author: PETERSON, Judge. CRIPPEN, Judge

text:
    Pamela Ann DeSALLE, Respondent, v. GIBRALTAR TITLE AGENCY L.L.C., Defendant and Third-Party Plaintiff, Respondent, v. Anthony J. Bolla, et al., Third-Party Defendants, Respondents, Charles Niska, et al., Third-Party Defendant, Appellants.
    No. C6-00-749.
    Court of Appeals of Minnesota.
    Dec. 26, 2000.

      Bradley V. Larson, Metcalf, Larson & Muth, P.A., Monticello, for respondent De-Salle.
    Bradley N. Beisel, Hoeschler & Beisel, L.L.P., Minneapolis, for respondent Gibraltar Title Agency.
    Gerald S. Paulson, Gregory V. Smith & Associates, Monticello, for respondents Bolla.
    Valdis A. Silins, Michael D. Burville, Stephenson & Sanford, P.L.C., Minneapolis, for appellants.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and PETERSON, Judge.
   OPINION

PETERSON, Judge.

This appeal is from a summary judgment that set aside a mortgage foreclosure because the foreclosure proceeding was commenced after the statute of limitations expired. We reverse.

FACTS

On April 30, 1982, respondents Anthony and Virginia Bolla executed a mortgage on their homestead in favor of appellants Charles and Eleanor Niska. The mortgage did not state a specific calendar date upon which the debt secured by the mortgage matured. The mortgage did, however, state:

PROVIDED NEVERTHELESS, That if said mortgagors, their heirs, executors, administrators, or assigns, shall pay to said mortgagees, their assigns, the survivor of them, or the heirs or assigns of the survivor, the sum of Twenty-four Thousand Nine Hundred and no/100 ($24,900.00) Dollars, according to the terms of one principal promissory note of even date herewith, and due and payable
The sum of $269.75 per month (representing interest only) commencing June 1, 1982, and continuing monthly thereafter through April, 1983; The sum of $10,000.00 on May 1, 1983, and the balance of $14,900.00 in monthly installment payments of $185.00 per month commencing June 1, 1983, and continuing monthly thereafter until paid in full. Interest to accrue on the deferred balances from and after May 1, 1982, at the rate of 13% per annum, and the monthly installment payment to be first applied to payment of interest accrued and the balance thereof in reduction of principal.

On October 21, 1996, the Bollas conveyed the property to respondent Pamela Ann DeSalle. DeSalle financed her purchase of the property. Respondent Gibraltar Title Agency handled the closing for DeSalle’s loan, and in its title search, Gibraltar did not detect the mortgage to the Niskas.

On August 16, 1999, the Niskas served on DeSalle a notice of mortgage foreclosure sale. A sheriffs sale was held on October 8, 1999, and title was transferred to the Niskas.

DeSalle brought suit against Gibraltar seeking a judgment in the amount necessary to satisfy the mortgage to the Niskas. Gibraltar then brought a third-party complaint against the Bollas for indemnification and contribution and against the Nis-kas for an accounting. DeSalle moved for summary judgment asking the district court to set aside the Niskas’ mortgage foreclosure because the statute of limitations began to run on the date of the mortgage, and the foreclosure proceeding was not commenced within the 15 year limitation period. The Niskas also moved for summary judgment. They argued that because the maturity date of the debt secured by the mortgage is clearly stated in the mortgage, the statute of limitations did not begin to run on the date of the mortgage and had not expired when they commenced the foreclosure proceeding.

The district court concluded that there was no dispute that the mortgage note does not include a maturity date or that the Niskas failed to commence their foreclosure action within 15 years of the date of the mortgage and granted DeSalle’s motion.

ISSUE

Did the 15-year period during which the Niskas could commence a proceeding to foreclose the mortgage begin to run on the daté of the mortgage?

ANALYSIS

On appeal from summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn.1999). This court must view the evidence in the light most favorable to the nonmoving party. Id. Questions of law, such as questions of statutory construction, are reviewed de novo. Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 702 (Minn.1999).

Minn.Stat. § 541.03 (1998) provides:

Subd. 1. Limitation. No action or proceeding to foreclose a real estate mortgage, whether by action or advertisement or otherwise, shall be maintained unless commenced within 15 years from the maturity of the whole of the debt secured by the mortgage. * * *
Subd. 2. When time begins to run; commencement of proceedings. The time "within which any such action or proceeding may be commenced shall begin to run from the date of such mortgage, unless the time of the maturity of the debt or obligation secured by such mortgage shall be clearly stated in such mortgage.

Under this statute, the 15 year limitation period during which the Niskas could commence a foreclosure proceeding began to run on the date of the mortgage, April 30, 1982, unless the time of the maturity of the debt secured by the mortgage is clearly stated in the mortgage.

Citing Polish Union of the U.S. of N. Amer. v. Kruszewski, 171 Minn. 252, 213 N.W. 913 (1927), the Niskas argued in the district court that a maturity date is clearly stated in a mortgage when either a specific date is stated in the mortgage or a date can be determined from information contained in the mortgage. They acknowledged that the mortgage they held does not state a specific calendar date upon which the debt secured by the mortgage matures, but they argued that the mortgage contains a clearly stated maturity date because the terms for the payment of the indebtedness are stated succinctly in the mortgage, and it is simple to calculate the maturity date from the information provided in the mortgage. They contended that because the mortgage contains a clearly stated maturity date, the statute of limitations begins to run on the maturity date.

Respondents argued in the district court that the statute provides that if there is no stated maturity date on the face of the mortgage, the foreclosure must be initiated within 15 years from the date that the mortgage was executed. They contended that because the mortgage does not state a specific maturity date, the statute of limitations began to run on the date of the mortgage.

The district court did not expressly determine whether a maturity date could be clearly stated in a mortgage without stating a specific date. But it appears that the district court agreed with respondents’ argument that a maturity date could not be clearly stated in a mortgage if the mortgage does not state that a specific date is the maturity date. In the memorandum that accompanied its order granting summary judgment, the district court stated that there was no dispute that the mortgage note does not include a maturity date. Because it is apparent from the arguments the parties made in the district court that they disputed whether the mortgage contained a maturity date that could be determined using the information in the mortgage, we infer that the court meant by this statement only that there was no dispute that the mortgage does not include a specific date that is identified as the maturity date of the debt secured by the mortgage.

It appears that the district court concluded that because the mortgage does not state that a specific date is the maturity date, the maturity date of the debt secured by the mortgage was not clearly stated in the mortgage. Therefore, the 15-year limitation period began to run on the date of the mortgage and expired before the Nis-kas commenced their foreclosure. This conclusion is not consistent with the supreme court’s holding in Polish Union.

In Polish Union, the supreme court described the mortgage in question as follows:

The mortgage is dated May 28, 1908. It is given to secure $2,000, with interest before and after maturity at 5 per cent per annum according to the conditions of one promissory note for $2,000, and ten interest coupons, each for $50 and each for a semiannual payment of interest, all bearing even date with the mortgage.

Id. at 253-54, 213 N.W. at 913-14. The mortgage did not recite a specific date as the maturity date of the debt, and the supreme court did not hold that a specific date was required. Instead, upon reviewing the terms of the mortgage, the supreme court concluded that “[ajnyone reading the mortgage would understand that the note matured in five years,” Id. at 254, 213 N.W. at 914, and held that because the mortgage showed, on its face, the time of the maturity of the debt, the statute of limitations began to run from the time of maturity.

Respondents argue that under Polish Union, a maturity date is not clearly stated in a mortgage unless the date is obvious upon a cursory examination of the mortgage and can be easily determined from the terms on the face of the mortgage. They contend that the maturity date of the debt secured by the mortgage the Niskas hold is not obvious and can only be determined by making extensive calculations or by using information that is not contained in the mortgage, such as a pre-printed amortization schedule or computer software that can perform debt-amortization calculations. They conclude that because a maturity date is not readily apparent to anyone reading the mortgage, a maturity date is not clearly stated in the mortgage.

But the supreme court did not state in Polish Union that to be clearly stated in a mortgage, a maturity date must be obvious upon a cursory examination of the mortgage or that it must be easy to determine the maturity date from the terms on the face of the mortgage. The supreme court simply recognized that it would be easy for anyone reading the mortgage at issue in Polish Union to understand when the maturity date occurred. If the information in another mortgage can be used to determine the maturity date, the fact that it is more difficult to do so does not mean that the maturity date is not clearly stated.

Like the mortgage the Niskas hold, the mortgage in Polish Union stated the amount of the indebtedness secured by the mortgage, specified the rate at which interest would accrue on the debt, and described the payments that needed to be made to repay the debt. To determine the maturity date of the debt secured by the mortgage, a reader needed to know that semiannual payments occur twice each year and then needed to count forward to determine that the tenth semiannual payment was due at the end of five years. Despite the fact that determining the maturity date required the reader to make calculations using some information that was not in the mortgage, the supreme court concluded that the maturity date was clearly stated in the mortgage.

