District Court Has the Authority to Extend the Term of Restitution Up to Statutory Maximum For Failure to Pay Restitution

State v. Barrientos, Minn.S.Ct., 9/25/2013.  Ms. Barrientos pleaded guilty to second degree burglary, which carries a statutory maximum sentence of ten years.  The district court stayed execution of sentence and placed Ms. Barrientos on probation for five years.  Among other conditions, the court ordered her to pay some twenty grand in restitution.  As the five year mark approached, Ms. Barrientos had not paid much of the restitution so the state asked the court to extend her probation to the maximum allowed, ten years.  At first, the district court granted that request but then thought better of it, concluding that Minn.Stat. 609.135, subd. 2(g) limited such an extension to two one year extensions.  The state appealed this ruling, but the court of appeals upheld the district court.

The Supreme Court, Justice Wright writing for a five member majority (Justice Lillehaug not participating and Justice Page dissenting), overturns the court of appeals.  Justice Wright said that Minn.Stat. 609.135, grants the district court broad powers over the length and terms of probation.  Indeed, the only limitation on the trial judge under subdivision 1a is that the term of probation cannot exceed the statutory maximum sentence.  Subdivision 1a addresses the case of a defendant who has failed to pay restitution.  Provided that the procedural requirements of the subdivision are met the court may “take appropriate action, including action under subdivision 2, paragraph (g), before the defendant’s term of probation expires.  Under this reading, action under subdivision 2, paragraph (g) is only one of several options, which includes the broad, general powers to set the term of probation.

Justice Wright, however, is actually saying much more than this.  The Court re-wrights paragraph (g) narrowly – very narrowly -  by limiting its application to extensions of the term of probation that exceed the statutory maximum.  The court acknowledges that this creates an Apprendi/Blakley problem but that’s for another day because here, the requested five year extension is within that statutory maximum. (Just what that Apprendi/Blakley trial would look like and just what the state would have to prove is also not addressed.)  Implicitly, however, the court is pretty strongly giving the green light to extensions of the term of probation, well, forever in the right circumstances, provided a deadbeat probationer is given a jury trial before it happens.  The court gives passing lip service to the district court’s ability to refer the restitution to collections or reduce it a judgment.  Otherwise, the court’s opinion leaves the putative probationer with the option either to suffer probation forever or to execute the sentence.  Debtor’s prison.

Justice Page dissented, arguing that subdivision 2(g) places a limit on the district court’s power to extend probation for failure to pay restitution.

9/23/2013: No Published Court of Appeals Criminal Opinions

9/18/2013: No Published Supreme Court Criminal Opinions

“Intent to Defraud” Includes Using Another’s Name to Avoid a More Serious Crime

State v. Stahosky, Minn.Ct.App., 9/16/2013.  The cops pulled Carissa Jean over for speeding.  Ms. Stahosky’s license was cancelled at the time – inimical to public safety – so she could have been charged with a gross misdemeanor, driving after cancellation of her license.  To avoid this outcome, Ms. Stahosky offered up her sister’s name to the officer.  Since her sister apparently had a valid license, the officer only issued a speeding ticket.  Ms. Stahosky went over to the court house and met with a hearing officer.  She signed a continuance for dismissal, signed a payment agreement, and paid the fine.  Carissa Jean did all this in her sister’s name. 

When Ms. Stahosky’s sister found out about all this she ratted Carissa Jean out.  The state did not think Ms. Stahosky’s actions were the least bit cute.  Rather, they charged her with aggravated forgery.  Following a stipulated facts trial, the district court found her guilty.  Carissa Jean appealed.  She said that she did not intend to defraud anyone – an element of aggravated forgery – because she only intended to avoid being charged with the driving after cancellation; and besides she was paying the damn money on the speeding ticket so what’s the big deal?

