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.

Court Declines to Disapprove Requirement That Spectators Have Photo Identification In Order to Enter Courtroom

State v. Taylor, II, Minn.S.Ct., 8/26/2015.  A jury convicted Mr. Taylor, II of first degree murder and two counts of attempted first degree murder. Mr. Taylor, II drove his crew, alleged members of a gang, around looking for a rival gang member.  In what turned out to be a mistaken belief that the guys had found this rival, two of the guys got out of the car and started shooting.  One teenager died, one was wounded.  Neither was the rival gang member being sought.

Two of the three who were riding around with Mr. Taylor, II reached plea deals with the state and testified against Mr. Taylor at trial.  Three jail informants also testified against him.  Two jail phone calls by Mr. Taylor II were admitted into evidence: one in which he expressed regret for not bailing out and taking off; the other in which he seemingly discussed an alibi defense with his girlfriend.  Mr. Taylor, II also testified in his own defense.  He denied having anything to do with the shootings and he denied any gang affiliation.  In response, the state put up a gang expert who had examined two photographs already admitted into evidence without objection.  In one photo, Mr. Taylor, II appeared to be displaying a symbol associated with the gang that the state said he belonged to.  In the other he was displaying a sign that was disrespectful of the rival gang whose member they had been searching for on the night of the shooting

The jury convicted Mr. Taylor, II of all counts.  On appeal, he presented eight errors:
(1) it excluded from the courtroom members of the public that did not have photographic identification; (2) it excluded evidence supporting an alternative motive of the eyewitnesses; (3) it admitted testimony from a gang expert identifying Taylor as a gang member; (4) it gave jury instructions on aiding and abetting liability that did not include certain elements; (5) it did not sua sponte instruct the jury that appellant’s prior convictions could only be used for impeachment purposes; (6) it violated his right to a speedy trial; (7) it admitted a note protected by attorney-client privilege; and (8) it admitted prison phone call recordings.
The trial court established a set of rules for spectators at trial, one of which was to show photographic identification before being allowed entry into the courtroom.  Mr. Taylor, II did not object to this rule and there was nothing in the record by which to determine whether this identification rule was enforced and, if so, whether anyone who sought to enter the courtroom without a photo ID could not do so.  This was enough for Justice Lillehaug, with only Justice Page dissenting, to say, "No harm, no foul."

The court treated this photo ID requirement as a partial closure of the courtroom even though there was no proof that any closure actually occurred.  In past opinions, the court has disapproved the exclusion of a defendant's brother and cousin from the courtroom, State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007; and disapproved the exclusion of all spectators during the testimony of two minor victims of sexual assault, State v. Fageroos, 531 N.W.2d 199 (Minn. 1995).  In each of those cases the court had determined that the trial court had failed to make adequate findings to support the closure decision.  In two other instances, however, the court approved what it characterized as "partial closures" of the courtroom during a trial.  In State v. Brown, 815 N.W.2d 609 (Minn. 2012), the trial court had locked the doors during closing arguments but without clearing the place of spectators already there. And, in State v. Lindsey, 632 N.W.2d 652 (Minn. 2001), the trial court had excluded underage spectators.  In those cases, the supreme court had concluded that these sorts of partial closures were "too trivial" to amount to a violation of the defendant's Sixth Amendment right to a public trial.

Justice Lillehaug ducks the question whether the rule, itself, is a violation of a defendant's Sixth Amendment right to a public trial. The Justice, instead, reframes the issue to ask whether anyone got excluded from the courtroom by operation of the rule. This put the Justice in the rather awkward, if not unseemly, position of condoning the practice of requiring a photo ID in order to enter a public courtroom. After all if the rule, itself, violates the Sixth Amendment then there's no reason to start counting heads to see who got in and got sent home.  

The Justice's reasoning gets even more fuzzy.  The justice finds no evidence that the photo ID rule had either been enforced or had resulted in anyone's exclusion, yet he, nonetheless, still looks to "partial closure" opinions to decide the reframed question.  The court concludes that although the record says that not one person got excluded the situation was more like Brown and Lindsey than the other cases.  That is, there was a "closure" but it was "trivial." The Justice did chastise the trial courts that they should not require a photo ID as a condition of entry to the courtroom "unless there is good cause and no reasonable alternative ..."  Again, this implicitly condones the practice of carding people in order to get into a public courtroom.

