                          This opinion will be unpublished and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
                                     A14-0368

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                 Wayne Keith Parmenter,
                                      Appellant.

                                 Filed February 2, 2015
                                 Reversed and remanded
                                     Chutich, Judge

                                Cass County District Court
                                 File No. 11-CR-10-2350

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

Christopher J. Strandlie, Cass County Attorney, Benjamin T. Lindstrom, Assistant
County Attorney, Walker, Minnesota (for respondent)

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


       Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Reilly, Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

       Appellant Wayne Parmenter appeals his convictions of first-degree driving while

impaired, arguing that he did not validly waive his right to counsel and that his trial under
Minnesota Rule of Criminal Procedure 26.01, subdivision 4, was invalid. In a pro se

supplemental brief, Parmenter also challenges the district court’s rulings on his pretrial

motions. Because the requirements of rule 26.01, subdivision 4, were not met, we

reverse and remand.

                                         FACTS

       In October 2010, the state charged Wayne Parmenter with two counts of first-

degree driving while impaired. In December 2011, Parmenter filed a petition to proceed

pro se. In January 2012, the district court allowed Parmenter to fire the public defender

who represented him.

       Parmenter argued several issues at the contested omnibus hearing, asserting that:

(1) he should have been given access to the Intoxilyzer source code; (2) the stop of his

car was unlawful; (3) no probable cause to arrest existed; (4) he was denied his right to

counsel after his arrest; (5) he should have been allowed an alternative blood test; (6) his

statements during the traffic stop should have been suppressed; and (7) no probable cause

existed for the charges once his defenses were considered, including a medical defense

and an argument that he did not have three prior qualified driving incidents. The district

court denied Parmenter’s motions.

       At an August 2013 pretrial hearing, Parmenter requested that the matter proceed

under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, which permits a

defendant to stipulate to the prosecution’s case to obtain review of a pretrial ruling.

Before Parmenter was sworn in, the prosecutor said that the parties needed to




                                             2
acknowledge that the pretrial issues would be dispositive and that he “certainly [thought]

that some of [them] would have that [e]ffect.”

       After he was sworn in, the district court asked Parmenter if he agreed that “if, for

instance, this last issue you raised of the . . . license revocation out of Hubbard County,

do you agree that if that were found to not exist that we wouldn’t be here on a first

degree?” Parmenter agreed with this statement. No other acknowledgment or discussion

of which pretrial issues were dispositive took place.

       The district court found Parmenter guilty of both counts, sentenced him to 36

months in prison with execution stayed, and placed him on probation for seven years.

This appeal followed.

                                     DECISION

       Parmenter argues that the district court committed reversible error by failing to

determine whether the pretrial issues were dispositive and by failing to have the parties

acknowledge which issues were dispositive. He asserts that because not all of the pretrial

issues were dispositive, the failure to strictly comply with Minnesota Rule of Criminal

Procedure 26.01, subdivision 4, requires reversal. We agree.

       Construction of a rule of criminal procedure is a question of law reviewed de

novo. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005). When this court construes a

procedural rule, it considers the plain language of the rule and its purpose. In re Welfare

of S.M.E., 725 N.W.2d 740, 742 (Minn. 2007).




                                             3
       Minnesota Rule of Criminal Procedure 26.01, subdivision 4, permits a defendant

to stipulate to the prosecution’s case to obtain review of a pretrial ruling. The rule sets

forth the procedure to be followed:

              (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
              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.
              ***
              (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.

Minn. R. Crim. P. 26.01, subd. 4. The purpose of this proceeding is to avoid the

inefficient use of judicial resources and to preserve a defendant’s right of appeal while

avoiding an otherwise unnecessary jury trial. State v. Verschelde, 595 N.W.2d 192, 195

(Minn. 1999).

       The parties here did not make the acknowledgements required by the rule. The

prosecutor, while noting that “there also needs to be an acknowledgement that the pretrial

issues would be dispositive,” also stated that “I . . . certainly think that some of this

would have that [e]ffect . . . .” Likewise, the district court only asked Parmenter if, “for

instance,” one of his pretrial issues would make a contested trial unnecessary. But the

parties never acknowledged which pretrial issues were dispositive.



                                             4
       Parmenter raised seven pretrial issues, not all of which were dispositive of the

case. And the rule makes clear that the parties need to agree that a ruling on a specified

pretrial issue is dispositive. Minn. R. Crim. P. 26.01, subd. 4(a).

       One of Parmenter’s pretrial issues was that the statements he made to the police

after he was first stopped should be suppressed because he was not given a Miranda

warning. But this issue was neither dispositive nor would it have made a contested trial

unnecessary: the state had substantial evidence against Parmenter without these

statements.

       Furthermore, several of Parmenter’s other pretrial issues may not have been

dispositive. Parmenter also challenged that he should have been given a blood test, that

he was not permitted to speak with an attorney before he was tested, and that the

Intoxilyzer source code was defective. These issues may have been dispositive of the

case if Parmenter were solely charged with driving with an alcohol concentration above

.08. But Parmenter was also charged with driving under the influence of alcohol. Even if

he successfully challenged these issues, a trial still could have occurred based on this

second charge.

       In State v. Burdick, 795 N.W.2d 873 (Minn. App. 2011), we considered a

challenge to a proceeding somewhat similar to this case. The proceeding in Burdick had

two key deficiencies: the parties failed to make the required acknowledgment that the

pretrial issue was dispositive, and the pretrial issue itself was not dispositive of the case.

Id. at 876. Because of these failures, we held that the agreement to have a trial under rule

26.01, subdivision 4, was invalid and reversed and remanded the case. Id. at 877.


                                              5
       The proceeding here suffers from these same flaws. Although in Burdick no one

acknowledged that the issue was dispositive, id. at 875, here the parties only

acknowledged that some of the issues may be dispositive.

       And, as in Burdick, not all of the issues here are dispositive of the case or make a

contested trial unnecessary. Although the pretrial issue in Burdick was the denial of a

contested omnibus hearing, this court pointed to a potentially similar outcome: “If later

Burdick were to successfully challenge the blood-analysis evidence, a contested trial may

be necessary to contest her guilt on the [driving under the influnce] offense.” Id. at 877.

A similar result could occur here. Thus, the procedure used in this case does not further

the purpose of rule 26.01, subdivision 4: conserving judicial resources by avoiding an

unnecessary jury trial.

       Because the parties failed to adhere to the rule’s required acknowledgements and

because several of the pretrial issues Parmenter raised were not dispositive, the

stipulation to a trial under rule 26.01, subdivision 4, was invalid. We therefore reverse

and remand for withdrawal of the stipulation and for trial or for further proceedings as

determined by the district court.

       Based on our decision that the trial was invalid, we do not reach the issue of

whether Parmenter validly waived his right to counsel. Given the length of time that has

passed, on remand Parmenter may again choose whether to invoke his right to counsel or

to waive that right. We also decline to address the issues raised by Parmenter in his pro

se brief. See State v. Rasmussen, 749 N.W.2d 423, 428 (Minn. App. 2008) (holding that




                                            6
an appellate court will not review pretrial issues if the appellant successfully argues that a

trial under rule 26.01, subdivision 4, is invalid).

       Reversed and remanded.




                                               7
