A Rule 27.03 Motion to Correct Sentence Not Subject to Two Year Limitations Period

State v. Vazquez, Minn.Ct.App., 10/29/2012.  Mr. Vazquez is serving a 406 month sentence for a second degree murder conviction from back in 2001.  He recently filed a motion to correct or reduce his sentence under Rule 27.03, subd. 9 of the rules of criminal procedure.  He said that his criminal history score had been miscalculated, which resulted in a lengthier sentence than the Guidelines specified.  The first time through the district court treated the motion as a petition for post conviction relief and said that it was barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976) because Mr. Vazquez could have raised this issue on direct appeal.  The court of appeals reversed that determination, saying that a sentence that is based on an incorrect criminal history calculation is illegal and review of an illegal sentence cannot be waived.

The second time through the district court said, okay, it’s still a post conviction petition and it’s time barred under the limitations provisions of the post conviction statute.  So there.

Now, this is murky water, indeed, when both the post conviction statute and a criminal rule square off.  For instance, a motion under Rule 15 to withdraw a guilty plea after sentencing must be raised in a post conviction petition.  James v. State, 699 N.W.2d 723 (Minn. 2005).  On the other hand, the court of appeals seems to believe that the supreme court has “permitted” Rule 27.03 motions to be treated as a post conviction petition but has not absolutely required it.  Powers v. State, 731 N.W.2d 499 (Minn. 2007).  This is a somewhat dubious proposition in the face of this footnote from the Powers opinion: 

Powers does not challenge the district court's decision to treat his motion as a petition for postconviction relief. The district court's decision finds support in the language of Minn.Stat. § 590.01, which is broad enough to encompass a motion pursuant to Minn. R.Crim. P. 27.03. See Minn.Stat. § 590.01 (2006) (allowing a convicted person to petition the district court to correct a sentence); Minn. R.Crim. P. 27.03, subd. 9 (“The court at any time may correct a sentence not authorized by law.”); see also State v. Stutelberg, 435 N.W.2d 632, 633 (Minn.App.1989) (characterizing the appellant's motion as a “motion for postconviction relief under Minn. R.Crim. P. 27.03, subd. 9”).

Rule 27.03, subd. 9 does say that a “court may at any time correct a sentence not authorized by law.”  At any time.

Which is good enough for the court of appeals.  Seemingly adopting Justice Stras’ literalness approach to jurisprudence, “at any time” means, well, it means whenever.  The problem is, Rule 15.05 says exactly the same thing:  “At any time the court must allow a defendant to withdraw a guilty plea upon a timely motion …”  Justice Stras skipped over that very language – at any time - to conclude that a Rule 15.05 motion to withdraw a guilty plea is subject to the post conviction statute’s limitations provisions, grabbing hold, instead, of the words, “upon a timely motion.”  Lussier v. State, read here.  Is that really the key?  The missing “upon a timely motion” language from Rule 27? 

Constitutionality of Statute Which Criminalizes Advising, Encouraging, or Assisting Another to Commit Suicide Under Review by Supreme Court

State v. Melchert-Dinkel, Minn.Ct.App., 7/17/2012, Review Granted, 10/24/2012.  This is the challenge to the statute, Minn.Stat. 609.215.1, which criminalizes advising, encouraging, or assisting another to commit suicide.  This slipped past me back in the Summer but the Minnesota Supreme Court granted review today.  Amicus are also lining up so it’s shaping up to be a big decision.  Here’s how the court of appeals described  the facts:

Mark Drybrough hanged himself in England in 2005, and Nadia Kajouji drowned herself in Canada three years later, both shortly after 46-year-old William Melchert-Dinkel, who knew that Drybrough and Kajouji were contemplating suicide, sent each a series of Internet messages from his home in Faribault, prodding them to kill themselves.  Melchert-Dinkel instructed Drybrough and Kajouji how to commit suicide by hanging, tried to persuade them to hang themselves, and convinced them that he was a distraught young woman who would commit suicide simultaneously with them or shortly afterward.

Mr. Melchert-Dinkel said that the First Amendment protected his internet messages and so the statute was unconstitutional, facially and as-applied.  The court of appeals concluded that the facial challenge failed because the speech here is speech integral to criminal conduct.  In harsh language, the court also rejects the as-applied challenge:

If the First Amendment does not protect a genuine conspiracy to steal someone else’s
property, how can it protect a fraudulent conspiracy to end someone else’s life? We are
confident that the Constitution does not immunize Melchert-Dinkel’s morbid, predatory
behavior simply because it appears in the form of written words.

