Avoiding the Rule 8 Question, Court Finds That Guilty Pleas Were Knowingly and Intelligently Made

Dikken v. State, Minn.S.Ct., 6/21/2017.  The state filed a criminal complaint that charged Mr. Dikken with two counts of second degree intentional murder.  At his second court appearance under Rule 8, Mr. Dikken did not offer to plead guilty to either or both of these counts. Rule 8 does permit a defendant to plead guilty except:

Subd. 2.Homicide or Offenses Punishable by Life Imprisonment.

If the complaint charges a homicide, and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the defendant cannot enter a plea at the Rule 8 hearing.

In the runup to the omnibus hearing Mr. Dikken tipped his hand by filing a petition to plead guilty to both of the second degree murder counts. This got the prosecutor's attention; the state notified the court that it was taking the case to the grand jury for indictment on first degree murder charges.  The court denied Mr. Dikken's petition to plead guilty.  The grand jury subsequently indicted Mr. Dikken on six counts of first degree murder charges.  He eventually entered pleas to two of those counts and is serving a life sentence without possibility of parole on one of them.

Mr. Dikken filed this post conviction petition in which he asked to be allowed to withdraw his pleas to the murder one counts and, instead, to be allowed to plead to the murder two counts.  Here's how Justice Stras characterized Mr. Dikken's argument:

According to Dikken, the district court committed an error of law when it failed to accept his petition to enter an unconditional guilty plea to the second-degree-murder charges at the plea hearing, which occurred weeks after the Rule 8 hearing and right after the State announced its intention to seek an indictment against Dikken on first-degree-murder charges. This error was so significant, in Dikken’s view, that it impaired his ability several months later to voluntarily and intelligently enter a guilty plea to the first-degree-murder charges

The court punts on the legal question whether the trial court committed a legal error by denying Mr. Dikken's petition to plead guilty.  Instead, Justice Stras deconstructs his claim that his guilty pleas were neither voluntarily nor intelligently made:

Dikken claims that he was left with “no meaningful choice,” which impaired his ability to both voluntarily and intelligently enter a plea, after the district court refused to accept his plea to the second-degree-murder charges and the grand jury indicted him on first-degree-murder charges. Factually, Dikken is incorrect because he still had a host of options available, including, among other things, proceeding to trial; entering into plea negotiations with the State; attempting to plead guilty to a lesser-included offense under Minn. R. Crim. P. 15.07; and requesting a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 4, which would have fully preserved his argument that the court was legally required under Rule 8 to accept his unconditional guilty plea to the second-degree-murder charges. Dikken had meaningful choices, just not the specific choice he preferred.

Affirmative Misadvice About Length of Predatory Offender Registration is Ineffective Assistance of Counsel

State v. Ellis-Strong, Minn.Ct.App., 6/19/2017.  Mr. Ellis-Strong pled guilty to criminal sexual conduct in the first degree.  A conviction for this offense requires that Mr. Ellis-Strong register under the predatory offender statute for life.  At the time of the plea, however, his counsel mis-informed him that the registration period was ten years.  Before sentencing Mr. Ellis-Strong moved to withdraw his plea because, he said, his counsel's misinformation was ineffective assistance of counsel.  

Just a month or so ago the court of appeals said that an attorney's misadvice to a client about a collateral consequence does not, on its own, render a guilty plea unintelligent and manifestly unjust.  State v. Brown.  There was no ineffective assistance of counsel claim made in Brown, however.  So, for Ms. Ellis-Strong:

In sum, even though predatory-offender registration is a collateral consequence of a guilty plea, affirmative misadvice about such consequences may amount to ineffective assistance of counsel if the Strickland factors are met.

The court concludes that Mr. Ellis-Strong meets the "objective standard of reasonableness" requirement of Strickland:

Like the statute at issue in Padilla, the predatory-offender registration statute here is succinct, clear, and explicit. Ellis-Strong pleaded guilty to first-degree CSC under Minn. Stat. § 609.342, subd. 1(a). The statute governing registration of predatory offenders, Minn. Stat. § 243.166, subd. 6(d)(3) (2014), clearly states under the heading “Registration period,” that a person shall comply with the registration requirements for life if the person is required to register based on a conviction under Minn. Stat. § 609.342, subd. 1(a). As Ellis-Strong notes, despite the clarity in the statute, his attorney misadvised him that he was only required to register for ten years. 

Because the trial court did not address Strickland's prejudice requirement the court of appeals sends the case back to the trial court to address that question. 

Where Implied Consent Not Invoked Failure to Advise Motorist of Limited Right to Counsel Does Not Bar Admissibility of Test Result

State v. Hunn, Minn.Ct.App., 6/19/2017.  If an officer does not invoke the implied consent statute by reading it to the motorist, the state may still be able to introduce any test result during that motorist's DWI prosecution.  On the other hand, when an officer does invoke the implied consent statute by reading it to the motorist the officer must inform the motorist that she has a limited right to consult with counsel, that refusal, itself, is a crime, and that refusal will result in revocation of license.  The deputy sheriff who stopped Mr. Hunn did not invoke the implied consent statute and so did not inform him of his limited right to consult with counsel.  

