                          This opinion will be unpublished and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
                                     A15-0653

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Letrell Pierre Brewer,
                                         Appellant.

                                  Filed March 21, 2016
                                        Affirmed
                                      Larkin, Judge

                              Olmsted County District Court
                                File No. 55-CR-14-1357


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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Hooten,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of violating a domestic abuse no contact order

(DANCO), arguing that the underlying DANCO was invalid because it was not issued in a

proceeding that was separate from the proceeding in which pretrial-release issues were

decided. We affirm.

                                          FACTS

       Appellant Letrell Pierre Brewer appeared in Olmsted County District Court on

charges of making terroristic threats and domestic assault. After hearing bail arguments

from the parties, the district court set bail, established conditions of release, and issued a

DANCO as follows:

              THE COURT: On the felony file, the amount requested is
              reasonable in the light of the matters, public safety, and the
              severity level of the offense. $50,000 unconditional; $25,000
              conditional. Here’s your conditions: No contact, none
              whatsoever; don’t text her, don’t tweet her, don’t Facebook
              her, don’t send messages, don’t send flowers, don’t send
              anything.
              THE DEFENDANT: No problem.
              THE COURT: Do not send messages through your children.
              How old are your children?
              THE DEFENDANT: Six and four.
              THE COURT: Yeah. Don’t use them as a conduit.
              THE DEFENDANT: No problem.
              THE COURT: Don’t send messages through your children.
              And a DANCO is going to issue. So it doesn’t matter how you
              bond out. If you do end up bonding or even if you have a
              motion where it changes this, the DANCO remains in place,
              which is a separate court order that says no contact, okay?
              THE DEFENDANT: And how long is that?
              THE COURT: That will be in place until you can convince a
              judge it would be a good idea to get rid of it.


                                              2
              THE DEFENDANT: Okay.
              THE COURT: Okay. And that will be—and it is no contact
              with S.E.S. It does not name the children.
              THE DEFENDANT: Okay.
              THE COURT: Okay. So . . . as [to] other conditions of release
              ....

       Later, respondent State of Minnesota charged Brewer with violating the DANCO,

alleging that he was living with S.E.S. in a Rochester hotel. Brewer moved to dismiss the

charge on the ground that he “was not afforded adequate notice and opportunity for a

hearing regarding the issuance of the [DANCO] . . . pursuant to Minnesota Statute section

629.75.” Brewer argued, among other things, that “the issuance of the DANCO occurred

as a part of the Rule 5 hearing, rather than at a separate hearing that would afford [him]

adequate notice and opportunity to respond to the state’s request, thus giving rise to the

risk that [he] would confuse the issuance of the DANCO with the condition of release that

he not contact the victim.”

       The district court found that the DANCO was not issued in a separate hearing but

nonetheless concluded that the hearing at which the DANCO was issued was adequate, and

that the issuing judge “plainly understood and explained that [the issuance of the DANCO]

was a separate matter.” The district court stated that the issuing judge merely failed to say

the “magic words” announcing that the conditional-release hearing was over and a separate

DANCO hearing was immediately commencing. The district court reasoned that it would

elevate form over substance to invalidate the DANCO under those circumstances and

therefore denied Brewer’s motion.




                                             3
       Brewer stipulated to the state’s case under Minnesota Rule of Criminal Procedure

26.01, subdivision 4, to obtain appellate review of the district court’s order denying his

motion to dismiss. The district court found Brewer guilty and sentenced him to serve 26

months in prison.1 Brewer appeals.

                                      DECISION

       Brewer argues that this court “must reverse [his] conviction because the no contact

order was not issued in accord with Minnesota’s DANCO statute.” Minnesota’s DANCO

statute provides that “[a] no contact order under this section shall be issued in a proceeding

that is separate from but held immediately following a proceeding in which any pretrial

release or sentencing issues are decided.” Minn. Stat. § 629.75, subd. 1(c) (2012). Because

the DANCO in this case was not issued in a separate proceeding, Brewer argues that the

DANCO is invalid.2 Brewer further argues that because he did not violate a valid DANCO,

his conviction must be vacated.

       Brewer’s argument raises an issue of statutory interpretation. “The objective of

statutory interpretation is to ascertain and effectuate the Legislature’s intent. If the

Legislature’s intent is clear from the statute’s plain and unambiguous language, then [a

court] interpret[s] the statute according to its plain meaning without resorting to the canons

of statutory construction.” State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013) (citation

omitted). An appellate court reviews statutory-interpretation issues de novo. Id.


1
  The sentence was concurrent to 23- and 33-month executed prison terms that the district
court imposed for other convictions.
2
  Because the state does not argue that the DANCO was issued in a “separate proceeding,”
there is no occasion to address the meaning of that term.

                                              4
      Minnesota’s DANCO statute unambiguously states that a DANCO shall be issued

in a proceeding separate from the proceeding in which pretrial-release issues are decided.

But the statute does not state that a DANCO is invalid if it was not issued in a separate

proceeding. See Minn. Stat. § 629.75 (2012 & Supp. 2013). Nor does the statute provide

a remedy for violation of the separate-proceeding requirement. See id. This court cannot

add a remedy to the statute. See Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184

N.W.2d 588, 594 (1971) (stating the “well-established” rule “that courts cannot supply that

which the legislature purposely omits or inadvertently overlooks”).

      Brewer relies on the plain language of the statute, focusing on the word “shall.” He

argues that the word “shall” mandates a separate proceeding and reasons that because “the

order did not comply with the DANCO statute . . . the order issued was not a valid

DANCO” and his conviction must be reversed. But a statutory requirement is “essentially

directory and not mandatory” when the statute “provides no consequences for a court’s

failure” to comply with the requirement. State v. Andow, 372 N.W.2d 747, 749 (Minn.

App. 1985) (concluding that dismissal of criminal charges for depriving another of

custodial rights was not mandated based on noncompliance with a statute that provided,

“Every court order and judgment and decree concerning custody of or visitation with a

minor child shall restate the provisions of section 609.26”), rev’d on other grounds, 386

N.W.2d 230 (Minn. 1986).

      Nonetheless, there is a potential remedy for violation of the separate-proceeding

requirement. The Minnesota Supreme Court has suggested that procedural-due-process

requirements may provide a basis for relief on a case-by-case basis. In State v. Ness, the


                                            5
supreme court rejected a claim that the DANCO statute fails to provide adequate notice

and opportunity to be heard in all of its applications and is therefore facially invalid under

the Due Process Clauses of the United States and Minnesota Constitutions. 834 N.W.2d

177, 182-83 (Minn. 2013). The supreme court reasoned that the “‘immediately following’

requirement ensures that a defendant receives the notice and opportunity to be heard

afforded by a pretrial-release hearing before a court imposes a domestic abuse no contact

order.” Id. at 183. However, the supreme court recognized the possibility of an as-applied

challenge to the DANCO statute, stating, “The issue of whether a particular defendant

received sufficient notice is more appropriately resolved in an as-applied challenge in

which we can assess the contours of due process against a fully-developed record.” Id. at

183 n.4.

       Brewer did not raise an as-applied procedural-due-process challenge in his principal

brief. Although Brewer’s reply brief suggests such a challenge, he expressly disavowed a

request for relief on due-process grounds at oral argument, insisting that he is not asserting

a due-process violation. Because Brewer does not request constitutional relief based on

procedural-due-process requirements and because the DANCO statute does not provide a

remedy for violation of its separate-proceeding requirement, there is no basis for this court

to grant relief.

       Affirmed.




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