This all got Justice Page to dissent, warning that the court was on a "march" to limit public access to the courts.  Justice Page pointedly observed that since  permitting the the courtroom closure in Brown there have been nine petitions for review that have challenged a trial court's decision to close or lock the courtroom doors despite cautioning the trial court to take such action "carefully and sparingly."  

Mr. Taylor, II wanted to ask his two co-defendants who testified against him whether they had a motive for the shootings that did not involve him.  The trial court denied this request.  Justice Lillehaug assumed without decided that this was an error but concluded that it was harmless.  Mr. Taylor, II also complained about the admission of testimony from the gang expert.  Again, the court assumed that admitting this evidence was error and then concluded that it was harmless.

Next, Mr. Taylor, II complained about the instruction on accomplice liability even though he hadn't objected to it at trial.  He said on appeal that the trial court should have instructed the jury that his presence at the shooting "did aid the commission of the crime."  This language was added to the pattern jury instructions after Mr. Taylor's trial, in apparent response to State v. Mahkuk, which identified two factors for determining whether a defendant's presence "intentionally aids" another in committing a crime:  that the defendant knew that the alleged accomplices were going to commit a crime, and the defendant intended his presence or actions to further the commission of that crime.  Justice Lillehaug says that the court has never required such language and then goes on to make it abundantly clear that the criminal jury trial instructions committee needs to go back to the drawing board and remove this "did aid" language.

The trial court also instructed on "expansive" liability for the crimes of another - other foreseeable crimes - but failed to say that other crimes committed had to be reasonably foreseeable by Mr. Taylor.  Justice Lillehaug said that this omission does not require automatic reversal, especially on a plain error standard of review. The court also rejected Mr. Taylor's assertion that the instructions should have specified the original intended crime.

Justice Lillehaug upholds the trial court's failure to give the jury a limiting instruction following admission of Mr. Taylor's prior convictions for impeachment purposes.  The problem was, Mr. Taylor hadn't request this instruction.  The court rejected Mr. Taylor's pro se claim that he had been denied his right to a speedy trial. His trial had not commenced until over 100 days after the demand so there is a presumption that a violation had occurred. Only one of the delays in starting trial was attributable to the state. On whether Mr. Taylor, II suffered prejudice from the delay the only possibility here was impairment of his defense.  The court rejected Mr. Taylor's argument that he was prejudiced because the delay gave the state the opportunity to secure plea agreements with his co-defendants.

Finally, the court rejects Mr. Taylor's pro se claim that introduction of a note seized from his jail cell which described one of the guys who was in the car with him as a "lying snitch ass" violated attorney-client privilege, accepting the trial court's finding that the note did not communicate anything to defense counsel regarding his case.  The court also upheld the admission of the two jail phone calls, and his "cumulative error" claim.

Wednesday, August 26, 2015

Felony Fourth Degree Assault of Peace Officer Requires Proof of Both a "Physical Assault" and Intentional Throwing/Transferring of Fluids At or Upon Officer

State v. Struzyk, Minn.S.Ct., 8/26/2015.  Officers had to taze Mr. Struzyk in order to arrest him.  Afterwards, he smeared some of the blood from the Taser onto the uniform of the arresting officer.  For this act of defiance the state charged Mr. Struzyk with felony assault in the fourth degree.

Here's what the fourth degree assault against a peace officer statute says, Minn.Stat. 609.2231, Subd. 1:
Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the assault inflicts demonstrable bodily harm or the person intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer, the person is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.
Justice Wright, for the entire court (although Justice Stras wrote a concurrence), had to answer the question whether the intentional act of transferring the blood was, itself, the "physical assault" that the statute requires.  The Justice hauls out both the dictionary and rules of grammar to answer that question, no.  The court concludes that to be convicted of felony fourth degree assault of a peace office the state must prove both a "physical assault" and the intentional throwing or transferring of bodily fluids or feces at or onto the officer. Justice Wright says that the italicized words, "the assault, "the person," and "the officer" all refer to the beginning phrase "whoever physically assaults".  So, the statute creates the baseline gross misdemeanor offense for physically assaulting a peace officer in the first sentence.  In the second sentence, the statute provides for the enhancement of the baseline gross misdemeanor to a felony by proof of one of two additional requirements: either demonstrable physical harm, or the intentional throwing/transferring fluids/feces at/upon the officer.

