author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Arthur Thomas HANF, Appellant.
    No. A04-1058.
    Court of Appeals of Minnesota.
    Oct. 19, 2004.
    John M. Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, and Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and SHUMAKER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This appeal is from a sentence for felony test refusal. Appellant argues that the upward dispositional departure, which was based on judicial findings, violates his Sixth Amendment right to a jury trial under Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm.

FACTS

Appellant Arthur Hanf pleaded guilty to felony refusal to submit to chemical testing. Because Hanf had a zero criminal history score, the presumptive sentence for his offense was 36 months with execution stayed. See Minn. Sent. Guidelines IV, V. The district court, however, departed dispositionally, concluding that Hanf, due to his numerous failures in chemical-dependency treatment, his three prior driving while intoxicated convictions (DWIs) within ten years, and his posing a threat to public safety, was a “poor candidate” for probation.

Hanf filed this appeal, arguing that his upward dispositional departure was imposed in violation of Blakely v. Washington.

ISSUES

1. Does Blakely v. Washington apply to the Minnesota Sentencing Guidelines?

2. Does Blakely apply to upward dispo-sitional departures?

ANALYSIS

I.

Hanf argues that the dispositional departure, based on the district court’s findings, violates the Supreme Court’s holding in Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In reviewing a constitutional challenge to a statute, this court applies a de novo standard of review. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998), review denied (Minn. Feb. 24,1999).

In 1978 the Minnesota Legislature created the Minnesota Sentencing Guidelines Commission to promulgate sentencing guidelines for the district courts. Minn. Stat. § 244.09, subd. 5 (1978). The guidelines were to be promulgated on or before January 1, 1980, and were to be “advisory to the district court.” Id. They were to provide for a presumptive sentence and to allow for upward or downward departures of up to 15 percent from the presumptive sentence. See id., subd. 5(2).

In Blakely, the Supreme Court held that the “statutory maximum” is the greatest sentence a judge can impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537 (emphasis omitted). The defendant, it held, has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at at 2536, 2543. The Court, therefore, reversed the 90-month “exceptional sentence” that had been imposed under the State of Washington’s determinate-sentencing scheme and “remanded for further proceedings not inconsistent with this opinion.” Id. at at 2535, 2543. In a dissenting opinion, Supreme Court Justice Sandra Day O’Con-nor stated that the Blakely majority opinion “casts constitutional doubt” over all state guidelines systems, including Minnesota’s. Id. at 2549.

The Minnesota Sentencing Guidelines are similar in operation to the guidelines in Washington that were at issue in Blakely. Although the Minnesota guidelines are administrative rather than statutory, they were developed under legislative mandate and are in some sense binding on the district courts. See Minn.Stat. § 244.09, subd. 5 (2002) (providing that the guidelines are advisory but the sentencing court “shall follow” the guidelines procedures when pronouncing sentence in a felony case); see generally State v. Bellanger, 304 N.W.2d 282, 283 (Minn.1981) (holding that disagreement with the guidelines does not justify departure); State v. Hopkins, 486 N.W.2d 809, 812 (Minn.App.1992) (holding guidelines are not subject to manipulation to justify sentence the court has independently determined).

The Washington guidelines, like Minnesota’s, rely on a sentencing “grid” in which presumptive sentences are determined using two variables: offense severity and offender’s criminal history (called “offender score” in Washington). Wash. Rev. Code Ann. § 9.94A.510 (2003). Thus, both Washington and Minnesota determine the presumptive sentence by relying, in part, on the offender’s criminal history, which is not a fact found by the jury. The 49 to 53 month presumptive sentence range that Blakely treated as the “maximum sentence” supported by the jury verdict was not based on the jury verdict alone, but required also non-jury fact-finding on the defendant’s criminal history. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding fact of prior conviction may be determined by a judge).

Because Washington’s guidelines also rely partly on criminal history, that factor in Minnesota’s sentencing guidelines is not a basis for distinguishing Blakely.

In Minnesota, if the sentencing court finds an aggravating factor, it is not required to depart from the presumptive sentence. See State V. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that under the guidelines the judge “may” depart if aggravating factors are present); State v. Oberg, 627 N.W.2d 721, 724 (Minn.App. 2001) (noting that even if mitigating factors are present, court is not required to depart), review denied (Minn. Aug. 22, 2001).

If the presence of an aggravating factor does not mandate a departure, then the sentencing court’s finding that an aggravating factor exists has no binding effect on the sentence. It is not like an element of the offense that, if found, requires conviction. It is true that the court, if it decides to depart, must give reasons for the departure. State v. Getter, 665 N.W.2d 514, 517 (Minn.2003). But this requirement of departure reasons does not obligate the court to depart whenever aggravating reasons are present.

The judicial fact-finding involved in du-rational departures under the guidelines, however, differs from the more subjective impressions on which judges would decide a sentence under an indeterminate-sentencing scheme. In Blakely, the majority opinion acknowledged that indeterminate-sentencing schemes “involve judicial fact-finding, in that a judge ... may implicitly rule on those facts he deems important to the exercise of his sentencing discretion.” 124 S.Ct. at 2540. But this fact-finding is acceptable because “the facts [found] do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.” Id. (emphasis in original).

Thus, Blakely posits a defendant’s right to be sentenced to the presumptive guidelines sentence because that is authorized solely by the jury’s verdict. In an indeterminate-sentencing scheme, a defendant would have a right only to be sentenced to a term not greater than the statutory maximum, because the jury’s verdict would allow the court to sentence anywhere within that broad range. The “right” recognized in Blakely to the presumptive sentence duration exists because the jury must determine “the facts essential to lawful imposition of the penalty,” id., and the jury has found no facts beyond the elements of the offense, which determine the presumptive sentence.

Washington’s guidelines are similar to Minnesota’s in that a departure is not mandatory even if the court finds aggravating factors. See Wash. Rev.Code Ann. § 9.94A.535 (2003) (providing court “may” impose “exceptional sentence” if aggravating factors found); see also State v. Mail, 65 Wash.App. 295, 828 P.2d 70, 72 (1992) (describing departure as an “option” if aggravating factors present). Thus, this aspect of Minnesota’s guidelines is also not a ground for distinguishing Blakely.

There is federal caselaw declining to apply Blakely to the federal guidelines based on Blakely’s, footnote stating that the federal guidelines “are not before us, and we express no opinion on them,” 124 S.Ct. at 2538 n. 9, or on the courts’ reluctance to overturn established precedent. See United States v. Pineiro, 377 F.3d 464, 465-66, 469 (5th Cir.) (holding that Blakely does not extend to the federal guidelines). United States v. Peñaranda, 375 F.3d 238, 239-40, 245 (2nd Cir.2004) (certifying Blakely questions to Supreme Court without holding it applies to federal guidelines). But these cases do not identify any significant distinction between the federal guidelines and the Washington guidelines at issue in Blakely, and they do not suggest any rationale for avoiding Blakely’s, application to the Minnesota sentencing guidelines. Therefore, although we do not decide that issue, there appears to be no easy way to distinguish Blakely based on unique factors in the Minnesota sentencing guidelines, and we must address the narrower issue of the application of Blakely to Minnesota dispositional departures.

The Minnesota Sentencing Guidelines specify sentences that are presumptive with respect to both disposition and duration. Minn. Sent. Guidelines cmt. II.C.01. “Departures with respect to disposition and duration ... are logically separate decisions.” Id., cmt. II.D.02. The guidelines provide a non-exclusive list of permissible reasons for departure, without specifying whether these reasons will support dispositional or durational departures, or both. Id., II.D.2. But caselaw has developed an essentially separate category of reasons for dispositional departures. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (holding that a defendant’s particular amenability to probation or treatment will justify dispositional departure). Those reasons relate to the individual characteristics of the offender, and may not be used to support a durational departure, although some offense-related factors may be used to support dispositional departures. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn.1995).

Thus, in practice, dispositional departures in Minnesota have not been governed by the mitigating and aggravating factors listed in the guidelines. In fact, the grounds for dispositional departures have strayed so far from those listed factors that dispositional departures came to be based, although only in part and indirectly, on the social and economic factors that the guidelines prohibit as grounds for departure. See State v. King, 337 N.W.2d 674, 675-76 (Minn.1983) (holding that social and financial factors may “bear indirectly” on whether defendant is particularly amenable to probation). In 1990, the Guidelines Commission added language in the commentary to attempt to control this use of prohibited factors. Minn. Sent. Guidelines Cmt. II.D.101. But it has not opposed the predominant use of offender-characteristics to make dispositional decisions.

