This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1622
State of Minnesota, Respondent,
vs.
Timothy John Lopp, Appellant
Filed September 8, 2015 Reversed and remanded Peterson, Judge
St. Louis County District Court File No. 69VI-CR-13-1433
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Leah A. Stauber, Assistant County Attorney, Virginia, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from a conviction of first-degree driving while impaired (DWI)
following a trial to the court under Minn. R. Crim. P. 26, appellant argues that the conviction must be reversed because the district court failed to strictly comply with the
requirements of Minn. R. Crim. P. 26.01, subd. 4. We reverse and remand.
FACTS
Trooper Travis Koenen stopped appellant Timothy John Lopp after Lopp failed to
stop at a stop sign. When Koenen approached Lopp’s vehicle, he noticed that Lopp’s
“eyes were bloodshot, watery, and marked with reddening, and . . . [that] a moderate odor
of an alcoholic beverage” was coming from him. According to Koenen, Lopp admitted
“that he did not stop at the stop sign” and that he had consumed two beers. Lopp
performed and failed field sobriety tests, and when asked to take a preliminary breath
test, Lopp said to Koenen, “It’s going to come over. I don’t want to be arrested.”
Koenen obtained a search warrant to obtain a blood sample from Lopp, and testing of the
sample revealed that Lopp’s alcohol concentration was .13.
Lopp was charged with two counts of first-degree DWI under Minn. Stat.
§ 169A.20, subd. 1(1), (5) (2012). Lopp made a pretrial motion to dismiss the charges
and suppress evidence obtained during execution of the search warrant, arguing that
Koenen lacked (1) a reasonable, articulable suspicion for the traffic stop; (2) probable
cause for the arrest; and (3) probable cause to obtain the search warrant to obtain his
blood sample. Following a hearing, the district court denied the motion.
The parties then appeared in district court for trial. At the beginning of the trial,
Lopp’s counsel told the court that the trial was to be “a stipulated facts trial per Rule 26
of the Minnesota Rules of Criminal Procedure, formerly called a Lothenbach procedure,”
and the prosecutor told the court that the parties were “stipulating to the complaint, all the
2 reports, and the video.” The district court clarified that the purpose of the proceeding
was “to preserve appellate review of a pretrial ruling,” and defense counsel agreed.
Lopp then waived his rights to a jury trial, to testify at trial, to have defense and
prosecution witnesses testify at trial, and to cross-examine the prosecution witnesses.
The district court asked Lopp, “[D]o you understand that there was a pretrial issue, and
that pretrial issue was that of probable cause?” Lopp said that he understood. The
district court also described the pretrial issue that would be before the appellate court as
the “determination of probable cause or suppression of evidence,” and Lopp said that he
understood.
The district court found appellant guilty on both DWI counts and imposed an
executed prison sentence on one count. This appeal followed.
DECISION
Lopp seeks reversal of his conviction and remand for a new trial, arguing that the
district court failed to explain to him that all three pretrial issues were preserved for
appeal and failed to obtain the prosecutor’s personal acknowledgment regarding the
dispositive pretrial issues as required under Minn. R. Crim. P. 26.01, subd. 4.
Respondent State of Minnesota argues that Lopp waived his right to a jury trial and
agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3.
Although Lopp’s counsel told the district court that the trial was to be “a stipulated
facts trial per Rule 26,” neither party specified whether the trial was to be conducted
according to subdivision 3 or subdivision 4 of rule 26. But Lopp requested a court trial
after the district court denied his pretrial motion to dismiss the charges and suppress
3 evidence, and, when accepting Lopp’s jury-trial waiver, the district court specifically
asked whether the purpose of the proceeding was “to preserve appellate review of a
pretrial ruling,” and defense counsel agreed that was the purpose.
