theft for harvesting crops on property owned by a bank. Id. at 880. Brakke had planted the crops on the property in the spring of 1989. Id. at 879. It was after the crops were planted, that half of the property was awarded to the bank through a partition judgment. Id. The other half of the property was awarded to Alice Brakke, Ronald’s mother. Id. The judgment, however, was silent regarding disposition of the crops. Id. Thus, a primary issue in Brakke was “whether a co-tenant who plants crops on land which is subsequently lost through partition also loses entitlement to the growing crops.” Id. at 880. At the time Brakke was tried, the issue was one of first impression in North Dakota and had rarely been addressed in other jurisdictions. Id. We concluded a “legitimate dispute” existed over ownership of the crop. Id. at 882. Because Brakke’s conviction for theft turned on the resolution of this unique property law issue, we concluded “[a] criminal theft trial is not the proper vehicle for resolving property law questions of this nature.” Id.

[¶ 9] As authority for our decision in Brakke, we cited State v. Meyer, 361 N.W.2d 221 (N.D.1985). In Meyer, Gary Meyer was charged with obstructing a public road in violation of N.D.C.C. § 24-12-02. Meyer, at 222. There was no dispute that Meyer obstructed the road. Id. Rather, the only dispute was whether the road had become public by virtue of prescription as set forth in N.D.C.C. § 24-07-01. Id. We concluded, where there was a legitimate dispute as to whether a road had become a public road by prescription, the proper procedure is to bring a civil action to have the road declared public, rather than try the issue in the context of a criminal action charging Meyer with obstruction of a public road. Id. at 223. We based this conclusion on the longstanding practice in North Dakota of settling disputes involving prescription of roads through civil litigation. See id. (citing Mohr v. Tescher, 313 N.W.2d 737 (N.D.1981); Backhaus v. Renschler, 304 N.W.2d 87 (N.D.1981); Keidel v. Rask, 290 N.W.2d 255 (N.D.1980); Berger v. Berger, 88 N.W.2d 98 (N.D.1958); Berger v. Morton County, 57 N.D. 305, 221 N.W. 270 (1928)). We reversed the conviction, concluding Meyer could not be convicted of the crime of obstructing a public road when the road wasn’t declared public until the day of conviction. See Meyer, at 222-23.

[¶ 10] Unlike Brakke and Meyer, this case does not present unique property law questions, see Brakke, 474 N.W.2d at 880 (ownership of growing crops on partitioned land), nor does it involve an issue traditionally settled in civil forums, see Meyer, 361 N.W.2d at 223 (prescription of a road). In this case, it is undisputed that Perreault wrote checks on a line of credit belonging to Great Marketing, LLC, for his personal debts. Furthermore, at oral argument before this Court, Perreault conceded he submitted phony invoices to Union State Bank in order obtain the release of these funds from this line of credit.

[¶ 11] Perreault’s contention that he had authority to write checks on the line of credit as a draw on future profits does no more than raise a factual question encompassed in the general issue of whether Perreault is guilty of theft by deception. See N.D.C.C. § 12.1-23-02(2) (defining theft as knowingly obtaining the property of another by deception or by threat with an intent to deprive the owner thereof); see also State v. Heintze, 482 N.W.2d 590, 592 (N.D.1992) (finding sufficient evidence to find defendant guilty of theft despite defendant’s contention he was authorized to transfer property). A trial court does not have authority “to grant a pretrial motion to dismiss based on a defense ‘which raises factual questions embraced in the general issue.’ ” See State v. Kolobakken, 347 N.W.2d 569, 570 (N.D.1984) (quoting United States v. Brown, 481 F.2d 1035, 1041 (8th Cir.1973)). By concluding the dispute over Perreault’s authority to write checks for personal matters on the line of credit was a matter for civil rather than criminal proceedings, the trial court essentially determined there was insufficient evidence to find that Per-reault’s actions were unauthorized. See State v. Trosen, 547 N.W.2d 735, 738 (N.D.1996) (stating that the argument that a matter is civil rather than criminal is closely related to the argument that there is insufficient evidence to support the jury’s verdict). Insufficiency of evidence is not a proper basis for a pretrial dismissal of an information. See State v. O’Boyle, 356 N.W.2d 122, 124-25 (N.D.1984). A motion to dismiss tests the sufficiency of the information, but does not serve as a device for summary trial of the evidence. See Howe, 247 N.W.2d at 652. Facts that do not appear on the face of the information cannot be considered. See id. The jury, as the trier of fact, is entitled to decide whether Perreault exceeded his authority when he presented phony invoices and transferred funds from the line of credit to pay personal debts. See Kolobakken, 347 N.W.2d at 570-71.