In interpreting the Minnesota guidelines, our supreme court never attempted to limit dispositional departures to the largely offense-related departure factors listed in the guidelines. See Garcia, 302 N.W.2d at 647 (affirming, dispositional departure because defendant was an “extremely poor candidate” for probation). In the pre-guidelines indeterminate sentencing scheme, parole release decisions had come to be governed by a matrix system in which a risk of failure level was assigned to each inmate. State ex rel. Taylor v. Schoen, 273 N.W.2d 612, 614-15 (Minn. 1978). This level was determined based on identified factors disclosed in “back-ground information.” Id. at 615 n. 9. At the time, sentencing judges were also acquiring back-ground information on defendants in the presentence investigation. Minn.Stat. § 609.115, subd. 1(1978).

The supreme court in Garcia and other early cases determined, in effect, that, because the guidelines departure factors were non-exclusive, sentencing courts could continue to use the same offender characteristics they had used before in determining whether the defendant should go to prison. See Trog, 323 N.W.2d at 31 (holding that “[njumerous factors,” including age, prior record, remorse, attitude in court, are relevant to whether defendant is particularly amenable to probation). These decisions have come to be influenced by psychological evaluations, the court’s observations of the defendant, recommendations in the presentence investigation, and other broad considerations, rather than the offense-related factors listed in the guidelines. See, e.g. State v. Sejnoha, 512 N.W.2d 597, 600-01 (Minn.App.1994) (affirming downward dispositional departure for sex offender evaluated as amenable to treatment and displaying extreme remorse), review denied (Minn. Apr. 21, 1994); State v. Dokken, 487 N.W.2d 914, 918 (Minn.App.1992) (stating reversal of downward dispositional departure would be a “weighty and grave matter” for intermediate appellate court, in part because of sentencing judge’s opportunity to observe the defendant), review denied (Minn. Sept. 30,1992).

The history of dispositional decisions in Minnesota is somewhat obscured by the fact that appellate review of sentences did not exist in Minnesota before the guidelines. But courts had statutory authority to stay sentences. Minn.Stat. § 609.135, subd. 1 (1978); see State v. Mertz, 269 Minn. 312, 315 130 N.W.2d 631, 634 (1964) (stating the trial court had “broad probationary powers” allowing it to stay execution of sentence). And in felony cases, presentence investigations were prepared for the sentencing court detailing the defendant’s “individual characteristics, circumstances, needs, potentialities, criminal record and social history” as well as the circumstances of the offense and the harm caused by the offense. Minn.Stat. § 609.115, subd. 1 (1978). The Guidelines Commission’s own study showed that pre-guidelines sentencing judges gave “heavy weight” to a defendant’s criminal history in determining the appropriate disposition. Dale G. Parent, Structuring Criminal Sentences: The Evolution of Minnesota Sentencing Guidelines 80 (Butterworth 1988). But there was no authority limiting the court’s consideration of other factors.

The relevance of this history to the Blakely issue is plain. Dispositional departures based on individual offender characteristics under the guidelines are like the traditional sentencing judgments made by judges in indeterminate sentencing schemes. The validity of those judicial judgments is conceded in Blakely:

Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.

124 S.Ct. at 2540 (alteration in original).

Appellant would argue that he has a “right” to a stayed sentence because that is the presumptive disposition under the guidelines. But that argument is unconvincing. First, the presumptive disposition is determined in large degree by the defendant’s criminal history score. As discussed above, that score is not in any way determined by the jury’s verdict, despite the apparent assumption to the contrary in Blakely. Second, the “right” referred to in Blakely must arise from the jury’s verdict, and that verdict historically has never determined sentence dispositions, at least since courts acquired the authority to stay sentences. Third, while the elements of the offense found by the jury help determine what is a “typical” offense warranting the presumptive duration, Minnesota courts have not attempted to define what is a “typical” offender to serve as a baseline for the proper disposition of any type of offense. See State v. Lindsey, 654 N.W.2d 718, 726 (Minn.App.2002) (holding assault, although brutal, was not more serious than typical first-degree assault).

In practice, because the dispositional decision is largely predictive, Minnesota defendants must convince the court that under the open-ended Trog factors, they can succeed on probation, whether or not that is the presumptive disposition. See generally State v. Hennessy, 328 N.W.2d 442, 443 (Minn.1983) (affirming dispositional departure where district court was satisfied “that the risk of placing defendant on probation was significantly outweighed” by indications defendant would succeed on probation). At least, defendants must convince the court they are not particularly unamenable to treatment in a probationary setting to avoid an upward dispositional departure. See Chaklos, 528 N.W.2d at 228 (stating general rule that particular unamenability may be used to support upward dispositional departure).

The traditional role of the jury has never extended to determining which offenders go to prison and which do not. Traditionally, courts and parole officials made “their respective sentencing and release decisions upon their own assessments of the offender’s amenability to rehabilitation.” Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989). The court’s power to impose probation, in particular, resulted in an increase in judicial discretion channeled by “careful study of the lives and personalities of convicted offenders,” particularly in the form of reports by probation officers. Williams v. People of State of New York, 337 U.S. 241, 249, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337 (1949).

The point is not, as the state argues, that these offender characteristics could not be assessed by juries. If the Sixth Amendment required juries to determine “amenability to probation,” that function would have to be assigned to them. But because such decisions are, in essence and in Minnesota practice, the equivalent of indeterminate sentencing, which Blakely approves, the Sixth Amendment - does not require it.

We note also that dispositional departures were unknown when the Sixth Amendment was ratified. In 1916, the United States Supreme Court held that the federal district court lacked the authority to suspend a criminal sentence indefinitely upon conditions of good behavior. Ex parte United States, 242 U.S. 27, 27, 37 S.Ct. 72, 72, 61 L.Ed. 129 (1916). The Court noted that under the common law, temporary reprieves and executive pardons were the only means of escaping the criminal judgment. Id. at 43-44, 37 S.Ct. at 74-75. Even as early as 1860, one court expressed the opinion that the court “does not possess the power to suspend sentence indefinitely in any case.” Id. at 46, 37 S.Ct. at 76 (quoting People v. Morrisette, 20 How. Pr. 118 (1860)). Thus, when the Bill of Rights was ratified, the jury’s verdict authorized only execution of the prescribed sentence.

This tradition establishes that an offender’s amenability or unamenability to probation is not a “fact,” within the meaning of Apprendi, that increases the offender’s penalty. A dispositional departure requiring an offender to go to prison is undoubtedly a greater penalty than probation. See State v. Carr, 274 Kan. 442, 53 P.3d 843, 853 (Six, J., dissenting). But an offender’s unamenability to probation is a judgment reached after consideration of a series of facts. It is not a “fact necessary to constitute the crime,” Apprendi, 530 U.S. at 500, 120 S.Ct. at 2368, but rather a strictly offender-related conclusion.

In Minnesota, the district court is required to provide reasons for a dispositional departure as well as a durational departure. State v. Larkins, 479 N.W.2d 69, 75 (Minn.App.1991). In Minnesota’s indeterminate sentencing scheme before 1980, there was no formal requirement that the court provide reasons for a particular disposition. The sentencing judge, however, received a presentence investigation (PSI) that detailed many of the same factors that govern guidelines dispositional decisions. See Minn.Stat. § 609.115, subd. 1 (1978). The parties were entitled to an opportunity to contest any part of the PSI. Minn. R.Crim. P. 27.03, subd. 1 (1978). Although courts were not formally required to state a reason for the disposition, the detailed information provided the court and the contested nature of the sentencing hearing would have compelled it in most cases to explain the reason for the decision.

It could be argued that the requirement of departure reasons sufficiently distinguishes dispositional departures under the guidelines from indeterminate sentencing. But, although Blakely refers to the “facts supporting [the] finding” of deliberate cruelty that authorized the greater sentence in that case, 124 S.Ct. at 2537, it did not compare the degree of formality of fact-finding under the Washington Sentencing Guidelines with the fact-finding traditionally involved in indeterminate sentencing schemes that Blakely approved. We conclude that the determination of amenability or unamenability to probation is not the determinate, structured fact-finding that Blakely holds the jury must perform.

The Supreme Court has made a similar distinction with respect to the offender’s criminal history, or recidivism, which it has termed “a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1230, 140 L.Ed.2d 350 (1998). The Court stated that, “to hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition” in which recidivism went to the punishment only. Id. at 244, 118 S.Ct. at 1231. The same could be said with even greater force concerning the offender characteristics that govern dispositional departures, which extend beyond the offender’s criminal history score. To hold that the Sixth Amendment requires those personal characteristics to be found by a jury would be an even further departure from tradition than to treat recidivism as an “element.” We do not believe that Blakely requires this result.

II.

In a supplemental pro se brief, Hanf raises several issues concerning his sentence and its calculation. He argues that the district court’s finding of “unamenable to treatment” could represent a reliance on impermissible social and economic factors. See Minn. Sent. Guidelines Cmt. II.D.101 (noting that amenability to probation or treatment could be closely related to social or economic factors and courts should demonstrate departure was not based on those impermissible factors). But the district court at sentencing cited Hanfs six prior failures at treatment and his “extreme threat to public safety,” not his employment record or community ties or similar factors. The record demonstrates that the dispositional departure was not based on social or economic factors.