The procedure under Minn. R. Crim. P. 26.01, subd. 3, applies when the parties
agree that a determination of the defendant’s guilt may be submitted to and tried by the
district court based on stipulated facts. The procedure under Minn. R. Crim. P. 26.01,
subd. 4, must be used to preserve a specified pretrial issue for appellate review and
applies when the parties agree that the district court’s ruling on the pretrial issue is
dispositive of the case or makes a contested trial unnecessary and submit the case for
determination by the district court based on a stipulation to the prosecutor’s evidence.
It is apparent that the procedure the parties intended to follow was the procedure
under Minn. R. Crim. P. 26.01, subd. 4. The court trial occurred after the district court
issued its pretrial ruling denying Lopp’s motion to dismiss the charges and suppress
evidence, the district court specifically determined that the purpose of the trial proceeding
was to preserve appellate review of a pretrial ruling, and the parties stipulated to the
prosecution’s evidence, rather than to specific facts. All of these facts indicate that
Lopp’s counsel incorrectly described the procedure as a stipulated-facts trial. We will,
therefore, review the court trial as a proceeding under Minn. R. Crim. P. 26.01, subd. 4.
“The interpretation of the rules of criminal procedure is a question of law that we
review de novo. We interpret court rules in accordance with the rules of grammar and
give words and phrases their common and approved usage.” Dereje v. State, 837 N.W.2d
714, 720 (Minn. 2013) (quotation and citation omitted), cert. denied, 134 S. Ct. 1772
4 (2014). “In construing a procedural rule, we consider both the plain language of the rule
and its purpose.” State v. Burdick, 795 N.W.2d 873, 875 (Minn. App. 2011).
Minn. R. Crim. P. 26.01, subd. 4, provides, in part:
(a) When the parties agree that the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling makes a contested trial unnecessary, the following procedure must be used to preserve the issue for appellate review.
(b) The defendant must maintain the plea of not guilty.
(c) The defendant and the prosecutor must acknowledge that the pretrial issue is dispositive, or that a trial will be unnecessary if the defendant prevails on appeal.
....
(e) The defendant must stipulate to the prosecution’s evidence in a trial to the court, acknowledge that the court will consider the prosecution’s evidence, and that the court may enter a finding of guilt based on that evidence.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1622
State of Minnesota, Respondent,
vs.
Timothy John Lopp, Appellant
Filed September 8, 2015 Reversed and remanded Peterson, Judge
St. Louis County District Court File No. 69VI-CR-13-1433
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Leah A. Stauber, Assistant County Attorney, Virginia, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from a conviction of first-degree driving while impaired (DWI)
following a trial to the court under Minn. R. Crim. P. 26, appellant argues that the conviction must be reversed because the district court failed to strictly comply with the
requirements of Minn. R. Crim. P. 26.01, subd. 4. We reverse and remand.
FACTS
Trooper Travis Koenen stopped appellant Timothy John Lopp after Lopp failed to
stop at a stop sign. When Koenen approached Lopp’s vehicle, he noticed that Lopp’s
“eyes were bloodshot, watery, and marked with reddening, and . . . [that] a moderate odor
of an alcoholic beverage” was coming from him. According to Koenen, Lopp admitted
“that he did not stop at the stop sign” and that he had consumed two beers. Lopp
performed and failed field sobriety tests, and when asked to take a preliminary breath
test, Lopp said to Koenen, “It’s going to come over. I don’t want to be arrested.”
Koenen obtained a search warrant to obtain a blood sample from Lopp, and testing of the
sample revealed that Lopp’s alcohol concentration was .13.
Lopp was charged with two counts of first-degree DWI under Minn. Stat.
§ 169A.20, subd. 1(1), (5) (2012). Lopp made a pretrial motion to dismiss the charges
and suppress evidence obtained during execution of the search warrant, arguing that
Koenen lacked (1) a reasonable, articulable suspicion for the traffic stop; (2) probable
cause for the arrest; and (3) probable cause to obtain the search warrant to obtain his
blood sample. Following a hearing, the district court denied the motion.
