Concurrent Acts of Multiple Defendants Supports Joint & Several Restitution Liability

State v. Johnson, Minn.S.Ct., 7/30/2014.  The trial court ordered Mr. Johnson to pay restitution jointly and severally with other codefendants.  Mr. Johnson made three complaints in this sentencing appeal.  First, he said that he should not have to pay restitution for a loss that an insurance company had already reimbursed the estate of the murder victim.  Second, he said that the trial court had incorrectly calculated the amount of restitution for damage to the deceased’s car.  Third, he said that the trial court did not have statutory authority to order join and several liability for the restitution award. 

Justice Lillehaug, writing for a six person court, Justice Anderson not participating, ducked the question whether Mr. Johnson could be ordered to pay restitution for a claim already paid by an insurance company.  The court said that because Mr. Johnson had not raised this issue in the trial court they were not going to look at it.  Moreover, the record was not all together clear whether the amount claimed did or did not include the insurance reimbursement.

On the damage to the car, the trial court had calculated this award based upon the amount that the estate owed on a promissory note secured by that car.  The court said that this was not how to calculate the value of that claim because the the measure of loss must be determined by the value of the actual damage that Mr. Johnson and his codefendants caused to the car.  The promissory note did not reflect that value of actual damage; it was just what the estate owed the bank.  The court pointed out that had the crime never happened that the victim would have had to repay the note to the bank regardless of what the car was actually worth.

On joint and several liability among codefendants, Mr. Johnson said restitution should be split equally among the codefendants.  The court rejects this equal split approach on Mr. Johnson’s facts.  However, it does not say that joint and several liability is always required.  Rather, the court says that when a victim sustains indivisible loss from multiple defendants’ actions the trial court has the authority to award joint and several liability.  Having left the door ever so slightly ajar for an even split restitution award, the court just may then have immediately slammed that door shut tight.  Justice Lillehaug supports the joint and several restitution award in part by quoting some of the boilerplate buried deep into the standard issue plea petition:

[A] person who participates in a crime by intentionally aiding, advising, counseling and conspiring with another person or persons to commit a crime is just as guilty of that crime as the person or persons who are present and participating in the crime when it is actually committed.

 

 

7/28/2014; No Published Court of Appeals Criminal Opinions

7/23/2014: No Published Supreme Court Criminal Opinions

7/21/2014: No Published Court of Appeals Criminal Opinions

7/16/2014: No Published Minnesota Supreme Court Criminal Opinions

Court of Appeals Rejects “Unconstitutional-Conditions Doctrine” in License Revocation Challenge

Stevens v. Commissioner of Public Safety, Minn.Ct.App., 7/14/2014.  The McNeeley wars continue in this license revocation appeal.  The Commissioner revoked Ms. Stevens’s driver’s license after she was arrested for driving while impaired and refusing to submit to chemical testing.  She argued that the implied consent statute is unconstitutional because it violates the “unconstitutional-conditions” doctrine.  By a variety of contortions the court of appeals says, no, it doesn’t.

Here’s how Ms. Stevens described this doctrine:

[I]t imposes on a driver a choice between, on the one hand, relinquishing the Fourth Amendment right to be free from an unreasonable search and, on the other hand, relinquishing a license to drive a motor vehicle.

The court of appeals said that Ms. Stevens’s argument fails for four reasons:  First, there is no authority, at least in Minnesota, that the doctrine applies to a constitutional challenge based on the Fourth Amendment.  Second, even if the doctrine applied, Ms. Stevens can’t show that the implied consent statute authorizes an unconstitutional search.  Rather, if she says no to the test, the statute forbids it.  Third, if the doctrine applies, and if the implied consent statute authorized a search, the implied consent statute does not authorize a search that violates the Fourth Amendment.  Such a search would be reasonable to promote the state’s interest in promoting its DWI laws.  Fourth – still there? – if, well you know, the argument fails because Ms. Stevens can’t show that the implied consent statute is sufficiently coercive.

“Source Code Two”?

There Is No “Threats Exception” to Psychologist-Client Privilege

State v. Expose, Jr.,, Minn.Ct.App., 7/14/2014.  If you can’t win your case with your own argument, then steal your opponent’s argument and try that out.  During court-ordered anger management counseling, Mr. Expose, Jr. sounded off to his counselor about his child protection worker, something about breaking her back.  Believing that she was a “mandated reporter” the anger management counselor reported this to her supervisor and the police. 