Hanf also argues that because he has no prior felony DWI convictions, the district court was required to stay his sentence. But the guidelines provision on “Mandatory Sentences” merely clarifies that for offenders with Hanfs criminal history, “the sentence should be stayed unless the offender has a prior conviction for a felony DWI, in which case the presumptive disposition is [commitment to the Commissioner of Corrections.” Minn. Sent. Guidelines II.E. This provision makes execution of sentence mandatory for offenders with a prior felony DWI conviction. It does not bar dispositional departures for offenders without a prior felony DWI.

The other arguments in the pro se brief are not supported by argument or citation to legal authority, or are without any merit, and we need not address them. See State v. Krosch, 642 N.W.2d 713, 719 (Minn.2002) (holding that issues not supported by argument or citation to legal authority were deemed waived).

DECISION

The district court’s imposition of a dis-positional departure based on Hanfs prior driving record and other offender-related characteristics did not violate his Sixth Amendment right to trial by jury.

Affirmed.


source: Caselaw Access Project

author: HUDSON, Judge.

license: Public Domain

text:
    In the Matter of Christopher Loyd IVEY.
    No. A04-843.
    Court of Appeals of Minnesota.
    Oct. 26, 2004.

      Christopher Loyd Ivey, St. Peter, MN, pro se appellant.
    Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, St. Paul, MN, and Marvin E. Ketola, Carlton, MN, for respondent State of Minnesota.

      Considered and decided by KLAPHAKE, Presiding Judge; RANDALL, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant challenges his commitment as a sexual psychopathic personality and sexually dangerous person, alleging that the district court lacked subject matter jurisdiction and personal jurisdiction over him.

Because the district court had subject matter jurisdiction over appellant’s commitment as the county of appellant’s last residence prior to incarceration, and because the district court had personal jurisdiction over appellant based on the Department of Correction’s apparent supervisory authority over appellant at the start of the commitment proceedings, we affirm.

FACTS

Appellant Christopher Loyd Ivey pleaded guilty to first-degree burglary, first- and second-degree criminal sexual conduct, and other offenses in 1993, resolving a number of pending charges. Appellant confessed to many acts of window peeping and burglary, and additionally confessed to the 1989 murder and attempted rape of a young woman in Stuttgart, Germany, which occurred when he was 18 years old. He was initially sentenced on the Minnesota charges to 165 months, executed, but he appealed. On remand from this court, the district court sentenced him to two consecutive 52-month sentences, and some shorter, concurrent sentences.

While serving these sentences in Minnesota prisons, appellant was extradited to Germany to be tried on the murder and attempted-rape charges. He was convicted in November 1997 of murder and attempted rape and sentenced to serve eight years and six months in German prison. During this period of time, the Department of Corrections (DOC) first referred appellant for civil commitment; county officials did not pursue a petition because appellant was in Germany and could not be present, as required, for a hearing on the petition. In January 1998, DOC noted that the mandatory conditional-release term had not been included in appellant’s sentence. The district court informed DOC that a ten-year conditional-release term should have been included in appellant’s sentence and amended appellant’s sentencing record to include this conditional-release term.

In May 1998, appellant returned to Minnesota to finish his Minnesota sentence. Appellant completed his prison term in November 1998, was released to the United States Marshal, and returned to Germany on December 7, 1998, to complete his German prison sentence. Appellant was due to be released from German prison and deported in accordance with German law in November 2003. Although his supervised release had expired by this time, he was still under DOC supervision because of the ten-year conditional-release term, which expires in November 2008.

Carlton County, appellant’s last place of residence before incarceration, filed a petition for civil commitment of appellant as a sexually dangerous person and a sexual psychopathic personality on November 24, 2003, at the same time that appellant was en route to New York from Germany. An ex parte apprehend-and-hold order was issued pursuant to Minn.Stat. § 253B.07, subd. 2b (2002). New York authorities met appellant at the airport and took him into custody. The next day, appellant waived extradition and was escorted to Minnesota by two members of the Fugitive Apprehension Unit. In Minnesota, he was met by two Carlton County assistant sheriffs and escorted to .Carlton County, where he was held pursuant to the apprehend- and-hold order and served with a copy of the commitment petition. On November 26, 2003, the district court appointed an interim public defender, held a continued-hold hearing, and issued an order to hold appellant at the state security hospital pending a commitment hearing. On December 1, 2003, the district court appointed an attorney to represent appellant.

After it was learned that one of the court-appointed experts was not a licensed psychologist, the original February trial date was continued to March to permit an examination of appellant. Appellant filed a pro se motion to dismiss for lack of subject matter jurisdiction on March 11, 2004. The district court considered and denied this motion immediately prior to trial, which was held on March 23-25, 2004. Appellant also filed a petition for postconviction relief on March 11, 2004, challenging the ten-year conditional-release term imposed by the- district court.

The district court issued its findings, conclusions, and order for commitment on May 4, 2004. Appellant filed a petition for a writ of prohibition on May 11, 2004, alleging a lack of personal and subject matter jurisdiction. This court denied the petition on May 17, 2004, concluding that appellant could raise these issues in a direct appeal from the commitment order. On May 14, 2004, appellant filed a notice of appeal of the commitment order. On June 9, 2004, the district court issued its order for postconviction relief, amending appellant’s conditional-release term from ten to five years. Had this five-year conditional-release term originally been imposed, DOC supervision over appellant would have ended in early November 2003, prior to appellant’s release from German prison.

ISSUES

1. Did the district court have subject matter jurisdiction to decide whether appellant should be committed as a sexually dangerous person and sexual psychopathic personality?

2. Did the district court have personal jurisdiction over appellant in the commitment proceedings when the Department of Corrections exercised supervisory authority over appellant based on a conditional-release term later found to be defective?

' ANALYSIS

This court reviews issues of personal and subject matter jurisdiction de novo as questions of law. Wick v. Wick, 670 N.W.2d 599, 603 (Minn.App.2003) (personal jurisdiction); In re Thulin, 660 N.W.2d 140, 143 (Minn.App.2003) (subject matter jurisdiction).

1. Subject Matter Jurisdiction

The district court has subject matter jurisdiction over judicial commitments, including commitments of a person as a sexual psychopathic personality or as a sexually dangerous person. Minn.Stat. § 253B.07, 253B.18, 253B.185 (2002); see also State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 218, 128 N.W.2d 710, 715 (1964) (“The fact that the probate court has jurisdiction over commitment proceedings by virtue of our constitution has long been established,”).

Appellant raises what is essentially an objection to venue in Carlton County. Minn.Stat. § 253B.07, subd. 1, which describes procedures governing judicial commitments, specifies venue in the proposed patient’s county of residence, without providing a farther definition of that term. Minn.Stat. § 253B.045, subd. 2 (2002), which governs temporary commitments, provides some guidance. That statute states that the county of confinement will be the county that bears financial responsibility for the proposed patient. Any dispute over which county bears financial responsibility for the patient is resolved by reference to Minn.Stat. ch. 256G (2002). “County of financial responsibility” is defined by Minn.Stat. § 256G.02, subd. 4(c), as the county a person last resided in before entering a correctional facility. In this case, appellant resided in Carlton County before his entry into the various correctional facilities.

We therefore conclude that, for purposes of both subject matter jurisdiction and venue, the Carlton County district court properly assumed responsibility for the commitment proceedings.

2. Personal Jurisdiction

Personal jurisdiction has two requirements: (1) an adequate connection between the state and the party over whom jurisdiction is sought, or a basis for the exercise of jurisdiction; and (2) a form of process that satisfies the requirements of both due process and the Minnesota Rules of Civil Procedure governing the commencement of civil actions. Wick, 670 N.W.2d at 603. If a judgment is void for want of personal jurisdiction, it must be vacated. Minn. R. Civ. P. 60.02(d).

The commissioner of DOC maintains supervision over prisoners on supervised release and conditional release. Minn.Stat. § 243.05 (2002). A party on supervised or conditional release remains “in the legal custody and under the control of the commissioner.” Minn.Stat. § 243.05, subd. l(4)(b). The commissioner retains powers of control over supervisees in other states through an interstate compact. Minn.Stat. § 243.1605 (2002). Thus, the commissioner maintained supervisory power over appellant by virtue of the ten-year conditional-release term ordered by the district court, which ran until November 2008. This provides an adequate connection between the state and appellant for purposes of personal jurisdiction.

Appellant argues that, but for the ten-year conditional-release term later found to be defective, (1) he would not have been subject to DOC supervision; (2) he would not have returned to Minnesota; and (3) the district court would not have had personal jurisdiction over him. But when commitment proceedings were initiated, the ten-year term was a valid part of appellant’s sentence.

