Under Knaffla, Post Conviction Claim Is Procedurally Barred

Ouk v. State, Minn.S.Ct., 8/24/2016.  A jury convicted Mr. Ouk back in 1992 of two counts of first degree felony murder and two counts of attempted first degree felony murder.  The trial court imposed two life sentences with the possibility of release on the murder verdicts, and two fifteen year sentences of the attempt verdicts, with these sentences to be served consecutively.  

Mr. Ouk brought this action in his view to correct his sentence under Rule 27.03, subd. 9.  He said that the juvenile court had failed to follow the proper procedure for certifying him to stand trial as an adult.  The trial court construed this pleading as a post conviction petition because the petition challenged more than just his sentence.  Johnson v. State, 877 N.W.2d 776 (Minn. 2016); State v. Coles, 862 N.W.2d 477 (Minn. 2015.)  It then summarily denied the petition under the Knaffla rule that says, among other things, that after direct appeal, claims that a petitioner knew about or should have known about at the time of direct appeal are procedurally barred.

Justice G. Barry Anderson says that the post conviction court got it right.  After certification occurred, Mr. Ouk either knew or should have known whether the juvenile court messed things up so Knaffla eliminates that claim from further challenge.  Because Mr. Ouk did not allege any exception to the statutory two year limitations statute, the court can continue to dodge the question whether Knaffla has survived the recent amendments to Chapter 590.

State's Unilateral Dismissal of Tab Charge or Complaint Need Not Be Made In Good Faith

State v. Olson, Minn.S.Ct., 8/24/2016.  When Mr. Olson's case came up for trial the state's only witness didn't bother to show up. When the trial judge denied the state's continuance request the state dismissed the tab charge and got in the judge's face by saying they would just refile the charge.  Which they did. When Mr. Olson moved to dismiss the refiled charge the trial court denied that motion.  Mr. Olson appealed.  The Court of Appeals said that the state could not use this dismiss/refile workaround to avoid its witness availability problems.

Justice Stras is having none of that.  He pulls out the rule book to find that Rule 30.01 states unambiguously that the prosecutor doesn't need anyone's permission to dismiss either a tab charge or a complaint.   The Justice declines to require that state act in good faith in exercising this authority.

Under a different rule, however, Rule 30.02, the trial court has the discretion to dismiss a charge - whether by tab charge, complaint, or indictment, "if the prosecutor has unnecessarily delayed bringing the defendant to trial."  This rule, the Justice says, applies whether the delay occurred in initially bringing charges or in Mr. Olson's situation, where the state dismisses and then refiles.  The court concludes that the trial court got it right in denying Mr. Olson's dismissal motion, quoting favorably from the trial court's ruling on the dismissal motion:

[The State] did not charge the case in order to obtain an unfair advantage and did not blatantly delay the [d]efendant’s trial. The witness’s unavailability was unknown to the State until the day before trial and the State promptly disclosed the information, continued to negotiate the case and made its intent to recharge known prior to making the continuance request. Further, the case had not been unnecessarily delayed by any continuances prior to the continuance request on the day of trial and the [d]efendant’s trial in the new recharged case was set promptly at the first available date for the parties. 

Probable Cause To Search Blood For Alcohol Authorizes Search for Controlled Substances as Well

State v. Fawcett, Minn.S.Ct., 8/24/2016.  A court that prides itself on precision use of words, constantly running to the nearest dictionary, is not so persnickety when called upon to discern a cop's application for a search warrant.   Fresh off her victory in State v. Bernard, - a breath test is a search incident to a lawful arrest and thus an exception to the warrant requirement, Birchfield v. North Dakota, ___ U.S. ___ (2016) - Chief Justice Gildea delves into alchemy to turn alcohol into narcotics.

