                        This opinion will be unpublished and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
                                   A15-0268

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Marlow Shelton McDonald,
                                    Appellant.

                              Filed February 16, 2016
                                     Affirmed
                                  Schellhas, Judge

                           Blue Earth County District Court
                               File No. 07-CR-14-1678

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Pat McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Roy Spurbeck,
Assistant Public Defenders, St. Paul, Minnesota (for appellant)

      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his controlled-substance, firearms-related, and fleeing-a-

peace-officer-in-a-motor-vehicle convictions and his aggravated durational departure

sentence. Appellant also asserts various pro se claims. We affirm.

                                           FACTS

       In five separate controlled purchases in April 2014, appellant Marlow Shelton

McDonald sold a total of about 12 grams of methamphetamine to a confidential informant.

On May 7, police officers initiated a traffic stop of a car driven by McDonald for the

purpose of arresting him for controlled-substance crime. Attempting to evade the stop,

McDonald rammed the car into an unmarked, occupied law-enforcement truck; accelerated

toward a uniformed, on-foot officer, who fired his sidearm at the car; and led a chase until

officers disabled the car and arrested McDonald. In a warranted search of the car, officers

seized items including a loaded semi-automatic handgun and about six grams of

methamphetamine.

       On May 9, 2014, respondent State of Minnesota charged McDonald with first-

degree controlled-substance crime (sale of at least ten grams of methamphetamine within

90-day period), second-degree controlled-substance crime (possession of at least six grams

of methamphetamine), two counts of first-degree assault (deadly force against peace

officer), possession of a firearm by a prohibited person (crime of violence), and qualifying

person in possession of a firearm (crime of violence). The state filed notice of intent to seek

an upward departure sentence on bases that included McDonald’s status as a career


                                              2
offender. At a May 9 bail hearing, McDonald demanded a speedy trial. At a June 6 hearing,

McDonald again demanded a speedy trial, and the district court set trial for August 6.

       On June 12, 2014, McDonald moved the district court regarding various matters,

including the pace of discovery disclosures, upward departure sentencing, and sentencing

manipulation. The state argued that McDonald’s motion constituted good cause to continue

the trial date. The court agreed and continued the trial to September 10. McDonald

reasserted his speedy-trial demand at a July 30 hearing. The court subsequently denied in

part and reserved in part the relief requested by McDonald in his June 12 motion.

McDonald then moved, among other things, to exclude evidence of his prior convictions

for impeachment purposes. The court conducted a hearing, denied McDonald’s motion,

and granted the state’s motion to amend the complaint to add charges of third-degree

controlled-substance crime (possession of at least three grams of methamphetamine) and

fleeing a peace officer in a motor vehicle.

       On September 10, 2014, the district court commenced McDonald’s jury trial and, at

the conclusion of the trial on September 15, instructed the jury on the lesser-included

offenses of second-degree controlled-substance crime (sale of at least three grams of

methamphetamine within 90-day period) and second-degree assault (dangerous weapon).

The jury found McDonald guilty of first-degree controlled-substance crime, second-degree

controlled-substance crime (sale), third-degree controlled-substance crime, possession of

a firearm by a prohibited person, qualifying person in possession of a firearm, and fleeing

a peace officer in a motor vehicle. The jury acquitted McDonald of first- and second-degree

assault. After a separate sentencing proceeding, the jury found that McDonald had five or


                                              3
more prior felony convictions and that his present crimes were committed as part of a

pattern of criminal conduct.

       McDonald moved the district court regarding his claim of sentencing manipulation.

After a hearing, the court denied the motion and sentenced McDonald to 316 months’

imprisonment for first-degree controlled-substance crime, an aggravated durational

departure; 60 months’ concurrent imprisonment for prohibited person in possession of a

firearm; 57 months’ concurrent imprisonment for third-degree controlled-substance crime;

and consecutive imprisonment for 12 months and 1 day for fleeing a peace officer in a

motor vehicle.

       This appeal follows.

                                     DECISION

Impeachment by prior convictions

       Any witness—including a defendant who wishes to testify in his own defense—may

be impeached by evidence that he was convicted of a felony if (1) no more than ten years

have elapsed since the date of conviction or since the witness was released from

confinement for that conviction, and (2) the district court determines that the probative

value of admitting the evidence of conviction outweighs its prejudicial effect. Minn. R.