Unlike subject matter jurisdiction, a defense of lack of personal jurisdiction can be waived, either explicitly or by implication. Comm’r of Natural Res. v. Nicollet County Public Water/Wetlands Hearings Unit, 633 N.W.2d 25, 31 (Minn.App.2001), review denied (Minn. Nov. 13, 2001). Here, appellant waived extradition proceedings and agreed to return to the state, which provided a basis for the exercise of personal jurisdiction. Appellant argues, however, that he would not have agreed to extradition or returned to the state, except for the conditional-release term later held to be improper. But irregularities in the establishment of personal jurisdiction do not negate the assumption of personal jurisdiction.

Courts have long held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) (quotation omitted). In State v. Monje, 109 Wis.2d 138, 325 N.W.2d 695 (1982), although a legal warrant had been issued by Wisconsin for defendant’s arrest, police illegally executed the warrant in the state of Illinois. Id. at 697. The Wisconsin Supreme Court nevertheless concluded that an illegal execution of a valid warrant did not deprive the court of personal jurisdiction over the defendant, particularly where the defendant was afforded all of the protections that normally accompany a criminal conviction. Id. at 700. See also State v. Greenleaf, 591 N.W.2d 488, 497 (Minn:i999) (statmg in a matter challenging waiver of extradition as illegally obtained, that “even an illegal arrest in violation of an extradition treaty does not preclude criminal prosecution”).

In a similar manner, - the California Court of Appeals rejected an argument of lack of personal jurisdiction in a case involving the civil commitment of two men designated as “sexually violent predators,” where the commitment petitions were not filed until after hold orders had expired, noting that “in civil matters, a court has personal jurisdiction over a party, even when the party is before the court by unlawful force, duress, or fraud.” People v. Superior Court ex rel. Olmeda, 2001 WL 1299443 at *8 (Cal.Ct.App. Oct.25, 2001). The Supreme Court of New York rejected a similar claim in the commitment of a person with a dangerous mental disorder, who argued that because the district attorney had not complied with the service requirements set forth in the act, the court lacked personal jurisdiction over him. In the Matter of Sheldon S., 9 A.D.3d 92, 778 N.Y.S.2d 180, 183 (N.Y.App.Div.2004). Although the court concluded that the patient was subject to a valid order of conditions that preserved the court’s jurisdiction over him, it also noted that he had received adequate notice and an opportunity to be heard, which satisfied the purpose of the requirement. Id. at 186.

Despite appellant’s assertions, the basic requirements of personal jurisdiction were satisfied here. There is an adequate connection between the state and appellant: his last residence before incarceration was in the state, his crimes and incarceration occurred in the state, and he was subject to DOC’s continuing supervisory authority, under an apparently valid sentencing order, at the time he returned to the state. Further, he was afforded due process and an opportunity to be heard on a commitment petition that was properly commenced according to the rules and statutes governing commencement of these actions.

We conclude that the district court properly exercised both subject matter and personal jurisdiction over appellant in these proceedings. Appellant has raised other matters that were not addressed below and are therefore not properly before us. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). We therefore decline to address them.

DECISION

The district court has subject matter jurisdiction over civil commitments under Minn.Stat. §-253B.07 (2002) and this matter was properly venued in Carlton County District Court. The district court had personal jurisdiction over appellant, who was subject to a valid sentencing order and thus under the DOC’s supervisory authority at the filing of the petition for commitment.

Affirmed.

      . Although both Prisbie and Monje are criminal cases, and this case is a civil commitment, we note that all of these matters involve a similar loss of liberty. We therefore find the reasoning pérsuasive.


author: NEUMANN, Justice. MARING, Justice,

text:
    2004 ND 184
    Esther BAITY, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee, and Case New Holland, (f/k/a Case IH/Steiger Tractor), Respondent.
    No. 20040096.
    Supreme Court of North Dakota.
    Oct. 12, 2004.
    Rehearing Denied Nov. 2, 2004.
    Mark G. Schneider (submitted on briefs), Schneider, Schneider & Phillips, Fargo, ND, for claimant and appellant.
    Jacqueline Sue Anderson (submitted on briefs), Special Assistant Attorney General, Fargo, ND, for appellee.
   NEUMANN, Justice.

[¶ 1] Esther Baity appealed from a district court judgment affirming an order of Workforce Safety and Insurance (“WSI”) declaring her to be permanently and totally disabled and deciding the date when her supplementary benefits begin under N.D.C.C. § 65-05.2-01. We affirm, concluding WSI correctly determined Baity was eligible for supplementary benefits beginning September 11, 2002, the date its cyclic review committee declared Baity permanently and totally disabled, rather than beginning July 1, 2001, the date Baity claimed evidence established she was permanently and totally disabled.

I

[¶ 2] On December 12, 1990, Baity filed a claim for workers compensation benefits relating to an injury to her lower back suffered on November 6, 1990, while she was employed by Case IH in Fargo. At that time, Baity was 44 years old. WSI accepted liability and paid associated medical and disability benefits. Baity began receiving temporary total disability benefits on December 4, 1990. In June 1995, a claims analyst completed a cyclic benefit review form, noting Baity had been released to work three to four hours per day at a sedentary level with restrictions, but that Baity had no motivation to return to work. The analyst recommended cyclic benefits. In September 1998, a claims analyst completed another cyclic benefit review form and recommended continuation of cyclic temporary total disability benefits, noting the continuing restrictions on Baity’s work release and that she was not a retraining candidate. Cyclic temporary total disability benefits were approved.

[¶ 8] During September 1998, WSI implemented a procedure for reviewing eligibility for supplementary benefits. A claims review committee was formed to review all claims where the injured worker may be eligible to receive supplementary benefits. The claims review committee was structured to review all claims where the claimant had received temporary total disability benefits for 10 or more consecutive years, to determine which injured workers were eligible to receive long-term disability benefits and which workers qualified for supplementary benefits, and to determine eligibility for supplementary benefits on the anniversary date of the claimant’s injury. The committee intended to give highest priority to those claims where the injured worker’s weekly compensation rate was less than 60 percent of the state’s average weekly wage. See N.D.C.C. §§ 65-05-09 and 65-05.2-02. No cyclic, supplementary and catastrophic benefit claim review form was completed for Baity between 1998 and 2002, although the 10-year anniversary of her injury was November 2000.

[¶ 4] Claims analysts continued to monitor Baity’s claim throughout the years as she periodically visited physicians and underwent functional capacity assessments (“FCA”), but her condition did not significantly change. On December 18, 2001, WSI asked Baity’s physician whether she could undergo a strengthening program followed by a FCA and whether there was any medical evidence preventing her from participating in vocational planning. The physician approved the requests and Baity underwent a FCA in March 2002. The physician agreed with the results, which indicated that Baity could work 16 to 20 hours per week on a trial basis, doing light level work, and the hours could be increased as tolerated.

[¶ 5] On July 16, 2002, Baity requested supplementary disability benefits from WSI because she had received more than 10 years of continuous benefits. On July 18, 2002, Baity’s claim was referred for review by WSI’s internal cyclic review committee. On July 30, 2002, the cyclic review committee considered the claim and requested additional information regarding clarification of the March 2002 FCA and Baity’s allowable work hours, which differed from previous assessments. After receiving the clarification, the committee met again and returned the claim to the claims analyst for review of rehabilitation options. The claims analyst recommended permanent total disability status rather than rehabilitation. The committee met on September 11, 2002, and approved a declaration that Baity was, permanently and totally disabled and was entitled to supplementary benefits beginning on that date.

[¶ 6] Baity requested reconsideration of WSI’s order and sought supplementary benefits from July 1, 2001, the date she claimed she should have been placed on highest priority because her weekly benefit rate had fallen below 60 percent of the state’s average weekly wage. Because WSI did not follow its own written procedures and did not approve her as permanently and totally disabled until more than a year later, Baity claimed she was entitled to supplementary benefits commencing July 1, 2001. After WSI rejected this argument, Baity requested a formal hearing. An administrative law judge (“ALJ”) recommended that Baity be awarded supplementary benefits effective July 1, 2001, because on that date she had been receiving continuous benefits for more than 10 years and her weekly benefits fell below 60 percent of the state’s average weekly wage. The ALJ also found July 1, 2001, was “the date that medical and vocational evidence concluded Baity was permanently and totally disabled,” and the “finding that Baity is permanently,[and] totally disabled as of September 11, 2002, is arbitrary and capricious since the September 11, 2002 date is unrelated to Baity’s medical or vocational status and simply reflects the date the committee met and determined Baity’s status.” WSI rejected the ALJ’s recommendation and ordered Baity was not entitled to supplementary benefits before September 11, 2002, the date the cyclical review committee declared her to be permanently and totally disabled. The district court affirmed WSI’s order, and this appeal followed.