Mr. Hunn persuaded persuaded the trial court to suppress the test results because the deputy did not tell him of his limited right to consult with counsel.  The state appealed and the court of appeals reverses that ruling.  In reaching this result the court relies upon cases that long precede McNeeley and its progeny which, the court proclaims, say that compliance with the implied consent statute is not a prerequisite for admissibility of tests for the presence of alcohol or other substances. Here's how the court of appeals sums up:

Here, as in Nielsen, and unlike the facts presented in Friedman, the deputy did not read respondent the implied-consent advisory or seek chemical testing under the implied consent law. This distinction from the facts of Friedman is significant. As a result, respondent’s decision regarding whether to consent to testing never carried a possibility of immediate license-revocation sanctions or criminal prosecution for test refusal. Instead, respondent only “faces the traditional [criminal] penalties for driving under the influence, and imposition of those penalties only after a jury trial at which he has the right to counsel.” Nielsen, 530 N.W.2d at 215. Accordingly, “[t]he process of chemical testing in this case was merely an investigatory stage which necessarily preceded the decision to prosecute.”

Mr. Hunn also argued that his consent to testing was coerced or otherwise suspect.  Because the trial court did not address this issue the court of appeals sent the case back for consideration of that claim. 

One who Aids and Abets a Sex Crime Is Subject to Conditional Release Term

Browder v. State, Minn.Ct.App., 6/12/2017.  A jury convicted Mr. Browder of aiding and abetting third degree criminal sexual conduct for helping another man rape a barely conscious woman. The trial court imposed a prison sentence and also imposed a ten year conditional release period.  He challenged the conditional release period.  Here's what the conditional release statute, Minn.Stat. 609.3455, subd. 6, says:

[W]hen a court commits an offender to the custody of the commissioner of corrections for a violation of section 609.342, 609.343, 609.344, 609.345, or 609.3453, the court shall provide that, after the offender has completed the sentence imposed, the commissioner shall place the offender on conditional release for ten years.

Mr. Browder said, hold on here, the conditional release statute, does not include aiding and abetting and so a court can't impose that conditional release.  To drive home the point, he cites the predatory offender statute which does include aiding and abetting. So there.  

The court of appeals has to wriggle around its literalist interpretation of statutes to keep Mr. Browder on conditional release.  Here's how the court explains why he's subject to it:

[B]y its clear terms, the conditional-release statute is not limited to offenders imprisoned for violating the listed sex-misconduct statutes, but more generally reaches offenders imprisoned for a violation of any of those statutes.

See the difference there?  Ouch.

Mr. Browder also challenged on separation of powers grounds the authority of the Sentencing Guidelines Commission to assign felony points to a felony turned misdemeanor.  The court rejects this argument, essentially following Mr. Browder's lead of not having developed a cogent explanation for the assertion.  Mr. Browder's pro se endeavors did not elucidate just why the Guidelines Commission could't do this and the court of appeals couldn't figure it out either.  

Defendant Has Burden of Proof on Rule 27.03 Motion to Correct Sentence

Williams v. State,, Minn.Ct.App., 6/12/2017.  Mr. Williams moved under Rule 27.03, subd. 9 to correct sentences that he received in two different courts.  He said that the trial courts had improperly assigned criminal history points to two out of state convictions. Importantly, at least to the court of appeals, Mr. Williams had not raised these objections at the time of either sentencing and he did not bring these sentencing corrections motions until after the time for direct appeal had lapsed.  Both Rule 27.03 courts said that Mr. Williams had the burden of proving that the criminal history score calculation was incorrect.  One of the Rule 27.03 courts also said that his motion to correct sentence also implicated the plea, thus making it the equivalent of a post conviction petition.  That court summarily tossed the sentence correction request as time barred under the post conviction statute but in doing so it did not give Mr. Williams the opportunity to be heard on the limitations questions.

At sentencing, the state has the burden of proving facts "necessary to justify consideration of out-of-state convictions in determining a defendant's criminal history score."  State v. Outlaw, 748 N.W.2d 349 (Minn.Ct.App., 2008), review denied (Minn. July 15, 2008). That's not the case for a Rule 27.03 sentencing correction motion, which is a "collateral proceeding" but not always a post conviction proceeding.  The upshot is that although a sentence that is based upon an incorrect criminal history score is an unauthorized sentence, it's the defendant who has to do the heavy lifting when this is brought to the court's attention in a collateral proceeding.

