State v. Omaha

State of Minnesota, Respondent, v. John Arlo Bowen Omaha, Appellant.

A20-1220

STATE OF MINNESOTA IN COURT OF APPEALS

May 24, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Reyes, Judge

Beltrami County District Court

File No. 04-CR-19-2310

Keith Ellison, Attorney General, St. Paul, Minnesota; and

David Hanson, Beltrami County Attorney, Ashley A. Nelson, Assistant County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Reyes, Judge.

NONPRECEDENTIAL OPINION

REYES, Judge

In this direct appeal from his judgment of conviction of and sentence for conspiracy to commit assault in the first degree, appellant argues that (1) he received ineffective assistance of counsel because his attorney conceded all elements of the offense without his consent and (2) the district court abused its discretion by imposing an upward durational departure based on facts unrelated to the offense of conviction. We affirm.

FACTS

In the early morning of June 10, 2018, law-enforcement officers responded to a report of a person shot at the Pine Ridge Apartments in Bemidji, Beltrami County, Minnesota. Officers found R.T., after he was shot multiple times while lying in his recliner in his apartment. They observed that the perpetrator fired numerous shots from the hallway into R.T.'s apartment and from the lawn into R.T.'s and another apartment. Multiple people, including a three-year-old child, were present in the building. R.T. was airlifted to a hospital in critical condition, but ultimately survived his injuries.

In August 2019, after extensive investigation, respondent State of Minnesota charged appellant John Arlo Bowen Omaha with one count of conspiracy to commit assault in the first degree under Minn. Stat. § 609.175, subd. 2 (2018), with reference to Minn. Stat. § 609.221, subd. 1 (2018). The state filed an amended Blakely motion¹ asserting as grounds for an aggravated sentence that (1) appellant's conduct could have injured persons other than the intended victim and (2) appellant used a firearm in committing the offense.

At a contested omnibus hearing, defense counsel stated "[i]deally we would be entering a [guilty] plea" but expressed reluctance due to the nature of the evidence and the effect of the crime on the community. The parties therefore agreed to proceed with a stipulated-evidence trial under Minn. R. Crim. P. 26.01, subd. 3. Because of the potentiallyvoluminous evidence, the district court asked both parties to prepare proposed orders as closing arguments. Both parties hesitated over submitting closing arguments in that form. The district court agreed to discuss the issue further at a later hearing.

In December 2019, the district court held the stipulated-evidence trial, at which appellant waived his right to a jury trial on the issues of guilt and the existence of facts to support an aggravated sentence. The district court again asked the parties if they planned to submit written closing arguments. The state confirmed that it would submit a narrative-form written argument. Defense counsel said she discussed submitting a proposed order with appellant and he agreed to do so. The parties also waived the seven-day timeline for the district court's decision on the stipulated evidence. The parties then submitted their written closing arguments.

In February 2020, the district court issued an order, finding in part that "[defense counsel] seems to have waived elements in her closing statement. [Appellant] did not waive these elements on the record." At another hearing in March 2020, defense counsel asked appellant questions on the record, showing that he agreed to her written closing argument and that they had discussed a concession strategy.

The district court then issued findings of fact, conclusions of law, and an order finding appellant guilty of conspiracy to commit first-degree assault and finding that facts existed supporting the aggravating factors. At sentencing, defense counsel argued that both aggravating factors related to the uncharged assault, rather than the charged conspiracy-to-commit-assault-in-the-first-degree, and that the district court therefore could not rely on those factors. The district court rejected that argument and found that the evidencesupported both aggravating factors. It convicted appellant and sentenced him to 120 months in prison, representing an upward durational departure.² This appeal follows.

DECISION

I. Defense counsel's concession of guilt does not constitute ineffective assistance of counsel because appellant acquiesced to the concession.

Appellant argues that he received ineffective assistance of counsel because his attorney conceded all three elements of the offense without his consent. We disagree.

