                        This opinion will be unpublished and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
                                   A14-0539

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Armando Jesus Pedraza,
                                    Appellant.

                                Filed March 23, 2015
                                      Affirmed
                                    Larkin, Judge

                              Polk County District Court
                               File No. 60-CR-08-756


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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

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


      Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and

Larkin, Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of first-degree sale of a controlled substance,

arguing that the state violated his speedy-trial and due-process rights. He also challenges

his sentence, arguing that the district court erred by denying his request for out-of-state

jail credit.   Because appellant did not preserve his speedy-trial and due-process

arguments for appeal, we do not address the merits of those arguments. And because the

district court did not err by denying appellant’s request for jail credit, we affirm.

                                           FACTS

       In March 2005, undercover law-enforcement agents in Polk County conducted two

controlled buys of more than 80 grams of cocaine from a group of individuals, which

included appellant Armando Jesus Pedraza.              In January 2006, Minnesota law-

enforcement agents interviewed Pedraza at a prison in Texas, where he was incarcerated

for another drug offense. In July, the State of Texas convicted Pedraza of first-degree

controlled-substance crime and sentenced him to serve 15 years in prison.

       On March 21, 2008, respondent State of Minnesota charged Pedraza with

conspiracy, first-degree sale of a controlled substance, first-degree possession of a

controlled substance, and importing a controlled substance across state borders based on

the 2005 controlled buys. On February 1, 2013, Polk County placed a detainer on

Pedraza for the 2008 charges. In March 2013, Pedraza was paroled in Texas, held on the

Minnesota detainer, and transferred to Minnesota. He made his first appearance in Polk

County District Court on April 1, 2013.


                                              2
       On April 11, 2013, Pedraza filed a pro se motion to dismiss his Minnesota

charges, alleging a violation of his constitutional right to a speedy trial. On May 8,

Pedraza’s court-appointed attorney also filed a motion to dismiss, listing the following

four grounds for relief:

                     1.     Dismissing the charges pursuant to Minn. R.
              Crim. P. 30.02[;]1
                     2.     Dismissing the charges pursuant to M.S.A.
                          2
              § 631.21[;]
                     3.     Dismissing the charges for violating the
              defendant’s Fifth Amendment Right to Due Process under the
              law (delay)[; and]
                     4.     Dismissing the charges pursuant to M.S.A.
              § 629.292 and M.S.A. § 629.294 for violating the defendant’s
              rights under the Uniform Mandatory Disposition of Detainers
              Act and Interstate Agreement on Detainers.

       At the motion hearing on July 8, Pedraza’s attorney withdrew the first and third

grounds for dismissal, as follows.

              [DEFENSE COUNSEL]: And essentially this motion is
              going to be with regards to numbers one and three on the
              motion, notice of motion and motion that I filed. It’s with
              regards to the Uniform Mandatory Disposition Detainers
              Act. . . .
              [PROSECUTOR]: . . . . I just want to make sure, number one
              and number three we’re talking about?
              THE COURT: Looks like number four is the one that relates
              to --
              [DEFENSE COUNSEL]: Wait. I just shut my file on it here.
              I think I said it backwards. It was two and four. I apologize.
              ....


1
  Rule 30.02 permits the district court to dismiss a complaint “if the prosecutor has
unnecessarily delayed bringing the defendant to trial.” Minn. R. Crim. P. 30.02.
2
  Section 631.21 permits the district court to “order dismissal of [a criminal] action either
on its own motion or upon motion of the prosecuting attorney and in furtherance of
justice.” Minn. Stat. § 631.21 (2014).

                                             3
             [DEFENSE COUNSEL]: Your Honor, it would be numbers
             two and four that I would be arguing.
             THE COURT: So are you withdrawing numbers one and
             three?
             [DEFENSE COUNSEL]: Yes.
             THE COURT: So we’ll note that on the motion arguments
             number one and number three are withdrawn. We’re
             proceeding on number two and number four.