Because Defendant Was Not In Custody, No Miranda Warning Required

State v. Scruggs, Minn.S.Ct., 10/24/2012.  A jury convicted Mr. Scruggs of first degree premeditated murder and second degree intentional murder; the trial court imposed a life sentence without possibility of release.  The main issue on appeal was the trial court’s decision to admit Mr. Scrugg’s police interrogation; he argued unsuccessfully that the police should have given him a Miranda warning before questioning him.

Police came to an apartment complex in response to the finding of a body, later determined to be Michael Fonta, near the rear door of the building.  Several hours into the investigation, officers knocked a second time on Mr. Fonta’s apartment door; when there was again no response they attempted to enter the apartment with a key.  It turned out that Mr. Scruggs and H.J. were inside Mr. Fonta’s apartment.  Somewhat curious, one supposes, the officers invited the two of them down to the police station for a chat; they agreed and afterwards officers released Mr. Scruggs but arrested H.J. on a misdemeanor warrant.  It was apparently only after these interviews that police found evidence that led them to believe that the murder had occurred in Mr. Fonta’s apartment.  About a week later, H.J. rolled on Mr. Scruggs, telling the police that she had watched Mr. Scruggs kill Mr. Fonta and dispose of the evidence; she also admitted that she helped Mr. Scruggs move the body outside.

Mr. Scruggs moved to suppress the police interrogation because no Miranda warning had been given to him.  Here’s how Justice Dietzen, writing for a unanimous court – absent Justice Wright – described the events at the station:

At the suppression hearing, police officers testified that at the time of the interview, they did not know the location of the murder and Scruggs and H.J. were not suspects in the murder investigation. The officers testified that it was standard practice to interview important witnesses at the police station because video recording equipment is available. Both Scruggs and H.J. were told they would be brought back to the apartment after their interviews. Before leaving the apartment, the officers allowed Scruggs to put on a shirt and Scruggs brought Fonta’s cell phone to the interview.

A Miranda warning is required only when the suspect is both in custody and subject to Interrogation.  State v. Thompson, 788 N.W.2d 485 (Minn. 2010).  Whether a reasonable person would believe that she was free to leave is only part of the test.  State v. Champion, 533 N.W.2d 40 (Minn. 1995).  The top six reasons for a suspect to believe that she is in custody include:

(1) the police interviewing the suspect[] at the police station; (2) the suspect being told he or she is a prime suspect in a crime; (3) the police restraining the suspect[’]s freedom of movement; (4) the suspect making a significantly incriminating statement; (5) the presence of multiple officers; and (6) a gun pointing at the suspect.

State v. Vue, 797 N.W.2d 5 (Minn. 2011).  On the other hand the top seven reasons for a suspect to believe that she is not in custody include:

(1) questioning the suspect in his or her home; (2) law enforcement expressly informing the suspect that he or she is not under arrest; (3) the suspect’s leaving the police station without hindrance; (4) the brevity of questioning; (5) the suspect’s ability to leave at any time; (6) the existence of a nonthreatening environment; and (7) the suspect’s ability to make phone calls.

Vue.  Justice Dietzen concludes that Mr. Scruggs was not in custody:

Scruggs voluntarily agreed to go to the police station for an interview. The police initially told Scruggs he was a witness; the police never referred to him as a suspect. The police also stated that they would return Scruggs to Fonta’s apartment after the interview to collect his clothes. Scruggs had Fonta’s cell phone during the interview, including while he waited in the interview room. The police did not hinder his ability to use the cell phone while he waited for the interview. Moreover, although the interview-room door was locked for security reasons, the police promptly came to the door when Scruggs knocked on the door to ask a question. Scruggs did not, at any time, express a desire not to speak to the police or to terminate the interview. And Scruggs was allowed to leave the police station unhindered at the conclusion of the interview.

Mr. Scruggs also complained that the trial court should have instructed the jury that H.J. was an accomplice as a matter of law.  The court concludes that the trial court had not abused its discretion by not giving this instruction, that H.J.’s role was subject to differing interpretation and was thus a jury question.  Mr. Scruggs had also wanted the trial court to instruct the jury not only on the need for an accomplice’s testimony to be corroborated, but also to provide an instruction that explained what an accomplice is by including the instruction on liability for crimes of another person.  The court says that while this might be nice it had never required this instruction and is not going to start doing so now.  Instead, the court assumed that an error had occurred but concluded that it was not plain error.

