Two Year Limitations Provision For Post Conviction Petitions is Not Jurisdictional

Hooper v. State, Minn.S.Ct., 10/30/2013.  This is Mr. Hooper’s third petition for post conviction relief.  He alleged the discovery of new evidence which entitled him to a new trial.  He filed this petition well after expiration of the two year limitations period.  The state argued to the post conviction court that this untimeliness required the court to dismiss the petition.  The post conviction court concluded, however, that one of Mr. Hooper’s claims – an alleged confession to the crime by another person – was not time barred.  The post conviction court heard evidence on parts of the petition and eventually denied it in its entirety.

On appeal, the state did not argue the limitations provision and thus arguably abandoned it.  Brocks v. State, 753 N.W.2d 762 (Minn. 2008).  To Justice Stras, however, this omission by the state raised the question whether the limitations provision of Minn.Stat. 590.01, Subd. 4(a) was jurisdictional or an affirmative defense that the state may waive.  The court decides, as it had when considering the same question about Subd. 4(c), that the limitations provision is not jurisdictional and is therefore subject to waiver.  The remedies in the post conviction statute, rather than purely statutory creations that were unknown at common law, are either codifications of or replacements for preexisting remedies, including common law writs of habeas corpus and coram nobis.  In general, limitations provisions deprive courts of subject matter jurisdiction only when the claim is a purely statutory claim.

The court then addressed the merits of Mr. Hooper’s claims and concluded that the post conviction court had not abused its discretion in its various rulings and denial of relief.  Justice Stras again raises, but does not resolve, an issue that has been lurking since passage of the 2005 amendments to the post conviction statute:  Do the Knaffla exceptions – a defendant presents a novel legal issue, or the interests of justice require the court to consider the claim – survive passage of the 2005 amendments.  Knaffla bars consideration of claims that were raised in the direct appeal, all claims of which a defendant knew or should have known at the time of the direct appeal, and claims that were raised or could have been raised in a previous post conviction petition.  The statutory language passed in 2005 only applies to grounds that could have been raised on direct appeal and makes no mention of the Knaffla exceptions.  At a minimum, Justice Stras concludes that the statute does not apply to claims that were raised or could have been raised only in a previous post conviction petition. 

10/28/2013: No Published Court of Appeals Criminal Opinions

Court Concludes Under Totality of Circumstances that Driver “Consented” to Alcohol Testing

State v. Brooks, Minn.S.Ct., 10/23/2013.  Three times, police stopped Mr. Brooks on suspicion of driving while intoxicated.  In each instance officers read the implied consent advisory to him and provided him with the opportunity to consult with counsel.  In each instance, Mr. Brooks eventually submitted to testing, urine twice and blood once.  In each instance, Mr. Brooks moved to suppress the results of the tests because police had taken the samples without a warrant.  In two of the cases the trial court denied the suppression motion, relying upon the “single factor exigency” rationale of State v. Netland, 762 N.W.2d 202 (Minn. 2009).  In the third case, the trial court denied the suppression motion because it concluded that Mr. Brooks had consented to the test.

While all this was going on the U.S. Supreme Court decided McNeeley, which among other things threw out Chief Justice Gildea’s “single factor exigency” Netland opinion and adopted a “totality of the circumstances” fact specific approach in its stead.  The Chief Justice gets a redo with Mr. Brooks.

And hones in on “consent”.  Writing an Opinion for five members of the court – including Justice Lillehaug – the Chief Justice concludes that Mr. Brooks was not coerced into “consenting” to the tests.  (Justice Wright did not participate.)  The court is not finding “consent” based upon the implied consent statute; rather, it is looking at the “totality of the circumstances” on the ground. These circumstances included:  Police had probable cause to believe that he had been driving under the influence.  They followed the proper procedures under the implied consent law.  Police read Mr. Brooks the advisory “which makes clear that drivers have a choice of whether to submit to testing.”  Police gave Mr. Brooks a telephone and time to use it to chat up his attorney.  All these things support the conclusion that the police did not overcome Mr. Brooks’ capacity for self-determination.

