Probable Cause To Have Obtained a Search Warrant For a Breath Test Justifies Criminalizing Suspect Drunk Driver’s Refusal to Submit to Chemical Test

State v. Bernard, Jr., Minn.Ct.App., 3/17/2014.  The state charged Mr. Bernard, Jr. with test refusal after he refused to take a breath test to find out if he was driving under the influence of alcohol.  The trial court dismissed the charge.  The court said that the state could criminalize Mr. Bernard’s refusal to submit to a “search” – the breath test – only if it could show that under the traditional “totality of the circumstances” test those circumstances justified a warrantless breath test.  The trial court concluded that the state could not make that showing and so dismissed the charge.

The court of appeals assumed that the officer would not not have been justified to conduct a warrantless “search” – the breath test.  In other words, the court assumed that there were no exigent circumstances that would dispense with the requirement of getting a warrant.  However, the court then comes at the problem from the other side.  The court goes on to say that “indisputably” the officer would have got that warrant had the application been present to the magistrate.  That makes the officer’s request of Mr. Bernard to submit to the test not just an “appropriate” request, but a “lawful” one.  See State v. Wiseman, 816 N.W.2d 689 (Minn.Ct.App., 2012). 

The court does offer the non-binding opinion that a warrantless breath test cannot be supported as a search incident to arrest; it must also satisfy the exigency requirement. The court ducked the “unconstitutional conditions” argument.

3/12/2014: No Supreme Court Published Criminal Opinions

Risk Level Status, On Which Term of Conditional Release is Determined, Is Not a Fact Required To Be Found By a Jury

State v. Ge Her, Minn.Ct.App., 3/10/2014.  Review Granted, 3/7/2014.  Mr. Her is required to register under the predatory offender laws for convictions of third degree criminal sexual conduct, conspiracy to commit the same, and doing all that for the benefit of a gang.  Upon his release from prison the release assessment committee determined that he was a risk level III offender.  The state subsequently charged Mr. Her will violating the registration requirements.  A jury convicted him of that offense.  Because of his risk level assignment the court tacked on a ten year conditional release term.

Mr. Her argued that the ten year conditional release term was unauthorized because it violated the rules of Apprendi and Blakely because the judge, not a jury found that he was a risk level III offender.  The court of appeals said, no, that this risk level determination was akin to a prior conviction the existence of which a judge can still determine as an exception to Apprendi and Blakely. 

Evidence Sufficient to Support First Degree Murder, Committing Domestic Abuse, Past Pattern

Gulbertson v. State, Minn.S.Ct., 3/5/2014.  A jury convicted Mr. Gulbertson of first degree murder while committing domestic abuse and with a past pattern of abuse.  In this post conviction, first appeal, he complained that the evidence was insufficient to establish a past pattern of domestic abuse, that the jury instructions on past pattern had been incorrect, and that the court had impermissibly admitted evidence of past orders for protection.  Justice Anderson, for a unanimous court, affirms the denial of the post conviction petition, and thus upholds the conviction and sentence.

On the sufficiency argument, Mr. Gulbertson wanted the court to adopt a zero sum approach to “mutual violence” between he and the victim:  bad conduct by one party cancels bad conduct by the other party.  The court isn’t buying into that, falling back on the absence in the statute for such an exception.  Otherwise, the state sufficiently established the “past pattern”. 

The court viewed the instructions “as a whole” and found them to be adequate.  He had complained that the trial court should have restate the definition of “domestic abuse” in its instruction on what a “past pattern of domestic abuse” was.  The trial court had provided such a definition elsewhere in the instructions.

On the admission of the OFP evidence – including the affidavits – to which he made no objection Mr. Gulbertson complained on appeal that he had not had an adequate opportunity to cross examine the victim and that he had not been represented at the OFP proceedings (indeed, he wasn’t there).  Justice Anderson noted that most of the OFP evidence had been admitted through other sources so the OFP evidence was cumulative at worst and did not affect Mr. Gulbertson’s substantial rights.