Ms. Fawcett ran a right light and plowed into another car, causing injuries to the driver of that other car.  Officers smelled alcohol on Ms. Fawcett's breath and she admitted that she had drunk two to three beers earlier.  Meantime, another officer applied for a warrant to search a sample of Ms. Fawcett's blood for "evidence of the crime of criminal vehicular operation/homicide."  The officer's application stated the belief that Ms. Fawcett was under the influence of alcohol.  The judge then signed a search warrant that authorized the officers to cause a blood sample to be taken from Ms. Fawcett and forwarded to an approved lab for testing.  The BCA tested the blood sample for alcohol and came up dry.  They then tested the blood sample for drugs and found two controlled substances.

The state charged Ms. Fawcett with criminal vehicular operation. She moved to suppress all evidence of the presence of drugs, saying that the warrant application did not provide any basis for police to test her blood for controlled substances.  The trial court granted that motion.  The court of appeals reversed the trial court saying that once the state "seized" a quantity of Ms. Fawcett's blood it was none of her business just what the state did with it.  

In a footnote, Chief Justice Gildea nixed that theory by the court of appeals, saying that Ms. Fawcett retained some expectation of privacy in her blood that had been seized pursuant to a search warrant although the court does not define the extent of that expectation.  The Chief then gets down to it and announces the rather astonishing conclusion that the trial judge had enough information to conclude that there was a "fair probability" that evidence of intoxicants, whether alcohol, controlled substances, or a combination of the two would be found in Ms. Fawcett's blood:

Considering all the circumstances set forth in the warrant application and supporting affidavit, including L.S.’s visible injuries, the eyewitness’s placement of Fawcett behind the wheel of a vehicle that ran a red light, the odor of alcohol on Fawcett’s breath, the officers’ conclusion that she had been drinking, and Fawcett’s admission that she had been drinking prior to the crash, the issuing judge had a substantial basis to conclude there was a fair probability that evidence of intoxicants, whether alcohol, controlled substances, or a combination of alcohol and controlled substances would be found in Fawcett’s blood.

The court justifies this result by stating two things:  First, the whole point of getting a search warrant is to put the decision in the hands of a judge to make an independent assessment of the existence of probable cause; and, Second, that independent assessment includes drawing reasonable inferences from the materials supplied to that judge by the applicant for the warrant.  But, this actually turns the more traditional analysis on its head; courts constantly compliment police officers for their acumen in ferreting out what's really going on - they're the experts - but here the court is saying that the cop got it wrong and it was for the judge to do the ferreting.

Justice Stras, joined in part by Justice Lillehaug, dissents.  Justice Stras, ever the literalist, points out that the search warrant application only talked about alcohol and never about drugs, and so the application failed to establish probable cause to search for controlled substances.  

The court has not said why facts suggesting that Fawcett negligently operated her vehicle while under the influence of alcohol also provide reason to believe that controlled substances would be found in her blood. In essence, the court has reached the unsupported conclusion that, if there is a fair probability that a person has recently used alcohol, there is a fair probability that the person has used drugs as well. 

Put another way, smelling alcohol on a driver's breath is easy.  After that it's anyone's guess whether the driver's driving behavior was the result of that alcohol, the result also of drugs, or the result of texting as well.  Who knows?

Both the majority and the dissent give lip service to supposed limits to the breadth of this opinion.  Each says, for instance, that a search warrant for blood to test for the presence of alcohol would not authorize a search for other private medical facts about a person. This acknowledgment raises the question whether this is really a smart phone case.  Just as with smart phones, there's just too much private and otherwise sensitive information in a tube of blood.  If he happens to get pulled over for suspected DWI heading up I-94 on his way to Wall Drugs does Chief Justice Roberts really want the BCA checking his genetic markers?

Justice Stras also made another pitch to adopt the Leon good faith exception to the exclusionary rule, but gets no takers.

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.S.Ct., 8/17/2016.  Someone cut Mr. Fleming with a knife while the two were apparently playing basketball on a court in some park; illegal screen perhaps.  In any event, Mr. Flemming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.

Mr. Fleming pled guilty to both assault and possession of a firearm by an ineligible person.  The trial court imposed a 90 month sentence on the firearm possession conviction; the trial court initially stayed that sentence but when Mr. Fleming violated probation the court executed the sentence.  Mr. Fleming appealed. He said that although his possession of the firearm created a greater than normal danger to the safety of other people, he created that greater danger by committing the assault.  That being the case, Mr. Fleming then said that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.