The court does reject Mr. Brooks’ assertion that his “consent” was invalidly coerced because the police advised him that it was a crime to refuse the tests.  The court insists that Mr. Brooks had choices - take the test or not – because the police were required to honor that choice, unlike a search warrant where there really is no choice, or “consenting” to a warrantless search in the face of a boatload of armed and screaming officers.  The cops also had to inform Mr. Brooks that he could refuse the testing and allow him to consult with an attorney before deciding. 

Justice Stras joined in the judgment but disavowed the opinion.  Justice Stras pointed to Prideaux v. State, 310 Minn. 405, 247 N.W.2d 385 (1976), which said “the obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing …”  He also observed that the court had said this even before it was a crime to refuse.   Now, Justice Stras hints that he has a “secret” theory of consent that the majority might have considered but presumably he now doesn’t have to disclose his secret.

The Justice thought all of this angst about “consent” could have been set aside for another day by concluding instead that when the cops stopped Mr. Brooks each time Netland was the law of the state on which the cops were entitled to rely.  Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419 (2011).  The Justice was attempting to coerce the court to adopt the Leon good faith exception to the exclusionary rule; he got no votes for that push. 

10/21/2013: No Published Court of Appeals Criminal Opinions Today

10/16/2013: No Published Criminal Opinions Today

Court of Appeals Leaves Unanswered the Question Whether a Pretrial Waiver of Right to Appeal is Enforceable

State v. Cubas, Minn.Ct.App., 10/15/2013.  Back in 2004 Mr. Cubas pled guilty to third degree sale of a controlled substance.  The plea agreement called for a dispositional departure – no prison – and release pending sentencing.  Mr. Cubas also agreed not to challenge an anticipated custody point on his Guidelines worksheet.  Mr. Cubas did not appear for sentencing and the trial court issued a bench warrant.  It was not until this past April that the authorities arrested him on that bench warrant.

At his sentencing hearing, but before pronouncement of sentence, Mr. Cubas moved to withdraw his guilty plea.  Full Disclosure:  I represented him at this sentencing hearing (but not the appeal).  Mr. Cubas argued that the waiver ran afoul of due process under the rationale of Spann v. State, 704 N.W.2d 486 (Minn. 2005), and that such a waiver was invalid as a matter of public policy.  The remedy, he argued, was to allow Mr. Cubas to withdraw his guilty plea and then either stand trial or negotiate a valid, enforceable plea agreement.  The state agreed that the waiver under the 2004 plea agreement was invalid and unenforceable, but thought that allowing him to withdraw his plea after all these years would result in significant prejudice to the state.  That’s because the drug evidence had been destroyed, and because witnesses’ memories had likely faded in the intervening years.  Because no one argued otherwise, the trial court said that the waiver was unenforceable and that the remedy was to allow withdrawal of the plea.  The court granted the motion “in the interest of justice.”

The state appealed.  And reversed and remanded.   Now, a request to withdraw a guilty plea that is made before sentencing may be granted at the court’s discretion if it is “fair and just to do so.”  Rule 15.05, subd. 2.  The court of appeals couldn’t get over the trial court’s use of the phrase “in the interest of justice” because that language isn’t in the rule.  The rule requires consideration of both the reasons advanced to withdraw the plea and the potential prejudice to the state if the request is granted.  Kim v. State, 434 N.W.2d 263 (Minn. 1989).  Moreover, the court of appeals said – even absolutely no one argued this - that the  “rationale” of Spann does not mandate plea withdrawal “in this case,” although the policy considerations from Spann may be relevant to a Rule 15.02, subd. 2 determination.  (So, whether waivers of appeal rights before trial are enforceable remains an unanswered question.)  But, the trial court has to consider not only the reasons advanced by Mr. Cubas to be allowed to withdraw the plea but also consider potential prejudice to the prosecution.  Because the trial court didn’t do that, the court of appeals reverses and sends the case back to the trial court for that determination.

