Petitioner Not Entitled to Post Conviction Relief Based on Newly Discovered Evidence and Ineffective Assistance of Counsel

Pearson v. State, Minn.S.Ct., 3/22/2017.  In this his second petition for post conviction relief Mr. Pearson said that he had newly discovered evidence that entitled him to a new trial, and that both his trial and appellate counsel had provided ineffective assistance of counsel.  Read about the first, combined direct appeal and post conviction petition here.  The post conviction court summarily denied the petition, and Justice Chutich affirms.

The court made short shrift, applying well recognized law for considering newly considered evidence, in rejecting the new evidence claim.  Mr. Pearson based his trial ineffectiveness claim on the assertion that trial counsel had told him to reject a plea offer for second degree murder - the initial charges were first degree premeditated murder - because the state could not prove premeditation.  Both the trial court and Justice Chutich concluded that this claim was barred under Knaffla because Mr. Pearson knew about it back during the combined direct appeal/post conviction appeal and didn't raise it.  Moreover, he also could not satisfy either of the two Knaffla exceptions.  Once again, the court ducks the question whether these exceptions survive the 2005 amendments to the post conviction statute.

On These Facts, A Twenty-One Month Delay Between Charge and Arrest Did Not Violate Sixth Amendment Speedy Trial Right

State v. Osorio, Minn.S.Ct., 3/22/2017.  Mr. Osorio complained that a twenty-one month delay between the date that the state charged him with a crime and the date of his arrest violated his Sixth Amendment right to a speedy trial.  The trial court agreed and threw the case out. The court of appeals reversed the trial court and now Justice G. Barry Anderson affirms the court of appeals, over the dissents of Justices Hudson and Strass.  With two members of the court - Chutich and McKeig, not participating, it's a 3-2 opinion.

Justice G. Barry Anderson again awards the length of delay factor to Mr. Osorio.  The blame for the delay also goes to the State:

Thus, while Osorio may have had an obligation or responsibility to respond to the summons because it was a valid court order, he did not have a constitutional duty to bring himself to trial.

The State, on the other hand, does have a responsibility to diligently pursue and prosecute the defendant. See Doggett, 505 U.S. at 652-53. In this case, the State was clearly aware of Osorio’s whereabouts and could have easily followed up on his location by contacting law enforcement officials in California. The State’s complete failure to take any steps to execute the warrant against Osorio is the reason for the delay in this case. 

But, the Justice concludes (somehow) that the failure to take steps to get Mr. Osorio back to Minnesota wasn't intentional so it gets only a mild slap on this factor.

On the third factor, assertion of the speedy trial right, the court does reject the notion that there was a presumption that Mr. Osorio received the summons and complaint because the same were not returned. Instead, the court looks to the "totality of the circumstances" to conclude that he got those papers and then sat back to await further developments.  So, this factor goes against Mr. Osorio.

Finally, Mr. Osorio sort of loses the prejudice factor on the facts of the case.

Although the State “has not, and probably could not have, affirmatively proved that the delay left [the defendant’s] ability to defend himself unimpaired,” Doggett, 505 U.S. 658 n.4, Osorio’s acquiescence to the delay reduces the weight that we afford his claim of generalized prejudice. As a result, the prejudice factor does not provide significant support for Osorio’s claim. 

Mr. Osoria had alleged that some recordings had been destroyed but he was unable to show when that destruction occurred.  The record did not establish that they were lost after the State charged Mr. Osorio, so he could not really show prejudice as a result of that destruction.

Justices Hudson and Stras thought that the third and fourth factors weighed in Mr. Osorio's favor and that his Sixth Amendment speedy trial right was, indeed, violate.

Imposing a Conditional Release Period at the Time of Execution of Previously Stayed Sentence is Okay

Thong v. State, Minn.Ct.App., 3/20/2017.  Mr. Thong pled guilty to first degree driving while impaired.  The plea petition that he signed had the standard issue language that a felony driving while impaired offense required a period of conditional release following any executed prison sentence that was imposed.  The trial court stayed execution of a 42 month sentence and placed Mr. Thong on probation.  The sentencing order did not impose the conditional release period.