Court Declines to Adopt “Automatic-Companion Rule” to Justify Pat Search of Passenger

State v. Lemert, Minn.S.Ct., 3/5/2014.  Mr. Lemert was riding shotgun with his supposed buddy, Mr. Anthony, when the cops stopped Mr. Anthony’s truck, intending to arrest him on a drug offense from a couple of days earlier.  An officer pulled Mr. Lemert out of the truck and performed a pat search, which produced drugs.

Mr. Lemert challenged the search.  The trial court denied the suppression motion, concluding that the officers had a reasonable, articulable suspicion that Mr. Lemert was armed and dangerous.  The court of appeals affirmed the trial court’s ruling.  Read about that here.  The court of appeals said that the search was legal because Mr. Lemert was in a truck that had been stopped on suspicion that its driver had recently engaged in “large-scale drug activity.”  This rationale is a riff on what’s called the “automatic-companion rule,” which permits officers to do a pat search of any person who is in the company of someone whom the officers have arrested.

Writing for a unanimous court, Justice Stras slaps down the court of appeals.  He says it’s still a “totality of the circumstances” world.  For that matter, even the state did not jump on board the “automatic companion” rule.

Here, among other things, the cops knew that Mr. Anthony was not a solo drug dealer, knew that he had used this same truck earlier in the day to complete a drug deal, knew that the two had left Anthony’s apartment together, and that Anthony was a felony-level dealer of narcotics.  Lastly, the court has decided that cops know that there is a “substantial nexus” between drug dealing and violence.  State v. Craig, 826 N.W.2d 789 (Minn. 2013).  The “totality of [those] circumstances made the pat search lawful.

3/3/2014: No Published Court of Appeals Criminal Opinions

2/26/2014: No Published Supreme Court Criminal Opinions

2/24/2014: No Court of Appeals Published Criminal Opinions

Post Conviction Petition Defective Because Legal Assertions Don’t Substitute For Factual Allegations

Matakis v. State, Minn.Ct.App., 2/18/2014.  “I’ll gladly pay you Tuesday for a hamburger today.”  Mr. Matakis filed a post conviction petition claiming that his guilty plea had not been knowingly, intelligently and voluntarily made.   Problem was, at least to the court of appeals, he didn’t really recite any “facts” to back that up.  Here’s all that he said:

That the facts and grounds upon which this petition is based are as follows: Petitioner’s plea was not knowingly, voluntarily, and intelligently made where there is reason to question the accuracy of the factual basis underlying the plea and the circumstances under which he pled guilty suggest that it was not voluntarily entered.

Mr. Matakis promised to supply “a later factual affidavit” but after apparently waiting in vain for almost a month for that affidavit the post conviction court tossed the petition.  The court of appeals affirms, observing that “providing a short statement of alleged facts that could be tested at an evidentiary hearing would have sufficed.”  Those alleged facts don’t even have to be credible:  even “implausible factual allegations” would have kept him in court.

2/19/2014: No Published Supreme Court Criminal Opinions

Criminal Child Support Statute Requires Proof of Failure to Provide Both “Care” & “Support”

State v. Nelson, Minn.S.Ct., 2/12/2014.  You know those Ford commercials - "nuts or bolts" - or, more apropos here - "loud or clear" - well that's what's going on here.  In a cacophony of opinions, Justice Stras  has everyone running for the dictionary.  His definitions carry the day over those of Justices Dietzen and Lillehaug.  The result is to gut Minnesota's criminal child support law.  Like, can't be done.  If defendant baby daddy gave the kid a Snickers - or maybe a lot of Snickers, that's going to be the next battle royale - then he's provided the "care" to  escape criminal liability which requires a failure to provide "care and support".  Justices Page, Anderson and Wright join Justice Stras.

