Monday, December 8, 2014

Police Interrogation After Initial Court Appearance & Appointment of Counsel Did Not Violate Either Sixth Amendment or Professional Conduct Rules

State v. Ware, Minn.Ct.App., 12/8/2014.  Mr. Ware’s girlfriend called the police to report that Mr. Ware  had assaulted her.  The investigator assigned to the case got to work on it the next day and four days after that he sent a recommendation to the prosecutor that Mr. Ware be charged.  Meantime,  Mr. Ware kept pestering the police department with phone calls in which he said that he wanted to come in and talk.  Mr. Ware finally just went down to the police station where officers promptly arrested him.

The prosecutor filed a criminal complaint, Mr. Ware made his initial appearance on that Complaint, and the court appointed him a lawyer.  Two days later, the investigator showed up at the jail to interrogate Mr. Ware.  Mr. Ware listened through the Miranda warning, signed the waiver and then made lots of admissions.  He did not tell the investigator that he either had an attorney or wanted the attorney to be present.  The investigator made no effort to determine whether Mr. Ware had already been arraigned on the criminal complaint and had counsel appointed.  Rather, he chose to believe, because it was most convenient, that Mr. Ware was in jail on a probation violation.  A riff on The Ostrich Instruction.

Mr. Ware moved to suppress his statement to the investigator because the investigator had not first contacted defense counsel and because he should have known that Mr. Ware was represented.  The trial court concluded that the prosecutor had been totally out of the loop and that it was “questionable” whether the investigator knew that Mr. Ware was represented.  The trial court denied the suppression motion.

And the court of appeals affirms.  A defendant, the court says, may waive the right to counsel whether or not he is already represented by counsel.  If the state proves that the waiver was valid – that is, it was a knowing, intelligent and voluntary act – then the statement is admissible.

Mr. Ware also complained that the investigator’s interrogation violated a rule of professional conduct that prohibits an attorney from interviewing a represented defendant without opposing counsel’s presence or consent.  There was no proof that the prosecutor had any contact with Mr. Ware without defense counsel’s presence or consent.  So, to come within this rule of professional conduct, the prosecutor either had to have ordered or ratified the interrogation.  Because the prosecutor had no knowledge of the interview until it was concluded he neither ordered nor ratified the interrogation.

Wednesday, November 19, 2014

Court Rejects Claim That Recanted Testimony Entitled Petitioner to New Trial

Ortega, Jr. v. State, Minn.S.Ct., 11/19/2014.  Mr. Ortega, Jr. filed this post conviction petition which claimed that some of the state’s witnesses had recanted their trial testimony.  A bit more about the circumstances of this murder conviction are available here.  In support of his petition, Mr. Ortega, Jr. submitted an affidavit which said that another of the state’s witnesses had regretted the way he had testified, and had felt pressured to put more blame on Mr. Ortega, Jr. than he deserved.  Also, the affidavit said that this other witness said that Mr. Ortega, Jr. had acted in self defense.

The post conviction court denied the petition without a hearing.  Chief Justice Gildea, for the full court, affirms.  The court concludes that Mr. Ortega, Jr. had not shown that it might have made a difference to the jury’s verdict if the recanted testimony had not been presented at trial.  This is because the court believed that there was “significant additional evidence” of Mr. Ortega, Jr.’s guilt.

Post Conviction Claim of “Newly Discovered Evidence” Consisting of Testing Deficiencies of Crime Lab is Time Barred

Roberts v. State, Minn.Ct.App., 11/17/2014.  Back in 2005, Mr. Roberts pled guilty to a drug offense.  During what was described as a “routine traffic stop” officers smelled a “strong odor” of marijuana emanating from within Mr. Roberts’ car and then they saw a small plastic bag that turned out to have forty-nine individually wrapped rocks of suspected crack cocaine fall out of his pants.  The St. Paul crime lab tested twenty-one of the rocks, all of which tested positive for cocaine.