The state got to put in evidence that Mr. Scruggs had assaulted H.J.  Justice Dietzen said that this was okay to rehabilitate her in advance of the defense’s expected attack on her credibility because she had given prior inconsistent statements to the police.  Evidence of these prior assaults was admissible to explain H.J.’s fear of Scruggs; her fear, in turn, explained the discrepancies in her statements.  Without really explaining why the court says that it was okay for the state to anticipate the defense attack on H.J.’s credibility by allowing this preemptive rehabilitation of her at Mr. Scruggs’ expense. 

Computer Search of Openly Displayed License Plate is not a Constitutional Search

State v. Setinich, Minn.Ct.App., 2/22/2012.  Mr. Setinich was driving down the highway minding not only his own business but that of the rules of the road as well.  Out of the blue a state trooper pulled him over.  It was August, must not have been much traffic.  The reason that the trooper stopped Mr. Setinich was because of what the squad computer told him.  The trooper ran the license plate on his squad computer, which said that the car belonged to Mr. Setinich.  The computer also said that the Department of Corrections had a warrant out for his arrest.  Finally, the computer told the trooper what Mr. Setinich looked like, including that scar on his face.  The trooper believed that the driver matched that description

Sure enough, in that uncanny sixth sense that cops have, Mr. Setinich had dope in his car.  So, not only does he get the DOC parole violation he gets charged with fifth degree possession of drugs.  Mr. Setinich argued that the trooper did not have a valid basis to have stopped him.  The trial court said, yes, he did, because of what he learned from his computer check of the license plate.

Well, wait a minute.  Was the computer check of the license plate a search under either the state or federal constitution?  No, says the court of appeals.  Mr. Setinich does not have an expectation of privacy in a license plate which is required to be openly displayed, and any expectation to the contrary is unreasonable.  Since there was no constitutional search, the trooper is not constrained by any of its requirements.  The search is thus legal and the results of that search gave the trooper a reasonable suspicion of criminal activity – the DOC warrant.

Friday Side Bar: “William Seward, Lincoln’s Indispensable Man,” Walter Stahr

Statutory Expungement

State v. R.H.B., Minn.S.Ct., 10/17/2012.  A jury acquitted R.H.B. of various assault charges.  R.H.B. then petitioned to seal the criminal records under the expungement statute, Minn.Stat. 609A.03.  Subdivision 5(b) says that the district court:

shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.

R.H.B. didn’t say too much about why he – well, Justice G. Barry Anderson didn’t say that R.H.B. was a male but I’m going to assume it - wanted the expungement.  The state, on the other hand, submitted three boiler plate affidavits that said, well, not a lot, mostly that not sealing the records would make their job a tad bit easier. 

Justice Anderson first says – as the court has said before, State v. Ambaye, 616 N.W.2d 256 (Minn. 2000) – that the statute creates a presumption that a petitioner whose criminal charges were resolved in his favor is entitled to the expungement.  That entitlement means that a petitioner doesn’t have to come up with a laundry list of horrors and inconveniences that the publicly available record is causing him.  So, R.H.B. gets the expungment unless the competing interests go the other way.  The state has to come up with that list of horrors and inconveniences.

The state thought that its generic affidavits carried the day.  The court thought otherwise, characterizing them as “unremarkable and generalized, and could be submitted in nearly every expungement case.  The court also rejected the state’s other argument that since R.H.B. didn’t come up with a list of horrors and inconveniences then by definition the disadvantages of sealing the record have to outweigh the (not stated) advantages of sealing the record.

Friday Side Bar: The Years of Lyndon Johnson: The Passage of Power, Robert Caro

No Abuse of Discretion in Paradee In Camera Review Drill.

State v. Hokanson, Minn.S.Ct., 10/3/2012.  A jury convicted Mr. Hokanson of first degree murder while committing malicious punishment of a child, past pattern of child abuse, for the death of his seventeen month old stepson.  The child died in Wisconsin, but the medical examiner determined that the cause of death had been multiple blunt-force injuries that had occurred over a period of time while the child lived in a rural farmhouse with several family members, including Mr. Hokanson, in Minnesota.  Mr. Hokanson wanted to defend by accusing another of these family members of causing the injuries.

Mr. Hokanson sought access to the entire child protection files relating to two of these family members, who were the child’s parents.  The trial court conducted an in camera review of these files under State v. Paradee, 403 N.W.2d 640 (Minn. 1987), and released portions of those records to the defense.  In the run up to trial, the trial court released additional social services and child protection records to Mr. Hokanson’s attorneys.  The trial court also excluded evidence that one of the parents had shaken a different child, excluded evidence about anyone’s parenting skills, excluded evidence about custody arrangements or child protection proceedings for the parents’ other children, and excluded evidence that one of the parent’s parent had (inappropriately) disciplined that parent as a teenager.