II

[¶ 7] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The, findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

[¶ 8] In Zander v. Workforce Safety and Ins., 2003 ND 194, ¶ 6, 672 N.W.2d 668, we explained:

On appeal from the district court’s judgment, this Court reviews the agency order in the same manner as the district court under N.D.C.C. § 28-32-46. N.D.C.C. § 28-32-49; Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 8, 654 N.W.2d 426. We review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. Although the administrative construction of a statute by the agency administering the law is ordinarily entitled to some deference if that interpretation does not contradict clear and unambiguous statutory language, Hamich, Inc. v. State, 1997 ND 110, ¶ 13, 564 N.W.2d 640, questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Grand Forks Prof l Baseball, at ¶ 8.

A

[¶ 9] The major issue in this case is whether Baity is entitled to supplementary disability benefits beginning on September 11, 2002, the date WSI’s cyclic review committee declared she was permanently and totally disabled, or beginning July 1, 2001, the date Baity claims evidence established she was permanently and totally disabled.

[¶10] Section 65-05.2-01, N.D.C.C., addresses eligibility for supplementary benefits:

A workforce safety and insurance claimant who is receiving permanent total disability benefits, or death benefits, and who has been receiving disability or death benefits for a period of [ten] consecutive years is eligible for supplementary benefits. Eligibility for supplementary benefits lasts as long as the claimant is entitled to permanent total disability benefits or death benefits.

[¶ 11] Section 65-05.2-02(1), N.D.C.C., which governs the amount of supplementary benefits allowable, also provides in part:

A claimant whose weekly benefit rate is less than sixty percent of the state’s average weekly wage, who is eligible for supplementary benefits and who is receiving permanent total disability benefits, or death benefits regardless of the date of death, is entitled to receive a weekly supplementary benefit that, when added to the weekly permanent total disability benefit or death benefit, equals the ratio of that claimant’s weekly benefit to the state’s average weekly wage on the date of the claimant’s first disability, times the state’s average weekly wage in effect at the date eligibility for supplementary benefits is achieved.

[¶ 12] When interpreting a statute to determine its intent, we must look at the language itself and give it its plain, ordinary, and commonly understood meaning. State v. Lynch, 2001 ND 173, ¶ 7, 635 N.W.2d 164. We also construe related statutes as a whole to harmonize and give meaning to each word and phrase. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254.

When the meaning of the statute is clear on its face, there is no room for construction. Erdmann v. Rants, 442 N.W.2d 441, 443 (N.D.1989).

[¶ 13] To be eligible for supplementary benefits under N.D.C.C. §§ 65-05.2-01 and 65-05.2-02(1), the claimant 1) must be “receiving” permanent total disability benefits or death benefits, 2) must have been “receiving” disability or death benefits for ten consecutive years, and 3) the claimant’s weekly benefit rate must be less than 60 percent of the state’s average weekly wage. The plain, ordinary, and commonly understood meaning of the word “receive” is “[t]o take or acquire.” The American Heritage Dictionary 1032 (2d Coll. ed.1985). Although Baity had been “receiving” disability benefits for more than the required ten-year period and her benefit rate may have dropped below the 60 percent threshold, it is .undisputed that Baity was not “receiving” permanent total disability benefits,. The definition of “permanent total disability” under N.D.C.C. § 65-01-02(26) specifically states that an employee must be “determinéd incapable of rehabilitation of earnings capacity” to qualify as permanently and totally disabled. The cyclic review committee did not determine Baity was incapable of rehabilitation of earnings capacity, and therefore permanently and totally disabled, until September 11, 2002.

[¶ 14] This Court’s decision in Saari v. North Dakota Workers Comp. Bureau, 1999 ND 144, 598 N.W.2d 174, lends analogous support for this conclusion. Saari involved a claim for a permanent partial impairment (“PPI”) award. See N.D.C.C. § 65-01-02(25) (defining “permanent impairment” as “the loss of or loss of use of a member of the body existing after the date of maximum medical improvement ... ”). In calculating the claimant’s benefits, the Bureau applied a statute passed by the Legislature after the date of injury which reduced his benefits from what they would have been under the previous law. The claimant argued that, under Gregory v. North Dakota Workmen’s Comp. Bureau, 369 N.W.2d 119 (N.D.1985) (“Gregory I”), his right to PPI benefits vested on the date of injury and could not be subsequently reduced by the new legislation. A majority of this Court held “any right to PPI benefits does not vest on the date of injury, but vests on the date the impairment is determined to be permanent,” reasoning “until there has been an actual determination an impairment is permanent, no right has vested because at the time of injury the existence of the right depends on a future evaluation, an event the result of which is uncertain.” Saari, at ¶ 13.

[¶ 15] A majority of this Court also rejected the claimant’s argument that his right to PPI benefits vested on the date of maximum medical improvement rather than on the actual date he was determined eligible for a PPI award:.

Gregory I, 369 N.W.2d at 122, makes clear a claimant’s right to PPI benefits does not become fixed or vested until the claimant has been evaluated and determined eligible for a PPI award. The date of a claimant’s maximum medical improvement is a preliminary step in the process of establishing entitlement to a PPI award. See Tooley v. Aim, 515 N.W.2d 137, 142 (N.D.1994). See also Effertz [v. North Dakota Workers’ Comp. Bureau], 481 N.W.2d [218,] 222 [(N.D.1992)] (holding, in line with Gregory I, claimant was entitled to PPI award under 1989 rate in effect when claimant was evaluated rather than 1963 rate in effect when claimant reached maximum medical recovery). . A claimant’s right to a PPI award does not vest on the date of injury or on the date of maximum medical improvement because more is necessary before entitlement to a PPI award is established.

Saari, at ¶ 14.

[¶ 16] Like the situation in Saari, an evaluation must precede a determination of whether a person is permanently and totally disabled before an award of supplementary benefits can be made. Section 65-01-02(26), N.D.C.C., in defining “permanent total disability,” requires that an employee be:

determined incapable of rehabilitation of earnings capacity as determined by the:
a. Nature of injury.
b. Degree of physical impairment,
e. Education.
d. Work history.
e. Vocational rehabilitation potential.

The record shows that in early 2001, a claims analyst was attempting to gather current information on whether additional vocational options could be pursued. Baity’s physician agreed with the results of a March 2002 FCA indicating Baity was capable of working longer hours with more physical demands than indicated in previous FCAs. The analyst further considered possible home-based vocational options. When this information was given to the cyclical review committee, the committee asked for further information to clarify the differences in the work release conditions set forth in the most recent FCA and by the physician. After receiving a response from a physical therapist and considering Baity’s reluctance to return to work, the committee determined further vocational efforts would not be productive and declared her permanently and totally disabled.

[¶ 17] Because of the necessity of an evaluation of permanent total disability status before supplementary benefits may be awarded, Baity’s argument that she met all of the criteria for supplementary benefits on July 1, 2001, is pure conjecture. We have recognized the beneficial purposes of vocational rehabilitation and that “[h]aving the worker back on the job contributing in a productive and meaningful way, even at a lower wage, provides real economic, social, and psychological benefit for society and for the individual worker.” Baldock v. North Dakota Workers Comp. Bureau, 554 N.W.2d 441, 446 (N.D.1996) (footnote omitted). The record shows WSI and its cyclic review committee were investigating rehabilitation options for Baity during the summer of 2002. In response to a question whether Baity was “any more or less disabled now than she was back in 1995,” a member of the cyclic review committee testified:

A. You know, again, I’d have to speculate, but if I take a look at that and look at the criteria she was at after we did the Functional Capacities Assessment, I don’t see a great deal of improvement. But I do know part of our discussion in the Cyclic Review Committee, and I hear this almost every day, that there [are] so many opportunities out there now for home operations, and I think that we hope — we had a lot of hope that this was going to work, so physically, it doesn’t look like much has changed, and so maybe the conditions haven’t changed a whole lot, but, again, from the designation point of view, no doubt there was that hope. And I think Mr. Tealey and Mr. Jolliffe pointed that out in the August 29th, 2002, review, that, you know, let’s give it still another shot. One can look at that in hindsight and say, look, we ended up going nowhere, maybe we should have done something earlier. It’s possible, but at the same time, we didn’t do it, and simply because of what we felt may work for her in going back to work or not going back to work.

Until rehabilitation options were considered and rejected, Baity could not be found permanently and totally disabled and therefore eligible for supplementary benefits.

[¶ 18] We conclude WSI’s determination that Baity was entitled to supplementary benefits ' beginning September 11, 2002, is in accordance with the law.

B

[¶ 19] A member of the cyclic review committee admitted that the committee did not follow its “highest priority” procedures in Baity’s case and that her eligibility for supplementary benefits should have been evaluated approximately 15 months earlier.

