Sunday, May 28, 2017

Separate Appellate Standard of Review For Circumstantial Evidence Cases Survives Challenge

State v. Harris., Minn.S.Ct., 5/24/2017.  When Minnesota appellate courts review a conviction that is based on circumstantial evidence - in whole or in part - it is one of a handful of states that applies a different standard of review than for convictions based upon direct evidence. Under this separate standard of review the appellate court identifies "the circumstances proved and independently consider the reasonable inferences that can be drawn from those circumstances, when viewed as a whole. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010."  Those inferences "as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.  State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015).  

A jury convicted Mr. Harris of being in possession of a firearm even though he's not supposed to be doing that.  In an unpublished opinion the court of appeals reversed that conviction, saying that the state had failed to present sufficient evidence to prove it.  The state asked the Supreme Court to review the case and to abandon this separate standard of review.  In a 5-2 opinion, Justice G. Barry Anderson declines that invitation, much to the annoyance of Justices Lillehaug and McKeig who dissented:
When we review convictions, we apply one standard for convictions based on direct evidence, and we apply another standard for convictions based on circumstantial evidence. And we have avoided announcing a definitive standard for review of convictions based on both kinds of evidence.
This confusing dichotomy between how we expect juries to decide cases and how we review their decisions has existed for almost 90 years. Nine decades of confusion is long enough. Evidence is evidence. Minnesota should join the appellate courts of the United States, 41 other states, and the District of Columbia in adopting a unified standard of review.
Oh, and the facts?  That's what's got the state really, really pissed off:
The circumstances proved that implicate Harris include: (1) on the night of March 4, 2014, Harris was driving a car, J.A. was sitting in the front passenger seat, and K.E. was sitting in the rear seat; (2) there was an active warrant for J.A.’s arrest; (3) after securing backup assistance, the police officer assigned to execute the arrest warrant activated the lights and siren on his vehicle; (4) Harris continued driving between 30 and 35 miles per hour for about three blocks after the officer activated his lights and siren; (5) the officer saw movement in the car; (6) when the police officer searched the car, he noticed that the headlining had been pulled down near the sunroof, to the right and slightly behind the driver’s seat, creating a small void; (7) the officer saw an object, which he clearly recognized as the butt end of a silver handgun, wedged in this void between the headlining and roof of the car; (8) a mixture of male and female DNA from five or more people was recovered from the firearm; and (9) subsequent DNA testing concluded that none of the occupants of the vehicle could be excluded as contributors to the DNA mixture found on the firearm, but 75.7% of the general population could be.
The state said that if these facts weren't enough to uphold the jury's conviction then the Court was "eviscerating" the construct of joint-constructive possession.  Justice Anderson seems unfazed by this plea, basically throwing out some homilies in response:
We recognize that courts must be cautious in addressing the sufficiency of evidence in a joint constructive possession case. Constructive possession is a legal concept that permits an inference that the defendant possessed an item found in a place in which others had access when “there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.” Florine, 226 N.W.2d at 611. In addition, two or more people can constructively possess an item jointly. Lee, 683 N.W.2d at 316 n.7. In a joint constructive possession case, the circumstances proved need not support a reasonable inference that the defendant actually possessed the item. Instead, the circumstances proved must support a reasonable inference that the defendant, singly or jointly, was at the time consciously exercising dominion and control over the item. The circumstances proved also would have to be inconsistent with a reasonable inference that the defendant, singly or jointly, was not consciously exercising dominion and control over the item at the time in question.
 Even more infuriating to the state, Mr. Harris actually conceded in the court of appeals that "reasonable inferences to be drawn from the circumstances proved [were] that [he] knowingly possessed the gun before it was hidden in the liner."  Again, the Justice sweeps this aside:
Because we conclude that, when viewed as a whole, there are rational hypotheses other than guilt consistent with the circumstances proved, we need not address the impact, if any, of Harris’s attempt to reframe his earlier concession.

Monday, May 22, 2017

Juvenile's Three Consecutive Life With Possibility of Release Sentences Do Not violate Miller/Montgomery

State v. Ali, Minn.S.Ct., 5/17/2017.  Mr. Ali shot and killed three men during a robbery of a local market when he was sixteen years old.  A jury convicted him of these murders and he now is serving three consecutive life sentences, so he must serve ninety years in prison before he is even eligible for parole release.  Now, he could live that long, but it's statistically not likely.  He argues here that the three consecutive life sentences, even with the possibility of release, are the "functional equivalent" of life imprisonment without possibility of release. The sentences thus violate the Miller/Montgomery Eighth Amendment prohibition of sentencing juveniles to life without possibility of release except "for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."

Justice Hudson, writing for all but Justice Chutich who dissented, took the easy way out and punted:
Because Miller and Montgomery involved the imposition of a single sentence of life imprisonment without the possibility of parole and the United States Supreme Court has not squarely addressed the issue of whether consecutive sentences should be viewed separately when conducting a proportionality analysis under the Eighth Amendment to the United States Constitution, we decline to extend the Miller/Montgomery rule to include Mahdi and other similarly situated juvenile offenders.
Back in the nineteenth century, 1892 to be exact, SCOTUS threw out a bit of dictum that essentially said that Eighth Amendment analysis focuses on the sentence imposed for each specific crime, and not on the cumulative sentence. , O'Neil v. Vermont, 144 U.S. 323 (1892).  This was good enough reason to ignore this century's "juveniles are different" Eighth Amendment jurisprudence, something this court is already pretty good at doing.  See Jackson v. State for the sordid history.

Wednesday, May 17, 2017

No Retroactivity For Birchfield/Thompson DWI Warrant Requirements

Brooks v. State, Minn.Ct.App., 5/15/2017.  Mr. Brooks has been litigating his three DWI convictions for nearly a decade.  The focus of this litigation has been his claim that the police needed a search warrant in order to collect either blood or urine samples.  Read about some of that here.  This litigation has led him to both Minnesota appellate courts multiple times, and to the U.S. Supreme Court at least once.  Although he has won some skirmishes along the way, his convictions remain on the books.

While all this running around has been going on, SCOTUS decided Missouri v. McNeeley, 133 S.Ct. 1552 (2013) (In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.; and Birchfield v. North Dakota, 136 S.Ct., 2160 (2016) (The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.). The Minnesota Supreme Court then decided State v. Thompson, 886 N.W.2d 224 (Minn). 2016), which begrudgingly accepted Birchfield.  