Evid. 609(a)(1), (b); State v. Zornes, 831 N.W.2d 609, 626–27 (Minn. 2013). “[Appellate

courts] will not reverse a district court’s ruling on the impeachment of a witness by prior

conviction absent a clear abuse of discretion.” State v. Hill, 801 N.W.2d 646, 651 (Minn.

2011) (quotation omitted). “Five factors guide the exercise of a district court’s discretion




                                             4
under Rule 609(a).” Id. at 653 (citing State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)).

These factors are:

              (1) the impeachment value of the prior crime, (2) the date of
              the conviction and the defendant’s subsequent history, (3) the
              similarity of the past crime with the charged crime (the greater
              the similarity, the greater the reason for not permitting use of
              the prior crime to impeach), (4) the importance of defendant’s
              testimony, and (5) the centrality of the credibility issue.

Jones, 271 N.W.2d at 538.

       A district court errs if it fails to make a record of its consideration of the Jones

factors. See State v. Davis, 735 N.W.2d 674, 680 (Minn. 2007) (“[I]t is error for a district

court to fail to make a record of its consideration of the Jones factors, though the error is

harmless if it is nonetheless clear that it was not an abuse of discretion to admit evidence

of the convictions.”). Even if a district court’s “consideration of the Jones factors” is

“obvious,” the court’s “fail[ure] to make a record of the Jones factor analysis” is error.

State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).

       Here, the district court did not make a record of its analysis of the Jones factors,

even though the prosecutor asked the court to do so. This was error. McDonald concedes

that evidence of three of his prior convictions was admissible under Minn. R. Evid.

609(a)(2), (b), as crimes involving dishonesty or false statement. We therefore apply the

Jones factors to the following five remaining prior convictions to determine whether the

district court abused its discretion in ruling that evidence of McDonald’s prior convictions

was admissible for impeachment purposes: August 2004, January 2005, July 2005, and

March 2012 convictions of fifth-degree controlled-substance crime (possession of



                                             5
controlled substance classified in schedule I, II, III, or IV), and a December 2005

conviction of possession of a firearm by a prohibited person (crime of violence).

       Impeachment value of prior crime

       “[A]ny felony conviction is probative of a witness’s credibility, and the mere fact

that a witness is a convicted felon holds impeachment value.” Hill, 801 N.W.2d at 652.

This factor weighs in favor of admission.

       Date of conviction and defendant’s subsequent history

       While “[the supreme court] ha[s] recognized that a history of lawfulness since a

conviction can limit a conviction’s probative value,” it also has stated that “if a witness is

convicted again or sent back to prison, then the witness’s history of lawlessness enhances

an otherwise stale conviction’s probative value.” Zornes, 831 N.W.2d at 627 (quotations

omitted). Although McDonald’s August 2004 conviction of fifth-degree controlled-

substance crime was nearly ten years old by the date of the charged crimes, the probative

value of that conviction is enhanced by McDonald’s January and July 2005 convictions of

fifth-degree controlled-substance crime and by his December 2005 conviction of

possession of a firearm by a prohibited person. Similarly, McDonald’s March 2012

conviction of fifth-degree controlled-substance crime shows continued lawlessness and

enhances the probative value of the 2004 and 2005 convictions. This factor therefore

weighs in favor of admission.

       Similarity of past crime with charged crime

       Although the state concedes that McDonald’s past controlled-substance crimes and

firearms crime are similar to the charged controlled-substance crimes and firearms crimes,


                                              6
the state correctly notes that prejudice could have been reduced by referring to McDonald’s

similar prior convictions as “unspecified felony convictions.” See Hill, 801 N.W.2d at 652–

53 (“If a court finds that the prejudicial effect of disclosing the nature of a felony conviction

outweighs its probative value, then it may still allow a party to impeach a witness with an

unspecified felony conviction if the use of the unspecified conviction satisfies the

balancing test of Rule 609(a)(1).”). While this factor weighs against admission, we note

that McDonald did not ask the district court to admit the convictions as unspecified felony

convictions.

