August 2021

SECOND AMENDMENT

PERMIT TO CARRY STATUTE DOES NOT VIOLATE SECOND AMENDMENT

Appellant challenges his conviction for carrying a pistol in a public place without a permit, arguing that the statutory permit requirement violates the Second Amendment. Applying strict scrutiny, the Supreme Court finds that the carry permit statute serves the government’s compelling interest in protecting the general public from gun violence. The statute is also narrowly tailored to serve that interest, because it is not difficult under the statute to obtain a permit to carry. A sheriff must issue a permit upon receiving an application, unless a narrow exception applies, and the statute provides for circumstances under which a permit is not required to carry or possess a pistol. Appellant’s conviction is affirmed. State v. Hatch, A20-0176, 962 N.W.2d 661 (Minn. Aug. 4, 2021).

PROPERTY DAMAGE

“COST OF REPAIR OR REPLACEMENT” INCLUDES REASONABLE ESTIMATES

Appellant attempted to break into the front door of a home from which she had previously been evicted, causing damage to the door, frame, and lock. The homeowner received a repair estimate of nearly $1,600. Appellant was convicted by a jury of first-degree criminal damage to property, and the Court of Appeals affirmed.

Appellant challenges the sufficiency of the evidence supporting her conviction, specifically whether the estimated costs of repairs the homeowner received were adequate. Minn. Stat. § 609.595, subd. 1(4), criminalizes intentionally damaging another’s physical property without consent if “the damage reduces the value of the property by more than $1,000 measured by the cost of repair and replacement.” “Value” and “cost” are not defined in the statute. Looking to the dictionary definitions, the Supreme Court notes that both incorporate the “price” of goods and services, which the court finds “consistent with an objective measurement based on the fair market value of an item or service, which need not be solely limited to the price actually paid for an item or… services…” Therefore, the court holds that “evidence of estimates may be used to establish the ‘cost of repair and replacement’.”

The State here presented sufficient evidence to support Appellant’s conviction and her conviction is affirmed. State v. Powers, A19-1856, 962 N.W.2d 853 (Minn. Aug. 4, 2021).

ACCOMPLICE AFTER THE FACT

AN ACCOMPLICE AFTER THE FACT TO A CRIME WITH A MAXIMUM SENTENCE OF LIFE IMPRISONMENT MAY BE SENTENCED TO A MAXIMUM OF 20 YEARS

Appellant pleaded guilty to aiding a person whom she knew committed murder, specifically first-degree murder, as an accomplice after the fact. The district court imposed a sentence of 48 months, but Appellant argues the sentence is unlawful. An accomplice after the fact to certain crimes, including first-degree murder, may be sentenced to no more than one-half of the maximum sentence for the crime they aided. Minn. Stat. § 609.495, subd. 3. However, for first-degree murder, which carries a maximum sentence of life imprisonment, there is no ascertainable “half.”

The Court of Appeals finds that the legislature addressed this issue in the context of sentences for attempting crimes punishable by life imprisonment. Minn. Stat. § 609.17, subd. 4(1), states that whoever attempts to commit a crime for which the maximum sentence is life imprisonment, that person may be sentenced to not more than 20 years. The court finds that this section supports an inference that a maximum sentence of 20 years also applies in the context of an accomplice after the fact. Appellant’s sentence is affirmed. State v. Miller, A21-0221, 2021 WL 3611467 (Minn. Ct. App. Aug. 16, 2021).

POSTCONVICTION

TWO-YEAR TIME LIMIT RUNS FROM DATE NEW RETROACTIVE RULE OF LAW IS ANNOUNCED

Between February 2014 and December 2015, four drivers were convicted of felony DWI test refusal after they refused warrantless blood or urine tests. In 2016, the U.S. Supreme Court decided Birchfield v. North Dakota, and the Minnesota Supreme Court decided State v. Thompson and State v. Trahan, creating the new “Birchfield rule”: warrantless blood and urine test refusal convictions under Minnesota’s test refusal statute are unconstitutional. In 2018, the Minnesota Supreme Court determined that the Birchfield rule was a new rule that applied retroactively. All four drivers filed postconviction petitions in 2019, arguing the Birchfield rule rendered their convictions unconstitutional and that, because the Birchfield rule was announced as a new rule that applies retroactively in 2018, their petitions were timely because they were filed within two years of that 2018 decision. The district courts in all four cases dismissed the petitions as untimely, but the Court of Appeals reversed.

The Supreme Court holds that a postconviction petition asserting a claim for relief based on a new, retroactive interpretation of law, under Minn. Stat. § 590.01, subd. 4(c), must be filed within two years from the date the appellate court announces an interpretation of law that forms the basis for a claim that the interpretation is a new rule of law that applies retroactively to the petitioner’s conviction. Section 590.01, subd. 4(c), provides that a postconviction petition filed under the retroactive new interpretation of law provision must be filed within two years from “the date the claim arises.” Prior case law has determined that this time limit begins to run when a petitioner “knew or should have known” that the claim arose – that is, the petitioner knew or should have known of the information that would allow him to assert such a claim.