Mr. Brooks then fired what surely must be his last bullet, this post conviction petition.  He said that Birchfield and Thompson should be applied retroactively to his convictions.  Mr. Brooks said that these decisions did not announce "new rules of law" and thus under Teague v. Lane, 489 U.S. 288 (1989) must be applied retroactively. Well, who knows:
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. 
The court of appeals takes the risk-free pass and says that the aforementioned cases did, indeed, announce "new rules of law" and thus do not get retroactive application.  After all, the court of appeal shad already said that McNeely did not apply retroactively. O'Connell v. State, 858 N.W.2d 161 (Minn.Ct.App., 2015), review granted (Minn. 3/25/2015) and order granting review vacated, (Minn. 10/20/2015).  Mr. Brooks did not argue that either of the two Teague exceptions applied and so that was that.

Mr. Brooks threw in claims of ineffective trial and appellate counsel, but the court makes short shrift of both those claims.

Monday, May 15, 2017

Evidence Sufficient to Support Felony Murder; No Plain Error in Instructions

State v. Webster, Minn.S.Ct., 5/10/2017.  A jury convicted Mr. Webster of first degree felony murder for the killing of Eulalio Gonzalez-Sanchez. Here's how Mr. Webster said it happened:
On the morning of September 21, 2014, he and Blackwell had been smoking marijuana and were “money hungry.” They were “riding around [northeast Minneapolis] looking for a victim to rob” in Blackwell’s car when they spotted Gonzalez-Sanchez. Webster got out of the car with Blackwell’s gun in his pocket and approached Gonzalez-Sanchez with the intention of robbing him. He said he had brought the gun along as “back up” because GonzalezSanchez “was big.” Gonzalez-Sanchez saw Webster approaching and “act[ed] like . . . he was going to attack” him. When Webster pulled out the gun, Gonzalez-Sanchez surrendered, complying with Webster’s order to lie on the ground. Webster took GonzalezSanchez’s wallet from his back pocket and looked through it, but found nothing worth taking. He claimed that he did not see or steal Gonzalez-Sanchez’s cell phone.
Webster left the wallet on the ground and began walking away, scared and shaking. Gonzalez-Sanchez remained on the ground, and said something to Webster in Spanish. Webster said that this “really [made him] nervous.” Webster testified that he had walked about 5 feet away when suddenly, “something . . . forced [him] to stop” and “a demon jumped into [him]”—in other words, “something like a spirit came through [his] body.” Webster then turned and shot Gonzalez-Sanchez three times. He described the incident as “a robbery that went wrong.”
Mr. Webster said that the state had presented insufficient evidence to prove that the killing of Mr. Gonzalez-Sanchez occurred while he was attempting to commit an aggravated robbery.  Mr. Webster said that it had been the "spirit" that had come through him that caused the killing so he hadn't killed him "while" the robbery was going down.  Justice McKeig doesn't think too much of this theory. This is because, in part, after the killing Mr. Webster's homie, Mr. Blackwell, went back to check the body one last time for anything of value that could be taken, so technically, the robbery was still ongoing.

Mr. Webster also complained about the standard jury instructions for felony murder.  Because he did not object to the instructions the court reviews this under "plain error" analysis.  The court can't find that any error was "plain":  
Here, the district court instructed the jurors that the fourth element of the felony murder offense required that “at the time of causing the death of [Gonzalez-Sanchez], the defendant was engaged in the act of committing or attempting to commit the crime of aggravated robbery.” This instruction is consistent with the standard jury instruction set forth in the Criminal Jury Instruction Guide. 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 11.09 (6th ed. 2015). Moreover, the instruction does not contravene existing case law. We have never held that a district court is required to include language requiring a causal relationship between the felony and the killing in the jury instructions on first-degree felony murder. Thus, like the error alleged in [State v. ]Milton, 821 N.W.2d [789 (Minn. 2012) at 807, we conclude that the alleged error in this case was not plain.

Counsel's Misinformation About Consequences of Plea Is Not a Manifest Injustice

State v. Brown, Minn.Ct.App., 5/8/2017.  The state charged Mr. Brown with being an ineligible person in possession of a firearm. His ineligibility stemmed from a Florida conviction for an aggravated robbery and a couple other offenses.  Mr. Brown did some time in Florida and then went on probation, which Minnesota was supervising.  By all accounts, his Florida supervision was set to expire some four months after he agreed to plead guilty to the gun charge.

Mr. Brown's probation officers in both Florida and Minnesota confirmed this probation expiration date to his attorney, who in turn informed Mr. Brown.  Mr. Brown pled guilty to the gun charge, got probation and then got shipped off to Florida.  His Florida lawyer then told Mr. Brown that he was at risk of a life sentence as a result of his plea to the gun charge.

Mr. Brown moved to withdraw his plea.  He said that his plea had not been intelligently entered owing to not being informed about the potential life sentence.  (In fact, it's no potential; he's serving a life sentence.)  The post conviction court agreed, concluding that the life sentence was a "direct consequence" of the guilty plea to the gun case. Because Mr. Brown had not been informed of the possibility of this life sentence his plea was not intelligently made.

The court of appeals takes the post conviction court to task for its conclusion that the life sentence was a "direct consequence."  Such direct consequences are "definite, immediate[,] and automatic" and are "punitive and a part of a defendant's sentence.  Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002).  

Well, okay.  But isn't it a "manifest injustice" to permit a plea to stand that is based upon counsel's affirmative misinformation about a "collateral consequence"?  Apparently not:
The caselaw does not compel us to conclude that misinformation about a collateral consequence renders a plea unintelligent and manifestly unjust. And such a categorical rule would require plea withdrawals for misadvice even about collateral consequences of little significance with possibly no effect on the defendant’s decision to plead guilty.

Monday, May 1, 2017

"Carrying" a Pistol in a Public Place Includes an Unloaded Pistol That Is In a Secure Case

State v. Larson, Minn.Ct.App., 4/24/2017.  Mr. Larson, who has a valid permit to carry a pistol, went down to the First National Bank Building intending to partake of the shooting range that's in the basement of that building.  He rode downtown to the bank building, got out of the car, walked to the building on a public sidewalk, and went inside.  All the while he was holding a closed gun case which contained an unloaded pistol.  Because it turned out that Mr. Larson was under the influence of alcohol the city prosecutor charged him with carrying a pistol while under the influence of alcohol based on his act of holding the pistol in a case on a public sidewalk.

He moved to dismiss the charge.  He said that the statute did not extend to possession of an unloaded pistol securely enclosed in a gun case.  The trial court disagreed, and the court of appeals affirms.

