Post Conviction Claims Procedurally Time Barred Under Knaffla

Carridine v. State, Minn.S.Ct., 7/29/2015. In this post conviction petition Mr. Carridine alleged ineffective assistance of trial and appellate counsel and newly discovered evidence based on affidavits of three individuals.  (You can read about the direct appeal here.)  The post conviction court granted an evidentiary hearing on the newly discovered evidence but summarily denied relief on all other claims.  After the hearing, the court denied the newly discovered evidence claim as well.

Three of the claims - admission of impeachment evidence, prosecutorial misconduct and ineffective assistance of trial counsel - were based on the trial record.  Chief Justice Gildea concludes that these claims either were or could have been raised on direct appeal and thus were procedurally barred by statute, Minn.Stat. 590.01, subd. 1,and by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).  The court again ducks the question whether the two exceptions of Knaffla survived the 2005 amendments to the post conviction statute.  Just to be safe, though, the court says that those exceptions don't entitle Mr. Carridine to any relief.

Mr. Carridine also alleged that his appellate counsel had been ineffective for not raising ineffective assistance of trial counsel, and for not raising prosecutorial misconduct.  Mr. Carridine had a long list of alleged failures by trial counsel.  Mr. Carridine said that trial counsel failed to:

hire or consult with an independent forensic expert; request forensic reports prepared by the State’s forensic expert in preparation for the trial; interview or subpoena two specific witnesses; hire a private investigator to track down additional witnesses; subpoena cellphone records of a key State witness, ... file motions to suppress evidence that was prejudicial to the defense; and review a surveillance tape prior to the pre-trial hearing, and object when a witness identified Carridine in the tape.

The court said that all of these alleged failures related to trial strategy, and that Mr. Carridine had provided no compelling reason to depart from the general rule that appellate courts do not review trial strategy for competence.  State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009).  Mr. Carridine also failed to show that there was prejudice - different outcome - had his trial counsel done all these things.  The court rather summarily dismisses the prosecutorial misconduct claims as lacking merit.

Finally, the court affirms the post conviction court's determination that Mr. Carridine's newly discovered evidence did not entitled him to relief.  The post conviction court found neither of the two witnesses who testified to be credible.  It seemed to strain credulity that these two guys had witnessed the homicide, decided not to come forward and then came forward years later when they just happened to be in the same prison as Carridine.

Actual Innocence Exception to One Year Federal Habeas Limitations Not Applicable to Minnesota Petition

Wayne v. State, Minn.S.Ct., 7/22/2015.  In this his seventh post conviction petition following his 1980's conviction for murder, Mr. Wayne argues that he is factually innocent, a claim that is not time-barred under the U.S. Supreme Court's decision in McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924 (2013).  McQuiggin said that a claim of actual innocence can overcome the one year limitations period on federal habeas petitions.  Justice Lillehaug said that's all fine and dandy but this is Minnesota, and we're not bound by that pronouncement about federal habeas.

In the alternative, Mr. Wayne said that all of his claims were timely under the "interests of justice exception" to the two year limitations period in Minnesota's post conviction statute.  This exception, however, is triggered by an "injustice" that caused the missing of the two year deadline and has nothing to do with the substance of the claimed injustice.  Sanchez v. State, 816 N.W.2d. 550 (Minn. 2012).  None of his claims in this petition satisfy that requirement.

A Sworn False Statement Made During a Trial is "Material" If It Is Merely Capable of Influencing the Decision Maker.

State v. Burnett, Minn.Ct.App., 7/20/2015.  Mr. Burnett testified during his trial on four counts of criminal sexual conduct.  Mr. Burnett denied any sexual conduct; and in doing so he claimed to have served four and a half "proud years" in the U.S. Army, which included overseas deployment, serious injury, receipt of two Purple Hearts and a medical discharge.  The jury was unable to reach a verdict.

In between the first trial and the second trial the state found out that all that stuff about military service was untrue.  Mr. Burnett did not testify at the second trial and a jury convicted him of three of the four counts.  At his sentencing hearing Mr. Burnett admitted that he had lied about his military service.

Thereafter the state charged Mr. Burnett with felony perjury, perhaps because it saw causation between the presence and absence of the false claims:  hung jury then conviction. The perjury statute requires the state to prove that Mr. Burnett had made a false statement that was "material" during his testimony in the first trial.

