4/28/2014: No Published Court of Appeals Criminal Opinions

4/23/2014: No Published Supreme Court Criminal Opinions

The Court did, however, grant review to consider whether a hunter needs a license to sit in a deer blind during deer hunting season, armed with a weapon loaded and "suitable to hunt deer."  State v. Schmid, ___ N.W.2d ___ (Minn.Ct.App. 2013).  Can't wait.

Court Reaffirms Its Previous Opinion that Miller v. Alabama is Not Retroactive

Roman Nose v. State, Minn.S.Ct., 4/16/2014.  Tony Roman Nose is serving a sentence of life without possibility of release for a murder conviction that occurred when he was a juvenile.  The post conviction court resentenced Mr. Roman Nose to life with the possibility of parole, concluding that the U.S. Supreme Court’s Opinion in Miller v. Alabama, 132 S.Ct. 2455 (2012) applied retroactively even though Nose’s conviction had long been final before Miller came out.  Miller held, in a mischievous, if not pernicious  opinion, that a mandatory life without parole sentence for juvenile murderers was cruel and unusual punishment under the Eighth Amendment.

The post conviction court did this before before he Minnesota Supreme Court held that Miller was not retroactive.  Chambers v. State, 831 N.W.2d 311 (2013).  Chief Justice Gildea, writing for six members of the court – only Justice Page dissented for the same reasons that he and retired Justice Paul Anderson had dissented in Chambers – was totally unwilling to reverse Chambers, an opinion less than a year old.  The court also said that it was unwilling to grant relief under its supervisory powers.  (This sent Justice Stras into an apoplectic fit since he believes that there is no such thing as “supervisory powers.” )

Justice G. Barry Anderson concurred but wished that the U.S. Supreme Court would decide once and for all whether Miller is retroactive.  He points out the obvious for the juveniles in this limbo that the opportunity for them that opportunity is being determined not by “traditional sentencing considerations” but “only by the date of the offense or by the state of residence.”  This last bit is a recognition that other jurisdictions – Iowa, Massachusetts, Mississippi – have held that Miller  is retroactive.

It bears repeating what Justice Paul Anderson said in his dissent in Chambers:

I cannot understand, much less appreciate, why the majority is so drawn to the continued imposition of a cruel and unusual punishment. The majority consciously avoids the clear and principled lines of legal analysis available to it to remand this case to the postconviction court. The postconviction court should be allowed to fix the constitutionally defective portion of Chamber’s sentence—its mandatory nature—and to resentence Chambers in accordance with his constitutional rights as articulated by the Supreme Court in Miller.

A Reduction of a Conditional Release Period is Only From Time Actually in the Community on Supervised Release

State v. Ward, Minn.Ct.App., 4/14/14.  Mr. Ward thought that he was entitled to a reduction in the ten year period of “conditional release” for the time he would have been on “supervised release” had he actually not been sitting a prison cell instead.  That is, even though Mr. Ward served the entire imposed sentence – no good time – he said he was entitled to subtract the “supervised release” period anyway from the period of “conditional release.”  The court of appeals says, no. 

An “executed sentence” consists of a “term of imprisonment” equal to two-thirds of the “executed sentence” and of a period of “supervised release” equal to the remaining one-third of the “executed sentence.”  Mr. Ward served his “term of imprisonment.”  A condition of his “supervised release” was that he find suitable housing.  Mr. Ward failed to do that so he remained in prison for the entire period of what would otherwise have been “supervise release.” 

Because of the offense of conviction, Mr. Ward was also required to serve a ten year period of “conditional release,” minus time served on “supervised release.”  Because Mr. Ward remained in prison until the end of his executed sentence the commissioner of corrections said that he hadn’t served any time on “supervised release” and was thus not entitled to a reduction of the ten year “conditional release” period.  The district court thought otherwise and ordered a reduction of the “conditional release” term equal to that one-third “supervised release” term. 

The state appealed and the court of appeals reverses the trial court.  The court said that by specifying a specific term of “conditional release” the legislature was establishing a minimum term of additional supervision after release from actual custody.  Also, because the commissioner can, and did for Mr. Ward, revoke “supervised release” it’s as though that “supervised release” never existed.  Reduction of “conditional release” equal to the amount of time spent on “supervised release” is exactly zero days for Mr. Ward because he was never on “supervised release.” 

The math was easy for Mr. Ward because he didn’t serve a day of “supervised release.”  Just what happens to “conditional release” calculations when someone who is serving “supervised release” gets thrown in either jail or prison for a short stretch remains to be seen.  Get your calendars and calculators out.