The statute here, Minn.Stat. 609.375, subd. 1 requires proof that the alleged offender knowingly omitted and failed to provide both care and support to either a spouse or child.  In this case, it was a child.  Both the state and Mr. Nelson – but not everyone on the court – agreed that “care and support” meant two different things.  Mr. Nelson was in arrears on his monetary child support somewhere north of eighty grand.  The state had argued, and both the trial court and the court of appeals agreed, that this failure to pay was sufficient, standing alone, to support Mr. Nelson’s conviction, a view that Justice Lillehaug adopts.  That is, despite the “and” in “care and support” the state need only prove either one or the other.  Mr. Nelson said, no, “and” means “and” so the state has to prove the failure to provide both care and support. 

When Justice Dietzen, dissenting, hauled out his dictionaries he grabbed something by Bryan A. Garner called The Redbook:  A Manual on Legal Style, (2d ed. 2006).  Mr. Garner lists over one hundred “common legal doublets.”  (You have to read this list:  “null and void”; “lewd and lascivious” – you get the idea).  Justice Stras, however, calls out Justice Dietzen on this because “care and support” is not on the Redbook’s list.  Oops.  Including the third edition of The Redbook.  Hah!

With that, Justice Stras is off and running.  The former Professor is in his element.  And, he delights in making things a lot more complicated.  Notice, for instance, that the statute itself contains what looks like not one but two “legal doublets” (The Redbook be damned):  “omitted and failed” and “care and support”.  To figure out what that means the Justice calls in “DeMorgan’s Theorem”.  Justice Stras ends up with three “reasonable” interpretations of the statute, none of which “is most persuasive.”  He throws up his hands at that point and, applying the “rule of lenity” – as he sees it, but not Justice Lillehaug - goes with Mr. Nelson’s interpretation:  het state has to prove failure to provide both care and support.

Joint & Several Restitution Does Not Require Apportionment of Injuries Among Defendants

State v. Miller, Minn.Ct.App., 2/10/2014.  Mr. Miller and a Mr. Sandberg did a beat down on a Mr. Montplaisir.  It had something to do with Mr. Montplaisir accusing Mr. Sandberg of “sexual improprieties” towards an unnamed woman whose exact relation to either Mr. Miller or Mr. Sanadberg – or Mr. Montplaisir come to that - isn’t disclosed.  Mr. Montplaisir’s medical treatment left him owing some twelve grand, part of which he owed and the rest was on the insurance carrier.  Both wanted their money.

Mr. Miller pled guilty to disorderly conduct, yes, disorderly conduct.  The court stayed his sentence and ordered him to pay the twelve grand, joint and several with Mr. Sandberg.  Mr. Miller objected to this restitution order for a number of reasons.  One was that the state had to divvy up the blows by the two men and then assign a monetary value to the injuries from those blows.  This, Mr. Miller, explained, was required because restitution law says that the court should order restitution only for losses the defendant “directly caused” by his offense conduct.  Needless to say the court of appeals did not buy into this sophistry.  Mr. Montplaisir’s right to restitution trumps any rights of Mr. Miller and Mr. Sandberg to a blow by blow accounting.

Mr. Miller also complained that the trial court did not adequately consider his ability to pay the money.  The court pronounces that the trial court must account for a defendant’s ability to pay but provides absolutely no concrete guidance on just how the court is to do that.  The message seems to be that so long as the court says the magic words, “I considered the defendant’s ability to pay.” that leaves the court free to pretty much do whatever it wants.  About the only restriction is that there must be something in the record – a presentence investigation report will due – over which the court can recite the mantra, “I considered the defendant’s ability to pay.”

Post Conviction Petition Either Untimely or Without Merit

Erickson v. State, Minn.S.Ct., 2/5/2014.  Mr. Erickson filed this second post conviction petition in 2012, long after the statutory limitations period had expired.  To stay in court, he had to establish an exception to that limitations period.  He went with newly discovered evidence and “interests of justice.”  Neither worked.

Mr. Erickson said that his “newly discovered evidence” was a letter from appellate counsel that said that he had no recollection why  he raised (or didn’t raise) appellate issues back some years ago.  Justice Wright, for a unanimous court, said that this was not “newly discovered evidence.”  For his “interests of justice” argument, Mr. Erickson said that the delay in filing this second petition was due to his limited educational attainment and his pro se status.  Justice Wright pointed out, however, that neither of these impediments prevented him from having filed his first petition, and to have done so in a timely manner. 