Fourteen months later Mr. Thong violated his probation so the trial court executed the forty-two month sentence.  The trial court initially did not impose the conditional release term but later the same say the court amended the warrant of commitment to include that term. Mr. Thong filed this post conviction petition saying that he should be allowed to withdraw his guilty plea or have his sentence amended to remove the conditional release term.  The  post conviction court denied both requests.

Minn.Stat. 169A.276, subd. 1(d) requires that a five year conditional release term be imposed "when the court commits a person [convicted of first degree DWI] to the custody of the commissioner of corrections."  It turns out that when a trial court stays execution of a sentence it's not really "committing" that person to the custody of the commissioner of corrections.  That "committing" only occurs when the sheriff  hauls the defendant off to jail to await transportation up to St. Cloud for classification. The appellate court does suggest that the better practice is to pronounce the conditional release period at the time of sentencing

A Felony Deemed To Be A Misdemeanor Cannot Be Expunged

State v. S.A.M., Minn.S.Ct., 3/15/2017.  Twelve years ago S.A.M. pled guilty to a second degree burglary.  He received a stay of imposition of sentence, which became a misdemeanor a mere three years later upon release from probation.  In 2015 S.A.M. applied for an expungement; he stated that  he'd obtained a bachelor's degree, purchased a home, stopped drinking, was raising his eight year old son and stopped hanging out with his co-defendants. 

S.A.M. made his application under the provision of the expungement statute that allows a person to request the same when the person:

was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime.

Everyone screamed bloody murder:  the county attorney, the city attorney (for some reason), the BCA, the police all objected.  Not on the merits of the application.  No, they all said, and the trial court agreed, that S.A.M. had not been convicted of a misdemeanor notwithstanding Minn.Stat. 609.13,  subd. 1(2).

Justice G. Barry Anderson agreed with the trial court and all those state agencies in a 4-3 opinion.  Justices Lillehaug, Chutich and McKeig dissented:

By shutting the door to expungement for people like S.A.M., the court reduces opportunities for rehabilitated offenders to become productive members of society. Read properly, the law does not require this harsh result. I hope that the Legislature will clarify the expungement statute to reopen this door. Clarification would further what the Legislature has declared to be the state’s official policy: “to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship.” Minn. Stat. § 364.01 (2016).

The majority decided that the "was convicted" language referred only to the initial sentence and not the final outcome.  In coming to this conclusion the court continues to ascribe way too much faith in the ability of the legislature - comprised of part timers who haven't seen a pay raise in twentysome years - to draft (and enact) statutes on the same subject consistently.  Case in point is State v. Franklin, 861 N.W.2d 67 (Minn. 2015).  There the court was asked to determine whether a felony conviction that had been reduced to a misdemeanor counts in determining whether an offender “has five or more prior felony convictions” under the career offender statute.  Only because the legislature used the present tense – “has -  did the court say, no, it doesn’t count.  Presumably, had the legislature said “had previously been convicted of five or more felonies” then it would have counted.  It is the height of hypocrisy for a court that is constantly admitting to its own sloppy draftsmanship in past decisions to insist rigidly on legislative exactitude in its drafting practices. 

So, S.A.M. has to live with his misdemeanor being public.

Dismissal of Revocation Proceedings That Were Timely and Properly Initiated Because Hearing Occurred After Expiration of Probation is Erroneous

State v. Sagataw, Minn.Ct.App., 3/6/2017.  Mr. Sagataw was on probation for a term of one year for something, doesn't matter. Within that year the state commenced a revocation action based on new convictions.  Ms. Sagataw made her initial appearance a couple of weeks after the term of probation expired, and the actual hearing on the revocation didn't occur for another couple of months.  At that hearing the district court dismissed the revocation action, concluding that because Ms. Sagataw's probation term had not been extended the court had no jurisdiction.

