Sentencing Errors Require Remand for (Partial) Resentencing

State v. Crockson, Jr., Minn.Ct.App., 9/22/2014.  A jury convicted Mr. Crockson, Jr. of two counts of burglary and two of three assault charges.    Mr. Crockson, Jr. and three juveniles had gone over to T.C.’s place, where they also found C.C. and D. H.  In fact, it was C.C. who opened the door and let everyone in.  C.C. had sold Mr. Crockson, Jr. a cell phone, but Mr. Crockson, Jr. accused C.C. of not giving him the phone’s correct PIN number.  The two argued over this and when they reached an impasse on whether this was true or not one of the juvenile’s handed Mr. Crockson, Jr. a revolver, which he placed to C.C.’s head, one assumes to move the discussion to a more satisfactory conclusion.  Mr. Crockson, Jr. then directed the juveniles to assault D.H., which they did.

Near the end of the trial, the trial judge permitted the state to amend the complaint, which had charged that Mr. Crockson, Jr. was subject to an enhanced sentence for the assaults because he was a felon in possession of a firearm.  The amendment changed the basis for the enhanced sentence to second or subsequent offense involving a firearm.  The state’s proof, however, only established that Mr. Crockson, Jr.’s prior assault conviction had involved a “dangerous weapon” rather than proof of a firearm. 

On appeal, Mr. Crockson, Jr. mostly argued about the sentence.  Before that, however, he argued that C.C. was not in “lawful possession” of the apartment; that is, she lacked a legal right to exercise control over the premises, including deciding who gets to come in and who has to leave.  Mr. Crockson, Jr., seemed to want to have his proverbial cake ad eat it too.  If C.C.lacked the authority to throw Mr. Crockson, Jr. and the juveniles out, then the burglary element, “unlawful entry,” which includes overstaying your welcome and getting thrown out, isn’t proven.  Thus, no burglary.  But, if C.C. couldn’t throw everyone out then she could not invite them in, either.  Which suggests that they were what?  Alas, the court avoids this existential conundrum by concluding that because C.C. was living at T.C.’s apartment at the time with T.C.’s permission then she had authority to admit and deny entrance.

The trial court adjudicated Mr. Crockson, Jr.’s guilt on both burglary convictions, even though everyone agreed that the two were part of a single course of behavior.  This was a mistake that the state conceded.  The appellate court lectures the trial court on the proper drill in this situation, which is to accept both guilty verdicts but to adjudicate guilt and impose sentence on only one of the two guilty verdicts. 

Because the state failed to prove that Mr. Crockson, Jr.’s previous conviction involved a firearm – a “dangerous weapon” being too amorphous - the appellate court vacates the assault sentences and remands for resentencing without regard to the mandatory minimum sentence of sixty months.  A victory of sorts – it moots the business about the end of trial amendment of the complaint - but not one that anyone’s going either to celebrate or lose sleep over; the sentence on the burglary was a third longer in duration.

10/29/2014: No Supreme Court Published Criminal Opinions

A Stay of Adjudication Under Minn.Stat. 152.18 Starts The Two Year Limitations Clock

Dupey v. State, Minn.Ct.App., 10/27/2014.  Mr. Dupey pled guilty to a fifth degree drugs crime.  The trial court did not enter a judgment of guilty but, instead, deferred further proceedings and placed him on probation.  Minn.Stat. 152.18.  Some four years later, Mr. Dupey petitioned the court for post-conviction relief, asking to be allowed to withdraw his guilty plea.  (In the interim he had violated probation and had a prison sentence imposed.)  A post conviction petition must be filed within two years of of entry of judgment of conviction or sentence if no direct appeal has been filed.  Minn.Stat. 590.01, subd. 4.  The post conviction court summarily dismissed the petition because it had not been filed within this two year limit.

