                          This opinion will be unpublished and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
                                     A14-2180

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                Richard Lee Cunningham,
                                       Appellant.

                              Filed November 9, 2015
                  Affirmed in part, reversed in part, and remanded
                                   Stauber, Judge

                             Kanabec County District Court
                                 File No. 33CR14243

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

Barbara McFadden, Kanabec County Attorney, Braden Sczepanski, Assistant County
Attorney, Mora, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant State Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Smith, Presiding Judge; Peterson, Judge; and

Stauber, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

       Appellant seeks a new trial or a new sentence, arguing that his attorney

ineffectively represented him by conceding his guilt without consent and that the district
court improperly sentenced him on multiple offenses that arose from a single behavioral

incident. We affirm on the ineffective-assistance-of-counsel claim but reverse and

remand for resentencing because appellant’s DWI and open-bottle convictions arose from

the same behavioral incident.

                                         FACTS

       On the evening of June 17, 2014, Kanabec County Deputy Sheriff Cole Bangerter

stopped the vehicle of appellant Richard Lee Cunningham for having a headlight out.

Cunningham did not have personal identification or proof of insurance, and after

checking with police dispatch, Bangerter learned that Cunnningham’s license was also

canceled as inimical to public safety.

       In the back seat of Cunningham’s vehicle, Bangerter observed one of two beer

cans with condensation on it, and another beer can on the floor of the front passenger

seat. Bangerter further noticed that Cunningham had bloodshot and watery eyes, slightly

slurred speech, and an odor of alcohol. Cunningham admitted that he had consumed

three beers earlier in the evening. After being arrested and read the implied-consent

advisory, Cunningham agreed to a breath test that revealed a 0.09 blood-alcohol

concentration.

       Cunningham was charged with five separate offenses: gross-misdemeanor driving

after cancellation as inimical to public safety, misdemeanor fourth-degree DWI (under

the influence), misdemeanor fourth-degree DWI (alcohol concentration of 0.08 or more),

misdemeanor failure to carry proof of insurance, and a misdemeanor open-bottle




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violation. Cunningham stipulated before trial that his driver’s license was canceled as

inimical to public safety.

       During his opening statement at trial, Cunningham’s attorney said, “I will be

asking that with respect to the matters for which we have not stipulated–in other words,

the driving after cancellation charge, we’ve agreed that he violated [the] statute. Other

than those particular charges, I’ll be asking for verdicts of not guilty.”

       Cunningham testified that he had consumed alcohol only shortly before he was

stopped, that he was not physically impaired from the alcohol, and that, had he been

given a blood test rather than a breath test, he would have been able to prove that he was

not under the influence at the time of his arrest. Cunningham admitted that he drank

“three beers within a half hour” of the stop. He also admitted that he “actually had had

an open beer in the–in the car with me, up front,” and that he drank that beer while in the

vehicle.

       During closing argument, Cunningham’s attorney stated:

                      I’m going to deal with the easy ones first. I told you
              initially that, yes, he’s guilty of the gross misdemeanor
              driving after cancellation inimical to public safety. The long
              caption, we stipulated to that. We told the Court that’s really
              not an issue here. But we’ll just agree that he should be
              found guilty. The open bottle’s never really been an issue
              either. You know, he testified to having the open container
              with him. He had taken a sip or drunk some of it. He was in
              the private motor vehicle at the time. We don’t have a
              problem with you finding him guilty of that. Those two are
              the easy ones.

The attorney then went on to challenge the factual bases for the two DWI offenses and

the failure-to-carry-proof-of-insurance offense and concluded his argument by stating:


                                               3
“So I would ask that you find him guilty on the gross misdemeanor driving after

cancellation charge and the open bottle and not guilty on all the other counts.”

       The jury returned guilty verdicts on all five counts.

       The district court sentenced Cunningham to serve 365 days in jail on the driving-

after-cancellation conviction. He was also sentenced to 90 days each on the DWI (0.08

or more) offense, the failure-to-carry-insurance offense, and the open-bottle offense, but

was given 90 days of credit for time served on each of those convictions. The district

court did not sentence Cunningham on the second DWI offense because it arose from the

same behavioral incident as the first DWI conviction.

       This appeal followed.

                                      DECISION

I.     Concession of appellant’s guilt

       Appellant argues that he was denied effective assistance of counsel because his

attorney conceded his guilt on the driving-after-cancellation offense, which is the most

serious offense with which appellant was charged. “[W]hether or not to admit guilt at a

trial is a decision that . . . can only be made by the defendant.” State v. Moore, 458

N.W.2d 90, 96 (Minn. 1990) (quotation omitted); see Jones v. Barnes, 463 U.S. 745, 751,

103 S.Ct. 3308, 3312 (1983) (stating “that the accused has the ultimate authority to make

certain fundamental decisions regarding the case, as to whether to plead guilty”); Minn.

R. Crim. P. 26.01, subd. 1(2)(a) (stating that a defendant’s right to a jury trial on the issue

of guilt must be waived “personally, in writing or on the record in open court”). When

counsel admits or concedes a defendant’s guilt without a defendant’s consent, the


                                               4
attorney’s performance is deficient and prejudice to the defendant is presumed. State v.

Jorgensen, 660 N.W.2d 127, 132 (Minn. 2003); Dukes v. State, 621 N.W.2d 246, 254

(Minn. 2001). Under these circumstances, the defendant is entitled to a new trial unless

the record demonstrates that the defendant acquiesced to the concession. Dukes, 621

N.W.2d at 254.