The court of appeals rejects this conclusion.  On appeal Ms. Sagataw conceded that the trial court had retained jurisdiction; there's a statute for that.  Minn.Stat. 609.14, subd. 1(b).  Instead, she argued that the trial court had discretion to dismiss the proceedings and to discharge her from probation.  While the trial court had such discretion, in this case it exercised it for the wrong reason, the timing of the hearing.

Jailer's Insistence on Use of Specimen Cup For Independent DWI Test Did Not Prevent Independent Testing

Willits v. Commissioner of Public Safety, Minn.Ct.App., 3/6/2017. Not a criminal case but too amusing to pass up.  A state trooper stopped and then arrested Mr. Willits for driving while impaired. At the station he first spoke with an attorney and then agreed to take a breath test.  Mr. Willits also decided that he wanted to take an independent test, so he made some calls to arrange it, including one to his spouse with directions to bring a Tupperware container to the jail.  His spouse showed up at the jail where jail staff escorted her back to the booking area; she had th Tupperware container for the purpose.

But, the jailor also provided Mr. Willits with a "medical-grade sterile specimen cup for Willits to use to collect his urine."  Mr. Willits filled the specimen cup even though his "container of choice" was Tupperware; must be the lids.

Mr. Willits lost his implied consent hearing where he claimed that the jailors had impeded, if not denied him his right to an additional test.  He relied upon an unpublished court of appeals opinion which had reached just that result because the jailor actually did deny some fellow - the court of appeals does not even identify the name of this unpublished opinion - a container of his choice.  The trial court had found that Mr. Willits had access to both containers when he peed into the specimen cup, and Mr. Willits could offer no evidence that there was anything wrong with the specimen cup.

Supreme Court Overturns Court of Appeals Decision That "Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.S.Ct., 3/8/2017.  Just a couple of weeks ago the court was unable to say whether an adult who has sex with a child has engaged in the “sexual abuse of a minor” under the immigration statutes.  This reluctance seemed to be both to protect defense attorneys from malpractice claims, and to prevent the defendant, who is not a citizen, from being able to take back his guilty plea and perhaps avoid deportation.

This week, the court has no difficulty whatsoever in determining that a much more opaque and complex statute did not violate free speech protections of the First Amendment. In doing so, Chief Justice Gildea reverses the court of appeals which had said that the "grooming" statute was facially unconstitutional.

Ms. Muccio sent a close-up of a female's genitals, a close-up of a female's buttocks covered by a thong, and a female naked from the waist to the neck to a fifteen year old.  Ms. Muccio and the fifteen year old also had sexually explicit conversations and exchanged sexually explicit photographs.  The state charged Ms. Muccio with communication with a minor describing sexual conduct in violation of Minn.Stat. 609.352, subd. 2a(2).  She moved to declare this statute unconstitutional and the trial court granted that motion.  The state brought this appeal.

Here's what the statute says:

A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. 

The court does conclude that this statute is overbroad because it does regulate some protected speech.  So, the justices reign in just who and what the statute covers.  First, the adult's "engaging" behavior must be directed at a child:

we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.

Non-targeted mass internet communications do not come within the ambit of the statute.  The statute's intent requirement, "with intent to arouse the sexual desire of any person," means just that:  any person and not just the adult or child who are engaging in the communication.  The court more or less just jumps to the conclusion that mass internet communications won't meet that intent requirement.  Whatever protected speech gets swept up in the statute is not substantial enough to invalidate the statue.