Both the trial court and the court of appeals rejected this argument, relying upon a 2009 amendment to Minn.Stat. 244.10, subd. 5a(b):

Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.

The supreme court accepted review.  Justice Dietzen doesn't really have a whole lot to say about this beyond what the court of appeals already said.  The "plain language" of the statute means just what it says:  the statute authorizes a departure based on "any aggravating factor" "notwithstanding" whatever either 609.04 or 609.035 say.

Rule of Evidence Don't Apply to Restitution Hearings

State v. Willis, Minn.Ct.App., 8/15/2016.  A jury convicted Mr. Willis of aggravated forgery, something to do with a quitclaim deed.  Fortunately, this case isn't about property law, but restitution. At the restitution hearing the trial court received in evidence, over objection, a letter from the victim's attorney stating that the victim had incurred expenses of two grand in legal fees to untangle the quitclaim business.  On appeal, the question is whether the rules of evidence apply to restitution hearings.

Now, just a few months back the supreme court said that the rules of evidence apply to Blakely bench trials.  State v. Sanchez-Sanchez.  The court of appeals, however, distinguishes this case by saying that an award of restitution is part of a criminal sentencing,   Evans v. State, 880 N.W.2d 357 (Minn. 2016), but it's not part of sentencing under Rule of Evidence 1101.  A Blakely trial is more like an adjudication of guilt phase of a criminal trial because, in part, "adjudicatory facts are determined." Just why a determination of an amount of restitution is not an "adjudicatory fact" isn't really explained.

Except that if such a determination is an "adjudicatory fact" then a restitution hearing, which is admittedly part of a criminal sentence, starts to look a lot like a Blakely hearing.  That, of course, requires a jury, which is the real elephant in the courtroom.

Limitations Provisions of Post Conviction Petition Are Not Ex Post Facto Provisions

Jones v. State, Minn.S.Ct., 8/10/2016.  In this post conviction petition Mr. Jones says that the limitations provisions that were enacted in 2005 cannot constitutionally be applied to him because the crimes for which he was found guilty occurred in 1992, long before the limitations provisions were enacted.  To apply the limitations provisions to him violates the federal and state prohibitions on ex post facto laws.  

Justice Lillehaug rejects this assertion.  The limitations provisions did not alter the consequences of any acts that Mr. Jones committed in 1992 and thus did not deprive him of any vested right or create a new obligation or disability regarding a past transaction.

Mr. Jones also argued that Minn.Stat. 631,21, which authorizes a court to order that a criminal action be dismissed applied to his "rare and unusual case."  The Justice also rejects this assertion, saying that the "plain words" of the statute applies to an ongoing criminal case in the district court.

Post Conviction Court Has Discretion To Raise Limitations Issue On Its Own Motion

Weitzel v. State, Minn.S.Ct., 8/10/2016.  Mr. Weitzel filed a post conviction petition.  The state did not raise a limitations claim in its response, but the post conviction court raised it on its own. Without giving the parties the opportunity to address the limitations issue the court found that the petition was untimely and summarily dismissed it. On appeal to the court of appeals Mr. Weitzel said that the post conviction court was required to consider the merits of his petition because the state had forfeited its right to assert a limitations defense. The court of appeals said that 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. 

Justice Dietzen concludes that the post conviction court has the discretion to raise the limitations issue on its own motion it must provide the parties notice and the opportunity to be heard before ruling on the issue.  The Justice remanded the case back to the post conviction court to provide that opportunity.

In an odd pairing, Chief Justice Gildea and Justice G. Barry Anderson dissent.  The Chief said that she would have held the state to its failure to assert limitations as a defense and would not have allowed them to raise it. She would remand the case back to the post conviction court to consider the merits of the claim.

