author: APPEL, Justice.

text:
    STATE of Iowa, Appellee, v. Errol Edward DECKER, Appellant.
    No. 06-0478.
    Supreme Court of Iowa.
    Feb. 8, 2008.

      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson and Stephan J. Japuntich, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Harold Denton, County Attorney, for appellee.
   APPEL, Justice.

In this case, we must decide whether a videotaped interrogation, suppressed during the State’s case-in-chief for constitutional violations, can be admitted as rebuttal evidence to combat an insanity defense. The trial court admitted the videotape, on the State’s motion, as evidence of the defendant’s demeanor less than twenty-four hours after commission of the assault. The defendant claims that the admission of the videotape violated his Fifth and Fourteenth Amendment rights by impermissi-bly using invocations of his right to remain silent as evidence of sanity. At the conclusion of a bench trial, the court convicted the defendant of attempted murder, burglary in the first degree, and willful injury. For the reasons set forth below we affirm.

I. Factual Background and Prior Proceedings.

The evidence at trial showed that Amy McNeal, a young mother and Cedar Rapids native, began dating Errol Edward Decker, the defendant, in August 2003. The couple’s year-long relationship was a tumultuous one, punctuated by a series of breakups and reconciliations. Finally, McNeal permanently ended the relationship in July 2004. Thereafter a series of increasingly bizarre and violent events occurred. McNeal’s dog disappeared. After several days, she recovered the animal. Although Decker claimed not to have been involved, McNeal thought otherwise. Fearing for the safety of herself and her thirteen-year-old son Jacob, McNeal unsuccessfully attempted to obtain a no-contact order. On the advice of local police, however, McNeal sent Decker a letter detailing her wish to have no further contact with him.

On August 24, 2004, just days after the Linn County Sheriffs Department delivered the letter, McNeal returned home around noon to care for her dog. Although it was her routine to return home each day, she usually did not take her lunch hour until one o’clock. After taking the dog outside, McNeal immediately noticed that her attic door was ajar and the rug normally pushed against it had been moved. As she went to investigate, Decker emerged from the hallway and attacked her. Decker repeatedly hit McNeal with a hammer on her head and neck and stabbed her with a knife in her chest, stomach, and back. McNeal testified that she had never seen the knife used in the attack before, but believed that the hammer could have come from a tool kit in her home.

According to the State’s evidence, McNeal attempted to fight Decker off and begged for her life. Decker responded that McNeal “was dead,” “that she had ruined his life,” and that he had already killed her son Jacob. The attack eventually progressed to Jacob’s bedroom. At some point, Decker headed to the basement and called for “boy,” and then for “Ted.” No one responded. McNeal used Decker’s momentary absence to call 911. Before the call connected, however, Decker returned, hitting her on the head with the hammer and choking her around the neck. Decker finally left the home after McNeal promised not to call the police.

Investigating police did not find anyone in the home, nor did they immediately locate an acquaintance of Decker’s named Ted. McNeal testified that she did not see anyone besides Decker at any point before, during, or after the attack. Exhibits introduced by the State showed Decker’s point of entry as a basement window. Jacob was later located, unharmed, at his school.

On the urging of his family, Decker turned himself in to the Iowa City Police Department and was transported to the Linn County jail. Upon arrival at the jail, Decker was arrested for attempted murder. The following morning, Detective Anne Deutmeyer initiated Decker’s interrogation. At the outset, Deutmeyer verbally informed Decker of his Miranda rights. She also presented Decker with a written statement of his Miranda rights for signature. When Decker did not sign the document, Deutmeyer asked him if he understood the information on the sheet. Decker responded, “I can read.” About a minute later, Deutmeyer asked Decker whether he wanted to talk to her, and Decker responded “not really.” When De-utmeyer continued her questioning, Decker was lethargic, routinely gazed at the floor, and was only minimally responsive to questioning. During the next twenty minutes, Deutmeyer repeatedly asked the defendant if he wanted to talk to her. In response, Decker either did not reply or stated that “I don’t want to talk about it” or “I don’t have nothing to say about it.”

The State charged Decker with attempted murder, burglary in the first degree, and willful injury. He entered a plea of not guilty, and later asserted the affirmative defenses of insanity and diminished capacity. After several requests to represent himself, the court appointed Decker a new attorney. Decker then moved to suppress videotaped statements he made during his interrogation.

The motion to suppress was heard by Judge Douglas Russell. Judge Russell granted defendant’s motion to suppress, finding that the detective failed to honor Decker’s repeated invocations of his right to remain silent. Further, Judge Russell held that Deutmeyer made a promise of leniency in violation of Decker’s right against self-incrimination. As a result, Judge Russell ruled that any statements made by Decker during the interrogation be suppressed.

The matter came to a bench trial on August 15 before Judge Marsha Beckel-man. At trial, the State presented detailed testimony about the assault from the victim, Amy McNeal. The State further offered testimony from two Cedar Rapids police officers. The officers testified that Decker refused to say anything about the crime during transport to the Linn County jail. His demeanor was described as “very quiet, sweaty, just sat quietly in the back of our squad car.”

In response, Decker put forth an insanity defense. His first witness was Susan Blome, a long-time registered nurse with experience in providing assessments of and medical monitoring for Linn County jail inmates. She testified that Decker was on suicide precaution while being held prior to trial. In records, she noted that Decker had difficulty tracking and answering questions. Blome characterized his mood as “vacant,” affect as “restricted,” and facial expressions “flat.” She also described Decker as alert and oriented, knew the date and where he was, and that his speech rate and rhythm were normal. Blome noted that Decker reported “psychotic symptoms” including hallucinations, auditory [sensations], and paranoia. During his stay in the Linn County jail, Decker reported that he heard voices and requested an increase in medication. Ultimately, Dr. Ali Safdar diagnosed Decker as “probable bi-polar with psychotic symptoms.” At the time of his diagnosis, Dr. Safdar noted that Decker was not hearing voices.

Additionally, Decker offered expert testimony from Dr. Scott Stuart. Stuart conducted a one-and-a-half hour interview with Decker, examined his medical records, and reviewed police reports about the events of August 24. The doctor concluded that at the time of the attack, Decker was suffering from untreated schizophrenia. As a result, the defendant was unaware of the nature and consequences of his actions, and unable to distinguish between right and wrong. In support of his opinion, Stuart noted that Decker called out to people that were not there. In particular, Stuart noted that Decker called out to “Ted,” who was not at the scene of the crime, and had various conflicting versions about Ted’s involvement. Stuart concluded that Ted was part of Decker’s delusional system. Relying on police reports that Decker was “not [all] there,” Stuart concluded that at the time of the crime he was in the midst of an untreated psychotic episode, consistent with untreated schizophrenia.

In addition to the direct testimony of Blome and Stuart, Decker offered into evidence medical records regarding his mental health. The records generally reveal a long history of treatment for psychological and behavioral matters. The diagnoses fluctuated from childhood behavior disorder, childhood schizophrenia, mild mental retardation, unsocialized aggressive reaction disorder, and attention deficit disorder.

On rebuttal, the State called Detective Deutmeyer to the stand. Deutmeyer was asked about her observations of Decker’s demeanor at the time of his interrogation. Deutmeyer testified that “he didn’t want to make eye contact with me, he was very evasive.” Decker’s counsel objected to the characterization that Decker did not want to make eye contact, asking the court to direct the witness to recast the testimony to simply state that Decker did not make eye contact with her. The district court overruled the objection. Deutmeyer further testified, without defense objection, “As I was speaking with him, he continually looked at the floor. He was kind of fidgety. That was about it.”

At this point, the State offered into evidence the entire videotape of Decker’s police interrogation. The State recognized that the tape been had suppressed during its case-in-chief, but contended that the defense had opened the door by asserting an insanity defense. Specifically, the State alleged that the tape would show the defendant’s “capacity” or demeanor shortly after the incident. The State further argued that the tape provided better evidence of Decker’s capacity than Detective Deutmeyer’s testimony. Finally, the State argued that the tape did not contain any statements that would be regarded as incriminating in any event.

Decker’s attorney objected to the offer of the videotape. The defense argued that the tape should not be admitted in light of the suppression ruling. Defense counsel conceded that the statements were made close in time and proximity, but questioned whether any arguably relevant aspects of the tape could be separated from unlawfully obtained evidence. According to defense counsel, “I don’t believe there is any way that ... the court could be able to look at the tape and observe for demeanor and so forth and not listen to what is said on the tape.” The district court overruled Decker’s objection and admitted the interrogation videotape.

After the videotape was admitted, Deut-meyer continued her testimony. She testified that she did not know whether Decker understood her questions, but that she had to ask him questions several times before she got an answer. In terms of speech and demeanor, she testified, “He just seemed like he had a lot on his mind and wasn’t really there.”