In Vossen v. Parker, 609 N.W.2d 290, 293 (Minn.App.2000), this court explained in dicta that:

[T]he purpose of the statute [of limitations] is to prevent clouds on title by requiring that the enforceability of a mortgage be ascertainable from the mortgage itself. Actual notice is thus legally irrelevant: the statute requires the mortgagee to put the world on constructive notice by including in the mortgage itself the information necessary to evaluate its longevity.

The statutory purpose of preventing clouds on title can be accomplished without stating in a mortgage that a specific calendar date is the maturity date of the debt secured by the mortgage. We conclude that under Polish Union, the world is put on constructive notice of the longevity of a mortgage if the information necessary to determine the maturity date of the debt is included in the mortgage.

DECISION

The district court erred when it concluded that because the mortgage does not state that a specific date is the maturity date of the debt secured by the mortgage, the maturity date is not clearly stated in the mortgage. To conclude that a maturity date is not clearly stated in the mortgage, the district court must also conclude that the maturity date of the debt secured by the mortgage cannot be determined from the information in the mortgage.

Reversed.

CRIPPEN, Judge

(concurring specially)

The legislature does not intend a result that is absurd or unreasonable. Minn. Stat. § 645.17 (2000). This elementary rule of statutory construction dictates that we reverse the trial court’s application of Minn.Stat. § 541.03, subd. 2.

I agree with our application of Polish Union v. Kruszewski, 171 Minn. 252, 253, 213 N.W. 913 (1927). Polish Union does not purport to establish a minimum level of clarity. We have properly said that a clear statement of maturity is one that is “ascertainable from the mortgage itself.” Vossen v. Parker, 609 N.W.2d 290, 293 (Minn.App.2000). There are additional considerations, I believe, that support our decision in this case.

The limitation period of the statute begins to run from the clearly stated time of maturity. It is wholly unreasonable to suggest, as does respondent, that the clarity of a financial instrument must be so great that everyone or anyone will exactly understand all of its implications. This result is not dictated by the language of the statute or by precedent.

There is nothing unique in an installment plan that calls for payments to apply first to interest and then to principal, with maturity when the principal is fully paid. Once the instrument further states the interest rate and the amount of each payment, the maturity of the obligation is readily ascertainable. A person on the street could not easily state the exact maturity date but could at least sense the prospective years of payments required. Anyone with a need to determine the exact maturity date has easy access to the needed tools to calculate the date readily. The tools now include home computer programs, internet sites, books, and access to persons in the financial world who routinely make these calculations.

The history of this statute of limitations is also instructive. First, it demonstrates years of acceptance of the principle that the maturity of a mortgage obligation must be ascertainable but not more exactly stated in the instrument. Although the statute was enacted in 1907, to this day the Minnesota Title Standards, devised to guide examiners of title in this state, warn that disregard of a mortgage can occur only when 15 years have passed since the maturity date “stated in the mortgage or determined from information contained in the mortgage.” Minnesota Standards for Title Examination Standard No. 25 (11th ed.1997). The title examiners of Minnesota do not expect the result advanced by respondents, and it should not occur.

History also teaches us that we would risk perpetrating great mischief if we were to affirm the trial court. The mortgage in this case was executed in 1982. Only one year earlier, in 1981, uniform conveyancing blanks in Minnesota first stated a mortgage note obligation with reference to “the final payment being due and payable on” a stated date. Those who employed earlier drafts of the mortgage form, likely including all practitioners executing instruments before 1981, were using a form that provided for description of an installment obligation without specific statement of a final payment date. We must be concerned, in my opinion, that a strict reading of Minn. Stat. § 541.03, subd. 2, would invalidate a number of mortgage obligations still outstanding.

Reflecting on the history of the statute, we rightfully remember that the 1981 revision of the uniform conveyancing blanks does not carry the weight of a declaration of law. Although the revision may suggest caution against an unreasonable application of the statute of limitations, the law remains as was before. When the maturity date of an installment obligation is ascertainable from the language of the mortgage instrument, the statute runs from the date when the last payment is due.

In my opinion, respondent’s arguments for application of section 541.03, subdivision 2, contradict a reasonable reading of statutory language, offend the understanding of the statute that has been an accepted rubric of Minnesota law for nearly a century, and risk the nasty result of nullifying a number of important legal obligations.

      . DeSalle, Gibraltar, and the Bollas will be referred to collectively as respondents.


source: Caselaw Access Project

author: WILLIS, Judge CRIPPEN, Judge

license: Public Domain

text:
    AMERICAN TOWER, L.P., a Delaware limited partnership, Respondent, APT Minneapolis, Inc., a Delaware corporation, Plaintiff, v. CITY OF GRANT, Appellant.
    No. C1-00-786.
    Court of Appeals of Minnesota.
    Dec. 26, 2000.

      Gary A. Van Cleve, Mark D. Christo-pherson, Larkin, Hoffman, Daly & Lind-gren, Ltd., Bloomington, MN, for respondent.
    James M. Strommen, Karen R. Cole, Kennedy & Graven, Chtd., Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN and PETERSON, Judges.
   OPINION

WILLIS, Judge

The City of Grant appeals from the district court’s order granting summary judgment in favor of American Tower. We affirm.

FACTS

On August 31, 1999, American Tower, a company that constructs telecommunications towers, submitted an application to the City of Grant for a conditional-use permit (CUP) to build a tower in Grant. Approximately one month later, the city’s planning commission approved the application and forwarded it to the city council. At its October 1999 meeting, the city council tabled consideration of American Tower’s application. On November 2, 1999, American Tower informed the city that it considered the application approved because the city had not made a decision within 60 days, as required by Minn.Stat. § 15.99, subd. 2 (1998). On the same day, after being told of American Tower’s position, the city council convened to discuss American Tower’s application. American Tower’s notification notwithstanding, the city moved forward with its review and denied the application in December 1999.

Minn.Stat. § 15.99, subd. 3 (1998), permits municipalities to extend unilaterally the statutory 60-day deadline for municipal action for up to an additional 60 days by notifying applicants of an intention to do so. The city maintains that the application materials sent to American Tower contained such a notice.

After filing a complaint and a petition for a writ of mandamus, American Tower moved for summary judgment. The district court granted the motion, reasoning that (a) the Telecommunications Act did not preempt state law and (b) the city did not abide by the requirements of Minn. Stat. § 15.99. This appeal followed.

ISSUES

I. Did the district court err in concluding that Minn.Stat. § 15.99, subd. 2 (1998), is not preempted by the Telecommunications Act?

II. Did the city give effective notice to American Tower of a 60-day extension under Minn.Stat. § 15.99, subd. 3 (1998)?

ANALYSIS

On appeal from summary judgment, a reviewing court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists “ ‘[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.’ ” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). The party resisting summary judgment must do more than rest on mere averments. Id. at 71. Appellate courts view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

The city argues that Minn.Stat. § 15.99, subd. 2 (1998), conflicts with the Telecommunications Act and is therefore preempted. Minn.Stat. § 15.99, subd. 2, provides that a

[municipality] must approve or deny within 60 days a written request relating to zoning ⅜ * ⅜. Failure * * ⅜ to deny a request within 60 days is approval of the request. If [a municipality] denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

A municipality may extend this 60-day deadline for up to an additional 60 days if it provides written notice of the extension to the applicant, stating the reasons for the extension and its anticipated length. Minn.Stat. § 15.99, subd. 3(f) (1998).

The Telecommunications Act also contains a timeliness requirement:

A state or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

47 U.S.C. § 832(c)(7)(B)(ii) (emphasis added). The Telecommunications Act is intended to create a national policy framework to accelerate the deployment of telecommunications technology. Virginia Metronet, Inc. v. Board of Supervisors, 984 F.Supp. 966, 970 (E.D.Va.1998). It does so, in part, by placing certain restrictions upon the authority of local bodies to regulate wireless communications facilities. Id.

The preemptive effect of a statute is a question of law, subject to de novo review. In re Speed Limit for Union Pac. R.R., 610 N.W.2d 677, 682 (Minn.App.2000). State laws that interfere with, or are contrary to, the laws of Congress are invalid. Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 211, 6 L.Ed. 23 (1824). If Congress evinces an intent to occupy a given field, state laws falling within that field are preempted. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). But the “ ‘historic police powers of the [spates’ are not to be eclipsed unless to do so was ‘the clear and manifest purpose of Congress.’ ” Dahl v. Charles Schwab & Co., 545 N.W.2d 918, 922 (Minn.1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).

Federal law preempts state law when (1) a statute contains an express preemption clause, (2) preemption can be inferred from the extent of the federal involvement or the scope of the federal interest in a regulated field, or (3) state law conflicts with federal law. Pikop v. Burlington Northern R.R. Co., 390 N.W.2d 743, 748 (Minn.1986). The city argues that the 60-day time limit under Minnesota law conflicts with the “reasonable amount of time” called for by federal law and is thus preempted.

The city argues that 60 days is not a reasonable amount of time to consider an application to construct a telecommunications tower. In support of this proposition, the city cites cases in which courts have found reasonable periods longer than 60 days for municipalities to consider applications for permits to construct telecommunications towers. See, e.g., Virginia Metronet, 984 F.Supp. at 977 (stating that 14 months is not per se unreasonable). But the fact that courts have found longer periods reasonable does not mean that 60 days is unreasonable.