Here’s the pertinent part of the aggravated forgery statute:

Whoever, with intent to defraud, falsely makes or alters a writing or object of an y of the following kinds so that it purports to have been made by another or by the maker or alterer under an assumed or fictitious name, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of aggravated forgery and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:

(1) a writing or object whereby, when genuine, legal rights, privileges, or obligations are created, terminated, transferred, or evidenced, or any writing normally relied upon as evidence of debt or property rights, other than a check as defined in section 609.631 or a financial transaction card as defined in section 609.821[.]

The court concluded that Ms. Stahosky’s signing of the payment agreement and the continuance for dismissal in her sister’s name defrauded her sister, the police and the state.  Her sister got hit with a speeding ticket on her driving record that she didn’t disserve.  The cops and the state didn’t get to charge her with the correct (and more serious) offense.  Had the state obtained a conviction on the more serious offense – a gross misdemeanor – it could also have hit Ms. Stahosky with a three thousand dollar fine rather than the lousy three hundred (or whatever the total cost of the speeding ticket was).  If that’s not “intent to defraud,” what is?

On Facts of This Case, Failure to Record Interrogation That Occurred in Another State By Non-Minnesota Officers Does Not Require Its Exclusion

State v. Castillo-Alvarez,, Minn.S.Ct., 9/11/2013.  This comes up from the court of appeals.  Read here.  Mr. Castillo-Alvarez ordered some guys to kidnap and murder a lower level drug dealer over an unpaid invoice for merchandise.  The guys grabbed the drug dealer in Iowa but actually killed him in Minnesota.  Mr. Castillo-Alvarez fled to Mexico but eventually that country extradited him back to Iowa to face charges there.  Once back in the country an FBI agent and an Iowa cop interrogated Mr. Castillo-Alvarez; the officers did not record the interrogation.  The Iowa convictions got tossed for violating Mr. Castillo-Alvarez’s speedy trial rights.  The show then came over into Minnesota.

This Opinion by Chief Justice Gildea is like old home week.  No less than three cases of mine – Sanders, Obeta II (yes, Obeta), and Waddell - get mentioned. 

Mr. Castillo-Alvarez argued, as he did in the court of appeals, that Minn.Stat. 609.045 and the double jeopardy clause of the Minnesota Constitution prevented his prosecution in Minnesota for the same crimes that had been prosecuted in Iowa.  The Supreme Court said that “conviction” under the statute meant a final one, and not one that had been tossed.  Mr. Castillo-Alvarez agreed that the federal double jeopardy clause did not bar prosecution in Minnesota; instead, he wanted the court to expand double jeopardy protection under the state’s provision.  The court was unwilling to do that.

The remaining issue and the one most likely to crop up in day to day life, is whether the failure to have recorded Mr. Castillo-Alvarez’s interrogation over in Iowa required its exclusion in Minnesota.  Now, in my law school days, this was known as a “choice of law” question.  The Supreme Court had ducked this question a few years back in State v. Sanders, 775 N.W.2d 883 (Minn. 2009).  The Court now gives a fact specific answer, under an analysis it calls “most significant relationship.”  It goes something like this:

Under this approach, the law of the state with the most significant relationship to the evidence controls, even if it conflicts with the law of the forum, unless applying the law of the state with the most significant relationship would be contrary to a strong public policy in the forum.

A bit squishy.

Under this “test” Iowa had the “most significant relationship.”  At the time of the interrogation, there were no Minnesota charges pending.  No Minnesota officer either initiated or participated in the interrogation.  Only officers from Iowa – one fed, one state – took part.  Since apparently Minnesota doesn’t care whether Iowa records interrogations, there is no strong Minnesota policy that requires application of the Scales rule.

This result is not a blanket invitation for the cops to arrest a suspect on Payne Avenue and then drive like hell to Hudson, Wisconsin for the interrogation.  Similarly, if the crime occurs on Payne Avenue but the Hudson cops arrest the suspect over there, they can’t call up the SPPD cops and offer to interrogate the prisoner at their place so as to avoid recording it.  So, pay attention to the facts and don’t assume that the non-recorded Texas interrogation is admissible under this opinion.

