                          This opinion will be unpublished and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
                                      A15-0201

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  Michael Patrick Morin,
                                       Appellant.

                                  Filed January 4, 2016
                                 Reversed and remanded
                                      Hooten, Judge

                            Koochiching County District Court
                                File No. 36-CR-13-779

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

Jeffrey S. Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         On appeal from his conviction of a second-degree controlled substance crime,

appellant argues that: (1) because the parties intended to allow appellant to submit this case
for review of the district court’s pretrial suppression ruling, this court should address the

merits of the suppression issue despite the parties’ failure to follow the correct procedure

under Minn. R. Crim. P. 26.01, subd. 4; (2) the district court committed reversible error

when it excluded appellant and his counsel from an in camera proceeding and made

determinations about the reliability of an unknown confidential reliable informant (CRI)

whose statements established probable cause to issue the search warrant of appellant’s

home and person; and (3) in the alternative, this court should reduce appellant’s conviction

from a second-degree controlled substance crime to a third-degree controlled substance

crime. Because we conclude that the pretrial suppression issue was not preserved for

appellate review, we do not reach the merits of that issue. But, because the factual basis

for appellant’s guilty plea supports only a conviction of a third-degree controlled substance

crime, we reverse, reduce the conviction, and remand for resentencing.

                                           FACTS

       On December 1, 2013, Koochiching County Sheriff’s Deputy Curtis Turban

prepared a search warrant application to search the home and person of appellant Michael

Patrick Morin. In the affidavit in support of the application, Deputy Turban averred that

he had received information from a CRI that Morin was using and distributing

methamphetamine out of his home. Deputy Turban stated that the CRI had been present

in Morin’s home within the past 72 hours and, while within the home, had observed Morin

to be “in possession of an undetermined amount of methamphetamine.” Deputy Turban

stated the following concerning the CRI:




                                             2
              Affiant has received information from CRI in regards to this
              case as well as others. Affiant has determined that information
              provided by the CRI to be true and correct through independent
              corroboration. Furthermore, CRI, with supervision of the
              affiant, has conducted controlled buys of controlled substances
              furthering her/his reliability.

Deputy Turban noted that Morin was previously convicted of a felony-level controlled

substance crime involving “the use/sale of methamphetamine.” Deputy Turban also

indicated he knew that “Morin commonly distributes unknown amounts of

methamphetamine to [third] parties in his controlled substance sales activities.”

       The warrant was issued and executed on December 1, 2013. According to the

complaint, officers seized a total of 5.25 grams of methamphetamine from Morin’s person

and residence when they executed the warrant. On December 2, Morin was charged with

a second-degree controlled substance crime.

       On January 3, 2014, Morin filed a motion to suppress any evidence seized during

the December 1 search and to dismiss the charge for lack of probable cause, and he also

requested an order disclosing the identity of the CRI. On March 21, the district court

ordered an in camera inspection of the CRI. On April 24, the prosecutor sent the district

court and defense counsel a letter memorializing an April 11 conversation wherein the

prosecutor “verbally disclosed the identity of the CRI” to the district court. On June 5, the

district court issued an order denying Morin’s motion to suppress. The district court

determined that “[t]he veracity and basis of knowledge of the CRI have been established”

and therefore concluded that “the warrant issued based upon the CRI’s tip was supported

by probable cause.”



                                              3
       The parties eventually reached a plea agreement to resolve this case and other

pending criminal cases, and a plea hearing was held on September 29, 2014. At the

beginning of the hearing, defense counsel explained the agreement: Morin would plead

guilty to the sole count in the complaint, the state would dismiss Morin’s other pending

cases, and Morin would be sentenced to 75 months in prison. Defense counsel did not

indicate that Morin wanted to preserve his right to challenge the pretrial suppression issue

on appeal. The prosecutor confirmed that “that” was the agreement and asked the district

court to accept it.

       The district court asked Morin if he understood “the agreement,” and Morin replied,

“Yes.” The district court then asked Morin how he wanted to plead to a second-degree

controlled substance crime. Morin replied, “Guilty with reserving the right to challenge

the search warrant.” The district court stated, “All right.” Morin and defense counsel

immediately had an off-the-record discussion, and then the following exchange took place:

               DEFENSE COUNSEL: Judge, in talking to Mr. Morin I think
               to be clear he wants to enter a plea of guilty and if he wants to
               kick any issues off on appeal, if he feels the need to do that, he
               certainly can.
               DISTRICT COURT: Is that your understanding, Mr. Morin?
               You want to make sure that you’ve got the right to appeal any
               decision of the [c]ourt?
               DEFENDANT: Yes.
               DISTRICT COURT: Including the decision of sentencing if
               the [c]ourt reaches that point?
               DEFENDANT: Yes.
               DISTRICT COURT: All right. Very good.