So, what's a "material" statement?  The perjury statute, Minn.Stat. 609.48, doesn't say.  What the statute does say is that it makes no difference that the declarant didn't know that the statement was material or believed it to be immaterial.  The statute also says that it doesn't matter whether the statement "affect[ed] the proceeding for which it was made."  Worth noting is that at least according to the jury instructions, JIG 22.02, "materiality" is a question of law:

You are instructed, as a matter of law, that if the statements were made, they were material.

With neither statutes nor state court opinions providing a definition of "material" the court of appeals looks not to the appellate court's favorite source of law - the dictionary - but to the U.S. Supreme Court.  (There are two dictionary definitions that are pertinent: "important, essential, relevant" or "significant, influential, or relevant, especially to the extent of determining a cause or affecting a judgment.") No matter. The U.S. Supreme Court has said that a false statement is "material" if it has "a natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body to which it was addressed." Neder v. United States, 527 U.S. 1 (1999). Other federal court have made similar pronouncements on the definition of materiality.  The court of appeals adopts the Neder definition.  If Mr. Burnett's false statements of exemplary military service were capable of influencing the jury's verdicts in the criminal sexual conduct trial then those statements were "material." The dictionary's influence in fact gets replaced with the law's influence by conjecture.

And the court concludes that, indeed, Mr. Burnett's false statements about his military service were so capable.  The court agreed with the trial court that Mr. Burnett's false statements about his military service went to the issue of his credibility and were capable of influencing the jury's decision of who to believe -and thus its verdict - him or the victim (who was only six years old).  

Post Conviction Court Properly Denied Petition on Limitations Grounds and The Merits

Weitzel v. State, Minn.Ct.App., 7/20/2015.  Mr. Weitzel filed this petition for post conviction relief well after the expiration of the two year limitations period.  He argued in his petition and accompanying memorandum that the "interests of justice" exception applied and that under it he was entitled to relief. The state filed a response which said "No, you're not." The state's response said nothing about the timeliness of the petition.

The post conviction court denied the petition.  The court raised the limitations issue on its own and also addressed the merits of the petition under the "interests of justice" exception.  The court said that Mr. Weitzel had not filed the petition within two years of the accrual of his claim, and that he had not satisfied the requirements of the interests of justice exception to the two year limitations period.

Enactment of a statute of limitations for filing post conviction petitions was supposed to reduce the litigation surrounding post convictions claims.  Instead, all that's been accomplished is either to change the subject - is the petition time barred - or to add pages to opinions because of the need to address first the limitations question and then the merits of the petition.  Both the court of appeals and the supreme court spend inordinate amounts of time parsing just how the limitations provisions are supposed to work.  

For Mr. Weitzel, the court of appeals concludes that the state's silence about the timeliness of the petition did not amount to the intentional waiver of a defense of untimeliness.  While the post conviction court should have given the parties a heads up of what it was considering doing - denying the petition as untimely  - and allow them to stake out their positions it didn't really matter because the court went on to address the merits of the claim.  In essence, the court of appeals gives an advisory opinion on the limitations question and affirms the denial of the petition under the "interests of justice" provision.

7/14/2015: No Supreme Court Published Criminal Opinions

Promoting Prostitution Crime Survives First Amendment and Over-Breath Challenges

State v. Washington-Davis, Minn.Ct.App., 7/13/2015.  A jury convicted Mr. Washington-Davis of multiple counts of prostitution-related offenses. On appeal, Mr. Washington-Davis said that the statute that criminalizes the solicitation and promotion of prostitution violates the First Amendment and the state constitution counterpart; and that the statute is facially overbroad because it criminalizes protected activity and speech.

On the First Amendment claim, the court of appeals does agree with Mr. Washington-Davis that the statute, Minn.Stat. 609.332, subd. 1a(1)-(2), is content-based regulation of speech.  For instance, the statute prohibits soliciting or inducing an individual to practice prostitution.  The court hauls out the dictionary to see what "solicit" and "induce" mean and decide that the definitions "implicate speech."  Same thing for another prohibited act, "promoting the prostitution of an individual."  Not all content-based regulation of speech if protected by the First Amendment, however. Yelling "Fire!" in a crowded room for instance.  Another is "speech integral to criminal conduct."  The solicitation and inducing going on here is for the criminal enterprise of prostitution so it's outside the protection of the First Amendment.