The State also called Candice Martin, a friend of McNeal, as a rebuttal witness. She testified that she observed Decker a couple of times a week prior to the incident leading to his arrest. She testified that she had not observed Decker engage in any unusual or bizarre behavior.

The State’s final witness on rebuttal was Ted Dunkel, who was located by McNeal’s family on the third day of trial. Dunkel testified that he gave Decker a ride in his van to the area surrounding McNeal’s home on the date of the incident and that Decker instructed him to wait in the van. After waiting for more than half an hour, Dunkel left the keys in the van and walked to work. According to Dunkel, Decker appeared “fine,” “normal,” “not angry,” and “quiet.”

In response, the defense recalled Dr. Stuart. Dr. Stuart reconfirmed his prior diagnosis, despite “Ted’s” discovery.

In her ruling, Judge Beckelman rejected Decker’s insanity defense and found Decker guilty as charged. With respect to insanity, Judge Beckelman noted that while Dr. Stuart supported his opinion by pointing to auditory hallucinations with a nonexistent “Ted,” when the crime was committed the evidence showed that Ted, in fact, was quite real and in the immediate vicinity.

Contrary to Dr. Stuart, Judge Beckel-man noted that the medical records, at least from 1976 to the present, tended to support the absence of ongoing auditory or visual hallucinations, psychotic symptoms, and delusional thinking. As a result, she disagreed with the opinion of Dr. Stuart that Decker had a long and clearly documented history of paranoid delusions. Instead, she found that claims of Decker’s hallucinations were self-reported only after his arrest. Further, review of the medical records drove Judge Beckelman to the opposite conclusion, namely, that Decker was of sufficient intelligence and mental capacity to form specific intent.

Aside from the medical evidence, Judge Beckelman also relied upon the testimony of lay witnesses. She observed that McNeal and Martin, both of whom had ample opportunity to observe Decker prior to the crime, testified that he behaved in a normal fashion.

Finally, Judge Beckelman cited the facts surrounding the attack. She concluded that the evidence showed that Decker purposefully planned and carried out the attack in revenge for the breakup of his relationship. Judge Beckelman found that Decker perpetrated the crime through deliberate, logical, and methodical steps.

Subsequent to his conviction, Judge Beckelman sentenced Decker to twenty-five years on both the attempted murder and burglary counts and to ten years on the willful injury count. Additionally, the court ordered that each of these sentences run consecutively, for a total of sixty years. Decker filed a timely notice of appeal.

II. Standard of Review.

Decker alleges that the admission of the interrogation video violated his right to due process by compelling him to be a witness against himself in violation of Article I, section 9 of the Iowa Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. We review constitutional claims de novo. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003).

III. Preservation of Error.

The State argues that Decker has failed to preserve error on his constitutional claim, citing: (1) Decker’s failure to object to either the calling of Detective Deut-meyer as a rebuttal witness or to her testimony regarding Decker’s interrogation demeanor; and (2) Decker’s failure to articulate the constitutional basis for his objection at trial.

Although the State is certainly correct that the detective introduced demean- or evidence without objection prior to the videotape’s introduction, we do not find this omission fatal. As will be discussed below, the demeanor evidence elicited before the tape’s introduction was permissible, physical demeanor evidence. The videotape, however, contains impermissible evidence — namely Decker’s repeated invocations of his right to remain silent and testimonial demeanor evidence. Decker did interpose a timely objection to the offer of the videotape and, as a result, the objection was timely with respect to this evidence.

Secondarily, the State argues that Decker’s objection to the admission of the videotape was too general to preserve error. The general rule with respect to error preservation is that unless the reasons for an objection are obvious a party attempting to exclude evidence has the duty to indicate the specific grounds to the court so as to alert the judge to the question raised and enable opposing counsel to take proper corrective measures to remedy the defect, if possible. State v. Clay, 213 N.W.2d 473, 476-77 (Iowa 1973). Although Decker’s counsel failed to state his objection with particularity, counsel repeatedly referenced the prior suppression ruling which held that the interrogation was inadmissible for Miranda violations and promises of leniency. Under this record, both the State and the court were informed of the underlying nature of the objection through incorporation of the grounds previously raised by the defense. As a result, error is preserved.

IV.Discussion.

A. Issues Presented on Appeal. Decker asserts that the trial court erred in admitting the videotaped interrogation in violation of his Fifth Amendment rights as incorporated against the State through the Due Process Clause of the United States Constitution and through the parallel provision in the Iowa Constitution. The State does not appeal the original suppression order, but asserts that the video was proper rebuttal evidence to show Decker’s demeanor less then twenty-four hours after his attack on McNeal. According to the State, this evidence of Decker’s demeanor tends to show that Decker was not delusional at the time the crime was committed.

The entire videotape of Decker’s interrogation was admitted into evidence for the purpose of showing Decker’s “demeanor.” The admission of the videotape in its entirety gives rise to several constitutional issues.

First, by offering the entire tape into evidence, the State included portions of the videotape where Decker asserted his Miranda rights. The question arises whether these portions of the videotape, which arguably demonstrate that the defendant is capable of rational and calculated behavior, were admissible and, if not, whether their admission requires reversal. Second, the videotape contains testimonial demean- or evidence elicited after Deutmeyer refused to honor Decker’s Miranda rights and after she made, according to the suppression ruling, an unlawful promise of leniency. The question arises whether the admission into evidence of testimonial demeanor evidence after these infractions was permissible and, if not, whether the admission requires reversal.

B. Admissibility of Testimony Showing Invocation of and Exercise of Miranda Rights. Over twenty years ago, the United States Supreme Court in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), held that due process prohibited the use of a defendant’s invocation of Miranda rights as evidence of his sanity. Expanding upon its decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court noted that it would be fundamentally unfair to assure a suspect that his silence would not be used against him and then later renege on that promise to attack his proffered defense. Wainwright, 474 U.S. at 292, 106 S.Ct. at 639, 88 L.Ed.2d at 630-31. In so ruling, the Court emphasized that “silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as a desire to remain silent until an attorney has been consulted.” Id. at 296 n. 13, 106 S.Ct. at 640 n. 13, 88 L.Ed.2d at 623 n. 13. In the videotape offered in this case, Decker asserted his right to remain silent at least five times and did indeed remain silent for a considerable period of time. Under Greenfield, this evidence is not admissible to show lack of sanity.

C. Admissibility of Demeanor Evidence Obtained After Miranda Violations and Unlawful Offer of Leniency. It is axiomatic that only evidence that is testimonial in nature is protected by the Fifth Amendment. Nontestimonial evidence thus is unprotected and unaffected by Miranda and Fifth Amendment violations. “[I]n order to be considered testimonial, an accused’s communication must itself, explicitly or implicitly, relate to a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184, 197 (1988).

Some evidence obtained through a defendant’s arrest is clearly nontestimonial. For example, compelling an arrested suspect to submit to fingerprinting, photographing, or other physical measurements, to write or speak for identification, to stand, walk, or make a particular gesture, or to submit to a blood test does not result in the gathering of testimonial evidence. Schmerber v. State, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916 (1966).

The line between testimonial and non-testimonial evidence is more difficult to draw, however, when the evidence is obtained in response to a police interrogation. In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the United States Supreme Court held that “any slurring of speech and other evidence of lack of muscular coordination” in response to direct questioning “constitute nontestimonial components of those responses.” Muniz, 496 U.S. at 592, 110 S.Ct. at 2645, 110 L.Ed.2d at 546. Slurring and lack of muscular coordination relate, of course, to physical rather than communicative acts or responses.

At the same time, the Supreme Court in Muniz rejected the argument that inferring the physiological function of an accused’s brain from his statements was non-testimonial. Id. at 593, 110 S.Ct. at 2646, 110 L.Ed.2d at 546. According to the court, the question is “whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence.” Id. Because the inference of confusion arose from the content of the accused’s statements and not from a purely physical response, the inference was impermissible as arising from a testimonial act. See Miller v. Dugger, 838 F.2d 1530, 1542 (11th Cir.1988) (“The psychiatrist based his diagnosis not just on Cape’s demeanor and the sound of Cape’s voice, but on the contents and substance of Cape’s answers to his questions, ‘thus making Cape’s communications to him testimonial in nature.’ ” (quoting Cape v. Francis, 741 F.2d 1287, 1294 (11th Cir.1984), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985))).

Drawing on Muniz, it appears that Decker’s fidgeting and slow speech pattern amount to nontestimonial evidence. On the other hand, any evidence related to the quality or content of his communication is testimonial and protected by Fifth Amendment privileges. To the extent the videotape contains communicative responses after Decker asserted his Miranda rights or the promise of leniency was made, including his ability to “track” or understand the conversation, it is inadmissible.