The state charged Mr. Expose, Jr. with terroristic threats and wanted to have the anger management counselor tell the jury what Mr. Expose, Jr. said.  Before trial, Mr. Expose, Jr. objected for two reasons.  First, the anger management counselor was not a “mandated reporter” because she was not a licensed mental health professional who is such  a mandated reporter.  In response, the state said that the anger management counselor should be treated as a licensed psychologist because she was working under the supervision of someone who was licensed.  The trial court sided with the prosecutor and said the statements could come in.  Second, after the jury was sworn, but before testimony commenced, Mr. Expose, Jr. raised another objection.  This time he said that since the state had convinced the court that the anger management counselor was the functional equivalent of a psychologist then the psychologist-patient privilege precluded the testimony.  The trial court said, no, that Mr. Expose Jr.’s alleged threats were an exception to the privilege.

On appeal, the state made a number of arguments all of which began to unravel.  So, the state reversed course.  Despite having told the trial court that the anger management counselor was like a psychologist now they told the court of appeals that she wasn’t because she didn’t fit the language of the statute.  The court of appeals continued to treat the anger management counselor like a psychologist and went on to conclude that there was a valid psychologist-client privilege that precluded her from testifying absent Mr. Expose, Jr.’s consent.  This extended to the alleged threats, because the anger management counselor only heard the threats when she asked Mr. Expose, Jr. why he was so upset.  The court points out that, after all, “Anger-management therapy necessarily involves talking about and working through angry thoughts and emotions.”  Mr. Expose, Jr.’s conversation with his anger management counselor was thus a necessary part of effective diagnosis and treatment. 

Now in desperation, the state’s final argument was, well, okay, she’s like a psychologist, but the threats are an exception to the privilege.  The court of appeals pointed out, however, that neither the statute that creates the privilege nor other relevant laws contains such a “threats exception.  So, permitting the testimony was an abuse of discretion that earned Mr. Expose, Jr. a remand.

It’s also worth pointing out that the state made the truly jaw dropping argument that because Mr. Expose, Jr. had not objected to the proposed testimony of the anger management counselor by motion under Rule 10.01, subdivision 2 he had waived it:

Defenses, objections, issues or requests that can be determined without trial on the merits must be made before trial by a motion . . . to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . . The court can grant relief from the waiver for good cause.

This rule pertains to constitutional challenges to the admission of evidence; other evidentiary objections are governed by the rules of evidence, which provide that any “timely objection” preserves a claimed error in admitting evidence.  Rule 103(a).  Mr. Expose, Jr.’s motion in limine satisfied that “timely objection” requirement.  He objected again just before testimony began, which was also timely.  And if you want to talk about waiver, never did the state claim at trial that Mr. Expose, Jr. had waived this evidentiary objection, so who’s waiving now?

 

Evelyn Mulwray:  She's my daughter.

[Gittes slaps Evelyn]

Jake Gittes: I said I want the truth!

Evelyn Mulwray: She's my sister...

[slap]

Evelyn Mulwray: She's my daughter...

[slap]

Evelyn Mulwray: My sister, my daughter.

[More slaps]

Jake Gittes: I said I want the truth!

Evelyn Mulwray: She's my sister AND my daughter!

Chinatown, 1974.

7/9/2014: No Published Supreme Court Criminal Opinions

Trial Court Cannot Issue Order to Vacate & Dismiss Misdemeanor Upon Successful Completion of Probation Over Prosecutor’s Objections Absent Abuse of Prosecution Discretion in the Charging Function

State v. Martin, Minn.Ct.App., 7/7/2014.  Mr. Martin pled guilty to a misdemeanor of engaging in prostitution.  Without objection, the court stayed imposition of sentence for one year and gave Mr. Martin credit for the one day he spent in jail.  Over the city attorney’s objections, however, the trial judge also ordered that upon successful completion of probation the charge would be dismissed one year hence. 

The city attorney, not so much prosecuting as erecting, john by john, a monument of Hawthorne Hector Prynne’s, appealed.  Is judicial shaming effective in changing behaviors?  More so than that first night in goal?