Here, the drivers all claim the Birchfield, Thompson, and Trahan decisions announced a new retroactive rule of law. Those decisions were made in 2016, and all the drivers’ postconviction petitions were file more than two years later. The court did not announce that the Birchfield rule applied retroactively until 2018, but the decisions themselves that gave rise to the drivers’ claims under section 590.01, subd. 4(c), were issued in 2016. The Court of Appeals is reversed. Aili v. State, A20-0205, 2021 WL 3641771 (Minn. Aug. 18, 2021).

FOURTEENTH AMENDMENT

JUROR GLARING AT PROSECUTOR WAS A RACE-NEUTRAL REASON FOR A PEREMPTORY STRIKE AND NOT A PRETEXT FOR DISCRIMINATION

Appellant was charged with criminal sexual conduct. During jury selection, the State peremptorily struck a the only non-white prospective juror in the jury pool, R.L. Appellant raised a Batson challenge, but the State claimed R.L. struck because R.L. had been “flagged” by law enforcement, R.L. was 20 years old, and R.L. “glared” at the prosecutor. The district court overruled Appellant’s Batson challenge. After the jury ultimately found Appellant guilty, he appealed his convictions and sentences, arguing the district court erred in overruling his Batson challenge. The Court of Appeals agreed.

Under the Equal Protection Clause and Batson, a peremptory strike cannot be used to remove a prospective juror because of race. A three-step process is followed to determine if the use of a peremptory strike violates this rule, which is codified in Minn. R. Crim. P. 26.02, subd. 7(3)(a)-(c): (1) the objecting party must make a prima facie showing of racial discrimination; (2) the striking party must articulate a race-neutral explanation for the strike; and (3) the court determines if the objecting party has shown a racially discriminatory motivation by the striking party and if the striking party’s proffered explanation was merely a pretext for discrimination. Step one was satisfied here. As for step two, age and demeanor can be valid, race-neutral explanations. However, the Supreme Court agrees with Appellant that the State’s reliance on the law enforcement “flag” is not sufficient, because the State did not offer any explanation as to why R.L. was flagged.

However, the court finds that the juror’s demeanor toward the prosecutor was a sufficient race-neutral reason for striking the juror and that it was not merely a pretext for discrimination. Appellant did not argue before the district court that R.L. was not glaring at the prosecutor, so the record is void of any evidence that the strike was racially motivated. Thus, the district court did not err in its ultimate denial of Appellant’s Batson challenge. State v. Lufkins, A19-1809, 2021 WL 3641446 (Minn. Aug. 18, 2021).

FIFTH AMENDMENT

INCRIMINATING STATEMENTS MADE DURING COURT-ORDERED SEX OFFENDER TREATMENT ARE ADMISSIBLE IF THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT INVOKED

Appellant was on probation and required to participate in sex offender treatment. Part of that treatment included a mandatory polygraph examination, during which Appellant confessed to a polygraph examiner that he had abused his former girlfriend’s young daughter. He made similar statements during the treatment process to a probation officer. He was charged with criminal sexual conduct and sought to suppress the statements made to the probation officer and polygraph examiner. The district court suppressed the statements, finding them coerced. The Court of Appeals reversed, because Appellant never asserted his Fifth Amendment privilege.

The protection of the Fifth Amendment generally must be asserted by a witness being asked incriminating questions. However, the “penalty exception” prohibits the government from depriving a person of his free choice to admit or deny incriminating information, or to refuse to answer potentially incriminating questions. As this exception applies to Appellant, the question is whether his probation requirements “merely required him to appear and give testimony about matters relevant to his probationary status or…went further and required him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.”

The Supreme Court first concludes that Appellant’s probation conditions did not allow him to refuse to provide the incriminating statements to the probation officer and polygraph examiner. The conditions required full participation in the treatment program, which itself required full and complete disclosure of sexual behavior. However, the “penalty exception” does not apply, because revocation of Appellant’s probation would not have been automatic had he refused or failed to complete the polygraph and treatment. Under Minn. Stat. § 609.14, and prior case law, revocation was only a possibility, following a discretionary process. The court also finds that Minn. Stat. § 634.03 does not require suppression of the statements. This section states: “[A] confession [cannot] be given in evidence against the defendant…when made under the influence of fear produced by threats.” The court clarifies that section 634.03 was meant to codify the common law rule that courts “should exclude confessions made under circumstances where the inducement to speak was such that it is doubtful that the confession was true.” Section 634.03 does not apply to the circumstances of this case. The Court of Appeals is affirmed. State v. McCoy, A20-0485, 2021 WL 3745551 (Minn. Aug. 25, 2021).