When the legislature enacted the statute to permit persons to carry pistols in public it excluded a person's ability to do so if that person were under the influence of alcohol.  The statute does not, however, define "carry" so the court hauls out the dictionaries to give it a go:
Because the term “carry” is not a defined statutory term, we first address whether there is an ordinary usage of the word “carry,” which provides the term’s plain meaning. Occhino, 640 N.W.2d at 359. And ordinary usage may be determined with the aid of dictionary definitions. State v. Haywood, 886 N.W.2d 485, 490 (Minn. 2016). Here, “carry” has been defined as “[t]o convey or transport.” Black’s Law Dictionary 257 (10th ed. 2014). It also has the meaning of “[t]o keep or have on one’s person.” The American Heritage Dictionary of the English Language 294 (3d ed. 1992). Using these definitions, we conclude that, by its plain meaning, “carry” in Minnesota Statutes section 624.7142, subdivision 1, subsection 4, prohibits transporting a pistol on one’s person while under the influence of alcohol in a public place. Because the statute prohibits carrying “about” the person’s clothes or person, this includes situations in which the pistol is unloaded and in a case. See Minn. Stat. § 624.7142, subd. 1(4). 
The court also points to other statutes where the legislature was more precise in its language.  For instance, there is a statute that prohibits carrying a BB gun, rifle, or shotgun in a public place but expressly provides that "carry" doesn't including toting those weapons around unloaded in a fully enclosed case.  Minn.Stat. 624.7181, subds. 1(b)(2),2.  

Any Criminal Vehicular Operation Conviction Can Be Used to Enhance a DWI to a Felony Regardless of Statutory Language

State v. Boecker, Minn.S.Ct., 4/26/2017.  Sometimes the "plain language" of a statute just doesn't get you where you want to go:
Worn out phrases and longing gazes
Won't get you where you want to go, no.
Here's how Justice Chutich describes what's before them in this appeal from the court of appeals:
Appellant Ralph Joseph Boecker pleaded guilty to one count of first-degree driving while impaired (DWI) after the district court found that his 1998 conviction for criminal vehicular operation enhanced his 2015 DWI charge. See Minn. Stat. § 169A.24, subd. 1(3) (2016); Minn. Stat. § 609.21, subd. 2a (1996). Boecker argues that he is entitled to withdraw this plea because his 1998 conviction is not included in the list of predicate felonies in section 169A.24, which enhance a DWI charge to first-degree DWI. The sole issue here is whether a criminal vehicular operation conviction from 1998, a year not specifically listed in the current version of the first-degree DWI statute, can be used to enhance a DWI charge to a first-degree offense. We hold that it can, and we affirm the decision of the court of appeals. 
This is just too, too much for the originalist/literalist on the court, Justice Stras to bear:
The question in this case is whether a 1998 criminal-vehicular-operation conviction is a predicate offense that can transform appellant Ralph Boecker’s driving-while-impaired (“DWI”) charge into a first-degree offense. Resolving this question, like the one presented in Mims, turns on the plain and unambiguous language of a criminal statute—here, Minn. Stat. § 169A.24, subd. 1(3) (2016)—not on what behavior we think the Legislature may have believed it was criminalizing. See Mims, 2 N.W. at 492-93. The court’s answer to the question would allow an unlisted offense to enhance Boecker’s current crime, converting it from fourth-degree DWI, a misdemeanor with a maximum sentence of 90 days in jail, into first-degree DWI, a felony offense carrying a minimum sentence of 3 years in prison. Compare Minn. Stat. § 169A.276, subd. 1(a) (2016), with Minn. Stat. § 169A.27, subd. 2 (2016); Minn. Stat. § 609.03 (2016). My answer is different. I would conclude that the plain and unambiguous language of section 169A.24, subdivision 1(3), establishes that Boecker’s 1998 criminal-vehicular-operation conviction, which is nowhere to be found in the first-degree DWI statute, does not enhance Boecker’s current DWI offense.
Justice Hudson joined Justice Stras's dissent.

Court Rejects Challenges To Grand Jury Procedures, Evidentiary Rulings & Jury Instructions in Affirming Murder I Conviction

State v. Guzman, Minn.S.Ct., 4/12/2017.  A jury convicted Mr. Guzman of first degree premeditated murder.  The trial court sentenced him to life with possibility of release.  

The state's initial Complaint charged Mr. Guzman with second degree intentional murder.  At his first appearance the trial judge asked the prosecutor to notify the court and defense counsel if there was going to be a presentation to the grand jury.  The prosecutor apparently didn't say anything in response, but seventeen days later the state convened a grand jury which eventually returned the murder 1 indictment.  Mr. Guzman said that the indictment was untimely, citing to Rule 8.02, subd. 2:
If the complaint charges a homicide, and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the defendant cannot enter a plea at the Rule 8 hearing.
Presentation of the case to the grand jury must commence within 14 days from the date of defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time.
Justice G. Barry Anderson pointed to the court's opinion last year, State v. Vang, which rejected this very argument.

Mr. Guzman also wanted the entire grand jury transcript, not just the testimony of trial witnesses.  The court talked about this just the other week, State v. Loving, and laid out what the defense has to show in order to get the non-testimonial portion of grand jury proceedings.  The defense must show good cause to acquire the non-testimonial portion; the trial court found, and Justice Anderson agreed, that this burden had not been met.

Mr. Guzman defended in part by saying that a Mr. Hector was a third party perpetrator.  Mr. Guzman wanted to introduce "prior bad acts" of Mr. Hector, some of which the court allowed but most of which it excluded on evidentiary grounds:
Here, the district court allowed appellant to present evidence that at the time of Rufino’s death, Hector had consumed alcohol and possessed a firearm.11 The court, however, excluded the following reverse-Spreigl evidence as irrelevant: testimony that during the spring 2014 robbery Hector consumed alcohol and possessed a firearm and testimony about an alleged dispute between Hector and his neighbor that involved a gun. The court also excluded evidence that Hector and Rufino were gang members, concluding that the evidence was “innately prejudicial.” Finally, the district court excluded testimony regarding an alleged confrontation between Hector and J.R., finding that if it was offered for the truth of the matter asserted, it was hearsay, and if it was offered for impeachment, Hector did not have an opportunity to admit or deny it. 
The trial court allowed the state to introduce recordings of jail calls between Mr. Guzman and his girlfriend, some of which occurred while he was in jail on something else.  While the court didn't like it that the state told the jury how it was that it had these recordings it said that any error was harmless.

