For Sex Offenders Serving a Life Sentence "Minimum Term of Imprisonment" Before Eligible for Release Consideration is a Guidelines Number

Rushton v. State, Minn.S.Ct., 1/25/2017.  Certain repeat sex offenders are subject to a statutory requirement of a life sentence with possibility of release.  Minn. Stat. 609.3455, subd. 4. Subdivision 5 of this statute directs the district court to “specify a minimum term of imprisonment, based on the sentencing guidelines or any applicable mandatory minimum sentence” that “must be served before the offender may be considered for supervised release.” Minn. Stat. § 609.3455, subd. 5. Mr. Rushton is serving such a life sentence with possibility of release.  He thought, however, that "minimum term of imprisonment" meant two-thirds of his presumptive guidelines sentence.  There's a statute that says just that, Minn.Stat. 244.101, subd. 1(1); "minimum term of imprisonment" is defined as "equal to two-thirds of the executed sentence."

Justice Chutich, however, thought that the more specific directive of 609.3455, subdivision 5 controlled.  The court still had to interpret the phrase "minimum term of imprisonment," which it did by saying that the language of the statute was unambiguous.  The reference to the guidelines meant that the trial court was required to determine the offender's criminal history score on the two axis and pick a number from the resulting box.  That number would be the "minimum term of imprisonment" that the offender would have to serve before he could be considered for release.

The court was clear in saying that this was the drill for sex offenders subject to the life sentence under 609,3455.  For everyone else "minimum term of imprisonment" means two-thirds of the actual sentence:

Nothing in our opinion today should be read as altering the general definition of “minimum term of imprisonment” contained in section 244.101 or Minnesota Sentencing Guidelines 1.B.7 for cases not involving a mandatory life sentence under Minnesota Statutes § 609.3455, subd. 5. As we stated in Hodges, “[i]n most cases, the minimum term of imprisonment ‘is the period of time equal to two-thirds of the inmate’s executed sentence.’ ” 784 N.W.2d at 829 n.2 (emphasis added) (quoting Minn. Stat. § 244.01, subd. 8). But, in cases involving a mandatory life sentence for certain repeat sexual offenders, Minnesota Statutes § 609.3455, subd. 5, and Minnesota Sentencing Guidelines 2.C.3(a)(1) provide a different method for calculating a minimum term of imprisonment. 

Trial Court Did Not Impermissibly Inject Itself Into Plea Negotiations

Wheeler v. State, Minn.Ct.App., 1/23/2017.  The court of appeals tackles the question when does the trial court get too far into the weeds of plea negotiations?  Ms. Wheeler pled guilty to aiding and abetting second degree unintentional murder.  The state had initially charged her with intentional second degree murder.  Two of her children witnessed part of the murder and the trial court made it known to the parties that the idea of these kids having to testify against their mother didn't sit too well.  So, he instructed the parties to make a good faith effort to reach a resolution and to keep it apprised of any movement.

The parties kept negotiating right up to and continuing after the start of trial.  Just before trial the judge let it be known that a plea to manslaughter in the second degree, even with a double departure sentence was unacceptable.  After the first day of trial the judge stated that he'd heard that the state was willing to offer an unintentional second degree murder with some yet to be determined sentencing range within the applicable guidelines box but that Ms. Wheeler had declined that offer.  In actuality, she and her attorney hadn't yet discussed it.  During the weekend recess, Ms. Wheeler's attorneys notified the court that that she would be willing to plead guilty to aiding and abetting second degree unintentional murder, with a guidelines sentence to be determined by the trial court. When the trial resumed, however, Ms. Wheeler entered a guilty plea to that second degree unintentional murder but with a specific sentencing range of 128 to 180 months.  The trial court accepted that plea.  At sentencing the trial court imposed a sentence of 172 months.

After a while, Ms. Wheeler filed a post conviction petition in which she said she was entitled to withdraw her guilty plea because the trial court had improperly participated in the plea negotiations.  The court summarily denied the petition.

Here's how the court has described the role of the trial court in plea negotiations:

The ultimate judicial responsibility must be to make reasonably certain that a person innocent of any crime has not been improperly induced to plead guilty to a crime. It is likewise a judicial responsibility to protect society against a defendant’s being permitted to bargain for a plea excessively lenient for the gravity of the crime apparently in fact committed. Although the court should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself, its proper role of discreet inquiry into the propriety of the settlement submitted for judicial acceptance cannot seriously be doubted. 