Mr. Dupey said, no, the two years doesn’t start until the trial court revoked the stay of adjudication, and that counting from that date he beat the clock by exactly one day.  The court of appeals rejects this interpretation, saying  that a stay of adjudication is itself a “sentence.”  The court of appeals reaches this conclusion, in part, by reliance upon State v. Lee, 706 N.W.2d 491 (Minn. 2005) where the state and the defense argued exactly the opposite of what they are arguing here for Mr. Dupey.  This is, in Lee, the defense said that a stay of adjudication “is more like a sentence than it is like a pretrial order;” and the state said that “a sentence requires a conviction and in the absence of a conviction there is no sentence.”  A year later, the supreme court issued an Order – not an opinion – that said that appeals from stays of adjudication in felony cases were to be treated as appeals from sentencings.  And, back in 2001, the court of appeals had said:

Logic dictates that whether a district court (1) executes a sentence and incarcerates a person, (2) stays execution or imposition of a sentence coupled with terms of probation that may include incarceration up to 12 months, or (3) stays adjudication of guilt but imposes a sentence consisting of terms of probation that may include incarceration up to 12 months, that each disposition is a sentence.

The court of appeals affirms the summary dismissal.

Trial Court Did Not Abuse Its Discretion By Declining To Depart From Presumptive Prison Sentence For a Defendant With Serious Mental Illness and Instead to Require Him To Complete Treatment Program

State v. Abdi, Minn.Ct.App., 10/27/2014.  Mr. Abdi entered an Alford plea to assault in the first degree.  At sentencing, Mr. Abdi asked the court to place him on probation and to require that he successfully complete an “appropriate supervised alternative living program having a mental health treatment component.”  Minn.Stat. 609.1055.  In support of that request, he presented testimony from the director of the treatment program who had this to say about that facility:

(1) the program has never had a resident who was sent there on probation by the criminal justice system; (2) about 50% of the residents have bipolar disorder; (3) the residents are on medication; (4) residents who are not compliant with their medication regimen are discharged; (5) residents stay an average of one year and eight months; (6) whether a resident is ready to leave is determined by the staff and the residents’ psychiatrists; and (7) nothing can be done to require residents who have chosen to leave the program to return to it.

Based on this description, and on testimony from Mr. Abdi’s psychiatrists, the trial court concluded that this treatment program was not sufficiently suitable.  The trial court also concluded that Mr. Abdi posed a serious risk to public safety, something the statute specifically requires the trial court to consider. 

“Plain Error” Is To Be Determined at the Time of Appeal

State v. Kelley, Minn.S.Ct.,  10/22/2014.  Two trials occur more or less at the same time.  In each, the trial judge gives an instruction on accomplice liability without objection.  Each defendant is convicted and appeals that conviction.  Each appeal makes the claim that the instruction on accomplice liability was incorrect and was thus “plain error” under that doctrine.  One of the appeals goes just a bit faster than the other, resulting in an opinion that says that the instruction was erroneous but not “plain error.”  A few days later, the second appeal is decided.

That’s Mr. Kelley.  The not existential question is at what point in the litigation should the appellate court determine whether an error is “plain error.”  The error was not “plain” at the time of trial.  The error was not “plain” at the commencement of the appeal.  The error became “plain” only upon the issuance of the first appellate opinion. 

Notwithstanding all that, Justice Dietzen, writing for everyone on the court but Justice Stras, pronounces that the point in the litigation at which to determine whether an error is “plain error” is on appeal.  Mr. Kelley’s error is thus “plain error” because of an earlier opinion that changed the law on what an accomplice liability instruction is supposed to look like.

Justice Stras says that adoption of a “plain at the time of appeal” rule just encourages defense counsel to sit mute whenever she thinks that the trial judge is even remotely messing things up, in the hopes that a “plain at the time of appeal” analysis will get her client a new trial.  It’s also just plain unfair.  The majority, on the other hand, says, yes, it’s rule may, indeed discourage timely objections at trial.  That’s not the point, however, of having a “plain error” mechanism.  That mechanism is to provide a qualified “safe harbor” to un-objected to errors.  Also, an appellate court out to be applying the law in effect at the time it renders its decision, which is exactly what the United States Supreme Court had concluded in Henderson v. United States, ___ U.S. ___, 133 S.Ct. 1121 (2013).

And Mr. Kelley?  He could not satisfy all of the requirements of the “plain error” rule.  Conviction affirmed. 