       Importance of defendant’s testimony and centrality of credibility issue

       “If credibility is a central issue in the case, the fourth and fifth Jones factors weigh

in favor of admission of the prior convictions.” Swanson, 707 N.W.2d at 655. McDonald

states, “No doubt [his] credibility was important in this case.” We generally accept a party’s

concessions. State v. Werner, 725 N.W.2d 767, 770 n.1 (Minn. App. 2007). The fourth and

fifth factors therefore weigh in favor of admission.

       In sum, four of the five Jones factors weigh in favor of admission and only one

weighs lightly against admission. We conclude that the district court did not abuse its

discretion in ruling that evidence of McDonald’s prior convictions was admissible for

impeachment purposes.

Prosecutorial misconduct

       “[Appellate courts] review prosecutorial misconduct to determine whether the

conduct, in light of the whole trial, impaired the defendant’s right to a fair trial.” State v.

Milton, 821 N.W.2d 789, 802 (Minn. 2012) (quotations omitted). “If defense counsel did


                                               7
not object to the alleged prosecutorial misconduct, [appellate courts] review the alleged

misconduct under [a] modified plain error test.” Id. (quotations omitted). “Under [the]

modified plain error test, the defendant has the burden of proving that an error was made

and that the error was plain.” Id. “An error is plain if it is clear or obvious; this means an

error that violates or contradicts case law, a rule, or an applicable standard of conduct.”

State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014), cert. denied, 135 S. Ct. 1185 (2015).

“If the defendant is able to satisfy this burden, the burden shifts to the State to demonstrate

that the error did not affect the defendant’s substantial rights.” Milton, 821 N.W.2d at 802

(quotation omitted).

       During the sentencing proceeding in this case, the prosecutor presented evidence of

seven of McDonald’s prior felony convictions as relevant to his career-offender status and

introduced a certified copy of the warrant of commitment for McDonald’s March 2012

conviction of fifth-degree controlled-substance crime. After the exhibit was admitted into

evidence, the prosecutor explained to the jury:

              Finally the last conviction that I intend to present to you today
              is Exhibit #58. . . . [T]his document is certified [and] it
              indicates what the . . . original charges were; charges you will
              recognize; controlled substance crime in the second and third
              degree . . . and unlawful person in possession of a firearm; a
              fourth degree drugs charge and then another fifth degree drugs
              charge; you will see that [McDonald] was convicted of a
              controlled substance crime in the fifth degree . . . and you will
              also see that this sentence included a commit to the
              Commissioner of Corrections, which means that that prison
              sentence was imposed[.] . . . And that—the State would
              represent felony conviction number seven . . . .




                                              8
McDonald did not object in district court to the prosecutor’s statements, but he now argues

that the prosecutor “focused the jury’s attention to a number of dismissed charges listed on

the exhibit” and suggested that the jury should consider the dismissed charges as evidence

of a pattern of criminal conduct, an element of career-offender status. According to

McDonald, the prosecutor thereby committed plain error by “misstat[ing] the evidence”

and “mislead[ing] the jury regarding the inferences it [was permitted to] draw from the

evidence.”

       We conclude that the prosecutor’s statements accurately described the contents of

an exhibit that already had been received into evidence. The dismissed charges had not

been redacted and were apparent from the face of the exhibit, which was provided to the

jury during its deliberations, along with the other trial exhibits. McDonald fails to explain

how the prosecutor’s brief mention of the “original charges”—immediately followed by

the prosecutor’s verbal identification of the single offense of conviction—in any way

misstated the documentary evidence before the jury or invited the jury to infer McDonald’s

guilt of dismissed charges. McDonald has failed to meet his burden to prove that the

prosecutor committed plain error.

Pattern of criminal conduct

       McDonald argues that evidence of seven of his prior felony convictions, including

four convictions of fifth-degree controlled-substance crime and a conviction of possession

of a firearm by a prohibited person, was insufficient to support the jury’s finding that his

present crimes were committed as part of a pattern of criminal conduct because “the State

did not introduce any evidence either regarding the circumstances of [McDonald’s] prior


                                             9
convictions or supporting its theory that [McDonald] had committed the offenses as a

pattern.”