State v. Johnson, 279 Minn. 209, 156 N.W.2d 218 (1968).  

The court of appeals said that a trial court crosses the line into impermissible interjection when it induces a guilty plea by a promise of a particular sentence, or when it imposes plea terms against the objections of a party.  Some examples include:

A district court reversibly errs when it induces a guilty plea by a promise of a particular sentence, or when it imposes plea terms against the objections of a party. In Melde, we held that the district court improperly inserted itself into plea negotiations when it told the defendant that it would impose a 46-month executed sentence if he affirmed his guilty plea after the district court had rejected a proposed plea agreement. 778 N.W.2d at 379. In Anyanwu, we held that the district court erred when it promised and gave the defendant a 210-month sentence over the prosecutor’s objection. 681 N.W.2d at 413, 415. We stated that “the district court directly and unequivocally promised the defendant a particular sentence in advance, and forced the plea bargain on the prosecutor.” Id. at 415. In Vahabi, we held that the district court impermissibly participated in plea negotiations when it sentenced the defendant in a manner objected to by the state, and which led us to conclude that the “[t]he parties to [the] plea agreement were the court and the defendants, not the prosecution and the defendants.” 529 N.W.2d at 361. And in Moe, we held that the district court impermissibly inserted itself into plea negotiations when it offered the defendant a downward departure from the sentencing guidelines over the prosecutor’s objection, if the defendant cooperated with the police in an unrelated matter. 479 N.W.2d at 429. 

Ms. Wheeler said that the court had facilitated a plea agreement by indicating that it would not sentence at either the top or the bottom of the sentencing range.  The was not, says the court of appeals, an unequivocal sentencing promise that a trial court can't make.  She also said that the trial court impermissibly suggested that the state offer an amended charge of second degree unintentional murder. The court of appeals seem to think that this was a closer call but decided that the court hadn't really extended a plea offer, or if it did Ms. Wheeler rejected it. The record supported the conclusion that it was the state that had initially offered the second degree unintentional murder plea, not the court.  Finally, Ms. Wheeler said that the trial court impermissibly pressured the parties to enter into a plea agreement so that her children would not have to testify against her at trial.  The court of appeals concluded that this was really nothing more than fair comment if not part of the court's responsibility to monitor plea negotiations. nb tgtbg00121

In the Absence of Ambiguity The "Plain Meaning" of an Ordinance Controls

State v. Vasko, Minn.S.Ct., 1/18/2017. What better way is there to drive home the company line on the proper way to construe a statute than the Lester Prairie City "blight" ordinance?  Ms. Vasko was keeping a maroon Oldsmobile in her front yard; the tabs had been expired for years.  It being a quiet day in Lester Prairie the police chief took an interest in Ms. Vasko's front yard.  Eventually, the chief cited Ms. Vasko for violating the city's ordinance - did I mention that the city code is a whopping three hundred sixty-three pages, not bad for a city of 1,690 - against keeping junked cars in one's front yard. Here's what it says:

It shall be unlawful for any person . . . occupying or owning private property within the City of Lester Prairie to keep or permit to be kept any junked or abandoned vehicles or other scrap metal on such private property . . . for a period in excess of thirty (30) days without a special use permit granted by the City Council. 

Let's call this first section of the ordinance the "special use permit" section.  That's because there's another section - let's call it the "general blight" section - that identifies all manner of conditions that in the city's considered opinion constitute "blight or blighting factors," including junk vehicles and poisonous plants. This "general blight" section requires the city to give written notice to the property owner to remove the blight condition within ten days. Both sections have a penalty provision, which pronounces that it is a misdemeanor to violate "this ordinance."

The city cited only the "special use permit" language in the citation that it issued to Ms. Vasko.  Ms. Vasko took the city to trial; she said that because she had been moving the Oldsmobile in and out of her garage there was no continuous thirty days during which the car affronted the city sensibilities; and, she didn't get her ten day notice.  (She apparently fabricated a letter from the city clerk that appeared to be a "special use permit, but we don't need to go there.) She lost but the trial court imposed a petty misdemeanor sentence. Undaunted, she appealed to the court of appeals, which reversed the conviction; that court read the ordinance to create a single crime which in its view the state hadn't proved.  Justice Chutich reinstates the conviction.