Mr. Washington-Davis also said that the statute was facially overbroad. He said that the statute criminalizes protected activities like "non-obscene films and photographs that depict sexual penetration or sexual conduct by consenting adults."  The court said, no, that making a film in which actors act out a sex act is for the purpose of making a film and not for the immediate purpose of satisfying sexual impulses which is the kind of act that the statute prohibits. Mr. Washington-Davis also said that the statute criminalized otherwise protected lap dancing.  The court, though, again said, no, that lap dancing as Mr. Washington-Davis defined it, was "lewd" and "lascivious" that is therefore "obscene" conduct that is not protected by the First Amendment.  And, even if lap dancing were not obscene there is no "substantial overbreadth."

Mr. Washington-Davis challenged the sufficiency of the evidence that he intentionally aided his brother and codefendant, Otis Washington.  The court goes through the circumstantial evidence drill required under State v. Ortega, 813 N.W.2d 86 (Minn. 2012) and State v. Silvernail, 831 N.W.2d 594 (Minn. 2013), and concludes that the evidence was sufficient after all.  

The trial court did mess up the accomplice liability instruction by failing to include the Milton language that the jury must find both a defendant's knowledge and  intent in aiding the commission of the offense. However, because there was no objection to this omission review is under plain error. Mr. Washington-Davis could not persuade the court of appeals that the error affected his substantial rights.

The court of appeals affirmed the trial court's ruling on several "prior bad acts" pieces of evidence. The court also vacates a conspiracy count because the other counts of conviction and sentence all took place with the same time frame stated for the conspiracy.  And, the conspiracy and the other counts within the same time period were motivated by the same objective and thus were part of a single behavioral incident.   

Multiple Children in The Vehicle Is Still Only A Single Aggravating Factor Under DWI Statute

State v. Fichtner, Minn.Ct.App., 7/13/2015.  The state charged Ms. Fichtner with driving while impaired, test refusal and child endangerment.  A deputy stopped Ms. Fichtner's van on a report from her parents that she was driving intoxicated with three kids in the vehicle.  A jury convicted her of all three offenses and the trial judge imposed three sentences.

At trial and on appeal Ms. Fichtner challenged the constitutionality of the test refusal statute.  State v. Bernard, 844 N.W.2d 41 (Minn.Ct.App. 2014), affirmed on other grounds, 859 N.W.2d 762 (Minn. 2015) pretty much shuts the door on that challenge in state court.  

This was Ms. Fichtner's first DWI charge which would be misdemeanor fourth degree DWI.  The state, however, charged her with second degree DWI because of the presence of "one or more" aggravating factors, namely the three kids in the van.  The DWI laws say that "having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender" is an "aggravating factor." Now, each qualified prior impaired driving incident within the specified time period counts as a separate aggravating factor.  But, there's no statute that says whether multiple children in the vehicle may be counted as multiple aggravating factors.  The state went ahead and counted each of the three children anyway as separate aggravating factors, which upped the charge from fourth degree to second degree DWI.  

The court of appeals concludes that having more than one kid in the car does not allow the judge to aggregate aggravating factors.  One kid or a bus load, doesn't matter, it's only one aggravating factor. If the legislature had wanted each child to count as a separate aggravating factor it could have said so, as it did for each qualified prior impaired driving incident. The upshot is that Ms. Fichtner's second degree DWI gets reduced to a third degree DWI conviction.

The trial court admitted the 911 recording both as substantive and impeachment evidence.  The court of appeals concludes that although the recording was not admissible under Rule 801(d)(1)(A) because it was not made under oath, the erroneous admission was harmless error under a Crawford analysis.

Finally, the state agreed that Ms. Fitchner's conduct was part of a single behavioral incident and so she could only be sentenced on one of the three gross misdemeanors.  The court of appeals sent the case back to the trial court to decide which of the three was the "most serious."

State's Unilateral Dismissal As a "Work Around" For Court's Denial of Continuance Motion Is Act of Bad Faith That Precludes Recharging

State v. Olson, Minn.Ct.App., 7/13/2015.  On the date set for trial on Mr. Olson's driving while impaired - apparently a misdemeanor - the state's only witness, the arresting trooper was "voluntarily absent."  The state asked for a continuance.  The trial judge denied that request.  The prosecutor then said, well then, I'll just dismiss and refile.  The state did exactly that.  Mr. Olson moved to dismiss the refiled charge.  The trial judge denied that motion, concluding that the state had not dismissed the original charge in bad faith.  

