                          This opinion will be unpublished and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
                                     A14-1622

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                   Timothy John Lopp,
                                       Appellant

                                 Filed September 8, 2015
                                 Reversed and remanded
                                     Peterson, Judge

                              St. Louis County District Court
                                File No. 69VI-CR-13-1433

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

Mark S. Rubin, St. Louis County Attorney, Duluth, Leah A. Stauber, Assistant County
Attorney, Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Schellhas,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from a conviction of first-degree driving while impaired (DWI)

following a trial to the court under Minn. R. Crim. P. 26, appellant argues that the
conviction must be reversed because the district court failed to strictly comply with the

requirements of Minn. R. Crim. P. 26.01, subd. 4. We reverse and remand.

                                          FACTS

       Trooper Travis Koenen stopped appellant Timothy John Lopp after Lopp failed to

stop at a stop sign. When Koenen approached Lopp’s vehicle, he noticed that Lopp’s

“eyes were bloodshot, watery, and marked with reddening, and . . . [that] a moderate odor

of an alcoholic beverage” was coming from him. According to Koenen, Lopp admitted

“that he did not stop at the stop sign” and that he had consumed two beers. Lopp

performed and failed field sobriety tests, and when asked to take a preliminary breath

test, Lopp said to Koenen, “It’s going to come over. I don’t want to be arrested.”

Koenen obtained a search warrant to obtain a blood sample from Lopp, and testing of the

sample revealed that Lopp’s alcohol concentration was .13.

       Lopp was charged with two counts of first-degree DWI under Minn. Stat.

§ 169A.20, subd. 1(1), (5) (2012). Lopp made a pretrial motion to dismiss the charges

and suppress evidence obtained during execution of the search warrant, arguing that

Koenen lacked (1) a reasonable, articulable suspicion for the traffic stop; (2) probable

cause for the arrest; and (3) probable cause to obtain the search warrant to obtain his

blood sample. Following a hearing, the district court denied the motion.

       The parties then appeared in district court for trial. At the beginning of the trial,

Lopp’s counsel told the court that the trial was to be “a stipulated facts trial per Rule 26

of the Minnesota Rules of Criminal Procedure, formerly called a Lothenbach procedure,”

and the prosecutor told the court that the parties were “stipulating to the complaint, all the


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reports, and the video.” The district court clarified that the purpose of the proceeding

was “to preserve appellate review of a pretrial ruling,” and defense counsel agreed.

       Lopp then waived his rights to a jury trial, to testify at trial, to have defense and

prosecution witnesses testify at trial, and to cross-examine the prosecution witnesses.

The district court asked Lopp, “[D]o you understand that there was a pretrial issue, and

that pretrial issue was that of probable cause?” Lopp said that he understood. The

district court also described the pretrial issue that would be before the appellate court as

the “determination of probable cause or suppression of evidence,” and Lopp said that he

understood.

       The district court found appellant guilty on both DWI counts and imposed an

executed prison sentence on one count. This appeal followed.

                                     DECISION

       Lopp seeks reversal of his conviction and remand for a new trial, arguing that the

district court failed to explain to him that all three pretrial issues were preserved for

appeal and failed to obtain the prosecutor’s personal acknowledgment regarding the

dispositive pretrial issues as required under Minn. R. Crim. P. 26.01, subd. 4.

Respondent State of Minnesota argues that Lopp waived his right to a jury trial and

agreed to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3.

       Although Lopp’s counsel told the district court that the trial was to be “a stipulated

facts trial per Rule 26,” neither party specified whether the trial was to be conducted

according to subdivision 3 or subdivision 4 of rule 26. But Lopp requested a court trial

after the district court denied his pretrial motion to dismiss the charges and suppress


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evidence, and, when accepting Lopp’s jury-trial waiver, the district court specifically

asked whether the purpose of the proceeding was “to preserve appellate review of a

pretrial ruling,” and defense counsel agreed that was the purpose.

       The procedure under Minn. R. Crim. P. 26.01, subd. 3, applies when the parties

agree that a determination of the defendant’s guilt may be submitted to and tried by the

district court based on stipulated facts. The procedure under Minn. R. Crim. P. 26.01,

subd. 4, must be used to preserve a specified pretrial issue for appellate review and

applies when the parties agree that the district court’s ruling on the pretrial issue is

dispositive of the case or makes a contested trial unnecessary and submit the case for

determination by the district court based on a stipulation to the prosecutor’s evidence.