The Justice said that the ordinance creates two separate crimes:  the "special use permit" crime and the "general blight" crime.  Each has its own penalty section and thus each stands separate from the other.  The court of appeals was wrong to determine that the ordinance was ambiguous and thus had no business construing it the way it did.

And the company line:

We review issues of statutory interpretation de novo. Nelson, 842 N.W.2d at 436. The purpose of statutory interpretation is to ascertain the intent of the Legislature. Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013). When interpreting a statute, “we give words and phrases their plain and ordinary meaning.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010) (citing Minn. Stat. § 645.08 (2016)). “If a statute is unambiguous, then we must apply the statute’s plain meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). If, however, a statute has more than one reasonable interpretation, then it is ambiguous, and we may apply the canons of statutory construction to determine its meaning. State v. Hayes, 826 N.W.2d 799, 804 (Minn. 2013).

No Error in Refusal To Instruct Jury on Cross Racial Identification

State v. Thomas, Minn.Ct.App., 1/17/2017.  A white male identified Mr. Thomas, a black male unknown to the white male, as the person who held him up at gunpoint.  At trial Mr. Thomas requested an instruction on cross racial identification, the wording of which isn't pertinent to the opinion.  The defense cited to some opinions from other states, and to some of the scientific literature that has studied the reliability of such identifications, but there was no expert testimony offered in support of the request.  The trial court declined the request and the court of appeals upholds that decision.

The court of appeals said that it was up to the supreme court to modify the standard jury instruction on identification testimony. That would have been enough to affirm the trial court's decision, but the court decided to dig up some really old cases - well before decades of research on the perils of eye witness identification - to reaffirm the antiquated notion that such things as cross examination, proper jury instructions, the burden of proof, jury unanimity are all more than adequate to safeguard against a conviction based on a false eye witness identification.

There are a couple of things that the court of appeals did not mention. Just a few years ago the supreme court rejected a challenge to the refusal of the trial court to admit the very kind of expert testimony that was absent for Mr. Thomas.  State v. Mosley. Second, according to the National Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing.  Read about that here.

Compelling a Defendant to Provide Fingerprint In Order to Unlock Cell Phone Not A Fifth Amendment Violation

State v. Diamond, Minn.Ct.App., 1/17/2017.  Police arrested Mr. Diamond on suspicion of burglary.  Following his arrest, police obtained and executed a search warrant to seize Mr. Diamond's shoes and cell phone. Then, the police got another warrant to search the contents of the cell phone, only they were unable to unlock it.

So, the state got an order from the trial court compelling Mr. Diamond to provide his fingerprint in order to unlock the phone. Mr. Diamond complained that this violated his Fifth Amendment right not to incriminate himself.  Both the trial court and the court of appeals disagreed with that assertion.

Before the advent - or at least the ubiquitous proliferation - of cell phones, the U.S. Supreme Court said that the Fifth Amendment privilege applies to communications.  A defendant's communication must, itself, explicitly or implicitly, relate a factual assertion or disclose information.  Doe v. United States, 487 U.S. 201 (1988). Fingerprints, blood samples, voice exemplars, handwriting specimens may be obtained from a defendant against his will.  The court declines to make an exception for cell phones.  So, it may be more convenient to use a fingerprint to lock/unlock that cell phone but it won't keep the wolves at bay.

Step Grandparent-Step Granddaughter Relationship Is "Significant Relationship" under CSC Laws

State v. Reyes, Minn.Ct.App., 1/9/2017.  Mr. Reyes sexually assaulted his step granddaughter.  The state charged him with criminal sexual conduct based on the age of the step- granddaughter and based on a "significant relationship."  Mr. Reyes challenged that "significant relationship" allegation, saying that the statute's definition of that term did not extend to step _ relationships:

A “significant relationship” is defined as a circumstance in which the actor is “any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, greatgrandparent, great-uncle, [or] great-aunt.” Minn. Stat. § 609.341, subd. 15(2).

Mr. Reyes argued, "Read the statute; it doesn't include step grandparents."  The state said, "Read the statute; the phrase "related by blood, marriage, or adoption" encompasses step grandparents because they are grandparents related by marriage."  The court of appeals liked both of those arguments, so it declared that the statute was ambiguous. Venturing out on its own devices - known as statutory construction - the court had no difficulty concluding that the better policy was to include step grandparents into the mix.