When the story broke about the troubles with the St. Paul crime lab Mr. Roberts filed a post conviction petition asking to withdraw his guilty plea.  In his petition he did not, however, claim that what the crime lab had tested in his case was not cocaine.  Instead, he summarized the various problems that had come to light at the lab and said something about the testing program no longer being generally accepted in the scientific community.  The post conviction court denied the petition without a hearing.

That court said, as Mr. Roberts conceded, that his petition was beyond the two year limitations period and so the petition had to meet one of the exceptions to that limitations period.  Mr. Roberts maintained that two of the exceptions applied:  newly discovered evidence, and interests of justice. Both the post conviction court and the court of appeals reject each of these claims.

Now, a petition that asserts one of these exceptions has to be filed within two years of the date the claim arises.  A claim arises when you knew or should have known that the claim existed.  Mr. Roberts knew back in 2005 that the state’s case depended in large part on the lab testing.  He knew that the lab had concluded that all those rocks – well, at least twenty-one of them – contained cocaine and yet he neither challenged that conclusion nor sought independent expert testimony to rebut it.  Another impediment for Mr. Roberts is that none of that stuff about the general deficiencies of the crime lab established that he was innocent, which he must do under the newly discovered evidence exception. 

The other exception, interests of justice, is also of no avail to Mr. Roberts.  Although the court recites a litany of reasons, the real fear is that if Mr. Roberts is allowed to reopen his nine year old conviction on the basis of generalized concerns about the crime lab, then, truly, the horses are out of the barn.

Monday, November 3, 2014

Introduction of Computer Generated Data Does Not Violate Confrontation Clause

State v. Ziegler, Minn.Ct.App., 11/3/2014.  These days, if you take your car to a mechanic, odds are that she will plug your car into a computer.  The mechanic’s computer chats up your car’s computer and a few hundred dollars later there’s a suggestion to replace the air filter.  So, what if instead of the mechanic’s computer chatting up your car’s computer it’s the state patrol’s computer?

Ms. Ziegler set out to do, not sure just what, to a Ford Focus that had just passed her and then just barely passed the car in front of her.  She gave chase, then moved into the oncoming lane to pass the Focus.  The Focus sped up to keep that from happening so now the two cars are drag racing down the highway.  Problem is, there’s another car coming right at Ms. Ziegler.  By the time the Focus relents and lets Ms. Ziegler back into the correct lane it’s too late; she and the Focus collide and end up in the ditch. 

The state charged her with three counts of criminal vehicular operation.  During the trial, the state called a crash reconstructionist; his testimony relied, in part, on data that another officer had collected from the computer in Ms. Ziegler’s car.  Essentially, the car’s computer spilled the beans into a software program.  The software program crunched the numbers and then spit out a report totally without any other human intervention.  From that report, along with his other reconstructing, the reconstructionist testified about the speed and braking actions of Ms. Ziegler’s car in the final seconds before the crash.

Ms. Ziegler objected to all this.  She said that the data from her car was hearsay and that its admission at her trial violated her right of confrontation as currently understood from Crawford and its progeny.  Both the trial court and the court of appeals disagreed with that assertion.  The court of appeals adopts the conclusion of several federal appeals circuits that “statements” that are within the purview of the confrontation clause of are those of humans, and not computers.  So, for instance, a chemist’s written report that recites the readings from the testing instrument is admissible while the chemist’s conclusions that those readings mean that the tested substance is cocaine is not.  For Ms. Ziegler, the speed and braking data is not hearsay, but the conclusions drawn from that data by the reconstructionist were subject to cross examination.  The data are not testimonial statements at all and thus do not implicate any confrontation concerns. 

Thursday, October 30, 2014

Sentencing Errors Require Remand for (Partial) Resentencing

State v. Crockson, Jr., Minn.Ct.App., 9/22/2014.  A jury convicted Mr. Crockson, Jr. of two counts of burglary and two of three assault charges.    Mr. Crockson, Jr. and three juveniles had gone over to T.C.’s place, where they also found C.C. and D. H.  In fact, it was C.C. who opened the door and let everyone in.  C.C. had sold Mr. Crockson, Jr. a cell phone, but Mr. Crockson, Jr. accused C.C. of not giving him the phone’s correct PIN number.  The two argued over this and when they reached an impasse on whether this was true or not one of the juvenile’s handed Mr. Crockson, Jr. a revolver, which he placed to C.C.’s head, one assumes to move the discussion to a more satisfactory conclusion.  Mr. Crockson, Jr. then directed the juveniles to assault D.H., which they did.