Post Conviction Claims Are Untimely And Thus Frivolous

Brocks v. State, Minn.S.Ct., 8/10/2016.  In this his fourth post conviction petition Mr. Brocks argued that his right to effective assistance of counsel had been violated because his attorney had a conflict of interest.  The post conviction court summarily denied the petition, saying that it was untimely under the limitations provision of the post conviction statute, and that it did not satisfy the "interests of justice" exception to those limitations provisions. In the alternative, the post conviction court said that the petition was barred under Knaffla, including the statutory adoption of the Knaffla rules.

Chief Justice Gildea points out that Mr. Brocks' petition was filed well past the two year limitations period and so he stays in court only if one of the exceptions applies.  Mr. Brocks claimed that the "interests of justice" exception applied but the Chief rejects that assertion.  The petition does not satisfy the "interests of justice" exception because it is procedurally barred.  Mr. Brocks raised the claim presented here both in his direct appeal and in her first post conviction appeal.  Mr. Brocks did not raise either of the Knaffla exceptions, the continued viability of which the court continues to dodge, and so he has forfeited any claim that either exception applies.

Elimination of Mistake As To Age Defense in Prosecution for Internet-Only Child Solicitation Prosecution Violates Substantive Due Process

State v. Moser, Minn.Ct.App., 8/8/2016.  Mr. Moser solicited a child for sex over the internet.  He never met the child in person and the child told him that she was sixteen when in fact she was fourteen.  Although Mr. Moser repeatedly asked for pictures of the child the child apparently never sent any photos to him.  

The state charged Mr. Moser with violating the child-solicitation statute, Minn.Stat. 609.352.  He was convicted.  He challenged that conviction, saying that as applied to solicitation that occurs only over the internet, involving no face to face contact, and where the child represents that he or she is sixteen or older the inability to raise a mistake of age defense violated substantive due process.  The court of appeals agrees and reverses Mr. Moser's conviction.

The child solicitation statute prohibits the solicitation of a "child or someone the person reasonably believes is a child" to engage in sexual conduct with intent to engage in sexual conduct." Minn.Stat. 609.352, subds. 2, 4.  The statute explicitly eliminates mistake as to age as a defense.  Minn.Stat. 609.352, subd. 3(a).  The criminal sexual contact statutes similarly eliminate mistake as to age as a defense when the victim is under certain stated ages, although is some instances a defendant's "reasonable belief" that the victim  is a certain age or older is an affirmative defense.

The court acknowledges that previous SCOTUS and Minnesota cases hold that there is no due process violation to charge the child pornography producer, the in-person child solicitor, or the child rapist with knowledge of the victim's age.  United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); State v. Morse, 281 Minn. 378,  161 N.W.2d 699 (1968). A defendant in such an in-person encounter "can reasonably be required to ascertain the age of a person the defendant meets in person."  For Mr. Moser's internet-only encounter the court concludes that it was unreasonable to charge him with that obligation.

In summary, as applied to Moser and in other cases where the defendant has no in person contact with the child and the child represents to the defendant that he or she is 16 or older, Minnesota Statutes section 609.352, subdivisions 2 and 3(a), violate due process by imposing strict liability and eliminating a mistake-of-age defense. The child-solicitation statute infringes on Moser’s fundamental rights to liberty, to a fair trial, and to present a complete defense. It cannot survive strict scrutiny. Although the statute imposes strict liability, it has none of the characteristics that usually accompany strict-liability offenses. The statute does not create a public welfare offense, and it is not reasonable to require a defendant in Moser’s position, engaging in solicitation solely over the Internet without any face-to-face contact, to verify the actual age of the person solicited. The statute does not survive strict scrutiny because, given its harsh penalties, it is not narrowly tailored to serve the compelling government interest of protecting children from sexual exploitation. Because the child told Moser she was 16 years old, Moser may have reasonably believed  that she was not a child as defined by the statute. We therefore conclude that the district court erred by denying Moser the opportunity to raise a mistake-of-age affirmative defense.