Once again, the whole business of "expansive liability" language in the jury instruction on accomplice liability came up:
The law further provides that a defendant who intentionally aids and abets another person in the commission of a crime is not only guilty of the intended crime but also any other crime which was a reasonably foreseeable and probable consequence of trying to commit the intended crime.
Appellant objected to the italicized language, which for purposes of this opinion we will call “the expansive-liability language.” According to appellant, the expansive-liability language is appropriate only when there is evidence that the defendant intentionally aided and abetted an accomplice in the commission of a crime, like robbery, and the accomplice commits another crime that was reasonably foreseeable to the defendant, like murder. 
The court says that if there were any error it was harmless.

Neither Newly Discovered Evidence Nor Ineffective Assistance of Counsel Claims Enough For New Trial

Mosley v. State, Minn.S.Ct., 4/26/2017.  A jury convicted Mr. Mosley of first degree murder, which the supreme court affirmed a couple of years back.  Mr. Mosley alleged in this post conviction petition that he was entitled to a new trial based upon newly discovered evidence of five signed affidavits from alibi witnesses; he also said that both trial and appellate counsel had provided ineffective assistance of counsel.  The affidavits generally said that Mr. Mosley was in St. Louis at the time of the homicide. Justice McKeig affirms the post conviction court's summary denial of this claim, saying that it appeared that defense counsel knew of two of the claims and the other three were cumulative of the alibi testimony that had been presented at trial.  On the performance of counsel, it's pretty much the same; even had counsel found more alibi witnesses it wasn't likely to have changed the outcome of the trial.  That being the case, appellate counsel did nothing wrong in not accusing trial counsel of being ineffective.

Wheels on the bus just go round and round.

Despite Statutory Language To The Contrary a Motel Room is a "Building" Unto Itself Under the Burglary Statute

State v. Lopez, Minn.Ct.App., 4/24/2017.  Mr. Lopez was staying in a motel out in Wilmar.  He entered Z.D.'s motel room, which was unlocked, and stole Z.D.'s cell phone and wallet while Z.D. was in the shower.  The state charged Mr. Lopez with theft and with first degree burglary.  The trial court convicted Mr. Lopez of both counts.

On appeal Mr. Lopez said, as he had during trial, that he had not entered a "building" without consent because he was staying at the motel - a "building", surely -, and that Z.D.'s separate motel room was not a "building. The court of appeals said no to both of these claims.

Everyone agreed that Mr. Lopez had consent to enter the motel, itself; after all, he'd rented a room (different from Z.D.'s room).  So, the conviction for the burglary turns on whether Z.D.'s room is a "building," or more accurately, a "sub-building". Mr. Lopez said that it was not, pointing in particular to the arson statute that says that “If a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.”  Minn. Stat. § 609.556, subds. 1, 3 (2014). 

Looking directly at the burglary statute - or to what's not in the burglary statute - he also pointed out that until 1983 the definition of "building" in the burglary statute expressly included "portions of such structure as are separately occupied." Like a motel room. Removing that language, he argued, indicated the legislature's desire not to treat individual, enclosed spaces within a larger building - alas, a motel room - as separate "buildings."  Rather than simply pointing to what's not in the burglary statute the court of appeals says that the post 1983 language is ambiguous.  Further, although it has skirted around the question of whether under the post 1983 burglary statute a "building" encompasses sub-units like Z.D.'s motel room it has not answered the question.  Time to haul out the dictionaries and Phoenix-like raise up the old statute.

Where the court finds that a "structure" includes anything intentionally constructed from component parts.  A motel room fits that definition so the court is half way home.  To complete the journey the court looks to the statutory definition of a "building." The statute says that a "building" is a  "structure" that is "suitable for affording shelter for human beings."  Well, a motel room is by its very existence "suitable for affording shelter for human beings." That's the whole point:
We are mindful of the fact that the legislature modified the definition of “building” for the crime of burglary in 1983 and, in doing so, did not expressly provide that a separate unit “shall be deemed a separate building,” as it did for arson. Minn. Stat. § 609.556, subd. 3. We are also mindful that our holding means that both a motel and a rented room within the motel qualify as a “building” for the purposes of the burglary statute. But inartful language is not necessarily ambiguous language. And we conclude that the statute as written unambiguously defines a motel room as a “building.” 
The court thus reinserts the very language that the legislature struck out thirty-four years ago.  Sigh.

Sunday, April 9, 2017

Misdemeanor Domestic Assault Is Not Lesser Included Offense of Second Degree Assault

State v. Nyagwoka, Minn.Ct.App., 4/3/2017.  The state charged Mr. Nyagwoka with assault in the second degree.  Mr. Nyagwoka decided to have a bench trial, at the end of which the judge had some doubt whether the state had proven its case.  So, on its own the court found mr. Nyagwoka guilty of misdemeanor domestic assault.  Mr. Nyagwoka argued on appeal that misdemeanor domestic assault was not a lesser included offense of assault in the second degree.

The court of appeals agrees.  The court says that misdemeanor domestic assault is not an included offense of second degree assault:
Misdemeanor domestic assault does not constitute an included offense of second degree assault under any of these statutory definitions. Because misdemeanor domestic assault is neither an attempt offense nor a petty misdemeanor, it is not “[a]n attempt to commit the crime charged,” “[a]n attempt to commit a lesser degree of the same crime,” or “[a] petty misdemeanor necessarily proved if the misdemeanor charge were proved.” Id., subd. 1(2)–(3), (5). 
The court also says that misdemeanor domestic assault is not a lesser degree of second degree assault:
Because misdemeanor domestic assault is not a lesser degree of second-degree assault, it is not an included offense under section 609.04, subdivision 1(1). 
And, finally, it is not an offense necessarily proved by proof of second degree assault:
“An offense is necessarily included in a greater offense if it is impossible to commit the greater offense without committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006) (quotation omitted). “In determining whether one offense necessarily is proved by the proof of another, the trial court must look at the statutory definitions rather than the  facts in a particular case.” State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quotation omitted). To prove second-degree assault, the state must show that the defendant “assault[ed] another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1. Misdemeanor domestic assault requires proof that the defendant “intentionally inflict[ed] or attempt[ed] to inflict bodily harm” “against a family or household member.” Minn. Stat. § 609.2242, subd. 1(2). Because second-degree assault does not require proof that the victim is a family or household member, it is possible to commit second-degree assault without also committing misdemeanor domestic assault. Misdemeanor domestic assault therefore is not an included offense under section 609.04, subdivision 1(4).