Mr. Erickson made a couple of other runs at relief, to no avail, either because of the limitations statute or having been previously presented. 

Whether Trial Court Is Required to Consider Comparative Demographics of Original and Transfer Jurisdiction in Change of Venue Determination Remains Unanswered

State v. Fairbanks, Minn.S.Ct., 2/5/2014.  A jury convicted Mr. Fairbanks of first degree murder of a peace officer, and of various other crimes.  Mr. Fairbanks shot Mahnomen County Sheriff’s Deputy Dewey.  He and his buddy then got into a shoot out with other deputies until eventually the two surrendered.  The deputy did not die for another eighteen months.

Mr. Fairbanks asked the trial court to move the trial out of Mahnomen County.  The state did not object to this request.  The trial court moved the trial to neighboring Polk County.  Mr. Fairbanks, who is Native American, didn’t like this choice because the percentage of Native Americans in Polk County is considerably lower than is the percentage of Native Americans in Mahnomen County.   Now, Mr. Fairbanks didn’t complain about the different demographics in his transfer papers; he only complained about prejudicial publicity.  Justice Lillehaug, writing for a unanimous court, said that the trial court adequately took care of any pretrial publicity in moving the trial out of Mahnomen County and over to Polk County.  That being the case, then the court doesn’t have to answer the question whether racial demographics is a proper factor to add into the mix of factors that the court has previously identified:  safety and convenience of a defendant, traveling distances and facilities for parties and witnesses,  and  the technology and security available at the court house.

Apparently, there is a common law rule that an accused can’t be prosecuted for murder when the victim has died more than a year and a day after the event that caused the death.  The court says that if there ever were such a rule in Minnesota then the adoption of the penal code back in the ‘60’s abrogated it.

Mr. Fairbanks complained about the admission of some of the autopsy photographs and of a “spark of life” photo of the deputy.  The court made short work of these complaints.  Photographs that are accurate, relevant and not prejudicial are admissible, even the gruesome ones.  So long as the “spark of life” photo was not an attempt to invoke undue sympathy – assuming that one can make such a determination – then it’s admissible as well.  And because the trial court had already denied the defense in limine motion to exclude these photographs it was alright for the prosecutor to have shown them in opening statement.

Award of Attorney’s Fees Following State Appeal of Pretrial Order Withstands Statutory Challenge

State v. Williams, Minn.S.Ct., 2/5/2014.  This is not really a criminal case.  It’s about turf, the court’s and the legislature’s.  Oh, and money.

The state appealed the trial court’s ruling suppressing evidence.  The court of appeals reversed the order.  Counsel for Mr. Williams then requested attorney’s fees for thirty some hours of work at $120.00 an hour.  The state said that was okay, except for the last nine plus hours which should be paid at only $50.00 an hour.

The state relied upon a 2012 statute that instructed chief judges to confer with designated stakeholders and then set a reasonable hourly rate for attorney’s fees in appeals by the state.  The chief judge set the rate at fifty bucks an hour.  Mr. Williams’ lawyer did about nine hours of work on the appeal after the judge set that rate.

The state’s first argument was that this statute stripped the court of the ability to review the hourly rates that district courts establish.  Chief Justice Gildea, writing for a unanimous court, was having  none of that.  Because this statute says nothing about appellate review the court is not about to assume that the legislature took that review away in this instance. 

Turning to the merits, here the district court made no record of just how this fifty bucks rate came into existence.  So, absent a record, the court can’t ascertain whether low balling the hourly rate was an abuse of discretion.  As a result, the trial court’s award of attorney’s fees at the $120.00 hourly rate stands.  Whether an appellate court can upset an hourly rate set by the district court – either because it’s an unreasonable rate or because the record doesn’t support it – is left for another day.

