2/26/2014: No Published Supreme Court Criminal Opinions

2/24/2014: No Court of Appeals Published Criminal Opinions

Post Conviction Petition Defective Because Legal Assertions Don’t Substitute For Factual Allegations

Matakis v. State, Minn.Ct.App., 2/18/2014.  “I’ll gladly pay you Tuesday for a hamburger today.”  Mr. Matakis filed a post conviction petition claiming that his guilty plea had not been knowingly, intelligently and voluntarily made.   Problem was, at least to the court of appeals, he didn’t really recite any “facts” to back that up.  Here’s all that he said:

That the facts and grounds upon which this petition is based are as follows: Petitioner’s plea was not knowingly, voluntarily, and intelligently made where there is reason to question the accuracy of the factual basis underlying the plea and the circumstances under which he pled guilty suggest that it was not voluntarily entered.

Mr. Matakis promised to supply “a later factual affidavit” but after apparently waiting in vain for almost a month for that affidavit the post conviction court tossed the petition.  The court of appeals affirms, observing that “providing a short statement of alleged facts that could be tested at an evidentiary hearing would have sufficed.”  Those alleged facts don’t even have to be credible:  even “implausible factual allegations” would have kept him in court.

2/19/2014: No Published Supreme Court Criminal Opinions

Criminal Child Support Statute Requires Proof of Failure to Provide Both “Care” & “Support”

State v. Nelson, Minn.S.Ct., 2/12/2014.  You know those Ford commercials - "nuts or bolts" - or, more apropos here - "loud or clear" - well that's what's going on here.  In a cacophony of opinions, Justice Stras  has everyone running for the dictionary.  His definitions carry the day over those of Justices Dietzen and Lillehaug.  The result is to gut Minnesota's criminal child support law.  Like, can't be done.  If defendant baby daddy gave the kid a Snickers - or maybe a lot of Snickers, that's going to be the next battle royale - then he's provided the "care" to  escape criminal liability which requires a failure to provide "care and support".  Justices Page, Anderson and Wright join Justice Stras.

The statute here, Minn.Stat. 609.375, subd. 1 requires proof that the alleged offender knowingly omitted and failed to provide both care and support to either a spouse or child.  In this case, it was a child.  Both the state and Mr. Nelson – but not everyone on the court – agreed that “care and support” meant two different things.  Mr. Nelson was in arrears on his monetary child support somewhere north of eighty grand.  The state had argued, and both the trial court and the court of appeals agreed, that this failure to pay was sufficient, standing alone, to support Mr. Nelson’s conviction, a view that Justice Lillehaug adopts.  That is, despite the “and” in “care and support” the state need only prove either one or the other.  Mr. Nelson said, no, “and” means “and” so the state has to prove the failure to provide both care and support. 

When Justice Dietzen, dissenting, hauled out his dictionaries he grabbed something by Bryan A. Garner called The Redbook:  A Manual on Legal Style, (2d ed. 2006).  Mr. Garner lists over one hundred “common legal doublets.”  (You have to read this list:  “null and void”; “lewd and lascivious” – you get the idea).  Justice Stras, however, calls out Justice Dietzen on this because “care and support” is not on the Redbook’s list.  Oops.  Including the third edition of The Redbook.  Hah!

With that, Justice Stras is off and running.  The former Professor is in his element.  And, he delights in making things a lot more complicated.  Notice, for instance, that the statute itself contains what looks like not one but two “legal doublets” (The Redbook be damned):  “omitted and failed” and “care and support”.  To figure out what that means the Justice calls in “DeMorgan’s Theorem”.  Justice Stras ends up with three “reasonable” interpretations of the statute, none of which “is most persuasive.”  He throws up his hands at that point and, applying the “rule of lenity” – as he sees it, but not Justice Lillehaug - goes with Mr. Nelson’s interpretation:  het state has to prove failure to provide both care and support.

Joint & Several Restitution Does Not Require Apportionment of Injuries Among Defendants

State v. Miller, Minn.Ct.App., 2/10/2014.  Mr. Miller and a Mr. Sandberg did a beat down on a Mr. Montplaisir.  It had something to do with Mr. Montplaisir accusing Mr. Sandberg of “sexual improprieties” towards an unnamed woman whose exact relation to either Mr. Miller or Mr. Sanadberg – or Mr. Montplaisir come to that - isn’t disclosed.  Mr. Montplaisir’s medical treatment left him owing some twelve grand, part of which he owed and the rest was on the insurance carrier.  Both wanted their money.

Mr. Miller pled guilty to disorderly conduct, yes, disorderly conduct.  The court stayed his sentence and ordered him to pay the twelve grand, joint and several with Mr. Sandberg.  Mr. Miller objected to this restitution order for a number of reasons.  One was that the state had to divvy up the blows by the two men and then assign a monetary value to the injuries from those blows.  This, Mr. Miller, explained, was required because restitution law says that the court should order restitution only for losses the defendant “directly caused” by his offense conduct.  Needless to say the court of appeals did not buy into this sophistry.  Mr. Montplaisir’s right to restitution trumps any rights of Mr. Miller and Mr. Sandberg to a blow by blow accounting.