[¶ 12] Although the trial court intended the November 22 hearing to also serve as a preliminary hearing on probable cause, a probable cause hearing is not a substitute for a trial on the merits. See State v. Foley, 2000 ND 91, ¶ 7, 610 N.W.2d 49. Rule 5.1, N.D.R.CrimP., provides for a preliminary hearing to determine if there is probable cause to believe the accused committed a crime. See Walker v. Schneider, 477 N.W.2d 167, 172 (N.D.1991). Under Rule 5.1, N.D.R.Crim. P., a trial court must discharge a defendant after a preliminary hearing “if it appeal's either a public offense has not been committed, or there is not sufficient cause to believe the defendant guilty of the offense.” State v. Serr, 1998 ND 66, ¶ 10, 575 N.W.2d 896. The standard of probable cause applicable at a preliminary hearing is the same standard of probable cause needed for a valid arrest. See State v. Morrissey, 295 N.W.2d 307, 311 (N.D.1980). Thus, in order to satisfy the probable cause standard of a preliminary hearing, the State is not required to prove beyond a reasonable doubt that a crime occurred, rather “it is only necessary for the State to produce sufficient evidence ‘to satisfy the examining magistrate that a crime has been committed and that the accused is probably guilty.’” See Foley, at ¶ 8 (quoting Serr, at ¶ 10). The trial court never reached the issue of whether there is probable cause to believe Per-reault is guilty of theft. See Foley, at ¶ 11 (remanding for a probable cause determination when the order dismissing the charges against the defendant did not indicate the trial court disbelieved the State’s evidence of probable cause).

IV

[¶ 13] We, therefore, reverse the dismissal of the charges against Perreault and remand for a determination of probable cause. On remand, the trial court is also free to consider the Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) issue which was raised, but not resolved in its memorandum and order.

[¶ 14] VANDE WALLE, C.J., NEUMANN, SANDSTROM, JJ„ and JOHN C. McCLINTOCK, Jr., District Judge, concur.

[¶ 15] The Honorable JOHN C. McCLINTOCK, Jr., District Judge, sitting in place of KAPSNER, J., disqualified.


author: KAPSNER, Justice.

text:
    2002 ND 13
    William BENDER, assignee of Basic Concrete, Inc., Plaintiff and Appellant v. AVIKO USA L.L.C.; f/k/a American Prairie Foods, L.L.C., Defendant and Appellee.
    No. 20010162.
    Supreme Court of North Dakota.
    Jan. 18, 2002.
    Rehearing Denied Feb. 26, 2002.

      Jeffrey S. Weikum (argued), Pagel Wei-kum Law Firm, and William Bender (on brief), pro se, Bismarck, for plaintiff and appellant.
    Joseph F. Larson II, Larson Law Firm, Jamestown, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] William Bender appeals a summary judgment voiding his mechanic’s lien. Finding no genuine issue of material fact, we affirm the summary judgment.

I

[¶ 2] In September of 1995, Aviko USA L.L.C. (“Aviko”), then known as American Prairie Food, L.L.C., contracted with Lindberg Brothers, Inc. (“Lindberg”) for the construction of a potato plant in Jamestown. In turn, Lindberg entered into a subcontract with Basic Concrete, Inc. (“Basic Concrete”) for foundation work on the plant. Basic Concrete was to be paid $58,895 for its work.

[¶ 3] After various delays, Basic Concrete submitted a bill for $82,354.58 to Lindberg. Basic Concrete then made a general assignment of all rights to the collection, proceeds, and residue of the bill to Bender. Bender, as assignee, filed a mechanic’s lien on the Aviko property. On July 1, 1998, Bender sued for relief on his mechanic’s lien. In the interim, Aviko and Lindberg entered into a release agreement in which Lindberg agreed Aviko had paid in full for all the work done in connection with the project. Aviko moved for summary judgment, arguing the payment to Lindberg and the release satisfied the mechanic’s lien statutory provision that “[i]f the owner or agent has paid the full price or value of the contribution, no lien is allowed.” N.D.C.C. § 35-27-02. The trial court determined the lien filed by Bender was void, and granted Aviko’s motion for summary judgment. Bender has appealed.