The court of appeals reverses the trial court.  Here's what the court said:

Because a prosecutor does not act in good faith under rule 30.01 when he dismisses a criminal charge merely to refile it, effectively nullifying the district court’s refusal to grant his motion to continue, the district court erroneously concluded that the prosecutor acted in good faith.

The rule in play here, Rule 30.01, says that "The prosecutor may dismiss a complaint or tab charge without the court's approval ..." However, the court of appeals believed that this apparently unilateral authority to dismiss a Complaint or tab charge without court approval nonetheless must be exercised in good faith.  The court cites State v. Couture, 587 N.W.2d 849 (Minn.Ct.App. 1999), review denied, Minn.S.Ct. 1999) for this proposition.  What happened to Mr. Couture was just a bit different, however, than what happened to Mr. Olson.  The state initially charged Mr. Couture with gross misdemeanor driving after cancellation and misdemeanor no proof of insurance.  Later the state timely amended the complaint to charge what was then called aggravated driving under the influence of alcohol in lieu of the original charges.  Following his conviction Mr. Couture complained that the state could not recharge him because the initial charges had been dismissed for non-curable jurisdictional defects.  The appellate court disagreed with this assertion and instead concluded that the dismissal had been under Rule 30.01.  Under that rule the state was free to amend the complaint as it saw fit so long as it was not acting in bad faith.

Still, though, there is authority for the court's conclusion.  The court cites to federal authority, after which Rule 30 is modeled, to support its conclusion that this use of Rule 30 to effectuate a "do it yourself continuance" is an act of bad faith.  United States v. Hayden, 860 F.2d 1483 (9th Cir. 1988).  There the Ninth Circuit said, in interpreting a similar federal rule, that were the government to utilize the rule as a pretext to bypass the trial court's denial of a continuance request it would be acting in bad faith. The court of appeals also pointed to Minn.Stat. 631.02, which grants to the trial court the exclusive authority to grant continuances upon a sufficient showing of good cause.  The court mused that if the state can use Rule 30.01 to obtain a continuance denied by the court then this authority "is almost useless":

How could district court judges effectively manage their trial calendars if, in any criminal case and at any pretrial moment of the prosecutor’s choosing, the prosecutor could cite rule 30.01 to fashion the state’s own continuance? What is the point of a statute that requires the moving party to show “sufficient cause” for a continuance if one of the parties can use rule 30.01 to obtain a continuance without that showing? What is the significance of the district court’s discretion to deny a motion to continue if the court no longer possesses the authority to prevent the state from unilaterally granting itself a continuance? To allow the state to use the rule for the express purpose of evading the district court’s continuance denial would erroneously suggest that rule 30.01 and its federal counterpart were crafted to give only the prosecutor the means to obtain a continuance at will, leaving the defendant alone to submit to the district court’s calendar-management authority.

Direct Appeal Is Proper Method By Which to Challenge Denial of Disqualification For Cause Motion; Asking Trial Judge To Recuse Himself or Herself Is Not Waiver of Right To Refer Disqualification to Chief Judge

State v. Finch, Minn.S.Ct., 7/8/2015.  At sentencing the trial court gave Mr. Finch a dispositional departure on an assault conviction.  The judge told Mr. Finch that if he had any probation violations of any of the conditions of his probation the judge would execute the prison time.  Mr. Finch, apparently a sporting fellow, called the judge’s bluff by getting hit with a probation violation.  Mr. Finch walked away from the workhouse and did not return.  The judge issued an arrest warrant and Mr. Finch turned himself in on the warrant.

When Mr. Finch came in for the revocation hearing his attorney moved to disqualify the judge for cause.  The judge denied that request and Mr. Finch’s alternative request to refer the disqualification motion to the chief judge for determination.  The trial judge eventually revoked Mr. Finch’s probation.  Mr. Finch challenged all that by means of this appeal. 

First, the state said that the only way to challenge denial of a cause disqualification motion was by writ.  Justice Lillehaug rejects this contention by distinguishing an appeal of a peremptory recusal from a appeal of a cause recusal.  Appeal of a peremptory appeal must be by writ.  State v. Dahlin, 753 N.W.2d 300 (Minn. 2008).  But not so for appeal of a cause removal. 

