Monday, July 14, 2014

Court of Appeals Rejects “Unconstitutional-Conditions Doctrine” in License Revocation Challenge

Stevens v. Commissioner of Public Safety, Minn.Ct.App., 7/14/2014.  The McNeeley wars continue in this license revocation appeal.  The Commissioner revoked Ms. Stevens’s driver’s license after she was arrested for driving while impaired and refusing to submit to chemical testing.  She argued that the implied consent statute is unconstitutional because it violates the “unconstitutional-conditions” doctrine.  By a variety of contortions the court of appeals says, no, it doesn’t.

Here’s how Ms. Stevens described this doctrine:

[I]t imposes on a driver a choice between, on the one hand, relinquishing the Fourth Amendment right to be free from an unreasonable search and, on the other hand, relinquishing a license to drive a motor vehicle.

The court of appeals said that Ms. Stevens’s argument fails for four reasons:  First, there is no authority, at least in Minnesota, that the doctrine applies to a constitutional challenge based on the Fourth Amendment.  Second, even if the doctrine applied, Ms. Stevens can’t show that the implied consent statute authorizes an unconstitutional search.  Rather, if she says no to the test, the statute forbids it.  Third, if the doctrine applies, and if the implied consent statute authorized a search, the implied consent statute does not authorize a search that violates the Fourth Amendment.  Such a search would be reasonable to promote the state’s interest in promoting its DWI laws.  Fourth – still there? – if, well you know, the argument fails because Ms. Stevens can’t show that the implied consent statute is sufficiently coercive.

“Source Code Two”?

There Is No “Threats Exception” to Psychologist-Client Privilege

State v. Expose, Jr.,, Minn.Ct.App., 7/14/2014.  If you can’t win your case with your own argument, then steal your opponent’s argument and try that out.  During court-ordered anger management counseling, Mr. Expose, Jr. sounded off to his counselor about his child protection worker, something about breaking her back.  Believing that she was a “mandated reporter” the anger management counselor reported this to her supervisor and the police. 

The state charged Mr. Expose, Jr. with terroristic threats and wanted to have the anger management counselor tell the jury what Mr. Expose, Jr. said.  Before trial, Mr. Expose, Jr. objected for two reasons.  First, the anger management counselor was not a “mandated reporter” because she was not a licensed mental health professional who is such  a mandated reporter.  In response, the state said that the anger management counselor should be treated as a licensed psychologist because she was working under the supervision of someone who was licensed.  The trial court sided with the prosecutor and said the statements could come in.  Second, after the jury was sworn, but before testimony commenced, Mr. Expose, Jr. raised another objection.  This time he said that since the state had convinced the court that the anger management counselor was the functional equivalent of a psychologist then the psychologist-patient privilege precluded the testimony.  The trial court said, no, that Mr. Expose Jr.’s alleged threats were an exception to the privilege.

On appeal, the state made a number of arguments all of which began to unravel.  So, the state reversed course.  Despite having told the trial court that the anger management counselor was like a psychologist now they told the court of appeals that she wasn’t because she didn’t fit the language of the statute.  The court of appeals continued to treat the anger management counselor like a psychologist and went on to conclude that there was a valid psychologist-client privilege that precluded her from testifying absent Mr. Expose, Jr.’s consent.  This extended to the alleged threats, because the anger management counselor only heard the threats when she asked Mr. Expose, Jr. why he was so upset.  The court points out that, after all, “Anger-management therapy necessarily involves talking about and working through angry thoughts and emotions.”  Mr. Expose, Jr.’s conversation with his anger management counselor was thus a necessary part of effective diagnosis and treatment. 

Now in desperation, the state’s final argument was, well, okay, she’s like a psychologist, but the threats are an exception to the privilege.  The court of appeals pointed out, however, that neither the statute that creates the privilege nor other relevant laws contains such a “threats exception.  So, permitting the testimony was an abuse of discretion that earned Mr. Expose, Jr. a remand.