Justice Wright concedes that it doesn't take much to find an assault: some pain or discomfort would suffice.  However, she rejected the state's argument that the potential of contracting a disease from contact with fluids or feces was enough.  Rather, that disease from the contact must be proven and it must have caused either pain or discomfort.  

Justice Stras wrote a concurrence.  He agreed that the statute required proof of a "physical assault" in order to make the crime a felony.  However, he agreed with the state that the act of throwing/transferring fluids/feces was such a "physical assault".

Monday, August 24, 2015

Court Reverses Durational Departure Based on "Offender-Related" Factors

State v. Solberg, Minn.Ct.App., 8/24/2015.  In this sentencing challenge soon-to-be- Justice Hudson delivers a somewhat mischievous Opinion. At issue is a durational departure and whether the trial court applied the correct "offense-related" factors rather than "offender-related" factors.

In the middle of trial, Mr. Solberg entered a Norgaard plea to third degree criminal sexual conduct.  The state agreed to recommend the bottom of the presumptive guidelines sentence and agreed that Mr. Solberg could argue for a departure, either dispositional or durational.  He asked for both and the trial court granted a durational departure.

The trial court cited several "offender-related" factors to support the durational departure:  Mr. Solberg's age, his cooperation with law enforcement, and his limited criminal history, (that last one not being a proper factor at all).  This, of course, was a no no.  More problematic for Mr. Solberg, the trial court also specifically rejected the only "offense-related" factor, that the offense conduct was less serious than the "typical" CSC III offense.  

The court of appeals then switched to the Williams alternative analysis: even though the cited reasons were wrong are there sufficient appropriate reasons within the record to support the departure?  Mr. Solberg said that his remorse was a sufficient factor because it was directed not just at his wrong doing but at the seriousness of the offense as well.  This kind of "relation back" sleight of hand can support a durational departure even though it's an "offender-related" factor.  State v. Bauerly, 520 N.W.2d 760 (Minn.Ct.App. 1994).  Soon to be Justice Hudson had two responses to this argument.

First, Ms. Bauerly just barely stole enough money from her employer to elevate the offense to a felony.  So, her remorse reflected on the seriousness of the offense, and the trial court only granted a one day durational departure (felony to gross misdemeanor).  Mr. Solberg's alleged remorse came during a guilty plea in the middle of a trial that was not going very well, and so it seemed just a likely that the only "remorse" that Mr. Solberg had was that he was about to be convicted.  Not only that, the duration of Mr. Solberg's departure was a lot of months.

Second, Judge Hudson said that although case law says that a single aggravating factor may justify an upward departure, she could not find a single case saying that a single factor is enough to justify a downward durational departure.  Just why a specific factor can support a longer sentence but the same factor won't support a shorter sentence isn't explained.  

Thursday, August 20, 2015

Court Finds McNeely Exigent Circumstances to Uphold Warrantless Blood Draw

State v. Stavish, Minn.S.Ct., 8/19/2015.  Justice Dietzen, over dissents from Chief Justice Gildea and Justice Page, takes up the question of just what constitutes an "exigency" that gets around the requirement of McNeeley that officers get a warrant before drawing blood to test for intoxication.  The Court of Appeals had determined that such an exigency existed - read about that here - and for slightly different reasons Justice Dietzen agrees.
The relevant circumstances are that law enforcement had reason to believe that Stavish, who allegedly admitted to being the driver, had consumed alcohol, and that alcohol contributed to the accident. Thus, it was important to draw Stavish’s blood within 2 hours of the accident to ensure the reliability and admissibility of the alcohol concentration evidence. See Minn Stat. § 169A.20, subd. 1(5) (defining impairment as an alcohol concentration of 0.08 or greater, as measured within 2 hours of the time of driving). Additionally, Stavish sustained serious injuries that necessitated emergency medical treatment at a hospital and potentially required that he be transported by helicopter to another hospital. Stavish’s medical condition and need for treatment rendered his future availability for a blood draw uncertain. Sergeant Martens did not know how long Stavish was likely to remain at the same hospital or whether further medical care would preclude obtaining a sample even if Stavish stayed at the same hospital
The dissenters didn't think that the state had established such an exigency, with Justice Page the most vociferous about that:
In this case, the court continues its efforts, begun in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and reiterated in State v. Lindquist, ___ N.W.2d ___ (Minn. Aug. 19, 2015), to protect its erroneous decision in State v. Shriner, 751 N.W.2d 538 (Minn. 2008) (establishing that the evanescent nature of alcohol in the bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013) (holding that, contrary to this court’s decisions in Shriner, the dissipation of alcohol in the blood does not create a per se exigency), and Shriner’s progeny. In Bernard, we “fundamentally depart[ed] from longstanding Fourth Amendment principles” to justify a warrantless breath test as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d at 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Here, the court doubles down and again “readopts a per se exigency,” id. at 779, this time by refusing to hold the State to its “heavy burden” to rebut the presumption of unreasonableness associated with a warrantless search of the person, Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984), by establishing that “the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” Schmerber v. California, 384 U.S. 757, 770 (1966) (citation omitted). The record upon which the court finds the existence of exigent circumstances is so minimal that the decision here, in effect, nullifies the warrant requirement in every suspected drunk-driving case involving an accident with serious injuries—contradicting basic Fourth Amendment principles and the Supreme Court’s decision in McNeely.

