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.

Court Upholds Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates

State v. Bakken, Minn.S.Ct., 8/3/2016.  On seven different days between November and June, Mr. Bakken downloaded to his computer's hard drive seven pornographic images of seven different minors.  The state charged Mr. Bakken with seven counts of possession of pornographic work involving minors.  Mr. Bakken pled guilty to all seven counts.  At sentencing he argued that he could only be convicted and sentenced for one count of possession.  He said that this was so for two reasons:  the "unit of prosecution" is possession of the computer on which the images were stored rather than the individual images stored on it; and his offenses were part of a single behavioral incident.  The trial court rejected this view of the statute and the court of appeals affirmed.  Justice Lillehaug agrees with the trial court. 

On this "unit of prosecution" here's what the statute says:

A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony . . . .

Justice Lillehaug interprets this language to criminalize both the possession of a pornographic work itself, and the possession of a computer storing a pornographic work.  The state could thus choose to charge Mr. Bakken with possession of seven distinct pornographic works.  

On the "single behavioral incident" claim, the general test is whether the offenses occurred at substantially the same time and place, and whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Bauer, 792 N.W.2d 825 (Minn. 2011).  Mr. Bakken could only establish one of those factors - place - to the court's satisfaction, perhaps because the parties agreed that the seven offenses occurred in the same place, his mom's bedroom. But, on the other two factors things don't go Mr. Bakken's way. The Justice concludes that the seven offenses were not committed at "substantially the same time;" two of the offenses were completed - downloaded onto the computer hard drive - five days apart, and other offense were separated by over a month.  

Here's what the Justice had to say about whether the seven offenses were motivated by an effort to obtain a single criminal objective:

Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective,

There's no real guidance here, except for a throwaway line that prosecutors need to be somewhat prudent about piling on hundreds of counts, one for each image.  So long as the prosecutor is exercising "some selectivity in enforcement" the sky's the limit.

Court Rejects Post Conviction Claim of Ineffective Assistance of Counsel

Griffin v. State, Minn., Minn.S.Ct., 8/3/2016.  A jury found Mr. Griffin guilty of two first degree murder offenses for the shooting death of one victim.  The trial court sentenced him on the verdict of first degree premeditated murder. Mr. Griffin is serving a life sentence without possibility of release for a conviction of first degree murder.  The Supreme Court affirmed his conviction on direct appeal in 2013.  Mr. Griffin filed a timely petition for post conviction relief, alleging that he received ineffective assistance of trial and appellate counsel.  The post conviction court denied the claim without benefit of an evidentiary hearing.

Mr. Griffin complained on appeal but not before the post conviction court, that his two convictions - premeditated and drive-by first degree murder - violated Minnesota's statutory double jeopardy statute, Minn.Stat. 609.04, and that his trial counsel was ineffective for not objecting to this prosecution on the two counts. Justice Chutich declines to entertain these two claims because Mr. Griffin did not raise them in his post conviction petition.

Mr. Griffin complained that his trial counsel was ineffective for failing to object to the admission of certain out of court statements of a state witness.  This was an issue that Mr. Griffin raised on direct appeal, unsuccessfully, but the post conviction court considered the claim on the merits under one of the two Knaffla exceptions, "interests of justice, because Mr. Griffin's trial counsel was also his appellate counsel.  Justice Chutich declines to answer the question whether this Knaffla exception applies when trial and appellate counsel are the same; instead, the court assumes that it applies and finds the claim lacking on the merits.  The court also continues to duck the question whether the Knaffla exceptions have been done away with by enactment of the 2005 amendments to the post conviction statute.  See Anderson v. State, 830 N.W.2d 1 (Minn. 2013).

Trial Court Has Authority and Discretion to Hear Late Filed Motion to Amend Timely Filed Motion For New Trial

State v. DeLaCruz, Jr., Minn.Ct.App., 8/1/2016.  A jury convicted Mr. DeLaCruz, Jr. of first degree burglary, kidnapping, several sexual misconduct crimes and assault.  Mr. DeLaCruz, Jr. filed a pro se motion for a new trial within the fifteen day window prescribed by the criminal rules.  Thereafter, but after the expiration of these time limits, the trial judge disclosed that he had received a court file that contained what was possibly an exculpatory police report.  Mr. DeLaCruz, Jr, filed an amended motion for new trial, this time through counsel, raising this possible Brady violation.  The initial trial judge recused himself but the next judge refused to entertain the amended motion for a new trial, saying that it was made too late.

Notice of a motion for a new trial must be served within fifteen days after the verdict or finding of guilty.  The criminal rules do not permit the trial court to extend this deadline but say nothing about amended post-trial motions.  The court of appeals concludes that this fifteen day deadline for new trial motions is a "claim-processing" rule and not a "jurisdictional" requirement.  That meant that the trial court had the authority to hear the amended new trial motion. Mr. DeLaCruz Jr. had a satisfactory reason for making the amended new trial motion outside the fifteen day window because he didn't know about the possible Brady violation during that window. The court remands the case back to the trial court to consider that violation.

Single Mitigating Factor Can Support Sentencing Departure

State v. Solberg, Minn.S.Ct., 7/27/2016.  Mr. Solberg entered a Norgaard plea to criminal sexual conduct in the third degree, claiming that his memory was impaired as a result of intoxication at the time of the offense.  The trial court granted a downward durational departure; the court relied on three factors that were offender-based factors - Mr. Solberg's age, family support, and cooperation - and a fourth factor, remorse. The court of appeals reversed this departure.  Judge, now Justice, Hudson, said that although a single aggravating factor may justify an upward departure she could find no case law saying that a single factor is enough to justify a downward durational departure.