It’s also worth pointing out that the state made the truly jaw dropping argument that because Mr. Expose, Jr. had not objected to the proposed testimony of the anger management counselor by motion under Rule 10.01, subdivision 2 he had waived it:

Defenses, objections, issues or requests that can be determined without trial on the merits must be made before trial by a motion . . . to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . . The court can grant relief from the waiver for good cause.

This rule pertains to constitutional challenges to the admission of evidence; other evidentiary objections are governed by the rules of evidence, which provide that any “timely objection” preserves a claimed error in admitting evidence.  Rule 103(a).  Mr. Expose, Jr.’s motion in limine satisfied that “timely objection” requirement.  He objected again just before testimony began, which was also timely.  And if you want to talk about waiver, never did the state claim at trial that Mr. Expose, Jr. had waived this evidentiary objection, so who’s waiving now?

 

Evelyn Mulwray:  She's my daughter.

[Gittes slaps Evelyn]

Jake Gittes: I said I want the truth!

Evelyn Mulwray: She's my sister...

[slap]

Evelyn Mulwray: She's my daughter...

[slap]

Evelyn Mulwray: My sister, my daughter.

[More slaps]

Jake Gittes: I said I want the truth!

Evelyn Mulwray: She's my sister AND my daughter!

Chinatown, 1974.

Wednesday, July 9, 2014

7/9/2014: No Published Supreme Court Criminal Opinions

Trial Court Cannot Issue Order to Vacate & Dismiss Misdemeanor Upon Successful Completion of Probation Over Prosecutor’s Objections Absent Abuse of Prosecution Discretion in the Charging Function

State v. Martin, Minn.Ct.App., 7/7/2014.  Mr. Martin pled guilty to a misdemeanor of engaging in prostitution.  Without objection, the court stayed imposition of sentence for one year and gave Mr. Martin credit for the one day he spent in jail.  Over the city attorney’s objections, however, the trial judge also ordered that upon successful completion of probation the charge would be dismissed one year hence. 

The city attorney, not so much prosecuting as erecting, john by john, a monument of Hawthorne Hector Prynne’s, appealed.  Is judicial shaming effective in changing behaviors?  More so than that first night in goal?

The court of appeals concludes that the trial court’s order is the equivalent of a stay of adjudication.  In that case, neither statutes nor case law help Mr. Martin.  Minn.Stat. 609.095(b) says that absent an agreement of the parties, a district court may not refuse to adjudicate the guilt of a defendant who tenders a guilty plea.  Case law establishes that in the absence of an agreement, the district court can stay adjudication of guilt only in cases in which there is a clear abuse of prosecutorial discretion in charging.  State v. Colby, 657 N.W.2d 897 (Minn.Ct.App. 2003).  The court of appeals reverses the trial court’s order to vacate and dismiss.

Monday, July 7, 2014

Permissive Consecutive Sentencing Is Not Authorized Unless Allowed Under Minn.Stat. 609.035 or an Exception to that Statute

State v. Jones, Minn.S.Ct., 7/2/2014.  On October 16, 2010, Mr. Jones sent his estranged wife thirty-three text messages within a two and a half hour period of time.  These messages were a violation of  an order for protection that deputies had served upon Mr. Jones three days earlier.  The state charged Mr. Jones with one count of stalking and with one count of violating the order for protection.  A jury found him guilty on each count.  These two offenses are on the list of offenses eligible under the Guidelines for permissive consecutive sentences.  The district court imposed sentence on each conviction, to run consecutively with each other and consecutive with a previous sentence that Mr. Jones was already serving.

Mr. Jones appealed, saying that his conduct was a single behavioral incident that under Minn.Stat. 609.035 could result in only one sentence.  The state argued that each of the texts was a separate incident (even though the state had charged them all as a single count of stalking and violating the order) such that there were multiple incidents.  Justice Wright rejected this claim and concluded that Mr. Jones’ actions comprised a single behavioral incident.