Justices Page and Stras concurred in the result, but would disagreed with the majority’s conclusion on the interrogation issue.  Justice Lillehaug did not participate. 

9/9/2013: No Published Court of Appeals Criminal Opinions

Post Conviction Petition, Filed Under the “Interests of Justice” Exception, is Untimely Under the Objective Standard of Sanchez.

Greer v. State, Minn.S.Ct., 9/4/2013.  Mr. Greer filed two post conviction petitions – one in the Spring and the other in the Summer of 2012.  He claimed that his appellate counsel had provided ineffective assistance of counsel and that he had newly discovered evidence.  Because Mr. Greer’s initial conviction became final before August 1, 2005, his deadline for filing a post conviction petition under the two year limitations provision was July 31, 2007.  Since he missed that by some five years he had to fit into one of the exceptions in the statute to the two year limitations period.

Mr. Greer invoked the “interest of justice” exception, which must be filed within two years of the date the claim arises.  The court has adopted an objective standard – knew or should have known – by which to determine when a claim arises.  Sanchez v. State, 816 N.W.2d 550 (Minn. 2012). 

Mr. Greer did not claim that under this objective standard that his petitions were timely.  Instead, he asked the court to overrule Sanchez, notwithstanding that it’s barely been out long enough to get a volume and page designation in the law books.  Justice Wright, for the full court including Justice Lillehaug – so, it’s the first opinion that he’s joined - declines the invitation.

Proof of Either Unreasonable Force or Cruel Discipline Satisfies Malicious Punishment Statute

State v. Broten, Minn.Ct.App., 9/3/2013.  S.C.C.,age twelve, got a bad grade at school.  Ms. Broten thought the appropriate parental response was to shear S.C.C.’s head and make her go outside wearing a tank top and a diaper.  Between thirty and fifty neighbors didn’t agree with this approach to improving educational achievement and called the cops.  The state prosecuted Ms. Broten for malicious punishment of a child.  She maintained that the statute required proof of bodily harm.  Here’s what the statute says:

A parent … who, by an intentional act or series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment of a child. …”  Minn.Stat. 609.377, subdivision 1. 

The offense is a gross misdemeanor if the punishment results in “less than substantial bodily harm.”  Ms. Broten makes numerous interpretation arguments to support the claim that the statute requires bodily harm, but the court of appeals points out that the language of the statute is written in the disjunctive:  unreasonable force or cruel discipline.  Enough said.

The court also concludes that the statute is not void for vagueness as applied to these facts.

Court’s Instructions on Definition of “Dangerous Weapon,” Which Mirrored JIGS but not Statute, Were Not Erroneous

State v. Weyaus, Minn.Ct.App., 9/3/2013.  Mr. Weyaus struck B.S. with what the court described as a “child’s folding stadium chair.”  It apparently had an image of Mickey Mouse on it.  Maybe it was this one, the court doesn’t elucidate further. The state charged Mr. Weyaus with assault with a dangerous weapon, the jury convicted him, and the court sentenced him. 

Two questions  here.  Did the court properly instruct the jury on the definition of “dangerous weapon?  Is this really an assault with a dangerous weapon?  Let’s start with the first question, for which we need a chart:

Minn.Stat. 609.02, subdivision 6

CRIMJIG 13.06

“Dangerous weapon” means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm

A “dangerous weapon” is anything designed as a weapon and capable of producing death or great bodily harm, or any combustible or flammable liquid or anything else that, in the manner it is used or intended to be used, is known to be capable of producing death or great bodily harm or any fire that is used to produce death or great bodily harm.