A “Stipulated Facts” Trial on Stipulated Evidence With Conflicting Versions of Events Morphs Into a Bench Trial On Stipulated Evidence Notwithstanding Different Waiver Requirements; No Ineffective Assistance of Counsel For Pulling This Off.

Dereje v. State, Minn.S.Ct., 10/9/2013.  This comes up – and gets its comeuppance – from the court of appeals.  Read here.  It’s the latest go round in the mess within Rule 26.01 – court trials, trials on stipulated facts, dispositive motions – and the attendant requirements for each (never mind what to call these things).  The court has now come full circle.  After complaining repeatedly – read here, here, and here - about lawyers' inability to keep the myriad non-jury trial alternatives straight – especially the different rights required to be waived for each - it turns out it doesn't really matter after all.

Mr. Dereje thought he was signing up for a stipulated facts trial, so he waived not only his right to a trial by jury but he also waived a bunch of other rights as well:  his right to have prosecution witnesses testify and then confront those witnesses, his right to testify, and his right to compel the testimony of favorable witnesses.  The lawyers gave the judge the Complaint and the police reports (and then apparently went home) but the reports contained not one but two completely opposite accounts of the alleged facts:  the alleged victim said (not too convincingly) that Mr. Dereje had sexually groped her; Mr. Dereje said, no, he didn’t.  The trial court looked at all that and then made findings of fact to support convicting Mr. Dereje.  That sounds closer to a trial (sort of) without a jury, which only requires (at a minimum) a waiver of the right to a jury trial. 

The court of appeals had concluded that you can’t have a stipulated facts trial when the parties don’t agree what those facts are.  Nonetheless, this error was harmless because Mr. Dereje’s waiver of all of his rights – not just to a jury – converted the thing into a “valid bench trial based on stipulated evidence.”  Justice G. Barry Anderson, joined on this issue by Chief Justice Gildea, and Justices Dietzen, Stras and Wright, (Lillehaug still not participating), agreed with this determination.  Justice Anderson thought that this is so because Mr. Dereje waived all of his rights, and the trial court made sufficient findings of fact from the stipulated evidence.

The court of appeals had also concluded that Mr. Dereje had received ineffective assistance of counsel, which the court said was a structural error because counsel had “entirely failed to subject the prosecution’s case to meaningful adversarial testing.”  Justice Anderson (without Justice Wright)  rejects this conclusion.  After all, defense counsel submitted police reports with Mr. Dereje’s account of events.  How much more advocacy do you want?  Instead of either remanding back to the trial court for a Strickland  deficient performance/prejudice analysis (or doing it themselves) the majority just ignores Strickland entirely.

Justice Wright does not; she performs that analysis, as well as the structural error analysis, in her dissent, in which Justice Page joins.  Justice Wright concluded that counsel’s performance was a structural error that entitled Mr. Dereje to a new trial without a showing of prejudice.  She said that counsel had “abdicated” his role as an advocate.    Because the only accuser against his client did not testify and was thus not subject to cross examination –curiously, the justice does not question counsel’s advice to Mr. Dereje to permit this –counsel’s only remaining tool was his mouth:  bring to the trial judge’s attention “important facts bearing on [the alleged victim’s] credibility.  Instead, counsel remained mute.  In short, counsel “uttered not one word of advocacy on behalf of his client.” 

To cover the waterfront, Justice Wright went on to conclude – for the same reasons - that counsel’s performance also met the Strickland standard as well. 

Justice Page also dissented.  Although he joined Justice Wright’s dissent in which she concluded that it was okay to convert a stipulated facts trial into a bench trial on stipulated evidence, he, nonetheless didn’t like it because of the differing waivers associated with these two procedures.  Justice Page concluded that Mr. Dereje’s waivers to one thing – a stipulated facts trial – did not validly carry over to a totally different thing – a court trial on stipulated evidence.  Justice Page thought that Mr. Dereje was entitled to a new trial for this reason.  Justice Page also believed that Mr. Dereje had received ineffective assistance of counsel – both structural and Strickland which also entitled him to a new trial.  Justice Wright joined this dissent.