State Patrol Commercial Vehicle Inspectors, Who Are Not Licensed Peace Officers, Have No Authority to Stop Vehicles

State v. Stall, Minn.Ct.App., 4/14/14.  Mr. Stall drove a truck hauling potatoes.  Mr. Syverson, a commercial vehicle inspector for the Minnesota State Patrol, would randomly stop trucks hauling potatoes to inspect those trucks.  Mr. Syverson, who is not a licensed peace officer, would set out orange cones, select a truck, full to the brim with spuds one supposes, step out onto the road and flag it down.  That’s what he did to Mr. Stall. 

Instead of confining himself to inspecting Mr. Stall’s potato truck for safety violations, Mr. Syverson also asked Mr. Stall for his driver’s license.  Mr. Syverson learned that Mr. Stall’s license was cancelled, inimical to public safety.  Mr. Syverson then called a trooper who arrested Mr. Stall for driving after cancellation.  Mr. Stall moved to suppress all evidence obtained during Mr. Syverson’s inspection (don’t know if that included the potatoes), arguing that Mr. Syverson had no business hailing potato (or turnip or any other) trucks to the side of the road.

The court of appeals agrees with Mr. Stall and reverses his conviction.  The court said that state patrol employees who are not licensed peace officers do not have the authority to stop motor vehicles.  By statute, inspectors such as Mr. Syverson have the power to issue citations and to prepare notices for court appearances.  Minn.Stat. 299D.06.  Stopping vehicles is not included within that statutory grant of power.  The court rejected several alternative statutory basis that the state suggested might convey such authority. 

So, it looks like Mr. Syverson and his fellow inspectors will have to bring along a trooper to stop the potato trucks; or start hanging out more at truck stops.

Court Reaffirms Prosecutor’s Broad Charging Discretion

In the Matter of the Welfare of:  B.A.H., Minn.S.Ct., 4/9/2014.  During a sleepover, two cousins, both well under sixteen, having pilfered some liquor, engaged in some sexual “experimentation.”  The state charged B.A.H. with criminal sexual conduct against his cousin.  Part of B.A.H.’s defense to the sex charge was that this fooling around had been mutually consensual, a claim that the state disputed.  Following that claim to its logical conclusion, B.A.H. argued that if the statute allows this then that statute is void for vagueness.  He also argued that for the state to have charged one and not the other violated his right to equal protection.  The court of appeals agreed and reversed the juvenile conviction and adjudication.  Read here. 

Justice Anderson, writing for a unanimous court, reinstates the conviction and adjudication.  B.A.H. argued that when applied to the facts of his case both he and his cousin could be labeled as “actors” and “complainants”.  This makes the statute unconstitutionally vague.  The court says that even if this were so the statute is nonetheless not vague.  This is because the statutory language describes the kind of sexual conduct made criminal and specifies the persons with whom such contact is prohibited.

B.A.H.’s other challenge was that the statute violated his right to equal protection.  Essentially B.A.H. was saying that the state flipped a coin to decide who to charge.  While the court does not endorse coin flip charging decisions, it does reiterate that a prosecutor’s charging discretion is broad and courts will not interfere with that discretion except in extraordinary circumstances.  Here the state needed only a rational basis for its charging decision.  The state cited numerous reasons for its decision to charge only B.A.H. and the court found them to be permissible “and related to the enforcement of” the statue at issue.  The state’s charging decision was thus rational and constitutional. 

Instructions and Evidence Errors Entitle Defendant Convicted of “Clergy Sex” to New Trial

State v. Wenthe, Minn.Ct.App., 4/7/2014.  A jury convicted Mr. Wenthe of criminal sexual conduct in the third degree – clergy sex while providing religious advice – defined under Minn.Stat. 609.344, subd. 1(l)(i), as sexual conduct which takes place in a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private.   The case has been bouncing around the appellate courts for some time now.  Read here, and here.  On remand from the supreme court, the court of appeals again reverses the conviction and remands for a new trial. 

The state alleged that between November 1, 2003 and December 31, 2003 there had been three meetings between Mr. Wenthe and the complainant which satisfied this statute.  Because it was not asked to do so, the trial court did not instruct the jury that it had to agree unanimously on which meeting it was.  The court’s review here on appeal is thus a plain error analysis.