Near the end of the trial, the trial judge permitted the state to amend the complaint, which had charged that Mr. Crockson, Jr. was subject to an enhanced sentence for the assaults because he was a felon in possession of a firearm.  The amendment changed the basis for the enhanced sentence to second or subsequent offense involving a firearm.  The state’s proof, however, only established that Mr. Crockson, Jr.’s prior assault conviction had involved a “dangerous weapon” rather than proof of a firearm. 

On appeal, Mr. Crockson, Jr. mostly argued about the sentence.  Before that, however, he argued that C.C. was not in “lawful possession” of the apartment; that is, she lacked a legal right to exercise control over the premises, including deciding who gets to come in and who has to leave.  Mr. Crockson, Jr., seemed to want to have his proverbial cake ad eat it too.  If C.C.lacked the authority to throw Mr. Crockson, Jr. and the juveniles out, then the burglary element, “unlawful entry,” which includes overstaying your welcome and getting thrown out, isn’t proven.  Thus, no burglary.  But, if C.C. couldn’t throw everyone out then she could not invite them in, either.  Which suggests that they were what?  Alas, the court avoids this existential conundrum by concluding that because C.C. was living at T.C.’s apartment at the time with T.C.’s permission then she had authority to admit and deny entrance.

The trial court adjudicated Mr. Crockson, Jr.’s guilt on both burglary convictions, even though everyone agreed that the two were part of a single course of behavior.  This was a mistake that the state conceded.  The appellate court lectures the trial court on the proper drill in this situation, which is to accept both guilty verdicts but to adjudicate guilt and impose sentence on only one of the two guilty verdicts. 

Because the state failed to prove that Mr. Crockson, Jr.’s previous conviction involved a firearm – a “dangerous weapon” being too amorphous - the appellate court vacates the assault sentences and remands for resentencing without regard to the mandatory minimum sentence of sixty months.  A victory of sorts – it moots the business about the end of trial amendment of the complaint - but not one that anyone’s going either to celebrate or lose sleep over; the sentence on the burglary was a third longer in duration.

Tuesday, October 28, 2014

A Stay of Adjudication Under Minn.Stat. 152.18 Starts The Two Year Limitations Clock

Dupey v. State, Minn.Ct.App., 10/27/2014.  Mr. Dupey pled guilty to a fifth degree drugs crime.  The trial court did not enter a judgment of guilty but, instead, deferred further proceedings and placed him on probation.  Minn.Stat. 152.18.  Some four years later, Mr. Dupey petitioned the court for post-conviction relief, asking to be allowed to withdraw his guilty plea.  (In the interim he had violated probation and had a prison sentence imposed.)  A post conviction petition must be filed within two years of of entry of judgment of conviction or sentence if no direct appeal has been filed.  Minn.Stat. 590.01, subd. 4.  The post conviction court summarily dismissed the petition because it had not been filed within this two year limit.

Mr. Dupey said, no, the two years doesn’t start until the trial court revoked the stay of adjudication, and that counting from that date he beat the clock by exactly one day.  The court of appeals rejects this interpretation, saying  that a stay of adjudication is itself a “sentence.”  The court of appeals reaches this conclusion, in part, by reliance upon State v. Lee, 706 N.W.2d 491 (Minn. 2005) where the state and the defense argued exactly the opposite of what they are arguing here for Mr. Dupey.  This is, in Lee, the defense said that a stay of adjudication “is more like a sentence than it is like a pretrial order;” and the state said that “a sentence requires a conviction and in the absence of a conviction there is no sentence.”  A year later, the supreme court issued an Order – not an opinion – that said that appeals from stays of adjudication in felony cases were to be treated as appeals from sentencings.  And, back in 2001, the court of appeals had said:

Logic dictates that whether a district court (1) executes a sentence and incarcerates a person, (2) stays execution or imposition of a sentence coupled with terms of probation that may include incarceration up to 12 months, or (3) stays adjudication of guilt but imposes a sentence consisting of terms of probation that may include incarceration up to 12 months, that each disposition is a sentence.