The court of appeals concludes that the trial court’s order is the equivalent of a stay of adjudication.  In that case, neither statutes nor case law help Mr. Martin.  Minn.Stat. 609.095(b) says that absent an agreement of the parties, a district court may not refuse to adjudicate the guilt of a defendant who tenders a guilty plea.  Case law establishes that in the absence of an agreement, the district court can stay adjudication of guilt only in cases in which there is a clear abuse of prosecutorial discretion in charging.  State v. Colby, 657 N.W.2d 897 (Minn.Ct.App. 2003).  The court of appeals reverses the trial court’s order to vacate and dismiss.

Permissive Consecutive Sentencing Is Not Authorized Unless Allowed Under Minn.Stat. 609.035 or an Exception to that Statute

State v. Jones, Minn.S.Ct., 7/2/2014.  On October 16, 2010, Mr. Jones sent his estranged wife thirty-three text messages within a two and a half hour period of time.  These messages were a violation of  an order for protection that deputies had served upon Mr. Jones three days earlier.  The state charged Mr. Jones with one count of stalking and with one count of violating the order for protection.  A jury found him guilty on each count.  These two offenses are on the list of offenses eligible under the Guidelines for permissive consecutive sentences.  The district court imposed sentence on each conviction, to run consecutively with each other and consecutive with a previous sentence that Mr. Jones was already serving.

Mr. Jones appealed, saying that his conduct was a single behavioral incident that under Minn.Stat. 609.035 could result in only one sentence.  The state argued that each of the texts was a separate incident (even though the state had charged them all as a single count of stalking and violating the order) such that there were multiple incidents.  Justice Wright rejected this claim and concluded that Mr. Jones’ actions comprised a single behavioral incident.

That meant that imposing two separate sentences violated 609.035 unless an exception applies.  The state said that the Domestic Abuse Act, specifically 518B.01, subd. 16 creates such an exception.  In pertinent part, that subsection says that “[a]ny proceeding under this section shall be in addition to other civil or criminal remedies.”  Justice Wright rejects this interpretation, concluding that the “proceeding” referred to is an action to obtain an order for protection.

That leaves the Guidelines, specifically the authority therein for permissive consecutive sentences for certain listed offenses, even when the offenses involve a single victim involving a single course of conduct.  Guidelines, II.F.2.b.  Minn.Stat. 609.035, subd. 1 is also  still in play; it addresses the number of sentences that may be imposed for multiple current felony convictions.  The Guidelines, on the other hand, determine whether multiple sentences are concurrent or consecutive.  Where multiple sentences are permitted under the statute – either because the convictions did not arise from a single course of conduct; or the case implicates an exception to the statute – then the Guidelines govern the court’s discretion whether to impose concurrent or consecutive sentences.  Contrary to the conclusions of the trial court and the court of appeals, just because two offenses are on the Guidelines list of permissive consecutive sentences is not enough, by itself, to authorize consecutive sentencing. 

Moving Out of District Does Not Automatically Disqualify District Court Judge From Continuing to Serve

State v. Irby, Minn.S.t., 7/2/2014.  For three months back in 2009, Hennepin District Court Judge Patricia Kerr Karasov was not living in Hennepin County, on obligation (or so it seemed) required of her in order to serve as a judge.  When the Supreme Court got wind of this, the court sanctioned her with a six month suspension without pay.  When Mr. Irby got wind of this he commenced this post conviction petition.  He said that under both the Minnesota Constitution and the corresponding enabling legislation Judge Karasov had forfeited her judgeship so she had no business presiding over his criminal case.  He said that he should get a new trial.

As should everyone else whose cases Judge Karasov attended to following the alleged forfeiture of her judicial office.  Or at least, that has to be have been in the back of the minds of the five justices – Wright taking no part and Page dissenting – in rejecting Mr. Irby’s claim.

Here’s the constitutional provision that’s in play: 

“[e]ach judge of the district court in any district shall be a resident of that district at the time of his selection and during his continuance in office.

The enabling statute, Minn. Stat. § 351.02(4) says that every office shall become vacant on “the incumbent’s ceasing to be an inhabitant of the state, or, if the office is local, of the district, county or city for which the incumbent was elected or appointed, or within which the duties of the office are required to be discharged.”  The court of appeals rejected Mr. Irby’s claim, reasoning that because the supreme court had only suspended Judge Karasov she hadn’t really lost her job after all.  Justice G. Barry Anderson – Stras concurred only in the result – affirmed the court of appeals but on totally (and somewhat strained) grounds.