That meant that imposing two separate sentences violated 609.035 unless an exception applies.  The state said that the Domestic Abuse Act, specifically 518B.01, subd. 16 creates such an exception.  In pertinent part, that subsection says that “[a]ny proceeding under this section shall be in addition to other civil or criminal remedies.”  Justice Wright rejects this interpretation, concluding that the “proceeding” referred to is an action to obtain an order for protection.

That leaves the Guidelines, specifically the authority therein for permissive consecutive sentences for certain listed offenses, even when the offenses involve a single victim involving a single course of conduct.  Guidelines, II.F.2.b.  Minn.Stat. 609.035, subd. 1 is also  still in play; it addresses the number of sentences that may be imposed for multiple current felony convictions.  The Guidelines, on the other hand, determine whether multiple sentences are concurrent or consecutive.  Where multiple sentences are permitted under the statute – either because the convictions did not arise from a single course of conduct; or the case implicates an exception to the statute – then the Guidelines govern the court’s discretion whether to impose concurrent or consecutive sentences.  Contrary to the conclusions of the trial court and the court of appeals, just because two offenses are on the Guidelines list of permissive consecutive sentences is not enough, by itself, to authorize consecutive sentencing. 

Sunday, July 6, 2014

Moving Out of District Does Not Automatically Disqualify District Court Judge From Continuing to Serve

State v. Irby, Minn.S.t., 7/2/2014.  For three months back in 2009, Hennepin District Court Judge Patricia Kerr Karasov was not living in Hennepin County, on obligation (or so it seemed) required of her in order to serve as a judge.  When the Supreme Court got wind of this, the court sanctioned her with a six month suspension without pay.  When Mr. Irby got wind of this he commenced this post conviction petition.  He said that under both the Minnesota Constitution and the corresponding enabling legislation Judge Karasov had forfeited her judgeship so she had no business presiding over his criminal case.  He said that he should get a new trial.

As should everyone else whose cases Judge Karasov attended to following the alleged forfeiture of her judicial office.  Or at least, that has to be have been in the back of the minds of the five justices – Wright taking no part and Page dissenting – in rejecting Mr. Irby’s claim.

Here’s the constitutional provision that’s in play: 

“[e]ach judge of the district court in any district shall be a resident of that district at the time of his selection and during his continuance in office.

The enabling statute, Minn. Stat. § 351.02(4) says that every office shall become vacant on “the incumbent’s ceasing to be an inhabitant of the state, or, if the office is local, of the district, county or city for which the incumbent was elected or appointed, or within which the duties of the office are required to be discharged.”  The court of appeals rejected Mr. Irby’s claim, reasoning that because the supreme court had only suspended Judge Karasov she hadn’t really lost her job after all.  Justice G. Barry Anderson – Stras concurred only in the result – affirmed the court of appeals but on totally (and somewhat strained) grounds.

The judge did not move out of the state so it’s the interpretation of only the second half of the statute which deals with “local” offices that’s going to let Mr. Irby prevail.  If the judgeship is “local” then Mr. Irby (and everyone following him) gets a new trial.  (Justice Anderson rather quickly, indeed relegated it to a footnote, tosses aside the constitutional provision, saying that it is both not self executing and leaves room for less severe sanctions for its violation, like a suspension without pay.)  Justice Anderson concludes that a judgeship is a statewide and not a  local office.  Judges are state employees, they interpret and apply state law, they issue orders that are binding across the state, and they can be assigned to serve in any judicial district throughout the state by operation of another statute, Minn.Stat. 2.724, Subd. 1.  (This statute actually says that a judge assigned to preside in a district other than her own can appeal that assignment to the full supreme court.  The statute also does not operate “statewide.”  Rather, no assignment can send a judge packing more than fifty miles away and no judge can be sent packing for more than fifteen working days in any twelve month period without the judge’s say so.  So whatever Justice Anderson may think “statewide” means, it does mean that Judge Karasov could not be sent to Crookston.) 

The court has also said that a seat in the legislature is a “state office” and not a local one.  Court of Appeals judges who are either appointed or elected from a particular congressional district are state offices.  Finally, to adopt Mr. Irby’s construction of the statute – that it is self executing – would offend separation of powers doctrine because it would allow the legislature to have supremacy over judicial discipline through a self-executing statute.  Enough said, although one wonders just how long a judge could live at her lake home “up north” and still be authorized to serve as a judge back in the cities.