       Minnesota law provides:

                      Whenever a person is convicted of a felony, and the
              judge is imposing an executed sentence based on a Sentencing
              Guidelines presumptive imprisonment sentence, the judge may
              impose an aggravated durational departure from the
              presumptive sentence up to the statutory maximum sentence if
              the factfinder determines that the offender has five or more
              prior felony convictions and that the present offense is a felony
              that was committed as part of a pattern of criminal conduct.

Minn. Stat. § 609.1095, subd. 4 (2012). “‘[P]attern of criminal conduct’ may be

demonstrated by reference to past felony or gross misdemeanor convictions or by proof,

through clear and convincing evidence, of prior, uncharged acts of criminal conduct, where

such acts are similar to the present offense in motive, purpose, results, participants, victims

or other characteristics.” State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). “[D]etermination

of a pattern of criminal conduct involves a comparison of different criminal acts, weighing

the degree to which those acts are sufficiently similar. This determination goes beyond a

mere determination as to the fact, or number, of the offender’s prior convictions.” State v.

Henderson, 706 N.W.2d 758, 762 (Minn. 2005) (quotation omitted). “In reviewing a

challenge to the sufficiency of the evidence [to support a finding that the present offense

was committed as part of a pattern of criminal conduct], [appellate courts] are limited to

determining whether the evidence was sufficient to support the conclusion reached by the

jury,” after “review[ing] the record in the light most favorable to the jury’s determination.”




                                              10
State v. Outlaw, 748 N.W.2d 349, 357 (Minn. App. 2008), review denied (Minn. July 15,

2008).

         McDonald is correct that the state did not introduce evidence of the factual bases

for his prior crimes. And this court previously has concluded that evidence of prior crimes,

in the absence of evidence of the factual bases for those crimes, “should not have been used

to determine whether [the] appellant engaged in a pattern of criminal conduct as the record

contained no ‘facts’ by which the jury could determine whether the offenses had similar

characteristics.” State v. McClenton, 781 N.W.2d 181, 194 (Minn. App. 2010), review

denied (Minn. June 29, 2010), cert. denied, 131 S. Ct. 530 (2010).

         But McClenton is distinguishable on two grounds. First, the present crimes in

McClenton were first-degree aggravated robbery and fifth-degree controlled-substance

crime, while the prior crimes were possession of a firearm by a prohibited person,

attempted theft from person, and attempted sale of a simulated controlled substance. Id. at

183, 194. In contrast, McDonald’s four prior controlled-substance crimes were facially

identical to one another and facially similar to his present controlled-substance crimes, and

his prior firearms crime was facially identical to one of his present firearms crimes and

facially similar to the other of his present firearms crimes. This facial overlap permitted the

jury to reasonably conclude that McDonald’s present crimes and some of his prior crimes

shared similar characteristics. Cf. Outlaw, 748 N.W.2d at 357 (concluding that “evidence

was sufficient to support the jury’s determination that appellant’s prior convictions

establish a pattern of criminal conduct” where “jury could reasonably have concluded that

appellant’s seven other burglary convictions, and one conviction of attempted burglary,


                                              11
share similar characteristics with [present] first-degree burglary conviction”). Second, the

state specifically pointed to evidence that gaps in McDonald’s criminal history aligned with

periods during which he was incarcerated. The McClenton opinion discusses no such

evidence. 781 N.W.2d at 186 & n.3, 193–95.

       Viewing the evidence in the light most favorable to the jury’s determination, we

conclude that the evidence was sufficient to support the jury’s findings that McDonald’s

present crimes were committed as part of a pattern of criminal conduct.

Aggravated durational departure

       “[Appellate courts] review a district court’s decision to depart from the presumptive

guidelines sentence for an abuse of discretion. If the reasons given are legally permissible

and factually supported in the record, then [a reviewing court] will affirm the departure.”

Vickla v. State, 793 N.W.2d 265, 269 (Minn. 2011) (quotation and citation omitted).

