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State v. DeFoe

Court of Appeals of Minnesota

June 10, 2013

State of Minnesota, Respondent,
v.
OhOhoshecha DeFoe, Appellant.

UNPUBLISHED OPINION

Crow Wing County District Court File No. 18-CR-11-4546.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Donald F. Ryan, Crow Wing County Attorney, Rockwell J. Wells, Janine Lorena Lepage, Assistant County Attorneys, Brainerd, Minnesota (for respondent).

Alan D. Margoles, Michelle Speeter Margoles, Margoles & Margoles Law Firm, St. Paul, Minnesota (for appellant).

Considered and decided by Stoneburner, Presiding Judge; Rodenberg, Judge; and Klaphake, Judge.

KLAPHAKE, Judge[*]

Appellant OhOhoshecha DeFoe challenges his sentence, arguing that the district court abused its discretion by sentencing him without a pre-sentence investigation (PSI) and committed plain error in revising the jury instruction on the elements of his crime and that his counsel's assistance was ineffective. Because we observe no abuse of discretion in the sentencing procedure and no error in the jury instruction and because appellant was provided with effective assistance of counsel, we affirm.

DECISION

1. Absence of a PSI

Appellant argues that the district court was required to, and did not, obtain a PSI before sentencing him. "May" is permissive; "shall" is mandatory. Minn. Stat. § 645.44, subds. 15, 16 (2010). "[T]he [district] court may . . . order a presentence investigation . . . ." Minn. R. Crim. P. 27.03, subd. 1(B)(1)(a). But "the [district] court shall . . . cause a presentence investigation and written report to be made . . . ." Minn. Stat. § 609.115, subd. 1(a) (2010). The apparent conflict between these provisions is resolved by Minn. Stat. § 480.059, subd. 7 (1) (2010) (providing that the rules of criminal procedure supercede statutes and specifically exempting Minn. Stat. § 609.115 from the statutes to which this provision does not apply).

Thus, the district court may, but need not, order a presentence investigation, so a defendant may be sentenced without a PSI. Contrary to appellant's argument, a defendant has no unwaivable right to a PSI, and no abuse of discretion results from sentencing without a PSI.

Appellant argues in the alternative that, if he waived his right to a PSI, the waiver was not knowing, voluntary, or intelligent because of his "inability to comprehend the proceedings." But appellant's criminal files show that he had significant prior experience with sentencing, probation, probation violations, court proceedings, and incarceration, and appellant's testimony indicates that he understood what waiving a PSI meant and agreed to it.

Appellant replied "Yes" when the district court asked him, "[W]e had that brief conversation about the PSI not being in yet . . . ?" and "You're okay with that?" Appellant's attorney ...


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