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State v. Ford6/7/2005
On appeal from conviction of first-degree criminal sexual conduct, appellant argues that (1) his right to a speedy disposition under the Interstate Agreement on Detainers (IAD) was violated; (2) the prosecutor's misconduct in obtaining a judge's removal distorted the adversarial process and requires reversal; (3) the victim's accounts of the incident were too inconsistent to support the conviction; and (4) in the alternative, that a remand is required for a post-conviction hearing on appellant's claim of ineffective assistance of counsel. Because we conclude that appellant waived timelines under the IAD, any misconduct on the part of the prosecutor was harmless error, the evidence was sufficient to support appellant's conviction, and appellant has failed to establish the need for a hearing on his claim of ineffective assistance of counsel, we affirm.
FACTS
Appellant Dwight Ford was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i); subd. 2(a) & (b) (2000) (use of force or coercion to accomplish sexual penetration of an adult female that caused personal injury ), and one count of criminal sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(c); subd. 2 (2000) (use of force or coercion to accomplish sexual penetration) in connection with an incident that occurred at the home of the victim, A.T., in May 2001. Appellant was in federal prison for a conviction of felon in possession of a firearm when he learned of the charges. Appellant's request for final disposition of the state charges was filed on November 6, 2002. Appellant's first appearance was on December 13, 2002, but trial did not occur until August 14, 2003.
Appellant, through counsel, requested some, caused some, and agreed to all of the several continuances of the pretrial hearings and trial dates that occurred in this case. On June 25, 2003, one of the trial dates agreed on by the parties, the retired judge who was assigned to the case discussed the case with counsel in chambers and indicated how he would rule on some of the issues. Based on appellant's understanding of that discussion, appellant waived his right to a jury trial. Respondent moved for a continuance due to appellant's last minute revelation of information about witnesses and his intent to assert the defense of fabrication. On June 27, the Scott County Attorney, in an ex parte discussion, asked the trial judge to recuse himself, and on June 30, the county attorney wrote a letter to the court administrator, copying the trial judge and appellant's attorney, indicating that the trial judge had informed the county attorney that he was voluntarily recusing himself.
A different judge presided at a June 30 hearing on the state's motion for a continuance. Defense counsel requested that this judge take the case and reasserted appellant's right to a jury trial, based on the change in judges. This judge explained that due to his schedule, the earliest trial date would be August 12 if he took the case. Defense counsel and appellant had a discussion off the record. On the record, with appellant present, defense counsel stated:
COUNSEL: Judge, I have spoken to [appellant] about the situation. I have also spoken to him about his right to have a speedy decision. At this point he would agree that August 12th date with Your Honor.
JUDGE: Okay.
COUNSEL: And we would waive any timelines.
JUDGE: Okay.
Based on this discussion, trial was set for August 12. Defense counsel then asked the judge to adopt the rulings on pretrial motions that the recused judge had indicated he would be
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