Abandoning Thirty Years of Jurisprudence Court Adopts A "Good Faith Exception" to Exclusionary Rule

State v. Lindquist, Minn.S.Ct., 8/19/2015.  In an unusual judicial alignment, Justice G. Barry Anderson ends Minnesota's long, long resistance to adoption of a "good faith exception" to the Fourth Amendment's exclusionary rule.  Justices Dietzen, Wright and Stras join in the majority opinion while Chief Justice Gildea, Justices Page and Lillehaug dissent, although for different reasons.  Strange bedfellows indeed.  

Just two years ago in State v. Brooks, only Justice Stras wanted to adopt a "good faith" exception.  He got no votes then (although Justice Wright did not participate).  Here's what Justice Stras wrote in Brooks:
I would affirm the decision to admit the blood-alcohol evidence from each of the searches in this case based on the rule from Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011). Under Davis, “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at ___, 131 S. Ct. at 2423-24. Davis builds upon the good-faith exception to the exclusionary rule first articulated in United States v. Leon, which held that the Fourth Amendment does not require suppression of “evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate,” even if the warrant is later found to be defective. 468 U.S. 897, 913 (1984). 
After only five years on the court, and just barely two years after Brooks, Justice Stras wipes out thirty years of judicial refusal to adopt such an exception.

Ms. Lindquist was convicted of third degree driving while impaired.  The trial court admitted test results of her alcohol concentration that were based on a warrantless blood draw.  While her conviction was on direct appeal the U.S. Supreme Court decided McNeely, which rejected the single factor exigency rationale of State v. Netland, 762 N.W.2d 202 (Minn. 2009). Justice Anderson abandons the court's thirty year refusal to adopt any form of a "good faith exception" to the exclusionary rule.

The court consoles the dissenters by saying that its holding is limited to searches "conducted in objectively reasonable reliance on binding [Minnesota] appellate precedent."  
We note the narrowness of our holding, however. The Davis goodfaith exception represents a small fragment of federal good-faith jurisprudence. The State has not asked us here to consider any other good-faith exception to the exclusionary rule, and nothing in our opinion should be construed as authorizing the application of exceptions we have not explicitly adopted. Further, the good-faith exception adopted here applies only when law enforcement officers act pursuant to binding appellate precedent, not persuasive precedent from other jurisdictions. In addition, the binding precedent must specifically authorize the behavior. Law enforcement cannot “extend the law” to areas in which no precedent exists or the law is unsettled.
The majority seeks to assuage the dissenters by saying that adoption of Leon's good faith exception for evidence seized by officers in reasonable reliance on a facially valid warrant is left to another day.  Also, the court leaves for another day whether a good faith exception should apply to evidence obtained due to police negligence.  Herring v. United States, 555 U.S. 135 (2009).

