This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0368
State of Minnesota, Respondent,
vs.
Wayne Keith Parmenter, Appellant.
Filed February 2, 2015 Reversed and remanded Chutich, Judge
Cass County District Court File No. 11-CR-10-2350
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Christopher J. Strandlie, Cass County Attorney, Benjamin T. Lindstrom, Assistant County Attorney, Walker, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Wayne Parmenter appeals his convictions of first-degree driving while
impaired, arguing that he did not validly waive his right to counsel and that his trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, was invalid. In a pro se
supplemental brief, Parmenter also challenges the district court’s rulings on his pretrial
motions. Because the requirements of rule 26.01, subdivision 4, were not met, we
reverse and remand.
FACTS
In October 2010, the state charged Wayne Parmenter with two counts of first-
degree driving while impaired. In December 2011, Parmenter filed a petition to proceed
pro se. In January 2012, the district court allowed Parmenter to fire the public defender
who represented him.
Parmenter argued several issues at the contested omnibus hearing, asserting that:
(1) he should have been given access to the Intoxilyzer source code; (2) the stop of his
car was unlawful; (3) no probable cause to arrest existed; (4) he was denied his right to
counsel after his arrest; (5) he should have been allowed an alternative blood test; (6) his
statements during the traffic stop should have been suppressed; and (7) no probable cause
existed for the charges once his defenses were considered, including a medical defense
and an argument that he did not have three prior qualified driving incidents. The district
court denied Parmenter’s motions.
At an August 2013 pretrial hearing, Parmenter requested that the matter proceed
under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, which permits a
defendant to stipulate to the prosecution’s case to obtain review of a pretrial ruling.
Before Parmenter was sworn in, the prosecutor said that the parties needed to
2 acknowledge that the pretrial issues would be dispositive and that he “certainly [thought]
that some of [them] would have that [e]ffect.”
After he was sworn in, the district court asked Parmenter if he agreed that “if, for
instance, this last issue you raised of the . . . license revocation out of Hubbard County,
do you agree that if that were found to not exist that we wouldn’t be here on a first
degree?” Parmenter agreed with this statement. No other acknowledgment or discussion
of which pretrial issues were dispositive took place.
The district court found Parmenter guilty of both counts, sentenced him to 36
months in prison with execution stayed, and placed him on probation for seven years.
This appeal followed.
DECISION
Parmenter argues that the district court committed reversible error by failing to
determine whether the pretrial issues were dispositive and by failing to have the parties
acknowledge which issues were dispositive. He asserts that because not all of the pretrial
issues were dispositive, the failure to strictly comply with Minnesota Rule of Criminal
Procedure 26.01, subdivision 4, requires reversal. We agree.
Construction of a rule of criminal procedure is a question of law reviewed de
novo. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). When this court construes a
procedural rule, it considers the plain language of the rule and its purpose. In re Welfare
of S.M.E., 725 N.W.2d 740, 742 (Minn. 2007).
3 Minnesota Rule of Criminal Procedure 26.01, subdivision 4, permits a defendant
to stipulate to the prosecution’s case to obtain review of a pretrial ruling. The rule sets
forth the procedure to be followed:
(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. *** (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.
Minn. R. Crim. P. 26.01, subd. 4. The purpose of this proceeding is to avoid the
inefficient 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).
The parties here did not make the acknowledgements required by the rule. The
prosecutor, while noting that “there also needs to be an acknowledgement that the pretrial
issues would be dispositive,” also stated that “I . . . certainly think that some of this
would have that [e]ffect . . . .” Likewise, the district court only asked Parmenter if, “for
instance,” one of his pretrial issues would make a contested trial unnecessary. But the
parties never acknowledged which pretrial issues were dispositive.
4 Parmenter raised seven pretrial issues, not all of which were dispositive of the
case. And the rule makes clear that the parties need to agree that a ruling on a specified
pretrial issue is dispositive. Minn. R. Crim. P. 26.01, subd. 4(a).