Justice Chutich smacks down her colleague and says that a single mitigating factor is, indeed, enough to support a downward durational departure.  In this case, it's Mr. Solberg's remorse. Remorse remains one of those factors that the court doesn't really know what to do with.  It's said, vaguely, that "there may be cases in which the defendant's lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based." Got that? Right. State v. McGee, 347 N.W.2d 802, 804 (Minn. 1989). Without any analysis that could carry forward to other cases, the Justice summarily concludes that Mr. Solberg's remorse did not diminish the seriousness of his conduct so the trial court did err in imposing the downward durational departure.

Post Conviction Claims Knaffla Barred

Fairbanks v. State, Minn.S.Ct., 7/20/2016.  A jury convicted Mr. Fairbanks of first degree murder and nine other felonies associated with the homicide of a deputy sheriff.  The supreme court affirmed his murder conviction and all by one of the other felony convictions in 2014. In this post conviction petition Mr. Fairbanks says that he didn't actually cause the death of the deputy sheriff.  He based this claim by asserting - as he apparently did at trial - that in part the family's decision to refuse further medical treatment caused the death.  That is, Mr. Fairbanks is saying that the family committed euthanasia.

Now, before trial the defense and the state struck a deal whereby the defense wouldn't make the euthanasia claim and the state would neither argue about the definition of euthanasia nor ask the medical examiner whether euthanasia caused the deputy's death.  Mr. Fairbanks signed off on this arrangement on the record.  On direct appeal, Mr. Fairbanks did not raise the causation issue.  Justice G. Barry Anderson concluded that Mr. Fairbanks' causation claim was barred under Knaffla because he could have raised the claim on direct appeal but failed to do.  Mr. Fairbanks did not suggest that either of the Knaffla exceptions applied.

Court Rejects Post Conviction Claims of Ineffective Assistance of Counsel

Swaney v. State, Minn.S.Ct., 7/13/2016.  Mr. Swaney is serving a life sentence without possibility of release.  The supreme court affirmed his direct appeal back in 2010.  In this post conviction go-round, Mr. Swaney made a lot of claims, most of which the post conviction court summarily denied under Knaffla.  The post conviction court did hold an evidentiary hearing on three of Mr. Swaney's ineffective assistance of counsel claims: that his trial counsel had been ineffective by not obtaining the prison phone records of an inmate who claimed that Mr. Swaney made inculpatory statements to him; by not personally interviewing witnesses; and by being inexperienced.  

Justice Dietzen concludes that Mr. Swaney is not entitled to any relief. Mr. Swaney claimed that this inmate had access to information about the crime other than from him, which the jury should have known. Justice Dietzen said, however, that because Mr. Swaney was unable to show what the contents of the inmate phone calls were, it was speculative whether production of those calls would have changed the outcome of the trial. To cover the bases, the Justice went on to say that even if the calls had supported Mr. Swaney's claim, the calls would have been impeachment evidence at most.

Mr. Swaney said it was ineffective for trial counsel to have sent out an investigator to interview witnesses, that counsel should have undertaken that role.  Justice Dietzen rejects this claim as meritless, pointing out that sending out an investigator eliminates the risk that counsel would become a witness and thus unable to continue representation.

Finally, inexperience, by itself is not grounds to support an ineffective assistance claim.  Inexperience can be a factor in judging counsel's performance but that's as far as it goes. Moreover, trial counsel's only apparent "inexperience" was not having previously tried a murder one case.  However, counsel had two co-counsel who had tried murder one cases.

Denial of Request During Trial For Advisory Counsel to Assume Full Representation was Harmless Error

State v. Chavez-Nelson, Minn.S.Ct., 7/6/2016.  Mr. Chavez-Nelson is serving a life sentence without possibility of release for a conviction of first degree premeditated murder.  About a week before trial Mr. Chavez-Nelson discharged his appointed counsel; he said that he disagreed with them about trial strategy.  Mr. Chavez-Nelson also asked the trial court for a continuance so that he could retain private counsel; the trial court denied that request, and declined to appoint new counsel to represent him.  On the first day of trial, the trial court appointed attorneys who had no prior involvement with Mr. Chavez-Nelson's case as advisory counsel.

The very next day, the jury panel having spent the rest of the first day completing a questionnaire, Mr. Chavez-Nelson asked that his advisory counsel assume full representation of his case.  The trial court saw this as a backdoor attempt to obtain substitute counsel and denied the request.  The court did repeat what it had been saying the previous day that it would reappoint Mr. Chavez-Nelson's original appointed counsel.

On the third day of jury selection Mr. Chavez-Nelson said that he would be open to having his original counsel reappointed to represent him.  The court did just that at the end of jury selection the following day and then gave those off-again, on-again attorneys a short continuance to gear back up for trial.  Original counsel represented Mr. Chavez-Nelson for the remainder of trial.

Mr. Chavez-Nelson complained on appeal about the denial of his request for advisory counsel to assume full representation of his case.  He pointed to the rule under which the trial court appointted advisory counsel, Rule 5.04, subd. 2(2)(b), which says that when advisory counsel has been appointed"

“because of concerns about delays in completing the trial, the potential disruption by the defendant, or the complexity or length of the trial,” advisory counsel will assume full representation of the defendant if the defendant “requests advisory counsel to take over representation during the proceeding.”