       Minnesota law provides for an aggravated durational departure up to the statutory

maximum sentence “if the factfinder determines that the offender has five or more prior

felony convictions and that the present offense is a felony that was committed as part of a

pattern of criminal conduct.” Minn. Stat. § 609.1095, subd. 4. “The statute does not limit

the court’s discretion and does not require any additional findings before sentencing a

defendant to the statutory maximum.” Vickla, 793 N.W.2d at 269. “Moreover, the

Sentencing Guidelines provide that a defendant’s status as a ‘career offender’ under section

609.1095, subdivision 4, is a sufficient reason to depart from the presumptive sentence.”

Id. (quoting Minn. Sent. Guidelines II.D.2.b.(9) (2010)). A district court therefore acts

within its discretion by granting an aggravated durational departure up to the statutory


                                            12
maximum sentence so long as the departure is based on factually supported jury findings

that the defendant had at least five prior felony convictions and that the present felony was

committed as part of a pattern of criminal conduct.

          In this case, the district court imposed a sentence of 316 months’ imprisonment for

first-degree controlled-substance crime—a double upward durational departure from the

presumptive sentence of 158 months’ imprisonment.1 McDonald does not challenge the

factual support for the jury’s finding that he had at least five prior felony convictions, and

we already have rejected McDonald’s challenge to the factual support for the jury’s finding

that his present crimes were committed as part of a pattern of criminal conduct. McDonald

argues that the court abused its discretion by imposing an aggravated durational departure

sentence, claiming that although the court’s sentencing departure was “based ostensibly”

on McDonald’s career-offender status, the court actually departed based on its belief that

McDonald represents a danger to public safety. And McDonald argues that the court’s

belief that he represents a danger to public safety was “based on facts explicitly rejected

by the jury” when it acquitted McDonald of the assault charges.

          The record belies McDonald’s claim. At the sentencing hearing, the district court

stated:

                [T]he jury found that Mr. McDonald is a career criminal and
                can be treated as such and it’s been clear to me throughout the
                whole situation in my previous contacts with Mr. McDonald
                and in looking at the three pages of—a criminal convictions

1
 McDonald’s sentence does not exceed the statutory maximum sentence. See Minn. Stat.
§ 152.021, subd. 3(b) (2012) (providing for statutory maximum sentence of 480 months’
imprisonment for first-degree controlled-substance crime as subsequent controlled-
substance conviction).

                                              13
              that—that are contained in the Pre-Sentence Investigation that
              Mr. McDonald is somebody—um, to whom probation or
              rehabilitation is ineffective. He has a general—I believe he has
              a general disregard for authority and is certainly not amenable
              to any sort of supervision. I also agree with the Prosecutor
              when they talk about the public safety issues. Not only the
              public safety of selling drugs, but the fleeing of the police
              officer and the gun fire that was—ah, resulted there and the—
              and the loaded weapon found in his car.

                     I believe that—the double departure as recommended
              by the Prosecutor is appropriate and justified by these
              circumstances and by this case and the guilty—the guilty
              verdicts that were rendered by the jury after hearing all the
              facts of this case and so, therefore I am going to go along with
              that.

The court’s comments, together with its departure report, establish that it based its

aggravated durational departure on McDonald’s career-offender status.2 As a result, we

conclude that the court did not abuse its discretion by departing.

Pro se arguments

       Speedy trial

       “Criminal defendants have the right to a speedy trial under the constitutions of both

the United States and Minnesota.” State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015) (citing

U.S. Const. amend. VI; Minn. Const. art. I, § 6). “Claimed Sixth Amendment violations

are subject to de novo review.” Id. In considering a speedy-trial challenge, “[appellate

courts] must consider: (1) the length of the delay; (2) the reason for the delay; (3) whether

the defendant asserted his or her right to a speedy trial; and (4) whether the delay prejudiced


2
 The departure report states that the court imposed an aggravated departure sentence based
on a “[j]ury determination of aggravating factors,” specifically, that McDonald was a
“Career Offender under Minn. Stat. § 609.1095, s. 4.”

                                              14
the defendant.” Id. (quotation omitted). “None of these factors is either a necessary or

sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they

are related factors and must be considered together with such other circumstances as may

be relevant.” Id. (quotation omitted).

       As to the first factor, “[t]he delay in speedy-trial cases is calculated from the point

at which the sixth amendment right attaches: when a formal indictment or information is

issued against a person or when a person is arrested and held to answer a criminal charge.”