Justice Stras took umbrage with the majority’s (rather vague) suggestion that the court’s disciplinary authority over judges was exclusive.  He thought that such power was concurrent with the legislature.

Justice Page dissented, saying that when Judge Karasov abandoned her residence within Hennepin County she no longer met the constitutional qualifications to remain in office.  That is, when she moved out of the district she was no longer a “resident of that district” and automatically forfeited her robes.

Tuesday, July 1, 2014

Trial Court’s Sua Sponte Order Vacating Plea and Conviction Improper; Implied Consent Determination Is Not “Law of the Case” in the Associated Criminal Case

State v. Miller, Minn.Ct.App., 6/30/2014.  Ms. Miller pleaded guilty to third degree driving while impaired.  She also agreed to pay “an administrative-costs fee.”  A few weeks later, over in Implied Consent Court, a different judge ruled that the cops had arrested Ms. Miller illegally, which meant that no evidence derived from that arrest could be used against her in her (already concluded) criminal case.  When the DWI judge found out about this implied consent ruling, the judge issued an order vacating Ms. Miller’s guilty plea, dismissed the case, and ordered the return to Ms. Miller of this “administrative-costs fee” money.  Clearly now on a roll, the judge then said that “law of the case” – the implied consent order - voided the plea negotiations.  To cap things off, the judge then effectively granted a never filed defense motion to suppress evidence.  The first that either Ms. Miller or the state knew about any of this was when they got the order in the mail.

As you might imagine, the state appealed.  Even Ms. Miller had to concede that in vacating Ms. Miller’s guilty plea and conviction the DWI court went about it all wrong.  For starters, a court can’t vacate a guilty plea over a defendant’s objections.  State v. Spraggins, 742 N.W.2d 1 (Minn.Ct.App. 2007).  Before the court gets there, it has to afford the parties the opportunity to weigh in on the matter, both in writing and in court. 

There must also be “substantial and compelling” reasons to vacate a guilty plea.  Spraggins, supra; Rule 15.05, Rules of Criminal Procedure.  The only reason that the DWI court stated was the implied consent ruling, calling it the “law of the case.”  The problem is, “law of the case” applies to “the case,” that is, the same case and only to issues previously decided in that same case.  Finally, there’s a statute, Minn.Stat. 169A.53, subd. 3(g), that says that determinations in an implied consent hearing do not act as an estoppel on any issues over in criminal court.

So, Ms. Miller still has her conviction and fine, at least for now.  She can, both the court and the state agree, still file a post conviction petition or otherwise seek to withdraw her plea.

Monday, June 16, 2014

Simultaneous Sentencing on Two CSC Pleas Does Not Trigger Lifetime Conditional Release

State v. Nodes, Minn.Ct.App., 6/16/2014.  The state charged Mr. Nodes with two counts of degree criminal sexual conduct for two separate incidents against two different juveniles.  He pled guilty to both counts.  So:  offense, offense; conviction conviction.  Mr. Nodes has no prior convictions for criminal sexual conduct.  The state wanted the court to order a lifetime conditional release period.  The trial court said, no.

The conditional release statute says that a lifetime conditional release period is required where a defendant has a “previous or prior sex offense conviction.”  Minn.Stat. 609.3455, Subd. 7(b).  So, what’s a “previous” and what’s a “prior” sex offense conviction?  The statute answers both of those questions.

“Previous sex offense conviction” means “the offender was convicted and sentenced for a sex offense before the commission of the present offense.”  Subdivision 1(g). 

“Prior sex offense conviction” means “the offender was convicted of committing a sex offense before the offender has been convicted of the present offense, regardless of whether the offender was convicted for the first offense before the commission of the present offense, and the convictions involved separate behavioral incidents.” Id., subd. 1(g). 