The court of appeals affirms the summary dismissal.

Trial Court Did Not Abuse Its Discretion By Declining To Depart From Presumptive Prison Sentence For a Defendant With Serious Mental Illness and Instead to Require Him To Complete Treatment Program

State v. Abdi, Minn.Ct.App., 10/27/2014.  Mr. Abdi entered an Alford plea to assault in the first degree.  At sentencing, Mr. Abdi asked the court to place him on probation and to require that he successfully complete an “appropriate supervised alternative living program having a mental health treatment component.”  Minn.Stat. 609.1055.  In support of that request, he presented testimony from the director of the treatment program who had this to say about that facility:

(1) the program has never had a resident who was sent there on probation by the criminal justice system; (2) about 50% of the residents have bipolar disorder; (3) the residents are on medication; (4) residents who are not compliant with their medication regimen are discharged; (5) residents stay an average of one year and eight months; (6) whether a resident is ready to leave is determined by the staff and the residents’ psychiatrists; and (7) nothing can be done to require residents who have chosen to leave the program to return to it.

Based on this description, and on testimony from Mr. Abdi’s psychiatrists, the trial court concluded that this treatment program was not sufficiently suitable.  The trial court also concluded that Mr. Abdi posed a serious risk to public safety, something the statute specifically requires the trial court to consider. 

Sunday, October 26, 2014

“Plain Error” Is To Be Determined at the Time of Appeal

State v. Kelley, Minn.S.Ct.,  10/22/2014.  Two trials occur more or less at the same time.  In each, the trial judge gives an instruction on accomplice liability without objection.  Each defendant is convicted and appeals that conviction.  Each appeal makes the claim that the instruction on accomplice liability was incorrect and was thus “plain error” under that doctrine.  One of the appeals goes just a bit faster than the other, resulting in an opinion that says that the instruction was erroneous but not “plain error.”  A few days later, the second appeal is decided.

That’s Mr. Kelley.  The not existential question is at what point in the litigation should the appellate court determine whether an error is “plain error.”  The error was not “plain” at the time of trial.  The error was not “plain” at the commencement of the appeal.  The error became “plain” only upon the issuance of the first appellate opinion. 

Notwithstanding all that, Justice Dietzen, writing for everyone on the court but Justice Stras, pronounces that the point in the litigation at which to determine whether an error is “plain error” is on appeal.  Mr. Kelley’s error is thus “plain error” because of an earlier opinion that changed the law on what an accomplice liability instruction is supposed to look like.

Justice Stras says that adoption of a “plain at the time of appeal” rule just encourages defense counsel to sit mute whenever she thinks that the trial judge is even remotely messing things up, in the hopes that a “plain at the time of appeal” analysis will get her client a new trial.  It’s also just plain unfair.  The majority, on the other hand, says, yes, it’s rule may, indeed discourage timely objections at trial.  That’s not the point, however, of having a “plain error” mechanism.  That mechanism is to provide a qualified “safe harbor” to un-objected to errors.  Also, an appellate court out to be applying the law in effect at the time it renders its decision, which is exactly what the United States Supreme Court had concluded in Henderson v. United States, ___ U.S. ___, 133 S.Ct. 1121 (2013).

And Mr. Kelley?  He could not satisfy all of the requirements of the “plain error” rule.  Conviction affirmed. 

Wednesday, October 22, 2014

Trial Court Abused Its Discretion By Departing Dispositionally in a CSC Sentencing

State v. Soto, Jr., Minn.S.Ct., 10/22/2014.  Here’s how Justice Lillehaug begins this sentencing opinion:

In sentencing, district courts have a great deal of discretion. Rarely do we hold that it has been abused. But rarely is not never. This is such a rare case.