Trial Court Abused Its Discretion By Departing Dispositionally in a CSC Sentencing

State v. Soto, Jr., Minn.S.Ct., 10/22/2014.  Here’s how Justice Lillehaug begins this sentencing opinion:

In sentencing, district courts have a great deal of discretion. Rarely do we hold that it has been abused. But rarely is not never. This is such a rare case.

This is not going to go well for Mr. Soto, Jr.  An odd assortment of four justices – Lillehaug, Dietzen, Stras, and Wright, team up to make sure that Mr. Soto, Jr. does his twelve years for first degree criminal sexual conduct.  The majority concludes that the trial court abused its discretion by placing Mr. Soto, Jr. on probation; it reaches this result mostly by flat out disagreeing with the conclusions of the trial court and by fly specking the trial court’s verbiage.  For instance, the trial court found that Mr. Soto, Jr. was “amenable to probation” instead of finding that he was “particularly amenable to probation.”  Really. 

Justice Lillehaug reels off a list of prior opinions where the court’s language about amenability to probation included the adverb, “particularly”.  Justice Page, joined by Chief Justice Gildea and Justice Anderson, point out, however that  the court has never previously required that the trial court “say the magic words” in order to avoid getting reversed.  This is just more trial court bashing from a court that only has to take cases when it wants to do so, has no ninety day deadline for issuing opinions, and can take forever to fine tune its verbiage. 

To support its determination that Mr. Soto, Jr. was amenable to probation, the trial court pointed to these factors:  the psychosexual evaluation concluded that Mr. Soto, Jr. was an appropriate candidate for its outpatient treatment program; Mr. Soto’s age (37); the lack of very many “serious crimes” on his record; the role that alcohol played in the offense; Mr. Soto’s respectful attitude in court; the offense was an outlier, and he had some family support.  The majority then systematically takes nearly all of those factors apart, not because they are improper factors to consider in determining amenability but because of what the trial court did with them.

Start with the psychosexual evaluation.  The “mere fact” that the report reached a particular treatment recommendation “does not necessarily justify departing.”  Fair enough had the majority stopped there.  But, there’s more.  Even though it’s not the job of the psychosexual evaluator to weigh in on whether to place Mr. Soto, Jr. on probation, that’s apparently exactly what the majority wanted the evaluator to do.   Not having done so leads the majority pretty much to toss the evaluation all together:

There is a large and crucial step missing between saying that Soto is an appropriate candidate for outpatient treatment and concluding that he is “particularly amenable to individualized treatment in a probationary setting.

The majority conceded that in general the other factors that the trial court recited – age, prior record, attitude while in court, and support of friends and family – are all relevant to determining if a defendant is particularly amenable to probation.  Again it just didn’t like the conclusions that the trial court drew from those factors.  Take age.  At  37, the trial court thought that Mr. Soto, Jr. still had an opportunity to correct his behavior.  The majority, however, rejected this observation for two reasons:  “age” means “young, like twenty-something; and if a defendant gets a break for being 37, then where do you draw the break line?  Sixty may be the new forty but thirty-seven won’t get you a departure.

The majority says that prior record, by itself, is not a proper basis for departure, but it’s okay for the trial court to rely on Mr. Soto’s prior record to support its belief that he could correct some of his behaviors.  But, again, the majority just didn’t agree with that observation by the trial court and so, as Justice Page points out, the majority substitutes its conclusion for that of the trial court.

Although the trial court didn’t mention remorse or cooperation with the police, the majority does not say, as the state wanted it to say, that expressing remorse is a prerequisite to finding that a defendant is particularly amenable to probation. Being respectful in court is a legitimate factor but the majority didn’t think it outweighed “other relevant considerations.”  The majority agreed with the trial court that Mr. Soto’s family support and his status as a father are relevant factors in determining amenability.  While these facts cannot, themselves, justify a departure, they can support a finding of amenability.

The majority was annoyed that the trial court had not addressed either Mr. Soto’s culpability or whether public safety would be served by departing.  Again, Justice Page points out that the court had never required a trial court to address these factors; rather, the could has only said that such factors are relevant considerations.  The majority does not hold that trial court must consider culpability and public safety, but clearly the majority is signaling to the trial bench that it would look favorably on plugging both culpability and public safety into the algorithm for determining amenability, and, best of all worlds, adding those factors to hold down the number of departures. 

