Wednesday, November 11, 2015

Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates Does Not Violate Single Behavioral Incident Rule

State v. Bakken, Minn.Ct.App., 11/9/2015.  The state charged Mr. Bakken with seven counts of possession of pornographic works involving minors.  Mr. Bakken pled guilty to those seven counts. During the plea hearing, Mr Bakken admitted that he downloaded each of the seven images on separate dates and that each image was of a different minor. Over objection on double jeopardy and single behavioral incident arguments, the trial court sentenced Mr. Bakken on all seven counts.

The state first argued that because Mr. Bakken pled guilty without first objecting on double jeopardy and statutory grounds he waived those issues on appeal.  The appellate court said no, that a guilty plea does not bar raising a double jeopardy claim on appeal so long as that claim could be decided on the existing record.  

Rather than address the constitutional double jeopardy claim, the appellate court declared that the single behavioral incident statute, Minn.Stat. 609.035, provides more protection than the constitution and so confined its analysis to that statute.  A single behavioral incident requires a unity of time and place, and a single criminal objective.  Mr. Bakken satisfied the place - his computer - but not the time, since he admitted that he acquired each of the seven images on different dates.  The appellate court was also unwilling to say that his "personal sexual gratification" satisfied the single criminal objective requirement.  Permitting only one sentence when there are multiple incidents spread over time was too much for the court to sanction.

Wednesday, October 21, 2015

Court Applies Harmless Error Analysis To Witness Intimidation Claim

Colbert v. State, Minn.S.Ct., 10/21/2015.  Mr. Colbert is serving a life sentence without possibility of release for the murder of Robert Mitchell back in 2003.  This is his sixth post conviction petition.  He said that a "state actor" had threatened a defense witness before testifying, that there was newly discovered evidence that the state had altered an exhibit, that there was juror misconduct, and that all these errors combined entitled him to a new trial.  The post conviction court summarily denied the petition.

Justice Dietzen apparently wanted to write about the standard of proof by which to assess whether a witness intimidation claim by a government actor violated a defendant's right to present a complete defense.  The Justice assumed without deciding that the claim was neither time barred under the post conviction petition nor procedurally barred under Knaffla.  The question to be answered is whether the interference was "substantial," which is fact specific. The court applied this "substantial interference" test in State v. Beecroft, 813 N.W.2d 814 (Minn. 2012).  

So, for Mr. Colbert, assuming that there was error was it harmless or structural?  If structural then Mr. Colbert gets a new trial without having to show anything other than the error.  The court decides that harmless error is the correct standard so Mr. Colbert had to prove that a government actor interfered with a defense witness's decision to testify, this interference was "substantial" and that Mr. Colbert was prejudiced by the conduct.  Unfortunately for Mr. Colbert, he could not prove prejudice; it seems that the witness whom he claimed had been "substantially interfered" with readily testified for him, even hamming it up just a bit.  

The court concludes that the juror misconduct claim is procedurally barred under Knaffla because he knew about it at the time of his direct appeal and at the time of his previous post conviction petitions but failed without excuse to raise it. The court continues to dodge the question whether the "interests of justice" exception created by Knaffla survives the codification of Knaffla by the legislature.  

Finally, on the exhibit tampering claim, the court concludes that it has no merit, that the exhibit actually shows what Mr. Colbert said that it did not:

No "inherent Authority" to Summarily Impose Monetary Sanction on Attorney Who Fails to Appear for Scheduled Hearing

In re Crag E. Cascarano, Appellant, State of Minnesota, Plantiff v. Mason, Minn.Ct.App., 10/19/2015.  This isn't a criminal opinion, but a tail about a criminal attorney who had the misfortune to miss a scheduled court appearance before a judge who was apparently having a really bad day.  Not only that, the lawyer, Mr. Cascarano, thought he had the hearing covered by a colleague only the colleague forgot to mark his calendar.  When no one appeared on behalf of Mr. Mason the judge slapped Mr. Cascarano with one hundred ($100.00) dollars in "court costs".

Then things got ugly.  Mr. Cascarano got the chief judge of the district to disqualify the judge who'd imposed the "court costs" from presiding over the criminal trial, and to stay the one hundred bucks.  The chief also said that "court costs" could be imposed to punish an attorney's scheduling error in a criminal case only after compliance with applicable contempt statutes.  Well.  The judge who'd imposed the "court costs" shot back that the chief had exceeded his authority to stay the order imposing the "court costs" and ordered Mr. Cascarano to pay up "immediately."  The judge also said he wasn't "punishing" Mr. Cascarano but was relying on the court's "inherent authority."  Mr. Cascarano then had to run up to the court of appeals and get that court to stay enforcement of the "pay immediately" order.