D. Application of Principles. Under the applicable case law, the nontes-timonial evidence contained on the videotape, such as fidgeting, staring at the ground, the physical quality of his speech, and the lack of any involuntary hallucinations, would be admissible demeanor evidence notwithstanding the constitutional violations. Muniz, 496 U.S. at 592, 110 S.Ct. at 2645, 110 L.Ed.2d at 546. Portions of the videotape, therefore, were properly admitted into evidence.

The problem, as stated by the defense, however, is that to the extent the tape contains any nontestimonial demeanor evidence, it is intertwined with impermissible evidence. In viewing the tape, the district court would be required to ignore Decker’s repeated attempts to exercise his Miranda rights, ignore the communicative content of Decker’s testimonial statements, and focus solely on the physical aspects of Decker’s demeanor.

Decker argues that it would be extremely difficult for the finder of fact to separate out the permissible from the impermissible evidence, requiring reversal of his convictions. If this case were tried to a jury, Decker would have a strong argument. Before a jury, the limited probative value of the admissible features of the videotape would in all likelihood be outweighed by its prejudicial effect. Even with limiting instructions, it would be difficult for an untrained jury to consider only the physical demeanor evidence and not consider the fact that the videotape showed Decker invoking his Miranda rights and not consider the communicative content of his statements. See Robinette v. State, 741 N.E.2d 1162 (Ind.2001) (holding that a trial court’s limiting instruction could not cure the wrongful admission of Miranda invocations in a jury trial).

Here, however, trial was to the court. Judges routinely are called upon to consider the admissibility of evidence that may be later excluded at trial. Judicial knowledge of evidence which is subsequently not admissible does not ordinarily undermine later judicial determinations in the case. See State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004) (noting that “legal training helps equip those in the profession to remain unaffected by matters that should not influence the determination”).

The impermissible portions of the videotape, moreover, were not admitted into evidence. The record in this case demonstrates that the State was not offering the videotape to establish the truth of any assertions made by Decker or to show that Decker was rational enough to invoke his Fifth Amendment rights. Instead, the State asserted that the videotape was admissible for the limited purpose of allowing the court to “see the defendant and observe his demeanor.” While the district court simply admitted the videotape without further comment, in context, it is clear that the evidence was offered and admitted for the limited purpose of showing Decker’s demeanor.

Our rules of evidence allow evidence to be admitted for a limited purpose even though that same evidence is inadmissible for another purpose. Iowa R. Evid. 5.105. When admissibility is limited, the court “restrictfe] the evidence to its proper scope and instruct[s] the jury accordingly.” Id. When the case is tried to the court, however, we assume that the court considered the tape solely for the limited purpose for which it was offered. Here, the videotape was admitted for the limited purpose of demonstrating Decker’s demeanor. The mere fact that the tape also collaterally contained his Miranda invocations and testimonial demeanor evidence, thus did not make the tape wholly inadmissible.

There is no indication in the court’s decision, moreover, that it considered the impermissible evidence — either the Miranda invocations or the testimonial demeanor evidence — in reaching its decision. Although Judge Beckelman referred to the professional and lay demeanor evidence elicited at trial, she made no mention of the videotape or any of the evidence contained therein. See State v. Sailer, 587 N.W.2d 756 (Iowa 1998) (holding that the reviewing court places “great confidence” in judges to follow the law and will not assume that evidence in a sentencing hearing was considered for an improper purpose without a clear showing); In re O’Hara’s Estate, 204 Iowa 1331, 217 N.W. 245 (1928) (holding that in a bench trial the appellate court presumes that the final judgment was based solely upon competent evidence and that impermissible evidence was disregarded).

Nothing in Matheson is to the contrary. In Matheson, the district court in a sentencing proceeding admitted into evidence a victim impact statement related to an out-of-state crime. 684 N.W.2d at 244. The evidence offered and admitted in Matheson’s sentencing proceeding was not admissible for any purpose. Id. Further, the improperly admitted evidence in Matheson contained substantial information not available from any other source. Id. at 245. Because the district court in Matheson did not affirmatively indicate that the harmful evidence was not considered, we vacated the resulting sentence and remanded the case for resentencing before a different judge. Id.

Here, as in Matheson, the district court order did not mention the challenged evidence in reaching its decision and instead relied upon other evidence in concluding that Decker was sane at the time of the crime. Unlike Matheson, however, the challenged evidence was offered and admitted for a valid limited purpose— physical demeanor evidence. Decker did not below and does not now question that demeanor evidence would be at least of some relevance on the issue of sanity. Because the tape had a permissive evidentia-ry purpose, its admission was not per se in error. Moreover, without at least some indication that the district court considered the tape’s impermissible evidence, Decker has not demonstrated that his right to due process has been violated.

Y. Conclusion.

Although it is clear that the police interrogation video contained permissible and impermissible evidence, its admission did not amount to constitutional error as (1) the district court properly restricted the tape’s admission for demeanor evidence only; and (2) there is no indication that the court thereafter considered the videotape for an improper purpose. For the above reasons, the decision of the district court in this case is affirmed.

AFFIRMED.

      . While Decker argues that the admission of the interrogation tape violated both state and federal constitutional provisions, he has failed to articulate any ground on which to treat or interpret the clauses differently. As such, the state constitutional ground will not be analyzed separately. See Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 795 (Iowa 2004) ("Because the parties have articulated no basis for distinguishing these clauses for purposes of determining a parolee’s right to counsel, our discussion of the federal due process claim applies equally to the claim made under the Iowa Constitution.”).


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Appellant, and AFSCME Iowa Council 61, Intervenor.
    No. 06-0430.
    Supreme Court of Iowa.
    Feb. 8, 2008.

      Jan V. Berry, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Robert K. Porter, Assistant Attorney General, for appellee.
   TERNUS, Chief Justice.

The appellant, Public Employment Relations Board (PERB), ordered the State to produce documents requested by the inter-venor union, AFSCME Iowa Council 61, for use in several employee grievance proceedings. The State sought judicial review, claiming PERB’s order exceeded the authority granted to it under Iowa Code chapter 20 (2001) because the State’s failure to disclose the documents was not a willful violation of that statute. The district court agreed, ruling PERB could not provide relief to the union unless PERB found a willful violation.

On appeal to this court, PERB contends it has statutory authority to remedy non-willful, as well as willful, violations of chapter 20. After considering the arguments of the parties and relevant authorities, we agree with the district court that PERB exceeded its authority. Therefore, we affirm the district court’s reversal of PERB’s order.

I. Background Facts and Proceedings.

This appeal had its genesis in the State’s discipline of bargaining unit employees represented by the union. In the summer of 2002, these employees were disciplined for inappropriate email usage. The employees then pursued the grievance procedure outlined in the collective bargaining agreement, which eventually led to binding arbitration. In preparation for the arbitration hearings, the union asked the State to produce records of discipline imposed on management employees for similar misconduct. The State refused to produce these records, claiming they were confidential.

Shortly thereafter, the union filed two prohibited practice complaints with PERB. In these complaints, the union asserted the State had violated Iowa Code section 20.10(2)(a), (6), and (f) in refusing to produce the requested documents in the grievance process. An evidentiary hearing was held on these complaints before an administrative law judge (ALJ).

While the parties were awaiting a decision from the ALJ, the union served a subpoena duces tecum in one of the grievance proceedings, requesting various documents regarding the investigation and discipline of all State employees for email usage in July of 2002. The State filed a motion to quash, which was sustained in part and overruled in part by an arbitrator on September 8, 2003.

Shortly after the arbitrator quashed, in part, the union’s subpoena, the ALJ issued a proposed decision on the union’s prohibited practice complaints. The ALJ concluded the State’s refusal to produce the requested documents violated its “statutory duty to bargain in good faith” under section 20.9. Although not cited by the union in its complaints, section 20.10(1) makes it a prohibited practice “to willfully refuse to negotiate in good faith with respect to the scope of negotiations defined in section 20.9.” Iowa Code § 20.10(1) (emphasis added). The ALJ stated there was no evidence in the record that would establish the willfulness of the State’s violation of section 20.9. Nonetheless, the ALJ held “PERB’s remedial authority is not limited to only those situations where prohibited practices have been established, but also extends to ‘ordinary violations.” Accordingly, the ALJ ordered the State to disclose the requested information “for the limited purpose of preparing for and litigating these specific grievances.” On appeal to the agency, the ALJ’s proposed decision was adopted by PERB in spite of its knowledge of the conflicting decision by the arbitrator.

The State sought judicial review in the district court. After analyzing the statutory provisions, the district court held PERB did not have the power to remedy “ordinary,” i.e., nonwillful, violations of section 20.10. Therefore, the district court reversed PERB’s decision. PERB has appealed.