      Defense counsel’s memorandum in support of dismissal identified the issue to be

determined as follows: “It is Mr. Pedraza’s position that, because he did not receive

notice of the charges filed in Minnesota while he was incarcerated in Texas, the

Minnesota charges should be dismissed with prejudice.” The prayer for relief states,

“[Pedraza] respectfully requests that the court finds that the State denied Mr. Pedraza

rights under the Interstate Agreement on Detainers.      Therefore, the charges against

Mr. Pedraza must be dismissed with prejudice.”       Even though defense counsel had

withdrawn Pedraza’s request for relief on speedy-trial and due-process grounds, her

district court memorandum briefly addressed those theories.      The state’s responsive

memorandum discussed the Interstate Agreement on Detainers but did not address

Pedraza’s speedy-trial and due-process arguments, noting that defense counsel had

withdrawn those issues.

      On August 5, the district court issued a written order, denying the motion to

dismiss. The order notes that at the motion hearing, “the defense withdrew its motions to

dismiss the charges pursuant to [Pedraza’s] due process rights under the Fifth

Amendment and pursuant to Minnesota Rule of Criminal Procedure 30.02” and that “the

defense’s remaining motions are to dismiss the charges pursuant to the Uniform



                                           4
Mandatory Disposition of Detainers Act/Interstate Agreement on Detainers and pursuant

to Minnesota Statute § 631.21.” The district court’s supporting memorandum indicates

that it considered and determined Pedraza’s motion to dismiss solely under the Uniform

Mandatory Disposition of Detainers Act and Interstate Agreement on Detainers and

section 631.21. The district court did not consider or determine whether Pedraza’s

speedy-trial and due-process rights were violated.

       At a hearing on August 26, Pedraza’s attorney informed the district court that there

had been a “breakdown in communication” and that a new attorney would be appointed

to represent Pedraza. She also stated:

              I would put on the record that Mr. Pedraza does desire to – I
              filed a couple of – well I filed one motion on his behalf at the
              omnibus stage. He had filed some motions himself and he
              would like the Court to consider allowing him to have an
              opportunity once his new attorney is appointed to address
              those arguments. Ah, and I believe that he also would like to
              address the Court today.

The state opposed the request, arguing that Pedraza’s pro se motion was not properly

before the district court unless he elected to represent himself. Pedraza attempted to

address the district court directly, but the district court did not allow him to do so. The

district court continued the case for “calendar call” on September 6.

       On September 6, Pedraza appeared with a new court-appointed attorney.

Pedraza’s new attorney did not raise the speedy-trial and due-process issues that

Pedraza’s first attorney had withdrawn. Nor did the attorney pursue Pedraza’s pro se

motion to dismiss for lack of speedy trial. Instead, the parties informed the district court

that Pedraza was willing to resolve his case with a court trial. Although the parties


                                             5
initially informed the district court that the case would be resolved under Minn. R. Crim.

P. 26.01, subd. 4, Pedraza’s attorney later stated that “it would be in a sense more under

subd. 3 of 26.01 than subd. 4. We could do it under subd. 3 and subd. 4.”3

       The district court found Pedraza guilty of first-degree sale of a controlled

substance and sentenced him to serve 122 months in prison with 304 days of jail credit.

The district court denied Pedraza’s request for 2,111 days of jail credit, which was based

on time that he served in Texas. This appeal follows.

                                       DECISION

       Pedraza argues that (1) the delay in charging violated his right to due process,

(2) the delay in bringing him to trial violated his right to a speedy trial, and (3) he should

have received jail credit for the time he spent imprisoned in Texas after Minnesota

charged him. The state responds that Pedraza’s first and second arguments are not

properly before this court because the district court did not determine those issues and

that the district court did not err in denying Pedraza’s request for jail credit.