The language and legislative history of the Telecommunications Act, as well as reported cases addressing the reasonable-time issue, support the view that section 15.99 does not conflict with the Telecommunications Act and is therefore not preempted. First, the Act preserves the authority of local governments over zoning matters, providing that

47 U.S.C. § 332(c)(7)(A). Congress has thereby given municipalities latitude in exercising their police powers in zoning decisions regarding telecommunications towers. See Omnipoint Communications, Inc. v. Foster Township, 46 F.Supp.2d 396, 401 (M.D.Pa.1999) (stating that although Telecommunications Act places certain restrictions on local authorities, it does not preempt their ability to control zoning decisions regarding telecommunications services). Further, the Act contains a section captioned “State preemption” that specifically prohibits states and local governments from regulating the entry of or the rates charged by mobile services. 47 U.S.C. § 332(c)(3). But that section does not provide that the Act’s reasonable-time provision preempts state law regarding the time within which a unit of local government must act on an application to construct a telecommunications tower. Id.

The legislative histories of the Telecommunications Act and Minn.Stat. § 15.99 also support the view that the two statutes do not conflict. The conference committee report on the Telecommunications Act suggests that timeliness issues should be determined at the state level.

[D]ecisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance * * * the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their request to any but the generally applicable time frames for zoning decisions.

H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphasis added). Indeed, as one court has noted, “[t]here is nothing to suggest that Congress, by requiring action ‘within a reasonable period of time,’ intended to force local government procedures onto a rigid timetable .” Sprint Spectrum, L.P. v. City of Medina, 924 F.Supp. 1036, 1040 (W.D.Wash.1996); see also Sprint Spectrum L.P. v. Zoning Hearing Bd., 43 F.Supp.2d 534, 537 (E.D.Pa.1999) (interpreting the Telecommunications Act’s rea-gonable-period-of-time requirement to be congruent with a state statute imposing a 60-day time limit); Flynn v. Burman, 30 F.Supp.2d 68, 74 (D.Mass.1998) (holding that a local commission had not failed to act on an application within time limit set by state law and, consequently, had not failed to act within a reasonable time under Telecommunications Act). Thus, under the Telecommunications Act, state law determines what is a reasonable period of time to act on applications to build telecommunications towers.

Finally, the Wisconsin Court of Appeals has concluded that the Telecommunication Act’s reasonable-time provision, is intended to “stop local authorities from keeping wireless providers tied up in the hearing process.” Westel-Milwaukee Co. v. Walworth County Park & Planning Com’n, 205 Wis.2d 244, 556 N.W.2d 107, 109 (1996). This is consistent with the intent of section 15.99:

Minnesota citizens do have the right to receive a response to their requests in a timely manner and at the same time not be entangled in delays or squabbles * * *.

House Floor Debate on H.F. No. 641 (Apr. 12,1995) (statement of Rep. Brown).

The Minnesota legislature has determined that 60 days is the “usual period of time” within which a decision should be made on a CUP application, including an application for a CUP to build a telecommunications tower, and has provided that, if necessary, a local-government unit may grant itself an extension of up to an additional 60 days.

Because no genuine issues of material fact exist, we affirm the district court’s conclusion that there is no conflict between the Telecommunications Act and Minn. Stat. § 15.99 and therefore no preemption of state law.

II.

The City of Grant next argues that the district court erred in concluding that the city approved American Tower’s application by failing to act within 60 days after receiving it. See Minn.Stat. § 15.99, subd. 2 (stating municipalities must act on zoning application within 60 days or it is deemed approved). Two provisions of Minn.Stat. § 15.99 allow a municipality to extend its initial 60-day time limit for acting on a CUP application. The first provides for an extension if an application is incomplete but requires the municipality to send notice of the incomplete application within 10 business days of its receipt. Minn.Stat. § 15.99, subd. 3(a) (1998). Here, the city did not notify American Tower within 10 days that its application was incomplete.

The statute also provides that

[A municipality] may extend the time limit * * * before the end of the initial 60-day period by providing written no tice of the extension to the applicant. The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.

Minn.Stat. § 15.99, subd. 8(f) (emphasis added).

The city claims that the application it mailed to American Tower contained a notice, of extension of the statutory 60-day time limit because the following statement is printed on the reverse side of all application forms that the city sends to prospective applicants for CUPs:

You are hereby notified that the City of Grant is hereby extending the time deadlines required in M.S. section 15.99 with respect to the written request you have made to the City. The extension is made for an additional sixty (60) days. The reason for the extension is to enable the City Council and the planning commission to more fully deliberate with respect to your request and to allow City staff and consultants time to prepare the necessary findings with respect to the City’s ultimate determination. This timeline does not begin until the application is complete with all required submissions.

Therefore, the city argues, it complied with the requirements of the statute by (1) giving written notice of the extension before expiration of the initial 60-day deadline, (2) stating the reasons for the extension, and (3) indicating the anticipated length of the extension.

The parties disagree over whether section 15.99 allows the city to give notice of an extension of the 60-day time limit before an application is submitted. In interpreting statutes, courts must ascertain and effectuate the legislature’s intent. Minn.Stat. § 45.16 (1998). Where the legislature’s intent is clearly discernible from plain and unambiguous language, no construction is necessary or permitted. Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995). A court should not construe a statute to lead to injustice or an absurd result if the language will reasonably permit another construction. Id. (citing Minn.Stat. § 645.17(1)).

American Tower argues that Minn.Stat § 15.99 does not allow the city to grant itself a full 60-day extension to act on a CUP application before it receives an application or, for that matter, before it even sends an application form to a prospective applicant. American Tower reasons that such a practice renders the 60-day requirement of the statute meaningless and that the city thereby grants itself an extension to act on an application without knowing if it is necessary.

The city, on the other hand, argues that a literal reading of the statute permits its practice, in that (1) the city gives written notice of the extension before the end of the initial 60-day period, indeed before the 60-day period begins; (2) it gives reasons for the extension, although they are generic reasons that the city claims apply to all applications; and (3) the written notice states the anticipated length of the extension, which is in all cases the maximum of 60 days. But a literal construction is not to be adopted if it is contrary to the general policy and object of a statute. In re Raynolds’ Estate, 219 Minn. 449, 455, 18 N.W.2d 238, 241 (1945).

We agree with American Tower that the city’s practice in general, and specifically in this case, makes the initial 60-day requirement of the statute meaningless. The legislature has stated that

[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.

Minn.Stat. § 645.16 (emphasis added); see also Willmus ex rel. Willmus v. Commissioner of Revenue, 371 N.W.2d 210, 213 (Minn.1985) (stating that “a statute is to be construed as a whole so as to harmonize and give effect to all of its parts.” (citation omitted)). The city’s practice would be wholly consistent with a statute that simply gives municipalities 120 days to act on a CUP application. Because routine applications can and should be acted on expeditiously, the legislature intended, in enacting Minn.Stat. § 15.99, to allow an extension of the initial 60-day period only where there are “extenuating circumstances.” Hearing on S.F. No. 617 Before the Senate Comm, on Governmental Operations and Veterans (Mar. 29, 1995) (statement of Sen. Riveness).

The city cites Manco of Fairmont, Inc. v. Town Bd., 583 N.W.2d 293 (Minn.App.1998), for the proposition that the requirements of Minn.Stat. § 15.99 are directory, not mandatory. While this court held in that case that the provision requiring the statement of reasons for an extension is directory, it also held that the 60-day limit is mandatory. Id. at 295. Further, Man-co is distinguishable from the present case because the township in Manco sent notice of extension after it received the completed application. Id. at 294-95. Here, the city granted itself an extension even before it sent application materials to American Tower.

We conclude that the statutory scheme envisioned and intended by the legislature when it enacted Minn.Stat. § 15.99 requires a city to act in the normal course on a CUP application within 60 days after the application is received. If, upon review of an application, the city determines that there are extenuating circumstances that require an extension of the initial 60-day period to act, it may grant itself an extension, before the end of the initial period, of up to an additional 60 days by giving the applicant -written notice that describes the extenuating circumstances and the anticipated length of the extension.

We conclude that the city’s reading of Minn.Stat. § 15.99 is inconsistent both with the language and the intent of the statute. We therefore affirm the district court’s determination that the city’s notice to American Tower of an extension of time for the city to act was ineffective because it was given before American Tower submitted its CUP application.

DECISION

The district court did not err in granting summary judgment to American Tower because Minn.Stat. § 15.99 is not preempted by the Telecommunications Act and because the city’s notice to American Tower that it was granting itself a 60-day extension was ineffective.

Affirmed.

CRIPPEN, Judge

(dissenting)

Because I would not impose on state and local government agencies a rubric that has not been announced by the legislature, I would reverse the trial court’s decision that appellant City of Grant approved respondent American Tower’s application to build a tower in the city.

Upon notice given “before the end” of the initial 60-day period following an application, the municipality may give itself up to an additional 60 days to investigate, deliberate upon, and decide the merits of a zoning application. Minn.Stat. § 15.99, subd. 3(f) (1998). The 60-day-extension clause is meaningless by any interpretation given to it.