Under this rule Justice G. Barry Anderson said that Mr. Chavez-Nelson had a right to request that advisory counsel assume full representation and the trial court's denial of that request was an error.  The Justice suggests that this would not have been the case had advisory counsel been appointed under subdivision 2(1) of this rule.  This rule says that the trial court may appoint advisory counsel because of concerns about the fairness of the process but it does not include the language about having advisory counsel take over at a defendant's request.

The court then had to decide whether this error in denying the request that advisory counsel assume full representation entitled Mr. Chavez-Nelson to a new trial.  Justice Anderson concluded that this error was not a structural error, at least where the only time that Mr. Chavez-Nelson was not represented was during jury selection, which was more or less by his choice. Ignoring this rather dubious distinction for now, it suggests that had the request come at a different point in the trial the court may have looked at the error differently.  The court went on to conclude that the error was harmless.

An attempt Conviction Does Not Authorize Conditional Release Term

State v. Noggle, Minn.S.Ct., 7/6/2016.  Mr. Noogle pleaded guilty to attempted third-degree criminal sexual conduct.  The attempt statute is Minn.Stat. 609.17.  The Complaint referenced the CSC statute that Mr. Noggle attempted to commit but that Complaint did not charge him with that offense. In the ensuing eight years Mr. Noggle worked his way up from a stay of adjudication to a stay of imposition to an executed sentence.  When the court executed the sentence it also imposed a ten year conditional release term.  Mr. Noggle challenges this conditional release term.

Justice G. Barry Anderson looks at the conditional release statute, Minn.Stat. 609.3455, subd. 6, and sees that attempted third degree criminal sexual conduct is not one of the enumerated statutes that trigger the conditional release term.  Here's what the statute says:

Subd. 6. Mandatory ten-year conditional release term. Notwithstanding the statutory maximum sentence otherwise applicable to the offense . . . when 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 been released from prison, the commissioner shall place the offender on conditional release for ten years.

Caught by its own obsessive insistence of looking to "the plain language of the statute" the court has no choice but to reverse the lower court's pronouncement of the conditional release term.  

The court resoundingly rebukes the court of appeals for saying that a conviction for an attempt crime is also a violation of the crime attempted.  The court also rejected the notion that an attempt is a "sentence modifier" rather than a crime distinct from the attempted offense.  As long ago as 1980 the court had declared that the crimes of attempt and conspiracy were separate crimes.  State v. Olkon, 299 N.W.2d 89 (Minn. 1980).

Fourteen Day Untimeliness Claim To Have Presented Case to Grand Jury Rejected

State v. Vang, Minn.S.Ct., 7/6/2016.  The state charged Mr. Vang with second degree intentional murder.  Mr. Vang twice offered to plead guilty to that charge, the second time to serve the statutory maximum sentence. The state rejected both offers.  One hundred fifty days later the state presented the case to a grand jury, which indicted Mr. Vang on first degree premeditated murder charges.  Following a bench trial the court found Mr. Vang guilty and sentenced him to life without possibility of release.

Mr. Vang had asked the trial court to dismiss the indictment as untimely under Rule 8.02, subd. 2.  He said that when the court amended the rules of criminal procedure back in 2009 it actually changed the rule notwithstanding the claim of the rules committee that it was only making stylistic and formatting changes.  Here's what the rule said before the 2009 amendments:

If the offense charged in the complaint is 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 presentation of the case to the grand jury shall commence within 14 days from the date of defendant’s appearance in the court under this rule . . . .

And here's what the rule said after the amendments:

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.

Presentation of the case to the grand jury must commence within 14 days from the date of the defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time. If an indictment is returned, the Omnibus Hearing under Rule 11 must be held as provided by Rule 19.04, subd. 5. 

Mr. Vang said that 2009 amendments changed the rule by triggering the fourteen day deadline in not one but now two instances:  (1) notice under the first sentence; or (2) appearance under this rule. Justice Lillehaug rejects this interpretation.   The Justice said that the two sentences must be read together and that all conditions contained within the two sentences must be met in order to trigger the fourteen day deadline.  That is, the complaint must charge a homicide, the prosecutor must have notified the court of its intent to present the case to the grand jury or the offense must be punishable by life imprisonment, and the defendant must have made an appearance under Rule 8.  And besides, the court said in 2009 that it was not making any substantive changes to the rules and so that's that.

Mr. Vang also argued that he received ineffective assistance of counsel because counsel did not insist on scheduling a plea hearing despite the prosecutor's rejection of his plea offers.  The court rejects this claim, agreeing with the state and the trial court that the prosecutor could have thwarted such action by either dismissing the complaint or by filing an amended complaint that charged first degree murder.

Juvenile Traffic Offenders Placed on Probation Are Not "Dependent on a Juvenile Court" For Special Immigrant Juvenile Status

In the Matter of the Welfare of:  A.S., Juvenile, Minn.Ct.App., 7/5/2016.  A.S. was born in Mexico.  To avoid beatings and other "punishments" at the hands of both his parents and grandparents back in Mexico he came to the United States and moved to Minnesota.  At age 17 he was cited for underage drinking and driving, a juvenile traffic offense.  The juvenile court stayed adjudication and placed A.S.on probation for up to twelve months on certain conditions.