2/3/2014" No Published Court of Appeals Criminal Opinions

1/29/2014: No Published Supreme Court Criminal Opinions

1/27/2014: No Published Court of Appeals Criminal Opinions

“First Appellate Review” By Post Conviction Proceedings Is Not “Direct Appeal” Under Post Conviction Limitations Provision

Staunton v. State, Minn.S.Ct., 2/22/2014.  The court’s obsessive, unrelenting assault on the post conviction statute continues.  Although Justice Dietzen writes for a unanimous court, that unanimity is only for the result.  A bare majority concludes that Mr. Staunton’s petition was untimely because it was not filed within two years of “an appellate court’s disposition of petitioner’s direct appeal.”  Minn.Stat. 590.01, subd. 4(a).  To arrive at this result, the majority has to concoct a disingenuous re-interpretation of what a “direct appeal” means in Minnesota.  

Mr. Staunton got convicted, filed an appeal which the court stayed while  he pursued a post conviction petition.  He withdrew that post conviction petition without prejudice and at Mr. Staunton’s request the court dismissed the appeal.  After a while Mr. Staunton filed a second post conviction petition which went away without a decision on the merits.  Still later, Mr. Staunton filed a third post conviction petition which the post conviction court denied after an evidentiary hearing.  On appeal from that denial the court agreed that this appeal was “the first appellate review of his claims” to which the state agreed he was entitled.  The court affirmed Mr. Staunton’s conviction.

The trouble starts when Mr. Staunton filed this fourth post conviction petition.  He said, correctly, that he filed it within two years of the disposition of his appeal of his third post conviction petition.  He went on to say that because the appeal of his third post conviction petition was his “first appellate review of his claims” that the disposition was the equivalent of a disposition of his “direct appeal”.  In other words, it was his direct appeal and so he could file this fourth post conviction petition within two years of the disposition of that appeal.  Which he did.

Minnesota has consistently said that a convicted defendant is entitled to a full appellate review of his claims.  That convicted defendant may do so either by an immediate appeal – the one commenced within ninety days of sentencing - or by post conviction petition – which until 2005 could be filed at just about any time.  This jurisprudence goes all the way back to 1976, in State v. Knaffla, 309 Minn.246, 243 N.W.2d 737 (1976).  There the court said that a first review by post conviction proceeding “is substantially similar in scope to a direct appeal.”  The court said that the only limitation was the additional procedural requirements of the post conviction statute.  (Not only that, but when that “full appellate review” is by post conviction petition, that defendant is entitled to appointment of counsel.  Deegan v. State, 711 N.W.2d 89 (Minn. 2006).) 

This logic is impeccable but it has the capability of upending the court’s determination to shut down post conviction proceedings by use of the limitations provision.  So, Justice Dietzen’s majority says, “Not so fast!”  Mr. Staunton’s “direct appeal” – the one taken within ninety days of the entry of judgment of conviction – was “disposed of” a decade ago when the court dismissed that proceeding at Mr. Staunton’s request (and with no merits review whatsoever).  This fourth petition is thus just way too late.  If that’s not enough, Justice Dietzen points to the language of the post conviction statute which does not contain the phrase “first review by post conviction proceeding.”  Never mind that by the time the legislature enacted the limitations provision to the post conviction statute in 2005 that body had just under thirty years of judicial opinions which consistently treated a “direct appeal” – the one commenced within ninety days – and a first post conviction petition proceeding where no “direct appeal” had been undertaken as the same damn thing:

We also presume the legislature acts with full knowledge of existing statutes and judicial interpretations of those statutes. See Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998) (un-reversed judicial construction is as much a part of statute as if part of original enactment)

Rockford Twp. v. City of Rockford, 608 N.W.2d 903, 908 (Minn. Ct. App. 2000)

In other words, there was absolutely no need for this additional phrase the absence of which the majority laments. 

Justices Page, Anderson and Lillehaug concurred only in the result.  They would have reached the merits of Mr. Staunton’s claims, and would have found them wanting.