PROCEDURE

JUDGE’S AFFIRMATIVE ACTS IN INVESTIGATING, SHARING, AND RELYING ON EXTRINSIC FACTS DISQUALIFIED THE JUDGE

Appellant was charged with domestic assault. At sentencing following his plea to an amended charge of disorderly conduct, the district court ordered that Appellant comply with a DANCO during probation. The probationary DANCO was signed by the judge after the hearing and not served personally on Appellant in court. During his probation, Appellant was charged with violating the DANCO. Appellant moved to dismiss the DANCO violation charge, claiming he never received a written copy of the order. The district court stated that the court’s clerks always e-file DANCOs and mail copies to defendants, insisted that court administration did in fact mail a copy of the DANCO to Appellant, and suggested that a clerk could testify to these facts. After the court denied Appellant’s motion to dismiss, the State noted it may amend its witness list to include a court clerk. Appellant moved to remove the judge for bias, based on the judge’s claimed knowledge of a disputed fact and had contacted a potential witness from court administration. Exhibits filed by Appellant thereafter showed internal messages between the judge and a court clerk discussing service procedures for the DANCO, as well as messages between a court clerk and court operations associate concerning the same, and messages between court clerks about procedures and potentially testifying about them. The assistant chief judge of court denied Appellant’s motion to disqualify after a hearing. After a jury trial, Appellant was found guilty of violating the DANCO and he appealed. The Court of Appeals affirmed, finding insufficient grounds to disqualify the district court judge.

The Supreme Court finds that the district court judge was disqualified in this case, pointing to several of the judge’s actions that would lead “a reasonable examiner [to] question the judge’s impartiality”: investigating the service procedures used by court administration, communicating the conclusions drawn from that investigation, relying on these conclusions in denying Appellant’s motion to dismiss, and suggesting the State call a clerk to testify. While a judge is presumed to be able to set aside outside knowledge and decide issues solely on the merits, here the judge actively investigated, announced to the parties, and relied on facts related to an essential element of the charge against Appellant.

The court rejects an implication from the Court of Appeals’ decision that a jury trial cures the error of a judge presiding over a case from which the judge is disqualified, because the criminal procedural rules and rules of judicial conduct are clear that a disqualified judge must not preside over any proceeding in which their impartiality can reasonably be questioned.

When judicial impartiality is questioned, in deciding whether reversal is necessary, the court considers “the risk of injustice to the parties…, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial system…” The court notes, however, that in certain cases, reversal may be necessary on the sole basis of impartiality arising from an affirmative act by the judge that risks undermining the public’s confidence in the judicial process in a significant way. In this case, the district court judge’s affirmative actions created such a significant risk. The case is remanded to the district court for reconsideration of Appellant’s motion to dismiss before a new judge and, if the motion is denied, for a new trial. State v. Malone, A19-1559, 2021 WL 3745547 (Minn. Aug. 25, 2021).

SENTENCING

A “STATEMENT BY THE LEGISLATURE” SHOWING INTENT TO ABROGATE THE AMELIORATION DOCTRINE MUST BE AN EXPRESS DECLARATION IN AN ENACTED STATUTE

Appellant was sentenced for criminal sexual conduct offenses in February 2019. He was assigned a custody status point in his criminal history score for committing the acts while on probation for a 2015 felony conviction. In January 2019, the Guideline Commission submitted proposed modifications to the sentencing guidelines, including the elimination of guideline 2.B.2.a(4), under which Appellant was assigned the custody status point. The proposal also declared that the modifications would only apply to crimes committed on or after August 1, 2019, and recommended that the Legislature amend Minn. Stat. § 244.09, subd. 11, “to clarify that August 1 Guidelines changes will apply to crimes committed on or after that date.” The modifications became automatically effective on August 1, 2019, per statute, due to the Legislature’s failure to act in response to the proposal. Appellant argued on appeal that the amelioration doctrine should be applied to reduce his criminal history score, based on the 2019 elimination of 2.B.2.a(4). The Court of Appeals agreed and remanded for resentencing under the modified guidelines.

“The amelioration doctrine applies an amendment mitigating punishment to acts committed prior to that amendment’s effective date, if there has not been a final judgment reached in that case.” An amended criminal statute applies to crimes before its effective date if: (1) there is no statement from the Legislature clearly establishing an intent to abrogate the amelioration doctrine, (2) the amendment mitigates punishment, and (3) final judgment has not been entered when the amendment takes effect. At issue here is only the first part of this test.

The Supreme Court agrees with Appellant that there was no clear statement from the Legislature here. Only an express declaration or indication from the Legislature in an enacted statute is sufficient to establish legislative intent to abrogate the amelioration doctrine. The statement in guideline 3.G.1 that states that modifications to the guidelines “apply to offenders whose date of offense is on or after the specified modification effective date” is not an express statement from the Legislature, as it was adopted in 1986 without legislative action and is not part of an enacted statute. Similarly, the Legislature did not take any action on the statement in the proposed 2019 modifications that the modifications should apply to only crimes committed on or after August 1, 2019. Such inaction is insufficient. The Court of Appeals is affirmed. State v. Robinette, A19-0679, 2021 WL 3745545 (Minn. Aug. 25, 2021).