The state also wanted to introduce expert testimony to explain why the step granddaughter delayed for some time in reporting the abuse and to explain some of her other behavior.  Mr. Reyes objected, saying that this was nothing more than bolstering the step granddaughter's credibility. Mr. Reyes made this objection pretrial; the court held a hearing on the objection pretrial but deferred a ruling until during the trial.  Mr. Reyes did not renew his objection to this expert's testimony once the trial court said it could be admitted; this left his appellate issue at the mercy of the plain error standard.  This allowed the court of appeals to uphold the admission of the testimony because that trial ruling was within the trial court's discretion, which the court concluded had been properly exercised.  In large part the court reached this conclusion by reliance upon a 1987 case, State v. Hall, 406 N.W.2d 503 (Minn. 1987).  There, the court had upheld expert testimony on the characteristics commonly exhibited by sexually abused adolescents. 

Court Rejects Constitutional Challenges to Statutory Mandatory Restitution to Identify Theft Victims

State v. Rey, Minn.Ct.App., 1/9/2017.  The trial court ordered Mr. Rey to pay $1,000.00, the mandatory statutory restitution amount, to each of sixty-six identity theft victims.  Mr. Rey objected on various constitutional grounds, all of which the trial court, and now the court of appeals rejected.  Here are the four questions that the court addressed:'

I. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey’s substantive due-process rights?

II. Does the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, violate Rey’s procedural due-process rights?

III. Did the district court fail to consider Rey’s ability to pay before ordering restitution?

IV. Is the minimum-restitution provision in Minnesota Statutes section 609.527, subdivision 4, an unconstitutional fine?

The court answered, No, to each of these questions.

Defendant Has Right to Attend Restitution Hearing

State v. Rodriguez, Minn.Ct.App., 1/9/2017. Mr. Rodriguez challenged an award of restitution.  The court scheduled a hearing on the challenge. For whatever reason Mr. Rodriguez was not brought in from whatever prison he was housed to attend the hearing.  The court held the hearing anyway, contending that Mr. Rodriguez had waived whatever right he had to attend the hearing.

A few years back the court of appeals held that a defendant has a right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App., 2013.  It seemed more than reasonable, if not logical, to extend that right to the right to be present at a restitution hearing.  On the waiver question, regardless of whose job it was to haul Mr. Rodriguez in from prison, any "waiver" had to have been made personally by Mr. Rodriguez.  That not being the case, there was no valid waiver.  

That said, holding the hearing in Mr. Rodriguez' absence was still subject to a harmless error analysis; the court declined to take up the question whether any error was structural and thus requiring automatic reversal.  The court concluded that in this case the error was not harmless.  So, Mr. Rodriguez gets a redo on his restitution challenge.

Rule of Criminal Procedure Regarding Discretionary Jury Sequestration Takes Precedence over Statute's Mandatory Sequestration Requirement

State v. Drew, Minn.Ct.App., 1/3/2017.  Mr. Drew went to trial on the state's charge of being an ineligible person in possession of a firearm.  It was a two day trial.  Before retiring to deliberate the trial court told the jurors that they would deliberate until 4:30 p.m. and then be released until the following Monday.  As the appointed hour approached, the jury sent out a note stating that they were "100% sure that they are unable to reach a unanimous verdict." The judge told them to keep at it until 4:30 and that they would then be released until Monday.  After the jury left the courtroom Mr. Drew said he wanted the jury sequestered for the weekend.  The trial court denied that request.

There is a conflict between the criminal rules, 26.03, subd. 5(1) and the statute, 631.09.  The rule gives the trial court discretion whether to sequester a jury; the statute says that once a jury retires to deliberate they must be kept together until they reach a verdict. The court of appeals concludes that the rule takes precedence because the statute is procedural, rather than substantive.  A court rule that conflicts with a procedural rule takes precedence.  

Mr. Drew also make a couple of complaints about evidentiary rulings. However, because there was no objection during the trial "plain error" is the standard of review, which Mr. Drew could not meet.