Life Without Parole for Aggravated Criminal Sexual Conduct Violates Neither Federal or State Constitutional Prohibitions of Disproportionate Sentencing

State v. Juarez, Minn.S.Ct., 10/2/2013.  A grand jury indicted Mr. Juarez for attempted first degree criminal sexual conduct, second degree criminal sexual conduct, kidnapping, and third degree assault.  Following a court trial, the judge found him guilty of all four counts.  The trial court then found that Mr. Juarez had a qualifying prior sex offense conviction and that his his current conviction for second degree criminal sexual conduct included a “heinous element,” whereupon the court imposed a sentence of life with possibility of parole.  On appeal, Mr. Juarez argued that the life without sentence violated both the federal and state constitutions.  He also argued that the the trial court was wrong to find the “heinous element – moving a victim some two hundred feet into a confined and isolated alleyway.

After his sexual advances toward S.M. were rebuffed inside a bar in Wilmar, Mr. Juarez accosted S.M. outside the bar, dragged her by the arm some two hundred feet across a parking lot and to the back end of a narrow alley between two buildings.  There he assaulted her, attempted to have sex with her, ripped her clothing and grabbed her breasts and genital area.  S.M.’s friends showed up, causing Mr. Juarez to flee.

Justice Dietzen, in a unanimous Opinion, rejected both of Mr. Juarez’s arguments.  The court examined the circumstances of Mr. Juarez’s case in deciding his federal eighth amendment challenge that the sentence was unconstitutionally excessive.  The court concluded that a comparison of the sentence with the gravity of his offense does not support an inference of gross disproportionality.  The court reaches the same conclusion under its analysis of the Minnesota Constitution, which requires a finding that the sentence is either cruel or unusual.  The court concludes that it is neither.

On the second argument – the existence of a “heinous element” -  the court determined that removing S.M. some two hundred feet was not completely incidental to the sexual assault and was thus a proper basis on which to find the heinous element.  The court also rejected the argument that the state was required to reintroduce its evidence in support of the heinous element rather than rely upon its evidence on this factor that came in during the guilt/innocence part of the trial.  The court did emphasize that the trial court had been the fact finder, not a jury; and that the state had filed a memorandum in advance of the sentencing hearing that had put Mr. Juarez on notice of the state’s intent to rely upon trial evidence to prove up the heinous element.

No Abuse of Discretion in Denying Post Conviction Petition Based on Claim of Newly Discovered Evidence.

Torres v. State, Minn.S.Ct., 10/2/2013.  I represented Mr. Torres at the evidentiary hearing on this post conviction petition, although I did not draft the petition and I did not represent him on appeal.

Mr. Torres is serving a life sentence for a first degree felony murder conviction.  The jury did acquit Mr. Torres of first degree premeditated murder.  A co-defendant, Tracy Sailor, cut a deal with the state which obligated him to testify against Mr. Torres.  Mr. Sailor claimed that it was Mr. Torres who actually slit the victim’s throat.  A third co-defendant didn’t see the homicidal act.  At trial, the state introduced Mr. Torres’ Scales statement in which he blamed this third co-defendant.

Mr. Torres and a woman who is identified in the Opinion as “R.T.” hatched a plan whereby R.T. would strike up first a pen pal relationship with Mr. Sailor to be followed by telephone calls between the two.  R.T. pretended to be a student who was writing a research paper, and she also pretended to be romantically interested in Mr. Sailor.  Eventually, both in some of the letters and in recorded phone calls, Mr. Sailor made some admittedly coded admissions that it was, indeed, he who had slit the victim’s throat, and that he had blamed Mr. Torres in order to get his deal.  (Other letters, most notably the first and last ones, maintained that it was Mr. Torres who had actually killed the victim.)  These letters and telephone calls – recordings and transcripts – were introduced at the evidentiary hearing.  Mr. Sailor testified and flipped the roles of R.T. and himself upside down.  Mr. Sailor said that he was just glad for the letters and phone calls and that he was telling R.T. what he thought she wanted to hear – albeit guardedly – just to keep things going.