In all cases, for any reason, the municipality is free to employ the extension clause. Minn.Stat. § 15.99, subd. 3(f) says nothing to limit the reasons useable in a notice for extension, which may be specific to the case or generic to the circumstances of the municipality. Moreover, the need to declare reasons has been counted a direction without a mandate. Manco of Fairmount, Inc. v. Town Bd. of Rock Dell Township, 583 N.W.2d 293, 296 (Minn.App.1998), review denied (Minn. Oct. 20, 1998).

Because the legislature has employed a meaningless limit on the freedom of agencies to employ a deadline of 120 days rather than 60 days, there are no rules of construction making it reasonable to suggest that the extension be for circumstances unique to the application as opposed to those that are generic for the zoning process available in the municipality. It is no more reasonable to suggest that the notice be given to individual applications after the time of their application as opposed to a notice effectively given to all prospective applicants.

It is a judicial responsibility to effectuate the legislature’s intent. Minn.Stat. § 645.16 (1998). But the courts cannot manufacture content for statutes without language or history of the enactment that makes that intent evident. See id. (requiring regard for the unambiguous language of an enactment, without pretextual pursuit of its spirit). No doubt the legislature intended that the 60-day extension should be only for “extenuating circumstances.” But it left to municipalities the task of determining which circumstances are extenuating, without limitation.

When respondent’s application was received, appellant found it necessary to employ a 120-day approval period in all cases then arising. The legislature has permitted this municipal determination. If the law is to be otherwise, it is for the legislature, not the courts, to alter the mandate. See Marbinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631 (1963) (stating “[i]f there is to be a change in the statute, it must come from the legislature, for the courts cannot supply that which the legislature purposefully omits or inadvertently overlooks”).

Because I see nothing in this statute or its history that gives us the freedom to enlarge the importance of the initial 60-day approval period or to diminish the freedom of municipalities to extend the period for 60 additional days, I respectfully dissent from the differing construction of the statute in the majority opinion. I concur with the majority in its conclusion that state law is not preempted by the Telecommunications Act.


text:
    STATE of Minnesota, Appellant, v. Richard Alan HOELZEL, Respondent.
    No. C8-00-851.
    Court of Appeals of Minnesota.
    Dec. 26, 2000.

      Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis (for appellant).
    John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis (for respondent).
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and PETERSON, Judge.
   OPINION

WILLIS, Judge

The district court found appellant Richard A. Hoelzel guilty of felony burglary and gross-misdemeanor interference with a 911 call. The court stayed imposition of sentence on the gross misdemeanor count and refused to sentence on the felony count. The state appeals. Because we conclude that the district court’s refusal to sentence effectively stayed adjudication of the burglary count and that the stay was not supported by “special circumstances,” we reverse and remand for sentencing.

FACTS

In September 1999, respondent Richard A. Hoelzel entered his estranged wife’s residence through an open garage door to talk to her, in violation of a harassment restraining order. When she threatened to call the police, Hoelzel unplugged the phone from the wall and then walked out of the house and sat down in the back yard. His wife reconnected the phone and called the police. The police found Hoelzel sitting in the back yard and arrested him.

Hoelzel was charged with first-degree burglary, in violation of Minn.Stat. § 609.582, subd. 1 (1998), a felony; interference with a 911 call, in violation of Minn.Stat. § 609.78, subd. 2 (Supp.1999), a gross misdemeanor; and violation of an order for protection (OFP), in violation of Minn.Stat. § 518B.01, subd. 14(a) (1998). After a bench trial, the district court found Hoelzel guilty of first-degree burglary and interference with a 911 call. The court dismissed the charge for violation of an OFP because a harassment restraining order, rather than an OFP, was in effect.

At Hoelzel’s sentencing hearing, the district court announced that it found Hoelzel guilty of burglary only because his conduct was a “technical violation” of the burglary statute. The court noted the adverse effects of a felony record and announced that, over the prosecutor’s objection, it would defer sentencing on the burglary count:

The Burglary is not going to be sentenced until and unless I have to address it by either a revocation or the Court of Appeals tells me I must.

The district court’s sentencing order stayed imposition of sentence on the interference with a 911 call count. The court placed Hoelzel on probation for two years, required him to perform 32 hours of community service and to undergo a follow-up psychiatric examination, and fined him $300. This appeal followed.

ISSUES

1. Was the district court’s deferral of sentencing the functional equivalent of a stay of adjudication?

2. Do “special circumstances” support the deferral of sentencing?

ANALYSIS

1. Refusal to sentence

The state argues that the district court’s refusal to sentence Hoelzel on the burglary count is a stay of adjudication and that the circumstances of this case do not support such a stay. Hoelzel contends that the district court did not stay adjudication because the court “formally adjudicated” him guilty of burglary and interference with a 911 call and then exercised its discretion in choosing the count on which to impose sentence. The state responds that the sentencing disposition on the burglary count must be considered a stay of adjudication because there was no sentence and thus no final adjudication on that count.

Minnesota law provides that “a sentence constitutes a final judgment, or adjudication, of conviction.” State v. Thoma, 569 N.W.2d 205, 207 (Minn.App.1997) (citing Minn.R.Crim.P. 28.02, subd. 2(1)); see also State v. Putzier, 183 Minn. 423, 424-25, 236 N.W. 765, 766 (1931) (explaining that there has been no final judgment until there has been both a determination of guilt and a judgment of sentence imposing the penalty which will be enforced without further judicial action). A finding of guilt is not an adjudication of guilt. See Minn.Stat. § 609.095 (1998) (“[A] court may not refuse to adjudicate the guilt of a defendant who * * * has been found guilty by a court or jury following a trial.”).

By declining to sentence Hoelzel for burglary, but leaving open the possibility of a future sentence, the district court deferred adjudication on that count. Deferral of sentence produces the same result as a stay of adjudication, that is, Hoel-zel’s record reflects no felony conviction. We conclude that the refusal to sentence on the burglary count is the functional equivalent of a stay of adjudication on that count.

2. Special circumstances

A district court should not interfere with the prosecutor’s charging function “absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion.” State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996). But a district court may stay adjudication of a criminal charge if “special circumstances” so warrant. Id. at 254-55. The “inherent judicial authority” recognized in Krotzer is to be used “sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.” State v. Foss, 556 N.W.2d 540, 541 (Minn.1996) (emphasis omitted); see also Thoma, 569 N.W.2d at 208 (holding that stay of adjudication of criminal charge “is justified only if the [district] court, after reviewing the circumstances of the case, determines that the prosecutor’s charging decision was a clear abuse of discretion.”).

Here, the district court stated that it “happened to disagree with” the prosecution in charging Hoelzel with burglary and found Hoelzel guilty only because the court believed that the law so required. The district court also noted the adverse effects of a criminal record:

I think everybody involved in the court system knows what happens when people run a criminal history check [and] they see a conviction of First Degree Burglary on somebody’s record.

Disagreement with a prosecutor’s exercise of the charging function and the existence of collateral consequences of a conviction are not special circumstances supporting a stay of adjudication. See Foss, 556 N.W.2d at 541 (describing intention to limit use of stays of adjudication to cases where prosecutor’s clear abuse of charging function creates injustice); see also State v. Twiss, 570 N.W.2d 487, 487 (Minn.1997) (holding that possible loss of job due to criminal conviction is typical consequence of serious offense, and not special circumstance); State v. Prabhudail, 602 N.W.2d 413, 414-15 (describing continuance for dismissal and stay of adjudication as “functionally equivalent,” applying Krotzer-Foss-Thoma standard and concluding that deportation, as collateral consequence of criminal conviction, is not special circumstance justifying continuance for dismissal).

At the sentencing hearing, the district court expressed its opinion that “the difference between sentencing [Hoelzel] as a felon or a gross misdemeanor offender means essentially * * * probation for two years, as opposed to five.” Based on Hoel-zel’s psychological profile, the district court noted that if Hoelzel was “going to act out, he’s going to act out whether he’s on probation for two years or five” and that if Hoelzel did “act out,” he would do so “relatively quickly.” This is not a special circumstance that justifies a stay of adjudication.

DECISION

The district court’s deferral of sentencing on the burglary count is the functional equivalent of a stay of adjudication. Because no special circumstances support the deferral of sentencing, we reverse and remand for sentencing on the burglary count.

Reversed and remanded.

CRIPPEN, Judge

(dissenting)

Our decision in this and other similar cases serves the unacceptable end of inserting a prosecutorial veto into the judicial function of making a final disposition in a criminal case. See State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996) (restating historic principal that final disposition of a criminal case — in that case through a stay of adjudication — is ultimately a matter for the presiding judge, to be determined whether or not approved by the prosecutor); see also State v. Scaife, 608 N.W.2d 163, 165 (Minn.App.2000) (Crippen, J., dissenting) (“The conditional stay of criminal proceedings is a historic element of sound judicial discretion, * * *.”) Making the decision even less tenable, as respondent asserts, we now permit this interference with the trial court’s sentencing role in the face of a statute that expressly contemplates the form of trial court discretion that has been exercised.