Court Recognizes Retroactivity of Miller v. Alabama, Imposes Life Sentence With Possibility of Release After 30 Years For Juvenile Offender Whose Sentence Was Final Before Miller

Jackson v. State, Minn.S.Ct., 8/3/2016.  The state charged Mr. Jackson with premeditated murder; he was seventeen years old.  A jury convicted him, and the trial court imposed a life sentence without possibility of release under a statute that required that result without exception.

After Mr. Jackson's conviction and sentence became final the U.S. Supreme Court held in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), that mandatory imposition of life without possibility of release is unconstitutional as applied to juveniles under the Eighth Amendment.  In Chambers v. State, 831 N.W.2d 311 (Minn. 2013), and in Roman Nose v. State, 845 N.W.2d 193 (Minn.2014), the Minnesota Supreme Court held that Miller v. Alabama, was not retroactive.  Earlier this year the U.S. Supreme Court held that Miller v. Alabama is retroactive, overruling both Chambers and Roman Nose.  Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).

Justice G. Barry Anderson had joined the opinion in Chambers, and had written a concurring opinion in Roman Nose wherein he wished that SCOTUS would answer the retroactivity question.   With none of the dissenters in Chambers and Roman Nose - Justices Page and Paul Anderson - still on the court, Justice G. Barry Anderson gets to write the obituaries of these two opinions, one supposes because he kept wishing that SCOTUS would answer the retroactivity question.

Jackson's mandatory life sentence without possibility of release clearly violates Miller.  So, the meat of the opinion is determining what the remedy is.  The state argued that the remedy was to remand the case back to the trial court for a "Miller hearing." Without dissent, however, the court does remand the case, but with instructions to impose a life sentence with possibility of release after serving thirty years.  This is the "last text standing" before the legislature enacted the now unconstitutional mandatory life without possibility of release statute for juvenile offenders. The court simply thought that too much time had passed - 10 years for Jackson - for any kind of meaningful "Miller hearing" to occur:

A Miller-hearing remedy provides inadequate relief in a retroactive context for a juvenile such as Jackson, whose sentence was imposed nearly 10 years ago. Based on the significant passage of time since Jackson’s 2006 sentencing, holding a fair and meaningful Miller hearing is not possible. 

Concluding, the Justice stated:

We hold that Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2014), are severed as applied to Jackson and any juvenile offenders who received mandatory LWOR sentences that were final before the Miller rule was announced. The most recent constitutional versions of those statutes are revived. Based on Jackson’s conviction of first-degree premeditated murder, the revived statutes require a sentence of life imprisonment with the possibility of release after 30 years, Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2004). Therefore, we vacate Jackson’s LWOR sentence and remand to the district court for imposition of a sentence of life imprisonment with the possibility of release after 30 years

Just how this will play out for the other juvenile offenders who received mandatory life without possibility of release sentences that were final before the Miller rule was announced remains to be seen. The state has shown no willingness to abandon the preservation of these unconstitutional sentences and so likely each juvenile's case will have to be litigated separately.

Court Upholds Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates

State v. Bakken, Minn.S.Ct., 8/3/2016.  On seven different days between November and June, Mr. Bakken downloaded to his computer's hard drive seven pornographic images of seven different minors.  The state charged Mr. Bakken with seven counts of possession of pornographic work involving minors.  Mr. Bakken pled guilty to all seven counts.  At sentencing he argued that he could only be convicted and sentenced for one count of possession.  He said that this was so for two reasons:  the "unit of prosecution" is possession of the computer on which the images were stored rather than the individual images stored on it; and his offenses were part of a single behavioral incident.  The trial court rejected this view of the statute and the court of appeals affirmed.  Justice Lillehaug agrees with the trial court. 

On this "unit of prosecution" here's what the statute says:

A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony . . . .

Justice Lillehaug interprets this language to criminalize both the possession of a pornographic work itself, and the possession of a computer storing a pornographic work.  The state could thus choose to charge Mr. Bakken with possession of seven distinct pornographic works.  