Evidence of Premeditation Sufficient

Loving v. State, Minn.S.Ct., 3/22/2017.   A jury convicted Mr. Loving of first degree premeditated murder, and some other crimes not pertinent to this combined direct appeal/post conviction appeal. Apparently over an $80.00 debt, Mr. Loving shot and killed Gilbert Jordon.  Mr. Jordon had nothing do do with the dispute over the debt between Mr. Loving and Mr. Jordon's brother.

On appeal Mr. Loving said that the state had failed to prove premeditation.  Justice Stras went through the facts and applied them to the standard issue law on proof of premeditation and concluded that the state had met its burden.
Several basic principles about premeditation guide our analysis. First, we have explained that, although a defendant does not have to engage in extensive planning or deliberate for a specific amount of time, the formation of intent and premeditation cannot occur simultaneously. State v. Hurd, 819 N.W.2d 591, 599 (Minn. 2012). Instead, the State must prove that, “ ‘after the defendant formed the intent to kill, some appreciable  time passed during which the consideration, planning, preparation or determination . . . prior to the commission of the act took place.’ ” Id. (quoting State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992)). Second, we examine the evidence as a whole, including the actions taken by the defendant before and after the crime, to determine whether premeditation existed. See id. Three categories of evidence are particularly helpful in evaluating whether premeditation existed: planning activity, motive, and the nature of the killing. Id.
Mr. Loving had wanted to introduce evidence of other past violent incidents at the gas station where all this took place.  The difficulty for Mr. Loving, which caused the trial court to deny his request to introduce this evidence, was that he presented no evidence that he had participated in any of these events, that he knew anyone who had done so, or that he was even aware of these incidents.  The upshot was that none of this evidence supported explained what was going through his mind when he fired off the seven rounds.

Finally, Mr. Loving complained that he should have been given the non-testimonial portion of the grand jury transcript.  Mr. Loving had sought the transcript to pursue a prosecutorial misconduct argument.  The trial court reviewed the transcript and pronounced that there was no evidence of such misconduct and so the court denied the request.  It's not clear whether Mr. Loving got the testimony of any witnesses who testified at the grand jury and at trial, which the rules say he is entitled to just by asking:
Once a defendant files a motion, the court must order the disclosure of, among other things, the “defendant’s grand jury testimony”; “the grand jury testimony of witnesses the prosecutor intends to call at the defendant’s trial”; and in limited circumstances, “the grand jury testimony of any witness” the defendant expects will give “relevant and favorable testimony for the defendant.” Minn. R. Crim. P. 18.04, subd. 2. If the requested portions of the transcript fall into one or more of the designated categories, then the court must order the release of those portions of the transcript upon motion by the defendant, subject to a protective order, and no showing of good cause is necessary to obtain them. Id.

Sunday, April 2, 2017

Criminal History Score Decay Calculation is From Discharge/Expiration of Sentence to Start Date of a Continuing Offense.

State v. Washington, Minn.Ct.App., 3/27/2017.  The state charged Mr. Washington with violation with the predatory offender registration law. One of Mr. Washington's prior convictions hit the fifteen year decay milestone during the commission of the new offense.  He said that the trial court could not, therefore, count that decayed conviction in computing his criminal history score.

The Guidelines say that the decay is measured as fifteen years since the date of discharge or expiration of sentence to the date of the current offense.  The court says that this calculation is from either discharge or expiration to the state date of a continuing offense.

Extrapolation of Drug Weight Insufficient Proof of That Element

State v. Carpenter, Minn.Ct.App., 3/27/2017.  Fair warning:  this is a case about statistics.  For those of you who've stuck around, it's also about hubris.


The cops seized sixty-four individually wrapped plastic baggies of suspected heroin.  The state charged Mr. Carpenter with first degree sale, which requires ten grams or more of heroin; and with first degree possession, which requires twenty-five grams or more.  Budgets being what they are, the BCA used something called the "hypogeometric sampling plan".  Check it out.  The BCA tester did whatever this sampling plan said to do and it spit out a number:  19. Test nineteen bags, that's all.  So, that's what she did. And came up short of the required ten grams by almost a gram for the sales count. Not to worry, she pronounced some more statistical words and concluded that she was 95% confident that 90% of the total ninety percent of the total sample contains the same substance as the nineteen tested.  Read for yourself what happens next:
Goldstrand testified at Carpenter’s trial that the hypogeometric sampling plan supports a 95% confidence rate that 90% of the total population size contains the same substance as the 19 test samples. Based on Goldstrand’s testimony, the district court concluded that, of the 31.333 grams of the substance seized, at least 28.1997 grams consisted of heroin—28.17 grams is 90% of the total sample. Because 28.1997 grams is above the 25-gram statutory amount required for first-degree aiding and abetting the possession of a controlled substance, and the ten-gram statutory amount required for first degree aiding and abetting the sale of a controlled substance, the district court found Carpenter guilty of both charges
Mr. Carpenter chose to have a bench trial.  Defense counsel moved for a judgment of acquittal based upon the weight of the heroin. The trial court looked at the rule, Rule 26.03, and concluded that it only applied to jury trials.  Motion denied.

The rule does say, "jury" multiple times, so a literal reading of the rule supports the trial court's conclusion.  To avoid this absurd result, the court of appeals has to reach back all the way to the beginning of the criminal rules, to rule 1, which says that the rules - all of the rules - apply without differentiation between jury and bench trials to prosecutions for felonies, gross misdemeanors, misdemeanors and, and, petty misdemeanors.  The judge got this one wrong.

And the Minnesota Supreme Court has already said, no, to this statistical sampling method for proof of weight.  State v. Robinson, 517 N.W.2d 336 (Minn. 1994).  Extrapolation of weight through random testing is inappropriate when the substance being sampled has a high risk of substitutes; drug dealers mix bogus substances with the real stuff all the time.

An Officer Who Makes a Discretionary Warrantless Arrest is Engaged In Performance of Official Duties

State v. Litzau, Minn.Ct.App., 3/27/2017.  The local sheriff's office went out to arrest Mr. Litzau on a parole violation.  In response to the deputy's news that he was under arrest Mr. Litzau took off.  The deputy caught him anyway and the state charged Mr. Litzau with obstruction of legal process and fleeing a peace officer.  Mr. Litzau argued that an officer is "engaged in the performance of official duties" only when performing a mandatory act.  Because the decision whether to make a warrantless arrest of someone is discretionary then the deputy wasn't "engaged" in arresting him.  

