State v. Montermini, Minn.Ct.App., 8/13/2012. Mr.. Montermini was the driver of a car involved in a two car accident back in January 2006. One of his passengers, B.F., died as a result of the accident; six others, two of whom were also in Mr. Montermini’s car, were injured. Mr. Montermini had been drinking heavily both before and during the car ride. After the accident, Mr. Montermini drove away from the scene of the crash; he came upon an unlit church parking lot where he left his unconscious passengers. An hour or so later a state trooper stopped Mr. Montermini’s car; roughly ninety minutes after that his alcohol concentration was still 0.15.
B.F. died some days after the accident, after which the state amended the initial complaint to charge Mr. Montermini with two counts of criminal vehicular homicide, three counts of kidnapping, and two counts of criminal vehicular operation resulting in substantial bodily harm. Mr. Montermini negotiated a plea agreement whereby he pled guilty to criminal vehicular homicide, criminal vehicular operation resulting in substantial bodily harm, and three counts of kidnapping to facilitate flight; he also agreed that the state could seek permissive consecutive sentencing on the kidnapping charges. In exchange for the plea, the state agreed to dismiss the remaining criminal vehicular homicide and injury charges, agreed not to file additional charges including third degree murder, and agreed not to seek an upward sentencing departure. The trial court imposed consecutive 48 month sentences on the kidnappings, imposed a stayed 78 month sentence on the criminal vehicular homicide, and imposed a stayed 17 month sentence on the criminal vehicular injury.
Mr. Montermini filed a post conviction petition in which he alleged ineffective assistance of counsel. The court of appeals agreed that counsel had been ineffective and reversed and remanded to allow him to withdraw his guilty pleas to kidnapping. On the state’s motion, the trial court on remand vacated Mr. Montermini’s remaining pleas and convictions. The state then added additional charges, which included murder in the third degree and more counts of criminal vehicular operation causing injury and more counts of kidnapping. At trial, Mr. Montermini only contested his guilt to third degree murder and the kidnappings. A jury convicted him of everything except the kidnappings. The trial court imposed an executed sentence of 174 on the third degree murder, imposed a concurrent 13 month sentence on the criminal vehicular operation resulting I substantial bodily harm, and imposed concurrent 365 day sentences on the other criminal vehicular operation counts.
On appeal Mr. Montermini argued that the trial court erred by vacating his remaining pleas and convictions,and by permitting the state to re-file new charges. He argued that the state waived its ability to seek an order vacating his unchallenged convictions because the state had not made that request during the post conviction proceedings. He argued that the action exceeded the scope of the remand order. He argued that the action violated his double jeopardy rights. Finally, he argued that the action permitted the state to engage in serial prosecution. The court of appeals ruled against him on all of these claims. In the course of addressing these claims that Mr. Montermini put forward, the court seemed especially drawn to this language from the initial guilty plea:
[I]f I withdraw the plea, with the court’s approval, or if the plea is withdrawn by court order on appeal or other review:
a. I would then stand trial on the original charges.
b. The prosecution could proceed against me just as if there had been no plea of guilty and no plea agreement.
Essentially, the court’s legal analysis was all in support of its feeling that Mr. Montermini was trying to have his cake and eat it too. He wanted to keep his pleas and convictions to the least serious charges but forbid the state from either reinstating or adding more serious charges that had either been bargained away or foregone.
Mr. Montermini also argued that the trial court should have given an instruction on second degree culpable negligence manslaughter as a lesser included offense of both third degree murder and criminal vehicular homicide. The defense had not requested this instruction during trial. The court of appeals concluded that the failure sua sponte to give an unrequested lesser included offense instruction was not plain error; moreover, not making the request appeared to be a “go for broke” trial strategy.
Lastly, the court of appeals rejects Mr. Montermini’s argument that the state’s evidence was not sufficient to support the third degree murder conviction.
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