Next, the state said that Mr. Finch had waived his ability to have his disqualification motion referred to the chief judge – and thus be reviewed on appeal - by having first asked the trial judge just to give it up.  There is court of appeals precedent, however, which Justice Lillehaug adopts, that says that a party is entitled to ask the district judge directly for voluntary disqualification.  See State v. Poole, 472 N.W.2d 195 (Minn.Ct.App. 1991).  Justice Lillehaug says that under that precedent, combined with the rule, 26.03, subd. 14(3), asking the district judge first does not preclude referral to the chief judge.  There is no waiver by first asking the trial judge.

The court decided that review of the trial court’s error of not referring the disqualification motion to the chief judge is subject to harmless error rather than structural error.  Mr. Finch does not have to show, however, that the outcome of the proceeding – revocation of his probation – was prejudiced by the error; rather, he must show that the error affected his substantial right to a fair hearing before a decision maker who does not appear to favor one side or the other.  The trial judge’s shot across the bow at sentencing – if you come back with a violation of any of the your conditions of probation you’re going to prison – is what trips up the trial judge.  That and his annoyance that Mr. Finch had appealed the original conviction.  These remarks, indeed, make it appear that the trial judge favors one side over the other.  Justice Lillehaug felt that the judge’s remarks indicated that the trial judge could not impartially determine two of the three Austin factors, that a violation was intentionally or in-excusable, and that the need for confinement outweighed the policies favoring probation. 

  For what it’s worth, Mr. Finch gets a new probation revocation hearing before a different judge.

7/6/2015: No Court of Appeals Published Criminal Opinions

Restitution Statute Provides Exclusive List of Factors to Consider in Determining Restitution; A Victim's Conduct May Not Be Considered

State v. Riggs, Minn.S.Ct., 7/1/2015.  The restitution statute, Minn.Stat. 611A.045, subd. 1, says that in determining restitution that trial court "shall consider" two enumerated factors:  the victim's economic loss from the offense and the defendant's income, resources and obligations.  Mr. Riggs pled guilty to terroristic threats.  The victim requested restitution for various things, described as "employment-related" expenses.  Mr. Riggs didn't object to paying some restitution but thought that since the victim had been the initial aggressor - something that no one disputed - that he should not have to pay all of those "employment-related" expenses.  The trial court agreed and ordered Mr. Riggs to pay only  half those expenses.

The court of appeals reversed.  That court said that because the statute does not identify any other factors or state that other factors may be considered then, by golly,only those two factors can be considered.  Justice Wright, for only four members of the court, agrees with the court of appeals.  Chief Justice Gildea and Justice B. Barry Anderson dissent, as does Justice Page.  Justice Wright concludes that the words of the statute provide the only two factors that the trial court can consider.  The relative fault of the victim just isn't there.

Alternatively, Mr. Riggs said that the phrase "economic loss sustained by the victim as a result of the offense" gave the trial court some leeway to take into account the victim's conduct. Justice Wright hauls out the dictionary to laboriously define each of the words in this phrase, then flat out declares that a victim's role as an initial aggressor may not be considered in determining the amount of restitution. 

The chief justice and Justice Anderson agreed that the statute provided an exclusive list of factors to be considered, but thought that the "as a result of the offense" phrase was broad enough to give the trial court some discretion to consider the victim's conduct.  the chief also thought that State v. Terpstra, 546 N.W.2d 280 (Minn. 1996) had held that restitution was not limited to the crime of conviction.  This is nonsense as Terpstra was a single count conviction of theft by swindle.  The state was not able to prove beyond a reasonable doubt that Terpstra swindled the full amount claimed, some forty-five grand, but the trial court, under a preponderance standard, could still award the full amount as restitution. There was only one offense and only one conviction. Here, Mr. Riggs pled guilty to terroristic threats and another offense, assault was dismissed.

Justice Page thought that restitution should be limited to losses caused by the offense of conviction.  He points out that the restitution statute provides that a victim may only receive restitution "as part of the disposition of a criminal charge ... against the offender if the offender is convicted." Minn.Stat. 611A.04, subd. 1(a).  The phrase "as a result of the offense" logically refers to the offense of conviction.  Justice Page also agreed with the chief justice that the trial court should be able to consider the victim's conduct.