Morin waived his rights and provided a factual basis for the guilty plea. At one point the

district court asked Morin, “Are you pleading guilty to get the case over with or are you



                                               4
pleading guilty for another reason?” Morin responded, “No. I’m pleading guilty because

I’m guilty . . . .” The district court deferred acceptance of the plea until sentencing.

       A sentencing hearing was held on November 4, 2014. Defense counsel again recited

the terms of the plea agreement, and Morin again provided a factual basis for the plea.

Neither defense counsel nor Morin indicated that Morin wanted to preserve his right to

challenge the pretrial suppression issue on appeal. The district court accepted the plea and

sentenced Morin to 75 months in prison, in accordance with the plea agreement. This

appeal followed.

                                      DECISION

                                              I.

       Morin now argues that because the parties intended that he would be able to

challenge the pretrial suppression issue on appeal, this court should treat his guilty plea as

a not-guilty plea and a stipulation to the prosecution’s case under Minn. R. Crim. P. 26.01,

subd. 4. The state counters that it never consented to allow Morin to appeal the pretrial

suppression issue and that Morin “in no way entered his plea in accordance with” rule

26.01, subdivision 4.

       “The interpretation of the rules of criminal procedure is a question of law subject to

de novo review.” Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). Under the rules of

criminal procedure, a defendant may stipulate to the prosecution’s case in order to obtain

review of a pretrial ruling. Minn. R. Crim. P. 26.01, subd. 4. The rule provides:

                     (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


                                              5
              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.
                      (d) The defendant, after an opportunity to consult with
              counsel, must waive the right to a jury trial under subdivision
              1(2)(a), and must also waive the rights specified in subdivision
              3(a).
                      (e) The defendant must stipulate to the prosecution’s
              evidence in a trial to the court, and 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.
                      (h) After consideration of the stipulated evidence, the
              court must make an appropriate finding, and if that finding is
              guilty, the court must also make findings of fact on the record
              or in writing as to each element of the offense(s).

Id. (emphasis added).

       This procedure clearly was not followed in this case. First, Morin did not “maintain

the plea of not guilty,” but specifically pleaded guilty. Second, neither Morin nor the

prosecutor acknowledged that the pretrial issue was dispositive. Third, Morin did not

stipulate to the prosecution’s evidence in a court trial, and he did not acknowledge that the

district court would consider the prosecution’s evidence and could enter a finding of guilt

based on that evidence. Fourth, Morin did not acknowledge that appellate review would

be only of the pretrial issue and that there would be no review of his guilt “or of other issues

that could arise at a contested trial.” Fifth, there was no court trial, and thus the district



                                               6
court did not make findings of fact as to each element of the offense in writing or on the

record.

         Morin argues that “the parties’ clear intent was to allow Morin to submit this case

for appellate review of the pre-trial suppression ruling,” but this argument mischaracterizes

the record. The only indication that this case would be submitted for appellate review of

the pretrial suppression issue was when Morin stated at the plea hearing that he was

pleading “[g]uilty with reserving the right to challenge the search warrant.” After an off-

the-record discussion with Morin, defense counsel stated: “[T]o be clear he wants to enter

a plea of guilty and if he wants to kick any issues off on appeal, if he feels the need to do

that, he certainly can.” (Emphasis added.) This is hardly a “clear” indication that Morin

intended to challenge the pretrial suppression issue. The district court followed by asking

Morin whether he “want[ed] to make sure that [he had] the right to appeal any decision of

the [c]ourt.” Again, there is no mention of specifically appealing the pretrial suppression

issue.

         The prosecutor gave no acknowledgement whatsoever of Morin’s intention to

challenge the suppression issue. Morin claims that, by not voicing an objection, “the state

stood by in silent tacit consent.” This flies in the face of the rule, however, which requires

the prosecutor to “acknowledge . . . in writing or on the record” that the pretrial ruling is

dispositive. Minn. R. Crim. P. 26.01, subd. 4(c), (g). Moreover, there was no mention of

rule 26.01, subdivision 4, or its precursor, State v. Lothenbach, 296 N.W.2d 854 (Minn.