The parties then appeared in district court for trial. At the beginning of the trial,
Lopp’s counsel told the court that the trial was to be “a stipulated facts trial per Rule 26
of the Minnesota Rules of Criminal Procedure, formerly called a Lothenbach procedure,”
and the prosecutor told the court that the parties were “stipulating to the complaint, all the
2 reports, and the video.” The district court clarified that the purpose of the proceeding
was “to preserve appellate review of a pretrial ruling,” and defense counsel agreed.
Lopp then waived his rights to a jury trial, to testify at trial, to have defense and
prosecution witnesses testify at trial, and to cross-examine the prosecution witnesses.
The district court asked Lopp, “[D]o you understand that there was a pretrial issue, and
that pretrial issue was that of probable cause?” Lopp said that he understood. The
district court also described the pretrial issue that would be before the appellate court as
the “determination of probable cause or suppression of evidence,” and Lopp said that he
understood.
The district court found appellant guilty on both DWI counts and imposed an
executed prison sentence on one count. This appeal followed.
DECISION
Lopp seeks reversal of his conviction and remand for a new trial, arguing that the
district court failed to explain to him that all three pretrial issues were preserved for
appeal and failed to obtain the prosecutor’s personal acknowledgment regarding the
dispositive pretrial issues as required under Minn. R. Crim. P. 26.01, subd. 4.
Respondent State of Minnesota argues that Lopp waived his right to a jury trial and
agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3.
Although Lopp’s counsel told the district court that the trial was to be “a stipulated
facts trial per Rule 26,” neither party specified whether the trial was to be conducted
according to subdivision 3 or subdivision 4 of rule 26. But Lopp requested a court trial
after the district court denied his pretrial motion to dismiss the charges and suppress
3 evidence, and, when accepting Lopp’s jury-trial waiver, the district court specifically
asked whether the purpose of the proceeding was “to preserve appellate review of a
pretrial ruling,” and defense counsel agreed that was the purpose.
The procedure under Minn. R. Crim. P. 26.01, subd. 3, applies when the parties
agree that a determination of the defendant’s guilt may be submitted to and tried by the
district court based on stipulated facts. The procedure under Minn. R. Crim. P. 26.01,
subd. 4, must be used to preserve a specified pretrial issue for appellate review and
applies when the parties agree that the district court’s ruling on the pretrial issue is
dispositive of the case or makes a contested trial unnecessary and submit the case for
determination by the district court based on a stipulation to the prosecutor’s evidence.
It is apparent that the procedure the parties intended to follow was the procedure
under Minn. R. Crim. P. 26.01, subd. 4. The court trial occurred after the district court
issued its pretrial ruling denying Lopp’s motion to dismiss the charges and suppress
evidence, the district court specifically determined that the purpose of the trial proceeding
was to preserve appellate review of a pretrial ruling, and the parties stipulated to the
prosecution’s evidence, rather than to specific facts. All of these facts indicate that
Lopp’s counsel incorrectly described the procedure as a stipulated-facts trial. We will,
therefore, review the court trial as a proceeding under Minn. R. Crim. P. 26.01, subd. 4.
“The interpretation of the rules of criminal procedure is a question of law that we
review de novo. We interpret court rules in accordance with the rules of grammar and
give words and phrases their common and approved usage.” Dereje v. State, 837 N.W.2d
714, 720 (Minn. 2013) (quotation and citation omitted), cert. denied, 134 S. Ct. 1772
4 (2014). “In construing a procedural rule, we consider both the plain language of the rule
and its purpose.” State v. Burdick, 795 N.W.2d 873, 875 (Minn. App. 2011).
Minn. R. Crim. P. 26.01, subd. 4, provides, in part:
(a) When the parties agree that the court’s ruling on a specified pretrial issue is dispositive of the case, or that the ruling makes a contested trial unnecessary, the following procedure must be used to preserve the issue for appellate review.
(b) The defendant must maintain the plea of not guilty.