The court of appeals pretty much shut the door on that argument in State v. Shimota, 875 N.W.2d 363 (Minn.Ct.App. 2016), review denied (April 27, 2016).  The state does not have to prove that the deputy was required to arrest Mr. Litzau in order to establish that he was "engaged" and so forth.

Mr. Litzau also said that the statute does not prohibit obstructing one's own arrest.  After all, the statute only prohibits obstructing the arrest "of another person charged with or convicted of a crime." The state had two responses to this: first a procedural claim that Mr. Litzau had forfeited it by not raising it in the trial court; and it's nonsense.  On the forfeiture claim, because Mr. Litzau's argument presents a sufficiency of the evidence question he has not forfeited the claim.  The court does reject the merits of the claim:
Creative though it is, we reject appellant’s argument. Minn. Stat. § 609.50, subd. 1(2), plainly applies to a person who obstructs or resists an officer arresting that person as part of that officer’s official duties. 

Granting State's Motion to Reopen Case in Chief in Response to Defense Motion For Judgment of Acquittal Not an Abuse of Discretion

State v. Thomas, Minn.S.Ct., 3/22/2017.  Well, timing is everything. During Mr. Thomas' trial for gross misdemeanor DWI - which requires proof of two or more prior impaired driving incidents -  the state neglected to offer into evidence those prior impaired driving incidents. Defense counsel pounced on that, moving for a judgment of acquittal. This flummoxed the trial judge, who immediately fled to chambers. This let the prosecutor catch her breath.  The minute the trial judge took the bench she shot up to request to reopen her case in chief.  Defense counsel complained that permitting the state to reopen it case in chief would be really unfair because she only knew to make the request after the defense asked for the judgment of acquittal.  The trial judge allowed the state to reopen, she introduced the aforesaid prior convictions and that was that.

Chief Justice Gildea says unfair or not it's okay to permit the state to reopen its case in response to a defense motion for a judgment of acquittal, agreeing with both the trial court and the court of appeals. She points to the language of the pertinent rule, 26.03, subd. 18(2), which says that when the defense moves for a judgment of acquittal at the end of the state's case the trial court "must rule on the motion."  The language, however, does not say that the court must "immediately" rule on the motion.  The chief says that the purpose of the rule requiring the trial court to rule on the motion is to protect the defense from having to come forward with evidence that would fill the gaps in the state's case. Since the defense here had no intention of filling anyone's gaps the purpose of the rule is maintained, ignoring, or course, that this interpretation harms the defense by giving the state a second bite at the apple.

That just leaves the unfairness of the whole thing.  But it's not fairness, it's discretion.  The court has no difficulty deciding that the trial court had not abused its discretion by granting the two motions - the reopening motion and the acquittal motion - in reverse order.

Sunday, March 26, 2017

Petitioner Not Entitled to Post Conviction Relief Based on Newly Discovered Evidence and Ineffective Assistance of Counsel

Pearson v. State, Minn.S.Ct., 3/22/2017.  In this his second petition for post conviction relief Mr. Pearson said that he had newly discovered evidence that entitled him to a new trial, and that both his trial and appellate counsel had provided ineffective assistance of counsel.  Read about the first, combined direct appeal and post conviction petition here.  The post conviction court summarily denied the petition, and Justice Chutich affirms.

The court made short shrift, applying well recognized law for considering newly considered evidence, in rejecting the new evidence claim.  Mr. Pearson based his trial ineffectiveness claim on the assertion that trial counsel had told him to reject a plea offer for second degree murder - the initial charges were first degree premeditated murder - because the state could not prove premeditation.  Both the trial court and Justice Chutich concluded that this claim was barred under Knaffla because Mr. Pearson knew about it back during the combined direct appeal/post conviction appeal and didn't raise it.  Moreover, he also could not satisfy either of the two Knaffla exceptions.  Once again, the court ducks the question whether these exceptions survive the 2005 amendments to the post conviction statute.


On These Facts, A Twenty-One Month Delay Between Charge and Arrest Did Not Violate Sixth Amendment Speedy Trial Right

State v. Osorio, Minn.S.Ct., 3/22/2017.  Mr. Osorio complained that a twenty-one month delay between the date that the state charged him with a crime and the date of his arrest violated his Sixth Amendment right to a speedy trial.  The trial court agreed and threw the case out. The court of appeals reversed the trial court and now Justice G. Barry Anderson affirms the court of appeals, over the dissents of Justices Hudson and Strass.  With two members of the court - Chutich and McKeig, not participating, it's a 3-2 opinion.

Justice G. Barry Anderson again awards the length of delay factor to Mr. Osorio.  The blame for the delay also goes to the State:
Thus, while Osorio may have had an obligation or responsibility to respond to the summons because it was a valid court order, he did not have a constitutional duty to bring himself to trial.
The State, on the other hand, does have a responsibility to diligently pursue and prosecute the defendant. See Doggett, 505 U.S. at 652-53. In this case, the State was clearly aware of Osorio’s whereabouts and could have easily followed up on his location by contacting law enforcement officials in California. The State’s complete failure to take any steps to execute the warrant against Osorio is the reason for the delay in this case. 
But, the Justice concludes (somehow) that the failure to take steps to get Mr. Osorio back to Minnesota wasn't intentional so it gets only a mild slap on this factor.

On the third factor, assertion of the speedy trial right, the court does reject the notion that there was a presumption that Mr. Osorio received the summons and complaint because the same were not returned. Instead, the court looks to the "totality of the circumstances" to conclude that he got those papers and then sat back to await further developments.  So, this factor goes against Mr. Osorio.

Finally, Mr. Osorio sort of loses the prejudice factor on the facts of the case.
Although the State “has not, and probably could not have, affirmatively proved that the delay left [the defendant’s] ability to defend himself unimpaired,” Doggett, 505 U.S. 658 n.4, Osorio’s acquiescence to the delay reduces the weight that we afford his claim of generalized prejudice. As a result, the prejudice factor does not provide significant support for Osorio’s claim. 
Mr. Osoria had alleged that some recordings had been destroyed but he was unable to show when that destruction occurred.  The record did not establish that they were lost after the State charged Mr. Osorio, so he could not really show prejudice as a result of that destruction.

Justices Hudson and Stras thought that the third and fourth factors weighed in Mr. Osorio's favor and that his Sixth Amendment speedy trial right was, indeed, violate.