II

[¶ 4] We review this appeal under our standard for summary judgment, which promptly resolves a controversy on the merits without a trial, if the evidence demonstrates the nonexistence of a genuine issue of material fact, or inferences to be drawn from undisputed material, and if the evidence shows a party is entitled to judgment as a matter of law. N.D.R.Civ.P. 56(c); Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. Whether a trial judge properly granted summary judgment is a question of law which we review de novo on the entire record. Fetch, at ¶ 8. The party seeking summary judgment bears the initial burden of showing no genuine dispute regarding a material fact exists. Id. at ¶ 9. We view the evidence in the light most favorable to the party opposing the summary judgment motion. Id. at ¶8. The opposing party, however, may not simply rely on unsupported and conclusory allegations or denials in the pleadings. Instead, the party must set forth specific facts illustrating there is a genuine issue for trial. N.D.R.Civ.P. 56(e).

[¶ 5] In this case the issue is whether Aviko has paid the full price for the work, thereby rendering Bender’s mechanic’s lien void. See Kirkland v. Oberquell, 405 N.W.2d 21, 23 (N.D.1987). In support of its summary judgment motion, Aviko submitted a release agreement in which Lindberg acknowledged Aviko had paid in full for all the work Lindberg was contracted to perform. Also in support of its motion for summary judgment, Aviko submitted an affidavit from C. Alan Lind-berg, president of Lindberg, in which he values Basic Concrete’s contribution and the amount paid by Lindberg to Basic Concrete, and states Basic Concrete had been paid more than the full value of its contribution. Consistent with the release agreement, the affidavit also states Lind-berg has been paid in full under its contract with Aviko.

[¶ 6] In response to Aviko’s motion, Bender has not produced any factual evidence, in affidavit form or otherwise, which disputes these statements. He has not questioned, through evidentiary support of his own, the authenticity of the release agreement and its contents or the statements made in C. Alan Lindberg’s affidavit. Bender has simply maintained he is statutorily entitled to a mechanic’s lien. Bender’s failure to set forth specific facts illustrating the existence of a genuine issue for trial requires the imposition of summary judgment against him.

Ill

[¶ 7] Because Bender was unable to set forth any specific facts illustrating the existence of a genuine issue for trial, and because Aviko is entitled to judgment under N.D.C.C. § 35-27-02 and Kirkland, 405 N.W.2d at 23, the trial court did not err in voiding Bender’s mechanic’s lien. We affirm the summary judgment.

[¶ 8] VANDE WALLE, C.J., MARING, NEUMANN, JJ., and JOHN C. McCLINTOCK, Jr., District Judge, concur.

[¶ 9] The Honorable JOHN C. McCLINTOCK, Jr., District Judge, sitting in place of SANDSTROM, J., disqualified.


author: GORS, Acting Justice.

text:
    2002 SD 1
    Alan C. HANSEN, Sr., Plaintiff and Appellant, v. Steve C. KJELLSEN, In His Individual and Official Capacity, Defendant and Appellee.
    No. 21898.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided Jan. 2, 2002.
    Rehearing Denied Feb. 8, 2002.
    Alan C. Hansen, Sr., South Dakota State Penitentiary, Sioux Falls, South Dakota, Pro Se appellant.
    James C. Roby of Green, Schulz, Roby, Oviatt, Cummings & Linngren Watertown, South Dakota, Attorney for defendant and appellee.
   GORS, Acting Justice.

[¶ 1.] Alan Hansen, Sr. (Hansen) filed a complaint alleging that Steve Kjellsen (Kjellsen), a court services officer, intentionally submitted false information in the presentence report that he had prepared on Hansen’s case. The trial court dismissed Hansen’s complaint, holding that Kjellsen was entitled to absolute judicial immunity. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Hansen pled guilty to two counts of third degree rape and two counts of distributing marijuana to a minor. Hansen’s seventeen-year-old daughter was the victim. Kjellsen is a court services officer in Watertown in the Third Circuit. The trial court ordered Kjellsen to do a pre-sentence investigation and to prepare a presentence report on Hansen. Kjellsen interviewed Hansen, his wife and his daughter and prepared a presentence report. The trial court sentenced Hansen to forty-six years in the state penitentiary.