[¶ 20] An agency’s systemic disregard of the law may warrant reversing the agency decision without a showing of prejudice by the party relying on the improper conduct to ensure the government acts consistently and predictably in accordance with the law. Greenwood v. Moore, 545 N.W.2d 790, 798 (N.D.1996). However, “[t]o establish systemic disregard, a party must show at least some persistent pattern of improper agency conduct, that is, evidence of a single improper act is not sufficient.” Kraft v. State Bd. of Nursing, 2001 ND 131, ¶ 48, 631 N.W.2d 572; see also Scott v. North Dakota Workers Comp. Bureau, 1998 ND 221, ¶21, 587 N.W.2d 153. Although the delay in the committee’s evaluation of Baity violated its internal procedures, Baity does not argue that there is a persistent pattern of WSI delaying evaluation of claimants’ eligibility for supplementary benefits. We therefore conclude that reversal of WSI’s decision is not justified in this case.

Ill

[¶ 21] In view of our resolution of this case, it is unnecessary to address the other

issues raised. The judgment upholding WSI’s order is affirmed.

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

MARING, Justice,

dissenting.

[¶ 23] I respectfully dissent because the WSI’s conclusions of law and order are not supported by its findings of fact and it does not sufficiently explain its rationale for not adopting recommended findings of fact and conclusions of law of the administrative law judge. See N.D.C.C. § 28-32-46(6), (8).

[¶ 24] It is undisputed that Baity suffered a work related injury to her low back on November 6, 1990, and began receiving temporary total disability benefits on December 4, 1990. On June 2, 1995, the claims analyst completed a review of Baity’s claim and concluded: “Sedentary work with no sitting for more than 10 minutes at a time. Can stand 10-15 minutes and walk no more than 15 min. at a time. Released to work 3-4 hours per day. Not a retraining candidate.” A cyclic benefit review was completed in September 1998 by a claims analyst, who recommended continued temporary total disability benefits because “cla has 3-4 hr release only. Cla not a chronic pain candidate. Cla not RHB candidate & no retraining. Cla is not going to rtn.” Baity was continued on temporary total disability benefits.

[¶ 25] On September 7, 1998, WSI instituted a procedure for review of all claims where the injured worker may be eligible for receipt of supplementary benefits. Under that procedure, Baity’s claim should have been reviewed ten years after her date of injury, which would have been in November 2000. This did not occur, however.

[¶ 26] On May 15, 2001, the WSI notepad reflects that an analyst would be reviewing Baity’s claim for additional cyclic benefits because it did not appear Baity’s condition was improving.

[¶ 27] Baity would have been first eligible for supplemental benefits July 1, 2001, which was when her weekly compensation was less than 60 percent of the state’s average weekly wage. No supplemental benefit review of Baity’s claim was completed, however, between 1998 and 2002.

[¶ 28] WSI expressly adopted numbers 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the administrative law judge’s recommended Findings of Fact. Those findings are:

14. On May 25, 2001, Baity followed up with her treating physician, Dr. Koshnick. Baity had low back pain and had been taking Daypro. Dr. Koshnick switched Baity’s prescription to Naprosyn and advised Baity to follow up in five months.
15. Dr. Koshnick in a Dakota Clinic Work Injury Report dated May 25, 2001, concluded that Baity was unable to work. In a second Dakota Clinic Work Injury Report dated January 28, 2002[,] Dr. Koshnick concluded that Baity had been unable to work since October 22, 2000.
16. On October 10, 2001, Baity followed up with Dr. Koshnick. Dr. Kosh-nick noted Baity had an acute episode of back pain about two or three years ago and that Baity reported her fear of the possibility of this recurring again. Dr. Koshnick indicated that clinically, Baity’s condition had not changed. Dr. Koshnick assessed Baity as having a history of herniated disc status post operative repair; question of failed disc syndrome; chronic low back pain. Dr. Koshnick offered physical therapy and exercises but Baity was not interested. Dr. Koshnick advised Baity to recheck every six months.
17. In a letter dated December 18, 2001, WSI asked Dr. Koshnick whether Baity was able to undergo a strengthening program followed by a Functional Capacities Assessment (FCA); and whether there was any objective medical evidence preventing Baity from participating in vocational planning. On December 27, 2001, Dr. Koshnick provided responses indicating Baity was diagnosed as having lumbago and her current treatment plan was to continue with nonsteroidals. Dr. Koshnick indicated “yes” Baity may undergo a strengthening program and an FCA; and “no” there is no medical evidence to prevent Baity from participating in vocational planning.
18. On February 5, 2002, Baity underwent an FCA at MeritCare Occupational Health. The occupational therapist, Mr. Bryce Nelson (“Nelson”) determined in his report that the FCA was an invalid representation of Baity’s present physical capabilities based on consistencies and inconsistencies when interfacing grip dynamometer graphing, resistance dynamometer graphing, pulse variations, weights achieved, and selectivity of pain reports and pain behaviors.
19. On March 14, 2002, Baity underwent a second FCA at Healthsouth. Isometric strength testing revealed consistency of effort on 13 out of 13 tests. Functional testing revealed that Baity was lifting in the light category of work, as demonstrated by an occasional floor to knuckle lift of 15 pounds, knuckle to shoulder lift of 20 pounds, and shoulder to overhead lift of 20 pounds, and carrying of 20 pounds for 100 feet with pivoting. During positional tolerance testing, Baity demonstrated tolerance of static sitting, static standing, stair climbing, sustained bending, repetitive bending, overhead, forward and repetitive reaching, crouching; squatting, crawling, and kneeling on an occasional basis; and walking, pivot twisting, and push-pulling on a frequent basis. Baity would require adaptations to allow for frequent changes of position. Baity’s maximum ability for sitting was 5 to 12 minutes, standing was 3 to 10 minutes, and walking was 12 minutes.
20. In a note dated March 25, 2002, Dr. Koshniek indicated he basically agreed with the results of the second FCA.
21. On April 8, 2002, Dr. Koshniek completed a Dakota Clinic Work Injury Report indicating Baity was released to return to work within the restrictions of the FCA. Additionally, Dr. Koshniek restricted Baity to no lifting/carrying greater than 20 pounds and only for an hour or two. Dr. Koshniek restricted Baity’s daily work hours to four hours per day.
22. In a letter dated April 9, 2002, Dr. Koshniek indicated Baity’s maximum work capacity would be 16 to 20 hours per week on an initial trial basis. Dr. Koshniek indicated these work hours should only be increased as tolerated, and should be attempted on a trial basis only.

These findings establish that as of April 9, 2002, Baity’s work restrictions were nearly identical to the work restrictions noted by the claims analyst on June 2, 1995, which were — not sitting for more than 10 minutes at a time, standing 10-15 minutes, walking no more than 15 minutes at a time and released to work 3-4 hours per day. Although Baity’s medical condition and work conditions clearly had not changed, WSI sought an opinion whether Baity could work an eight-hour day. The response from the occupational therapist was that Baity could only initially work three to four hours a day and gradually increase as tolerated. WSI then concluded there were no viable rehabilitation options and declared Baity permanently and totally disabled on September 11, 2002, and eligible to receive supplemental benefits beginning only that day.

[¶ 29] The findings of the WSI can lead to only one conclusion: that Baity is permanently and totally disabled now and has been since at least 1995. There is no evidence in the record and WSI made no findings to support the idea that Baity can be vocationally rehabilitated. She has the same release to work of 3-4 hours per day now that she had in 1995. Nothing ever changed with regard to her impairment, age, education, work history, or vocational skills. In fact, WSI does not dispute that Baity was unable to work from 1995 to 2002.

[¶ 30] All of the evidence establishes that had Baity been reviewed on July 1, 2001, she would have been eligible for permanent total disability benefits on that date. It also establishes that she has been eligible for permanent total disability benefits from that date to the present.

[¶ 31] In Shiek v. North Dakota Workers Comp. Bureau, 2001 ND 166, ¶ 26, 634 N.W.2d 493, our Court said:

The Workers’ Compensation Act is remedial legislation, and we construe it to afford relief and avoid forfeiture with the view of extending its benefits to all who fairly can be brought within its provisions.

(Citation omitted.) We have also said “[although the claimant has the burden of proving the right to ... benefits, the Bureau must not place itself in a position fully adversary to the claimant.” Frohlich v. North Dakota Workers Comp. Bureau, 556 N.W.2d 297, 301 (N.D.1996).

[¶ 32] In order to be eligible to receive permanent total disability benefits, a claimant must be permanently and totally disabled. The majority cites to the current definition of permanent total disability. However, our Court has said that “[u]nless otherwise provided, statutes in effect on the date of an injury govern workers compensation benefits.” Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 9, 622 N.W.2d 712 (citations omitted). In 1989, the term “permanent total disability” was not defined in N.D.C.C. § 65-01-02. The term “disability” was defined in N.D.C.C. § 65-01-02(11) as follows:

“Disability” means that period of time an employee is totally or partially incapacitated from:
a. Performing employment at any suitable gainful employment or occupation for which the employee is reasonably suited by experience or training;
b. Earning in the same or any other employment the wages the employee was receiving at the time of injury.