This is not going to go well for Mr. Soto, Jr.  An odd assortment of four justices – Lillehaug, Dietzen, Stras, and Wright, team up to make sure that Mr. Soto, Jr. does his twelve years for first degree criminal sexual conduct.  The majority concludes that the trial court abused its discretion by placing Mr. Soto, Jr. on probation; it reaches this result mostly by flat out disagreeing with the conclusions of the trial court and by fly specking the trial court’s verbiage.  For instance, the trial court found that Mr. Soto, Jr. was “amenable to probation” instead of finding that he was “particularly amenable to probation.”  Really. 

Justice Lillehaug reels off a list of prior opinions where the court’s language about amenability to probation included the adverb, “particularly”.  Justice Page, joined by Chief Justice Gildea and Justice Anderson, point out, however that  the court has never previously required that the trial court “say the magic words” in order to avoid getting reversed.  This is just more trial court bashing from a court that only has to take cases when it wants to do so, has no ninety day deadline for issuing opinions, and can take forever to fine tune its verbiage. 

To support its determination that Mr. Soto, Jr. was amenable to probation, the trial court pointed to these factors:  the psychosexual evaluation concluded that Mr. Soto, Jr. was an appropriate candidate for its outpatient treatment program; Mr. Soto’s age (37); the lack of very many “serious crimes” on his record; the role that alcohol played in the offense; Mr. Soto’s respectful attitude in court; the offense was an outlier, and he had some family support.  The majority then systematically takes nearly all of those factors apart, not because they are improper factors to consider in determining amenability but because of what the trial court did with them.

Start with the psychosexual evaluation.  The “mere fact” that the report reached a particular treatment recommendation “does not necessarily justify departing.”  Fair enough had the majority stopped there.  But, there’s more.  Even though it’s not the job of the psychosexual evaluator to weigh in on whether to place Mr. Soto, Jr. on probation, that’s apparently exactly what the majority wanted the evaluator to do.   Not having done so leads the majority pretty much to toss the evaluation all together:

There is a large and crucial step missing between saying that Soto is an appropriate candidate for outpatient treatment and concluding that he is “particularly amenable to individualized treatment in a probationary setting.

The majority conceded that in general the other factors that the trial court recited – age, prior record, attitude while in court, and support of friends and family – are all relevant to determining if a defendant is particularly amenable to probation.  Again it just didn’t like the conclusions that the trial court drew from those factors.  Take age.  At  37, the trial court thought that Mr. Soto, Jr. still had an opportunity to correct his behavior.  The majority, however, rejected this observation for two reasons:  “age” means “young, like twenty-something; and if a defendant gets a break for being 37, then where do you draw the break line?  Sixty may be the new forty but thirty-seven won’t get you a departure.

The majority says that prior record, by itself, is not a proper basis for departure, but it’s okay for the trial court to rely on Mr. Soto’s prior record to support its belief that he could correct some of his behaviors.  But, again, the majority just didn’t agree with that observation by the trial court and so, as Justice Page points out, the majority substitutes its conclusion for that of the trial court.

Although the trial court didn’t mention remorse or cooperation with the police, the majority does not say, as the state wanted it to say, that expressing remorse is a prerequisite to finding that a defendant is particularly amenable to probation. Being respectful in court is a legitimate factor but the majority didn’t think it outweighed “other relevant considerations.”  The majority agreed with the trial court that Mr. Soto’s family support and his status as a father are relevant factors in determining amenability.  While these facts cannot, themselves, justify a departure, they can support a finding of amenability.

The majority was annoyed that the trial court had not addressed either Mr. Soto’s culpability or whether public safety would be served by departing.  Again, Justice Page points out that the court had never required a trial court to address these factors; rather, the could has only said that such factors are relevant considerations.  The majority does not hold that trial court must consider culpability and public safety, but clearly the majority is signaling to the trial bench that it would look favorably on plugging both culpability and public safety into the algorithm for determining amenability, and, best of all worlds, adding those factors to hold down the number of departures. 