A.S. moved for findings that would allow him to apply for "special immigrant juvenile" status.  SIJ status provides a means for abused, neglected and abandoned immigrant youth to obtain lawful permanent residence and a path to citizenship under federal law.  A requirement is a state court finding that the immigrant either has been "declared dependent on a juvenile court" or has been "committed to, or placed under the custody of" a state agency or department or an individual or entity "appointed by a [s]tate or juvenile court.  The juvenile court declined to make such findings, concluding that merely being placed on probation does not meet the requirement that the immigrant be "dependent on a juvenile court." Nor does it mean that the immigrant has been committed to or placed under the custody of a state agency, in this case the probation department.

The court of appeals affirms the juvenile court's decision.  A.S. gets caught in the trap created by the exclusion of "juvenile traffic offenses" from the definition of "delinquent child."  The juvenile court never placed A.S. in foster care or in a similar setting, nor was A.S. placed in a guardianship.  Without any real guidance on identifying which dispositions may result in "dependency on a juvenile court" the court just says this isn't one of those instances.

Ballot Mutilation is a General Intent Crime

State v. Shane, Minn.Ct.App., 7/5/2016.  The state charged Mr. Shane with damaging, defacing or mutilating a ballot, which is apparently a crime.  Minn.Stat. 204C.06, subd. 4(b).  He wanted the trial judge to instruct the jury on the defenses of mistake of law and reliance on an official government statement.  The trial judge concluded that the crime was a general intent crime and that the two defenses were only available to specific intent crimes.

Mr. Shane is or was an elected "township supervisor" for Wanamingo, Minnesota.  Following an election at a township meeting to elect another township supervision the suggestion was made to burn the ballots.  Mr. Shane volunteered to light the match, which apparently is in violation of a law that requires that ballots for such elections needed to be preserved for some amount of time. During another meeting there was conflicting advice given about whether the ballots could be destroyed. When Mr. Shane did destroy them the state charged him with ballot mutilation.

The court of appeals concludes that the defense of mistake of law was not available to Mr. Shane.  However, the reliance instruction should have been given even for a general intent crime.  However, because Mr. Shane actually got conflicting advice about the legality of destroying the ballot no reasonable jury could have concluded that he acted in reliance on advice of an official government source.

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.

No Abuse of Discretion Permitting State to Reopen it's Case To Prove Essential Element In Response to Defense Motion For Judgment of Acquittal

State v. Thomas, Minn.Ct.App., 7/5/2016.  In a run of bad karma Mr. Thomas found himself asleep at 4:00 a.m. behind the wheel of a Ford F250 pickup with the motor running.  He was sleeping off four Crown Royals with beer chasers that he'd consumed earlier. The cops arrested him for a gross misdemeanor DWI offense after he failed several field sobriety tests.

Things began to look up for Mr. Thomas at trial, however.  That's because the state rested its case without proving up the certified copies of Mr. Thomas' prior convictions which the state needed for the gross misdemeanor.  Defense counsel moved for a judgment of acquittal whereupon the state asked to reopen its case.  The trial court took a recess to ponder the defense motion which gave the state time enough to realize that it needed to ask to reopen its case to put in the convictions.  When the judge retook the bench the court denied the motion for a judgment of acquittal "at the same time" as it granted the state's request to reopen:

The district court denied Thomas’s motion for judgment of acquittal at the same time that it granted the state’s motion to reopen. Relying on caselaw and the relevant rule of criminal procedure, the district court determined that it had discretion to allow the state to reopen its case and present the omitted evidence. The district court also found that the missing evidence was not a surprise to the defense, nor was it cumulative; the missing evidence involved a controlling issue; and, the state did not have an improper purpose. Also, the district court noted that, even if Thomas’s motion prevailed, the state could likely amend to a misdemeanor charge.

Easy come, easy go.  

The criminal rules say that the trial court may allow any party to reopen its case to offer additional evidence.  Minn.R.Crim.P. 26.03, subd. 12(g).  The use of "may" gives the trial court discretion so its ruling is subject to an abuse of discretion standard.  Mr. Thomas, however, said that there is no discretion in his situation where he'd first moved for the judgment of acquittal.  Everyone agreed that it is impermissible for the trial court to delay ruling on that motion. State v. Penkaty, 708 N.W.2d 185 (Minn. 2006).  Mr. Thomas pointed to a Connecticut case, State v. Allen, 533 A.2d 559 (Conn. 1987) to support his argument that a court can't permit the state to reopen its case in response to a motion for a judgment of acquittal. The Connecticut court said it would simply be unfair to penalize the defense for bringing the defect in the state's case to the court's attention prior to verdict if the state could just reopen it case.  And, indeed, had Mr. Thomas awaited the verdict and then moved for an acquittal notwithstanding the verdict the state (and the appellate courts) would have screamed "Invited Error!"and sent Mr. Thomas packing.

So, it's an abuse of discretion standard.  State v. Caine, 746 N.W.2d 339 (Minn. 2008) sets out factors for the trial court to consider:

In Caine, the supreme court identified three factors: (1) when the request was made, (2) whether the evidence was material, not cumulative, and concerned a controlling issue; and (3) whether there was an improper purpose for failing to produce the evidence earlier.

 The court rather timidly cautions the state that it asks to reopen its case in these circumstances "at their peril" but their heart isn't really in it.

For Mr. Thomas:  Gotcha.