In 1991, the legislature added the term “permanent total disability” to the definition of the term “disability.” The 1991 version, then enacted under N.D.C.C. § 65-01-02(12), reads as follows:

“Disability” means loss of earnings capacity and may be permanent total, temporary total, or partial,
a. Permanent total disability is permanent in nature and total in character, and is paid to an employee who is not capable of rehabilitation of earnings capacity, which depend upon the following factors:
(1) Nature of injury;
(2) Degree of physical impairment;
(3) Age;
(4) Education;
(5) Work History; and
(6) Vocational rehabilitation potential.

[¶ 33] The current Act authorizes permanent total disability benefits during such disability. N.D.C.C. § 65-05-09. Under N.D.C.C. § 65-05-08, “[i]f the period of disability is five consecutive calendar days’ duration or longer, benefits must be paid for the period of disability ...” (Emphasis added.) This means.the benefits are paid beginning on the date the evidence establishes the disability. See Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, 582 N.W.2d 639 (an employee who becomes permanently and totally disabled on or before the employee’s retirement date is entitled to permanent total disability benefits and has not voluntarily retired).

[¶ 34] Baity has been continuously receiving temporary total disability benefits during her period of disability rather than permanent total disability benefits. Temporary total disability is total in character, but temporary in nature because the claimant’s medical condition is expected to improve. Once the claimant has reached maximum medical recovery, her physical and vocational limitations will determine whether she is permanently totally disabled. Frohlich, 556 N.W.2d at 301. “In reaching a determination of permanent total disability, consideration must be given to the type of work being done at the time of the accident, the nature and extent of the injury, and the age, experience, training, and capabilities of the employee. These factors specifically embrace the earning ability of a claimant.” Buechler v. North Dakota Workmen’s Comp. Bureau, 222 N.W.2d 858, 861 (N.D.1974) (citation omitted). “Total disability exists when a worker is unable, solely because of a job related injury, to perform or obtain any substantial amount of labor in that particular line of work, or in any other for which the worker would be fitted.” Bruns v. North Dakota Workers Comp. Bureau, 1999 ND 116, ¶ 28, 595 N.W.2d 298 (citation omitted).

[¶ 85] A benefit recipient’s status may change over time. See N.D.C.C. § 65-05-04. WSI can review at any time whether a recipient continues to be disabled. Id.; N.D.C.C. § 65-05-08(3).

[¶ 36] In the instant case, although a claims analyst questioned whether things had changed for Baity so that she could return to work, ultimately WSI concluded Baity is not only temporarily totally disabled, but is permanently totally disabled. To decide, however, that the date on which she is entitled to receive permanent total disability benefits is the date of WSI’s decision and not the date the evidence establishes Baity is permanently totally disabled ignores our statutes and case law on awarding permanent total disability benefits. The evidence only supports a conclusion that Baity was entitled to be receiving permanent total disability benefits on July 1, 2001.

[¶ 37] Under N.D.C.C. § 65-05.2-01, a claimant “who is receiving permanent total disability benefits, ... and who has been receiving disability ... for a period of [ten] consecutive years is eligible for supplementary benefits.” Therefore, because Baity was entitled to be receiving permanent total disability benefits on July 1, 2001, she is eligible for supplementary benefits as of July 1, 2001. The majority’s reading of the statute is not reasonable. It is also inconsistent with WSI’s own conclusion that Baity is eligible for supplementary benefits as of September 11, 2002, which is the date of its decision Baity is permanently and totally disabled and, therefore, the date she is “receiving” permanent total disability benefits.

[¶ 38] The legislative history of ch. 65-05.2 indicates it was enacted to provide a cost of living adjustment through increased benefits for injured workers who were permanently totally disabled beginning in 1979. See Testimony of Representative Royden D. Rued before the House on January 29, 1979. The purpose of the law, therefore, is to provide sufficient benefits essential to an injured worker’s survival. The majority’s interpretation of the statute, N.D.C.C. § 65-05.2-01, is not in keeping with the legislative intent nor is it consistent with our Court’s longstanding interpretation of determining when a claimant is permanently totally disabled and entitled to receive permanent total disability benefits. To interpret the statute as the majority does, penalizes the injured worker, whom the legislature intended to benefit, for a faulty process that delayed review of the claim.

[¶ 39] Therefore, I respectfully dissent and would reverse the decision of WSI and the district court and conclude, as a matter of law, the date of eligibility to receive permanent total disability benefits is dependent on the date the evidence establishes the permanent total disability of the claimant. Accordingly, I would direct WSI to enter an order declaring Baity entitled to supplementary benefits as of July 1, 2001.

[¶ 40] MARY MUEHLEN MARING, J.

      . The parties quote prior versions of N.D.C.C. § 65-05.2-01 rather than its current version. Unless otherwise provided, the statutes in effect on the date of injury govern a claimant’s right to collect workers compensation benefits. See Tangen v. North Dakota Workers Comp. Bureau, 2000 ND 135, ¶ 12, 613 N.W.2d 490. Section 65-05.2-01 was amended in 1999 in part to reduce from ten to seven the number of years a claimant has been receiving disability or death benefits to be eligible for supplementary benefits. See 1999 N.D. Sess. Laws ch. 556, § 4. Although the reduction in the waiting period from ten to seven years "is effective August 1, 2006, for all claims, regardless of the date of injury,” 2001 N.D. Sess. Laws ch. 582, § 2, the remainder of the statute “is effective August 1, 1999, for all claims regardless of the date of injury.” 1999 N.D. Sess. Laws ch. 556, § 6. Therefore, the current version of N.D.C.C. § 65-05.2-01 governs, except that the waiting period is ten rather than seven years.


author: MARING, Justice.

text:
    2004 ND 193
    STATE of North Dakota, Plaintiff and Appellee, v. Kenneth MURCHISON, Defendant and Appellant.
    No. 20030328.
    Supreme Court of North Dakota.
    Oct. 15, 2004.

      Tyrone Jay Turner (on brief), Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Wayne D. Goter (on brief), Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Kenneth Murchison appealed from a judgment of conviction for the felony offense of assault on a correctional institution employee. We conclude Murchison was not deprived of a fair trial because he was denied his right to effective assistance of counsel or because he was denied his right to an impartial and unbiased trial judge, and we affirm.

I

[¶ 2] Murchison, an inmate at the state penitentiary, was charged with assault on a correctional institution employee, in violation of N.D.C.C. § 12.1-17-01, a class C felony. Murchison was found guilty by a jury, and the trial court sentenced him to three years incarceration at the state penitentiary, to be served consecutively to the sentence he was serving at the time he committed the offense.

II

[¶ 3] On appeal, Murchison asserts he was denied his constitutional right to effective assistance of counsel, because he was not provided court-appointed counsel at his preliminary hearing on September 19, 2003. A chronological recitation of the facts surrounding Murchison’s prosecution and ultimate conviction is necessary for an understanding and resolution of this issue. A criminal complaint charging Murchison with criminal assault was filed on July 22, 2003, alleging Murchison committed the offense on June 12, 2003. It is undisputed that Murchison requested the court to appoint legal counsel for him at his initial appearance on August 15, 2003.

[¶ 4] Murchison appeared without counsel at the September 19, 2003 preliminary hearing. He had not filed an application demonstrating he was indigent, entitling him to court-appointed counsel; therefore, no counsel had been appointed to represent him by that date. Murchison informed the court that he thought he had completed the necessary documents at the state penitentiary to receive court-appointed counsel and he thought the documents had been forwarded to the court by the penitentiary officials. Murchison objected to a continuance of the preliminary hearing, so it was held as scheduled with Murchison representing himself. The court found probable cause to bind Murchison over for trial on the charges and a trial date was set for October 23, 2003. Later that day, Murchison filed appropriate papers demonstrating he was indigent and the court appointed counsel to represent him.

[¶ 5] Subsequently, Murchison’s attorney indicated Murchison would be changing his plea. The jury trial was canceled, and on October 23, 2003 a hearing was held concerning Murchison’s change of plea. At that hearing the State informed the court Murchison would enter a conditional guilty plea with a right to appeal the issue of the court’s failure to provide him an attorney at the September 19, 2003 preliminary hearing. In addition, the State recommended that Murchison receive a two-year sentence of incarceration for the offense, with all but six months suspended for three years. The court rejected Murchison’s change of plea, stating the non-binding plea agreement was not acceptable. The jury trial was rescheduled for October 30, 2003.