Chief Judge Cleary rejects the trial court's claim of inherent power to impose "court costs" for accidentally screwing up a court appearance.  Call it what you like, Chief Judge Cleary said that the $100.00 was punitive because it was intended to punish Mr. Cascarano's failure to appear at a hearing.  This behavior did not occur in the trial court's presence so if it is contempt it is constructive contempt.  A charge of constructive contempt may not be punished summarily.  Rather, the state must prosecute constructive contempt at which the alleged contemnor is entitled to a trial by jury and proof beyond a reasonable doubt.  Whether Mr. Cascarano's failure to appear - or have a colleague appear in his stead - was contemptuous or excusable is a jury question.

Sunday, October 18, 2015

A Rule 27 Motion That Really Attacks the Underlying Conviction is Not a Request to "Correct Sentence" Under the Rule

Wayne v. State of Minnesota, Minn.S.Ct., 10/14/2015.  Over the years, Mr. Wayne has filed post convictions petitions nearly too innumerable to count.  This is number eight.  Mr. Wayne styled this one, "Motion for Correction of Sentence," hoping to sneak it in under Rule 27.03, subd. 9, which currently does not have a limitations term nailed to it.  Mr. Wayne, however, was too clever by half for both the trial court and for Justice Stras.

What Mr. Wayne was complaining about only tangentially had anything to do with his sentence.  He's serving a life sentence for the stabbing death of Mona Armendariz, back in 1987.  He said that the trial court had erred by failing to instruct the jury on a lesser-included offense and that this error eventually led to a sentence longer than was "authorized by law." Well, both the trial court and Justice Stras called Mr. Wayne out on this. Both said that what he was really complaining about was the manner in which the jury convicted him and not the manner in which the trial judge then sentenced him.  That made his pleading the equivalent of a post conviction petition, and that petition is barred by the two year limitations period unless Mr. Wayne can show an exception to it.

Because Mr. Wayne was hoping to fly underneath the post conviction statute's limitations radar his pleadings here never even mentioned either that statute or any of its exceptions.  Having failed to do so, there was no abuse of discretion by the trial court in summarily denying the request for relief.

Wednesday, October 14, 2015

Refusal to Submit to Warrantless DWI Blood Draw Unconstitutional

State v. Trahan, Minn.Ct.App. 10/13/2015.  Just when it looked like all this McNeeley/Bernard/Refusal/DWI litigation was winding down here comes another bender.  This time it’s a refusal to consent to a blood draw.  Mr. Trahan argued that the test refusal statute is unconstitutional as applied to him because it violates his substantive due process by criminalizing his refusal of an unconstitutional search of his blood.

Just a few months ago the supreme court said in State v. Bernard, 859 N.W.2d 762 (Minn. 2015) that a warrantless breath test is constitutional because it is a search incident to a lawful arrest.  Bernard, however, does not apply to refusal to submit to a blood draw.  And, even the state conceded here that a blood draw would not be justified under the search incident exception to the warrant requirement.  Instead, the state said that there were exigent circumstances, another exception to the warrant requirement.  State v. Stavish, ___ N.W.2d. ___ (Minn. 2015).  The court of appeals doesn’t agree, saying that the “totality of circumstances” for Mr. Trahan was nothing more than a garden variety DWI arrest.  In particular, the court declined to expand Stavish by saying that the two hour statutory time frame within which to acquire an exemplar was, itself, an exigency sufficient unto itself to obviate the need for a warrant.

Having found no justification for not obtaining a warrant, the court then looks at the substantive due process claim.  The right to be free from unreasonable searches is a fundamental right and is thus subject to strict scrutiny.  The court recognizes the state’s compelling interest in highway safety but concludes that the state has not shown that the test refusal statute is sufficiently narrowly tailored to serve that interest.  The state, the court said, has other viable options to address drunk driving:  ask the driver to submit to a breath test; prosecute for driving under the influence, which doesn’t require a chemical test; or get a warrant.  Thus, the court concludes:

We conclude that criminalizing the refusal to submit to a warrantless blood test “relates to the state’s ability to prosecute drunk drivers and keep Minnesota roads safe,” Bernard, 859 N.W.2d at 774, but it is not precisely tailored to serve that compelling state interest. It therefore fails strict-scrutiny review.

