6/25/2014: No Supreme Court Published Criminal Opinions

6/23/2014: No Court of Appeals Published Criminal Opinions

6/18/2014: No Published Supreme Court Opinions

Simultaneous Sentencing on Two CSC Pleas Does Not Trigger Lifetime Conditional Release

State v. Nodes, Minn.Ct.App., 6/16/2014.  Review granted, 9/24/2014.  The state charged Mr. Nodes with two counts of criminal sexual conduct for two separate incidents against two different juveniles.  He pled guilty to both counts.  So:  offense, offense; conviction conviction.  Mr. Nodes has no prior convictions for criminal sexual conduct.  The state wanted the court to order a lifetime conditional release period.  The trial court said, no.

The conditional release statute says that a lifetime conditional release period is required where a defendant has a “previous or prior sex offense conviction.”  Minn.Stat. 609.3455, Subd. 7(b).  So, what’s a “previous” and what’s a “prior” sex offense conviction?  The statute answers both of those questions.

“Previous sex offense conviction” means “the offender was convicted and sentenced for a sex offense before the commission of the present offense.”  Subdivision 1(g). 

“Prior sex offense conviction” means “the offender was convicted of committing a sex offense before the offender has been convicted of the present offense, regardless of whether the offender was convicted for the first offense before the commission of the present offense, and the convictions involved separate behavioral incidents.” Id., subd. 1(g). 

The state said that after the trial court had sentenced Mr. Nodes on the first offense then it became a “prior sex offense conviction” that triggered the lifetime conditional release.  Both the trial court and the court of appeals reject this interpretation.  Among other things, a conviction requires a “formal adjudication of guilt” that has been accepted and recorded by the court; the mere pronouncement in court doesn’t cut it.  Cf.:  Taylor v. State, 2013 WL 5024157 (Minn.Ct.App. 2013).  (“[T]his court has also made clear that ‘an orally pronounced sentence controls over a judgment and commitment order when the two conflict.’” State v. Staloch, 643 N.W.2d 329, 331 (Minn.App.2002).  Taylor, notwithstanding (and unpublished) the court of appeals concluded that the trial court’s acceptance of the two guilty pleas is not a “conviction” until the computer spits out the warrant of commitment.  Mr. Nodes’ two “convictions” thus occurred at the same time; neither preceded the other. 

Post Conviction Petitioner Not Entitled to Appointed to Counsel, Having been Represented by Counsel on Direct Appeal; Claims presented are Time Barred and Thus Not Entitled to Evidentiary Hearing

Hughes v. State, Minn.S.Ct., 5/21/2014.  In this second petition for post conviction relief Mr. Hughes raised twenty-nine errors, most of which claimed various misdeeds of trial counsel.  Read footnote 2 if you want the gory details.  The post conviction court tossed the petition without benefit of an evidentiary hearing and without appointing counsel for Mr. Hughes.

Justice Page affirms for a unanimous court.  The court said that because Mr. Hughes had been represented by counsel on direct appeal he has no right under the Minnesota Constitution to the assistance of appointed counsel in a subsequent post conviction proceeding.  Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

Turning to the denial of an evidentiary hearing, the court upholds the post conviction court.  The court says that one who alleges facts that, even if true, do not authorize any relief there is no necessity to hold an evidentiary hearing.  For Mr. Hughes, all of his claims are time barred, having been made more than two years beyond the limitations period and not presenting any exception to that limitations period.

Miller v. Alabama Does Not Apply To Juvenile’s Life With Possibility of Release Sentence

Ouk v. State, Minn.S.Ct., 6/11/2014.  Mr. Ouk is serving a life sentence with the possibility of parole for crimes that he committed as a juvenile.  Mr. Ouk and seven other teenagers pulled a daring double armed robbery of two gas stations that were across the street from each other.  During the robbery that Mr. Ouk committed, two clerks were killed and two customers were shot.  The trial court imposed four consecutive sentences:  two life sentences and two fifteen year sentences.  He must serve eighty years at a minimum before he will be eligible for parole.  He will then be ninety-five years old, assuming he’s still alive.

In this post conviction petition, Mr. Ouk argues that Miller v. Alabama should be applied retroactively.  Justice Anderson reminds Mr. Ouk that the court has now twice rejected that argument, first in Chambers v. State, 831 N.W.2d 311 (Minn. 2013), and just a couple of weeks ago in Roman Nose v. State, 845 N.W.2d 193 (Minn. 2014).  More importantly, and on point, the rule in Miller does not apply to a life sentence with the possibility of release.

Mr. Ouk argued to the post conviction court that his aggregated sentence was the functional equivalent of life without the possibility of release and thus violated Miller which, by the way, should be applied retroactively.  On appeal, however, he abandoned this argument and so the court did not consider it.  Just as well, given this court’s attitude on the retroactivity of Miller.

6/9/2014: No Published Court of Appeals Opinions

“Sale” of Narcotics Includes Giving Physical Possession of Those Drugs To Another For Purpose of Concealment

Barrow v. State, Minn.Ct.App., 4/21/2014.  Mr. Barrow and his wife drove down to Rochester to get some cocaine.  On the way back, Mr. Barrow noticed that there was a cop car behind him so he gave his wife some of the cocaine, instructing her to hide it.  She stuffed it her bra but the cops found it anyway.  The state charged Mr. Barrow with third degree sale of a controlled substance – the hand off to his wife -  (and with two other drug crimes which were eventually dismissed).  At the plea hearing, Mr. Barrow told the court that his wife had “nothing to do with it,” “it” being the acquisition of the cocaine in Rochester.  He also told the court that by dumping some of the cocaine onto his wife he had “sold” cocaine within the meaning of the statute.

A few years go by and Mr. Barrow is having second thoughts about his plea so he filed a post conviction petition to withdraw it.  He said that he didn’t “sell” anything, much less cocaine, by handing some of it off to his wife because the two of them jointly acquired it.  Each thus had constructive possession of the cocaine and neither could “sell” it to the other.  The court of appeals thought that there was actually a Minnesota Supreme Court case that says something like this.  State v. Carithers, 490 N.W.2d 620 (Minn. 1992).  It’s a bit of a stretch to say that’s true.  Carithers is a felony murder case that addressed this question:

When a married couple jointly acquires a Schedule I controlled substance, and one of the partners uses that substance and subsequently dies from a drug overdose, did the legislature intend that the surviving partner be subject to prosecution under Minn.Stat. § 609.195(b)?

Amazingly, two couples got hold of some heroin.  Each couple used half the acquired heroin and – get this – in each case one of the spouses died!  The surviving spouse got charged with felony murder.  The state said that this was felony murder because the surviving spouse had unlawfully sold or given away the heroin to the deceased spouse.  Along the way toward answering this question, “No,” the court assumed that the two surviving spouse/defendants could not have been convicted of “selling” the heroin.  From that assumption the court concluded that neither surviving spouse/defendant could be convicted of felony murder.

Be that as it may, Mr. Barrow’s problems were:  he swore to the judge at his plea hearing that his spouse had “nothing to do with it.”  He has thus not established that the two of them acquired the drugs jointly.  The court also said that when his spouse stuffed the drugs down her bra Mr. Barrow lost constructive possession of those drugs.  This seems a bit too modest a conclusion; would this have been the conclusion had she merely hid the drugs in her shoe?  The court affirms the summary denial of his post conviction petition.

6/4/2014: No Published Supreme Court Criminal Opinions

6/2/2014: No Published Court of Appeals Criminal Cases