[¶ 6] On October 28, 2003, Murchison filed an amended motion to dismiss the charges filed against him on the ground that he was denied his right to effective assistance of counsel at the September 19, 2003 preliminary hearing and on the ground that authorities denied him the right to attend the hearing on October 23, 2003, by failing to transport him there. Murchison also requested dismissal of the charges on the ground that the trial court was biased against him, because the judge had prosecuted him for a prior offense. In an order dated October 29, 2003, the trial court denied Murchison’s motion for dismissal. Additionally, the trial court scheduled a second preliminary hearing, explaining:

When the motion to dismiss was filed, I asked that a preliminary hearing be scheduled. While it could certainly be argued the defendant waived his right to be represented by an attorney at the preliminary, it seemed to me the issue could be easily resolved. Defense counsel indicated he was unavailable on October 28th or 29th, so the preliminary hearing was scheduled for 8 a.m. on October 30th.

[¶ 7] On October 30, 2003, Murchison appeared with his court-appointed counsel, who indicated they were ready to proceed with the preliminary hearing. At the conclusion of the hearing, the court found probable cause to bind Murchison over for trial on the assault charges and asked the parties if they would like to have a second arraignment. After conferring with Murchison, defense counsel informed the court the defendant was ready to proceed to trial.

[¶ 8] The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Art. I, § 12 of the North Dakota Constitution, guarantee a criminal defendant effective assistance of counsel. State v. Hilgers, 2004 ND 160, ¶ 5, 685 N.W.2d 109. A defendant has a fundamental right to counsel during all critical stages of the prosecution. Ernst v. State, 2004 ND 152, ¶8, 683 N.W.2d 891. In our state, the preliminary hearing is for the purpose of determining whether there is probable cause to believe the defendant committed the crime charged, requiring the accused to stand trial. N.D.R.Crim.P. 5.1. At that hearing, the defendant has the right to cross-examine adverse witnesses and may introduce evidence. Id.; see also State v. Kunkel, 366 N.W.2d 799, 801 (N.D.1985). A preliminary hearing conducted for this purpose and of this type is considered a critical stage of the proceedings at which the defendant has a. constitutional right to representation by counsel. Coleman v. Alabama, 399 U.S. 1, 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), see also Beck v. Bowersox, 362 F.3d 1095, 1101 (8th Cir.2004).

[¶ 9] Additionally, our rules of criminal procedure set forth the right to appointed counsel:

Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance before a magistrate through appeal in the courts of this state in all felony cases.

N.D.R.Crim.P. 44(a). However, there is no legal reason to appoint counsel for someone who can afford and obtain his own attorney. State v. DuPaul, 527 N.W.2d 238, 241 (N.D.1995). Before counsel will be appointed, a defendant has the burden of establishing he is indigent and qualifies for appointment of counsel. State v. Schneeweiss, 2001 ND 120, ¶ 10, 630 N.W.2d 482. The waiver of the right to counsel must be voluntary, knowing, and intelligent. City of Fargo v. Habiger, 2004 ND 127, ¶¶ 17, 23, 682 N.W.2d 300. The standard of review on an alleged denial of a constitutional right to counsel is de novo. Id. at ¶ 18. Whether there has been an intelligent waiver of constitutional rights depends upon the facts and circumstances of each particular case, including the background, the experience, and the conduct of the accused. State v. Ochoa, 2004 ND 43, ¶ 16, 675 N.W.2d 161.

[¶ 10] The facts of this case are rather unique and atypical. It is undisputed Murchison requested assistance of counsel at his initial appearance on August 15, 2003, but was not represented by counsel at the September 19, 2003 preliminary hearing, because he had not submitted documents showing indigency. Nevertheless, Murchison objected to a continuance and proceeded to represent himself at that hearing. As the trial court indicated, a good argument could be made Murchison waived his right to counsel at the September 19, 2003 preliminary hearing. However, we do not have to make that determination to resolve the issue before us, because Murchison was afforded a second preliminary hearing at which he was represented by court-appointed counsel. Murchison did not object to the second preliminary hearing, which was held on October 30, 2003, and he informed the court he was ready to proceed. After the hearing, the court found probable cause to bind Murchison over for trial and asked if Murchison wanted a second arraignment. After discussing the matter with his attorney, Murchison indicated, through his attorney, that he was ready to proceed to a jury trial on the charges. Under these circumstances, we conclude that Murchison waived the issue of whether he was denied effective assistance of counsel at the September 19, 2003 preliminary hearing. Murchison received a preliminary hearing at which he was represented by counsel on October 30, 2003, and he thereafter continued to be represented by counsel at all stages of the prosecution against him.

[¶ 11] A defendant cannot sit silently and acquiesce in criminal procedures, raising no objection, and then assert on appeal that he was denied constitutional rights. See State v. Antoine, 1997 ND 100, ¶ 8, 564 N.W.2d 637 (defendant could not by his actions acquiesce in his attorney’s decision that he not testify and then later argue that he was denied his constitutional right to testify on his own behalf); State v. Waters, 542 N.W.2d 742, 745 (N.D. 1996) (by neglecting to move for a continuance in a timely manner the defendant waived any claim he was denied his constitutional right to counsel of choice); State v. Pitman, 427 N.W.2d 337, 343 (N.D.1988) (when defendant, who was represented by counsel, waived his right to trial he was required to do more than simply request that the state prove he validly waived a trial). We hold Murchison waived his right to assert he was denied court-appointed counsel at the September 19, 2003 preliminary hearing.

Ill

[¶ 12] Murchison also asserts that he was deprived of a fair trial, because he was denied his right to a trial judge who was impartial and unbiased. Murchison asserts the trial judge was not impartial because she previously prosecuted Murchison for a prior criminal offense. He also argues the trial judge showed bias by not allowing the prosecutor to make a sentence recommendation and by immediately sentencing Murchison after the jury returned its verdict, -without asking for a presentence investigation or inquiring whether the parties wanted such an investigation.

[¶ 13] The Canons under the Judicial Code of Conduct govern the disqualification of a judge for bias or prejudice:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.

N.D.Code Jud. Conduct Canon 3(E)(1)(a). When making recusal decisions, the judge must determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge’s impartiality. Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 721 (N.D.1994). Recusal is not required in response to spurious or vague charges of partiality. Id. The inquiry here is whether a reasonable person could, on the basis of the objective facts, reasonably question the judge’s impartiality. See Sargent County Bank v. Wentworth, 500 N.W.2d 862, 878 (N.D.1993).

[¶ 14] Regarding the issue of judicial prejudice and bias, the trial judge, in her October 29, 2003 order denying the defendant’s motion to dismiss, stated:

The defense also suggests I should recuse because I may have prosecuted the defendant. Although I don’t remember any details, I believe it is possible I prosecuted the defendant. I haven’t been a prosecutor for more than 16 years, and my prior involvement in a case entirely unrelated to the one now pending is not a cause for recusal. Simply put, I have no bias or prejudice against the defendant.

The defendant has merely made a vague assertion the trial judge may have prosecuted him years ago on a prior offense. He has not submitted any evidence to support his claim. The trial judge states she has no recollection of such a prosecution and that she harbors no bias or prejudice against the defendant. Without more, we conclude the defendant’s claim of bias and prejudice by the trial court against him is insufficient for a reasonable person to question the trial judge’s impartiality in this case.

[¶ 15] The trial judge is ordinarily allowed the widest range of discretion in fixing a criminal sentence. State v. Bell, 540 N.W.2d 599, 601 (N.D.1995). Our review of the sentence is generally confined to whether the court acted within the statutory sentencing limits. State v. Faleide, 2002 ND 152, ¶ 4, 652 N.W.2d 312. We may also vacate a trial judge’s sentencing decision if the judge substantially relied on an impermissible factor in determining the severity of the sentence. Bell, 540 N.W.2d at 601.

[¶ 16] After the jury returned its verdict, the trial judge indicated she would proceed to sentencing. The court heard from both the prosecuting attorney and Murchison’s counsel. The court then asked Murchison if he wanted to say anything before sentence was imposed. Murchison indicated that he did not. Murchison made no objection to the court’s sentencing procedure and did not request a presentence investigation. The sentence was within the statutory limits and there is no allegation the court relied upon an impermissible factor in determining the severity of the sentence. Under these circumstances, we conclude Murchison failed to demonstrate the court committed error in conducting the sentencing proceedings and failed to demonstrate prejudice or bias by the judge in imposing the sentence.

IV

[¶ 17] We hold Murchison waived his right to assert he was denied a fair trial by being denied representation by court-appointed counsel at the September 19, 2003 preliminary hearing. We further hold Murchison failed to demonstrate he was denied a fair trial because the trial judge was prejudiced or biased against him. We, therefore, affirm the judgment of conviction.

[¶ 18] GERALD W. VANDE WALLE, C.J., BRUCE E. BOHLMAN, D.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 19] The Honorable BRUCE E. BOHLMAN, D.J., sitting in place of SANDSTROM, J., disqualified.