Judge Ross dissents.  He writes this lengthy libertarian opinion that he dearly hopes will be the springboard from which the Supreme Court will upend the majority’s fuzzy, feel-good reasoning.  Ross says that the majority’s insistence on a warrant for a blood draw makes the fourth amendment a sword instead of a shield.  Not only that.  The majority lets the fourth amendment back out onto the highways after the legislature had put it in the garage.  The refusal statute, it turns out, trumps the fourth amendment.  The statute empowers the drunken driver to “just say no” and there’s nothing the trooper can do about it.  The cost?  A mere sixty or so months in prison.

Sunday, October 4, 2015

Departure in Assault Conviction Based Upon Victim Injury Okay Where Defendant Has Prior Conviction Involving Injury

State v. Meyers, Minn.S.Ct., 9/30/2015.  A jury convicted Mr. Meyers of assault in the first degree for the stabbing injuries to the victim.  The trial court imposed an aggravated sentence based on this injury and upon Mr. Meyer's previous conviction in which that victim had been injured. Section II.D.2.b(3) says that a valid ground for departure exists when:
[t]he current conviction is for a [c]riminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a [criminal [s]exual [c]onduct offense or an offense in which the victim was otherwise injured.
The court of appeals upheld this sentence departure.  Read about that here.  Chief Justice Gildea, Justice Dietzen not participating, upholds the court of appeals although on more simplified reasoning.  The chief says that because the requirement for the previous conviction in which the victim was injured is not an element of the current offense, there is no violation of the rule that says that a departure can't be based on an element of the offense. State v. Osborne, 715 N.W.2d 436 (Minn. 2006).   Put another way, a departure can be based on an element of the offense so long as the legislature has tacked on another requirement to authorize the departure.  So, while the quantity of drugs alone can't support a departure, State v. McIntosh, 641 N.W.2d 3 (Minn. 2002), the quantity of drugs plus a finding that a defendant's past includes whatever the legislature chooses to use as an enhancer, does support a departure.

A CO 2 BB Gun is a "Firearm" Under Minn.Stat. 609.165

State v. Haywood, Minn.Ct.App., 9/28/2015.  The state charged Mr. Haywood under Minn.Stat. 609.135, subd. 1b(a) with possession of a firearm by an ineligible person, the "firearm" being a Walther CP99 Compact .177-caliber BB gun.  This BB gun's propellant is CO2 and is available over on Amazon for seventy bucks plus shipping.  Here's what the statute says:

Any person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both. 

There is no definition of "firearm."  In large part because of Justice David Stras, when there is no statutory definition of whatever word or phrase happens to be in play the appellate courts have run to their favorite dictionary.  It turns out that every dictionary that this panel of the court of appeals consulted - including Black's Law Dictionary - said that a "firearm" is a "weapon from which a shot is discharged by gunpowder."  Oops.

Alas, the problem for Mr. Hayword is a series of appellate opinions that have said that a "firearm" under various other provisions of Chapter 609 includes a CO2 BB gun.  State v. Seifert, 256 N.W.2d. 87 (Minn. 1977) (Section 609.11 enhanced sentencing provision for use of possession of a firearm includes CO2 BB guns.)  State v. Newman, 538 N.W.2d 476 (Minn.Ct.App. 1995) ("Firearm" in the Drive-by shooting statute, Minn.Stat. 609.66, includes CO2 BB guns).  State v. Fleming, 724 N.W.2d 537 (Minn.Ct.App. 2006) (Minn.Stat. 624.713, subd. 1(b), prohibiting possession of a firearm by a person convicted of a crime of violence encompasses CO2 BB guns).

It seemed that in each of those cases the court lamented the legislature's sloppy drafting by not including a comprehensive definition of "firearm."  The legislature's response was pretty much to leave well enough alone.   They either amended or enacted statutes having to do with "firearms" without providing the court's begged-for definition.  That being the case the courts presume that the legislature is adopting the court's interpretation.

These older Opinions that the court of appeals is relying upon predate the "law by dictionary" fad that the appellate courts are now caught up in.  So,Mr. Haywood may yet get another shot, so to speak, at getting his conviction overturned.

Sunday, September 13, 2015

Claims in Second Post Conviction Petition Barred Under Knaffla

Williams v. State, Minn.S.Ct., 9/9/2015.  Mr. Williams is serving  a sentence from a 1997 conviction for first degree premeditated murder.  He filed this, his second post conviction petition, in 2013 claiming that both his trial and appellate counsel were ineffective. The post conviction court denied the petition without a hearing. Justice Stras concludes that Mr. Williams' claims are procedurally barred.