The dissent’s view of all this is best summed up with this observation:

While another trial court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the “ ‘rare case’ warranting our intervention with the [trial] court’s discretion.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). In effect, here, the court improperly “substitute[s] [its] own judgment for that of the trial court.” Spain, 590 N.W.2d at 88.

Tuesday, October 21, 2014

“Sentencing Package” Doctrine Applies to Modification of Length of Unchallenged Sentence on Remand

State v. Hutchins, Jr., Minn.Ct.App., 10/20/2014.  A jury convicted Mr. Hutchins, Jr. of third degree criminal sexual conduct and first degree burglary, a “single behavioral incident.”  The court imposed a sentence of 130 months on the criminal sexual conduct conviction, and a concurrent sentence of 105 months on the burglary.  The sentence of 130 months was an upward durational departure.

Mr. Hutchins, Jr. successfully appealed this sentence.  The appellate court said that the grounds for the upward durational departure on the CSC conviction were invalid.  The court told the trial court to do one of three things:  impose the presumptive sentence, impose permissive consecutive sentences, or empanel a resentencing jury. 

On remand, the trial court left the 105 month sentence on the burglary intact but imposed a permissive consecutive sentence of 41 months on the CSC.  Total sentence:  146 months.  Mr. Hutchins, Jr. successfully appealed again.  This time, the appellate court told the trial court to impose either the presumptive sentence or a permissive consecutive sentence, but with the total sentence not to exceed 130 months.

On the third try, the trial court retained the 41 months sentence on the CSC and reduced the burglary sentence from 105 months to 89 months.  Total sentence:  130 months.

Mr. Hutchins, Jr. appealed again.  He said that the burglary sentence was immune from adjustment on remand because he had only appealed the sentence on the CSC conviction.  The appellate court points to the statutory authority of courts to review sentences, Minn.Stat. 244.11, subd. (b):

On an appeal . . . the court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court. This review shall be in addition to all other powers of review presently existing. The court may dismiss or affirm the appeal, vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence or order further proceedings to be had as the court may direct

So, just what is the “sentence” here.  The appellate court takes an expansive view of what the “sentence” was.  It goes with something called the “sentencing package” concept so that the sentence as a whole is up for grabs, at least under this statute.  So long as the trial court did what it was told:  impose either the presumptive sentence or a permissive consecutive sentence that does not exceed the original sentence of 130 months. 

Restitution Statute Does Not Authorize Court To Order a Defendant To Sell Assets In Order to Pay Up.

State v. Alexander, Minn.Ct.App., 10/20/2014.  Mr. Alexander pled guilty to motor vehicle theft.  The vehicle that he stole was a brand new BMW.  By the time police found Mr. Alexander driving it, there was extensive damage to the vehicle, and instead of the four or five miles of a factory new car it had some fifteen hundred miles on the odometer.  Following a sentencing hearing, the trial court ordered Mr. Alexander to pay some sixteen thousand dollars in restitution to the dealer.  The court also ordered Mr. Alexander to raise some of that sixteen grand by selling his 1992 Mercedes E Class.  And, the court ordered  him to “fully pay” the public defender for the “cost of representation.”  At the time, Mr. Alexander was an unemployed college student whose only asset was a twenty-one year old Mercedes.  We don’t know whether it was a diesel or gas vehicle.  So, he appealed this restitution order. 

And wins some and loses some.  He lost on whether the state had presented enough evidence to prove the amount of restitution.  The dealer offered evidence of the cost of repairs to the beamer, and also said that it had to discount the value of the car by some ten thousand dollars in order to sell it; at fifteen hundred miles it’s not a “new car” anymore.  The trial court accepted all that and the appeals court found no abuse of discretion in doing so.