[¶ 3.] Hansen and his attorney reviewed the presentence report at the sentencing hearing and objected to two points. They objected to Kjellsen’s suggestion in the report that Hansen had threatened or forced his daughter to have sex with him. Hansen denied using threats or force. Hansen also objected to a statement in the report that he had some two hundred incidents of sexual contact with his daughter. He claimed he only had sexual contact with his daughter thirty or forty times. As a result of Kjellsen’s presentence report, Hansen alleged that he was given a longer prison sentence.

[¶ 4.] Hansen served a summons and complaint and moved for equitable relief, including removal of Kjellsen as a court services officer, entry of a restraining order against Kjellsen and convening a grand jury to investigate Hansen’s claims. Kjellsen moved to dismiss for failure to state a claim and interposed absolute judicial immunity and sovereign immunity as defenses. The trial court dismissed for failure to state a claim and absolute judicial immunity. The judgment was filed February 8, 2001.

[¶ 5.] Hansen appeals on several issues. The only issue that will be considered by this Court, however, is whether the trial court erred in affording Kjellsen absolute judicial immunity. We affirm.

STANDARD OF REVIEW

[¶ 6.] This Court’s standard of review of a trial court’s grant or denial of a motion to dismiss is the same standard that is applied upon review of a motion of summary judgment: “is the pleader entitled to judgment as a matter of law?” Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 598 (quoting Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631). We review all facts in a light most favorable to the nonmoving party. Id. In reviewing under this standard, we give no deference to the trial court’s conclusions of law. Peterson v. Hohm, 2000 SD 27, ¶ 8, 607 N.W.2d 8, 11.

ANALYSIS AND DECISION

[¶ 7.] The trial court granted Kjellsen’s absolute judicial immunity as a court services officer preparing a presen-tence report. The presentence report is an integral part of the sentencing process, and in preparing the report the probation officer acts at the direction of the trial court. The presentence investigation contains information about the crime, the defendant’s past criminal history, the defendant’s family history and any other matter that is relevant to sentencing. The only formal requirements for the presentence report are found in SDCL 23A-27-6, which provides the following:

The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

Hearsay may be included, and the report normally includes information from a variety of sources, including family members, law enforcement, employers, and others who know the defendant.

[¶ 8.] The Supreme Court of the United States addressed judicial immunity in Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). In Forrester, the Court adopted a “functional approach” to granting judicial immunity. Under the functional approach, the Court examines the following:

[T]he nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy....

484 U.S. at 224, 108 S.Ct. at 542, 98 L.Ed.2d at 563. The Court acknowledged that there are difficulties attempting to draw the line “between truly judicial acts, for which immunity is appropriate, and acts that simply happened to have been done by judges.” 484 U.S. at 227, 108 S.Ct. at 544, 98 L.Ed.2d at 565. Immunity is only justified by the functions it protects, and not by the person to whom it is attached. Id.

[¶ 9.] The United States Court of Appeals for the Second Circuit has held that federal probation officers who prepare pre-sentence reports for the courts are entitled to absolute immunity from suit. Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir.1987). In Dorman, the defendant, who had been convicted of mail fraud, brought an action against the federal probation officer who prepared his report. The defendant alleged that false statements were included in the presentence report, and that these statements resulted in a more severe criminal sentence than would otherwise have been imposed. The court noted that absolute judicial immunity is rarely granted and the functions to be accorded such immunity are those “integrally related to the judicial process.” Id. at 136. However, the court added federal probation officers to the list of persons granted absolute immunity, finding presentence reports are an important facet and that preparing a report is “an integral part of one of the most critical phases of the judicial process.” Id. at 137.

[¶ 10.] The court in Dorman added, “[w]e see little danger in according federal probation officers absolute immunity for this function, for the presentence report is subject to a number of procedural safeguards designed to protect the defendant’s constitutional right not to be sentenced on the basis of information that is materially false.” Id. at 138. Further, the court stated, “[i]n all the circumstances, we think it clear that the nature of the function performed, the impossibility of guaranteeing the accuracy of the information to be reported, and the routine subjection of the presentence report to adversary review and thence to judicial scrutiny make it appropriate for federal probation officers to be accorded absolute immunity in connection with their preparation and presentation of presentence reports.” Id.