The state said that after the trial court had sentenced Mr. Nodes on the first offense then it became a “prior sex offense conviction” that triggered the lifetime conditional release.  Both the trial court and the court of appeals reject this interpretation.  Among other things, a conviction requires a “formal adjudication of guilt” that has been accepted and recorded by the court; the mere pronouncement in court doesn’t cut it.  Cf.:  Taylor v. State, 2013 WL 5024157 (Minn.Ct.App. 2013).  (“[T]his court has also made clear that ‘an orally pronounced sentence controls over a judgment and commitment order when the two conflict.’” State v. Staloch, 643 N.W.2d 329, 331 (Minn.App.2002)Taylor, notwithstanding (and unpublished) the court of appeals concluded that the trial court’s acceptance of the two guilty pleas is not a “conviction” until the computer spits out the warrant of commitment.  Mr. Nodes’ two “convictions” thus occurred at the same time; neither preceded the other. 

Saturday, June 14, 2014

Post Conviction Petitioner Not Entitled to Appointed to Counsel, Having been Represented by Counsel on Direct Appeal; Claims presented are Time Barred and Thus Not Entitled to Evidentiary Hearing

Hughes v. State, Minn.S.Ct., 5/21/2014.  In this second petition for post conviction relief Mr. Hughes raised twenty-nine errors, most of which claimed various misdeeds of trial counsel.  Read footnote 2 if you want the gory details.  The post conviction court tossed the petition without benefit of an evidentiary hearing and without appointing counsel for Mr. Hughes.

Justice Page affirms for a unanimous court.  The court said that because Mr. Hughes had been represented by counsel on direct appeal he has no right under the Minnesota Constitution to the assistance of appointed counsel in a subsequent post conviction proceeding.  Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

Turning to the denial of an evidentiary hearing, the court upholds the post conviction court.  The court says that one who alleges facts that, even if true, do not authorize any relief there is no necessity to hold an evidentiary hearing.  For Mr. Hughes, all of his claims are time barred, having been made more than two years beyond the limitations period and not presenting any exception to that limitations period.

Wednesday, June 11, 2014

Miller v. Alabama Does Not Apply To Juvenile’s Life With Possibility of Release Sentence

Ouk v. State, Minn.S.Ct., 6/11/2014.  Mr. Ouk is serving a life sentence with the possibility of parole for crimes that he committed as a juvenile.  Mr. Ouk and seven other teenagers pulled a daring double armed robbery of two gas stations that were across the street from each other.  During the robbery that Mr. Ouk committed, two clerks were killed and two customers were shot.  The trial court imposed four consecutive sentences:  two life sentences and two fifteen year sentences.  He must serve eighty years at a minimum before he will be eligible for parole.  He will then be ninety-five years old, assuming he’s still alive.

In this post conviction petition, Mr. Ouk argues that Miller v. Alabama should be applied retroactively.  Justice Anderson reminds Mr. Ouk that the court has now twice rejected that argument, first in Chambers v. State, 831 N.W.2d 311 (Minn. 2013), and just a couple of weeks ago in Roman Nose v. State, 845 N.W.2d 193 (Minn. 2014).  More importantly, and on point, the rule in Miller does not apply to a life sentence with the possibility of release.

Mr. Ouk argued to the post conviction court that his aggregated sentence was the functional equivalent of life without the possibility of release and thus violated Miller which, by the way, should be applied retroactively.  On appeal, however, he abandoned this argument and so the court did not consider it.  Just as well, given this court’s attitude on the retroactivity of Miller.

Wednesday, June 4, 2014

“Sale” of Narcotics Includes Giving Physical Possession of Those Drugs To Another For Purpose of Concealment

Barrow v. State, Minn.Ct.App., 4/21/2014.  Mr. Barrow and his wife drove down to Rochester to get some cocaine.  On the way back, Mr. Barrow noticed that there was a cop car behind him so he gave his wife some of the cocaine, instructing her to hide it.  She stuffed it her bra but the cops found it anyway.  The state charged Mr. Barrow with third degree sale of a controlled substance – the hand off to his wife -  (and with two other drug crimes which were eventually dismissed).  At the plea hearing, Mr. Barrow told the court that his wife had “nothing to do with it,” “it” being the acquisition of the cocaine in Rochester.  He also told the court that by dumping some of the cocaine onto his wife he had “sold” cocaine within the meaning of the statute.

