Stearns County District Court File No. 73-CR-12-265.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Carl Ole Tvedten, Assistant County Attorney, St. Cloud, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Chelsie Willett, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Halbrooks, Judge; and Hooten, Judge.
On appeal following his convictions of two counts of second-degree assault, appellant argues that the district court abused its discretion by (1) denying his motion for a continuance to hire substitute counsel and (2) imposing the presumptive sentence without considering the factors outlined in State v. Trog, 323 N.W.2d 28 (Minn. 1982). We affirm.
Appellant Shane Robert Gerads was charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (2010), and two counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2010). Pursuant to a plea agreement, Gerads pleaded guilty to two counts of second-degree assault in exchange for the presumptive sentence of 60 months' imprisonment and the state's dismissal of the burglary charge. Despite the parties' agreement as to the sentence, the plea agreement allowed Gerads to argue for a dispositional departure at sentencing.
Gerads was released from custody pending sentencing. As conditions of his release, Gerads was required to remain on electronic alcohol monitoring and to attend all court appearances. Gerads failed to remain on alcohol monitoring, at which point a warrant for his arrest was issued. He also failed to appear for sentencing.
Gerads turned himself in, and a sentencing hearing was held one week later. Defense counsel did not move for a dispositional departure prior to the hearing, explaining that he did not have the resources to prepare the motion on such short notice. When defense counsel asked for a continuance at the hearing, the district court denied the request on the ground that it had "made [it] very clear" at the plea hearing that a dispositional departure was contingent upon Gerads "fully complying" with the terms of his conditional release.
Near the close of the sentencing hearing, Gerads, himself, requested a continuance to hire substitute counsel because he was dissatisfied with the representation he had received. The district court denied the request and imposed the presumptive sentence of 60 months' imprisonment. This appeal follows.