                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0086

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                   Jason Ty Anderson,
                                       Appellant.

                               Filed January 12, 2015
                  Affirmed in part, reversed in part, and remanded
                                   Stauber, Judge

                               Scott County District Court
                                 File No. 70CR122938

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

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant State Public Defender, St. Paul, Minnesota (for appellant)

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

Stauber, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

       On appeal from his convictions of driving under the influence (DWI) and

obstruction of legal process, appellant argues that his convictions should be vacated
because he was incompetent to stand trial and the district court erred by entering

judgments of conviction and sentencing him on multiple offenses that arose from the

same criminal acts. We affirm the district court’s competency determination but remand

for resentencing because the district court erred by formally adjudicating convictions on

more than one charge for the same criminal acts.

                                          FACTS

       Just before 2:00 a.m. on February 8, 2012, appellant Jason Ty Anderson parked

his car at a gas pump in Shakopee and sat in his car for about ten minutes without getting

any gas. According to the sales associate on duty, appellant then came into the store, ate

food “that he had picked up,” and “stumble[d] around making a mess at the condiment

station.” As he approached the register, appellant stumbled and swayed, and the sales

associate smelled alcohol. After appellant left the store, the sales associate called police

to report a possible drunk driver and provided the license-plate number of appellant’s

white pickup.

       Police were waiting at appellant’s home when he arrived there, and after noticing

that appellant appeared to be under the influence of alcohol, arrested him on suspicion of

DWI. Appellant struggled during his arrest, refusing to follow commands and repeatedly

pushing against one of the officers, and it took about a minute to restrain him. After his

arrest, appellant agreed to take a urine test, which revealed an alcohol concentration of

.15. Appellant was charged with two counts of gross misdemeanor DWI and one count

each of gross misdemeanor and misdemeanor obstruction of legal process.




                                              2
       Appellant was tried in a bench trial in June 2012 and was found guilty of all

charged offenses. When appellant did not cooperate in the preparation of his presentence

investigation and gave erratic answers to the evaluator, the district court ordered that

appellant be examined for mental competency before proceeding to sentencing.

       The clinical psychologist who examined appellant on November 28 and December

12, 2012, Dr. Dawn M. Peuschold, noted that appellant showed “psychotic

symptomatology like auditory hallucinations, disorganized speech, paranoia, and

delusions,” and diagnosed him as having “Psychotic Disorder Not Otherwise Specified.”

Dr. Peuschold reported that it was “difficult” to formulate an opinion as to appellant’s

competency because he clearly understood some aspects of the proceedings, such as the

charges against him, the trial process, the purpose of punishment, and the consequences

of his conviction. But Dr. Peuschold also described appellant as “distractible and easily

agitated,” and stated that “[s]ome of his statements are paranoid, delusional, or

nonsensical.” Dr. Peuschold concluded:

              [Appellant] appears to be unable to participate fully in the
              presentence investigation and the current Rule 20 evaluation.
              It is unlikely that he can meaningfully consult with his
              defense counsel or provide information to help mediate his
              sentence. On balance, [appellant] is, in my clinical opinion,
              incompetent to proceed. It is probable that civil commitment
              as a Mentally Ill (and Chemically Dependent) Person,
              inpatient hospitalization, abstinence from alcohol and illicit
              drugs,     and     full    compliance     with     appropriate
              psychopharmacological treatment would restore him to
              competence within weeks or months.

The district court then ruled appellant incompetent to proceed to sentencing and ordered

the county to initiate mental-commitment proceedings. A screening demonstrated that


                                              3
appellant did not meet the criteria for mental commitment. Thereafter, the district court

held review hearings on April 17, 2013 and September 9, 2013.

       On October 21, 2013, appellant moved to vacate his convictions and for a new

trial. At a hearing on October 22, 2013, the district court ruled that appellant was again

competent to proceed, reviewing the history of appellant’s competency:

              At this time, [appellant], I don’t have any evidence in front of
              me that shows that you’re not competent. There is no
              evidence that you didn’t understand the proceedings or that
              you weren’t able to communicate with your lawyer or you
              didn’t know [w]hat was going on at the time. That is
              something that I went over with both counsel and there are no
              affidavits nor did either one of them have any information for
              me to indicate that you were not competent at the time of
              trial. We certainly know that you weren’t competent later on.
              And we know that you’re now competent. But at this time
              there is just no evidence presented by either of the attorneys
              or in the court file.



The district court denied appellant’s posttrial motions and imposed sentence on one count

of gross-misdemeanor DWI and one count of gross-misdemeanor obstruction of legal

process. This appeal followed.

                                      DECISION

                                             I.

       “A defendant is denied the right to a fair trial under the Due Process Clause if the

district court fails to observe adequate procedures to protect the defendant’s right not to

be tried or convicted while incompetent.” State v. Camacho, 561 N.W.2d 160, 174

(Minn. 1997); see U.S. Const. amend XIV, § 1; Minn. Const. art. I, § 7; see also Drope v.



                                              4
Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 904 (1975); Bonga v. State, 797 N.W.2d 712,

718 (Minn. 2011). The district court has a duty in criminal proceedings to “be vigilant in

ensuring that the defendant is competent to stand trial and that, when a sufficient doubt of

the defendant’s competence arises, [it] must observe procedures adequate to ensure the

defendant’s competency.” State v. Bauer, 310 Minn. 103, 114, 245 N.W.2d 848, 854

(1976). These constitutional requirements are preserved under Minn. R. Crim. P. 20.01,

which, among other mandates, requires the district court to suspend criminal proceedings

and order a competency evaluation when a defendant’s competence comes into question.