The dissent’s view of all this is best summed up with this observation:

While another trial court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the “ ‘rare case’ warranting our intervention with the [trial] court’s discretion.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). In effect, here, the court improperly “substitute[s] [its] own judgment for that of the trial court.” Spain, 590 N.W.2d at 88.

“Sentencing Package” Doctrine Applies to Modification of Length of Unchallenged Sentence on Remand

State v. Hutchins, Jr., Minn.Ct.App., 10/20/2014.  A jury convicted Mr. Hutchins, Jr. of third degree criminal sexual conduct and first degree burglary, a “single behavioral incident.”  The court imposed a sentence of 130 months on the criminal sexual conduct conviction, and a concurrent sentence of 105 months on the burglary.  The sentence of 130 months was an upward durational departure.

Mr. Hutchins, Jr. successfully appealed this sentence.  The appellate court said that the grounds for the upward durational departure on the CSC conviction were invalid.  The court told the trial court to do one of three things:  impose the presumptive sentence, impose permissive consecutive sentences, or empanel a resentencing jury. 

On remand, the trial court left the 105 month sentence on the burglary intact but imposed a permissive consecutive sentence of 41 months on the CSC.  Total sentence:  146 months.  Mr. Hutchins, Jr. successfully appealed again.  This time, the appellate court told the trial court to impose either the presumptive sentence or a permissive consecutive sentence, but with the total sentence not to exceed 130 months.

On the third try, the trial court retained the 41 months sentence on the CSC and reduced the burglary sentence from 105 months to 89 months.  Total sentence:  130 months.

Mr. Hutchins, Jr. appealed again.  He said that the burglary sentence was immune from adjustment on remand because he had only appealed the sentence on the CSC conviction.  The appellate court points to the statutory authority of courts to review sentences, Minn.Stat. 244.11, subd. (b):

On an appeal . . . the court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court. This review shall be in addition to all other powers of review presently existing. The court may dismiss or affirm the appeal, vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence or order further proceedings to be had as the court may direct

So, just what is the “sentence” here.  The appellate court takes an expansive view of what the “sentence” was.  It goes with something called the “sentencing package” concept so that the sentence as a whole is up for grabs, at least under this statute.  So long as the trial court did what it was told:  impose either the presumptive sentence or a permissive consecutive sentence that does not exceed the original sentence of 130 months. 

Restitution Statute Does Not Authorize Court To Order a Defendant To Sell Assets In Order to Pay Up.

State v. Alexander, Minn.Ct.App., 10/20/2014.  Mr. Alexander pled guilty to motor vehicle theft.  The vehicle that he stole was a brand new BMW.  By the time police found Mr. Alexander driving it, there was extensive damage to the vehicle, and instead of the four or five miles of a factory new car it had some fifteen hundred miles on the odometer.  Following a sentencing hearing, the trial court ordered Mr. Alexander to pay some sixteen thousand dollars in restitution to the dealer.  The court also ordered Mr. Alexander to raise some of that sixteen grand by selling his 1992 Mercedes E Class.  And, the court ordered  him to “fully pay” the public defender for the “cost of representation.”  At the time, Mr. Alexander was an unemployed college student whose only asset was a twenty-one year old Mercedes.  We don’t know whether it was a diesel or gas vehicle.  So, he appealed this restitution order. 

And wins some and loses some.  He lost on whether the state had presented enough evidence to prove the amount of restitution.  The dealer offered evidence of the cost of repairs to the beamer, and also said that it had to discount the value of the car by some ten thousand dollars in order to sell it; at fifteen hundred miles it’s not a “new car” anymore.  The trial court accepted all that and the appeals court found no abuse of discretion in doing so.