II. Scope of Review.

The narrow issue before this court is whether Iowa Code chapter 20 provides for “ordinary” violations of section 20.10, and if so, whether the statute gives PERB authority to remedy such violations. To resolve this issue, we must interpret the statute. Generally, the interpretation of a statute is a matter of law for this court. See Insituform Techs., Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 800 (Iowa 2007). “Nevertheless, we are required to give appropriate deference to the agency’s interpretation in certain situations.” Id. Under the Iowa Administrative Procedure Act, we give deference to an agency’s interpretation of a statute if interpretation of the statute “has clearly been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(10)(Z) (providing for reversal under such circumstances only if agency’s interpretation was “irrational, illogical, or wholly unjustifiable”).

Upon our review of chapter 20, we conclude PERB has not been granted interpretive discretion with respect to that statute. In relevant part, section 20.1 provides:

The general assembly declares that the purposes of the public employment relations board established by this chapter are to implement the provisions of this chapter and adjudicate and conciliate employment-related cases involving the state of Iowa and other public employers and employee organizations.

Id. § 20.1 (emphasis added). In addition, this section describes the powers and duties of PERB to include determining appropriate bargaining units, adjudicating prohibited practice complaints, fashioning appropriate remedial relief for violations of chapter 20, acting as arbitrators, providing mediators, collecting and disseminating information, and assisting the attorney general in preparation of legal briefs. See id. Section 20.6 provides further detail for the duties and powers of PERB, requiring the board to administer the provisions of ehap-ter 20, collect data, establish minimum qualifications for arbitrators and mediators and their compensation, hold hearings, and adopt rules “to carry out the purposes of this chapter.” See id. § 20.6.

While it is obvious the legislature has afforded PERB extensive powers to implement and administer the provisions of chapter 20, it is not clear that the legislature intended to delegate interpretive powers to PERB. See Waterloo Educ. Ass’n v. Iowa Pub. Employment Relations Bd., 740 N.W.2d 418, 420 (Iowa 2007) (holding “whether a proposal is a mandatory subject of collective bargaining, as defined by Iowa Code section 20.9, has not been explicitly vested in PERB’s discretion”). Compare Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 509 (Iowa 2003) (holding state agency’s general regulatory authority over health care facilities did not qualify as a legislative delegation of discretion to elaborate on the statutory definition of “dependent adult”), with Iowa Ass’n of Sch. Bds. v. Iowa Dep’t of Educ., 739 N.W.2d 303, 307 (Iowa 2007) (noting statute provides the director of the department of education with the duty to “[i]n-terpret the school laws” and concluding interpretive power had been clearly vested in department). Thus, our review is for correction of errors of law under section 17A.19(10)(c). See Waterloo Educ. Ass’n, 740 N.W.2d at 419.

III. Guiding Principles of Statutory Interpretation.

When we interpret a statute, our primary goal is to ascertain the legislature’s intent. State Pub. Defender v. Iowa Dist. Ct., 663 N.W.2d 413, 415 (Iowa 2003). To determine the legislature’s intent, we first examine the language of the statute. Id. “If the statutory language is plain and the meaning clear, we do not search for legislative intent beyond the express terms of the statute.” Horsman v. Wahl, 551 N.W.2d 619, 620-21 (Iowa 1996). We seek a “reasonable interpretation that will best effect the purpose of the statute and avoid an absurd result.” IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001). Nonetheless, “[w]e will not interpret a statute so as to render any part of it superfluous.” Am. Legion v. Cedar Rapids Bd. of Review, 646 N.W.2d 433, 439 (Iowa 2002).

IV. Discussion.

The union filed the prohibited practice complaints commencing this action pursuant to Iowa Code sections 20.10 and 20.11. Section 20.10 defines a “prohibited practice.” Three subsections of section 20.10 set forth conduct that can constitute a prohibited practice. Each subsection requires that the party charged with the prohibited conduct act “willfully.” Iowa Code § 20.10(1), (2), (3). Section 20.11 sets forth the procedure that must be followed to charge a party with a “prohibited practice violation.”

PERB acknowledges these sections do not encompass nonwillful or ordinary violations. So, to sustain its position that it has the authority to remedy such violations, PERB relies on the general statement of its “powers and duties” set out in section 20.1. That section states PERB has the power and duty to “[f]ashion[] appropriate remedial relief for violations of this chapter, including but not limited to the reinstatement of employees with or without back pay and benefits.” Id. § 20.1(3). Because PERB found the State violated section 20.9, it believes it can remedy this violation under the authority of section 20.1(3).

To support this interpretation of section 20.1(3), PERB asserts that, if the legislature had meant to restrict its power to provide remedial relief to prohibited practice violations, it would have referred in section 20.1(3) to “prohibited practices as defined in section 20.10,” not “violations of this chapter.” In addition, PERB argues that nonwillful violations of chapter 20 are just as likely to undermine the purposes of chapter 20 as willful violations. Consequently, PERB reasons, it makes sense that the legislature would give it the power to remedy nonwillful violations of chapter 20. We are not persuaded by PERB’s arguments.

In outlining the procedure for pursuing a prohibited practice complaint, section 20.11 refers to such a practice as a “violation” several times. Id. § 20.11 (stating, for example, a complaint must be filed “within ninety days of the alleged violation,” “the board may conduct a preliminary investigation of the alleged violation,” and the hearing shall be set “in the county where the alleged violation occurred”). Consequently, the legislature’s reference in section 20.1(3) to “violations of this chapter” does not necessarily reference anything more than prohibited practice violations.

But regardless of whether the legislature had in mind violations of chapter 20 other than prohibited practice violations when it adopted section 20.1(3), we are convinced it did not have in mind nonwillful violations of section 20.10. To interpret section 20.1(3) as authority for PERB to remedy nonwillful violations otherwise falling within the purview of section 20.10 would render sections 20.10 and 20.11 largely superfluous. There would be no need for a party to pursue relief under these sections, which require a showing of willfulness, if the same relief could be obtained without such proof. Even if, as asserted by PERB, PERB might choose a different remedy for nonwillful violations than for willful violations, there is nothing in chapter 20 that would restrict the available remedies when a violation is nonwillful. In fact, the remedy granted by PERB in this case — production of the requested documents — is no different than the remedy that would have been available had the union proved willfulness. In short, the union failed to prove a prohibited practice, yet was accorded the remedy it sought. We conclude the practical effect of the interpretation adopted by PERB is to render the requirement of “willfulness” in section 20.10 superfluous. We cannot adopt an interpretation of section 20.1(3) that is inconsistent with the plain language of section 20.10(1).

PERB argues strenuously that its inability to remedy nonwillful violations of section 20.9 would undermine the purpose of chapter 20. Even if there are instances when PERB intervention would further the legislative goals underlying chapter 20, the present circumstances are not one of those instances. Arbitration is valued as an alternative dispute resolution mechanism because it provides a speedy and efficient remedy. See generally Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22, 27 (Iowa 1999) (interpreting arbitration statute to promote speed and efficiency of process); Modern Piping, Inc. v. Blackhawk Automatic Sprinklers, Inc., 581 N.W.2d 616, 621 (Iowa 1998) (noting purpose of arbitration is “to obtain a speedy, inexpensive and final resolution of disputes”), overruled on other grounds by Wesley Ret. Servs., Inc., 594 N.W.2d at 29. Furthermore, this court has observed that “[a] refined quality of justice is not the goal in arbitration matters. Indeed such a goal is deliberately sacrificed in favor of a sure and speedy resolution.” LCI, Inc. v. Chipman, 572 N.W.2d 158, 162 (Iowa 1997). If parties involved in the grievance process could take every dispute to PERB for resolution, the goals of speed and efficiency in the arbitration process would be lost or at least diminished. Here, there is the additional problem of inconsistent decisions.Even if the arbitrator incorrectly decided that the State was not required to produce the requested information, PERB’s refined sense of justice must give way to the speedy resolution of the parties’ dispute.

In summary, we agree with the State that section 20.10(1) is the enforcement mechanism for a violation of section 20.9. Because section 20.10(1) requires willfulness, PERB has no authority to remedy a nonwillful violation of section 20.9.

Y. Conclusion and Disposition.

Iowa Code section 20.1(3) does not authorize PERB to remedy a violation of chapter 20 that would fall within the definition of “prohibited practice” had the violation been committed willfully. Under PERB’s decision, the State’s conduct violated section 20.9 and would have constituted a prohibited practice under section 20.10(1) but for the fact the State did not act willfully. Consequently, PERB had no authority to remedy the State’s nonwillful violation of section 20.9.

The district court correctly held PERB exceeded its authority when, having ruled the union failed to establish a prohibited practice under section 20.10(1), it nonetheless ordered the State to produce the documents requested by the union. Therefore, we affirm the district court’s reversal of PERB’s decision.

AFFIRMED.

      . On judicial review and again on appeal, the State challenges PERB’s ruling that the State violated section 20.9. Because we agree with the district court that PERB has no authority to remedy a nonwillful violation of section 20.9, we need not determine whether PERB correctly determined the State violated that provision of the statute.