Jury unanimity is not required where there is evidence of alternative means of committing a single element of an offense.  For instance, one can obstruct legal process in any number of ways:  obstruct, hinder, prevent, etc.  But, jury unanimity is required where there is evidence of alternative acts, each of which may or may not support an element.  For instance, where the state charges in a single count of possession of narcotics that a defendant either possessed narcotics at work or elsewhere in a truck, the jury had to unanimously agree on which it was.  Here, the nature of the meeting is essential for a conviction – sex between Mr. Wenthe and the complainant is not a crime at all unless religious advice accompanied it.  By not instructing the jury that it had to be unanimous on which meeting (if any) satisfied the statute, the court may have mislead the jury to believe that they did not have to agree on which meeting it was where the sex and spiritual advice occurred.  Sex unaccompanied by religious advice at one meeting, and then religious advice unaccompanied by sex at another meeting doesn’t cut it.  The court’s instruction was thus plain error.

The court dodges the question whether this error, alone, entitled Mr. Wenthe to a new trial.  They could do this because the court also found other errors which, in combination, did entitle him to a new trial.

The court said that the jury should also have been instructed that Mr. Wenthe intended to give religious or spiritual aid and comfort.  The court reads this mens rea requirement into the statute; the statute says nothing of the sort.  This conclusion seems to run afoul of last week’s supreme court ruling on the burglary of a locked safe with a gun inside it – State v. Garcia-Gutierrez, which refused to write into the burglary statute the requirement that the burglar know that a gun was inside that safe. 

The state asked the complainant questions about her sexual history.  Before trial the state had promised to limit that testimony to the complainant’s sexual abuse as a child but the trial questions went well beyond that.  In essence, the complainant testified that she was sexually inexperienced as an adult.  This lead the defense to seek to cross examine her about this.  The trial court said, no, but the court of appeals said this ruling was incorrect and a prejudicial abuse of discretion.

The court takes up two other claimed errors but rejects them.  The complainant waited some five years to report this alleged crime.  The trial court would not permit the defense to present expert testimony to explain this delayed reporting, a request based in large part on State v. Obeta, 796 N.W.2d 282 (Minn. 2011).  The court of appeals tosses off this ruling by saying that it was “not evident” that the proffered expert testimony would have been helpful to the jury, and by saying that it was not evident that such testimony had foundational reliability.

Lastly, the defense had wanted an instruction that the jury had to find that the “primary purpose” of the meetings was to provide religious or spiritual advice.  The court of appeals said that any error was harmless because the defense theory was that any such advice had ceased before the sexual relationship began.

The court reverses Mr. Wenthe’s conviction for these cumulative errors and remands to the trial court.

When Is a Rule 27.03, Subd 9 Motion to Correct Sentence Actually a Post Conviction Petition?

Washington v. State, Minn.Ct.App., 4/7/2014.  Mr. Washington threw hot liquid in a correctional officer’s face and then punched/chased the officer as the officer fled.  The state charged Mr. Washington with several felony offenses.  Eventually the court imposed a sentence of 96 months, which was an upward durational departure based on career offender status.

In this litigation, Mr. Washington filed a motion to correct sentence under Rule 27.03, subdivision 9.  First, he said that the aggravated sentence was unlawful because the trial court relied upon an inaccurate record of his criminal history; the inaccuracy was that the records of his prior convictions did not state his true name.  Second, Mr. Washington said that he was entitled to jail credit (which the trial court had denied at sentencing).  Third, he said that the state had failed to prove his identity beyond a reasonable doubt during the guilt phase of his trial.

A motion under Rule 27.03, subd. 9 seeks to correct a sentence that is not authorized by law.  The other way to challenge a sentence is under the post conviction statute.  The two remedies coexist.  Vazquez v. State, 822 N.W.2d 313 (Minn.Ct.App., 2012).  However, the two remedies have different procedural requirements.  First, there is a limitations restriction on post conviction petitions, and both the legislature and the court have imposed limitations on repetitive challenges to a conviction or sentence under the post conviction act.  Whether the limitations restrictions of the post conviction statute apply to a Rule 27.03, subd. 9 motion is an open question, Townsend v. State, 834 N.W.2d 736 (Minn. 2013), although the court of appeals has said, no.

To avoid gaming the system – filing a Rule 27.03, subd. 9 motion to avoid either a limitations or repetitiveness challenge under the post conviction petition – the court have attempted to craft some additional rules.  A motion under the rule must have been “properly filed under” the rule.  The rule authorizes relief only if a party is challenging a sentence and not a conviction, and only if a party is asserting that the sentence is unauthorized by law because it is contrary to an applicable statute or other law.  Any other challenge has to be under the post conviction statute.