"To succeed on an ineffective assistance of counsel claim, a defendant must show that (1) 'his attorney's performance fell below an objective standard of reasonableness,' and (2) 'a reasonable probability exists that the outcome would have been different, but for counsel's errors.'" State v. Luby, 904 N.W.2d 453, 457 (Minn. 2017) (quoting Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007)). But "[w]hen defense counsel concedes the defendant's guilt without consent, 'counsel's performance is deficient and prejudice is presumed.'" Id. (quoting State v. Prtine, 784 N.W.2d 303, 317-18 (Minn. 2010) (Prtine I)). In determining whether counsel impermissibly conceded guilt, we apply a two-step analysis. First, we ask "whether defense counsel made a concession of guilt." Id. Second, we ask whether the defendant "acquiesced in that concession." Id. (quoting Prtine I, 784N.W.2d at 318). We review both inquiries de novo. Id. at 457. But we review the district court's findings of fact for clear error. Prtine I, 784 N.W.2d at 312.

A. Defense counsel conceded all three elements of conspiracy.

Appellant argues that defense counsel conceded all three elements of conspiracy. We agree.

A concession of guilt may be express or implied. Luby, 904 N.W.2d at 457. In assessing whether counsel impliedly conceded guilt, we consider counsel's challenged statements in the context of the whole trial. Dukes v. State, 660 N.W.2d 804, 813 (Minn. 2003). Counsel's statements constitute an implied concession of guilt only when "a reasonable person viewing the totality of the circumstances would conclude that counsel conceded the defendants [sic] guilt." Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004) (quotation omitted).

The elements of conspiracy to commit assault in the first degree are the following: (1) defendant conspired with another to commit assault in the first degree; (2) defendant or another party to the conspiracy committed an overt act in furtherance of the conspiracy; and (3) either defendant entered into the conspiracy in the venue or an overt act took place in the venue. 10 Minnesota Practice, CRIMJIG 5.07, 13.03 (2020); Minn. R. Crim. P. 24.01 (stating case must be tried in county where offense committed).

Here, defense counsel expressly conceded the first and second elements of conspiracy in her written closing argument. Although she stated in her proposed conclusions of law that the state failed to prove venue in Beltrami County, in her proposed findings of fact, she stated that appellant went to Beltrami County to scout out R.T.'sapartment and he drove with J.H. to Bemidji, in Beltrami County, on the night the incident occurred. Because these proposed findings recount overt acts in furtherance of the conspiracy in Beltrami County, they satisfy the venue requirement and implicitly concede venue. CRIMJIG 5.07 (requiring that defendant "entered the agreement, or an overt act took place" in venue); see Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 385 (Minn. 1999) (noting that "or" is generally disjunctive). By conceding all three elements of conspiracy, defense counsel conceded appellant's guilt.

B. Appellant acquiesced to defense counsel's concession of guilt.

Appellant argues that he did not consent to defense counsel's concession of venue and that no understandable trial strategy supported counsel's concession. We are not persuaded.

We first recite the facts relevant to whether appellant consented to the concession strategy. Defense counsel presented the concession strategy early in the case, noting "[i]deally we would be entering a [guilty] plea." She expressed concern about appellant having to testify in front of an emotional community in order to enter a plea. Further, defense counsel stated that appellant would be "happy to discuss his role since it's a conspiracy charge, but as a matter of honor he [did] not want to implicate anyone else, so that's why we feel that the stipulated evidence trial is the best option." The parties therefore proceeded with a stipulated-evidence trial to avoid those concerns. Appellant never objected to that strategy, even though he objected to other matters not raised on appeal.

Additionally, defense counsel stated that appellant "agree[d] that [her] argument was proper as far as admitting the elements of the offense" and that she had discussed thedefense strategy with appellant. Defense counsel made a record of that agreement at the March 5 hearing:

COUNSEL: [A]s part of [my written argument] we said the State has proven that the Defendant conspired with another to commit the crime of assault in the first degree, correct?

APPELLANT: Yes.

Q: And you agree that it's okay for me to make that argument.

A: Yes.

Q: And then we also agreed that an overt act was made in furtherance of that conspiracy, correct?

A: Yes.

Q. And we've discussed the strategy of why I've made that argument, correct?

A: Yes.

Q: So you're comfortable with what I've submitted to the Court?

A: Yes.

Q: And . . . I did lay out findings of fact . . . and you agree with

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