Imposing a Conditional Release Period at the Time of Execution of Previously Stayed Sentence is Okay

Thong v. State, Minn.Ct.App., 3/20/2017.  Mr. Thong pled guilty to first degree driving while impaired.  The plea petition that he signed had the standard issue language that a felony driving while impaired offense required a period of conditional release following any executed prison sentence that was imposed.  The trial court stayed execution of a 42 month sentence and placed Mr. Thong on probation.  The sentencing order did not impose the conditional release period.

Fourteen months later Mr. Thong violated his probation so the trial court executed the forty-two month sentence.  The trial court initially did not impose the conditional release term but later the same say the court amended the warrant of commitment to include that term. Mr. Thong filed this post conviction petition saying that he should be allowed to withdraw his guilty plea or have his sentence amended to remove the conditional release term.  The  post conviction court denied both requests.

Minn.Stat. 169A.276, subd. 1(d) requires that a five year conditional release term be imposed "when the court commits a person [convicted of first degree DWI] to the custody of the commissioner of corrections."  It turns out that when a trial court stays execution of a sentence it's not really "committing" that person to the custody of the commissioner of corrections.  That "committing" only occurs when the sheriff  hauls the defendant off to jail to await transportation up to St. Cloud for classification. The appellate court does suggest that the better practice is to pronounce the conditional release period at the time of sentencing

Sunday, March 19, 2017

A Felony Deemed To Be A Misdemeanor Cannot Be Expunged

State v. S.A.M., Minn.S.Ct., 3/15/2017.  Twelve years ago S.A.M. pled guilty to a second degree burglary.  He received a stay of imposition of sentence, which became a misdemeanor a mere three years later upon release from probation.  In 2015 S.A.M. applied for an expungement; he stated that  he'd obtained a bachelor's degree, purchased a home, stopped drinking, was raising his eight year old son and stopped hanging out with his co-defendants. 

S.A.M. made his application under the provision of the expungement statute that allows a person to request the same when the person:
was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime.
Everyone screamed bloody murder:  the county attorney, the city attorney (for some reason), the BCA, the police all objected.  Not on the merits of the application.  No, they all said, and the trial court agreed, that S.A.M. had not been convicted of a misdemeanor notwithstanding Minn.Stat. 609.13,  subd. 1(2).

Justice G. Barry Anderson agreed with the trial court and all those state agencies in a 4-3 opinion.  Justices Lillehaug, Chutich and McKeig dissented:
By shutting the door to expungement for people like S.A.M., the court reduces opportunities for rehabilitated offenders to become productive members of society. Read properly, the law does not require this harsh result. I hope that the Legislature will clarify the expungement statute to reopen this door. Clarification would further what the Legislature has declared to be the state’s official policy: “to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship.” Minn. Stat. § 364.01 (2016).
The majority decided that the "was convicted" language referred only to the initial sentence and not the final outcome.  In coming to this conclusion the court continues to ascribe way too much faith in the ability of the legislature - comprised of part timers who haven't seen a pay raise in twentysome years - to draft (and enact) statutes on the same subject consistently.  Case in point is State v. Franklin, 861 N.W.2d 67 (Minn. 2015).  There the court was asked to determine whether a felony conviction that had been reduced to a misdemeanor counts in determining whether an offender “has five or more prior felony convictions” under the career offender statute.  Only because the legislature used the present tense – “has -  did the court say, no, it doesn’t count.  Presumably, had the legislature said “had previously been convicted of five or more felonies” then it would have counted.  It is the height of hypocrisy for a court that is constantly admitting to its own sloppy draftsmanship in past decisions to insist rigidly on legislative exactitude in its drafting practices. 

So, S.A.M. has to live with his misdemeanor being public.

Monday, March 13, 2017

Dismissal of Revocation Proceedings That Were Timely and Properly Initiated Because Hearing Occurred After Expiration of Probation is Erroneous

State v. Sagataw, Minn.Ct.App., 3/6/2017.  Mr. Sagataw was on probation for a term of one year for something, doesn't matter. Within that year the state commenced a revocation action based on new convictions.  Ms. Sagataw made her initial appearance a couple of weeks after the term of probation expired, and the actual hearing on the revocation didn't occur for another couple of months.  At that hearing the district court dismissed the revocation action, concluding that because Ms. Sagataw's probation term had not been extended the court had no jurisdiction.

The court of appeals rejects this conclusion.  On appeal Ms. Sagataw conceded that the trial court had retained jurisdiction; there's a statute for that.  Minn.Stat. 609.14, subd. 1(b).  Instead, she argued that the trial court had discretion to dismiss the proceedings and to discharge her from probation.  While the trial court had such discretion, in this case it exercised it for the wrong reason, the timing of the hearing.

Jailer's Insistence on Use of Specimen Cup For Independent DWI Test Did Not Prevent Independent Testing

Willits v. Commissioner of Public Safety, Minn.Ct.App., 3/6/2017. Not a criminal case but too amusing to pass up.  A state trooper stopped and then arrested Mr. Willits for driving while impaired. At the station he first spoke with an attorney and then agreed to take a breath test.  Mr. Willits also decided that he wanted to take an independent test, so he made some calls to arrange it, including one to his spouse with directions to bring a Tupperware container to the jail.  His spouse showed up at the jail where jail staff escorted her back to the booking area; she had th Tupperware container for the purpose.

But, the jailor also provided Mr. Willits with a "medical-grade sterile specimen cup for Willits to use to collect his urine."  Mr. Willits filled the specimen cup even though his "container of choice" was Tupperware; must be the lids.

Mr. Willits lost his implied consent hearing where he claimed that the jailors had impeded, if not denied him his right to an additional test.  He relied upon an unpublished court of appeals opinion which had reached just that result because the jailor actually did deny some fellow - the court of appeals does not even identify the name of this unpublished opinion - a container of his choice.  The trial court had found that Mr. Willits had access to both containers when he peed into the specimen cup, and Mr. Willits could offer no evidence that there was anything wrong with the specimen cup.

Sunday, March 12, 2017

Supreme Court Overturns Court of Appeals Decision That "Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.S.Ct., 3/8/2017.  Just a couple of weeks ago the court was unable to say whether an adult who has sex with a child has engaged in the “sexual abuse of a minor” under the immigration statutes.  This reluctance seemed to be both to protect defense attorneys from malpractice claims, and to prevent the defendant, who is not a citizen, from being able to take back his guilty plea and perhaps avoid deportation.

This week, the court has no difficulty whatsoever in determining that a much more opaque and complex statute did not violate free speech protections of the First Amendment. In doing so, Chief Justice Gildea reverses the court of appeals which had said that the "grooming" statute was facially unconstitutional.