One of Parmenter’s pretrial issues was that the statements he made to the police
after he was first stopped should be suppressed because he was not given a Miranda
warning. But this issue was neither dispositive nor would it have made a contested trial
unnecessary: the state had substantial evidence against Parmenter without these
statements.
Furthermore, several of Parmenter’s other pretrial issues may not have been
dispositive. Parmenter also challenged that he should have been given a blood test, that
he was not permitted to speak with an attorney before he was tested, and that the
Intoxilyzer source code was defective. These issues may have been dispositive of the
case if Parmenter were solely charged with driving with an alcohol concentration above
.08. But Parmenter was also charged with driving under the influence of alcohol. Even if
he successfully challenged these issues, a trial still could have occurred based on this
second charge.
In State v. Burdick, 795 N.W.2d 873 (Minn. App. 2011), we considered a
challenge to a proceeding somewhat similar to this case. The proceeding in Burdick had
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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 A14-0368
State of Minnesota, Respondent,
vs.
Wayne Keith Parmenter, Appellant.
Filed February 2, 2015 Reversed and remanded Chutich, Judge
Cass County District Court File No. 11-CR-10-2350
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Christopher J. Strandlie, Cass County Attorney, Benjamin T. Lindstrom, Assistant County Attorney, Walker, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Wayne Parmenter appeals his convictions of first-degree driving while
impaired, arguing that he did not validly waive his right to counsel and that his trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, was invalid. In a pro se
supplemental brief, Parmenter also challenges the district court’s rulings on his pretrial
motions. Because the requirements of rule 26.01, subdivision 4, were not met, we
reverse and remand.
FACTS
In October 2010, the state charged Wayne Parmenter with two counts of first-
degree driving while impaired. In December 2011, Parmenter filed a petition to proceed
pro se. In January 2012, the district court allowed Parmenter to fire the public defender
who represented him.
Parmenter argued several issues at the contested omnibus hearing, asserting that:
(1) he should have been given access to the Intoxilyzer source code; (2) the stop of his
car was unlawful; (3) no probable cause to arrest existed; (4) he was denied his right to
counsel after his arrest; (5) he should have been allowed an alternative blood test; (6) his
statements during the traffic stop should have been suppressed; and (7) no probable cause
existed for the charges once his defenses were considered, including a medical defense
and an argument that he did not have three prior qualified driving incidents. The district
court denied Parmenter’s motions.
At an August 2013 pretrial hearing, Parmenter requested that the matter proceed
under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, which permits a
defendant to stipulate to the prosecution’s case to obtain review of a pretrial ruling.
Before Parmenter was sworn in, the prosecutor said that the parties needed to
2 acknowledge that the pretrial issues would be dispositive and that he “certainly [thought]
that some of [them] would have that [e]ffect.”
After he was sworn in, the district court asked Parmenter if he agreed that “if, for
instance, this last issue you raised of the . . . license revocation out of Hubbard County,
do you agree that if that were found to not exist that we wouldn’t be here on a first
degree?” Parmenter agreed with this statement. No other acknowledgment or discussion
of which pretrial issues were dispositive took place.
The district court found Parmenter guilty of both counts, sentenced him to 36
months in prison with execution stayed, and placed him on probation for seven years.
This appeal followed.
DECISION
Parmenter argues that the district court committed reversible error by failing to
determine whether the pretrial issues were dispositive and by failing to have the parties
acknowledge which issues were dispositive. He asserts that because not all of the pretrial
issues were dispositive, the failure to strictly comply with Minnesota Rule of Criminal
Procedure 26.01, subdivision 4, requires reversal. We agree.
Construction of a rule of criminal procedure is a question of law reviewed de
novo. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). When this court construes a
procedural rule, it considers the plain language of the rule and its purpose. In re Welfare
of S.M.E., 725 N.W.2d 740, 742 (Minn. 2007).