(c) The defendant and the prosecutor must acknowledge that the pretrial issue is dispositive, or that a trial will be unnecessary if the defendant prevails on appeal.
....
(e) The defendant must stipulate to the prosecution’s evidence in a trial to the court, acknowledge that the court will consider the prosecution’s evidence, and that the court may enter a finding of guilt based on that evidence.
(f) The defendant must also acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial.
(g) The defendant and the prosecutor must make the preceding acknowledgments personally, in writing or on the record.
The purpose of the rule is to promote efficient use of judicial resources and to preserve a
defendant’s right of appeal while avoiding an otherwise unnecessary jury trial. State v.
Verschelde, 595 N.W.2d 192, 195 (Minn. 1999); see State v. Knoll, 739 N.W.2d 919, 922
5 (Minn. App. 2007) (explaining that procedure set forth in Minn. R. Crim. P. 26.01, subd.
4, was formerly known as a Lothenbach trial).
If a district court fails to “strictly comply” with the waiver requirements of rule
26.01, “the subsequent conviction must be reversed.” Knoll, 739 N.W.2d at 921; see
State v. Antrim, 764 N.W.2d 67, 71 (Minn. App. 2009) (reversing and remanding for
invalid waiver in a rule 26.01, subd. 4 proceeding, requiring strict adherence to rule
requirements); State v. Bunce, 669 N.W.2d 394, 398 (Minn. App. 2003) (reversing and
remanding because defendant failed to personally waive his right to a jury trial before the
case was submitted to the district court in a Lothenbach proceeding), review denied
(Minn. Dec. 16, 2003).
In his pretrial motion to suppress evidence, Lopp argued that there was not (1) a
reasonable, articulable suspicion of criminal activity to support the traffic stop;
(2) probable cause for the arrest; and (3) probable cause to obtain the search warrant to
obtain his blood sample. Lopp argues that the district court failed to strictly comply with
the requirements of Minn. R. Crim. P. 26.01, subd. 4, because it failed to explain that all
three of these pretrial issues were preserved for appeal.
Whether there was a reasonable, articulable suspicion of criminal activity to
support the traffic stop was not identified as a pretrial issue during the exchange between
Lopp and the district court at trial. Consequently, Lopp did not acknowledge that this
pretrial issue was dispositive, as required under Minn. R. Crim. P. 26.01, subd. 4(c). And
the prosecutor did not make any acknowledgment that any pretrial issue was dispositive
6 or that a trial will be unnecessary if Lopp prevails on appeal, as required under Minn. R.
Crim. P. 26.01, subd. 4(c).
Respondent argues that there was an understanding through off-the-record
discussions between the parties that all three pretrial issues would be considered
dispositive if Lopp prevailed on appeal. But Minn. R. Crim. P. 26.01, subd. 4(g),
provides that “[t]he defendant and the prosecutor must make the preceding
acknowledgments personally, in writing or on the record.” Consequently, it is not
sufficient if the parties simply reach an understanding as to what pretrial issues are
dispositive; the parties must acknowledge the understanding in writing or on the record.
See Antrim 764 N.W.2d at 70 (stating that defendant’s rule 26.01 waiver must be
“personal, explicit, and in accordance with [the] rule” (quotation omitted)). Respondent
concedes that neither form of acknowledgment occurred.
In Burdick, this court ruled that a stipulation to proceed under rule 26.01, subd. 4,
was invalid when the parties failed to acknowledge that the pretrial issue was dispositive.
795 N.W.2d at 876-77; see also Knoll, 739 N.W.2d at 921-22 (reversing when required
acknowledgements were deficient in Lothenbach proceeding, including defendant’s
waiver of rights to testify, confront witnesses, and subpoena favorable witnesses).
Similarly here, because the parties failed to comply with the rule’s strict requirements,
the proceeding under rule 26.01, subd. 4, is invalid. We therefore reverse appellant’s
conviction and remand for further proceedings.
Reversed and remanded.