3
  We note that subdivisions 3 and 4 of Minn. R. Crim. P. 26.01 differ significantly.
Subdivision 3 permits the defendant and prosecutor to “agree that a determination of
defendant’s guilt . . . may be submitted to and tried by the court based on stipulated
facts.” Minn. R. Crim. P. 26.01, subd. 3(a). If the district court finds the defendant
guilty, he may “raise issues on appeal as from any trial to the court.” Id., subd. 3(e).
Subdivision 4, on the other hand, permits the parties to “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.” Id., subd. 4(a). “The defendant must stipulate to the prosecution’s
evidence in a trial to the court,” and must “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.” Id., subd. 4(e)(f).


                                               6
                                            I.

       We first determine whether Pedraza’s speedy-trial and due-process arguments

were preserved for appeal. Generally, an appellate court does not consider issues that

were not raised and determined in the district court, even issues of constitutional

procedure in a criminal case. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). “It is an

elementary principle of appellate procedure that a party may not raise an issue or

argument for the first time on appeal and thereby seek appellate relief on an issue that

was not litigated in the district court.” Doe ex rel. Doe v. Columbia Heights Sch. Dist.,

842 N.W.2d 38, 42 (Minn. App. 2014). “Furthermore, an appellant may not ‘obtain

review by raising the same general issue litigated below but under a different theory.’”

Id. at 42-43 (quoting Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)). “As a

consequence, this court may consider only those issues that the record shows were

presented and considered by the trial court in deciding the matter before it.” Id. at 43

(quotation omitted). If an appellant “fails to preserve an argument or issue in district

court proceedings, the issue or argument is forfeited and may not be asserted in appellate

court.” Id.

       Because the speedy-trial and due-process issues were not litigated and determined

in the district court, we normally would not consider them for the first time on appeal.

However, “[a]n exception arises if the issue is dispositive of the entire controversy, and

there is no advantage or disadvantage to the parties in not having a prior decision by the

trial court.” State v. Coleman, 661 N.W.2d 296, 299 (Minn. App. 2003) (quotation

omitted), review denied (Minn. Aug. 5, 2003). Moreover, “[o]n appeal from a judgment,


                                            7
the court may review any order or ruling of the district court or any other matter, as the

interests of justice may require.” Minn. R. Crim. P. 28.02, subd. 11. For the reasons that

follow, we decline to make an exception in this case or to grant review in the interests of

justice.

       Pedraza’s speedy-trial and due-process arguments require a delicate balance of

case-specific facts. See Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188 (1972)

(“The right of a speedy trial is necessarily relative. It is consistent with delays and

depends upon circumstances.”) (quotation omitted); United States v. Marion, 404 U.S.

307, 325, 92 S. Ct. 455, 465-66 (1971) (stating that whether a pre-indictment delay

violated a defendant’s due-process rights “will necessarily involve a delicate judgment

based on the circumstances of each case”). When assessing whether the right to speedy-

trial was violated, courts must consider (1) the length of the delay, (2) the reason for the

delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the

delay prejudiced the defendant. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).

“To establish a violation of the due process clause due to pre-indictment delay, a

defendant must prove both actual prejudice and an improper state purpose.” State v.

F.C.R., 276 N.W.2d 636, 639 (Minn. 1979). The fact of a delay alone, even when it

results in a higher criminal-history score and longer sentence, is not enough to establish

an improper state motive. State v. Lussier, 695 N.W.2d 651, 656 (Minn. App. 2005),

review denied (Minn. July 19, 2005).




                                             8
       Because Pedraza’s attorney withdrew the speedy-trial and due-process issues, the

district court did not develop a factual record necessary for resolution of those issues.4

Moreover, because the issues were withdrawn, the state did not have an opportunity to

develop a factual record in district court supporting its position. And because the district

court did not determine the issues, the state did not brief them on appeal. For those

reasons, allowing Pedraza to raise the issues on appeal would prejudice the state. Under

the circumstances, consideration of appellant’s speedy-trial and due-process arguments is

neither possible nor appropriate.

       Pedraza’s arguments to the contrary are unavailing. For example, Pedraza argues

that “[it] is clear . . . that [he] proceeded with a stipulated facts trial pursuant to Minn. R.