1. Stay of adjudication

Initially, I disagree with the majority’s analysis of the trial court’s exercise of discretion in refusing to sentence, which appellant analogizes to a stay of adjudication. It becomes increasingly evident to me that this court is erroneously escaping its burden to evaluate the “special circumstances” that permit a trial court to avoid an unnecessary criminal record for a defendant.

The trial court should only adjudicate and sentence in the absence of the prosecution’s clear abuse of discretion in the exercise of its “charging function.” State v. Foss, 556 N.W.2d 540, 541 (Minn.1996). The prosecutorial discretion at issue does not involve its assessment of whether evidence shows the occurrence of an offense. Rather, decisions in these cases require that we determine whether the prosecutor acted unjustly, because of special circumstances, by insisting that the defendant suffer the consequences of a criminal record. Krotzer, 548 N.W.2d at 254 (affirming the trial court’s determination, explaining its “final disposition” in the case that “justice would not be served by giving Krotzer a criminal record”).

I would defer to the trial court’s judgment in this case that there are special circumstances, like those in Krotzer, that make it just to permit the disposition of the case without adding the wholly unnecessary consequences associated with a felony record. These circumstances principally include the unusual contrast between

the respondent’s level of culpability and the degree of wrongdoing normally associated with a felony offense. In addition, the trial court properly found it evident that respondent was not likely to commit further crime and that his freedoms could be adequately restricted without a felony disposition. These circumstances, like those in Krotzer, permitted the trial court to reach its announced “strongly” held conviction that the disposition served the interests of justice. See id. at 254 (affirming trial court that “strongly disagreed” with the prosecution’s insistence on burdening the defendant with a criminal record).

2. Withholding of sentence

This case has an added dimension. Although the trial court withheld sentencing on the burglary charge, it made a final determination on another charge for conduct that arose in the same behavioral incident. As a result, the court’s decision is expressly sanctioned by Minn.Stat. § 609.035, subd. 1 (1998 & Supp.1999). This statute permits prosecution of several accusations of conduct arising from the same incident, but the defendant “may be punished for only one of the offenses.” Id. It is the court, of course, and not the prosecutor, who determines the punishment in the case, electing on which charge a sentence is determined. Without limitation, the legislature has declared the judicial role to designate the offense for which the defendant will be punished. State v. Alt, 529 N.W.2d 727, 731 (Minn.App.1995), rev. denied (Jul. 20, 1995) (observing that the court is to determine whether sentencing occur for the more serious or the less serious offense).

An exception to this statute applies to the circumstances of this case but leads directly to another circumstance for exercise of trial court discretion. See Minn. Stat. § 609.035, subd. 1 (providing various exceptions, including convictions governed by Minn.Stat. § 609.585 (1998) (burglary and “any other crime committed while in the building entered”)). In the situation governed by this exception and others, it is no longer the case that the defendant may be punished for only one of the offenses. Without further direction, the legislature leaves to others the, determination of whether or not the convicted defendant will be punished for more than one act arising in the course of the burglary. This is a punishment decision; it is a trial court decision toward which the appellate courts will defer in the absence of a clear abuse of discretion. See State v. Givens, 544 N.W.2d 774, 776 (Minn.1996) (stating deference given to guideline departures). We do not have before us an assertion that the trial court abused its discretion in electing the crime for which respondent was to be punished.

Appellant’s arguments also suggest that Minn.Stat. § 609.095(b) (1998) is important in determining whether the trial court could withhold a burglary sentence. This section, as quoted in the majority opinion, requires that the court “adjudicate” a defendant’s “guilt” after he pleads guilty or is found guilty. Id. It is the evident conclusion of the majority, which I share, that there is no cause to decide this or similar cases under section 609.095. It is unclear at best whether this statute bears on the circumstances of this case, and it remains to be determined whether the statute is in accord with the constitutional mandate of separation of the departments of state government.

Because it is the law of the case, I elect against discussion of the state’s right to initiate this appeal.

Because I would affirm the trial court’s disposition for the reasons stated in this opinion, I respectfully dissent.

      . The dissent contends that the sentencing disposition here is expressly contemplated by statute. See Minn.Stat. §§ 609.035, subd. 1, .585 (1998). ("[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses” but "prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed oñ entering or while in the building entered.”) The statutory provisions do not address the present circumstance, where the district court has not yet decided whether to punish Hoelzel on the burglary count by imposing a sentence on that count. i

      . The trial court made a statement to the defendant that may suggest that the court entertains the notion of imposing punishment for the felony offense in the event of revocation proceedings. Whatever may unfold in the future, it is sufficient for our present analysis of the case to observe that the court has definitely imposed punishment at this time on the gross misdemeanor occurrence and has not determined a sentence on the burglary charge.

      . For purposes of determining the defendant’s right to appeal, a rule of criminal procedure provides that there is no final judgment until there is a "judgment of conviction” and "sentence is imposed or the imposition of sentence is stayed.” Minn.R.Crim.P. 28.02, subd. 2(1). Section 609.095(b) does not call for a final judgment as needed for the right of appeal but declares instead the requirement that there be a judgment determining the conviction-the existence or non-existence of which has not been stated as a continuing issue in this case. Minn.Stat. § 609.095(b) (1998).


author: LANSING, Judge.

text:
    Douglas Wade KAISER, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C5-00-807.
    Court of Appeals of Minnesota.
    Jan. 2, 2001.

      Deborah K. Ellis, St. Paul, for appellant.
    Mike Hatch, Attorney General, St. Paul, James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, Hastings, for respondent.
    Considered and decided by LANSING, Presiding Judge, PETERSON and STONEBURNER, Judges.
   OPINION

LANSING, Judge.

Douglas Kaiser appeals the district court’s denial of his motion to withdraw his guilty plea. Kaiser argues that because the district court failed to inform him of the ten-year sex-offender registration requirement before he entered his guilty plea, the plea was not intelligently entered. The registration requirement is a civil-regulatory consequence that is collateral to the entry of the guilty plea; thus the district court did not abuse its discretion in denying Kaiser’s application to withdraw his plea. We affirm.

FACTS

In a four-count complaint, the Dakota County Attorney charged Douglas Kaiser with the crimes of use of minors in a sexual performance in violation of Minn. Stat. § 617.246 (1996), possession of pictorial representations of minors in violation of Minn.Stat. § 617.247 (1996), providing alcohol to minors in violation of Minn.Stat. § 340A.503 (Supp.1997), and contributing to the delinquency of a minor in violation of MinmStat. § 260.315 (1996). After plea negotiations that focused primarily on whether Kaiser would be required to serve time in jail, Kaiser pleaded guilty to one count of possession of pictorial representations of minors. The district court stayed imposition of sentence and placed Kaiser on probation for two years, conditioned on Kaiser’s paying a $1,000 fine, having no unsupervised contact with juvenile females, following the probation department’s rules, and remaining law abiding.

At the plea hearing, Kaiser responded affirmatively to both his attorney’s and the district court’s questions about whether he understood the plea agreement. Neither the district court nor Kaiser’s attorney informed Kaiser that as a result of his plea he would be required to register as a sex offender for ten years. About three months after the plea hearing, Kaiser learned of the requirement from his probation officer and filed a postconviction petition to withdraw his plea.

The district court considered the motion on stipulated testimony offered in lieu of an evidentiary hearing and denied Kaiser’s motion. Kaiser appeals, contending that the postconviction court abused its discretion in denying his petition for plea withdrawal, that defense counsel’s failure to advise him of the sex-offender reporting requirement constituted ineffective assistance of counsel, and that his guilty plea did not have the requisite factual basis.

ISSUES

I. Does Minnesota’s sex-offender registration law constitute a direct consequence of the defendant’s plea to an enumerated offense and thereby require that the court or counsel advise the defendant of the reporting requirement before entry of the plea in order for the plea to be valid?

II. Did defense counsel’s failure to advise Kaiser of the sex-offender reporting requirement constitute ineffective assistance of counsel?

III. Is Kaiser’s plea supported by an adequate factual basis?

ANALYSIS

I

A defendant does not have an absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn.1994). Allowing withdrawal of a guilty plea is within the district court’s discretion and is reviewed under an abuse-of-discretion standard. Perkins v. State, 559 N.W.2d 678, 685 (Minn.1997). Appellate review is generally limited to determining whether sufficient evidence exists to sustain the district court’s findings. Id.

Minnesota law requires persons convicted of certain enumerated offenses to register as a sex offender. “A person shall register under this section if * * * the person was charged with * * * possessing pictorial representations of minors in violation of section 617.247, and convicted of * * * that offense or another offense arising out of the same set of circumstances[.]” Minn.Stat. § 243.166, subd. 1 (1998).

District courts are required to inform persons of the registration requirement at the time of sentencing. “When a person who is required to register * * * is sentenced * * * the court shall tell the person of the duty to register under this section.” Id., subd. 2 (1998). But the statute furnishes an alternative when the court fails to tell the defendant of the requirement. “If a person required to register * * * was not notified by the court of the registration requirement at the time of sentencing or disposition, the assigned corrections agent shall notify the person of the requirements of this section.” Id.