A few years go by and Mr. Barrow is having second thoughts about his plea so he filed a post conviction petition to withdraw it.  He said that he didn’t “sell” anything, much less cocaine, by handing some of it off to his wife because the two of them jointly acquired it.  Each thus had constructive possession of the cocaine and neither could “sell” it to the other.  The court of appeals thought that there was actually a Minnesota Supreme Court case that says something like this.  State v. Carithers, 490 N.W.2d 620 (Minn. 1992).  It’s a bit of a stretch to say that’s true.  Carithers is a felony murder case that addressed this question:

When a married couple jointly acquires a Schedule I controlled substance, and one of the partners uses that substance and subsequently dies from a drug overdose, did the legislature intend that the surviving partner be subject to prosecution under Minn.Stat. § 609.195(b)?

Amazingly, two couples got hold of some heroin.  Each couple used half the acquired heroin and – get this – in each case one of the spouses died!  The surviving spouse got charged with felony murder.  The state said that this was felony murder because the surviving spouse had unlawfully sold or given away the heroin to the deceased spouse.  Along the way toward answering this question, “No,” the court assumed that the two surviving spouse/defendants could not have been convicted of “selling” the heroin.  From that assumption the court concluded that neither surviving spouse/defendant could be convicted of felony murder.

Be that as it may, Mr. Barrow’s problems were:  he swore to the judge at his plea hearing that his spouse had “nothing to do with it.”  He has thus not established that the two of them acquired the drugs jointly.  The court also said that when his spouse stuffed the drugs down her bra Mr. Barrow lost constructive possession of those drugs.  This seems a bit too modest a conclusion; would this have been the conclusion had she merely hid the drugs in her shoe?  The court affirms the summary denial of his post conviction petition.

6/4/2014: No Published Supreme Court Criminal Opinions

Wednesday, May 28, 2014

5/28/2014: No Published Supreme Court Criminal Opinions

An Offense, Conviction for Which Requires Registration, Must Be Supported By Probable Cause

State v. Haukos, Minn.Ct.App., 5/27/2014.  The state charged Mr. Haukos with fourth degree criminal sexual conduct (vulnerable adult).  After a lot of wrangling over the state’s failure to make adequate discovery disclosures and other things, the state added a charge of fifth degree criminal sexual conduct.  For each of the counts the trial court made a finding of probable cause. Following a bench trial, the trial court convicted Mr. Haukos of the fifth degree charge but acquitted him of the fourth degree charge.

At sentencing the trial court questioned whether registration under the predatory offender statute was required in the face of the acquittal of the fourth degree charge.  After all, registration is not required for a fifth degree criminal sexual conduct conviction.  The state said that once the Complaint charged a “triggering offense,” by which it meant an offense that upon conviction requires registration, then it was a done deal; any conviction “arising out of the same set of circumstances requires registration. 

At that point the defense challenged probable cause for the fourth degree charge.  The trial court determined that the state’s position of prohibiting any scrutiny of the “triggering offense” went too far.  The court considered the probable cause challenge despite its lateness.  The court decided that there had to be probable cause for the “triggering offense” in order to require registration for a conviction for a different offense.  Because there was probable cause to support the fourth degree charge Mr. Haukos was required to register.  His conviction for the fifth degree charge was for conduct arising out of the same set of circumstances of the fourth degree charge.

The court of appeals agreed that there had to be probable cause for the “triggering offense.”  The court also agreed that there was probable cause for the fourth degree charge.  In doing so, the court winked just a bit at the tardy defense challenge to probable cause; after all Rule 10.01 says to make that challenge before trial or be considered to have waived it implicitly saying that the defense could make the late challenge but could not go beyond the face of the complaint in doing so.  Now, that same rule says that the trial court can grant relief from waiver for good cause.  Both the trial court and the court of appeals considered the probable cause challenge on the merits, which at least implies granting relief from any waiver.  The court’s authority for this middle ground – the rule and State v. Lieberg, 553 N.W.2d 51 (Minn.Ct.App. 1996) – do not support this this middle ground of allowing a late challenge but confining it to the face of the Complaint.

