No Retroactive Application of "New Rule" Announced in State v. Her

State v. Meger, Minn.S.Ct., 9/20, 2017.  Mr. Meger pleaded guilty to failure to register as a predatory offender in exchange for a downward departure sentence.  Because the sentence did not include a conditional release period, which should have been imposed because Mr. Meger was a risk-level III offender, the trial court eventually amended Mr. Meger's sentence to include a ten year conditional release period.  This was all going on back in 2006-07.  

Roughly nine or so years later the Minnesota Supreme Court said that the fact of being a risk-level III offender had either to be admitted by the defendant or found by a jury beyond a reasonable doubt before a court could impose this ten year conditional release period.  State v. Her, 862 N.W.2d 692 (Minn. 2015).  By this time, Mr. Meger had long since served his sentence and so his conviction was "final" for purposes of retroactivity jurisprudence.  He sought to have Her applied retroactively to his conditional release period.

Mr. Meger only argued that Her was an "old rule" which Teague says applies both to cases on direct review and to cases on collateral attack.  He said that this is so because Her is nothing more than an application of the Blakeley" decision -plead and prove the facts to get a longer sentence than would otherwise be the case -to the specific circumstances of Mr. Her. Justice McKeig says that, no,  that Her is a "new" rule and thus does not apply retroactively to a decision that is "final."  Teague v. Lane, 489 U.S. 288 (1989); Danforth v. State, 761 N.W.2d 483 (Minn. 2009).   After reviewing a bunch of cases she concludes:

Without the benefit of Descamps and Her, and considering our holdings in Allen, Henderson, and McFee, reasonable jurists at the time Meger’s amended sentence became final would not have felt compelled by existing precedent to rule in his favor on the question of whether an offender’s risk level falls within the prior-conviction exception. Accordingly, we conclude that Her is a new rule that is not retroactive to Meger’s amended sentence. See Butler, 494 U.S. at 415; Houston, 702 N.W.2d at 271.

No Retroactivity For Birchfield/Thompson DWI Warrant Requirements

Brooks v. State, Minn.Ct.App., 5/15/2017.  Mr. Brooks has been litigating his three DWI convictions for nearly a decade.  The focus of this litigation has been his claim that the police needed a search warrant in order to collect either blood or urine samples.  Read about some of that here.  This litigation has led him to both Minnesota appellate courts multiple times, and to the U.S. Supreme Court at least once.  Although he has won some skirmishes along the way, his convictions remain on the books.

While all this running around has been going on, SCOTUS decided Missouri v. McNeeley, 133 S.Ct. 1552 (2013) (In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.; and Birchfield v. North Dakota, 136 S.Ct., 2160 (2016) (The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.). The Minnesota Supreme Court then decided State v. Thompson, 886 N.W.2d 224 (Minn). 2016), which begrudgingly accepted Birchfield.  

Mr. Brooks then fired what surely must be his last bullet, this post conviction petition.  He said that Birchfield and Thompson should be applied retroactively to his convictions.  Mr. Brooks said that these decisions did not announce "new rules of law" and thus under Teague v. Lane, 489 U.S. 288 (1989) must be applied retroactively. Well, who knows:

It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. 

The court of appeals takes the risk-free pass and says that the aforementioned cases did, indeed, announce "new rules of law" and thus do not get retroactive application.  After all, the court of appeal shad already said that McNeely did not apply retroactively. O'Connell v. State, 858 N.W.2d 161 (Minn.Ct.App., 2015), review granted (Minn. 3/25/2015) and order granting review vacated, (Minn. 10/20/2015).  Mr. Brooks did not argue that either of the two Teague exceptions applied and so that was that.

Mr. Brooks threw in claims of ineffective trial and appellate counsel, but the court makes short shrift of both those claims.

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

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

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

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

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

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

Concluding, the Justice stated:

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

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

Rule of McNeely is Not Retroactive on Collateral Review of Final Convictions

O’Connell v. State, Minn.Ct.App., 1/12/2015.  The state charged Mr. O’Connell with one count of driving while impaired after his urine tested positive for amphetamines.  After he lost his suppression motion he pled guilty.  After that conviction became final, Mr. O’Connell filed a post conviction petition asking to be allowed to withdraw the guilty plea and be granted a new trial because the trial court’s failure to suppress the urine test, obtained without a warrant or voluntary consent “compelled him to plead guilty.”  The post conviction court denied the petition and the court of appeals upholds that denial.

The court of appeals says that Missouri v. McNeely, 133 S.Ct. 1552 (2013) does not apply retroactively on collateral review of a final conviction.  The court applied the retroactivity analysis from Teague v. Lane, 489 U.S. 288 (1989) and concluded that the rule from McNeely is a new rule; McNeely announced a rule that was not “dictated” by precedent existing at the time the conviction under attack became final.  Such a new rule applies retroactively to final convictions only if the rule is a watershed rule of criminal procedure.

Padilla Not Retroactive

State v. Campos, Minn.S.Ct., 6/20/2012.  In a 5-2 Opinion, Chief Justice Gildea holds that Pidilla will not be applied retroactively in Minnesota.  Justices Page and Paul Anderson dissented.  The majority did remand the case, nonetheless, to determine if Mr. Campos was entitled to withdraw his plea because the trial court did not comply with the requirement in the criminal rules that he be informed that there could be adverse immigration consequences flowing from his plea.  See Minn.R. Crim. P. 15.01, subd. 1(6)(I).

10/24/2012:  Whether Padilla is retroactive is pending before the United States Supreme Court.