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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Beware the Lothenbach plea

Rule 26.01, subd. 4, of the Minnesota Rules of Criminal Procedure permits a criminal defendant to preserve the right to appeal a pretrial ruling, while avoiding an unnecessary contested trial, by entering what is generally referred to as a Lothenbach plea. The Minnesota Supreme Court recently cautioned the courts and criminal defense attorneys in their application of this rule in State v. Myhre, 875 N.W.2d 799 (Minn. 2016).

The Supreme Court pointed out that Rule 26.01, subd. 4, has replaced State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), as the method for preserving dispositive pretrial issues for appellate review. The Court noted that strict compliance with Rule 26.01, subd. 4, has never been required, but made very clear that counsel and the district courts need to be vigilant in properly applying Rule 26.01, subd. 4, rather than the procedures outlined in Lothenbach: “[I]t would be a mistake to minimize the errors that spawned this appeal. Lothenbach has not been the law in this state for more than 8 years. The fact that the district court and experienced attorneys are still attempting to employ a procedure long ago superseded by rule is, to say the least, concerning.” (Myhre, 875 N.W.2d at 809.) Justice Wright’s dissent also expressed that “the repeated noncompliance with Rule 26.01 by trial counsel and by district courts, in this and other cases, is deeply troubling. And for far too long, this court has afforded a concerning degree of tolerance that fosters both unauthorized Lothenbach procedures and disregard for the rules governing criminal procedure… Because our warnings over the last quarter century have gone unheeded, now is the time to say—and mean—that continued noncompliance with Rule 26.01, subdivision 4, will no longer be tolerated.”

In light of the court’s comments in Myhre, the procedures listed in Rule 26.01, subd. 4, must be very carefully followed to preserve pretrial issues for appellate review:

  • The defendant must maintain a plea of not guilty.
  • Both parties must acknowledge that the issue is dispositive, or that a trial will be unnecessary if the defendant prevails on appeal.
  • After an opportunity to consult with counsel, the defendant must waive the rights to a jury trial, testify at trial, have the prosecution witnesses testify in open court in the defendant’s presence, question the prosecution witnesses, and require any favorable witnesses to testify for the defense in court.
  • The defendant must stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence, and that the court may enter a finding of guilt based on that evidence.
  • The defendant must acknowledge that appellate review will be of a pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial.
  • The above acknowledgements must be made personally, in writing or on the record.
  • After considering the stipulated evidence, the court must make an appropriate finding. If the finding is of guilt, the court must make findings of fact on the record or in writing as to each element of the offense(s).

– Frederic Bruno & Samantha Foertsch

Bruno Law

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