      . For example, subsection 20.10(2) begins with the following language: "It shall be a prohibited practice for a public employer or the employer’s designated representative willfully to....” (Emphasis added.) Similar language is employed in subsection (1) and subsection (3).


author: Is/ Russell A. Anderson Chief Justice

text:
    STATE of Minnesota, Petitioner, v. Nathan Dean SCHUSTER, Respondent, Wade William Little Owl, Respondent.
    Nos. A04-2278, A05-41.
    Supreme Court of Minnesota.
    April 26, 2006.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition of the State of Minnesota for further review be, and the same is, granted, and the decision of the Court of Appeals filed January 31, 2006 is vacated and the matter is remanded to the Court of Appeals for reconsideration in light of State v. Schmidt, 712 N.W.2d 530 (Minn.2006).

BY THE COURT:

Is/ Russell A. Anderson Chief Justice


author: /s/Alan C. Page Associate Justice.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST David Max VAN SICKLE, a Minnesota Attorney, Registration No. 292783.
    No. A07-2418.
    Supreme Court of Minnesota.
    Jan. 17, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition alleging that respondent David Max Van Sickle committed professional misconduct warranting public discipline, namely, that respondent filed lawsuits on behalf of a client that, as found by the courts, lacked a good faith basis in law or fact, in violation of Rules 1.1, 3.1, and 8.4(d), Minnesota Rules of Professional Conduct (MRPC); failed to timely disburse to a client settlement funds that undisputedly belonged to the client, in violation of Rule 1.15(b), MRPC, as that rule read prior to October 1, 2005; commingled client and personal funds in his trust account, negligently misappropriated funds entrusted to him on behalf of a client, failed to keep required trust account books and records, repeatedly issued checks drawn on the trust account when there were insufficient funds in the account, improperly transferred funds from his trust account by electronic transfer and automated teller machines (ATMs), and improperly certified to this court that he maintained the required trust account books and records, in violation of Rules 1.15(a), (b), (c), and (h), as interpreted by Lawyers Professional Responsibility Board Opinion 9 and Appendix 1 to the MRPC, and Rule 8.4(c), MRPC; and, as evidenced by the order suspending his California license to practice law, charged and collected an unconscionable fee, entered into an improper business transaction, failed to provide written disclosure of a financial interest in the subject matter of the representation, and intentionally or recklessly failed to represent a client competently, in violation of Rules 1.1, 1.5, and 1.8(a), MRPC.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director under which they jointly recommend that the appropriate discipline is a four-month suspension pursuant to Rule 15, RLPR; that the reinstatement hearing provided for in Rule 18, RLPR, not be waived; that respondent may petition for reinstatement at any time after 60 days from the effective date of his suspension; and that reinstatement be conditioned upon: (1) payment of costs in the amount of $900 pursuant to Rule 24(d), RLPR; (2) compliance with Rule 26, RLPR; (3) pursuant to Rule 18(e), RLPR, providing proof of successful completion of the professional responsibility examination within one year prior to the petition for reinstatement; (4) satisfaction of continuing legal education requirements under Rule 18(e), RLPR; and (5) paying or entering into an agreement for a payment plan to pay the attorney fees assessed against him by the federal district court in the matter of Willhite v. Collins, No. 04-CV-4380, 385 F.Supp.2d 926 (D.Minn.2005).

The court has independently reviewed the file and generally approves the jointly recommended disposition.

Based on all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent David Max Van Sickle is suspended from the practice of law for a minimum of four months, effective 14 days from the date of filing of this order. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR, and shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals). Respondent may petition for reinstatement after 60 days from the effective date of his suspension, provided that he files with the petition for reinstatement proof of: (1) successful completion of the professional responsibility portion of the state bar examination within one year pri- or to the date of the petition for reinstatement; (2) satisfaction of continuing legal education requirements pursuant to Rule 18(e), RLPR; and (3) proof of payment of the attorney fees assessed against respondent by the federal district court in the matter of Willhite v. Collins, No. 04-CV-4380, 385 F.Supp.2d 926 (D.Minn.2005), or proof that respondent has entered into and is in compliance with a payment plan for payment of such attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice.


author: /s/ Alan C. Page Associate Justice

text:
    In re Petition for Disciplinary Action against Michael Robert INGLIMO, a Minnesota Attorney, Registration No. 21551X.
    No. A08-189.
    Supreme Court of Minnesota.
    Feb. 11, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), based on an order of the Wisconsin Supreme Court suspending respondent Michael Robert Inglimo for a period of three years for illegal drug use with clients, engaging in sexual relations with a client’s wife, misuse of a client trust account, failure to maintain proper trust account records, and criminal conviction for possession of marijuana.

The Director and respondent have entered into a stipulation in which respondent admits the allegations of the petition for reciprocal discipline, admits his actions violated Minn. R. Prof. Conduct 1.7(b), 1.15(a), (e) and (g), 8.4(b), and 8.4(c), and waives his procedural rights under Rule 12(d), RLPR. The parties jointly recommend that the appropriate reciprocal discipline is a three-year suspension, and that reinstatement be conditioned upon successful completion of the professional responsibility portion of the state bar examination, satisfaction of continuing legal education requirements under Rule 18(e), RLPR, and demonstration of fitness to practice under Rule 18(a)-(d), RLPR.

The Court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael Robert Inglimo is indefinitely suspended from the practice of law for not less than three years, effective as of the date of filing of this order, subject to the conditions set forth above. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals). Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: MEYER, Justice. PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Joshua Lawrence JOHNSON, Appellant.
    No. A06-131.
    Supreme Court of Minnesota.
    Feb. 14, 2008.
   OPINION

MEYER, Justice.

We are called upon to determine whether a criminal defendant is entitled to custody credit for time spent in a secure treatment facility when the placement in that facility is based upon a prior civil commitment and is unrelated to the criminal charges for which he was sentenced.

Appellant Joshua Lawrence Johnson pleaded guilty to making terroristic threats while at a secure treatment facility under a civil commitment order. At his sentencing hearing, Johnson was denied custody credit for time spent in a secure treatment facility. The court of appeals affirmed on the grounds that the conditions of Johnson’s civil commitment had not been altered. We affirm.

Johnson was under civil commitment as a sexual offender in the Minnesota Security Hospital in St. Peter (St. Peter) on November 29, 2004, when he was arrested for making terroristic threats against various staff members. Four months later, he was charged with seven counts of terroristic threats and one count of assault, and apparently was then transferred to the Moose Lake Treatment Center, Minnesota Sex Offender Program (Moose Lake). Nothing in the record indicates this transfer was in any way related to the pending criminal charges. On September 7, 2005, he pleaded guilty to one count of terroristic threats, and on October 18, 2005, the district court sentenced Johnson to the maximum sentence of 60 months, an upward durational departure. Johnson received a 5-year stay of execution and was required to serve 60 days in the county jail.

Johnson argued for custody credit for the time spent in Moose Lake alleging that the time spent there was the functional equivalent of incarceration. The district court denied Johnson’s request for custody credit for the time spent in Moose Lake because his civil commitment and the confinement in Moose Lake were unrelated to the crime for which he was being sentenced.

Johnson appealed, arguing that (1) the upward durational departure was an abuse of discretion; (2) he did not waive his right to a sentencing jury on the aggravating factors used to justify the upward departure; and (3) the denial of custody credit was error. State v. Johnson, 2007 WL 152104, at *1 (Minn.App. Jan.23, 2007). The court of appeals vacated the sentence and remanded for a jury trial on the upward departure, but affirmed the denial of custody credit. Id. We granted review on the custody credit issue.

The defendant bears the burden of establishing entitlement to credit for time spent in custody during criminal proceedings. State v. Garcia, 683 N.W.2d 294, 297 (Minn.2004). The decision to award custody credit is not discretionary with the district court. Minn. R.Crim. P. 27.03, subd. 4(B). A district court’s decision whether to award credit is a mixed question of fact and law; the court must determine the circumstances of the custody the defendant seeks credit for, and then apply the rules to those circumstances. Interpretation of the rules of criminal procedure is a question of law, which we review de novo. Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). We will not reverse a district court’s factual findings unless they are clearly erroneous or contrary to law. State v. Anderson, 733 N.W.2d 128, 136 (Minn.2007).

The rules of criminal procedure provide that a criminal defendant at sentencing shall get credit for time spent in jail in connection with the criminal charges. Minn. R.Crim. P. 27.03, subd. 4(B).

The policy behind giving custody credit is to ensure fairness and proportionality in sentencing. In our decisions about custody credit, we seek to avoid four potential concerns: de facto conversion of a concurrent sentence into a consecutive sentence; indigent persons serving effectively longer sentences as a result of their inability to post bail; irrelevant factors (e.g., whether the defendant pleads guilty) affecting the length of incarceration; and manipulation of charging dates by the prosecutor so as to increase the length of incarceration. State v. Jackson, 557 N.W.2d 552, 553 (Minn.1996); State v. Weber, 470 N.W.2d 112, 114 (Minn.1991) (quoting State v. Folley, 438 N.W.2d 372, 374-75 (Minn.1989)); State v. Goar, 453 N.W.2d 28, 29-30 (Minn.1990) (also quoting Folley); State v. Dulski, 363 N.W.2d 307, 309-10 (Minn.1985).

