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State v. Miller

Court of Appeals of Minnesota

November 4, 2013

State of Minnesota, Respondent,
v.
Demetrius Jermaine Miller, Appellant.

UNPUBLISHED OPINION

Ramsey County District Court File No. 62-CR-11-3803

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Renee Bergeron, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Larkin, Judge.

CONNOLLY, Judge

Appellant challenges his conviction of first-degree criminal sexual conduct and first-degree aggravated robbery, arguing that he was denied effective assistance of counsel, that the district court abused its discretion in denying appellant's motion for postconviction investigative services and in admitting five unspecified felony convictions as impeachment evidence, and that appellant's waiver of his right to counsel at the sentencing hearing was not knowing and voluntary. Because appellant did not show that he was denied effective assistance of counsel and the district court did not abuse its discretion in denying investigative services or in admitting unspecified felony convictions, we affirm appellant's conviction. But, because the record does not show that appellant's waiver of his right to counsel at the sentencing hearing was knowing and intelligent, we reverse his sentence and remand for a sentencing hearing at which appellant will either be represented by counsel or will waive his right to counsel on the record and in accord with Minn. R. Crim. P. 5.04.

FACTS

In May 2011, appellant Demetrius Miller and D.B. were together in an alley behind a gas station in an incident that led to appellant being charged with first-degree criminal sexual conduct and first-degree aggravated robbery.

At trial, D.B. and appellant offered conflicting testimony. D.B. testified that appellant grabbed her around the shoulders with force, succeeded in taking her shorts off to get her phone and iPod, hit her in the face and upper lip, and penetrated her briefly. She said she was struggling, trying to fight back, kicking, screaming, and hitting appellant.

Appellant testified that he wanted to steal D.B.'s phone, iPod, and money; they arranged to have sex; D.B. pushed appellant to the ground, and got on top of him; appellant changed positions with D.B. because he wanted to be able to take D.B.'s property and run; D.B. grabbed appellant by the penis, hurting him; appellant penetrated D.B. for about ten seconds, during which D.B. was "[j]ust laid back, just enjoying it"; and, when appellant started taking D.B.'s property, D.B. did not fight back but did try to get the shorts.

During trial, appellant was represented by two public defenders and criticized their representation of him. The jury found appellant guilty on both counts. At the sentencing hearing, appellant discharged the public defenders who had been representing him. He was sentenced to consecutive guideline sentences of 281 months in prison on the criminal-sexual-conduct count and to 48 months in prison on the robbery count.

Appellant challenges his conviction, arguing that he was denied effective assistance of counsel and that the district court abused its discretion in denying his motion for postconviction investigative services and in admitting five unspecified prior felony convictions as impeachment evidence; he also challenges his sentence, arguing that ...


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