The italics is where the fight is.  Mr. Weyaus said that the jury instruction permitted the jury to convict him it he used the chair merely in a manner that could have resulted in great bodily harm, which, he says, is not what the statute says.  The court of appeals goes back to a 1985 opinion, State v. Graham, 366 N.W.2d 335 (Minn.Ct.App. 1985), where it said that the statutory “likely to produce” language may dilute the state’s burden of proof.  The court said that the solution was to borrow the definition of “deadly weapon” from the Model Penal Code, which had this “known to be capable of producing death or serious bodily injury” language.  The jury instructions committee jumped all over that and rewrote the JIGS accordingly.  The rest is pretty much history.  The court does dredge up an old case of mine, State v. Gebremarian, 590 N.W.2d 781 (Minn. 1999), where the trial court had given the jury three totally different instructions on the definition of dangerous weapons.  The first two were completely wrong under either the statute or the JIGS; the third one tracked the JIGS, but the actual holding of the case was that because the judge had so thoroughly confused the jury Mr. Gebremarian should get a new trial.  For Mr. Weyaus, the court of appeals believes that the supreme court had correctly endorsed the JIGS language, so its use in his trial was okay.

The second question dives into the murky waters of just what a “dangerous weapon” is.  Think professional boxer punching you with his fists.  Best anyone can say is that it’s a fact specific determination, and it’s determined by whichever side can command a majority.  Here, Mr. Weyaus can’t get any votes, so that Mickey Mouse chair is a “dangerous weapon.”

Concealment of Murder Victim Sufficient to Support Departure Based on Particular Cruelty.

State v. Hicks, Minn.Ct.App., 9/3/2013.  The district court convicted Mr. Hicks of second degree unintentional felony murder.  It seems that J.R. went missing back in 2007.  Police undertook an investigation but were unable to make an arrest.  Human remains, which DNA determined were J.R.’s, were found in 2011, after which police charged Mr. Hicks.  He decided to represent himself.  The state’s case was mostly circumstantial, but it did include the testimony of two jail snitches, who claimed that Mr. Hicks had admitted killing J.R.  The court convicted Mr. Hicks of second degree felony murder.  The court also found that by hiding the body Mr. Hicks had committed the crime in a particularly cruel way, so the court imposed a sentence twice what the Guidelines called for.

Mr. Hicks complained on appeal that the district court had violated the Minnesota Code of Judicial Conduct by making a finding – that Mr. Hicks had left a certain voice mail message – for which there were no facts in evidence.  The state offered no evidence, expert or otherwise, about the identity of the voice on the message.  The court, of course, had heard Mr. Hicks’ voice throughout the twelve day trial and during pretrial hearings as well.  That was all the court needed to conclude that it was Mr. Hicks’ voice on the message recording.  His ability thus to recognize Mr. Hicks’ voice came about in his “general judicial capacity” and did not, therefore, violate the Judicial Code.  Mr. Hicks also complained that this finding deprived him on an impartial fact finder, but the court of appeals rejects this argument, and thereby gives defendants everywhere another reason not to represent themselves.

Without objection, and sometimes at  his request, the court closed the courtroom.  One closure occurred during what amounted to a bench conference held in the closed courtroom instead of at said bench or back in chambers.  Another occurred during trial so that Mr. Hicks could review a redacted transcript of his Scales interrogation.  The third closure occurred so that the matter of a waiver of attorney client privilege could be discussed.  The court of appeals said that all of these closures involved discussions of “routine administrative matters traditionally addressed during closed conferences in chambers” and did not violate Mr. Hicks’ right to a public trial.

Finally, Mr. Hicks challenged the durational departure that the court based on concealment of the body.  There is case law saying that such concealment, combined with other factors,  is considered particularly cruel.  State v. Shiue, 326 N.W.2d 648 (Minn. 1982).  In State v. Leja, 684 N.W.2d 442 (Minn.. 2004), the Supreme Court reversed a departure based only on concealment, but the defendant there had not been the actual killer.  And, the holding in Leja did not get four votes.  Maybe Mr. Hicks can see if four members agree or disagree this time.