We have held that when time is spent in a noncorrectional facility such as a residential treatment center with restrictions equivalent to those of a correctional facility, fairness and equity require the award of custody credit for time spent in such a facility. Asfaha v. State, 665 N.W.2d 523, 528 (Minn.2003). We have also held that a prison inmate, who was sentenced to a concurrent sentence for making terroristic threats in a letter written from prison, is entitled to receive custody credit for time spent in prison between the issuance of the terroristic threats complaint and the date of sentencing. State v. Arden, 424 N.W.2d 293, 294-95 (Minn.1988).

Johnson argues that under Asfaha his confinement in connection with the ter-roristic threat charges was spent at the functional equivalent of a prison and that under Arden he is entitled to receive custody credit for time spent at the Moose Lake facility. Johnson asserts that the criminal sentence is a de facto consecutive sentence because it disrupts his treatment, requiring him to begin anew. He points out that some patients in secure treatment facilities are subject to administrative restrictions when criminal charges are pending.

The State argues that because Johnson was civilly committed for an indeterminate time to a secure treatment facility prior to the complaint and sentencing, the term of his confinement at Moose Lake was unaffected by the criminal charges, and thus the time spent at Moose Lake is ineligible for credit. The State further contends that granting Johnson credit would violate the policy of proportionality by incarcerating him for less time than someone similarly charged but not civilly committed.

We conclude that the State has the better argument. There is no evidence in the record that the terms of Johnson’s confinement under civil commitment have been altered because of the criminal charges. Even if the record established (and this record does not) that Johnson’s sentence to confinement in a correctional facility delayed his sex offender treatment program at St. Peter, his civil commitment is indefinite. The sentence without custody credit does not prolong Johnson’s confinement and therefore does not serve as a de facto consecutive sentence.

Like the defendant in Asfaha, Johnson was held in a facility that is without dispute the functional equivalent of a jail. Like the defendant in Arden, who was charged while in prison for a prior offense, Johnson was charged while already committed to a secure treatment facility. Johnson’s case is different, however, because of the reasons for which he was in Moose Lake and St. Peter. Johnson was not sentenced to serve time at either facility, nor was he there as a condition of probation. He was in a secure treatment facility for purposes of treatment. Mindful of that purpose, we decline to conflate treatment and punishment. In contrast, the defendant in Asfaha was in a facility as a condition of probation, 665 N.W.2d at 524, and the defendant in Arden was in prison on a determinant sentence for attempted second-degree murder, 424 N.W.2d at 293. Johnson’s situation is also distinguishable from the one in State v. Bonafide, where the defendant was civilly committed under Rule 20 proceedings after being charged. See 457 N.W.2d 211, 212 (Minn.App.1990).

Here, there is no imposition of a de facto consecutive sentence because only one sentence is at issue. Johnson was not kept in jail longer because of inability to post bail; he could only be released to his previous living situation in the secure treatment facility. If he had pleaded guilty earlier, he might have served the 60 days earlier, but he would still have been returned to a secure treatment facility, because he was civilly committed. We are not concerned about prosecutorial manipulation of charging dates to increase the length of incarceration, because there is only one sentence at issue and the prosecutor had no control over the duration of Johnson’s civil commitment.

Although Johnson emphasizes his transfer from St. Peter to Moose Lake subsequent to the offense to support his argument that the confinement in Moose Lake was in connection with the charges, he recognizes that St. Peter and Moose Lake are essentially the same kind of facility. Other than the prosecutor’s speculation that St. Peter staff feared Johnson and wanted to transfer him, the record does not indicate a reason for the transfer to Moose Lake. The simple fact of the transfer is insufficient to indicate custody separate from the civil commitment. Under these circumstances, we decline to award Johnson custody credit.

Affirmed.

PAGE, Justice

(dissenting).

Because the record suggests that Johnson was transferred from the St. Peter Security Hospital to the Moose Lake Treatment Center for purposes of punishment related to the charges against him, I conclude that he is entitled to custody credit. Therefore, I respectfully dissent.

      . Johnson indicates in his brief that he was transferred to Moose Lake on the day of the offense. Although the record is not entirely clear as to when the transfer occurred, the April 11, 2005, complaint was served by mail on Johnson at St. Peter, suggesting that he was not transferred to Moose Lake before the complaint was served. A May 3, 2005, order requiring the Nicollet County Sheriff to transport him from Moose Lake to the Nicollet County Government Center for his first appearance on the complaint demonstrates that he was at Moose Lake by that date.

      . Johnson claims in his brief that "[i]f not for the criminal offense, [Johnson] would have remained in the St. Peter facility in his treatment program.” The record offers no support for this assertion.


text:
    In the Matter of the WELFARE OF the CHILDREN OF S.E.P. and J.W.P., Parents.
    No. A07-25.
    Supreme Court of Minnesota.
    Feb. 14, 2008.
   OPINION

MEYER, Justice.

At issue in this appeal is whether substantial evidence existed on the record to support the district court’s termination of the parental rights of S.E.P. (mother) to her two young children under Minn.Stat. § 260C.301, subd. 1(b)(5) and (8) (2006). The district court, following a bench trial, terminated father and mother’s rights under Minn.Stat. § 260C.301, subd. 1(b)(5) and (8). On appeal, the court of appeals upheld the district court’s termination of father’s rights, but reversed as to mother. In re Welfare of Children of S.E.P. and J.W.P., No. A07-25, 2007 WL 2245901, at *4 (Minn.App. Aug.7, 2007). We granted the county’s petition for review concerning mother’s parental rights, and we now reverse the court of appeals and reinstate the district court’s termination of mother’s parental rights.

The parties in this case are the parents of two daughters who, in May 2006, were 19 and 6 months old. In May 2006, father was charged with malicious punishment of his 19-month-old daughter and ordered to have no contact with mother or the children. Father was arrested after he violated the no-contact order. The children were removed from the home and placed in foster care after mother told a deputy sheriff that she could not care for the children without father’s help and the children should be taken away if that would mean father could return. Both parents agreed to and signed case plans, which were approved by the district court. After the parents failed to comply with a number of the conditions set forth in those case plans, the county petitioned to terminate parental rights.

Father has a history of abusive behavior toward mother. Father hit mother in the arm and grabbed her throat during one argument, and when angry with mother twisted her wrists and pushed her against the wall. Father also yelled profanities at the children, causing mother concern when father lost his temper.

Before he married mother, father resided with his girlfriend A.M., who was pregnant with his child. Father pushed A.M. down repeatedly in an argument during the pregnancy, eventually inducing preterm labor. Shortly after that child was born, father threatened to decapitate the child unless A.M. kept the child quiet. Father later dislocated the elbow of A.M.’s three-year-old daughter from a previous relationship and threatened to sew the girl’s mouth shut with wire unless she was quiet. A.M. subsequently obtained a restraining order against father, and he ceased contact with her and her children.

On May 18, 2006, father was watching television when his 19-month-old daughter accidentally spilled his cup of coffee. In response, father screamed at her to “get out of his f* * *ing face” and proceeded to spank her at least five times, loudly enough for mother to hear over the noise of her television from another room of the house. When mother examined her daughter’s buttocks, she saw that they were “bright red.” Following this incident, the police were called to the residence, and father was arrested and charged with malicious punishment of a child and domestic violence. The children remained in the home with mother.

As a condition of his release from jail, father was ordered to have no contact with mother or his two young daughters. Based on the erroneous advice of his attorney, however, father returned home and was subsequently arrested for violating the court order. On May 30, 2006, less than two weeks after the incident, father pleaded guilty to the malicious punishment charge, and as a condition of his probation, he was ordered to have no contact with his wife or children until a further court order allowed such contact.

On the day father was arrested for violating the terms of his release, a sheriffs deputy met with mother at her home. During that visit, mother pushed her older daughter away and refused to feed her younger daughter. When told that father could not reside in the home, mother told the deputy to “take the kids” if that meant that father could return.

The deputy requested that a 72-hour hold be placed on the children, and the children were placed in foster care the same day. Shortly after this incident, the county filed a petition alleging that mother’s children were in need of protection or services. At the time the children were removed from the home, they were approximately 20 months and 7 months of age.