No Error in Excluding Evidence of Past Bad Acts of Victim in Support of Self Defense Claim

State v. Zumberge, Minn.S.Ct., 1/4/2017.  Mr. Zumberge shot and killed his neighbor, Todd Stevens, and shot and wounded Mr. Steven's girlfriend, Jennifer Clevon.  Stevens and Clevon regularly fed deer who came into their yard, a practice that Mr. Zumberge didn't approve.  On the day of the shooting Mr. Zumberge's wife, Paula got into a yelling match with Clevon, who was in her yard across the street.  Stevens came over to Clevon.  Mr. Zumberge grabbed a shotgun, climbed out a basement window and from the back corner of his house shot Stevens and Clevon.  Mr. Zumberge claimed self defense; he claimed to have lip-read Stevens threaten to kill Paula, and he claimed that he saw Stevens reach for his belt. Stevens had a phone holder attached to his belt but was not otherwise armed.  A jury rejected the self defense claim and convicted Mr. Zumberge of the homicide and attempted homicide.

Mr. Zumberge complained on appeal that the trial court had denied him the right to present a complete defense by excluding testimony of a laundry list of past bad acts of either Stevens or Cleven, offered to prove that he had a reasonable fear of great bodily harm from Stevens.  Such evidence is admissible only if Mr. Zumberge proved that he knew of the specific acts at the time of the shooting, and the acts "could legitimately affect a defendant's apprehensions." State v. Matthews, 221 N.W.2d 563 (Minn. 1974).  Evidence of such acts must also be relevant and more probative and prejudicial.

Justice Lillehaug concludes that the excluded evidence was inadmissible for one of three reasons:  it was irrelevant, Mr. Zumberge was unaware of it at the time of the shooting, or it was inadmissible hearsay.  In large part, the Justice said that Mr. Zumberge simply was unaware of the various specific acts at the time of the shooting.  In addition, Mr. Zumberge, himself, testified about a lot of the events so anything else was cumulative.

Mr. Zumberge also complained that the trial court should have given an instruction on murder in the third degree.  Every lesser degree of murder is an included offense, so the real battle is whether a defendant is entitled to any of those lesser included offense instructions based on the evidence presented at trial:

A lesser-included-offense instruction must be given when (1) the lesser offense is included in the charged offense, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense. State v. Dahlin, 695 N.W.2d 588, 598 (Minn. 2005)

Third degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life ..." and so forth.  This offense only covers acts “committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.” State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980). Third-degree murder “cannot occur where the defendant’s actions were focused on a specific person.” State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006).  

Well, Mr. Zumberge snuck out a basement window, peeked around the corner of his house and took aim at Mr. Stevens.  Justice Lillehaug thought that looked like Mr. Zumberge was "focused on a specific person."

Body Camera Belies Claim that Witness Statement was "Excited Utterance"

State v. Plevell, Minn.Ct.App., 1/3/2017.  The state charged Mr. Plevel by indictment with first degree premeditated murder for the shooting death of his x-girlfriend.  Mr. Plevel moved to dismiss the indictment, arguing, among other things, that the evidence presented to the grand jury was insufficient to support the charge. Specifically, Mr. Plevell focused on an officer's summary to the grand jury of statements of witnesses who did not testify at the grand jury.  He also said that a summary of a statement of the deceased's current boyfriend - who was standing right next to the x when the shooting occurred - was also improperly admitted during the grand jury hearing.

Mr. Plevell said Rule 18.05, subd. 1 requires that an indictment be based on evidence that would be admissible at trial.  He's correct. The officer's summary to the grand jury of witness statements was, he said, again correctly, was hearsay not admissible under any exception to the exclusion of hearsay and not authorized by the rules that govern grand jury proceedings.  The grand jury rules permit receipt of hearsay testimony about documents, etc., but that rule does not cover "documents" that merely summarize what witness said.  So, the officer's summary of those statements would be error unless the statements thus summarized would be admissible at trial.

The state said that the summary of the statements of the witnesses who did not testify to the grand jury would be admissible at trial as prior consistent statements.  The court of appeals essentially responds by saying that, well, that may be, but at this point that's totally speculative. The state simply can't show that it can satisfy the evidentiary requirements under Evidence Rule 801(d)(1)(B):

A statement properly admitted under rule 801(d)(1)(B) operates as substantive evidence. See Minn. R. Evid. 801(d)(1) comm. cmt. But rule 801(d)(1)(B) has been interpreted as requiring the district court to make a threshold determination of whether there has been a challenge to the witness’s credibility before the prior statement will be admitted. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000) (citing State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997)), review denied (Minn. Feb. 24, 2000). The district court must also determine whether the statement would be helpful in evaluating credibility. Id. at 109. “[A] prior consistent statement might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.” Id. Finally, the prior statement and the trial testimony must be consistent. Id.