Possessing pictorial representations in violation of section 617.247 is an enumerated offense requiring registration. See id., subd. 1(2) (1998). Kaiser was also charged with, but not convicted of, using a minor in a sexual performance in violation of section 617.246, another enumerated offense. See id. Registration is also required when a person is convicted of offenses not listed in the statute if the person was charged with an enumerated offense and the offenses arose out of the same set of circumstances. See Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.1999), cert. denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999). Thus, Kaiser was required to register not only because of the crime he was convicted of, but also because of an additional charged crime.

A court must allow a defendant to withdraw a guilty plea upon proof that “withdrawal is necessary to correct a manifest injustice .” Minn.R.Crim.P. 15.05, subd. 1. Because entry of a plea involves waiver of the constitutional right to a trial, a manifest injustice occurs if the guilty plea is not accurately, voluntarily, and intelligently entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998).

Kaiser maintains that his guilty plea was not intelligently entered. For a guilty plea to be intelligent, the defendant must be aware of the relevant circumstances and direct consequences of the plea. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970); Alanis, 583 N.W.2d at 578. Direct consequences are those that flow definitely, immediately, and automatically from the guilty plea. Alanis, 583 N.W.2d at 578. On the other hand, ignorance of a collateral consequence does not entitle a defendant to withdraw a guilty plea. Id.

The distinction between direct and collateral consequences of a guilty plea turns on whether the result adds a definite, immediate, and automatic effect to the defendant’s punishment. Id. If sex-offender registration is not punishment or does not add a definite, immediate and automatic effect to the punishment, it is a collateral consequence of a plea, and a defendant is not entitled to withdraw a guilty plea because he was not informed of that consequence at the time of the plea. In Alanis, the supreme court identified the direct consequences as the maximum sentence and any fíne to be imposed. Id.

Minnesota courts have not addressed whether the sex-offender registration requirement is a direct or collateral consequence, but have held that deportation is a collateral consequence of a guilty plea, id., as is revocation of driving privileges, State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999), and loss of the right to possess a firearm, State v. Rodriguez, 590 N.W.2d 823, 825 (Minn.App.1999), review denied (Minn. May 26, 1999). Courts in other jurisdictions have categorized as collateral the consequences of loss of civil-service employment, the right to vote and to travel freely abroad, United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990), habitual-offender or parole-revocation proceedings, and mandatory sex-offender DNA testing, State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1075 (1994).

The majority of states that have addressed whether sex-offender registration is a direct or collateral consequence have held that it is a collateral consequence, either because it is not direct and automatic or because it is not punishment. See, e.g., Robinson v. State, 730 So.2d 252, 254 (Ala.Crim.App.1998); State v. Young, 112 Ariz. 361, 542 P.2d 20, 22 (1975); People v. Montaine, 7 P.3d 1065, 1067 (Colo.Ct.App.1999); Collie v. State, 710 So.2d 1000, 1008 (Fla.Dist.Ct.App.1998); Ray v. State, 133 Idaho 96, 982 P.2d 931, 935 (1999); People v. Taylor, 203 Ill.App.3d 636, 149 Ill.Dec. 115, 561 N.E.2d 393, 394 (1990); State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997); State v. Burr, 598 N.W.2d 147, 159 (N.D.1999); State v. Timperley, 599 N.W.2d 866, 869 (S.D.1999); Guzman v. State, 993 S.W.2d 232, 236 (Tex.Ct.App.1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1082 (2000); Ward, 869 P.2d at 1074; State v. Bollig, 232 Wis.2d 561, 605 N.W.2d 199, 206 (2000); Johnson v. State, 922 P.2d 1384, 1387 (Wyo.1996). But see Peterson v. State, 988 P.2d 109, 115-16 (Alaska Ct.App.1999) (concluding that registration requirement is a collateral consequence, but statute requires court to warn defendants of requirement to avoid injustice); In re Birch, 10 Cal.3d 314, 110 Cal.Rptr. 212, 515 P.2d 12, 16-17 (1973) (finding that trial court’s duty is to inform defendant of requirement, and in absence of that information, guilty plea was not knowingly and intelligently made). Courts in the majority of jurisdictions have concluded that the registration requirement is directed toward a public-safety and protection purpose, rather than a punitive purpose. See, e.g., Bollig, 605 N.W.2d at 204.

We have previously decided that Minnesota’s registration requirement does not constitute punishment, but rather is regulatory in nature. State v. Manning, 532 N.W.2d 244, 248 (Minn.App.1995) (finding that Minnesota’s registration requirement does not violate federal and state constitutional ex post facto prohibitions), review denied (Minn. July 20, 1995). We recognize that the duty to register follows from the guilty plea, but the consequences for failure to register are separate from the plea and are contingent on a prosecutor’s action. Thus, because the consequences of failure to register are not definite, immediate, and automatic, and because the requirement is primarily regulatory rather than punitive, we conclude that the sex-offender registration requirement is collateral to the plea and that a defendant is not entitled to withdraw a plea solely on the basis that the court failed to inform the defendant of the requirement at the time of the plea.

To support his claim that registration is a direct consequence constituting punishment, Kaiser relies on this court’s unpublished decision in Palmquist v. State, No. CX-99-1976, 2000 WL 890479, — N.W.2d - (Minn.App. July 3, 2000). We note that Palmquist was sentenced before the Minnesota Supreme Court in Boutin clarified that the requirement to register as a sex offender also applies when a person is charged with, but not convicted of, crimes that are enumerated in the sex-offender registration statute so long as all the crimes arose out of the same set of circumstances. See id.; Bout-in, 591 N.W.2d at 713. Because, under Boutin, Palmquist was required to register as a sex offender, he petitioned to withdraw his guilty plea and appealed the district court’s denial of that petition. Palmquist, 2000 WL 890479, at *1, at -. This court determined that Palmquist should be permitted to withdraw his plea because of the particular circumstances surrounding the plea agreement and the timing of Boutin. Id. at *3, at -. Palmquist had been aware of the registration requirement and negotiated a plea agreement principally to avoid registration. Id. at *1, at-. Counsel, the court, and Palmquist relied on an interpretation of the law later determined to be mistaken in determining that the guilty plea would avoid the registration requirement. Id.

Unlike Palmquist’s plea, Kaiser’s plea was entered after the supreme court’s decision in Boutin, and registration was not addressed in Kaiser’s plea. He was unaware of the requirement and did not rely on the plea agreement to avoid this consequence. We do not have the same facts in this appeal and conclude that because the registration consequences are collateral rather than direct, the district court did not abuse its discretion in denying the postconviction petition.

II

Second, Kaiser argues that his attorney’s failure to tell him of the requirement constitutes ineffective assistance of counsel. To receive postconviction relief based on ineffective assistance of counsel, Kaiser must show that first, “counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. at 2064. Both prongs must be satisfied to grant relief. Id.

The proper standard for attorney performance in the plea process is that within the range of attorney competence in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). To establish Strickland’s prejudice requirement, a defendant must show that absent his attorney’s errors, he would not have pleaded guilty and would have insisted on a trial. Id. at 59, 106 S.Ct. at 370. Kaiser’s claim fails on the first Strickland prong. Although it is unquestionably the better practice for attorneys to inform clients of the collateral consequences of a guilty plea, the failure to advise of the collateral consequences does not fall below an objective standard of reasonableness that constitutes ineffective assistance of counsel. Alanis, 583 N.W.2d at 579; Berkow v. State, 583 N.W.2d 562, 564 (Minn.1998) (failing to inform client of collateral consequence of deportation does not constitute ineffective assistance of counsel).

Ill

Finally, Kaiser contends that his guilty plea was not supported by an adequate factual basis. Kaiser maintains that his admission to possession of the incriminating videotape was based on his having access to the videotape and that possession requires more than access; it requires ownership or control.

The district court must establish a proper factual basis for an accurate guilty plea. State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994). Typically, an adequate factual basis is established by questioning the defendant and asking the defendant to explain the circumstances surrounding the crime. Id.

Under oath, Kaiser admitted possessing the videotape that showed an undressed minor. He also admitted knowing of the images depicted on the videotape and that he had access to the videotape and could have showed it to others h'ad he wished. He further answered “yes” to questions asking if he understood and had carefully reviewed and signed the written petition to plead guilty, had discussed the petition with his attorney, and was satisfied with his attorney’s work. In light of Kaiser’s admissions, the record supports a conclusion that there is an adequate factual basis for Kaiser’s guilty plea.

Because a defendant is not entitled to withdraw a guilty plea on the basis of ignorance of that plea’s collateral consequences, failing to inform of a collateral consequence does not constitute ineffective assistance of counsel, and there was an adequate factual basis underlying Kaiser’s guilty plea, we conclude that the district court did not abuse its discretion in denying Kaiser’s motion to withdraw his guilty plea.

DECISION

The district court did not abuse its discretion in denying the withdrawal of Kaiser’s guilty plea or in concluding that Kaiser was not denied effective assistance of counsel. The plea has an adequate factual basis, and we affirm.

Affirmed.


author: LANSING, Judge

text:
    Julie Ann BURNS, Appellant, v. STATE of Minnesota, Respondent.
    No. C6-00-1089.
    Court of Appeals of Minnesota.
    Jan. 2, 2001.
    Review Denied Feb. 21, 2001.