Defense Counsel Need Only Read The Immigration Statute - Never Mind Cases - To Satisfy Duty To Provide Immigration Consequences Advice Under Padilla

Sanchez v. State, Minn.S.Ct., 2/22/2017.  Talk about perfect timing. Justice Stras gets to suit up in his professorial robes, mount the podium and teach the rest of us a little bit about the Kafkaesque work of immigration.  Sorry, no Powerpoint.  Mr. Herrera Sanchez pled guilty to third degree criminal sexual conduct, which led ICE to initiate removal proceedings against him.  To avoid that Mr. Herrera Sanchez moved to withdraw his guilty plea; he said that his attorney provided ineffective assistance by failing to accurately inform him that his plea would lead to his removal.  

So, just what advice did counsel provide to Mr. Herrera Sanchez? Well, first counsel had him execute the standard issue plea petition which has this to say about immigration:

My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship.” (Emphasis added.)

This is bad advice in Mr. Sanchez's case, which ICE agents demonstrated by arresting Mr. Sanchez the moment he left the court room.  Next, during the plea colloquy counsel told Mr. Herrera Sanchez that his plea of guilty "could result in either deportation, exclusion from admission to the United States, or denial of citizenship."   More bad advice, see ICE actions.  At the post conviction hearing, defense counsel testified that he told Mr. Sanchez that he would be deported as a result of his plea.

At sentencing the court gave Mr. Herrera Sanchez a stay of imposition of sentence. As mentioned already, this turned out to be a short-lived perk because ICE took Mr. Herrera Sanchez into custody as soon as the gavel fell. ICE then issued a final administrative removal order, explaining that third degree criminal sexual conduct involving a minor was an "aggravated felony" under the immigration laws. Any alien who is convicted of an aggravated felony at any time after admission is deportable.  8 U.S.C. 1227(a)(2)(A)(iii).

Mr. Herrera Sanchez said that Padilla required his counsel to have advised him that his plea would result in his deportation rather than just that deportation was a possibility.  Padilla, says that when the consequences of a plea are "succinct and straightforward" then counsel has to convey what that consequence is.  Otherwise, counsel need only provide some vague, lawyer esque answer, "Well, this may happen or that may happen, no one really knows."  Therein lies the rub: how does counsel ascertain whether the immigration consequences of a plea are "clear and certain."  

Both immigration administrative interpretations and case law state that Mr. Herrera Sanchez's plea rendered him deportable.  The statutes, not so much.  There are two statutes that render a noncitizen presumptively deportable for the commission of an "aggravated felony" and "sexual abuse of a minor" is included in the list of felonies considered to be "aggravated".  The problem is, however, that Congress left it to immigration and the courts to flesh out just what state crimes constituted "sexual abuse of a minor." Justice Stras makes the somewhat dubious claim that the federal courts have not been able to agree that an adult who rapes a child has committed "sexual abuse of a minor."  He supports this claim by citing Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016), which doesn't say that at all:

Because it requires no mens rea, the Utah statute punishes a broader range of conduct than the conduct that falls within the INA's generic “sexual abuse of a minor” offense, which requires proof of at least a “knowing” mens rea. A conviction under the Utah statute, then, does not fall categorically within the INA's generic “sexual abuse of a minor” offense; Rangel–Perez's Utah conviction does not qualify as an “aggravated felony” under the INA; and he is not disqualified from seeking discretionary cancellation of removal.

Although Justice Stras clearly relishes diving into the weeds to root out the intricacies of federal immigration law he concludes that it's way beyond defense counsel's constitutional requirements of effective assistance of counsel to do the same.   Essentially he says just read the statute; if it's not abundantly clear then any old answer will do. 

Justice Lillehaug concurred in the result.  He said that it was "clear as a bell" that Mr. Sanchez would be deported as a result of his plea; ICE drove home that clarity by arresting Mr. Sanchez the minute he left the courtroom.  Justice Lillehaug essentially chides Justice Stras for the lecture as being unnecessary.  This is because at the post conviction hearing defense counsel testified that he did advise Mr. Sanchez that he would be deported if he pled guilty. The post conviction court accepted that assertion in its findings of fact. End of story, Padilla's duty fulfilled.