       It is apparent that the procedure the parties intended to follow was the procedure

under Minn. R. Crim. P. 26.01, subd. 4. The court trial occurred after the district court

issued its pretrial ruling denying Lopp’s motion to dismiss the charges and suppress

evidence, the district court specifically determined that the purpose of the trial proceeding

was to preserve appellate review of a pretrial ruling, and the parties stipulated to the

prosecution’s evidence, rather than to specific facts. All of these facts indicate that

Lopp’s counsel incorrectly described the procedure as a stipulated-facts trial. We will,

therefore, review the court trial as a proceeding under Minn. R. Crim. P. 26.01, subd. 4.

       “The interpretation of the rules of criminal procedure is a question of law that we

review de novo. We interpret court rules in accordance with the rules of grammar and

give words and phrases their common and approved usage.” Dereje v. State, 837 N.W.2d

714, 720 (Minn. 2013) (quotation and citation omitted), cert. denied, 134 S. Ct. 1772


                                             4
(2014). “In construing a procedural rule, we consider both the plain language of the rule

and its purpose.” State v. Burdick, 795 N.W.2d 873, 875 (Minn. App. 2011).

       Minn. R. Crim. P. 26.01, subd. 4, provides, in part:

                     (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.

                        ....

                     (e)    The defendant must stipulate to the
              prosecution’s evidence in a trial to the court, acknowledge
              that the court will consider the prosecution’s evidence, and
              that the court may enter a finding of guilt based on that
              evidence.

                     (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.

The purpose of the rule is to promote efficient 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); see State v. Knoll, 739 N.W.2d 919, 922




                                              5
(Minn. App. 2007) (explaining that procedure set forth in Minn. R. Crim. P. 26.01, subd.

4, was formerly known as a Lothenbach trial).

       If a district court fails to “strictly comply” with the waiver requirements of rule

26.01, “the subsequent conviction must be reversed.” Knoll, 739 N.W.2d at 921; see

State v. Antrim, 764 N.W.2d 67, 71 (Minn. App. 2009) (reversing and remanding for

invalid waiver in a rule 26.01, subd. 4 proceeding, requiring strict adherence to rule

requirements); State v. Bunce, 669 N.W.2d 394, 398 (Minn. App. 2003) (reversing and

remanding because defendant failed to personally waive his right to a jury trial before the

case was submitted to the district court in a Lothenbach proceeding), review denied

(Minn. Dec. 16, 2003).

       In his pretrial motion to suppress evidence, Lopp argued that there was not (1) a

reasonable, articulable suspicion of criminal activity to support the traffic stop;

(2) probable cause for the arrest; and (3) probable cause to obtain the search warrant to

obtain his blood sample. Lopp argues that the district court failed to strictly comply with

the requirements of Minn. R. Crim. P. 26.01, subd. 4, because it failed to explain that all

three of these pretrial issues were preserved for appeal.

       Whether there was a reasonable, articulable suspicion of criminal activity to

support the traffic stop was not identified as a pretrial issue during the exchange between

Lopp and the district court at trial. Consequently, Lopp did not acknowledge that this

pretrial issue was dispositive, as required under Minn. R. Crim. P. 26.01, subd. 4(c). And

the prosecutor did not make any acknowledgment that any pretrial issue was dispositive




                                             6
or that a trial will be unnecessary if Lopp prevails on appeal, as required under Minn. R.

Crim. P. 26.01, subd. 4(c).

       Respondent argues that there was an understanding through off-the-record

discussions between the parties that all three pretrial issues would be considered

dispositive if Lopp prevailed on appeal. But Minn. R. Crim. P. 26.01, subd. 4(g),

provides that “[t]he defendant and the prosecutor must make the preceding

acknowledgments personally, in writing or on the record.”         Consequently, it is not

sufficient if the parties simply reach an understanding as to what pretrial issues are

dispositive; the parties must acknowledge the understanding in writing or on the record.

See Antrim 764 N.W.2d at 70 (stating that defendant’s rule 26.01 waiver must be

“personal, explicit, and in accordance with [the] rule” (quotation omitted)). Respondent

concedes that neither form of acknowledgment occurred.

       In Burdick, this court ruled that a stipulation to proceed under rule 26.01, subd. 4,

was invalid when the parties failed to acknowledge that the pretrial issue was dispositive.

795 N.W.2d at 876-77; see also Knoll, 739 N.W.2d at 921-22 (reversing when required

acknowledgements were deficient in Lothenbach proceeding, including defendant’s

waiver of rights to testify, confront witnesses, and subpoena favorable witnesses).

Similarly here, because the parties failed to comply with the rule’s strict requirements,

the proceeding under rule 26.01, subd. 4, is invalid. We therefore reverse appellant’s

conviction and remand for further proceedings.

       Reversed and remanded.




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