Crim. P. 26.01, subd. 3,” noting that defense counsel informed the district court that “the

procedure in handling it in this respect would still preserve all issues of appeal for

Mr. Pedraza.” That argument does not establish that the speedy-trial and due-process

issues are preserved for appeal because regardless of the procedure used, the district court

did not consider or determine the merits of those issues.

       Pedraza also argues that he never “waived or forfeited” his rights to speedy trial or

due process. He asserts that “defense counsel . . . never waived [his] Sixth Amendment

right to speedy trial” and that his “Fifth Amendment right to due process was not validly

waived by his defense counsel.” Those arguments miss the mark. The issue is not

whether Pedraza or his attorneys waived his constitutional rights to a speedy trial and due

4
  Pedraza argues that “the facts necessary to review these claims are in the record.” But
this court is not a fact finding court. See State v. Colvin, 645 N.W.2d 449, 453 (Minn.
2002) (stating that appellate courts have “no . . . business finding facts”).

                                               9
process. The issue is whether Pedraza preserved his arguments that those rights were

violated.

       Moreover, Pedraza is mistaken to the extent that he suggests that his attorney

could not withdraw his request for dismissal on speedy-trial and due-process grounds

without his personal waiver. In a criminal case, clients are allowed to make certain

decisions related to the trial process, such as whether to plead guilty, waive a jury trial, or

testify on one’s own behalf. State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979). But

decisions regarding which motions to pursue are for lawyers. See id. (listing a decision

regarding “what trial motions should be made” as a strategic and tactical decision within

the “exclusive province of the lawyer” (quotation omitted)). Even decisions involving

constitutional challenges may constitute trial strategy. See Thomas v. United States, 737

F.3d 1202, 1209 (8th Cir. 2013) (“[T]he decision whether to move to dismiss for a speedy

trial violation is a tactical decision of trial strategy.”).

       We recognize that Pedraza filed a pro se motion to dismiss for violation of his

constitutional right to a speedy trial and that his first defense attorney indicated that he

wanted to litigate his pro se motions stating, “He had filed some motions himself and he

would like the Court to consider allowing him to have an opportunity once his new

attorney is appointed to address those arguments.” But when Pedraza appeared before

the district court with his new attorney, that attorney did not raise the speedy-trial issue or

attempt to litigate Pedraza’s pro se motion. Pedraza does not cite authority indicating

that the district court was required to rule on his pro se motion even though he was

represented by an attorney and his attorney did not pursue the motion. In fact, caselaw


                                                 10
provides that a defendant does not have a right to hybrid representation, that is, a

combination of self-representation and attorney representation.          See McKaskle v.

Wiggins, 465 U.S. 168, 183, 104 S. Ct. 944, 953 (1984) (“A defendant does not have a

constitutional right to choreograph special appearances by counsel.         Once a pro se

defendant invites or agrees to any substantial participation by counsel, subsequent

appearances by counsel must be presumed to be with the defendant’s acquiescence, at

least until the defendant expressly and unambiguously renews his request that standby

counsel be silenced.”); United States v. Swinney, 970 F.2d 494, 498 (8th Cir. 1992)

(stating that a defendant “does not have a constitutional right to hybrid representation”

and “cannot demand the right to act as co-counsel”).

       In conclusion, because Pedraza’s speedy-trial and due-process arguments were not

considered and determined by the district court and the circumstances do not justify

departure from the general rule prohibiting this court from considering issues for the first

time on appeal, we do not consider the merits of those arguments.

                                             II.

       Pedraza argues that he “must be awarded custody credit for the time he spent

incarcerated in Texas after he was charged in [Minnesota] to avoid his sentence being

consecutive and to correct the inequities in this case.”

       “The decision to award custody credit is not discretionary with the district court.”

State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008).              The district court, when

sentencing a defendant, “[s]hall assure that the record accurately reflects all time spent in

custody in connection with the offense or behavioral incident for which sentence is


                                             11
imposed. Such time shall be automatically deducted from the sentence . . . .” Minn. R.