State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). “A delay that exceeds 60 days from the

date of [a speedy-trial] demand [made after entry of a plea other than guilty] raises a

presumption that a violation has occurred, and [appellate courts] must apply the remaining

factors of the test.” Taylor, 869 N.W.2d at 19; see Minn. R. Crim. P. 11.09(b) (providing

that 60-day period “begins on the date of the plea other than guilty”). Even so, “the length

of the delay only serves as a starting point for a speedy trial analysis.” State v. Johnson,

498 N.W.2d 10, 15 (Minn. 1993). Here, McDonald’s trial commenced 124 days after the

attachment of his speedy-trial right. This delay exceeded 60 days from the date of

McDonald’s effective speedy-trial demand.3 Therefore, we must presume that a violation

has occurred and apply the remaining factors of the test.

       As to the second factor, “the key question is whether the government or the criminal

defendant is more to blame for the delay.” Taylor, 869 N.W.2d at 19 (quotation omitted).


3
  The record does not indicate the date on which McDonald entered not-guilty pleas. As a
result, the date of McDonald’s effective speedy-trial demand is unclear. Whether
McDonald’s effective speedy-trial demand was made on May 9, 2014, or June 6, 2014,
McDonald’s trial commenced more than 60 days later.

                                              15
“Delays caused by defense motions generally weigh against the defendant.” State v. Hahn,

799 N.W.2d 25, 32 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011); see also

State v. DeRosier, 695 N.W.2d 97, 109 (Minn. 2005) (stating that “[w]hen the overall delay

in bringing a case to trial is the result of the defendant’s actions, there is no speedy trial

violation” and determining that “delay in bringing the matter to trial was occasioned by

defense motions for a change of venue, continuances, and a Rule 20 evaluation”); Johnson,

498 N.W.2d at 16 (attributing bulk of trial delay to defendant whose “own motions were

the primary reason for much of the delay”). Even as to delay that weighs against the state,

“different weights should be assigned to different reasons.” Taylor, 869 N.W.2d at 20

(quotation omitted). “For instance, a deliberate delay to hamper the defense weighs heavily

against the prosecution, while neutral reasons such as negligence or overcrowded courts

weigh less heavily.” Id. (quotations omitted). The state’s processing of physical evidence

is “usually a valid reason for delay.” See State v. Traylor, 641 N.W.2d 335, 343 (Minn.

App. 2002) (approving delay to process DNA evidence), rev’d in part on other grounds,

656 N.W.2d 885 (Minn. 2003).

       In this case, the delay was triggered by McDonald’s June 12, 2014 motion; but the

motion was partially prompted by, and partially delayed by, the pace of discovery

disclosures by the state, as influenced by the state’s processing of physical evidence. Yet

some of the issues that McDonald raised in his motion were unrelated to the state’s

discovery disclosures, and nothing in the record indicates that the state intentionally

delayed its evidence-processing or its disclosures.




                                             16
       As to the third factor, a “defendant’s assertion of the right . . . is entitled to strong

evidentiary weight in determining whether the defendant is being deprived of the right.”

State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989) (quotation omitted). “The

circumstances surrounding the frequency and intensity of a defendant’s assertion of a

speedy trial demand—including the import of defense decisions to seek delays—can be

weighed in the third [factor] . . . .” State v. Windish, 590 N.W.2d 311, 318 (Minn. 1999).

Here, the state properly concedes that McDonald asserted his right to a speedy trial. And

the record shows that McDonald made prompt, repeated, and forceful demands for a speedy

trial. Yet McDonald also filed a motion that raised some issues of dubious import at the

pretrial stage.