On the "single behavioral incident" claim, the general test is whether the offenses occurred at substantially the same time and place, and whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Bauer, 792 N.W.2d 825 (Minn. 2011).  Mr. Bakken could only establish one of those factors - place - to the court's satisfaction, perhaps because the parties agreed that the seven offenses occurred in the same place, his mom's bedroom. But, on the other two factors things don't go Mr. Bakken's way. The Justice concludes that the seven offenses were not committed at "substantially the same time;" two of the offenses were completed - downloaded onto the computer hard drive - five days apart, and other offense were separated by over a month.  

Here's what the Justice had to say about whether the seven offenses were motivated by an effort to obtain a single criminal objective:

Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective,

There's no real guidance here, except for a throwaway line that prosecutors need to be somewhat prudent about piling on hundreds of counts, one for each image.  So long as the prosecutor is exercising "some selectivity in enforcement" the sky's the limit.

Court Rejects Post Conviction Claim of Ineffective Assistance of Counsel

Griffin v. State, Minn., Minn.S.Ct., 8/3/2016.  A jury found Mr. Griffin guilty of two first degree murder offenses for the shooting death of one victim.  The trial court sentenced him on the verdict of first degree premeditated murder. Mr. Griffin is serving a life sentence without possibility of release for a conviction of first degree murder.  The Supreme Court affirmed his conviction on direct appeal in 2013.  Mr. Griffin filed a timely petition for post conviction relief, alleging that he received ineffective assistance of trial and appellate counsel.  The post conviction court denied the claim without benefit of an evidentiary hearing.

Mr. Griffin complained on appeal but not before the post conviction court, that his two convictions - premeditated and drive-by first degree murder - violated Minnesota's statutory double jeopardy statute, Minn.Stat. 609.04, and that his trial counsel was ineffective for not objecting to this prosecution on the two counts. Justice Chutich declines to entertain these two claims because Mr. Griffin did not raise them in his post conviction petition.

Mr. Griffin complained that his trial counsel was ineffective for failing to object to the admission of certain out of court statements of a state witness.  This was an issue that Mr. Griffin raised on direct appeal, unsuccessfully, but the post conviction court considered the claim on the merits under one of the two Knaffla exceptions, "interests of justice, because Mr. Griffin's trial counsel was also his appellate counsel.  Justice Chutich declines to answer the question whether this Knaffla exception applies when trial and appellate counsel are the same; instead, the court assumes that it applies and finds the claim lacking on the merits.  The court also continues to duck the question whether the Knaffla exceptions have been done away with by enactment of the 2005 amendments to the post conviction statute.  See Anderson v. State, 830 N.W.2d 1 (Minn. 2013).

Trial Court Has Authority and Discretion to Hear Late Filed Motion to Amend Timely Filed Motion For New Trial

State v. DeLaCruz, Jr., Minn.Ct.App., 8/1/2016.  A jury convicted Mr. DeLaCruz, Jr. of first degree burglary, kidnapping, several sexual misconduct crimes and assault.  Mr. DeLaCruz, Jr. filed a pro se motion for a new trial within the fifteen day window prescribed by the criminal rules.  Thereafter, but after the expiration of these time limits, the trial judge disclosed that he had received a court file that contained what was possibly an exculpatory police report.  Mr. DeLaCruz, Jr, filed an amended motion for new trial, this time through counsel, raising this possible Brady violation.  The initial trial judge recused himself but the next judge refused to entertain the amended motion for a new trial, saying that it was made too late.

Notice of a motion for a new trial must be served within fifteen days after the verdict or finding of guilty.  The criminal rules do not permit the trial court to extend this deadline but say nothing about amended post-trial motions.  The court of appeals concludes that this fifteen day deadline for new trial motions is a "claim-processing" rule and not a "jurisdictional" requirement.  That meant that the trial court had the authority to hear the amended new trial motion. Mr. DeLaCruz Jr. had a satisfactory reason for making the amended new trial motion outside the fifteen day window because he didn't know about the possible Brady violation during that window. The court remands the case back to the trial court to consider that violation.