Following the removal of their children from their home, case plans were developed for both father and mother. Those case plans were signed by each parent and adopted by the district court. Mother’s case plan addressed five general tasks for her to complete. These tasks were to: (1) have “a home and lifestyle free from domestic violence”; (2) complete a parenting capacity assessment and psychological evaluation, and follow all recommendations regarding those evaluations; (3) have “adequate safe and stable housing for herself and her children”; (4) “develop and demonstrate parenting patterns that are age appropriate for her children”; and (5) remain law abiding. Each of these tasks was in turn divided into a number of discrete subtasks for mother to complete. Among these subtasks were requirements that mother protect her children from abuse, that she not allow father in her home, that she be “open and honest” about father’s whereabouts, that she not allow father to have access to her children other than as permitted by court order, that she follow all court orders, and that she participate in in-home services.

Early in July of 2006, mother began in-home parenting education through shared family foster care, but quit the program after only three days. Mother was given another opportunity to participate in shared family foster care, but departed yet again after only a few visits. When given a third opportunity to attend the shared family foster care, mother refused to participate.

During the time mother did attend the in-home parenting education, she showed persistent difficulties with basic parenting skills and lost control of her temper while around her children. When the younger daughter fell, mother did not know what to do for the child’s bloody lip. Mother had difficulties watching her children while doing other tasks, such as washing dishes. Mother had no control over the children and eventually stopped helping the foster mother care for them. As for mother’s temper, in one instance mother yelled at the foster mother in front of the children, told the foster mother to “shut up,” and stated that she did not care and “did not need this crap.”

Although mother and father’s case plans, as well as numerous court orders, forbade father to reside in her home, the two lived together for a substantial period of time. Father admitted to the court on September 20, 2006, that he had been living with mother for two months in direct violation of court order. Notably, when mother allowed father into her home, father had not yet started the anger counseling ordered by the court. Mother lied to her social worker, to the children’s guardian ad litem, and to the district court about her continued residence with father.

Mother indicated at least twice that she did not wish to retain custody of her children. As noted above, she informed the deputy who visited her home after father’s arrest that her children should be taken away so that father could return home. At a hearing in September 2006, mother expressed a desire to voluntarily terminate her parental rights and stay with father instead. Although mother changed her mind about voluntarily terminating her parental rights, the district court found that mother “has never conclusively decided she wants to parent her children.”

The children’s guardian ad litem expressed concerns as to mother’s inability to identify dangers to her children, mother’s interest in only her own problems, and mother’s dishonesty throughout the proceedings. The guardian observed mother to be rough with her older daughter, once squeezing the girl’s hand so hard that mother’s knuckles turned white. The guardian also stated that mother had to be reminded to feed the younger daughter.

The county social worker assigned to the case agreed that the best interests of the children necessitated a termination of mother’s parental rights. She observed that mother places her own needs over those of the children, choosing to reside with father rather than work toward the return of her children. According to the social worker, mother refuses to acknowledge the risk father poses to the children. Nor does mother understand the impact of her own inconsistent behavior on the children.

After mother indicated her desire to voluntarily terminate her parental rights in order to remain with father, the county amended its petition to request termination of mother’s parental rights under Minn.Stat. § 260C.301, subd. 1(b)(5) and (8) (2006). Following trial, the district court ordered that both father and mother’s parental rights be terminated. The district court found father palpably unfit to parent under MinmStat. § 260C.301, subd. 1(b)(4), based on his lengthy history of anger problems and abuse. The court also found that termination of both parents’ parental rights was justified under Minn. Stat. § 260C.301, subd. 1(b)(5) (failure to correct conditions leading to out-of-home placement) and (8) (child neglected and in foster care).

On appeal, the court of appeals upheld the district court’s determination that father was palpably unfit, but reversed the termination of mother’s parental rights on the grounds that it was not supported by substantial evidence. In re Welfare of Children of S.E.P. and J.W.P., 2007 WL 2245901, at *3. In particular, the court of appeals concluded that “substantial evidence does not support the district court’s determination that [mother] failed to correct conditions or permitted the children to remain in foster care when her conduct is not at issue.” Id. at *4. Subsequently, we granted review concerning only the termination of mother’s parental rights.

We review the termination of parental rights to determine whether the district court’s findings address the statutory criteria and whether the district court’s findings are supported by substantial evidence and are not clearly erroneous. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001). We give considerable deference to the district court’s decision to terminate parental rights. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.1996). But we closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing. In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn.2005). We affirm the district court’s termination of parental rights when at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the best interests of the child, In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn.2004), provided that the county has made reasonable efforts to reunite the family, In re Children of T.A.A., 702 N.W.2d at 708.

We consider first whether the district court’s findings address the statutory criteria. The district court terminated mother’s parental rights after finding that the county had proven by clear and convincing evidence that reasonable efforts had failed to correct the conditions leading to the children’s out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5), and that the children were neglected and in foster care, Minn.Stat. § 260C.301, subd. 1(b)(8). Under subdivision 1(b)(5),

it is presumed that reasonable efforts under this clause have failed upon a showing that:
(i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months. In the case of a child under age eight at the time the petition was filed alleging the child to be in need of protection or services, the presumption arises when the child has resided out of the parental home under court order for six months unless the parent has maintained regular contact with the child and the parent is complying with the out-of-home placement plan;
(ii) the court has approved the out-of-home placement plan required under section 260C.212 and filed with the court under section 260C.178;
(iii) conditions leading to the out-of-home placement have not been corrected. It is presumed that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court’s orders and a reasonable case plan; and
(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.

Minn.Stat. § 260C.301, subd. 1(b)(5).

In this case, the children are under the age of eight but had not resided outside the parental home for six months at the time of trial. Nevertheless, section 260C.301, subd. 1(b)(5), further provides that the court may terminate parental rights with respect to a child under age eight even if the child has not been placed outside the home for six months. Therefore, although the statutory presumption does not strictly apply, it may still inform our consideration of whether subdivision 1(b)(5) has been met.

The district court in this case found that mother had agreed to an out-of-home placement plan that was later adopted by the court and that she failed to comply with four separate provisions of the plan. In particular, the district court found that mother failed to “have a home and lifestyle free from domestic violence to provide safe and appropriate care to her children” by exposing her older daughter to emotional abuse by raising her voice and swearing in front of the girl in shared family foster care, and by allowing father to live with her and lying about it to the court and to service providers. The court further found that mother failed to follow the recommendations of her psychologist by choosing not to participate in shared family foster care. The court found that mother failed to have adequate safe and stable housing for herself and her children by allowing father to live with her and lying about father’s whereabouts. The court found that mother’s failure to develop necessary parenting skills through shared family foster care violated her case plan’s requirement to develop and demonstrate parenting patterns that were age appropriate for the children. Finally, the court found that the county had made reasonable efforts to rehabilitate mother and reunify the children with her, and that termination of mother’s parental rights was in the best interests of the children.

These findings satisfy the criteria for termination of parental rights under subdivision 1(b)(5). Again, although the elements of the presumption of subdivision 1(b)(5) do not strictly apply here because of the length of time the children were in out-of-home placement, they do provide a framework under which to analyze the district court’s findings. Considering the district court’s findings under that framework, those findings address the statutory criteria, namely, whether the conditions leading to the removal of the children from the home had been corrected as of the time of trial, as well as whether the county made reasonable efforts to correct those conditions, and whether termination is in the best interests of the children.

We therefore turn to the question of whether the district court’s findings under subdivision 1(b)(5) are supported by substantial evidence and are not clearly erroneous. We conclude, based on our review of the record, that the district court’s findings are supported by the requisite substantial evidence and are not clearly erroneous. Mother did indeed fail to comply with the terms of her case plan. Mother refused to complete parenting education, allowed father to continue living with her, and lied to service providers and the court about her relationship with father, all in direct violation of the explicit provisions of the case plan. We therefore conclude that at least one statutory ground for termination, namely, the failure of reasonable efforts to correct the conditions leading to out-of-home placement under Minn.Stat. § 260C.B01, subd. 1(b)(5), is supported by substantial evidence and is not clearly erroneous.

The district court found that the county had made reasonable efforts to reunify mother with her children. The district court found that mother was provided with an array of services by the county, including in-home parenting education through shared family foster care, an in-home social worker, group therapy and individual counseling, sessions with the Intervention Program for Women and Invest Early Parenting, and frequent meetings with her assigned social worker. The court found that the services offered to mother were realistic, consistent, timely, available, and accessible. Our review of the record confirms that the district court’s findings as to the county’s efforts are supported by substantial evidence and are not clearly erroneous.

Finally, the district court further found that termination of mother’s parental rights was in the best interests of the children. The court found that the children’s interests were best served by “the unqualified physical, emotional, and mental commitment that adoptive parents can offer.” The court further found that mother’s demonstrated lack of parenting skills precluded her from providing stable and age-appropriate parenting for the girls, and that mother was not capable for the reasonably foreseeable future of caring appropriately for the children’s ongoing needs. Our review of the record confirms that the district court’s findings as to the best interests of the children are also supported by substantial evidence and are not clearly erroneous.