3 Minnesota Rule of Criminal Procedure 26.01, subdivision 4, permits a defendant
to stipulate to the prosecution’s case to obtain review of a pretrial ruling. The rule sets
forth the procedure to be followed:
(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. *** (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.
Minn. R. Crim. P. 26.01, subd. 4. The purpose of this proceeding is to avoid the
inefficient 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).
The parties here did not make the acknowledgements required by the rule. The
prosecutor, while noting that “there also needs to be an acknowledgement that the pretrial
issues would be dispositive,” also stated that “I . . . certainly think that some of this
would have that [e]ffect . . . .” Likewise, the district court only asked Parmenter if, “for
instance,” one of his pretrial issues would make a contested trial unnecessary. But the
parties never acknowledged which pretrial issues were dispositive.
4 Parmenter raised seven pretrial issues, not all of which were dispositive of the
case. And the rule makes clear that the parties need to agree that a ruling on a specified
pretrial issue is dispositive. Minn. R. Crim. P. 26.01, subd. 4(a).
One of Parmenter’s pretrial issues was that the statements he made to the police
after he was first stopped should be suppressed because he was not given a Miranda
warning. But this issue was neither dispositive nor would it have made a contested trial
unnecessary: the state had substantial evidence against Parmenter without these
statements.
Furthermore, several of Parmenter’s other pretrial issues may not have been
dispositive. Parmenter also challenged that he should have been given a blood test, that
he was not permitted to speak with an attorney before he was tested, and that the
Intoxilyzer source code was defective. These issues may have been dispositive of the
case if Parmenter were solely charged with driving with an alcohol concentration above
.08. But Parmenter was also charged with driving under the influence of alcohol. Even if
he successfully challenged these issues, a trial still could have occurred based on this
second charge.
In State v. Burdick, 795 N.W.2d 873 (Minn. App. 2011), we considered a
challenge to a proceeding somewhat similar to this case. The proceeding in Burdick had
two key deficiencies: the parties failed to make the required acknowledgment that the
pretrial issue was dispositive, and the pretrial issue itself was not dispositive of the case.
Id. at 876. Because of these failures, we held that the agreement to have a trial under rule
26.01, subdivision 4, was invalid and reversed and remanded the case. Id. at 877.
5 The proceeding here suffers from these same flaws. Although in Burdick no one
acknowledged that the issue was dispositive, id. at 875, here the parties only
acknowledged that some of the issues may be dispositive.
And, as in Burdick, not all of the issues here are dispositive of the case or make a
contested trial unnecessary. Although the pretrial issue in Burdick was the denial of a
contested omnibus hearing, this court pointed to a potentially similar outcome: “If later
Burdick were to successfully challenge the blood-analysis evidence, a contested trial may
be necessary to contest her guilt on the [driving under the influnce] offense.” Id. at 877.
A similar result could occur here. Thus, the procedure used in this case does not further
the purpose of rule 26.01, subdivision 4: conserving judicial resources by avoiding an
unnecessary jury trial.
Because the parties failed to adhere to the rule’s required acknowledgements and
because several of the pretrial issues Parmenter raised were not dispositive, the
stipulation to a trial under rule 26.01, subdivision 4, was invalid. We therefore reverse
and remand for withdrawal of the stipulation and for trial or for further proceedings as
determined by the district court.
Based on our decision that the trial was invalid, we do not reach the issue of
whether Parmenter validly waived his right to counsel. Given the length of time that has
passed, on remand Parmenter may again choose whether to invoke his right to counsel or
to waive that right. We also decline to address the issues raised by Parmenter in his pro
se brief. See State v. Rasmussen, 749 N.W.2d 423, 428 (Minn. App. 2008) (holding that
6 an appellate court will not review pretrial issues if the appellant successfully argues that a
trial under rule 26.01, subdivision 4, is invalid).
Reversed and remanded.