Next, Mr. Alexander complained that the trial court did not consider whether he had the ability to pay restitution.  The restitution statute says that the trial court has to “consider the defendant’s ability to pay.”  The court substitutes incantation for consideration.  Say the magic words and everything’s fine.   Unless a defendant presents additional evidence on that ability, the court’s primary source of information on ability to pay is from the presentence investigation.  If the trial court says that it saw that part of the PSI and “considered it” that satisfies the statute’s “consideration” requirement.  The court can say, “Yeah, I know all that, you’re not working, homeless, blah, blah, blah, but I’m still ordering you to pay.” and not expect to get reversed on appeal.

The PD fee is a separate statute with a different requirement.  Mr. Alexander gets a partial win on the public defender fees.  This statute requires the court to hold a hearing to determine the cost of the PD services, and whether a defendant  has the ability to pay that fee.  First, the trial court here held no such hearing – a generalized sentencing hearing doesn’t count – so no one had bothered to put a price tag on those services. Second, unlike the restitution statute which does not require that the court make findings, the court is required to make findings on a defendant’s ability to pay a PD fee.  So, Mr. Alexander gets a remand for the court to tidy up the record on this.

Finally, the Mercedes.  The restitution statute does not authorize the trial court to order a defendant to liquidate assets in order to raise cash to pay restitution.  Unpaid restitution already may be enforced by a civil action to collect it.  If the BMW dealer want’s the cash from the sale of Mr. Alexander’s twenty-one year old Mercedes it will have to go through that process.

It won’t be surprising to see the supreme court review this if given the opportunity.  Is this an Axelgerg [implied consent statute does not list a necessity defense so Ms. Axelberg, driving drunk for her life, can’t raise it] case or an Ali [replace “shall” with “may” in the life without possibility of release sentencing statute] case?

Friday, October 10, 2014

Court Has Inherent Authority To Hold Miller Hearing To Determine Whether Juvenile Should Be Sentenced to Life Without Possibility of Release

State v. Ali, Minn.S.Ct., 10/8/2014.  When Mr. Ali was a few months shy of his eighteenth birthday he shot and killed three men during a robbery of the Seward Market in Minneapolis.  There were a couple of warm up issues addressed in this appeal but the main act was what to do about the sentences that the trial court meted out to Mr. Ali.  That sentence was life without the possibility of release for one of the homicides and two consecutive life with possibility of release after thirty years sentences for the other two homicides.  With the court’s answer it’s shaped up to be a really bad week for juveniles who have been sentenced to life without possibility of release.

First, the life sentence without possibility of release.  Two days before this Opinion came out, the U.S. Supreme Court declined to take up the question whether Miller v. Alabama, 132 S.Ct. 2455 (2012), which says that sentencing schemes that mandate life without parole for juveniles convicted of homicide is unconstitutional, is retroactive. In Minnesota that's the Roman Nose case, read here. Miller said that courts had to take into consideration the individual factors of the juvenile in front of them before locking them up forever. Admittedly, Tony Rome was a procedural mess but with Chambers inexplicably bowing out it was as good a Minnesota case as any to answer the retroactivity question.  The Supreme Court apparently had other cases before it on the retroactivity question, which they also declined to hear

At the time that the trial court sentenced Mr. Ali, the pertinent statute said that for anyone convicted of designated crimes the court “shall sentence a person to life imprisonment without possibility of release”.  Minn.Stat. 609.106, subd. 2(1) (2012).  So, without further ado that’s what the trial court did. 

Mr. Ali's case has been on appeal in one form or another ever since so there’s no retroactivity headache; he gets the benefit of Miller.  So, the question becomes, what is that benefit?  There were two competing answers to that question.  The state said to send the case back to the trial court to conduct an ad hoc Miller hearing.  Mr. Ali said, no, the last constitutional sentencing scheme before Miller called for a “regular life” sentence, that is, one that provided for the possibility of release after serving thirty years.  The Minnesota Supreme Court sides with the state and turns the trial court loose to craft some sort of "Miller" remedy that it sees fit.  It does so even though there’s no longer a constitutional statute that authorizes a judge to give a juvenile life without possibility of release. 