 

Supreme Court Rejects First Amendment Facial Challenge to Solicitation Statute

State v. Washington-Davis, Minn.S.Ct., 6/29/2016.  Mr. Washington-Davis challenges the statute that criminalizes the promotion of prostitution and the solicitation of individuals to practice prostitution, Minn.Stat. 609.322, subd. 1a(1)-(2) as facially overbroad in violation of the First Amendment.  He also challenged the accomplice liability jury instructions and the sufficiency of the evidence.  The court of appeals had already upheld the convictions, thereby rejecting the constitutional and other claims.  Read about that here.  Chief Justice Gildea also rejects all of these challenges. Here's how the court described the scheme:

The actions forming the basis for Washington-Davis’s convictions occurred between September 2010 and July 2012. During this period, Washington-Davis was involved in a family-operated prostitution scheme that was run out of his uncle’s house in St. Paul. Washington-Davis, his brother, Otis,2 and his uncles were all involved. The men solicited women into prostitution first by pursuing romantic relationships with them. Once each relationship was established, the men would typically tell each woman that she could make a lot of money through prostitution. After luring them into the prostitution scheme, Washington-Davis or one of his family members would take photos of the women and post advertisements depicting the women online, arrange for the women to engage in sex acts for hire at the St. Paul house, drive the women to meet customers on “out-calls” away from the St. Paul house, and keep most, if not all, of the money the women made. Although each woman reported primarily to one family member, the other family members assisted with placing ads and transporting the women to out-calls. This case involves Washington-Davis’s conduct with respect to five women: J.M., B.R., S.A., C.B., and T.B. Four of them (J.M., B.R., S.A., and C.B.) testified at trial.

As he did in the trial court and court of appeals Mr. Washington-Davis said that the statute applies to people who promote or solicit consenting adults to participate in constitutionally protected films or photographs involving sexual contact.  The state countered that the statute does not reach protected First Amendment speech unless there is a showing that such a film or photograph is produced for the purpose of satisfying the actor's sexual impulses.  The Chief concludes that the hiring of adults to perform or pose in a sexually explicit film or photograph is done for the purpose of making a film or photograph and "will not usually violate the statute."  Such hiring - speech - falls under the statute only if the state can show that the purpose in hiring was to sexually gratify the performers. The court leaves to another day just how to make this differentiation.  

More troubling is that the court doesn't really answer the question whether such hiring is or is not protected speech.  That's because after listing the arguments pro and con the court then assumes that the statute does restrict some protected speech and then moves on to the question whether such restrictions are substantially overbroad "in relation to the statute's plainly legitimate sweep."  Not just substantial but "real."  The court can find no evidence in the record that any protected speech is, in fact, being chilled or likely to be chilled as a result of the promotion and solicitation statute. Whether any film producer is in fact being prevented from soliciting performers for pornographic films is purely speculative on this record.  

On the accomplice liability jury instruction the state conceded that the instruction that the trial court gave was wrong under State v. Milton, 821 N.W.2d 789 (Minn.2012).  The problem was, though, the instruction actually given went beyond what Milton requires because it told the jury that the state had to prove that Mr. Washing-Davis, himself, acted with the specific purpose of either soliciting a specific victim to practice prostitution or promoting the prostitution of a specific individual.  The actual burden is to prove that Mr. Washington-Davis knew that a codefendant planned to commit a crime and intended his actions to further it.

Finally, the court had no difficulty concluding that the state's evidence had been sufficient to uphold the convictions.

Despite a Slew of Leading Questions to Establish the Elements of Premeditated Murder Plea was Valid

Nelson v. State, Minn.S.Ct. 6/22/2016.  Mr. Nelson pled guilty to first degree premeditated murder for the stabbing death of Vinessa Lozano; he is serving a life sentence without possibility of release. A court-ordered competency examination revealed that he has Asperger's Disorder:

 The examiner found that Nelson was naïve about the criminal justice system, having “absolutely no experience.” The examiner concluded that “Nelson [would] need quite a bit of assistance from his attorney, perhaps more than the average defendant. His degree of naivety coupled with his characterological avoidance, passivity, and lack of interpersonal skills, will require a more active role on the part of his lawyer.” 

 A second examiner concluded that although Mr. Nelson did not have a mental illness defense he believed that the offense would not have occurred but for Mr. Nelson's Asperger's Disorder.  Mr. Nelson entered a guilty plea to the top count of first degree premeditated murder:

When the district court asked Nelson whether he believed Lozano was going to die from the stab wounds, Nelson stated, “I wasn’t sure,” and noted that “it’s not something that I’ve done before.” Nelson added, “[i]t looked serious but I’m not a doctor.” When asked about whether it was his intention to kill Lozano when he stabbed her, Nelson responded, “I think it was . . . just to get her hurt and then . . . to eat with her but it . . . went too far.” When asked if it was his plan to stab Lozano when he began thinking about bringing the knife to work, he told the court that he had “just lashed out irrationally” and that the incident “just happened.”

Well, no one thought this was enough for a valid plea so the lawyers met up with the judge in chambers to cook up a list of questions for Mr. Nelson and the answers.  After a trip to the woodshed with his lawyer, the following colloquy occurred:

THE COURT: Mr. Nelson, at some time during this event, I understand that [D.O.] came outside, is that correct?

NELSON: Yes.

THE COURT: And what did you do?

NELSON: I saw him and shooed him away.

THE COURT: You chased him away?

NELSON: Yes.