      John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN; and David J. Hauser, Otter Tail County Attorney, Fergus Falls, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge, PETERSON and STONEBURNER, Judges.
   OPINION

LANSING, Judge

On appeal from an order denying her petition for postconviction relief, Julie Ann Burns argues her conviction for conspiracy to commit a eontrolled-substance crime in the second degree must be reversed because it was based on the uncorroborated testimony of her accomplices. Alternatively, Burns argues she is entitled to a new trial because (a) she did not knowingly and voluntarily waive her right to testify, and (b) the district court failed to ensure that the verdict was unanimous by not asking a juror to clarify his verdict of “Guilty, with a reservation.” We affirm.

FACTS

A jury convicted Julie Ann Burns of conspiracy to commit a controlled-substance offense in the second degree in violation of Minn.Stat. § 152.022, subd. 1(3) (1998). The facts supporting the jury’s verdict establish that James Dan-zeisen and Kelly Sansburn sold 2.8 grams of methamphetamine to a police informant in March 1998. Shortly after the sale, police stopped the truck in which Danzeisen and Sansburn were riding. A search of the men and the truck yielded the “buy money,” methamphetamine packaged in zi-plock bags, empty ziplock bags, two gram scales, and mirrors that appeared to have been used for cutting or snorting cocaine or methampethamine.

The search also yielded some writings and a spiral notebook. The writings alluded to a woman named “Brandy” and listed her home and work telephone numbers and the price at which she could buy methamphetamine. By tracing the telephone numbers, the police were able to identify “Brandy” as appellant Julie Ann Burns.

The spiral notebook contained notes related to drug dealings involving Brandy. One page in the spiral notebook was addressed to Brandy and indicated the prices at which she and her co-conspirators could buy one-eighth of an ounce of methamphetamine, known in the drug trade as an “eight ball.” Another page in the notebook indicated that two “balls” had gone to Brandy for $275 each on an “IOU” and that a $275 balance “owed Brandy” remained.

Police obtained a warrant to search Burns’s home. The search disclosed methamphetamine residue taken from drug paraphernalia, ziplock bags, a gram scale, and a ledger containing drug notes. Scott Listrom, who rented a room from Burns and was present during the search, told police Danzeisen frequently delivered methamphetamine to Burns and Kevin Bagley, a man living in Burns’s home. He also told police that Bagley then sold the drug to others. Because the trial court suppressed the evidence seized from Burns’s home, the state’s case rested only on the testimony of Listrom and Bagley, Burns’s co-conspirators, and on the evidence police found on Danzeisen and Sans-burn and in their truck.

Bagley testified he had been Burns’s friend for 19 years and knew her to use the name “Brandy.” He stated he moved in with Burns in February 1998 and that, between January and March 1998, he saw Danzeisen deliver methamphetamine to Burns on at least four occasions. The methamphetamine was packaged in blue, green, and clear ziplock bags, each color designating a different weight. Burns gave Bagley 15 grams of the drug to sell in exchange for a fee.

Listrom testified he had been present at least eight times when Danzeisen delivered methamphetamine to Burns in her home. He stated Burns then sold the drug to him and to others. He also stated he saw other people use drugs with Burns at her home, but did not know if Burns charged those people for the drugs.

Finally, Sansburn testified that Danzeisen told him he had bought methamphetamine in the Twin Cities from a man named Bob and had given Burns some of that methamphetamine. Sansburn admitted, however, he had no personal knowledge of that exchange.

Following conviction, Burns filed a direct appeal, but the appeal was dismissed to permit Burns to seek postconviction relief. In her petition for postconviction relief, Burns claimed she had been denied the right to testify and the right to effective assistance of counsel. Burns based her ineffective-assistance-of-counsel claim on her attorney’s failure to ask the trial court to clarify the verdict of a juror who, during polling, stated his verdict was guilty “with a reservation.” The trial court denied Burns postconviction relief. This appeal followed.

ISSUES

I. Does the record contain evidence sufficient to corroborate the testimony of Burns’s co-conspirators?

II. Did the postconviction court abuse its discretion in finding that Burns knowingly and voluntarily waived her right to testify?

III. Did the trial court abuse its discretion by not taking steps sua sponte to clarify one juror’s verdict of “Guilty, with a reservation”?

ANALYSIS

I

Burns first argues her conviction must be reversed because it is based on the uncorroborated testimony of her accomplices. We disagree.

An accused may not be convicted of a crime on the uncorroborated testimony of an accomplice. Minn.Stat. § 634.04 (1998). Evidence corroborating an accomplice’s testimony must link the defendant to the crime, but it need not establish a prima facie case of guilt. State v. Adams, 295 N.W.2d 527, 533 (Minn.1980). Corroborating evidence is sufficient if it restores confidence in the accomplice’s testimony by confirming its truth and pointing to the defendant’s guilt in some substantial degree. State v. Landro, 504 N.W.2d 741, 746 (Minn.1993). It is also sufficient if it fairly supports the inference that the defendant was connected to the crime. State v. Ford, 539 N.W.2d 214, 225 (Minn.1995); Adams, 295 N.W.2d at 533. When evaluating the sufficiency of evidence corroborating an accomplice’s testimony, this court must view the corroborating evidence in the light most favorable to the state and resolve any conflicts in favor of the verdict. State v. Norris, 428 N.W.2d 61, 66 (Minn.1988).

A person conspires to commit a controlled-substance offense in the second degree if, on one or more occasions within a 90-day period, the person (a) joins with at least one other person to sell one or more mixtures of a total weight of 10 grams or more containing methamphetamine, and (b) does an overt act in furtherance of the crime. Minn.Stat. §§ 152.022, subd. 1(3), 609.175, subd. 2 (1998).

The record contains sufficient evidence to corroborate Bagley’s and Lis-trom’s testimony that Burns conspired to sell 10 grams or more of methamphetamine within a 90-day period. The evidence police found on Danzeisen and Sansburn and in their truck establishes that Danzeisen was a drug dealer and lends credibility to the testimony that he delivered methamphetamine to Burns at her home. Burns’s association with Dan-zeisen, in turn, corroborates testimony establishing her opportunity and motive to commit the crime. Corroborating evidence includes evidence of a “defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.” Adams, 295 N.W.2d at 533 (citation omitted).

Additionally, the writings and the spiral notebook police seized from Danzeisen’s truck referred repeatedly to Burns by her nickname and listed her home and work telephone numbers. They also listed the prices at which Burns could buy methamphetamine and contained calculations about drug-trafficking activities involving Burns. The writings and the notebook thus restore confidence in Bagley’s and Listrom’s testimony that Burns was involved in drug trafficking and point to Burns’s guilt in some substantial degree.

Finally, Sansburn’s testimony that Dan-zeisen told him he had given Burns methamphetamine he bought from a man named Bob permits the inference that Burns was connected to the drug trafficking and had both opportunity and a motive. The evidence viewed in the light most favorable to the verdict thus sufficiently corroborates the testimony of Burns’s accomplices.

II

Burns next argues the postconviction court abused its discretion in finding that she knowingly and voluntarily waived her right to testify. The record does not support Burns’s claim.

A criminal defendant has a constitutional right to testify on his or her behalf. State v. Walen, 563 N.W.2d, 742, 751 (Minn.1997); State v. Rosillo, 281 N.W.2d 877, 878-79 (Minn.1979). The right to testify is personal. State v. Smith, 299 N.W.2d 504, 506 (Minn.1980). It may thus be waived only by the defendant. Id. Like the waiver of other constitutional rights, the waiver of the right to testify must be knowing and voluntary. Walen, 563 N.W.2d at 751.

A person seeking postconviction relief bears the burden of proving that he or she did not knowingly and voluntarily waive the right to testify. Id. On review, our role is limited to determining whether the record contains sufficient evidence to sustain the postconvinction court’s findings. See Minn.Stat. § 590.04, subd. 3 (1998); Gassier v. State, 590 N.W.2d 769, 771 (Minn.1999). We will not disturb a postconviction court’s decision absent an abuse of discretion. Gassier, 590 N.W.2d at 771.

The postconviction court did not abuse its discretion in finding that Burns knowingly and voluntarily waived her right to testify. Burns’s trial counsel testified that she met with Burns before trial and told her both that she had a right to testify and that the decision whether or not to testify was Burns’s. They then discussed the advantages and disadvantages of testifying. Counsel stated she told Burns that if she testified she would be impeached with a prior welfare-fraud conviction. Counsel recommended against testifying and Burns agreed.

During a recess near the end of the state’s case, Burns again raised the subject of testifying. Once again, counsel told Burns she had the right to testify but advised her against it. According to counsel, Burns’s subsequent statement that she did not want to testify seemed unequivocal.

Burns admitted discussing with counsel whether to testily, but she denied discussing the pros and cons of testifying. Burns stated that counsel told her she had the “option” to testify, but did not tell her that the decision whether or not to testify was her decision. Burns also stated that counsel told her twice, “You are not taking the stand.”

