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

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.

Where Sole Reason to Revoke Probation is Termination From Drug Court the Drug Court Judge Can't Preside Over the Revocation Hearing

State v. Cleary, Minn.Ct.App., 7/5/2016.  A term of Mr. Cleary's probation of an 81 month prison sentence for second degree drug sales was to enroll and complete the local drug court.  When Mr. Cleary told the drug court team that he'd injured his hand while at work fellow drug court participants told the team that this wasn't true and that he'd hurt his hand during a fight.  Inasmuch as this was his seventh violation of drug court rules the team bounced him from the program.

A probation violation report followed shortly thereafter.  Because the drug court judge was to hear the probation violation Mr. Cleary moved to have that judge disqualified.  He argued that this judge had been privy to confidential drug court team discussions and to the decision to terminate him from the program.  And, only the drug court judge got to read the journals that each participant was required to maintain.  The chief judge denied the motion to disqualify.  The judge then revoked Mr. Cleary's probation.

The court of appeals reverses and returns the case back to the trial court for a do-over before a different judge.  The court points out that among the safeguards to which a probationer is entitled is the right to a revocation hearing before a "neutral and detached" judge. Gagnon v. Scarpelli, 411 U.S. 778 (1973).  A judge also should not preside at a judicial hearing if the judge's impartiality might reasonably be questioned.  Minn.R.Jud.Conduct 2.11(A).  A special courts judge is "deep into the weeds" of each participant's lives, reading private journals, discussing other confidential information - like drug assessments, mental health assessments - with the team, throwing parties for successes.  The very idea that the same drug court judge could ignore all that in fact or in appearance during a revocation hearing is so preposterous it beggars the question why the state fought this:

In the present case “the risk of injustice to the parties in the particular case” and “the risk of undermining the public’s confidence in the judicial process” persuade us that reversal is necessary to correct the error. Liljeberg, 486 U.S. at 864, 108 S. Ct. at 2205. The state took no position before the chief judge of the district court on the motion to remove the drug court judge from the probation revocation hearing. As such, we conclude that the risk of injustice to the state in this case is minimal. On the other hand, were we not to reverse and remand this case, the risk of injustice to appellant would be high because of the appearance of partiality and appellant’s liberty interests at stake. Appellant has a due-process right to a neutral and detached decision-maker. And reversal would also strengthen the public’s confidence in an impartial judicial process for drug court probationers.

Polygraph Results Not Admissible in Probation Revocation Hearings

State v. Nowacki, Minn.Ct.App., 5/23/2016.  Mr. Nowacki was on probation for third degree criminal sexual conduct.  One of the conditions of his probation was to submit to polygraph examinations by either probation or his treatment provider.  A third violation alleged that Mr. Nowacki failed to complete sex offender treatment.  In support of that allegation his treatment provider testified that Mr. Nowacki had failed multiple polygraph examinations.  Mr. Nowacki objected to this testimony but the court overruled the objection.  The court revoked Mr. Nowacki's probation.

On appeal, he complained that the trial court's determination that he had violated probation improperly considered the failed polygraph examinations.  The court of appeals agreed that consideration of the failed polygraph examination was an error, citing long-standing Minnesota law that polygraph results are not admissible in either civil or criminal trials.  Virginia, Texas, Florida, and Kansas have also held that polygraph results are not admissible in probation violation hearings, and the court of appeals adopts that prohibition. The court also determined, however, that this error did not affect the trial court's decision to find that Mr. Nowacki had violated his probation. 

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

State v. Fleming, Minn.Ct.App., 9/8/2015.  The state charged Mr. Fleming with possession of a firearm by an ineligible person, and with assault in the second degree.  Someone cut Mr. Fleming with a knife while the two were, one supposes, playing basketball.  In response, Mr. Fleming 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 of these offenses.

The trial court imposed a 90 month sentence on the firearm possession conviction, stayed for eight years.  This represented a dispositional departure - probation - and a durational departure - 90 months instead of 60.  The court also stayed a 36 month sentence on the assault, concurrent with the other stayed sentence.  The court explained that the dispositional departure was because the victim had been the initial aggressor and Mr. Fleming had an imperfect self-defense claim.  The court explained the durational departure was because of the "unique seriousness" of the offense.  The court went on to say:

Going back to the caselaw and taking into account the general nature of the aggravating factors that may be considered, this court finds the danger to the general public— those innocent children, families, and community members in the area of Folwell Park—cannot be overstated. Bullets kill and maim. Bullets do not know their target, and can kill or maim unintended victims. Mr. Fleming’s actions threatened to harm or kill at least six people. And, as is readily apparent, his actions negatively impacted the lives of hundreds[, and] added to the steady drumbeat of negative reports of crime in North Minneapolis. Nothing good came out of Mr. Fleming’s actions. 