Here, Mr. Washington’s first challenge is a fact based challenge to the record of the sentencing hearing and the trial court’s findings.  His third challenge is not to the sentence but to the conviction:  the state failed to prove his identity beyond a reasonable doubt.  He is not claiming that either the aggravated sentence or the proof of guilt were “unauthorized by law.”  These two claims must, therefore, be made under the post conviction statute.

Mr. Washington’s third challenge – to jail credits – is a challenge to the sentence.  It is also a claim that a sentence devoid of jai credits is contrary to an applicable statute, in this case, Minn.Stat. 609.2232.  On the merits, however, Mr. Washington is not entitled to relief under that very statute.

In Awarding Restitution, Court Can Only Consider Statutorily Identified Factors; Court Cannot Apportion Fault

State v. Riggs, Minn.Ct.App., 4/7/2014.  Further Review Granted, 6/25/2014.  D.S. started a fist fight with Mr. Riggs, who had tried to avoid the fight all together.  One thing lead to another and Mr. Riggs stabbed D.S. with a knife.  Mr. Riggs eventually entered a guilty plea to terroristic threats.  As part of the settlement. Mr. Riggs agreed to pay all of D.S.’s out of pocket medical expenses, agreed to pay the cost of repairs to the place where the fight took place, and agreed to pay the costs to D.S. to hire an assistant to help him at work while he recovered from his injuries.  However, Mr. Riggs asked that he only be ordered to pay one-half of these employment related expenses because D.S. was the initial aggressor.  The trial court thought that this was fair, and that it had the inherent authority to do it. 

Not so.  The restitution statute restricts what the trial court can consider to:  the amount of economic loss, and the income, resources and obligations of the defendant.  The role of D.S. is not one of the things that the statute permits the trial court to consider so it cannot apportion fault.

Petty Misdemeanor Complaint Need Not be Personally Served Upon Defendant; Best Practice Should Identify Name of Signing Complainant And Source of Information

State v. Wood, Minn.Ct.App., 4/7/2014.  A judge convicted Ms. Wood of various petty traffic violations.  An officer had cited her or speeding and for following another vehicle too closely.  Right after getting her ticket Ms. Wood requested a written complaint.  The state complied.  The state filed the complaint and both mailed and faxed copies of it to Ms. Wood’s office.  Ms. Wood moved to dismiss the complaint.  She made three arguments:  the complaint was not properly served upon her; the complaint was not supported by probable cause because it did not identify the signing complainant and did not explain just how the signing complainant was aware of the facts of the case; and the trial court should have granted her request for a subpoena to this signing complainant.  The trial court denied the motion, rejecting all three arguments.

As does the court of appeals. 

Service:  The rules of criminal procedure do not include a service requirement for either petty misdemeanors or misdemeanor cases.  Moreover, the rule on “service” – Rule 33.02 – applies only to written motions, written notices and “other similar papers,” and not complaints.

Probable Cause:  Ms. Wood said that because the person who signed the complaint had no personal knowledge of the facts of the case and did not disclose her sources the complaint lacked probable cause.  In this instance, the person who signed the complaint was a paralegal within the prosecutor’s office.  The state said, “We do this all the time, so what’s the big deal?”

There’s a United States Supreme Court case, Giordenello v. U.S., 357 U.S. 480 (1958) that threw out an arrest warrant because the warrant did not contain an affirmative allegation that the writer spoke with personal knowledge, did not recite any sources for the writer’s assertions, and did not state any other sufficient basis upon which a finding of probable cause could be made.  So, in the right case letting paralegals sign criminal complaints could be a big deal.  Not so for Ms. Wood.  This is because the complaint showed the source of the paralegal’s assertions – the cop.  Moreover, Ms. Wood could not show any prejudice.  Although Ms. Wood does not prevail on this argument, the court does chastise the practice of letting paralegals run wild.  “Adding a sentence to the complaint stating who the signing complainant is and how she received the stated information is a simple and preferred approach to establishing probable cause.”

Subpoena:  Because the paralegal had no personal knowledge then any testimony from her would not have been either relevant or admissible.  So, there was no abuse of discretion in denying Ms. Wood’s request for a subpoena.

A “DNA Complaint” Which Names an “Unknown Defendant” Identifies a Defendant With “Reasonable Certainty” And Tolls Any Applicable Limitations Period

State v. Carlson, Minn.Ct.App., 4/7/2014.  Back in 2006 a residential burglary occurred in St. Louis Park.  The burglar took various items, including the homeowners’ 2006 Dodge Charger.  Police found a few blood drops throughout the residence and later found an energy drink can in the abandoned Dodge Charger.  After a while, forensics matched the DNA from the blood to the DNA from the energy drink can.  Just before the statute of limitations expired the state filed a complaint charging one “John Doe” with second degree burglary.  The criminal complaint identified this “John Doe” as an unknown male with a 15-loci DNA profile.  Time went by and eventually the BCA matched the DNA from the blood and energy drink can with the DNA profile of Mr. Carlson right down to the fifteenth loci.