       As to the fourth factor, “[the supreme court] ha[s] identified three interests to

consider in determining whether a defendant suffered prejudice: (1) preventing oppressive

pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and

(3) preventing the possibility that the defense will be impaired.” Taylor, 869 N.W.2d at 20

(quotation omitted). “A defendant does not have to affirmatively prove prejudice; rather,

prejudice may be suggested by likely harm to a defendant’s case.” Windish, 590 N.W.2d

at 318. Delay-occasioned harm to a defendant’s case may include damage to a witness’s

ability to recall “essential facts,” the unavailability of a witness, or impairment of

representation. Jones, 392 N.W.2d at 235–36. Here, McDonald generally alleges

oppressive pretrial incarceration and impairment to the defense, but he points to no facts in

support of his vague allegations. Our independent review of the record has revealed no




                                              17
such facts. And the 124-day delay in this case, which McDonald acknowledges was

“relatively short,” does not raise the specter of likely harm to McDonald’s defense.

       We conclude that the four factors as applied to this case show that McDonald was

not deprived of his right to a speedy trial.

       Judicial bias

       “Due process requires that a judge have no actual bias against a defendant or an

interest in a case’s outcome.” State v. Sailee, 792 N.W.2d 90, 95 (Minn. App. 2010) (citing

Bracy v. Gramley, 520 U.S. 899, 904–05, 117 S. Ct. 1793, 1797 (1997)), review denied

(Minn. Mar. 15, 2011). But “adverse rulings by themselves do not demonstrate judicial

bias. Rather, the bias must be proved in light of the record as a whole.” Hannon v. State,

752 N.W.2d 518, 522 (Minn. 2008) (citation omitted). “In reviewing claims of judicial

bias, [appellate courts] have considered whether the trial judge considered arguments and

motions made by both sides, ruled in favor of a complaining defendant on any issue, and

took actions to minimize prejudice to the defendant.” Id. “Also, [appellate courts] presume

that a judge has discharged her duties properly.” Id.

       In this case, McDonald generally asserts that the district court was biased against

him. But the only instances of “bias” identified by McDonald are the court’s adverse

rulings on certain pretrial issues on which McDonald wishes he had prevailed. Moreover,

the court ruled in favor of McDonald on other pretrial issues and regarding trial objections.

Because McDonald’s assertions of bias are not supported by the record as a whole, we

conclude that McDonald has failed to prove judicial basis.

       Sentencing manipulation


                                               18
       McDonald implicitly challenges the district court’s denial of his postverdict motion

regarding sentencing manipulation, arguing that police officers’ arrangement of five

separate controlled purchases from McDonald “w[as] purely, solely and wholly intended

to increase [McDonald’s] sentencing exposure.” “Sentencing manipulation occurs when

the government unfairly exaggerates the defendant’s sentencing range by engaging in a

longer-than-needed investigation and, thus, increasing the drug quantities for which the

defendant is responsible.” United States v. Moran, 612 F.3d 684, 691 (8th Cir. 2010)

(quotation omitted). Under the doctrine of sentencing manipulation, if a defendant

demonstrates by a preponderance of the evidence that officers engaged in drug transactions

solely to enhance a defendant’s potential sentence, the defendant may be entitled to a

downward durational departure to the sentencing-guidelines range applicable in the

absence of the manipulation. Id.

       The Minnesota Supreme Court has declined to adopt the doctrine of sentencing

manipulation “in the absence of egregious police conduct which goes beyond legitimate

investigative purposes.” State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997). And even in

jurisdictions that fully recognize the doctrine of sentencing manipulation, “[courts] will not

find sentencing manipulation when there is evidence of legitimate law enforcement goals

and purposes,” United States v. Sacus, 784 F.3d 1214, 1220 (8th Cir. 2015), cert. denied,

136 S. Ct. 348 (2015), such as “to determine what quantity of drugs a defendant will deal,”

“to establish th[e defendant]’s guilt beyond a reasonable doubt,” “to probe the depth and

extent of the criminal enterprise, to determine whether co-conspirators exist, and to trace

the drug deeper into the distribution hierarchy,” Moran, 612 F.3d at 692 (quotations


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omitted). Here, the state presented evidence of legitimate law enforcement goals and

purposes for the multiple controlled purchases. McDonald does not refute the state’s

evidence; instead, he essentially complains that officers did not employ every available

investigatory tactic against him to achieve their legitimate goals and purposes. As a result,

even if sentencing manipulation were recognized by the supreme court, McDonald has

failed to prove such manipulation. We conclude that the district court did not err by denying

McDonald’s sentencing-manipulation motion.

       Affirmed.




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