Mr. Williams does score a modest victory on the opportunity to be heard claim.  The Minnesota Supreme Court recently chided a post conviction court for summarily dismissing a petition on limitations grounds without first giving the parties an opportunity to be heard on it beforehand.  Weitzel v. State, 883 N.W.2d 553 (Minn. 2016.

Durational Departure Must Be Outside "Heartland" of Statute"s Prohibitions To Authorize Durational Departure

State v. Rund, Minn.S.Ct., 6/7/2017.  Mr. Rudd pled guilty to terroristic threats, based on some tweets that he made following what one can gather was an unpleasant traffic stop. He directed these tweets both to the officer who had stopped him and to law enforcement generally.  Mr. Rund admitted making the threatening tweets but said that he did so recklessly without intent to cause terror; he also said he was sorry for any fear that he did cause.The trial court granted him a durational departure by sentencing this felony as a gross misdemeanor.  The trial court granted this departure because in its view it was not in the "best interests of society" to saddle Mr. Rund with a felony. Along the way the trial court also concluded that the treats were more serious than the typical offense because the officers didn't know who they were dealing with.

Oops.  A durational departure must be based upon offense characteristics, most typically that the offense conduct was significantly "less serious" than the "typical" crime in question.  State v. Solberg, 882 N.W.2d 618 (Minn. 2016. Having shot itself in the foot the trial court isn't really able to recover.  Justice Chutich points all this out and sternly rejects the trial court's stated reason for the durational departure. Justice Chutich goes on to suggest, perhaps establish, some sort of "heartland" standard more reminiscent of the federal guidelines by which to gauge whether offense conduct is significantly less or more serious.  She says that because Mr. Rund's conduct "fits squarely within the statute's prohibition against making threats with a reckless disregard of the risk of causing terror, his conduct was not significantly less serious than the typical case."  Taken to its logical conclusion such a test will make durational departures all but impossible. Prosecutors will surely grab onto this language to argue that if the facts fit the elements of the crime then there simply cannot be a basis for a durational departure, if that departure purports to be based upon less serious offense conduct.

Trial Court Properly Took Judicial Notice of Approval of DataMaster Breathalyzer

State v. Norgaard, Minn.Ct.App., 6/5/2017.  An officer stopped Mr. Norgaard for speeding; he refreshingly confessed to the officer that he'd just come from a bar and had consumed too much alcohol to be driving. Mr. Norgaard then agreed to take a breath test and scored an alcohol concentration of 0.13.  

Mr. Norgaard waived a jury on his DWI charge and the court found him guilty.  When the state offered the results of the DataMaster breathalyzer test Mr. Norgaard objected; he said that the state had failed to produce evidence about the reliability of that machine. The court responded by taking judicial notice that the commissioner of public safety had approved the DataMaster breathalyzer, and admitted the results.

There's a statute for that:  Minn.Stat. 169A.03, subd. 11 (2014) permits the admission of any breath test performed by a fully trained individual using an approved breath-testing instrument. That same statute permits the commissioner of public safety to approve such instruments, and the commissioner has approved the DataMaster machine.  The court says that this approval is a "legislative fact" rather than an "adjudicative fact" subject to the prohibition on judicial notice in a criminal case:

Judicial notice of adjudicative facts is not appropriate in criminal cases. See State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985). Adjudicative facts are facts about the parties, their activities, properties, motives, and intent. In re Guardianship of Doyle, 778 N.W.2d 342, 348 (Minn. App. 2010) (citing Minn. R. Evid. 201 1989 comm. cmt.). But courts regularly take notice of legislative facts, such as statutes, case law, and regulations, in criminal cases. Id

A Defendant's Violation of Plea Agreement Allows Trial Court to Impose Any Lawful Sentence

State v. Montez, Minn.Ct.App., 6/5/2017.  Mr. Montez pled guilty to a fifth degree drugs charge.  The written plea agreement contained the usual language about what would happen if he messed up between the plea and sentencing:

I understand that if I do not cooperate with the [presentence investigation (PSI)], fail to return for sentencing w/o lawful excuse, fail to remain law abiding or even being charged with a crime (sic), fail to abstain from non-prescribed drugs and/or alcohol, or fail to follow any other orders of the court, then the above plea agreement is in jeopardy and the court may sentence me without regard to that agreement, as if I entered a “straight plea.”

He messed up, eventually getting charged with another drug offense, before sentencing.  The trial court told Mr. Montez that because of his violations of the above plea agreement provision that he could and was going to sentence him "any way I see fit, under the Minnesota Sentencing Guidelines."  Neither before pronouncing sentence nor thereafter did Mr. Montez move to withdraw his plea.  

Instead, he argued on appeal that he should be allowed to do just that. Mr. Montez put forward several reasons for this, none of which did the court of appeals accept:

Because appellant’s plea agreement included conditions and he did not comply with those conditions, the district court had no obligation to impose the sentence in the plea agreement and did not violate the plea agreement by imposing a different sentence, and appellant is not entitled to withdraw his plea.