On this record, the postconviction court did not abuse its discretion in finding that Burns knowingly and voluntarily waived her right to testify. In determining whether a petitioner has met his or her burden of proof, the postconviction court may credit trial counsel’s testimony and discredit defendant’s testimony. Walen, 563 N.W.2d at 751. Counsel testified she told Burns both that she had a right to testify and that the decision whether to testify was Burns’s. The court credited counsel’s testimony, which supports the court’s finding that Burns knowingly and voluntarily waived her right to testify.

Burns argues that she did not waive her right knowingly and voluntarily because counsel did not expressly tell her that her right to testify was absolute and that she could, therefore, testify despite counsel’s recommendation. But counsel communicated to Burns all the information necessary for Burns to make .an informed decision about whether to testify. Burns could have inferred from counsel’s statements that she could have testified despite counsel’s recommendation. Nothing in counsel’s explanation of the right to testify suggested otherwise. See State v. Thomas, 590 N.W.2d 755, 757 (Minn.1999) (holding waiver of right to testify was knowing and voluntary when defendant acknowledged on the record that his attorney had advised him of advantages and disadvantages of testifying and that it was his decision not to testify).

Ill

After the verdict was announced, Burns’s counsel asked the court to poll the jury. In response to the question, “Is this your verdict?” one of the jurors answered, “Yes, with a reservation.” Burns did not object to the response or ask the court to have the juror clarify it. Nor did the court sua sponte ask for clarification. Burns claims that by not asking the juror to clarify his response, the court failed to ensure a unanimous verdict.

Defendants in criminal cases have a constitutional right to a unanimous verdict. Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948) (holding “[u]nanimity in jury verdicts is required where the Sixth and Seventh Amendments apply”); United States v. Morris, 612 F.2d 483, 488-89 (10th Cir.1979) (stating unanimity requirement applies in federal criminal cases not only by virtue of Fed.R.Crim.P. 31(a), but also by virtue of the Sixth Amendment). Polling is one means of ensuring unanimity. Mor ris, 612 F.2d at 489 (citation omitted). A criminal defendant’s right to have the jury polled is thus a corollary to the defendant’s right to a unanimous verdict. State v. Wiese, 162 Wis.2d 507, 469 N.W.2d 908, 911 (1991).

The purpose of jury polling is to ensure that “each of the jurors approves of the verdict as returned [and] that no one has been coerced or induced to sign a verdict to which he does not fully assent.” Hoffman v. City of St. Paul, 187 Minn. 320, 325, 245 N.W. 373, 375 (1932) (quoting Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 638-39, 43 L.Ed. 944 (1899)). When confusion arises during polling on whether a particular juror approves of the verdict as returned, the trial court may question the juror to clarify the confusion. State v. Ware, 498 N.W.2d 454, 459 (Minn.1993) (stating trial court is given latitude in questioning jurors to clarify confusion arising from jury poll). But the court must be careful “not to coerce or appear to intimidate the juror [being questioned].” Id.

The decision to question a juror is discretionary and turns on the degree to which the juror’s answer to the poll was reluctant, equivocal, or conditional. See M.J. Greene, Annotation, Juror’s Reluctant, Equivocal, or Conditional Assent to Verdict, on Polling, as Ground for Mistrial or New Trial in Criminal Case, 25 A.L.R.3d 1149, 1153-56 (1969 & Supp. 2000). When a juror’s answer unequivocally indicates that the juror disagrees with the verdict or was coerced into assenting to it, the district court must either discharge the jury or order that the jury retire for further deliberations. See Minn. R.Crim.P. 26.03, subd. 19(5) (listing trial court’s options when poll does not conform to verdict). See generally Annotation, supra at 1153-54. In limited cases, the trial court may also question the juror further. See Williams v. United States, 419 F.2d 740, 744-47 (D.C.Cir.1969) (additional questioning permitted when it was apparent juror was confused about question asked during poll); Slocum v. United States, 325 F.2d 465, 468 (8th Cir.1963) (further polling permitted when foreman inadvertently signed both guilty and not-guilty verdict forms but drew a line through his signature on not-guilty verdict form before returning verdict).

When, on the other hand, a juror’s response indicates that the juror assented to the verdict voluntarily but with reservations or a degree of reluctance, the trial court may accept the verdict as unanimous without further inquiry. See, e.g., Johnson v. United States, 470 A.2d 756, 759 (D.C.1983) (juror’s response of “Guilty, I guess” did not indicate uncertainty about verdict); Parker v. State, 81 Ga. 332, 6 S.E. 600, 601 (1888) (juror’s response that he had agreed to verdict “reluctantly” was sufficient to ensure unanimous verdict — assent is sufficient even if reluctant); Terry v. State, 224 Ga.App. 157, 480 S.E.2d 193, 197 (1996) (juror’s statement that he agreed with verdict but had “reservations” did not prevent verdict from being unanimous); Watts v. State, 142 Ga.App. 857, 237 S.E.2d 231, 232 (1977) (response that verdict was jurors’ verdict “with question” did not render verdict defective — state was required only to remove reasonable doubt from jurors’ minds, not to remove every doubt); State v. Daniels, 347 S.W.2d 874, 880 (Mo.1961) (in absence of motion for mistrial, response that verdict was juror’s “with reservations” did not reasonably suggest that juror had not assented to verdict or that her concurrence had been involuntary). But cf. Lattisaw v. State, 329 Md. 339, 619 A.2d 548, 551-52 (1993) (juror’s response of “Yes, with reluctance,” was ambiguous and required trial judge to take corrective action).

The trial court has latitude in deciding whether further inquiry is necessary to clarify a juror’s reluctant assent. See Jackson v. United States, 386 F.2d 641, 643 (D.C.Cir.1967). See generally Annotation, supra at 1151 (the proper course of action when a juror acquiesces in the verdict but his or her response shows a degree of reservation depends largely on the trial court’s discretion). In deciding whether to ask for clarification, the trial court may consider not only the exact words used by the juror, but also the surrounding circumstances, including the juror’s expression and demeanor during polling. See, e.g., People v. Superior Court, 67 Cal.2d 929, 64 Cal.Rptr. 327, 434 P.2d 623, 625 (1967); see also Annotation, 25 supra at 1151-52. We adopt this court’s reasoning in State v. Greer, No. C0-93-1374, 1994 WL 164217, at *3 (Minn.App. May 3, 1944), review denied (Minn. June 29, 1994), and hold that the district court may also consider the juror’s voir dire testimony. The court’s determination of whether a juror acquiesced in the verdict will not be disturbed absent a clear abuse of discretion. United States v. Brooks, 420 F.2d 1350, 1353 (D.C.Cir.1969) (stating that because unspoken factors play large role in ascertaining meaning of juror’s response to poll, trial judge has discretion in evaluating juror’s responses, and its “reasonable exercise of * * * discretion should be accorded proper deference by a reviewing court”).

We conclude that the district court did not abuse its discretion in this case by finding that the juror acquiesced to the verdict freely and that no additional inquiry was necessary. The juror’s voir dire testimony, counsel’s postconviction testimony, and the district court’s own observations of the juror’s demeanor during polling support the postconviction court’s determination that the juror’s response was not sufficiently uncertain to require additional polling.

Voir dire testimony established that the juror did not trust informants. When asked about the use of informants in criminal investigations, the juror stated, “Well. * * * Nobody likes a tattletale.” When asked if he would prejudge an informant’s testimony, the juror replied, “[W]hen you put a rat in a corner, it’s going to have to do something.” The juror further stated he would question the reliability of an informant’s testimony because “[informants are] trying to weasel out of something themselves.” The district court could reasonably interpret the juror’s response in light of his testimony on voir dire to mean “Yes, I agree with the verdict even though I distrust informants.” The district court did not, therefore, abuse its discretion in not asking the juror sua sponte to clarify his response.

Even when considered independently of the juror’s testimony on voir dire, the answer “Yes, with a reservation” does not reasonably suggest the juror disapproved of the verdict or was coerced into signing it. The initial “yes” shows the juror’s concurrence in the verdict. See People v. Epps, 197 Ill.App.3d 376, 143 Ill.Dec. 702, 554 N.E.2d 637, 641 (1990) (concluding the response “Yes” was unambiguous and, when weighed against ambiguity created by juror’s emotion in announcing her verdict, tilted scales of justice in favor of a finding that her verdict was voluntary). The qualification that follows does not necessarily imply disagreement or coercion. It suggests merely that the juror agreed with the verdict but with a reservation. Reservations are not unusual in reaching verdicts in criminal cases and should not be held to nullify an initial concurrence. The law requires only the absence of reasonable doubt, not the absence of all doubt. Waits, 237 S.E.2d at 232. Trial counsel’s testimony and the court’s own observation that the juror sounded firm and did not appear to be under coercion when he announced his verdict support the postcon-viction court’s finding that the juror acquiesced in the verdict freely.

Considering the juror’s response and Burns’s failure to object to it or ask for clarification, the trial court was within the bounds of its discretion in concluding that the juror’s response did not compromise the unanimity of the verdict and in not questioning the juror further.

DECISION

Because the testimony of Burns’s accomplices was corroborated by other evidence, Burns knowingly and voluntarily waived her right to testify, and the jury verdict was unanimous, we affirm the district court’s denial of postconviction relief.

Affirmed.