State v. ChengState v. Cheng
- Reporters:
- , ,
- Before:
- Anderson
OPINION
PAUL H. ANDERSON, Justice.Thе Ramsey County Attorney charged appellant, Mong Danny Cheng, with four counts of second-degree murder in connection with a July 1999 drive-by shooting in Saint Paul. Following a probable cause hearing, a Ramsey County District Court judge was assigned to handle Cheng’s trial and all further proceedings in the case. After failed plea negotiations, Cheng appеared in court and attempted to plead guilty to second-degree murder, which the court concluded he could do. Rather than allowing Cheng to plead guilty, the county attorney dismissed the charges and Cheng was released.
A month later, a Ramsey County grand jury indicted Cheng for first-degree murder, together with five other lesser counts arising out of the July 1999 shooting. The case was then reassigned to the same judge. The county attorney filed a notice to remove this judge under
Shortly after midnight on July 22, 1999, Peter Xiong and a group of other persons were sitting outside a Saint Paul residence. A minivan slowly approached the group and eight to ten shots were fired at the group from inside the minivan. The minivan then sped off. Peter Xiong was killed by a gunshot to the chest and four other persons were taken to the hospital with injuries from the gunfire. A confidential informant notified the Minnesota Gang Strike Force that appellant Mong Danny Cheng was one of the individuals involved in the shooting. After further investigation, Cheng was charged with four counts of second-degree murder in connection with Xiong’s death. 2 Cheng was arraigned on December 1, 1999, before Ramsey County District Court Judge Louise Dovre Bjorkman and on December 28 Cheng entered a not guilty plea at a probable cause hearing presided over by Judge Dale B. Lindman.
On January 6, 2000, Judge Judith M. Tilsen was assigned to handle all further proceedings involving the charges against Cheng, including trial. Neither party filed a notice to remove Judge Tilsen upon receiving notification of her assignment to the case. On March 9, 2000, a dispositional conference was held before Judge Til-sen. At this hearing, only scheduling matters were dealt with on the record; however, the parties acknowledge that other matters were discussed. In particular, Cheng claims that at this hearing the state gave notice of an intent to proceed to the grand jury to obtain a first-degree murder indictment. The next day, the state contacted Cheng’s counsel and discussed a plea agreement in which Cheng would plead guilty to one count of second-degree murder and receive a sentence at the low end of the guidelines range. The state also indicated that Cheng’s counsel would be free to discuss a sentence departure with the judge. After receipt of this offer, Cheng’s attorney expressed an intent to accept the plea agreement. On March 22, an assistant county attorney and Cheng’s attorney met with Judge Til-sen in her chambers to discuss resolution of the case. Cheng asserts that at this meeting the state restated its earlier offer to permit him to plead guilty to the most serious count on the complaint. Hе also asserts‘that the state agreed to recommend a sentence of 331 months, but that Cheng’s counsel could request a downward departure. No record was made of this conference.
On March 30, Cheng appeared at a hearing before Judge Tilsen, but the state was not present so the question of the plea was continued. Later that same day, the state informed Cheng’s counsel that it would counter any request by Cheng for a downward departure in sentencing by asking for an upward departure, but that it might still agree to a guidelines sentence. Five days later, the state informed Cheng’s counsel that it would no longer accept a guilty plea to second-degree murder and instead intended to seek a first-degree murder indictment from the grand jury. 3
The next day, April 5, Cheng appeared before Judge Tilsen and indicated that he was prepared to “plead guilty to the top
On May 3, 2000, Cheng was indicted on six counts arising out of the July 22, 1999 shooting: one count of first-degree murder during a drive-by shooting in violation of
On May 9, 2000, the statе filed a notice to remove Judge Tilsen under
Following this explanation, Judge Tilsen ruled that the notice to remove was not timely filed because she had ruled on substantive issues in the case. Judge Tilsen explained that there had been discussions about “the facts of the cаse, the possible admission of evidence, the possible negotiations, the possible number of months.” Judge Tilsen reiterated her earlier finding that the state had negotiated in bad faith. She also expressed concern about her perception of a pattern in the county attorney’s office of not negotiating in good faith, but then сlarified that this pattern was not the basis for her decision. Finally, she stated that the obvious reason for the
Following Judge Tilsen’s ruling that the notice to remove was not timely filed, the state contacted the district’s chief judge by letter to request that he appoint another judge to hear the case. In the letter, the state apprised the chief judge that he had a duty to assign a judge other than Judge Tilsen, that no kind of hearing was permitted on this matter, and that his duty was mandatory, not discretionary. The chief judge denied the state’s request, concluding that had the objection been for cause he would have heard The state’s motion.