Mr. Williams alleged that his trial counsel had been ineffective for failing to investigate an alternative perpetrator defense; and that his appellate counsel has been ineffective for not raising trail counsel's aforesaid ineffectiveness.  The post conviction court said that Mr. Williams could have raised these claims in his first post conviction petition and thus he could not raise them now under Knaffla. Justice Stras agrees with that conclusion.  Once again, the court declines to address the question whether the Knaffla exceptions survived the enactment of the statutory two year limitations periods with its own exceptions.  Mr. Williams also said that his mental illness prevented him from filing the claims within the two year limitations period.  The post conviction court said that Mr. Williams had been sufficiently competent to file a direct appeal, the first post conviction, and an appeal of that order.  Justice Stras affirms that conclusion.

Wednesday, September 9, 2015

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.Ct.App., 9/8/2015.  The state charged Mr. Fleming with possession of a firearm by an ineligible person, and with assault in the second degree.  Someone cut Mr. Fleming with a knife while the two were, one supposes, playing basketball.  In response, Mr. Fleming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.  Mr. Fleming pled guilty to both of these offenses.

The trial court imposed a 90 month sentence on the firearm possession conviction, stayed for eight years.  This represented a dispositional departure - probation - and a durational departure - 90 months instead of 60.  The court also stayed a 36 month sentence on the assault, concurrent with the other stayed sentence.  The court explained that the dispositional departure was because the victim had been the initial aggressor and Mr. Fleming had an imperfect self-defense claim.  The court explained the durational departure was because of the "unique seriousness" of the offense.  The court went on to say:
Going back to the caselaw and taking into account the general nature of the aggravating factors that may be considered, this court finds the danger to the general public— those innocent children, families, and community members in the area of Folwell Park—cannot be overstated. Bullets kill and maim. Bullets do not know their target, and can kill or maim unintended victims. Mr. Fleming’s actions threatened to harm or kill at least six people. And, as is readily apparent, his actions negatively impacted the lives of hundreds[, and] added to the steady drumbeat of negative reports of crime in North Minneapolis. Nothing good came out of Mr. Fleming’s actions. 
This might have been the end of the story except that subsequently Mr. Fleming violated certain conditions of his probation.  The court revoked the previously stayed 90 months sentence on the firearm possession charge, (after which Mr. Fleming demanded execution of the concurrent 36 month sentence.

Mr. Fleming appealed, reaching  back to the initial sentence and saying that the trial court made a mistake by the upward durational departure from 60 to 90 months.  Mr. Fleming agreed that his conduct created a greater than normal danger to the safety of other people, but said that he created this greater danger by committing the assault.  Case law says, Mr. Fleming said, that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.  State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996).

Well, that was true back in the '90's but the legislature changed the law in 2009 when it amended Minn.Stat. 244.10, subd. 5a(b):
Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.
The Court of Appeals says that this is the first judicial opinion applying this 2009 amendment.  The court concludes that the amendment means exactly what it says: it authorizes a departure based on any aggravating factor that arises from the same course of conduct as the felony sentencing offense.  Just to be sure, however, the Court also says that because multiple punishments are permissible for Mr. Fleming's convictions there is no prohibition against basing a departure on conduct underlying another conviction.  State v. Grampre, 766 N.W.2d 347 (Minn.Ct.App. 2009), review denied, (Minn. Aug. 26, 2009).

The court also examined the revocation, itself, and concludes that the trial court properly applied the Austin factors in revoking Mr. Fleming's probation.

Friday, August 28, 2015

Even a Wilful Violation of a Term of Probation Does Not Constitute Criminal Contempt of Court

State v. Jones, Minn.S.Ct., 8/26/2015.  Remember the business up in Crookston where the state was charging probation violators with contempt of court?  Refresh your memory here.  Justice Lillehaug affirms the opinion of the court of appeals that dismissed the contempt of court charge:
Interpreting both the contempt and probation statutes, we hold that a willful violation of a “term” of probation prescribed at sentencing does not itself constitute the crime of violation of a “mandate of a court” under the criminal contempt statute. 
The state brought contempt of court charges under Minn.Stat. 588.20, Subd. 2(4) which prohibits "wilful disobedience to the lawful process or other mandate of a court."  The question for the court to answer was whether a term of probation, itself, was an "other mandate of a court."  A "mandate," the court concludes, is at least a court order commanding compliance with a direction of the court.  Whether a probation "term" itself is a "mandate" is ambiguous.  The court resolves this ambiguity by observing that the probation statutes nowhere provide or even hint that a wilful violation of a term of probation is criminal contempt.