Chief Justice Gildea said that the court should not adopt the exception under the Minnesota Constitution:
In my view, our court’s repeated refusal to recognize the good-faith exception to the exclusionary rule, together with Minn. Stat. § 626.21 (2014), establish a Minnesota “tradition” that is not consistent with the application of the good-faith exception in this case.
The Chief also agreed with Justice Page that the majority's decision was inconsistent with that history, and she agreed with Justice Lillehaug's view that Minn.Stat. 626.21 is a statutory codification of the exclusionary rule that prevents application of a good faith exception in Minnesota.  Justice Page, who was not assuaged in the least, was more emphatic, predicting that this decision opens the floodgates to the inevitable adoption of the other federally adopted exceptions to the exclusionary rule:
It is apparent that the court is willing to go to any length— including ignoring Minn. Const. art. I, § 8,1 and art. I, § 102—to protect its erroneous decision in State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (establishing that the evanescent nature of alcohol in the bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1568 (2013) (holding that, contrary to this court’s decision in Shriner, the dissipation of alcohol in the blood does not create a per se exigency), and its progeny. In State v. Bernard, we “fundamentally depart[ed] from longstanding Fourth Amendment principles” to justify a warrantless breath test as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.” 859 N.W.2d 762, 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly). Now, adopting the good-faith exception, the court cavalierly ignores Minn. Const. art. I, § 8, and would have us believe, contrary to federal precedent and its own reasoning, that its decision is a “narrow” one. The court acts as though “we live[] in a world without Missouri v. McNeely,” Bernard, 859 N.W.2d at 774 (Page, J., & Stras, J., dissenting jointly), and without Minn. Const. art. I, § 8. “But we do not live in such a world.” Id. McNeely is decided, and the court can avoid Minn. Const. art. I, § 8, only by mischaracterizing the right at issue in this case and taking away the only available remedy for the violation of a constitutional right. The court accomplishes this by equating violations of Minn. Const. art. I, § 10, to causes of action not recognized at the common law—a concept not contemplated by the drafters of Article I, Section 8.

Sunday, August 9, 2015

Court Upholds Multiple Current Consecutive Felony Sentences

Nunn v. State, Minn.S.Ct., 8/5/2015.  A jury convicted Mr. Nunn back in 1995 of first degree premeditated murder and attempted first degree premeditated murder.  There were apparently two victims.  The trial court imposed a life sentence on the first degree premeditated murder verdict, and imposed a consecutive sentence of 180 months on the attempt verdict.  Mr. Nunn argues in this Rule 27.03 motion to correct sentence that the consecutive sentence for the attempt verdict was not authorized under the 1995 Guidelines. That's because, he claimed, the Guidelines permit consecutive sentences only when:
the offender is convicted of multiple current felony convictions for crimes against different persons, and when the sentence for the most severe current conviction is executed according to the guidelines.”
First degree premeditated murder is excluded from the Guidelines so Mr. Nunn argued that this count can't have been "executed according to the guidelines."  

Justice Wright, for a unanimous court, says that Mr. Nunn's sentencing claim fails because of a past opinion: Townsend v. State, 834 N.W.2d 736 (Minn. 2013) wherein the Justice claimed that the court said that a life sentence for a first degree murder conviction satisfies the requirement in section II.F.2 that consecutive sentences are authorized only when the most severe current conviction is executed "according to the guidelines."  

That's not quite what Townsend said.  Justice Dietzen limited the holding in Townsend to the "two victims" exception that permits consecutive sentencing and said nothing about the "executed according to the guidelines" argument of Mr. Nunn. The other opinion that Justice Wright relied upon is State v. Lindsey, 314 N.W.2d 823 (Minn. 1982), wherein the court said that the phrase "executed according to the guidelines" only means that the sentence for the most severe conviction be executed and not stayed.  The Justice is on firmer ground in reliance on Lindsey.  And, if that "law" isn't enough, there's the dictionary "law," which says that "according to" means "in keeping with."  

Mr. Nunn also argues an equal protection claim that his sentence is more severe than the sentences of other similarly situated offenders who, unlike Mr. Nunn, are not African American. The court rejects Mr. Nunn's equal protection claim for lack of proof of discriminatory purpose.  All that Mr. Nunn could muster was "general statistical data showing racial disparities in sentencing both nationally and in Minnesota.  Under McCleskey v. Kemp, 481 U.S. 279 (1987) that's not enough.  So, the denial of this claim by the post conviction court was "in keeping" with McCleskey.  

Post Conviction Claims Are Time Barred

Evans v. State, Minn.S.Ct., 8/5/2015. Mr. Evans filed a motion under a civil procedure rule, Rule 60.02, which alleged various claims, including ineffective assistance of both trial and appellate counsel.  The district court treated the motion as a second post conviction petition and summarily denied it as untimely under the two year limitations period.  Justice G. Barry Anderson, for a unanimous court, affirms.