This might have been the end of the story except that subsequently Mr. Fleming violated certain conditions of his probation.  The court revoked the previously stayed 90 months sentence on the firearm possession charge, (after which Mr. Fleming demanded execution of the concurrent 36 month sentence.

Mr. Fleming appealed, reaching  back to the initial sentence and saying that the trial court made a mistake by the upward durational departure from 60 to 90 months.  Mr. Fleming agreed that his conduct created a greater than normal danger to the safety of other people, but said that he created this greater danger by committing the assault.  Case law says, Mr. Fleming said, that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.  State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996).

Well, that was true back in the '90's but the legislature changed the law in 2009 when it amended 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 Court of Appeals says that this is the first judicial opinion applying this 2009 amendment.  The court concludes that the amendment means exactly what it says: it authorizes a departure based on any aggravating factor that arises from the same course of conduct as the felony sentencing offense.  Just to be sure, however, the Court also says that because multiple punishments are permissible for Mr. Fleming's convictions there is no prohibition against basing a departure on conduct underlying another conviction.  State v. Grampre, 766 N.W.2d 347 (Minn.Ct.App. 2009), review denied, (Minn. Aug. 26, 2009).

The court also examined the revocation, itself, and concludes that the trial court properly applied the Austin factors in revoking Mr. Fleming's probation.

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

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

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

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

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

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

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

No Published Court of Appeals Criminal Opinions, But Important Unpublished Opinion on Granting a Defendant Use Immunity During Probation Revocation Hearing Based on Allegation of New Crime

State v. Watts, Minn.Ct.App. (12/31/2012, Unpublished).  Well, that’s a mouth full up there in the title bar.  This is a recurring play for prosecutors and the courts, especially in domestic abuse cases.  A defendant is placed on probation with the condition that he remain law abiding.  He doesn’t.  He goes back to his baby mama’s crib despite the domestic abuse no contact order; everything’s fine for a few hours, days, then the 911 call and the new criminal charge.  The state moves to revoke the probation, based solely on the new charge.  Defendant moves to postpone the hearing pending resolution of the new charge, arguing, in part, that he can’t testify at the revocation hearing without waiving his Fifth Amendment rights.

Here, Mr. Watts violated probation in between sentencing and reporting to the workhouse.  Mr. Watts objected to the revocation hearing and requested a continuance; he did not request use immunity.  The state objected to the continuance and the court denied the defense motion, revoked Mr. Watts’ probation and sent him to prison.  On appeal, Mr. Watts made a due process argument, not a Fifth Amendment argument, that the district court abused its discretion by not offering him limited use immunity.  The criminal rule, 27.04, subd. 2(4)(c), only says that the court may postpone the revocation hearing when the violation report alleges a new crime, so the grant or denial of a postponement request is a discretionary ruling unlikely ever to be reversed on appeal.  The appellate courts have never held that the district court must unilaterally offer use immunity to a defendant so that he may testify at the revocation hearing.  See State v. Hamilton, 646 N.W.2d 915 (Minn.Ct.App., 2002), abrogated in part on other grounds, State v. Modtland, 695 N.W.2d 602 (Minn. 2005). 

Left undecided here is what should happened when a defendant does request use immunity.  Judge Cleary, concurring, says that if the district court chooses to go ahead with the revocation hearing, “best practice” should be to confer use immunity whether a defendant requests it or not.  Without that grant, Judge Cleary believes that the hearing should be postponed, although he acknowledges that the current rule does not require that.  Judge Cleary suggests that it’s time to change to rule to require that postponement, again when the revocation allegation is solely the commission of a new crime.

Court Requires Reasonable Suspicion to Authorize Search of Parolee’s Residence

State v. Heaton, Minn.Ct.App., 5/7/2010, petition for further review pending.  Following a prison stint for unlawful possession of a firearm by an ineligible person, Corrections placed Mr. Heaton on intensive supervised release.  One of his parole conditions stated:

The offender will submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.