[¶ 11.] South Dakota has similar safeguards. Before sentencing, the court shall disclose the presentence report to the defendant, defense counsel and the prosecutor. SDCL 23A-27-7. Any information disclosed to one side must be disclosed to the other. SDCL 23A-27-9. The court may exclude recommendations and harmful or confidential information, but must disclose a summary of anything considered but not disclosed. SDCL 23A-27-6, 23A-27-8. In either event, the defense has a right to comment on the presentence report and may introduce evidence. The presentence must be retoned to court services after sentencing. SDCL 23A-27-10.

[¶ 12.] Several other federal circuit courts have extended judicial immunity to federal and state probation officers for their conduct in preparing presentence reports. See, e.g., Spaulding v. Nielsen, 599 F.2d 728 (5thCir.1979); Young v. Selsky, 41 F.3d 47 (2dCir.1994); Freeze v. Griffith, 849 F.2d 172 (5thCir.1988); Demoran v. Witt, 781 F.2d 155 (9thCir.1985); Tripati v. U.S.I.N.S., 784 F.2d 345 (10thCir.1986), cert. denied 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 767 (1988); Hughes v. Chesser, 731 F.2d 1489 (11thCir.1984); Burkes v. Callion, 433 F.2d 318 (9thCir.1970), cert. denied 403 U.S. 908, 91 S.Ct. 2217, 29 L.Ed.2d 685; Turner v. Barry, 856 F.2d 1539 (D.C.Cir.1988).

[¶ 13.] South Dakota court services officers perform functions which are very similar, if not identical, to federal probation officers. At the motion hearing, the trial court expressed the following opinion on immunity for court services officers:

the court’s view is that the court service worker is an arm of the [c]ourt, that the court service worker is performing an essential function in the judicial process, that if the [c]ourt doesn’t have some individual assigned to collect information about a defendant’s background for purposes of sentencing the [c]ourt itself would have to do it in one way or another and in assigning a court service worker to do it the [c]ourt is assigning that worker to do a ... judicial function. Given that, it’s the [c]ourt’s conclusion ... that the defendant here was covered by absolute judicial immunity....

The trial court applied the functional approach correctly.

[¶ 14.] Following the same rationale, several state courts have afforded absolute judicial immunity for state probation officers preparing presentence reports. See, e.g., H.B. v. State of Indiana-Elkhart Div. of Family & Children, 713 N.E.2d 300 (Ind.App.1999); Tango by Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182 (1983); Acevedo by Acevedo v. Pima County Adult Probation Dep't, 142 Ariz. 319, 690 P.2d 38 (1984); Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992); Clark v. Eskridge, 77 Ohio App.3d 524, 602 N.E.2d 1228 (1991); Kipp v. Saetre, 454 N.W.2d 639 (Minn.App.1990); Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 647 P.2d 713 (1982).

[¶ 15.] We agree with these courts and hold that a court services officer is entitled to absolute judicial immunity when conducting a presentence investigation and preparing and submitting a presentence report in a criminal case. The sentencing court needs complete and accurate information about an offender who is to be sentenced. To get the necessary information, the court must have a relationship of utmost trust and confidentiality with the court services officer. To assure candor in this relationship and to promote the free flow of information, the court services officer preparing a presentence report “must not be subjected to harassing and vexatious litigation brought by convicted offenders who are predictably unhappy about their sentences.” Schiff v. Dorsey, 877 F.Supp. 73, 77 (D.Conn.1994). Kjellsen is immune from Hansen’s lawsuit. The complaint seeking damages was properly dismissed. We do not need to address Hansen’s other issues. The judgment is affirmed.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

       Other officials who have been afforded judicial immunity include: hearing examiners employed by administrative agencies, see Butz v. Economou, 438 U.S. 478, 516-17, 98 S.Ct. 2894, 2914, 57 L.Ed.2d 895, 922; attorneys in the course of activities "intimately associated with the judicial phase of the judicial process,” see Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128, 143 (1976); and witnesses who testify in judicial proceedings, see Briscoe v. LaHue, 460 U.S. 325, 333-34, 103 S.Ct. 1108, 1112-13, 75 L.Ed.2d 96, 106-07 (1983).