Defendant Who Neither Owned Nor Had Key to Gun Cabinet in His Bedroom Nonetheless Exercised Constructive Possession over the Cabinet & Its Contents

State v. Salyers, III, Minn.Ct.App., 1/21/2014.  Sheriff’s deputies got a warrant to search Mr. Salyers’ place for stolen property.  When they went in, however, they found, instead, a gun cabinet in Mr. Salyers’ bedroom.  The cabinet was locked.  The deputies could not find a key to the cabinet.  No matter, one of the deputies got a crow bar and, something the court told us repeatedly, was able to “easily pry open the cabinet.”  There were guns inside, which, alas, Mr. Salyers was not supposed to have.

Now, the gun cabinet belonged to Mr. Salyers’ girlfriend, who had just moved out.  Although Mr. Salyers conceded that he had exclusive control of the bedroom – no one else lived there at the time – he argued that the state had not proved that he had access to – remember? no key – or exclusive control over –it was the x’s cabinet –the contents of the cabinet.  The court was not impressed.

The court said that because Mr. Salyers lived alone in the house, and because the cabinet was in his bedroom to which no one except him had access (which included its contents) he was thus in exclusive constructive possession of the cabinet and its contents.  The court likened the gun cabinet to a vinyl case it was so flimsy.  And that’s the “key” if you will.  The court cites two or three cases from other states for the proposition that just because the estranged wife/girlfriend  had the only key to the gun safe didn’t mean that a defendant wasn’t exercising  constructive possession.  But, those cases don’t really say that.  In one, State v Crie, from New Hampshire, the wife admitted that both she and defendant owned the weapons inside the cabinet and both exercised control over those weapons.  In the Virginia case, Armstrong v. Com., the court never talked about whether Armstrong had possession of the gun, constructive or otherwise; the actual issue was whether the operability of the weapon was (still) an element of the offense.  And in the Nebraska case, State v. Long, the appellate court took a hands off approach to the possession issue, saying that it was a question of fact for the jury and none of its business.

So, had the guns been in a more substantial gun safe, rather than the equivalent of a suit bag from Macy’s the outcome might well have been different.  Or, at least, that’s the argument.

1/15/2014: No Published Supreme Court Criminal Opinions

Pro Se Defendant Waived Right Against Self Incrimination By Her Unsworn Statements to the Jury

State v. Tayari-Garrett, Minn.Ct.App., 1/13/2014.  The trial court held Ms. Tayari-Garrett in constructive contempt; this entitled  her to a trial by jury.  When this trial occurred, Ms. Tayari-Garret acted as her own attorney.  She did not take the witness stand, be sworn and be subject to cross examination.  Instead, she hit upon the idea of telling the jury in her opening and closing arguments and in her questioning of the the state’s witnesses “facts” for which there was no “evidence “ – sworn testimony subject to cross examination.  In turn, the prosecutor told the jury that the statements of the lawyers were not “evidence” and could not be considered.

Ms. Tayari-Garrett complained that these observations amounted to prosecutorial misconduct: commenting on her Fifth Amendment right against self incrimination.  The court of appeals disagrees with this assertion, concluding that a pro se defendant may effectively waive her Fifth Amendment protection by testifying while not under oath to matters not properly in evidence.

Ms. Tayari-Garrett made various and sundry other arguments on appeal, all of which the appellate court rejected.

Reasonable Inferences From Search Warrant Application Established Probable Cause to Search Defendant’s Residence for Gun & Narcotics

State v. Yarbrough, Minn.S.Ct., 1/8/2014.  Mr. Yarbrough allegedly threatened a woman in a public park for stealing “a large amount” of his drugs.  He brandished a handgun to threaten her.  He then left in a maroon Caprice driven by and registered to Mr. Yarbrough’s roommate.  Police located the Caprice parked in the rear of an apartment building where the roommate lived.  Meantime, a snitch told police that Mr. Yarbrough was a drug dealer and carried a handgun.  Police also learned that Mr. Yarbrough had been arrested with this roommate a few months earlier for possession of narcotics with intent to distribute.  Police presented this information in an application for a search warrant to search the apartment, the Caprice and Mr. Yarbrough for the usual laundry list of stuff, including firearms, ammunition and narcotics.  When the officers executed the search warrant they found a large amount of cash, a handgun that matched the description of the gun that Mr. Yarbrough had allegedly “brandished,” ammunition, and drugs.