The state then petitioned the court of apрeals for a writ of prohibition forbidding Judge Tilsen from hearing the case and a writ of mandamus requiring the chief judge to assign another judge to hear the case. The court of appeals issued a writ of prohibition as requested. The court concluded that after the indictment Cheng’s case was a new proceeding because when the indictment was sought, the state was required to present testimony to the grand jury, which qualified as an evidentiary hearing. State v. Chang [sic], No. C5-00-1004, No. C7-00-1005, slip op. at 2 (Minn. App. June 27, 2000).
In reaching its holding, the court of appeals followed the reasoning that we have used in civil cases involving removal under
On apрeal, Cheng requests that we hold that an indictment for a criminal offense that has been previously charged by complaint is not a new proceeding. He then argues that because the indictment does not create a new proceeding, it cannot revive a lapsed notice to remove a judge without cause or othеrwise permit the removal without cause of a judge who has already handled substantive issues in the case. Cheng asserts that the period for filing a notice to remove Judge Tilsen under
We review the issuance of a writ of prohibition by reviewing the underlying issue.
Cf. McClelland v. Pierce,
376 N.W.2d 217, 219 (Minn.1985) (stating that the question “is not the form of relief but rather the validity of the basis upon which [the relief! was awarded”).
Our inherent authority to ensure the effective functioning of the judiciary came into existence with the creation of the court.
Clerk of Court’s Comp. for Lyon County v. Lyon County Comm’rs,
308 Minn. 172, 176, 241 N.W.2d 781, 784 (1976). It is under this authority that we enact and interpret the rules of procedure governing our courts.
State v. Johnson,
514 N.W.2d 551, 553-54 (Minn.1994). The Rules of Criminal Procedure, and specifically
The relevant part of
As was illustrated in Erickson, we will narrowly construe the rule allowing for removal without a showing of cause. Id. at 485. Relying on civil cases, the court of appeals held that Cheng’s indictment following the dismissal of the complaint against him initiated a “new proceeding” to which a new right of removal without cause attaches. We disagree. We conclude that at this stage in the prosecution of Cheng, the right to remove Judge Tilsen without cause is no longer available. The sequence of events that led the state to file a notice to remove Judge Tilsen is such that we conclude that the indictment against Cheng was not a new proceeding for purposes of the removal rule.
Judge Tilsen was assigned to Cheng’s case for all further proceedings involving the charges against him, including trial. Neither party attempted to remove the judge within 7 days of their notice of this assignment. Judge Tilsen presided over a dispositional conference, scheduling discussions and extensive plea negotiations. Thereafter, the state notified the court that it intended to seеk an indictment from the grand jury. Judge Tilsen appears to have denied the state a continuance to take the case to the grand jury, provided reasons for her decision, and stated her intent to allow Cheng to plead guilty to second-degree murder. Instead of appealing the
Reversed and remanded.
Notes
. The state actually filed its notice to remove pursuant to
. Count I was murder in the second degree in violation of
. On appeal the stale maintains that conversations about possible plea agreements were only negotiations, but that if an offer had been extended, the state had the right to withdraw it.
. The full text of
(4) Notice to Remove. The defendant or the prosecuting attorney may serve on the other parly and file with the court administrator a notice to remove the judge assigned to a trial or hearing. The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing, but not later than the commencement of the trial or hearing. No notice to remove shall be effective аgainst a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice, except upon an affirmative showing of cause on the part of the judge. After a party has once disqualified a presiding judge as a matter of right, that party may disqualify the substitute judge only upon an affirmative showing of cause.