Mr. Miller also complained that the trial court did not adequately consider his ability to pay the money.  The court pronounces that the trial court must account for a defendant’s ability to pay but provides absolutely no concrete guidance on just how the court is to do that.  The message seems to be that so long as the court says the magic words, “I considered the defendant’s ability to pay.” that leaves the court free to pretty much do whatever it wants.  About the only restriction is that there must be something in the record – a presentence investigation report will due – over which the court can recite the mantra, “I considered the defendant’s ability to pay.”

Post Conviction Petition Either Untimely or Without Merit

Erickson v. State, Minn.S.Ct., 2/5/2014.  Mr. Erickson filed this second post conviction petition in 2012, long after the statutory limitations period had expired.  To stay in court, he had to establish an exception to that limitations period.  He went with newly discovered evidence and “interests of justice.”  Neither worked.

Mr. Erickson said that his “newly discovered evidence” was a letter from appellate counsel that said that he had no recollection why  he raised (or didn’t raise) appellate issues back some years ago.  Justice Wright, for a unanimous court, said that this was not “newly discovered evidence.”  For his “interests of justice” argument, Mr. Erickson said that the delay in filing this second petition was due to his limited educational attainment and his pro se status.  Justice Wright pointed out, however, that neither of these impediments prevented him from having filed his first petition, and to have done so in a timely manner. 

Mr. Erickson made a couple of other runs at relief, to no avail, either because of the limitations statute or having been previously presented. 

Whether Trial Court Is Required to Consider Comparative Demographics of Original and Transfer Jurisdiction in Change of Venue Determination Remains Unanswered

State v. Fairbanks, Minn.S.Ct., 2/5/2014.  A jury convicted Mr. Fairbanks of first degree murder of a peace officer, and of various other crimes.  Mr. Fairbanks shot Mahnomen County Sheriff’s Deputy Dewey.  He and his buddy then got into a shoot out with other deputies until eventually the two surrendered.  The deputy did not die for another eighteen months.

Mr. Fairbanks asked the trial court to move the trial out of Mahnomen County.  The state did not object to this request.  The trial court moved the trial to neighboring Polk County.  Mr. Fairbanks, who is Native American, didn’t like this choice because the percentage of Native Americans in Polk County is considerably lower than is the percentage of Native Americans in Mahnomen County.   Now, Mr. Fairbanks didn’t complain about the different demographics in his transfer papers; he only complained about prejudicial publicity.  Justice Lillehaug, writing for a unanimous court, said that the trial court adequately took care of any pretrial publicity in moving the trial out of Mahnomen County and over to Polk County.  That being the case, then the court doesn’t have to answer the question whether racial demographics is a proper factor to add into the mix of factors that the court has previously identified:  safety and convenience of a defendant, traveling distances and facilities for parties and witnesses,  and  the technology and security available at the court house.

Apparently, there is a common law rule that an accused can’t be prosecuted for murder when the victim has died more than a year and a day after the event that caused the death.  The court says that if there ever were such a rule in Minnesota then the adoption of the penal code back in the ‘60’s abrogated it.

Mr. Fairbanks complained about the admission of some of the autopsy photographs and of a “spark of life” photo of the deputy.  The court made short work of these complaints.  Photographs that are accurate, relevant and not prejudicial are admissible, even the gruesome ones.  So long as the “spark of life” photo was not an attempt to invoke undue sympathy – assuming that one can make such a determination – then it’s admissible as well.  And because the trial court had already denied the defense in limine motion to exclude these photographs it was alright for the prosecutor to have shown them in opening statement.

Award of Attorney’s Fees Following State Appeal of Pretrial Order Withstands Statutory Challenge

State v. Williams, Minn.S.Ct., 2/5/2014.  This is not really a criminal case.  It’s about turf, the court’s and the legislature’s.  Oh, and money.

The state appealed the trial court’s ruling suppressing evidence.  The court of appeals reversed the order.  Counsel for Mr. Williams then requested attorney’s fees for thirty some hours of work at $120.00 an hour.  The state said that was okay, except for the last nine plus hours which should be paid at only $50.00 an hour.

The state relied upon a 2012 statute that instructed chief judges to confer with designated stakeholders and then set a reasonable hourly rate for attorney’s fees in appeals by the state.  The chief judge set the rate at fifty bucks an hour.  Mr. Williams’ lawyer did about nine hours of work on the appeal after the judge set that rate.

The state’s first argument was that this statute stripped the court of the ability to review the hourly rates that district courts establish.  Chief Justice Gildea, writing for a unanimous court, was having  none of that.  Because this statute says nothing about appellate review the court is not about to assume that the legislature took that review away in this instance. 

Turning to the merits, here the district court made no record of just how this fifty bucks rate came into existence.  So, absent a record, the court can’t ascertain whether low balling the hourly rate was an abuse of discretion.  As a result, the trial court’s award of attorney’s fees at the $120.00 hourly rate stands.  Whether an appellate court can upset an hourly rate set by the district court – either because it’s an unreasonable rate or because the record doesn’t support it – is left for another day.

2/3/2014" No Published Court of Appeals Criminal Opinions