As to the summary of the current boyfriend's statement, the state said that it was an excited utterance.  However, the body camera footage of the statements belied the claim that the boyfriend was excited - about anything:

The current boyfriend was standing next to the woman when she was shot and some of his statements relate to that startling event, but in all of the body camera videos, the boyfriend does not appear to be under stress caused by the event. Cf. State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (stating hearsay statement was admissible as excited utterance where declarant’s condition, “extremely agitated, upset, and afraid,” indicated she was still under stress caused by the event at the time the statement was made). Because the boyfriend’s statements do not appear to have been made while he was under the stress of the event, the state has not shown that the statements will be admissible at trial under the excited utterance exception. 

Despite these errors the court concludes, nonetheless, that the state did present sufficient evidence to support the indictment.

Trespass "Leave and Don't Return" Subsection Requires Proof of Both

State v. Kremmin, Minn.Ct.App., 1/3/2017.  One of the ten ways to commit trespass is to return "to the property of another within one year after being told to leave the property and not to return, if the actor is without claim of right to the property or consent of one with authority to consent."  Minn.Stat. 609. 605, subd. 2(8).  Mr. Kremmin and his estranged spouse co-owned a horse who lived at S.S.'s place.  Mr. Kremmin went over to S.S.'s place and fetched the horse back to his farm.  S.S., upon discovering the missing horse, went to Mr. Kremmin's farm.  S.S. told Mr. Kremmin never to return to her property.  Mr. Kremmin ignored this missive and later went onto S.S.'s property (but apparently did not disturb the horse.)

The state charged Mr. Kremmin with trespass under this leave and never return definition of the crime.  At the end of the state's case Mr. Kremmin said that he was entitled to a judgment of acquittal because the state had failed to prove that S.S. told him both to leave the property and not to return to the property.  The trial court denied this motion for a judgment of acquittal.

The court of appeals reverses.  The state does have to prove under this leave and don't return definition of trespass that while on the property the offender was told to leave and was told not to return. Because no one disputed that Mr. Kremmin was on S.S.'s property when she told him to leave he could not have been told to depart that property as the statute requires.  

Fourth Post Conviction Petition Claims Untimely Under Statute's Limitations Restrictions

Hooper v. State, Minn.S.Ct., 12/14/2016.  This is Mr. Hooper's fourth post conviction petition.  You can read about the third one here.  This go round he claims to have a recanting witness that entitled him to a new trial.  He has to rely upon one of the statutory exceptions to the two year limitations period; he picks "interests of justice" and "newly discovered evidence".  The district court denied the petition both as untimely under the statute and as barred under the Knaffla rule.

Justice G. Barry Anderson agrees that the petition's claims are untimely under the statute and not within the two exceptions that Mr. Hooper utilized.  The Justice goes on to address one of the Knaffla exceptions - also "interests of justice" - and concludes that Mr. Hooper has not met that exception either because his claim does not have "substantive merit".  This is all window dressing, however, as the court continues to duck the question whether the Knaffla exceptions survived the recodification of the post conviction statute.

Post Conviction Statute Still Precludes Relitigation of Issues Raised on Direct Appeal

Gail v. State, Minn.S.Ct., 12/28/2016.  Mr. Gail is serving a life sentence with possibility of release.  Mr. Gail shot and killed Yvain Braziel during a drug deal.  Mr. Gail has been consistently making the argument - too clever by half at least is the judicial sentiment up and down the system - that the state only proved that he was buying drugs and not selling them as he maintains the statute requires:

The State was required to prove that Gail “cause[d] the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit . . . any felony violation of chapter  152 involving the unlawful sale of a controlled substance.” Minn. Stat. § 609.185(a)(3) (emphasis added).

When Mr. Gail raised this issue yet again in his second post conviction petition the district court summarily denied the petition, relying upon Minn.Stat. 590.04, which states that the court “may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.”  That was more than enough for Justice Stras; the court affirms the summary denial.