After a while, his parole officer promoted him to regular supervision.  As luck would have it, shortly thereafter Mr. Heaton was a passenger in a vehicle that a Carlton County deputy stopped.  The deputy arrested the driver on some warrant.  For some reason – apparently not challenged - the deputy searched Mr. Heaton and found $3,000.00 in cash.  Mr. Heaton said he’d sold his car but he couldn’t say to whom and he didn’t have a receipt.  Nothing else happened on the side of the road.  Later, however,  the deputy called up Mr. Heaton’s parole officer to tell him about the stop, and Mr. Heaton did the same.  The parole officer thought it a bit suspicious that Mr. Heaton had this wad of cash on a short order cook’s salary and no receipt so he went over to Mr. Heaton’s apartment.  Mr. Heaton eventually showed up; the parole officer asked Mr. Heaton, who had immediately been cuffed when he got there, for consent to search the apartment; Mr. Heaton made no response.  The officers tossed the place and found a gun and narcotics.

Mr. Heaton moved to suppress the gun and narcotics, arguing he did not consent to the search and that the parole office lacked reasonable suspicion to conduct the search.  Apparently, no one spent too much time discerning whether Mr. Heaton had or had not given consent as the courts sent straight to the search issue.

Minnesota has previously said that a probationer has a diminished expectation of privacy so that a probationer’s home may be searched without a warrant so long as a valid condition of probation exists and authorities have reasonable suspicion of criminal conduct.  State v. Anderson, 733 N.W.2d 128 (Minn. 2007); relying somewhat dubiously on United States v. Knights, 534 U.S. 112 (2001).  [“We do not decide whether the probation condition so diminished, or completely eliminated, Knights' reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.”]But, this holding has not been extended to parolees. 

Parolees in Minnesota are subject to a search condition specified by statute, Minn.Stat. 244.14, subd. 4, which says that a parolee:

shall submit at any time to an unannounced search of the offender’s person, vehicle, or premises.

Getting to work, the court balances Mr. Heaton’s reasonable expectation of privacy with the state’s interest in making sure that parolees abide by their release terms and in protecting the public.  It finds that Mr. Heaton’s interests were diminished the same as a probationer’s and so all that the officers needed was a reasonable suspicion.

Turning to that question, the court of appeals affirms the trial court’s determination that there was such reasonable suspicion.  The trial court had identified four facts to support its determination that the officers had a reasonable suspicion:  (1) Mr. Heaton’s status had recently been up graded from intensive supervision to regular supervision; (2) Mr. Heaton’s “thin” explanation for possession of a large amount of cash (3) in light of his cook’s salary, and (4) he’d been stopped with someone who had an active warrant.  The court of appeals concedes that Mr. Heaton’s criminal record and status as a parolee would not support a reasonable suspicion; but, when considered along with everything else it was okay at least to mention this.  The court rejects supporting a reasonable suspicion on Mr. Heaton’s presence with someone with a warrant; but, again, with everything else there was still a valid basis for a reasonable suspicion.

Judge Ross concurred in the result, but he wrote that the police have the right to search a parolee’s residence without any suspicion at all.  He relies on Samson v. California, 547 U.S. 843 (2006).  The majority distinguished Samson because the California parole statute stated that parolees had to agree to be searched with or without cause.  Well, here’s a (long) snippet from the syllabus of Samson:

Parolees, who are on the “continuum” of state-imposed punishments, have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is. “The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484.  California's system is consistent with these observations. An inmate electing to complete his sentence out of physical custody remains in the Department of Corrections' legal custody for the remainder of his term and must comply with the terms and conditions of his parole. The extent and reach of those conditions demonstrate that parolees have severely diminished privacy expectations by virtue of their status alone. Additionally, as in Knights, the state law's parole search condition was clearly expressed to petitioner, who signed an order submitting to the condition and thus was unambiguously aware of it. Examining the totality of the circumstances, petitioner did not have an expectation of privacy that society would recognize as legitimate. The State's interests, by contrast, are substantial. A State has an “ ‘overwhelming interest’ ” in supervising parolees because they “are more likely to commit future criminal offenses.” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344. Similarly, a State's interests in reducing recidivism, thereby promoting reintegration and positive citizenship among probationers and parolees, warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. The Amendment does not render States powerless to address these concerns effectively. California's 60– to 70–percent recidivism rate demonstrates that most parolees are ill prepared to handle the pressures of reintegration and require intense supervision. The State Legislature has concluded that, given the State's number of parolees and its high recidivism rate, an individualized suspicion requirement would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. Contrary to petitioner's argument, the fact that some States and the Federal Government require a level of individualized suspicion before searching a parolee is of little relevance in determining whether California's system is drawn to meet the State's needs and is reasonable, taking into account a parolee's substantially diminished expectation of privacy.

Justices Stevens, Souter and Breyer dissented; Justice Stevens said that the court had created “a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee or probationer.”  So there.

A petition for review is pending.