The court ducks the question - maybe two questions actually - whether it's correct to treat a Rule 60.02 motion as a post conviction petition (which subsumes the question whether a criminal litigant can resort to the civil rule ) - with its usual "It doesn't matter" response.  Treated either way, Mr. Evans' claims, basically a riff on his first post conviction petition, remain barred.

A Stay of Adjudication Does Not Start The Two Year Limitations Clock

Dupey v. State, Minn.S.Ct., 8/5/2015.  The trial court stayed adjudication on a fifth degree drugs charge back in 2009 and placed Mr. Dupey on probation for five years.  On May 24, 2011, Mr. Dupey admitted to a probation violation, revoked the stay of adjudication, and imposed an executed prison sentence of thirteen months.  

On May 23, 2013, - the last day to do so if the two year limitations period only started on that May 24, 2011 date - Mr. Dupey filed a petition for post conviction relief, asking to be permitted to withdraw his guilty plea. The post conviction court summarily dismissed the petition as time-barred under the two year limitations period.  The court of appeals affirmed.  Writing for a unanimous court Justice Dietzen reverses, holding that a stay of adjudication is not a conviction or other event that triggers the two year limitations clock.

Past appellate decisions and positions taken by the two sides have been all over the place on what to make of a stay of adjudication. Read about that here. No matter as once again the dictionary becomes the law. The text of the pertinent statute, Minn.Stat. 590.01, subd. 4(a) (1) says that the petition has to be filed within two years of "the entry of judgment of conviction or sentence if no direct appeal is taken."  A "judgment of conviction" requires a plea, a verdict, an adjudication of guilt, and a sentence.  Rule 27.03, subd. 8 of the rules of criminal procedure is plain and clear about that.  A withholding of adjudication means just that: there's no adjudication of guilt.  Without that adjudication there can't be the entry of a judgment of conviction.

So, one down, one to go.  Is a stay of adjudication a "sentence"? Well, no, at least according to the court's favorite, "go to" source of "law", the dictionary.  A sentence is the imposition of punishment following a criminal conviction or adjudication of guilt says The American Heritage Dictionary, )5th ed. 2011).  Again, never mind that back in 2005 the court said that appeals from stays of adjudication in felony cases were to be treated as appeals from sentencings.  State v. Lee, 706 N.W.2d 491 (Minn. 2005).

The court sends the case back to the court of appeals to answer the question whether Mr. Dupey is entitled to an evidentiary hearing on his petition.

Thursday, August 6, 2015

Court Approves Imposing Same Sentence on Remand From Successful Appeal Even Though Sentence Is On Lesser Included Offense

State v. Kangbath, Minn.S.Ct., 8/5/2015.  A jury convicted Mr. Kangbath of attempted second degree murder for the benefit of a gang, attempted second degree murder, second degree assault for for the benefit of a gang, and second degree assault.  The trial court sentenced Mr. Kangbath to an executed term of 165 months on the attempted second degree murder for the benefit of a gang.  For Mr. Kangbath's criminal history score, the presumptive sentencing range was 130 months to 183 months, with a presumptive duration of 153 months.  The trial court imposed an executed sentence of 165 months; more about that later.

Mr. Kangbath appealed.  The court of appeals agreed with him that the state had failed to present sufficient evidence on the benefit of a gang so it reversed his convictions of attempted second degree murder for the benefit of a gang and second degree assault for the benefit of a gang.  That court remanded with instructions to sentence Mr. Kangbath on the (plain) attempted second degree murder.

On remand, the trial court imposed an executed term of, well, the exact same 165 months on the lesser included offense of attempted second degree murder.  Mr. Kangbath appealed that sentence.  He said that at the first sentencing, the trial court had imposed a sentence of 153 months on the attempted second degree murder and that that sentence was then automatically enhanced an additional twelve months for the gang benefit element.  On remand, Mr. Kangbath argued, the trial court was stuck with that 153 months even though by this time the trial court was sentencing him for an entirely different offense, "plain" attempted second degree murder. Now to give him 165 months on the "plain" attempted second degree murder violated the Prudhomme rule that says that a defendant can't get more time after a successful appeal than originally imposed. Justice Anderson, for five members of the court, rejects this argument in a form over substance sleight of hand.  Here's how it goes.