Ms. Muccio sent a close-up of a female's genitals, a close-up of a female's buttocks covered by a thong, and a female naked from the waist to the neck to a fifteen year old.  Ms. Muccio and the fifteen year old also had sexually explicit conversations and exchanged sexually explicit photographs.  The state charged Ms. Muccio with communication with a minor describing sexual conduct in violation of Minn.Stat. 609.352, subd. 2a(2).  She moved to declare this statute unconstitutional and the trial court granted that motion.  The state brought this appeal.

Here's what the statute says:
A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. 

The court does conclude that this statute is overbroad because it does regulate some protected speech.  So, the justices reign in just who and what the statute covers.  First, the adult's "engaging" behavior must be directed at a child:
we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.
Non-targeted mass internet communications do not come within the ambit of the statute.  The statute's intent requirement, "with intent to arouse the sexual desire of any person," means just that:  any person and not just the adult or child who are engaging in the communication.  The court more or less just jumps to the conclusion that mass internet communications won't meet that intent requirement.  Whatever protected speech gets swept up in the statute is not substantial enough to invalidate the statue.

Thursday, March 9, 2017

Defense Counsel Need Only Read The Immigration Statute - Never Mind Cases - To Satisfy Duty To Provide Immigration Consequences Advice Under Padilla

Sanchez v. State, Minn.S.Ct., 2/22/2017.  Talk about perfect timing. Justice Stras gets to suit up in his professorial robes, mount the podium and teach the rest of us a little bit about the Kafkaesque work of immigration.  Sorry, no Powerpoint.  Mr. Herrera Sanchez pled guilty to third degree criminal sexual conduct, which led ICE to initiate removal proceedings against him.  To avoid that Mr. Herrera Sanchez moved to withdraw his guilty plea; he said that his attorney provided ineffective assistance by failing to accurately inform him that his plea would lead to his removal.  

So, just what advice did counsel provide to Mr. Herrera Sanchez? Well, first counsel had him execute the standard issue plea petition which has this to say about immigration:
My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship.” (Emphasis added.)
This is bad advice in Mr. Sanchez's case, which ICE agents demonstrated by arresting Mr. Sanchez the moment he left the court room.  Next, during the plea colloquy counsel told Mr. Herrera Sanchez that his plea of guilty "could result in either deportation, exclusion from admission to the United States, or denial of citizenship."   More bad advice, see ICE actions.  At the post conviction hearing, defense counsel testified that he told Mr. Sanchez that he would be deported as a result of his plea.

At sentencing the court gave Mr. Herrera Sanchez a stay of imposition of sentence. As mentioned already, this turned out to be a short-lived perk because ICE took Mr. Herrera Sanchez into custody as soon as the gavel fell. ICE then issued a final administrative removal order, explaining that third degree criminal sexual conduct involving a minor was an "aggravated felony" under the immigration laws. Any alien who is convicted of an aggravated felony at any time after admission is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).

Mr. Herrera Sanchez said that Padilla required his counsel to have advised him that his plea would result in his deportation rather than just that deportation was a possibility.  Padilla, says that when the consequences of a plea are "succinct and straightforward" then counsel has to convey what that consequence is.  Otherwise, counsel need only provide some vague, lawyer esque answer, "Well, this may happen or that may happen, no one really knows."  Therein lies the rub: how does counsel ascertain whether the immigration consequences of a plea are "clear and certain."  

Both immigration administrative interpretations and case law state that Mr. Herrera Sanchez's plea rendered him deportable.  The statutes, not so much.  There are two statutes that render a noncitizen presumptively deportable for the commission of an "aggravated felony" and "sexual abuse of a minor" is included in the list of felonies considered to be "aggravated".  The problem is, however, that Congress left it to immigration and the courts to flesh out just what state crimes constituted "sexual abuse of a minor." Justice Stras makes the somewhat dubious claim that the federal courts have not been able to agree that an adult who rapes a child has committed "sexual abuse of a minor."  He supports this claim by citing Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016), which doesn't say that at all:
Because it requires no mens rea, the Utah statute punishes a broader range of conduct than the conduct that falls within the INA's generic “sexual abuse of a minor” offense, which requires proof of at least a “knowing” mens rea. A conviction under the Utah statute, then, does not fall categorically within the INA's generic “sexual abuse of a minor” offense; Rangel–Perez's Utah conviction does not qualify as an “aggravated felony” under the INA; and he is not disqualified from seeking discretionary cancellation of removal.
Although Justice Stras clearly relishes diving into the weeds to root out the intricacies of federal immigration law he concludes that it's way beyond defense counsel's constitutional requirements of effective assistance of counsel to do the same.   Essentially he says just read the statute; if it's not abundantly clear then any old answer will do. 

Justice Lillehaug concurred in the result.  He said that it was "clear as a bell" that Mr. Sanchez would be deported as a result of his plea; ICE drove home that clarity by arresting Mr. Sanchez the minute he left the courtroom.  Justice Lillehaug essentially chides Justice Stras for the lecture as being unnecessary.  This is because at the post conviction hearing defense counsel testified that he did advise Mr. Sanchez that he would be deported if he pled guilty. The post conviction court accepted that assertion in its findings of fact. End of story, Padilla's duty fulfilled.

Sunday, February 19, 2017

No Error In Granting For Cause Challenge To Prospective Juror Who Lied on Juror Questionare

State v. McKinley, Minn.Ct.App., 2/13/2017.  A prospective juror in this criminal sexual conduct case flat out lied about his prior record. In answer to a question on the written questionnaire about whether he'd been arrested or convicted of a crime the juror owned up to some but not all of such incidents.  The state moved to strike this juror for cause and the trial court granted that request.

Mr. McKinley on appeal said that because the rule, Rule 26.02, subd. 5(1)(1), does not explicitly list "not being forthcoming" as a basis on which to challenge a juror for cause the trial court abused its discretion by granting the challenge.  This is a "plain error" review of this claimed error and the court doesn't get past the first requirement, that the error be "plain".  
A juror may be challenged for cause when “[t]he juror’s state of mind—in reference to the case or to either party—satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.” Minn. R. Crim. P. 26.02, subd. 5(1)(1). McKinley is correct that nothing in the rule explicitly allows the district court to excuse a juror for cause because a juror does not give truthful, candid answers to the court’s questions on a juror questionnaire or during voir dire. But the rule allows a court to dismiss a prospective juror if the juror demonstrates a state of mind that satisfies the court that the juror cannot try the case impartially. See id.