Mr. Carlson moved to dismiss the Complaint, saying that it had not identified him with reasonable certainty and thus the state had failed to charged him within the limitations period.  The trial court denied that motion.  Among other reasons, the trial court pointed to the language of Rule 3.02, subd. 1, which requires an unknown defendant to be described by “any name or description by which the defendant can be identified with reasonable certainty.”  The trial court reasoned that if Mr. Carlson were right then this language had no meaning.  The court of appeals upholds the trial court.

It turns out that of the eight states that have taken up this question only Kansas has found this description of a defendant insufficient.  But that was because Kansas was working with only a 2-loci DNA profile.  The court of appeals goes with the other states that have approved such a charging document.  Indeed, the court hints that a 15-loci DNA profile description is even better than the perp’s name and date of birth.

Although unnecessary to do so the court also addresses the limitations question.  A “DNA complaint” filed within the limitations period is timely.  The court leaves some room to argue that a particular defendant has been prejudiced by resort to a DNA profile charging document.  Important to Mr. Carlson, however, was that he did not move to dismiss the complaint on speedy trial grounds.  Delays that occurred after the initial DNA profile complaint may be addressed on a case by case basis. 

Burglary Statute Does Not Require Proof of Knowing Possession of a Weapon

State v. Garcia-Gutierrez, Minn.S.Ct., 4/2/2014.  There are legal fictions, and then there are legal fictions.  One of them is that the legislature knows what it’s doing, writes what it means.  This lets an appellate court say with undeserved confidence that if the legislature had intended thus and so it would have written thus and so.  Bah.

Mr. Garcia-Gutierrez and a bunch of his buddies broke into a house, stole things, including a locked safe.  Only later, after they were caught, did they learn that there was a gun inside the safe.  The state charged all of them with burglary in the first degree – “possession” of a weapon.  The trial court thought this was ridiculous, that a burglar had to know that he was possessing a weapon, which these guys indisputably did not, in order to be convicted of first degree burglary.  The court of appeals affirmed the trial court’s dismissal of the first degree burglary count.  Read here.

Chief Justice Gildea, for a unanimous court, says, no.  The portion of the burglary statute that elevates second degree to first degree “is silent with respect to the actor’s mental state.”  Rather, the statute only says that the burglar must “possess, when entering or at any time while in the building” a dangerous weapon.  The court bolsters this conclusion by mentioning the opinion that says you don’t have to know that the person you just killed was a peace officer to be convicted of first degree murder of a peace officer, State v. Evans, 756 N.W.2d 854 (Minn. 2008), (which is true even when you didn’t see the guy, State v. Chambers, 589 N.W.2d 466 (Minn. 1999); and the opinion that says you don’t have to know that you are carrying your drugs through a school zone to be convicted possession of narcotics in a school zone, State v. Benniefield, 678 N.W.2d 42 (Minn. 2004). 

So, the lesson here is if you’re going to commit a burglary, don’t take what you can’t see.

Want to Appeal Your Conviction? Have To Stay To Play

State v. Hentges, Minn.S.Ct., 4/2/2014.  Mr. Hentges appealed his conviction for felony failure to pay child support.  While the appeal was pending the trial court scheduled a hearing on an alleged probation violation.  Mr. Hentges failed to appear at the hearing so the state moved to dismiss the appeal under something called the “fugitive-dismissal rule.”  The court of appeals said, no so the state asked the supreme court.  Justice Stras, for six members of the court – Justice Wright taking no part – adopted this rule and threw out the appeal.  Justice Page agreed with adopting the rule but he thought that because the use of the rule is discretionary he would have sent the case back to the court of appeals.

Justice Stras, ah la Justice Scalia, takes us through a history of the development of this rule.  He then informs us that only five states have declined to adopt it:  Hawaii, Michigan, South Dakota, Vermont, and Minnesota.  Only Louisiana and New Mexico have rejected it.  In signing Minnesota up with the adopters of the rule Justice Stras relies on two rationales:  the appellate court’s opinion isn’t enforceable while the guy is on the lamb; and, doing a runner amounts to a waiver or forfeiture of the right of appeal.