The records that Mr. Hokanson sought are all protected by the data practices act.  To obtain even an in camera review of such records, a defendant must make a “plausible showing” that the records contain both material and favorable information to him.  State v. Hummel, 483 N.W.2d 68 (Minn. 1992).  Mr. Hokanson did not challenge this in camera drill, so the court’s task was simply to determine whether the trial court had abused its discretion in disclosing some but not all documents to him.  Justice G. Barry Anderson said that the court had, itself, plowed through all those records and the only abuse of discretion arguably was the trial court’s generosity in what it gave up to the defense.

On the effort to present alternative perpetrator evidence, the court breaks no new ground in its analysis.  The defense must lay a proper foundation by offering evidence that has an inherent tendency to connect the alternative perpetrator to the commission of the charged crime; and if he does then he may offer admissible evidence of a motive of the third person to commit the crime, threats by the third person, or other facts tending to prove the alternative perpetrator’s guilt.  State v. Hawkins, 260 N.W.2d 150 (Minn. 1997); State v. Jones, 678 N.W.2d 1 (Minn. 2004).  A defendant may also offer evidence of other crimes, wrongs or bad acts committed by the alleged alternative perpetrator in order to case reasonable doubt upon the identification of the defendant as the person who committed the crime, so called reverse Spreigl evidence.  Woodruff v. State, 608 N.W.2d 881 (Minn. 2000). 

Where Record as a Whole, Including Evidence Admitted in Addition to Defendant’s Admissions, Supports Factual Basis for Plea, the Plea is Valid

Lussier v. State, Minn.S.Ct., 10/10/2012.  Back in 2003 Mr. Lussier stabbed his wife to death; he plead guilty to first degree murder and received a life with possibility of release sentence.  He did not appeal.  More recently, Mr. Lussier filed a petition for post conviction relief in which he alleged that his guilty plea lacked a sufficient factual basis.  No one, it seems, paid the least bit of attention.  The state didn’t file a response in the post conviction court, the court denied the petition without a hearing, and the state blew off participating in Mr. Lussier’s appeal.  Justice Page at least wrote an opinion.

Who said, for a six member court – Justice Wright not having been a member of the court when the appeal came up – that the petition lacked substantive merit.  But that’s not what the case is about.  Rather, the court wanted to talk about a limitations question, and about just what a trial court can rely upon to find a sufficient factual basis to support the plea.

Limitations.  The court repeated what’s it’s said before that a request to withdraw a guilty plea under Rule 15.05, subd. 1 must be raised in a petition for post conviction relief.  A motion under Rule 15.05, subd. 1 has to be a timely one.  And, that motion, when made after sentencing, must be raised in a post conviction petition.  James v. State, 699 N.W.2d 723 (Minn. 2005).  Because the court had decided James before the enactment of the limitations restrictions in the post conviction statute, there had been no ruling whether that limitations restriction applied.  The court says that it does, so Mr. Lussier’s petition was untimely.  That meant that he had to meet one of the exceptions.   The only exception to the two year limitations period in play here was the 4(b)(5) exception, not frivolous and in the interests of justice. 

That gets us to the second issue, what can the trial court rely upon to support the plea.  The heart of Mr. Lussier’s argument about the guilty plea was that he didn’t make the requisite admissions to support it.  At the plea hearing, the state introduced, without objection, a transcript of the grand jury hearing.  The trial court relied upon that transcript, in addition to Mr. Lussier’s answers to questions, to find a sufficient factual basis to support the plea.  Justice Page is pretty generous about what the trial court can rely upon to find an adequate factual basis; it’s not’s just about a defendant’s admissions.  So long as the record as a whole contains sufficient evidence to support the conviction it’s a valid plea.  Indeed, the plea petition and colloquy may properly be supplemented by other evidence – written statements of witnesses as exhibits, the complaint, even (but discouraged) the presentence investigation report, the grand jury transcript – to support the plea.  The requirement for a factual basis is satisfied:

[I]f the record contains a showing that there is credible evidence available which would support a jury verdict that defendant is guilty of at least as great a crime as that to which he pled guilty.

State v. Genereux, 272 N.W.2d 33 (Minn. 1978).  The court’s analysis uses language that most usually only shows up in discussions of Alford pleas, so the court seems to be enlarging the strike zone for calling a plea valid.  Pleading guilty may be about acknowledging responsibility, but it’s also about making rational choices.