Next, Mr. Alexander complained that the trial court did not consider whether he had the ability to pay restitution.  The restitution statute says that the trial court has to “consider the defendant’s ability to pay.”  The court substitutes incantation for consideration.  Say the magic words and everything’s fine.   Unless a defendant presents additional evidence on that ability, the court’s primary source of information on ability to pay is from the presentence investigation.  If the trial court says that it saw that part of the PSI and “considered it” that satisfies the statute’s “consideration” requirement.  The court can say, “Yeah, I know all that, you’re not working, homeless, blah, blah, blah, but I’m still ordering you to pay.” and not expect to get reversed on appeal.

The PD fee is a separate statute with a different requirement.  Mr. Alexander gets a partial win on the public defender fees.  This statute requires the court to hold a hearing to determine the cost of the PD services, and whether a defendant  has the ability to pay that fee.  First, the trial court here held no such hearing – a generalized sentencing hearing doesn’t count – so no one had bothered to put a price tag on those services. Second, unlike the restitution statute which does not require that the court make findings, the court is required to make findings on a defendant’s ability to pay a PD fee.  So, Mr. Alexander gets a remand for the court to tidy up the record on this.

Finally, the Mercedes.  The restitution statute does not authorize the trial court to order a defendant to liquidate assets in order to raise cash to pay restitution.  Unpaid restitution already may be enforced by a civil action to collect it.  If the BMW dealer want’s the cash from the sale of Mr. Alexander’s twenty-one year old Mercedes it will have to go through that process.

It won’t be surprising to see the supreme court review this if given the opportunity.  Is this an Axelgerg [implied consent statute does not list a necessity defense so Ms. Axelberg, driving drunk for her life, can’t raise it] case or an Ali [replace “shall” with “may” in the life without possibility of release sentencing statute] case?

10/15/2014: No Supreme Court Published Criminal Opinions

10/14/2014: No Court of Appeals Published Criminal Opinions

Court Has Inherent Authority To Hold Miller Hearing To Determine Whether Juvenile Should Be Sentenced to Life Without Possibility of Release

State v. Ali, Minn.S.Ct., 10/8/2014.  When Mr. Ali was a few months shy of his eighteenth birthday he shot and killed three men during a robbery of the Seward Market in Minneapolis.  There were a couple of warm up issues addressed in this appeal but the main act was what to do about the sentences that the trial court meted out to Mr. Ali.  That sentence was life without the possibility of release for one of the homicides and two consecutive life with possibility of release after thirty years sentences for the other two homicides.  With the court’s answer it’s shaped up to be a really bad week for juveniles who have been sentenced to life without possibility of release.

First, the life sentence without possibility of release.  Two days before this Opinion came out, the U.S. Supreme Court declined to take up the question whether Miller v. Alabama, 132 S.Ct. 2455 (2012), which says that sentencing schemes that mandate life without parole for juveniles convicted of homicide is unconstitutional, is retroactive. In Minnesota that's the Roman Nose case, read here. Miller said that courts had to take into consideration the individual factors of the juvenile in front of them before locking them up forever. Admittedly, Tony Rome was a procedural mess but with Chambers inexplicably bowing out it was as good a Minnesota case as any to answer the retroactivity question.  The Supreme Court apparently had other cases before it on the retroactivity question, which they also declined to hear. 

At the time that the trial court sentenced Mr. Ali, the pertinent statute said that for anyone convicted of designated crimes the court “shall sentence a person to life imprisonment without possibility of release”.  Minn.Stat. 609.106, subd. 2(1) (2012).  So, without further ado that’s what the trial court did. 

Mr. Ali's case has been on appeal in one form or another ever since so there’s no retroactivity headache; he gets the benefit of Miller.  So, the question becomes, what is that benefit?  There were two competing answers to that question.  The state said to send the case back to the trial court to conduct an ad hoc Miller hearing.  Mr. Ali said, no, the last constitutional sentencing scheme before Miller called for a “regular life” sentence, that is, one that provided for the possibility of release after serving thirty years.  The Minnesota Supreme Court sides with the state and turns the trial court loose to craft some sort of "Miller" remedy that it sees fit.  It does so even though there’s no longer a constitutional statute that authorizes a judge to give a juvenile life without possibility of release. 