At the sentencing hearing, no one - not the court, the defense, the prosecutor, the probation officer who wrote the PSI - bothered to mention explicitly this 153 plus 12 months analysis.  Apparently, this 165 sentence, which is exactly the presumptive duration of 153 months plus the 12 month enhancement for the gang benefit, just sort of fell out of the ceiling during the initial sentencing hearing. On remand for sentencing on the "plain" attempted second degree murder count, the trial judge just happened to up the presumptive duration of 153 by exactly 12 months.  

To justify this, the court changes the subject.  Now it's whether the trial court was being "vindictive" at the remand sentencing rather than that the trial court had come to the correct initial sentence - 153 + 12 - without realizing it and was now stuck with the 153. The majority is unwilling to find such vindictiveness and so the sentence on this lesser included offense is affirmed.

This result produces an unlikely pairing of Chief Justice Gildea and Justice Page dissenting.  They are unwilling to go down this rabbit hole.  Here's how Justice Page's dissent begins:
I respectfully dissent. In my view, the sentencing court calculated Kangbateh’s initial sentence of 165 months by adhering to the Minnesota Sentencing Guidelines, which required the sentencing court to add 12 months for the offense committed for the benefit of a gang to the presumptive duration for the predicate offense of attempted second-degree murder. 1 Because it is axiomatic that a defendant may not be punished for an offense for which there is no conviction and because in this case we know that Kangbateh’s original sentence specifically included 12 months for an offense that was reversed on appeal, on remand the sentencing court was required, at a minimum, to subtract 12 months from Kangbateh’s sentence.

Monday, August 3, 2015

Advice to Alien That Plea to CSC 3 "Could" Lead to Deportation Adequate

Herrera Sanchez v. State, Minn.Ct.App., 8/3/2015.  WARNING: This post contains explicit references to Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  The state charged Mr. Herrera Sanchez with two counts of third degree criminal sexual conduct and one count of furnishing alcohol to a minor.  He pled guilty.  Mr. Herrera Sanchez was lawfully in the country but he was not a citizen. Here's how the immigration consequences colloquy went during the plea hearing:
Q: And before signing [the plea agreement] did the two of us have an opportunity to review it and you had a chance to ask me any questions that you may have had?
A: Yes. . . . .
Q: Now, are you a citizen of the United States?
A: No.
Q: All right. Do you understand that as a result of a plea in this particular matter that, if you’re not a citizen of the United States, a plea of guilty could result in either deportation, exclusion from admission to the United States, or denial of citizenship?
A: Yes.
Q: Knowing all those rights, do you still want to go forward with your plea?
A: Yes.
The question in this post conviction petition is whether trial counsel gave "clearly erroneous" advice about the immigration consequences of Mr. Herrera Sanchez's guilty plea because counsel said that by pleading guilty he "could" be deported.  After taking testimony on this question, the post conviction court found that counsel had told Mr. Herrera Sanchez that he "was looking at deportation" following the plea, and that this was effective assistance of counsel.

Padilla said that when the applicable immigration statute was not "succinct and straightforward" the counsel need do no more than advise a noncitizen that pending criminal charges may carry a risk of adverse immigration consequences.  On the other hand, when the deportation consequences are "truly clear" and counsel can "easily determine" those consequences "simply from reading the text of the statute" then there is a duty to give more explicit advice about the likelihood of deportation.  

The immigration statute says that any alien who is convicted of an aggravated felony is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).  It gives several examples of what it means by "aggravated felony," one of which is "sexual abuse of a minor."  Which is what Mr. Herrera Sanchez pled guilty to.  Mr. Herrera Sanchez said that third degree criminal sexual conduct fits this example of an aggravated felony to a T and so it was an easy job for counsel to have figured out that he would - not "could" - be deported.  The court of appeals, however, countered that the immigration statute doesn't define "sexual abuse of a minor" and the court could not find any case by a court "binding this one" that says that CSC 3 is an aggravated felony.   Never mind that the Board of Immigration Appeals thinks that CSC 3 is such an aggravated felony.  So, once again, the resort to the dictionary is enough to carry the day.  Counsel's performance met Padilla's requirements.

Mr. Herrera Sanchez also argued that the plea, itself, was inadequate to establish a factual basis because counsel utilized too many leading questions.  That goes no where because if the record contains sufficient evidence to support the conviction it survives a challenge.