Crim. P. 27.03, subd. 4(B). “A district court’s decision whether to award credit is a

mixed question of fact and law; the court must determine the circumstances of the

custody the defendant seeks credit for, and then apply the rules to those circumstances.”

Johnson, 744 N.W.2d at 379.

       “A defendant has the burden of establishing that he is entitled to jail credit for a

specific period of time.” State v. Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001),

review denied (Minn. Aug. 15, 2001). “Jail credit is allowed for time spent in another

state only when the Minnesota offense was the sole reason for incarceration in the foreign

jurisdiction.” State v. Parr, 414 N.W.2d 776, 779 (Minn. App. 1987) (emphasis added)

(quotation marks omitted), review denied (Minn. Jan. 15, 1988). “If part of the time [a

defendant] spent in the out-of-state jail was in connection with the out-of-state charge, he

would not be entitled to jail credit for that time.” Id. (citing State v. Brown, 348 N.W.2d

743, 748 (Minn. 1984), abrogated on other grounds by State v. Ramey, 721 N.W.2d 294

(Minn. 2006)).

       For example, in State v. Bentley, the defendant was jailed in North Dakota when

Minnesota charged him with an offense. 329 N.W.2d 39, 39-40 (Minn. 1983). He was

eventually paroled by North Dakota and transferred to Minnesota, where he was jailed

until his sentencing on the Minnesota offense. Id. at 40. The supreme court held that the

defendant was “not entitled to credit for time spent in prison in North Dakota before he

was paroled to Minnesota authorities” but should have received credit for the time

between his North Dakota parole and Minnesota sentencing. Id. Likewise, in State v.


                                            12
Willis, the supreme court held that the defendant was “not entitled to any credit . . .

against his Minnesota sentence” for time he spent incarcerated in Illinois for charges

unrelated to his Minnesota offenses. 376 N.W.2d 427, 428-29 (Minn. 1985).

      Pedraza argues that his case is analogous to State v. Folley, 438 N.W.2d 372

(Minn. 1989), and State v. Zaycheck, 386 N.W.2d 294 (Minn. App. 1986). Those cases

are inapposite because they involved jail credit for another Minnesota offense, and not an

out-of-state offense. See Folley, 438 N.W.2d at 373-75 (applying rule “where the State

of Minnesota is a party to both charges”); Zaycheck, 386 N.W.2d at 295-96 (involving

sentence for Ramsey County offense charged while defendant was “already incarcerated

in Stillwater State Prison”). Moreover, the courts in Folley and Zaycheck relied on State

v. Dulski, 363 N.W.2d 307 (Minn. 1985). Folley, 438 N.W.2d at 374; Zaycheck, 386

N.W.2d at 296. The Minnesota Supreme Court has said that it is reversible error to rely

on Dulski to decide a jail-credit issue involving incarceration outside of Minnesota. State

ex rel. Linehan v. Wood, 397 N.W.2d 341, 342 (Minn. 1986). Instead, Willis, Brown, and

Bentley control whether a defendant is entitled to credit for time served outside of

Minnesota. Id.

      Under Minnesota caselaw, Pedraza is entitled to Minnesota jail credit for his

Texas incarceration only if he was incarcerated in Texas solely in connection with his

Minnesota offense. The record indicates that Pedraza was not incarcerated in Texas

pending his transfer to Minnesota after he was paroled. The prosecutor informed the

district court that Pedraza “wasn’t held in the State of Texas pending extradition back to

Minnesota. We picked him up the date that he was discharged from custody in the State


                                            13
of Texas.”    On that point, Pedraza merely contested the date on which Minnesota

authorities picked him up in Texas.5 Because it is undisputed that Pedraza was not

incarcerated in Texas solely in connection with his Minnesota offense, he is not entitled

to the requested jail credit.

       Affirmed.




5
  The state argued that the date was March 31, 2013. Pedraza argued that it was
March 12. The district court resolved the dispute by awarding Pedraza credit for 30 days
in March, beginning on March 2.


                                           14