The post conviction court and Justice Wright (Lillehaug still not participating) concluded that Mr. Sailor’s coded admissions were not reliable in the face of his trial testimony and his repudiation of these coded admissions that he made to R.T. 

No Abuse of Discretion in Excluding Hearsay Declaration Against Interest Offered in Post Conviction Hearing; No Authority under Rules to Appoint Advisory Counsel in Post Conviction Hearing.

Dobbins, Sr., v. State, Minn.S.Ct., 10/2/2013.  In this post conviction appeal the court takes up two questions, one having to do with declarations against interest and the other having to do with appointment of advisory counsel in post conviction proceedings.  Mr. Dobbins is serving a life sentence for a premeditated murder conviction.  The state’s main witness was a Mr. King, who testified that he saw Mr. Dobbins shoot the victim.  Mr. Dobbins, on the other hand, had testified that it was Mr. King who shot the victim.

After his conviction and sentence, Mr. Dobbins filed a post conviction petition alleging that Mr. King had confessed to a Mr. Harris that he had, indeed, shot the victim.  The post conviction court summarily denied the petition, but the supreme court reversed and remanded for an evidentiary hearing.  Read about that here.  At this hearing, however, Mr. King could not be found so Mr. Dobbins was left with the testimony of Mr. Harris.  The state objected to Mr. Harris reciting what Mr. King said to him.  The post conviction court agreed, excluded the hearsay and denied the petition.

Justice Stras, Lillehaug still not taking part, affirmed the post conviction court.  Justice Stras first took up the hearsay question under Rule 804(b)(3) – declaration against interest – and went through the factors that he wrote about in Ferguson v. State to measure the “corroborating circumstances” that the rule requires.  He found Mr. King’s purported statements lacking in this corroboration.

Mr. Dobbins had requested advisory counsel to assist him at the evidentiary hearing.  Justice Stras says that Rule 5.04, subdivision 2 of the criminal rules allows for the appointment of advisory counsel only to a person who has an underlying right to counsel that has been waived.  Here, Mr. Dobbins has no such right to counsel because he had been represented by counsel on his direct appeal.  The court also declined to exercise its supervisory authority to impose such a requirement.

A Defendant’s Death While His Conviction is on Appeal as of Right Requires Vacating that Conviction

State v. Burrell, Minn.S.Ct., 10/2/2013.  This case presents the question: If a defendant dies while he is appealing his conviction does that conviction remain on the books, or does death wipe out the conviction?  In an unpublished Opinion the court of appeals said that the conviction stays on the books with no further opportunity to challenge that conviction.  Four members of the supreme court, lead by Chief Justice Gildea, say, no, Mr. Burrell’s death during the pendency of a direct appeal as of right erases the conviction.  (Justices Wright and Lillehaug took no part.)  Indeed, every federal court of appeals that has considered the question has come to the same conclusion.  Most of the states have also said the same thing.

Not good enough for Justice Dietzen who dissented.  He says that death is a cop out.  If the deceased defendant’s survivors feel all that strongly that the trial court conviction came about through reversible error, then substitute one of them in as the surrogate defendant and press on with the appeal.

The majority does say that a restitution award survives against the estate of the deceased defendant.

9/30/2013: No Published Court of Appeals Criminal Opinions

An unpublished opinion, State v. Final Exit Network, Inc., et.al., Minn.Ct.App., 9/30/2013, is noteworthy.  The Opinion made today's papers, deals with "assisted suicide" prosecutions under 609.215.  Here's the Opinion's headnote:

Minn. Stat. § 609.215’s criminalization of speech that “advises” and “encourages” another in taking the other’s life infringes on protected speech and is facially overbroad.

And the concluding paragraph:

In sum, the provisions in Minn. Stat. § 609.215 criminalizing speech intentionally advising or encouraging another in taking the other’s own life are unconstitutional infringements on protected speech. However, the record contains sufficient evidence to establish a reasonable probability that each respondent violated the undisputedly constitutional prohibition on assisting suicide. Accordingly, the district court did not err
by denying respondents’ motions to dismiss the indictments.