The court of appeals reversed because it held that the record lacked clear and convincing evidence to support the termination of mother’s parental rights. In re Welfare of Children of S.E.P. and J.W.P., 2007 WL 2245901, at ⅜3. But in doing so, the court of appeals made factual findings based on its own review of the record. For example, the court found that “[t]he primary condition in the home requiring correction is [father’s] angry and violent conduct,” that “most of the conflict between [mother and the foster mother] arose from personality differences,” and that mother’s “perceived parenting deficiencies were not so significant that the county felt her children would be at risk in her care.” Id. at *3-4. For the court of appeals to make factual findings such as these is to overstep the bounds of its role as a reviewing court. See In re Welfare of P.R.L., 622 N.W.2d at 543 (reviewing court is to determine whether the district court’s findings are supported by substantial evidence and are not clearly erroneous).

Not only was it improper for the court of appeals to make factual findings, but its factual findings are not supported by the record. For example, for the court to say that mother’s failure to participate in foster care was the result of “personality differences” improperly minimizes the severity of mother’s conduct. While at shared foster care, mother consistently lost her temper around her children, yelled at the foster care provider, refused to take the most nonintrusive of suggestions, and was generally uncooperative. Nothing in this record, however, indicates that the disputes between mother and the foster care provider stemmed from simple differences of personality.

Finally, the conclusions drawn by the court of appeals from its findings of fact are contrary to law. The court’s opinion states that mother’s “decision to continue living with [father] could not have put the children at risk because the children were no longer in the home.” In re Welfare of Children of S.E.P. and J.W.P., 2007 WL 2245901, at ⅜3. It is not clear from this statement whether the court of appeals meant that the district court should not have considered mother’s continued residence with father to be a substantial failure to comply with her case plan; whether it meant that, generally, a failure to comply with a court-approved case plan — in this case, mother’s continued residence with father — should not be considered when determining whether termination was proper; or whether it meant that this particular case plan should not have required the parents to separate at all. Regardless, each of these interpretations would be erroneous.

First, mother’s case plan clearly required her to “have a home and lifestyle free from domestic violence,” to “have adequate safe and stable housing for herself and her children,” to “have a violen[ce] free home,” and to “not allow [father] on the premises or in the home.” Continuing to five with someone who, by his own admission, hit and choked her on at least one occasion violated at least four specific requirements of mother’s case plan. By any standard, allowing father to continue to live with her was a substantial failure by mother to comply with her case plan.

Second, our statutes and court rules indicate that a court-approved case plan carries with it an imprimatur of reasonableness. Under Minn.Stat. § 260C.201, subd. 6(a) (2006), the responsible social services agency is to prepare a written out-of-home placement plan when the child is placed out of the home; Minn. R. Juv. Prot. P. 41.05, subd. 2(b), requires that, once the court has approved the plan, the court order all parties to comply with it. Also, Minn.Stat. § 260C.301, subd. l(b)(5)(ii), makes the existence of a court-approved case plan a necessary component of a presumption that reasonable efforts have failed to correct the conditions leading to out-of-home placement. From this, we can conclude that a case plan that has been approved by the district court is presumptively reasonable.

Our rules provide a specific mechanism for the alteration of such plans. Minnesota Rule of Juvenile Protection Procedure 41.06, subd. 4(b), specifically allows a party to request a court review of the reasonableness of the case plan upon a showing of a substantial change of circumstances. We thus conclude that, once a case plan has been approved by the court, the appropriate action for a parent who believes some aspect of the case plan to be unreasonable is to ask the court to change it, rather than to simply ignore it. Given the ability of a parent to seek an alteration of a problematic provision of a case plan, it is improper for a reviewing court to flatly refuse to consider a violation of that case plan when it addresses a termination of parental rights.

Lastly, this is not an instance in which the requirement that mother not reside with father was arbitrarily imposed or only loosely related to the conditions that led to the children’s out-of-home placement. Father pleaded guilty to malicious punishment of one of the children whose custody is at issue here and, by both parents’ admission, hit and choked mother on at least one occasion. In addition, it is undisputed that he had a long history of anger problems and abusive behavior. Under such circumstances, a case plan that required mother to have a home free of domestic violence and to not allow father in the home or on the premises was not unreasonable, regardless of whether the children were in the home. If the children were in the home, banning father from the home would have been reasonable as a means of protecting the children from further abuse. But even if the children were not in the home, banning father from the home was reasonable as a means of protecting mother from further abuse and ensuring that she had the ability and the will to establish and maintain a home free of domestic violence.

We therefore reverse the court of appeals and reinstate the district court’s order terminating mother’s parental rights.

Reversed.

PAGE, Justice

(dissenting).

I respectfully dissent. Today, the court rushes to condemn 24-year-old S.E.P. and terminate her parental rights for her failure to comply with a court-ordered case plan, but never accounts for the circumstances surrounding her failure to do so. Both the court’s opinion and the district court’s findings make clear that the termination of S.E.P.’s parental rights stemmed primarily from her failure to comply with the case plan’s requirement that S.E.P. separate from her husband J.W.P. In reviewing the case plan, I have found nothing to suggest that the county provided S.E.P. with support intended to help her separate from J.W.P. Given the apparent lack of support provided by the county to meet this requirement, it should come as no surprise that the requirement was not met. S.E.P.’s case plan was doomed from its inception.

Under the best of circumstances, terminating a relationship with a spouse can be difficult, both emotionally and economically, and requires a great deal of support. Given S.E.P.’s history of psychological problems, her young age, her dependency on J.W.P. for economic support, and the trauma necessarily attendant to the removal of her children from her home, S.E.P. was unlikely to successfully end her relationship with J.W.P. without help from the county specifically focused on facilitating the end of that relationship, especially within the compressed time period between the imposition of the case plan and the hearing terminating S.E.P.’s rights. Despite S.E.P.’s background, there is nothing in this record indicating that the county ever provided her with the emotional, practical, or psychological assistance necessary to make separation from J.W.P. possible. By failing to provide S.E.P. concrete assistance in removing J.W.P. from the home and ending her relationship with him, the county effectively ensured that S.E.P. would violate her case plan and lose custody of her children. While it is true that the county worked with S.E.P. to help her develop better parenting skills, such skills would not have assisted S.E.P. in ending her relationship with J.W.P. Moreover, as I understand the record, it is unclear that, absent termination of her relationship with J.W.P., there was any real likelihood that the county’s efforts to develop S.E.P.’s parenting skills had any possibility of succeeding.

Perhaps the efforts that the county was obligated to take under the statutory scheme would only have resulted in a delay in the termination of S.E.P.’s parental rights. Nonetheless, it is not our province to ignore the statute’s “reasonable efforts” requirement. Because nothing in the record indicates that the county gave S.E.P. any real assistance in ending her relationship with J.W.P. and thereby retaining custody of her children, I respectfully dissent.

      . On December 3, 2007, we issued an order, with written opinion to follow, reversing the court of appeals and reinstating the district court's order terminating the rights of both parents.

      . Arguably, a less-deferential analysis of a case plan or a provision contained therein may be appropriate when that plan imposes requirements having questionable relevance to the conditions leading to a child’s out-of-home placement. Because, as we note below, the record presents no such concerns in this instance, we reserve for a later time any discussion of the impact such circumstances would have on the presumption of reasonableness.

      . While a violation of the case plan cannot be ignored on the basis of the impropriety of the condition violated, such impropriety may be relevant to the ultimate determination under Minn.Stat. § 260C.301, subd. 1(b)(5), regarding whether reasonable efforts had actually failed to correct the conditions leading to the child’s out-of-home placement. Again, because the facts do not indicate that any provision of the case plan was improperly imposed, we express no further opinion on this matter.

      . The dissent would hold that the district court abused its discretion when it concluded that reasonable efforts were made to assist mother in excluding father from her home. The dissent asserts that the county failed to provide "the emotional, practical, or psychological assistance necessary to make separation from [father] possible.” This conclusion runs directly counter to the district court’s findings regarding the extensive and case-specific services provided by the county — services that included therapy, shared family foster care, programs through the Advocates for Family Peace, in-home family services, and personal meetings with a county social worker. As we have already noted, the district court’s findings are supported by the record and are not clearly erroneous. To engage in the kind of analysis advocated by the dissent would require that we conduct de novo review, in clear contravention of our established standard of review in termination of parental rights cases.

      . For the court to simply assert that the county provided S.E.P. with "therapy, shared family foster care, programs through the Advocates for Family Peace, in-home family services, and personal meetings with a county social worker” is to completely ignore the issue. The failing here is not in the number of services and programs the county provided, but in the record before us. So long as S.E.P. was unable to separate from J.W.P., she could not comply with her case plan. Because the record gives no indication that any of the services and programs identified by the court would have or could have assisted S.E.P. in separating from J.W.P., it cannot be said that "reasonable efforts” were made. For the court to hold otherwise requires it to find facts which simply do not exist in this record.