THE COURT: All right, and then did you go back after that to continue what you were doing?

NELSON: Yes.

THE COURT: In other words, to continue stabbing Vinessa, is that right?

NELSON: Yes.

THE COURT: And is it true that at one point she grabbed the knife to try to stop you?

 NELSON: Well, that was before [D.O.] appeared.

THE COURT: Before [D.O.] appeared she grabbed the --

NELSON: Yes.

THE COURT: -- knife to try and --

NELSON: Yes.

THE COURT: All right, and did you pull the knife back away from her and keep stabbing her?

NELSON: Yes.

THE COURT: And by doing that, isn’t it -- you intended to kill her?

NELSON: Yes. 

The trial court then pronounced itself satisfied that it was a valid plea and Justice Lillehaug affirms.  

After a while, Mr. Nelson filed a post conviction petition asking to withdraw his plea.  He said it hadn't been entered knowingly, intelligently and voluntarily.  He complained about the "wood shedding," which his trial attorney denied occurred.  Justice Lillehaug is able to pull enough questions and answers from the record to satisfy himself and the court that Mr. Nelson had been aware of the charges and of his rights so it was easy enough to get past the knowingly and intelligently requirements.  The voluntariness requirement got a bit stickier because that gets to the accuracy of the plea.  

When the court was asking Mr. Nelson the open ended questions Mr. Nelson didn't give answers to support the plea, in particular the intention and premeditation to kill.  That's when counsel and the judge called a huddle and the next set of questions - after the wood shedding - were strickly leading questions.

See any open-ended questions here to establish the factual basis? Yes, but when Mr. Nelson gave the wrong answers everyone reverted to leading questions. The Justice not only glosses over this absence of narrative questions that would have permitted Mr. Nelson "to express in his own words what happened."  State v. Raleigh, 778 N.W.2d 90 (Minn. 2010). The court also seemingly relies upon the inadequate answers to the open ended questions - his own words - to conclude that on the entire record the plea was valid.

Court Declines to Extend Miller v. Alabama to Adults

Munt v. State, Minn.S.Ct., 6/15/2016.  A jury convicted Mr. Munt of four counts of first degree murder and various other crimes, arising out of the shooting death of his ex-wife and the kidnapping of his three children. He pled not guilty by reason of mental illness.  The supreme court upheld his convictions, read here.

Mr. Munt eventually filed this post conviction petition.  The post conviction court concluded that the petition was untimely under the limitations provisions of the post conviction statute.  Minn.Stat. 590.01, subd. 4(a)(2) and that it did not meet any of the statutory exceptions to that two year limitations period.  

Chief Justice Gildea first chastises the post conviction court for wrongly concluding that the petition was untimely.  It was not; the post conviction court failed to include the ninety days window after disposition of his direct appeal.  

Mr. Munt argued that the trial court had given an incorrect instruction on circumstantial evidence.  It's not entirely clear just what instruction Mr. Munt wanted the trial court to have given. Chief Justice Gildea cites to State v. Caldwell, 803 N.W.2d 373 (Minn. 2011), which talks about assuming that the jury believed the state's witnesses and disbelieved any evidence to the contrary.  This may not be what the current law on sufficiency of circumstantial evidence is, but it doesn't matter as the court concludes that Mr. Munt's claim is procedurally barred under Knaffla.

Mr. Munt also argued that his sentence of life without possibility of release is unconstitutional under Miller v. Alabama.  Mr. Munt said that failure to extend Miller to adults denies him equal protection. The Chief states that Miller applies only to juveniles and thus not to Mr. Munt who was thirty-five years old at the time of the crimes.

(More) Post Conviction Claims Are Knaffla Barred

Zornes v. Minnesota, Minn.S.Ct., 6/15/2016.  Mr. Zornes is serving a life sentence without possibility of release for two counts of first degree premeditated murder.  The supreme court upheld the convictions and sentences back in 2013, read about it here.  

Mr. Zornes then launched a post conviction petition.  He alleged seven trial errors denied him a fair trial.  Justice Hudson concluded that all of these errors were known or should have been known at the time of direct appeal and so they are Knaffla barred.  Mr. Zornes also alleged eight claims of ineffective assistance of trial counsel.  Again, however, Justice Hudson points out that all but one of these claims is based on the trial record and thus barred.  The court concluded that Mr. Zornes was not entitled to relief on the one issue that perhaps is not barred.  Finally, Mr. Zornes argued that his appellate counsel was also ineffective.  He based this claim primarily on the assertion that appellate counsel should have raised the prosecutor's use of a Powerpoint presentation during closing argument that either contained information not admitted into evidence and not vetted to both the court and defense counsel prior to its use.  See Brabeck v. Chicago & N.W. Ry. Co., 264 Minn. 160, 167-68, 117 N.W.2d 921, 926-27

(1962). 

Post Conviction Claims are Knaffla Barred.

Davis v. State, Minn.S.Ct., 6/15/2016.  Mr. Davis is serving a life sentence for the felony murder of Armando Calix.  Mr. Davis appealed that conviction and sentence, in which he raised some fifteen claims.  The court denied relief on all of those claims.