Single Mitigating Factor Can Support Sentencing Departure

State v. Solberg, Minn.S.Ct., 7/27/2016.  Mr. Solberg entered a Norgaard plea to criminal sexual conduct in the third degree, claiming that his memory was impaired as a result of intoxication at the time of the offense.  The trial court granted a downward durational departure; the court relied on three factors that were offender-based factors - Mr. Solberg's age, family support, and cooperation - and a fourth factor, remorse. The court of appeals reversed this departure.  Judge, now Justice, Hudson, said that although a single aggravating factor may justify an upward departure she could find no case law saying that a single factor is enough to justify a downward durational departure.

Justice Chutich smacks down her colleague and says that a single mitigating factor is, indeed, enough to support a downward durational departure.  In this case, it's Mr. Solberg's remorse. Remorse remains one of those factors that the court doesn't really know what to do with.  It's said, vaguely, that "there may be cases in which the defendant's lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based." Got that? Right. State v. McGee, 347 N.W.2d 802, 804 (Minn. 1989). Without any analysis that could carry forward to other cases, the Justice summarily concludes that Mr. Solberg's remorse did not diminish the seriousness of his conduct so the trial court did err in imposing the downward durational departure.

Post Conviction Claims Knaffla Barred

Fairbanks v. State, Minn.S.Ct., 7/20/2016.  A jury convicted Mr. Fairbanks of first degree murder and nine other felonies associated with the homicide of a deputy sheriff.  The supreme court affirmed his murder conviction and all by one of the other felony convictions in 2014. In this post conviction petition Mr. Fairbanks says that he didn't actually cause the death of the deputy sheriff.  He based this claim by asserting - as he apparently did at trial - that in part the family's decision to refuse further medical treatment caused the death.  That is, Mr. Fairbanks is saying that the family committed euthanasia.

Now, before trial the defense and the state struck a deal whereby the defense wouldn't make the euthanasia claim and the state would neither argue about the definition of euthanasia nor ask the medical examiner whether euthanasia caused the deputy's death.  Mr. Fairbanks signed off on this arrangement on the record.  On direct appeal, Mr. Fairbanks did not raise the causation issue.  Justice G. Barry Anderson concluded that Mr. Fairbanks' causation claim was barred under Knaffla because he could have raised the claim on direct appeal but failed to do.  Mr. Fairbanks did not suggest that either of the Knaffla exceptions applied.

Court Rejects Post Conviction Claims of Ineffective Assistance of Counsel

Swaney v. State, Minn.S.Ct., 7/13/2016.  Mr. Swaney is serving a life sentence without possibility of release.  The supreme court affirmed his direct appeal back in 2010.  In this post conviction go-round, Mr. Swaney made a lot of claims, most of which the post conviction court summarily denied under Knaffla.  The post conviction court did hold an evidentiary hearing on three of Mr. Swaney's ineffective assistance of counsel claims: that his trial counsel had been ineffective by not obtaining the prison phone records of an inmate who claimed that Mr. Swaney made inculpatory statements to him; by not personally interviewing witnesses; and by being inexperienced.  

Justice Dietzen concludes that Mr. Swaney is not entitled to any relief. Mr. Swaney claimed that this inmate had access to information about the crime other than from him, which the jury should have known. Justice Dietzen said, however, that because Mr. Swaney was unable to show what the contents of the inmate phone calls were, it was speculative whether production of those calls would have changed the outcome of the trial. To cover the bases, the Justice went on to say that even if the calls had supported Mr. Swaney's claim, the calls would have been impeachment evidence at most.

Mr. Swaney said it was ineffective for trial counsel to have sent out an investigator to interview witnesses, that counsel should have undertaken that role.  Justice Dietzen rejects this claim as meritless, pointing out that sending out an investigator eliminates the risk that counsel would become a witness and thus unable to continue representation.

Finally, inexperience, by itself is not grounds to support an ineffective assistance claim.  Inexperience can be a factor in judging counsel's performance but that's as far as it goes. Moreover, trial counsel's only apparent "inexperience" was not having previously tried a murder one case.  However, counsel had two co-counsel who had tried murder one cases.