       A defendant’s acquiescence may be demonstrated in two ways. In the first,

“defense counsel uses the strategy of conceding the defendant’s guilt throughout trial and

the defendant fails to object.” Jorgensen, 660 N.W.2d at 132. In the second, the

concession of guilt is “an understandable strategy, and the defendant was present at the

time the concessions were made and admits that he understood that his guilt was being

conceded, but did not object.” Id. at 133 (quotation omitted). Here, it was not an

“understandable” or reasonable trial strategy for defense counsel to concede appellant’s

guilt on the most serious offense with which he was charged. Cf. State v. Prtine, 799

N.W.2d 594, 599 (Minn. 2011) (“[I]t is an understandable trial strategy to concede an

intent to kill in order to try to build credibility with the jury in the hope of avoiding

conviction on the first-degree premeditated murder charge”).

       But the record demonstrates that appellant acquiesced to his attorney’s

concessions of guilt. Defense counsel made clear statements conceding appellant’s guilt

at the beginning of both his opening statement and closing argument. See State v.

Provost, 490 N.W.2d 93, 97 (Minn. 1992) (deeming that the defendant acquiesced to a

trial strategy of conceding guilt when “[f]rom his opening statement through his closing

argument, defense counsel consistently took the position that defendant had caused the


                                               5
victim’s death,” and the defendant did not object to the strategy). Appellant ratified the

concession of guilt as to the gross-misdemeanor offense by stating at sentencing that he

“didn’t have a problem with admitting to the driving after cancellation” charge. On this

record, appellant acquiesced to his attorney’s concessions of guilt.

II.    Sentencing

       Appellant next argues that the district court erred by sentencing him on the four

offenses of conviction because they arose from a single behavioral incident. Although

appellant did not object to the sentences imposed, an offender “does not waive relief from

multiple sentences or convictions arising from the same behavioral incident by failing to

raise the issues at the time of sentencing.” State v. Clark, 486 N.W.2d 166, 170 (Minn.

App. 1992).


       “[I]f a person’s conduct constitutes more than one offense under the laws of this

state, the person may be punished for only one of the offenses.” Minn. Stat. § 609.035,

subd. 1 (2014); see State v. Bauer, 776 N.W.2d 462, 477 (Minn. App. 2009), aff’d, 792

N.W.2d 825 (Minn. 2011); see also State v. Johnson, 653 N.W.2d 646, 651 (Minn. App.

2002) (stating that purpose of the sentencing rule is to make punishment commensurate

with the crime). The test used to determine whether a conviction for one violation of a

traffic statute arose from the same incident and thus bars prosecution for a separate

violation is whether “they occur[red] at substantially the same time and place and ar[o]se

out of a continuous and uninterrupted course of conduct, manifesting an indivisible state

of mind or coincident errors of judgment.” State v. Reimer, 625 N.W.2d 175, 176-77



                                             6
(Minn. App. 2001) (quotation omitted). The state bears the burden to prove that the

offenses were not part of a single behavioral incident. Id. at 177. “When the facts are not

in dispute, the question of whether multiple offenses are part of a single behavioral

incident is one of law that we review de novo.” State v. Fichtner, 867 N.W.2d 242, 253

Minn. 2015), pet. for review filed (Minn. Aug. 12, 2015).

       In Reimer, this court ruled that the district court did not err by sentencing the

defendant on both a DWI offense and driving-with-an-expired-license offense because

the driving-with-an expired-license offense was an ongoing offense while the DWI

offense was limited in time and place, and because the two offenses did not evidence an

indivisible state of mind or coincidental errors of judgment. 625 N.W.2d at 177. Other

Minnesota caselaw has been decided in a similar fashion. Id. (stating that “Minnesota

courts have reached similar results in a variety of factual situations involving one or more

motor vehicle violations”); see also, State v. Butcher, 563 N.W.2d 776, 784 (Minn. App.

1997) (ruling that imposing separate sentences for convictions of driving after

cancellation, taking big game out of season, and transporting an uncased firearm did not

violate section 609.035), review denied (Minn. Aug. 5, 1997); State v. Meland, 616

N.W.2d 757, 759-60 (Minn. App. 2000) (ruling that imposing separate sentences for

convictions of driving with expired tabs offense and DWI did not violate section

609.035); State v. Bishop, 545 N.W.2d 689, 691-92 (Minn. App. 1996) (ruling that

sentencing for convictions of driving after cancellation and DWI did not violate section

609.035).




                                              7
       The state concedes that the DWI offense and the open-bottle offense arose out of

the same behavioral incident and that appellant should not have been sentenced on the

open-bottle conviction after being sentenced on the DWI conviction. See City of

Moorhead v. Miller, 295 N.W.2d 548, 550 (Minn. 1980) (ruling that open-bottle

conviction and DWI conviction “must be deemed to have arisen from the same

behavioral incident”). We agree. But under Reimer, this reasoning does not apply to the

other misdemeanor offenses. The driving-after-cancellation and failure-to-carry-

insurance convictions were for ongoing offenses that involved separate and distinct errors

in judgment, and the DWI conviction was limited in time and place. Therefore, those

three convictions were not part of the same behavioral incident and could be sentenced

separately. We therefore affirm those sentences, but we reverse and remand for the

district court to vacate the sentence on the open-bottle conviction. See Fichtner, 867

N.W.2d at 254.

       Affirmed in part, reversed in part, and remanded.




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