The majority, lead by Chief Justice Gildea, admits that the current statute, which says that the trial court shall impose a sentence of life without possibility of release for designated homicides runs afoul of Miller and is therefore unconstitutional. The last constitutional statute that applies to Mr. Ali’s crimes only authorizes a life sentence with the possibility of release after thirty years. In similar situations, the court has reinstated that last constitutionally valid statute. So, when they struck down a statute that allowed public defenders to decline representation of indigent defendants who had pleaded guilty and received less than the presumptive sentence, the court's remedy was to dig out the previous version of the statute and run with that. Deegan v. State, 711 N.W.2d 89 (Minn. 2006)   Not so, here, however.

The majority relies upon State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), the case that said that courts had the inherent authority to empanel sentencing juries to find aggravating factors after Blakely said that judges couldn’t do that anymore.  The dissenters, Justices Page and Stras, said that the flaw in that approach was that nothing in Blakely changed the trial court’s authority to impose an aggravated sentence; it just changed the method by which that could occur.  Miller, on the other hand, eliminated a a court’s authority to mandate life without release sentences for juveniles, and try as it might, the legislature had not come up with a new sentencing scheme.  The dissenters argued that the effect of the majority’s Miller remedy was to amend the statute by replacing “shall” with “may for juveniles” impose a life without possibility of release after some sort of ad hoc hearing

Both dissenting justices would reinstate the last constitutional statute,which would impose a life sentence with possibility of release after thirty years.  Justice Page points out that since Miller the legislature has wrestled with what statutory scheme should be enacted to comply with Miller but hasn’t enacted a single word.  Just what the legislature has in mind is a total mystery, including whether it still wants to authorize a life without possibility of release for juveniles.  Justice Page also strongly suggests that  it may be constitutionally required under Blakely to have a jury determine the facts on which the court then makes this release/no release decision. 

Justice Stras reprises most of what he’s previously had to say about inherent judicial power and then takes on the majority’s reliance on Chauvin:

The court’s conclusion that the remedy in Chauvin is similar to the remedy in this case makes an apples-and-oranges comparison. An apple sounds like an orange when it is described as a sweet-tasting fruit that grows on a tree and has seeds. And while it is true that these are shared characteristics of both fruits, the fact remains that an apple is not an orange, and this case is not Chauvin. The court is correct when it says that Chauvin provides authority for the proposition that a court has the power in certain circumstances to make a procedural decision about which factfinder—the judge or the jury—will make a particular finding, but the court’s comparison falls short when it uses Chauvin to support its chosen remedy in this case. Chauvin simply did not involve a situation in which we were required to change the Legislature’s prescribed sentence for an offense so that the statute could pass constitutional muster. In concluding otherwise, the court confuses apples and oranges.

This is all potentially bad enough for Mr. Ali, this ad hoc Miller hearing, but there’s more.  The court also sentenced Mr.Ali to two consecutive “regular life” sentences on the other two homicides.  This means that Mr. Ali has to serve sixty years before he could be considered for release on these two sentences.  This is known as a “virtual life” sentence.  And not one justice dissented from the majority’s conclusion that the trial court had not abused its discretion in stacking these two regular life sentences.  The U.S. Supreme Court has also so far been uninterested in addressing this “virtual life sentence” issue for juveniles. 

A closing note on one of the “preliminary acts,” having to do with the authentication of Mr. Ali’s Kenyan birth certificate.  From the very beginning of the litigation Mr. Ali disputed his age, arguing that he should not have been automatically certified to stand trial as an adult.  He submitted a birth certificate from the appropriate District Registrar in Kenya, which bore the registrar’s seal and a signature by the registrar.  The defense also submitted an unsigned letter from the Kenyan Embassy in Washington, D.C., which stated that the birth certificate “bears the Seal of the Registrar of Births and Deaths of the Republic of Kenya.”  Both the trial court and the supreme court reject the birth certificate as not self authenticated under Rule 902(3)A).  Unlike its willingness to read the homicide sentencing statute’s “shall” as really being “may” the court takes a very strict view of the requirements of Rule 902 for self authenticating a foreign document.

10/6/2014: No Court of Appeals Published Criminal Opinions

10/1/2014: No Supreme Court Published Criminal Opinions