The judge did not move out of the state so it’s the interpretation of only the second half of the statute which deals with “local” offices that’s going to let Mr. Irby prevail.  If the judgeship is “local” then Mr. Irby (and everyone following him) gets a new trial.  (Justice Anderson rather quickly, indeed relegated it to a footnote, tosses aside the constitutional provision, saying that it is both not self executing and leaves room for less severe sanctions for its violation, like a suspension without pay.)  Justice Anderson concludes that a judgeship is a statewide and not a  local office.  Judges are state employees, they interpret and apply state law, they issue orders that are binding across the state, and they can be assigned to serve in any judicial district throughout the state by operation of another statute, Minn.Stat. 2.724, Subd. 1.  (This statute actually says that a judge assigned to preside in a district other than her own can appeal that assignment to the full supreme court.  The statute also does not operate “statewide.”  Rather, no assignment can send a judge packing more than fifty miles away and no judge can be sent packing for more than fifteen working days in any twelve month period without the judge’s say so.  So whatever Justice Anderson may think “statewide” means, it does mean that Judge Karasov could not be sent to Crookston.) 

The court has also said that a seat in the legislature is a “state office” and not a local one.  Court of Appeals judges who are either appointed or elected from a particular congressional district are state offices.  Finally, to adopt Mr. Irby’s construction of the statute – that it is self executing – would offend separation of powers doctrine because it would allow the legislature to have supremacy over judicial discipline through a self-executing statute.  Enough said, although one wonders just how long a judge could live at her lake home “up north” and still be authorized to serve as a judge back in the cities.

Justice Stras took umbrage with the majority’s (rather vague) suggestion that the court’s disciplinary authority over judges was exclusive.  He thought that such power was concurrent with the legislature.

Justice Page dissented, saying that when Judge Karasov abandoned her residence within Hennepin County she no longer met the constitutional qualifications to remain in office.  That is, when she moved out of the district she was no longer a “resident of that district” and automatically forfeited her robes.

Trial Court’s Sua Sponte Order Vacating Plea and Conviction Improper; Implied Consent Determination Is Not “Law of the Case” in the Associated Criminal Case

State v. Miller, Minn.Ct.App., 6/30/2014.  Ms. Miller pleaded guilty to third degree driving while impaired.  She also agreed to pay “an administrative-costs fee.”  A few weeks later, over in Implied Consent Court, a different judge ruled that the cops had arrested Ms. Miller illegally, which meant that no evidence derived from that arrest could be used against her in her (already concluded) criminal case.  When the DWI judge found out about this implied consent ruling, the judge issued an order vacating Ms. Miller’s guilty plea, dismissed the case, and ordered the return to Ms. Miller of this “administrative-costs fee” money.  Clearly now on a roll, the judge then said that “law of the case” – the implied consent order - voided the plea negotiations.  To cap things off, the judge then effectively granted a never filed defense motion to suppress evidence.  The first that either Ms. Miller or the state knew about any of this was when they got the order in the mail.

As you might imagine, the state appealed.  Even Ms. Miller had to concede that in vacating Ms. Miller’s guilty plea and conviction the DWI court went about it all wrong.  For starters, a court can’t vacate a guilty plea over a defendant’s objections.  State v. Spraggins, 742 N.W.2d 1 (Minn.Ct.App. 2007).  Before the court gets there, it has to afford the parties the opportunity to weigh in on the matter, both in writing and in court. 

There must also be “substantial and compelling” reasons to vacate a guilty plea.  Spraggins, supra; Rule 15.05, Rules of Criminal Procedure.  The only reason that the DWI court stated was the implied consent ruling, calling it the “law of the case.”  The problem is, “law of the case” applies to “the case,” that is, the same case and only to issues previously decided in that same case.  Finally, there’s a statute, Minn.Stat. 169A.53, subd. 3(g), that says that determinations in an implied consent hearing do not act as an estoppel on any issues over in criminal court.

So, Ms. Miller still has her conviction and fine, at least for now.  She can, both the court and the state agree, still file a post conviction petition or otherwise seek to withdraw her plea.