                                              7
1980),1 at either the plea hearing or the sentencing hearing. At the sentencing hearing,

defense counsel summarized the terms of the plea agreement but again did not mention any

term of the agreement allowing Morin to challenge the pretrial suppression issue, and

Morin did not repeat the statement he made at the plea hearing about pleading guilty while

“reserving the right to challenge the search warrant.”

       The parties did not follow the procedure outlined in Minn. R. Crim. P. 26.01, subd.

4, and there is no indication that the parties intended to follow that procedure but simply

failed to properly execute it. On this record, we decline to treat Morin’s guilty plea as a

not-guilty plea and a stipulation to the prosecution’s case, and therefore we do not reach

the merits of the pretrial suppression issue. See State v. Burdick, 795 N.W.2d 873, 877

(Minn. App. 2011) (holding that because parties failed to follow procedure outlined in rule

26.01, subdivision 4, “the pretrial issue reserved for appellate review . . . is not properly

before this court”); see also Lothenbach, 296 N.W.2d at 857 (“The traditional viewpoint

in Minnesota, as well as elsewhere, has been that a guilty plea by a counseled defendant

operates as a waiver of all nonjurisdictional defects, including Fourth Amendment

claims.”).2




1
  See State v. Diede, 795 N.W.2d 836, 842 n.2 (Minn. 2011) (noting that Lothenbach was
“superseded” by Minn. R. Crim. P. 26.01, subd. 4).
2
  At oral argument, Morin’s appellate counsel clarified that Morin is not asking for plea
withdrawal as an alternative form of relief.

                                             8
                                            II.

       In the alternative, Morin argues that this court should reduce his second-degree

controlled substance conviction because the factual basis established at the plea hearing

shows “that Morin was actually guilty of only a third-degree controlled substance crime,”

citing Minn. R. Crim. P. 28.02, subd. 12(c) (permitting this court to reduce the conviction

to an offense of lesser degree, “as the case may require”).

       Morin was charged with a second-degree controlled substance crime for the

unlawful sale of three or more grams of methamphetamine. Minn. Stat. § 152.022, subd.

1(1) (2012). The threshold amount for second-degree possession, however, is higher than

the threshold amount for second-degree sale. Under Minn. Stat. § 152.022, subd. 2(1)

(2012), a person is guilty of second-degree controlled substance crime if the person

unlawfully possesses six or more grams of methamphetamine. Thus, in order for Morin to

be guilty of a second-degree controlled substance crime, he needed to admit to selling three

or more grams of methamphetamine or possessing six or more grams of methamphetamine.

       Morin admitted only to possessing less than five grams of methamphetamine. At

the plea hearing, he agreed that police seized “just a hair under five grams” of

methamphetamine and that he constructively possessed it. At the sentencing hearing,

Morin admitted that police seized “just over three grams of methamphetamine,” that the

drugs were his, and that he possessed them. The district court then adjudicated Morin

guilty of “possession of a controlled substance in the [second] degree.”

       A person who possesses three or more grams of methamphetamine is guilty of a

third-degree controlled substance crime, not a second-degree controlled substance crime.


                                             9
Minn. Stat. § 152.023, subd. (2)(1) (2012).       Morin is correct that the factual basis

underlying his plea supports only a conviction of a third-degree controlled substance crime.

If Morin had admitted to selling three or more grams of methamphetamine, he would be

guilty of a second-degree controlled substance crime. Minn. Stat. § 152.022, subd. 1(1).

But, Morin was never asked at the plea hearing or the sentencing hearing if he had sold

methamphetamine or had possessed methamphetamine with the intent to sell it. Because

Morin admitted only to possessing methamphetamine, not selling it, the district court did

not find, and could not have found, that Morin had sold methamphetamine based upon the

factual basis given for his guilty plea.

       On appeal, this court may “reduce the conviction to a lesser included offense or to

an offense of lesser degree, as the case may require. If [this] court reduces the conviction,

it must remand for resentencing.” Minn. R. Crim. P. 28.02, subd. 12(c). Because the

factual basis underlying Morin’s guilty plea does not support a conviction of a second-

degree controlled substance crime, we reverse, reduce the conviction to a third-degree

controlled substance crime, and remand for resentencing.

       Reversed and remanded.




                                             10