A defendant is competent to stand trial if the defendant “‘has sufficient present ability to

consult with [a] lawyer with a reasonable degree of rational understanding’ and ‘has a

rational as well as factual understanding of the proceedings against him.’” Bonga, 797

N.W.2d at 718 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789

(1960) (per curiam)); see Minn. R. Crim. P. 20.01, subd. 1. Behaviors that may

demonstrate the need for a competency examination include the defendant’s trial

demeanor, irrational behavior, and evidence of prior incompetence. Bauer, 310 Minn. at

116, 245 N.W.2d at 855; see Drope, 420 U.S. at 179; 95 S. Ct. at 907. On undisputed

evidence, a reviewing court considers whether the district court “gave proper weight to

the information suggesting incompetence in concluding that there was not sufficient”

evidence to establish a defendant’s incompetency. Bauer, 310 Minn. at 117, 245 N.W.2d

at 856 (quotations omitted).

       Appellant argues that the district “court erred by not conducting further hearings

or ordering further examinations to determine whether [a]ppellant had been competent at


                                              5
trial.” We disagree. The test for competency includes examination of whether the

defendant “has sufficient present ability” to understand proceedings and consult with an

attorney. Dusky v. United States, 362 U.S. at 402, 80 S. Ct. at 789 (emphasis added); see

Minn. R. Crim. P. 20.01, subd. 2 (referring to defendant’s competence in the present

tense, as whether the defendant “lacks ability” to demonstrate competence). At the time

of trial, appellant did not show by his communications or demeanor that he was

incompetent to stand trial. He participated in his defense, consulted with his attorney,

and demonstrated no behaviors that would suggest the need for a competency evaluation.

Appellant suggests that his colloquy with the district court about whether to waive his

right to testify included him giving “paranoid” and “nonsensical” responses, but

appellant’s statements to the district court judge do not support this claim. During the

colloquy, the district court asked appellant specific questions about his understanding of

his rights and about whether appellant had had sufficient time to discuss them with his

attorney, and discussed whether certain evidence would be admissible. Appellant’s

competence was evident from his communications made on the record.

       For a period beginning several months after the trial, appellant was declared

incompetent, but his competence was later restored. While appellant argues that his

attorney “raised concerns about his competency at the time of trial when she moved to set

aside the verdict,” this motion was made approximately a year-and-a-half after trial, on

October 21, 2013. The trial was held on June 13, 2012. This timeline of events suggests

no error in the district court’s consideration of or rulings on appellant’s competence to

stand trial.


                                             6
                                             II.

       When a challenge to a sentence is based on a legal issue, this court’s review is de

novo. State v. DeRosier, 719 N.W.2d 900, 903 (Minn. 2006). This court may “determine

whether the sentence is inconsistent with statutory requirements, unreasonable,

inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact

issued by the district court.” Minn. Stat. § 244.00, subd. 2(b)( 2012). 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).

       Appellant argues that the district court erred by entering judgments of conviction

on two separate DWI counts when they arose as part of a single behavioral incident.

There are three sentencing orders in this case; appellant’s brief only references the first

sentencing order, dated October 22, 2013, which does not identify the precise statutory

offenses for which the district court imposed sentence. But in the second and third

sentencing orders, which are both dated January 3, 2014, the district court entered

judgments of conviction and imposed sentence on count 1 of the amended complaint,

gross misdemeanor DWI, Minn. Stat. § 169A.20, subd. 1(1) (2012) (driving under the

influence), and count 3, gross-misdemeanor obstruction of legal process, Minn. Stat.

§ 609.50, subds. 1(2), 2(2) (2012). The court also entered judgments of conviction on

count 2, gross-misdemeanor DWI, Minn. Stat. -§ 169A.20, subd. 1(5) (2012) (.08 or




                                              7
more), and count 4, misdemeanor obstruction of legal process, Minn. Stat. § 609.50,

subds. 1(2), 2(3) (2012), but did not impose sentence for those convictions.1

       However, Minn. Stat. § 609.04, subd. 2 (2012), provides that “[a] conviction . . .

of a crime is a bar to further prosecution of any included offense, or other degree of the

same crime.” See State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (ruling that

section 609.04 prohibits “multiple convictions under different sections of a criminal

statute for acts committed during a single behavioral incident”). The district court’s final

sentencing order properly imposes sentence on only one of the two DWI offenses, but

enters judgments of conviction on both DWI offenses. Under State v. LaTourelle, 343

N.W.2d 277, 284 (Minn. 1984), the district court must adhere to the following procedure

when adjudicating guilt for alternate counts of the same criminal offense:

                      We hold that the proper procedure to be followed by
              the [district] court when the defendant is convicted on more
              than one charge for the same act is for the court to adjudicate
              formally and impose sentence on one count only. The
              remaining conviction(s) should not be formally adjudicated at
              this time. If the adjudicated conviction is later vacated for a
              reason not relevant to the remaining unadjudicated
              conviction(s), one of the remaining unadjudicated convictions
              can then be formally adjudicated and sentence imposed, with
              credit . . . given for time already served on the vacated
              sentence.

Under LaTourelle, the district court erred by entering judgment of conviction on the

gross-misdemeanor DWI (.08 or more) offense after entering judgment of conviction on

the other DWI offense, and we remand for the district court to vacate that conviction. For

1
  As to the convictions for which it did not impose sentence, the district court order
states: “Ct 2: 2[degree] DWI .08 or more & Ct 4: Obstruct legal process; Convicted-No
Sentence pronounced.”

                                             8
the same reason, the district court also erred by entering judgment of conviction on the

misdemeanor obstruction-of-legal-process offense after it had entered judgment of

conviction on the gross-misdemeanor obstruction-of-legal-process offense. Therefore,

we also direct the district court to vacate the misdemeanor obstruction-of-legal-process

conviction.

       Affirmed in part, reversed in part, and remanded.




                                             9