In the ensuring criminal prosecution Mr. Yarbrough moved to suppress all this evidence, on the theory that the affidavit failed to establish a sufficient nexus between Mr. Yarbrough’s alleged criminal activity and the apartment.  The trial court granted that motion.  The court of appeals reversed, concluding that it was reasonable to infer that Mr. Yarbrough would keep the handgun at the apartment.  Read about that here.  That established probable cause to search the apartment for the gun.  The court of appeals then said that under the “plain view” doctrine, it was okay to have seized the ammunition and narcotics.

Writing  his first criminal opinion for a unanimous court, Justice Lillehaug affirmed the result reached by the court of appeals.  The court thought that the search warrant application established probable cause to search for the gun, the ammunition and the narcotics, and thus did not resort to “plain view” to uphold the seizure of the ammunition and narcotics. 

The court agrees that a sufficient “nexus” must exist between the evidence sought and the place to be searched, but says that this “nexus” may be inferred from the totality of the circumstances.  Generally speaking, the court says that it is reasonable to infer that “gun evidence” would be kept at a defendant’s residence; the same would be true for bullets.  For drug evidence, the court’s general observation, a real head scratcher, is that it would be reasonable to infer that a drug wholesaler keeps drugs at his residence but that it would not be reasonable to draw that inference for the casual user. 

So, for guns, bullets, and dealers, the default inference is that this stuff is at a defendant’s crib.  The court cautions that the officer still needs to dress up these default inferences with enough information to create a “substantial factual basis” to support them.  For guns,  such information must go beyond saying that a defendant was just out and about with a gun since it’s legal in Minnesota to do just that.  The court concludes, in this instance, that the warrant application established a sufficient nexus – and thus probable cause – to support the search for “gun evidence” and narcotics.  Having reached that conclusion the court does not adopt the court of appeals’ “plain view” analysis.

Treating This Rule 27 Motion to Correct Sentence as a Post Conviction Petition, Court Determines That It’s Time Barred

Orozco v. State, Minn.Ct.App., 1/6/2014.  Mr. Orozco shot and killed J.A. back in 2000.  He agreed to plead guilty to second degree unintentional murder with a seventy month upward sentencing departure.  A decade later Mr. Orozco brought a motion to correct his sentence under Rule 27.03, subd. 9 on the theory that the plea agreement was the only basis for the upward durational departure.  Now, there were a number of problems with this theory – both on the merits and procedurally – but both the trial court and the court of appeals took the easy way out by concluding that his Rule 27 motion was really a post conviction petition that was time barred.

Mr. Orozco pled guilty and the district court sentenced him before State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), which said that a departure must be based on substantial and compelling circumstances which a plea agreement is not.  Misquadace is not retroactive.  So, the merits of Mr. Orozco’s claim turned on whether he made an adequate waiver of his right to be sentenced under the Guidelines.  State v. Givens, 544 N.W.2d 774 (Minn. 1996).  Again, however, no one went there.

Instead, the court decides to split hairs over what is and is not controlled by Rule 27, which so far has not been construed to have a limitations period.  It’s hard to discern what the rule is but it seems to turn on the public’s interest in the finality of a sentence and the public’s interest in a correct sentence, with the public’s interest in the finality of a conviction tossed into the mix.  Here, there was a bit of all three.  Mr. Orozco’s claim at least raised the specter of an “incorrect sentence;” but, if Mr. Orozco could weasel out of the sentence then the state had the right to bail out of the conviction.  State v. Lewis, 656 N.W.2d 535 (Minn. 2003).  Finality of a conviction apparently trumps the correctness of the sentence flowing from that conviction.  Vazquez v. State, 822 N.W.2d 313 (Minn.Ct.App. 2012).  So, Mr. Orozco’s Rule 27 motion is really a post conviction petition,and under that statute it is time barred.

1/2/2014: No Published Criminal Supreme Court Opinions