Isanti County District Court File No. 30-CR-10-641
The opinion of the court was delivered by: Kalitowski, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Schellhas, Judge.
UNPUBLISHED OPINION KALITOWSKI, Judge
Appellant Jing Hai Jiang challenges the district court's order finding him guilty of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2010). Appellant argues that (1) his trial counsel was ineffective because he conceded appellant's guilt, (2) the district court committed plain error that affected appellant's substantial rights by receiving documentary exhibits instead of stipulated facts, and (3) the district court abused its discretion by ordering appellant to pay $97,674.61 in restitution. We affirm.
To determine whether counsel made an improper concession, "we first perform a de novo review of the record to see if counsel in fact conceded the defendant's guilt and, if so, we must proceed to the second prong of the inquiry and determine whether the defendant acquiesced in that concession." State v. Prtine, 784 N.W.2d 303, 318 (Minn. 2010).
"The decision whether or not to admit guilt at trial belongs to the defendant, and a new trial will be granted where defense counsel, explicitly or implicitly, admits a defendant's guilt without permission or acquiescence." State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991). "When counsel for the defendant admits a defendant's guilt without the defendant's consent, the counsel's performance is deficient and prejudice is presumed." Prtine, 784 N.W.2d at 317-18. "[T]he defendant is entitled to a new trial, regardless of whether he would have been convicted without the admission." Id. at 318.
Appellant argues that he is entitled to a new trial because his counsel conceded his guilt to first-degree assault against victim K.B.N. Assault is "(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another." Minn. Stat. § 609.02, subd. 10 (2010). A defendant is guilty of first-degree assault if he "assaults another and inflicts great bodily harm." Minn. Stat. § 609.221, subd. 1 (2010). "Great bodily harm" is "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm." Minn. Stat. § 609.02, subd. 8 (2010). Assault is a general-intent crime, meaning that the state need only prove that the defendant intended to do the physical act. State v. Fleck, 810 N.W.2d 303, 309-10 (Minn. 2012).
Following a stipulated-facts trial in which appellant and respondent State of Minnesota submitted nine documentary exhibits, the parties submitted written closing arguments. In the written closing argument, counsel conceded that appellant struck K.B.N. with a knife, stating that appellant "quickly picked up the knife and struck [K.B.N.]" and "snapped during the argument and used the instrument in his possession, which was a Chinese cooking knife." Counsel further stated that, "As for [K.B.N.'s] injuries, the knife cuts delivered by [appellant] did create a 'high probability of death.'" Finally, counsel concluded, "The evidence does not support a First-Degree Attempted Premeditated Murder conviction against [K.B.N.]. It more accurately reflects a First-Degree Assault charge."
Both parties acknowledge, and we agree, that counsel conceded the great-bodily-harm element of first-degree assault. Although the parties dispute whether counsel conceded the general-intent element by stating that appellant snapped, picked up the knife, and struck K.B.N., counsel arguably conceded that appellant intended to do the physical act. Because appellant's counsel further stated that the evidence "accurately reflects a First-Degree Assault charge," we conclude that counsel at least implicitly conceded the general-intent element.
But this does not end our inquiry. We must "look at the entire record to determine if the defendant acquiesced in his counsel's strategy." Prtine, 784 N.W.2d at 318."The absence of a personal, on-the-record consent to counsel's strategy of admitting guilt to a lesser charge is not dispositive." Id.; see also State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992) ("Nor do we agree with defendant that there must be a 'contemporaneous' record made of the defendant's consent to his counsel's strategy of admitting guilt to a lesser charge."). "We have held that when trial counsel uses the ...