The majority, lead by Chief Justice Gildea, admits that the current statute, which says that the trial court shall impose a sentence of life without possibility of release for designated homicides runs afoul of Miller and is therefore unconstitutional. The last constitutional statute that applies to Mr. Ali’s crimes only authorizes a life sentence with the possibility of release after thirty years. In similar situations, the court has reinstated that last constitutionally valid statute. So, when they struck down a statute that allowed public defenders to decline representation of indigent defendants who had pleaded guilty and received less than the presumptive sentence, the court's remedy was to dig out the previous version of the statute and run with that. Deegan v. State, 711 N.W.2d 89 (Minn. 2006)   Not so, here, however.

The majority relies upon State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), the case that said that courts had the inherent authority to empanel sentencing juries to find aggravating factors after Blakely said that judges couldn’t do that anymore.  The dissenters, Justices Page and Stras, said that the flaw in that approach was that nothing in Blakely changed the trial court’s authority to impose an aggravated sentence; it just changed the method by which that could occur.  Miller, on the other hand, eliminated a a court’s authority to mandate life without release sentences for juveniles, and try as it might, the legislature had not come up with a new sentencing scheme.  The dissenters argued that the effect of the majority’s Miller remedy was to amend the statute by replacing “shall” with “may for juveniles” impose a life without possibility of release after some sort of ad hoc hearing

Both dissenting justices would reinstate the last constitutional statute,which would impose a life sentence with possibility of release after thirty years.  Justice Page points out that since Miller the legislature has wrestled with what statutory scheme should be enacted to comply with Miller but hasn’t enacted a single word.  Just what the legislature has in mind is a total mystery, including whether it still wants to authorize a life without possibility of release for juveniles.  Justice Page also strongly suggests that  it may be constitutionally required under Blakely to have a jury determine the facts on which the court then makes this release/no release decision. 

Justice Stras reprises most of what he’s previously had to say about inherent judicial power and then takes on the majority’s reliance on Chauvin:

The court’s conclusion that the remedy in Chauvin is similar to the remedy in this case makes an apples-and-oranges comparison. An apple sounds like an orange when it is described as a sweet-tasting fruit that grows on a tree and has seeds. And while it is true that these are shared characteristics of both fruits, the fact remains that an apple is not an orange, and this case is not Chauvin. The court is correct when it says that Chauvin provides authority for the proposition that a court has the power in certain circumstances to make a procedural decision about which factfinder—the judge or the jury—will make a particular finding, but the court’s comparison falls short when it uses Chauvin to support its chosen remedy in this case. Chauvin simply did not involve a situation in which we were required to change the Legislature’s prescribed sentence for an offense so that the statute could pass constitutional muster. In concluding otherwise, the court confuses apples and oranges.

This is all potentially bad enough for Mr. Ali, this ad hoc Miller hearing, but there’s more.  The court also sentenced Mr.Ali to two consecutive “regular life” sentences on the other two homicides.  This means that Mr. Ali has to serve sixty years before he could be considered for release on these two sentences.  This is known as a “virtual life” sentence.  And not one justice dissented from the majority’s conclusion that the trial court had not abused its discretion in stacking these two regular life sentences.  The U.S. Supreme Court has also so far been uninterested in addressing this “virtual life sentence” issue for juveniles. 

A closing note on one of the “preliminary acts,” having to do with the authentication of Mr. Ali’s Kenyan birth certificate.  From the very beginning of the litigation Mr. Ali disputed his age, arguing that he should not have been automatically certified to stand trial as an adult.  He submitted a birth certificate from the appropriate District Registrar in Kenya, which bore the registrar’s seal and a signature by the registrar.  The defense also submitted an unsigned letter from the Kenyan Embassy in Washington, D.C., which stated that the birth certificate “bears the Seal of the Registrar of Births and Deaths of the Republic of Kenya.”  Both the trial court and the supreme court reject the birth certificate as not self authenticated under Rule 902(3)A).  Unlike its willingness to read the homicide sentencing statute’s “shall” as really being “may” the court takes a very strict view of the requirements of Rule 902 for self authenticating a foreign document.