A California “Medical Marijuana Patient Verification Card” Is Not a Defense to Possession of Marijuana in Minnesota

State v. Thiel, Minn.Ct.App., 5/27/2014.  Following a trial on stipulated facts, the trial court found Mr. Thiel guilty of fifth degree possession of a controlled substance.  Among other things, he argued that the trial court was wrong to exclude his defense that because he had a California medical marijuana patient verification card it was okay to drive around Minnesota with pot in his car.  Not just a little bit of marijuana but a lot; his California card permitted him to grow 99 marijuana plants, and to possess 19 pounds of processed marijuana.

The Full Faith and Credit Clause of the U.S. Constitution does not compel a state to substitute the statutes of another state of its own statutes if the state is competent to legislate whatever it is.  Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003).  Moreover, Minnesota long ago said that a defense of medical necessity was not available for someone charged with a controlled substance crime.  State v. Hanson, 468 N.W.2d 77 (Minn.Ct.App. 1991).  So, that California said it was okay for Mr. Thiel to possess marijuana for some medical condition was no defense to a Minnesota drug charge.

Tuesday, May 27, 2014

A Felony Conviction Deemed To Be A Misdemeanor Under Minn.Stat. 609.13 Doesn’t Count Under Career Offender Statute

State v. Franklin, Minn.Ct.App., 5/27/2014.  This is a sentencing appeal under the “career offender” statute, Minn.Stat. 609.1095.  Mr. Franklin said that one of his prior felony convictions is deemed to be a misdemeanor and thus cannot count toward the “five or more prior felony convictions” required to label him a “career offender.”  He also said that his current offense was not committed as part of a pattern of criminal conduct.

Mr. Franklin pled guilty to a felony drug offense.  He then agreed that he had the requisite five prior felony convictions and that his current offense constituted a “pattern of criminal conduct.”  He then apparently talked to a lawyer – he represented himself in the trial court – and then challenged both of those concessions on appeal.

The state said, wait a minute, didn’t you just admit to both of those things?  Well, yes, but a defendant cannot waive a sentencing issue that resulted in an illegal sentence.  State v. Maurstad, 733 N.W.2d 141 (Minn. 2007), which says that a sentence based on an incorrect criminal history score is an illegal sentence review of which a defendant cannot waive.  A career offender sentence that is based on an incorrect determination that a defendant had the requisite number of prior felony convictions is also an illegal sentence.  Can’t waive it.

Minn.Stat. 609.13, subd 1(2) says that a felony conviction is deemed to be a misdemeanor if imposition of a prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.  While it’s true that the court has recognized instances in which 609.13 doesn’t apply the court says that this isn’t one of them.  Consider, for instance, the civil rights restoration provision which imposes a prohibition from possessing, etc. firearms for ten years for a person who has been convicted of a “crime of violence.”  609.13 doesn’t apply because the legislature intended to impose this firearms restriction based on the kind of offense, not on the subsequent treatment of the offender.  State v. Moon, 463 N.W.2d 517 (Minn. 1990). 

Just exactly why “crime of violence” is any different from “pattern of criminal conduct” isn’t really addressed.  It seems that the legislature did, indeed, focus on the kind of offense – those that establish a “pattern” – which would make 609.13 inapplicable.  Moving along, the court glosses over this to pronounce that the legislature said an offender needed five prior felony convictions regardless of the behavior that produced any of them.  It is the classification of the conviction that matters.

Because one of Mr. Franklin’s prior convictions is deemed to be a misdemeanor under 609.13 he does not have the required five prior felony convictions.  The court sends the case back to the trial court for resentencing.  Having done so the court does not take up Mr. Franklin’s other claim about “pattern.”