He then filed a post conviction petition in which thirteen of the fifteen claims he presented were duplicate claims raised on direct appeal. Under the Knaffla rule those claims are procedurally barred. Neither the post conviction court nor Justice Stras addressed whether the statutory adoption of the Knaffla rule, Minn.Stat. 590.04, subd 3 is either a separate basis for denial of the post conviction petition; or has superseded Knaffla.  Justice Stras affirms the denial of relief on the other two claims - sufficiency of evidence, and an evidentiary ruling - because those claims were or should have been known to Mr. Davis at the time of his direct appeal.  Justice Stras also declined to address either the two Knaffla exceptions, or the limitations exceptions in the statute.

"Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.Ct.App., 6/20/2016.  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 objective of the statute is to criminalize "grooming," the process "whereby sexual predators engage in sexually explicit conversations with a child and expose the child to pornographic material in an attempt to lower the child's inhibitions and acclimate the child toward a sexual encounter."

The court of appeals agrees with the trial court that this statute is facially overbroad in violation of the First Amendment because it prohibits a substantial amount of protected speech.  The court adopts these examples from the trial court as acts that would violate the statute:

A music video producer creates a video with sexually explicit depictions or lyrics, with the intent to arouse the sexual desire of some person who views or listens to the video, places that video on social media, and a child age 15 or younger sees or hears it. A film producer produces a movie with sex scenes, with the intent to arouse the sexual desire of some person who views the film, makes that movie available on an Internet streaming service, and a child age 15 or younger sees it. A writer of young-adult fiction electronically publishes a book describing a sex scene, with the intent to arouse the sexual desire of any one of the book’s readers, and a child age 15 or younger reads it.

Here's the conclusion of the court of appeals:

Minn. Stat. § 609.352, subd. 2a(2), proscribes protected speech and is facially overbroad in violation of the First Amendment. Further, because any attempt to construe the statute constitutionally would require that we rewrite the statute, which would constitute an invasion of the legislative domain and discourage the legislature from drafting a narrowly tailored law, we decline to do so. Finally, the statute is not narrowly drawn to serve the state’s compelling interest in protecting children from sexual abuse and exploitation on the Internet and therefore is an unconstitutional content-based regulation of speech. 

Only One Sentence Can Be Imposed For Two Burglaries Committed as Part of Single Course of Conduct

State v. Mitchell, Minn.Ct.App., 5/31/2016.  Mr. Mitchell entered K.K.'s apartment without her permission.  He physically assaulted her and then fled.  Within the hour police arrested Mr. Mitchell; he had a knife in his vehicle.  The state charged him with first degree burglary (assault) and first degree burglary (dangerous weapon).  It took took attempts but on the second try a jury convicted Mr. Mitchell of both counts.  It took another ten years to get Mr. Mitchell in front of the trial judge for sentencing whereupon the court imposed sentences on both counts of conviction.

Mr. Mitchell argued that the burglary (dangerous weapon) hadn't been proved.  The court said that the state did show that Mr. Mitchell was arrested "shortly after the burglary" with a knife, that the knife belonged to K.K.'s father with whom K.K. lived, that the knife was in the kitchen "just hours" before the burglary and wasn't there afterwards. These circumstances were enough to prove that Mr. Mitchell possessed the knife at some point during the burglary.

Mr. Mitchell's other arguments addressed why he could only be sentenced on one of the two burglary convictions.  First, he argued that first degree burglary (dangerous weapon) is a lesser-included offense of first degree burglary (assault).  The court disagreed, determining that each offense had elements that the other did not have and so "neither crime is necessarily proved when the other is proved."  

Mr. Mitchell's fall back -and successful - argument was that the two burglary counts were part of a single course of conduct and so he could only be sentenced on one of the two.  The state agreed that the two burglary counts were part of a single course of conduct, but countered that there was an exception that permitted sentencing on both counts:

[A] prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered (emphasis added).

The court hauls out the dictionary to define "other" to mean "different from that or those implied or specified."  That leads the court to conclude that "any other crime" is a crime different from burglary.   The court sends the case back to the trial court to vacate the second burglary sentence.

Rule 27.03, Subd. 9 Is Proper Method By Which To Challenge Restitution, Subject to The Restitution Limitations Period

Evans v. State, Minn.S.Ct., 6/8/2016.  Mr. Evans is serving a life sentence without possibility of release.  The trial court also ordered him to pay a bunch of money to the Crime Victims Reparations Board.  Mr. Evans filed a motion under Rule 27.03, subd. 9 to correct his sentence, arguing that the restitution statute did not authorize awards to the CRVB, and even if it did, the amount that had been awarded was wrong.

Justice Dietzen says that Rule 27.03, subd. 9 is a proper vehicle by which to challenge an award of restitution, provided that the challenge does not go beyond the sentence.  Restitution is part of a sentence so Mr. Evans was on firm ground by invoking the rule.  State v. Gaiovnik, 794 N.W.2d 643 (Minn. 2011).  The Justice also says that the trial court has the authority to award restitution to the CRVB.  Finally, because Mr. Evans' challenge to the restitution award came more than thirty days of receiving notification of the request or within thirty days of sentencing, whichever is later, the trial court correctly determined that his challenge was too late.

Evidence Sufficient to Support Conviction of First Degree Premeditated Murder

State v. Barshaw, Minn.S.Ct., 5/25/2016.  A judge found Mr. Barshaw guilty of first degree premeditated murder for the shooting death of Jeffrey Schutz.  Mr. Barshaw was having an affair with Jeffrey's wife, Mandy.  Mandy went to Mr. Barshaw's apartment to pick him up and bring him back to where she lived with Jeffrey; Mr. Barshaw brought along a semi-automatic assault rifle and a semi-automatic pistol.  Back at Mandy's Jeffrey wasn't pleased to see Mr. Barshaw and said that he could not stay there.  So, Mandy and Mr. Barshaw stayed in a motor home that was some fifteen to twenty feet from Jeffrey and Mandy's place.  When Jeffrey realized that Mandy and Mr. Barshaw might be inside the motor home he and his cousin Anthony, pounded on the door to the motor home. Mandy and Jeff talked, shared a cigarette and everyone seemed to have calmed down.

Except for Mr. Barshaw, who began to yell, while also holding the assault rifle.  Mr. Barshaw and Jeffrey continued to yell at each other.  Mr. Barshaw "came barreling out" of the motor home with the rifle; Jeffrey began to back away.  Mr. Barshaw pursued Jeffrey for about a hundred feet.  Mr. Barshaw eventually pointed the rifle at Jeffrey and repeatedly pulled the trigger.  Of the nine shots that Mr. Barshaw got off, six or seven of them struck Jeffrey's body.  At least two of the them were fatal.

At trial Mr. Barshaw said that he was too intoxicated to  have formed the intent to kill, or, that Mandy was the one who shot Jeffrey.  He also said that  shooting Jeffrey was a "snap response" and so there was no premeditation.  The court rejected all of these defenses.  On premeditation the trial court said that Mr. Barshaw:

prepared for the potential use of his firearms by removing them from the trunk . . . and taking them into the motor home. If the rifle was not loaded and ready to fire when he took it into the motor home, it certainly was by the time he burst out of the motor home with the murder weapon in hand. Defendant still had a few minutes to consider what he was doing. He menaced Jeffery Schutz with his weapon and deliberately followed him a distance of some 80 to 100 feet around the motor home to the area of the utility pole before taking aim and firing repeatedly at Jeffery Schutz. 

On appeal Mr. Barshaw said that the state had not proven premeditation. Chief Justice Gildea disagreed and said that they had.  The court applied the two-step analysis for circumstantial evidences cases by first identifying the circumstances proved, and then independently examining the reasonableness of all inferences that might be drawn from the circumstances proved to determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.State v. McAllister, 862 N.W.2d 49 (Minn. 2015).  State v. Anderson, 789 N.W.2d 227 (Minn. 2010).  The Chief said that the court looks at three kinds of evidence relevant to determining premeditation: planning activity, motive, and the nature of the killing.  Since the trial judge did not make any findings about motive the Chief focused on the remaining two categories of evidence and found that the evidence of both planning activity and the nature of the killing were sufficient.

Planning activity can be pretty minimal.  Grabbing the murder weapon just before the killing is sufficient planning.  So is fetching the murder weapon from one one and bringing it into another room. The number of shots fired, the number of wounds inflicted, being a good shot by wounding "vital areas" of the body, and escaping are the kinds of things the court is looking for when it examines the nature of the killing.

To Be Guilty of "Taking" a Car You Have To, Well, Take a Car

State v. Thonesavanh, Minn.Ct.App., 6/6/2016.  J.V. called the local constabulary because a man who turned out to be Mr. Thonesavanh was banging on his door.  By the time the cops arrived Mr. Thonesavanh was sitting behind the wheel of J.V.'s car, which was parked in the driveway. The engine was running and the reverse lights were illuminated.  But the car never moved.  Or at least no one was willing to say that it moved.

The cops eventually persuaded Mr. Thonesavanh to get out of the car. The state charged him with theft of a motor vehicle under Minn.Stat. 609.52, subd 2(a)(17.  One is guilty of this offense if she "takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent.  Mr. Thonesavanh moved to dismiss the charge, saying that he never "took" J.V.'s car.  The trial court agreed, saying that the "takes" in this statute" requires that a defendant exercise "independent, absolute control over the property involved, even if only for a short time" and that a defendant be involved in "movement of the property."  The state appealed.

And lost.  The court of appeals said that the "take" language of the statute was ambiguous and then hauled out the dictionaries.  A lot of dictionaries, including the sixteen pages dedicated to the word "take" in the Compact Oxford English Dictionary.  

Whether this conclusion "takes" remains to be seen.  Mr. Thonesavanh was behind the wheel of car whose engine was running and in gear.  And there's all that money flowing out of the U.S. Justice Department to prosecute car thefts.

Any Criminal Vehicular Operation Conviction Can Be Used to Enhance a DWI to a Felony Regardless of Statutory Language

State v. Boecker, Minn.Ct.App., 5/23/2016.  Back in 1998 Mr. Boecker was convicted under 609.21, subd. 2a(2)(i) of criminal vehicular operation.  In 2015 the state charged Mr. Boecker with first degree DWI based on this 1998 CVO conviction.  Mr. Boecker pointed out, however, that the DWI statute in play, enacted in 2014, listed as an enhancer a 2006 CVO statute, which of course didn't exist in 1998 and so how could his charge be enhanced?  

Somehow the court of appeals concludes that the 2014 DWI statute is ambiguous, which gives them the green light to uphold the enhanced charge and conviction.  Along the way it points to legislative history where the legislature says that it doesn't care what words and numbers it uses in the DWI statute it intends all CVO convictions to be enhancers:

rime. The legislature’s intent has always been that criminal vehicular operation convictions under both the pre- 2007 law and the post-2007 law be used for enhancing driving while impaired penalties consistent with the provisions of the driving while impaired laws.