December 2021

CONTROLLED SUBSTANCES: “SELL” INCLUDES AN OFFER TO SELL A PROHIBITED AMOUNT OF A CONTROLLED SUBSTANCE, EVEN IF A LESSER AMOUNT WAS DELIVERED

While entering a guilty plea to first-degree sale of 10 grams or more of heroin, under Minn. Stat. § 152.021, subd. 1(3), Appellant admitted selling heroin to an informant four times in a 20-day period. He specifically admitted to offering to sell the informant an aggregate amount of 13 grams of heroin on those four occasions and delivering 8.908 grams. The district court accepted Appellant’s guilty plea, but he later moved to withdraw the plea, arguing section 152.021, subd. 1(3), requires proof that 10 or more grams of heroin were actually delivered. The district court denied his motion and the Court of Appeals affirmed.

Section 152.021, subd. 1(3), prohibits unlawfully selling a total weight of 10 or more grams of heroin on one or more occasions within a 90-day period. Section 152.01, subd. 15a, defines “sell” as “(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or (2) to offer or agree to perform an act listed in clause (1); or (3) to possess with intent to perform an act listed in clause (1).” The plain language of the definition of “sell” includes offering or agreeing to sell. Inserting this definition into section 152.021, subd. 1(3), the Supreme Court reads the statute as prohibiting unlawfully offering or agreeing to sell a total weight of 10 or more grams of heroin on one or more occasions within a 90-day period.

Because Appellant admitted to offering to sell more than 10 grams of heroin, his guilty plea to first-degree sale of heroin was accurate and valid. State v. Fugalli, A19-2007, 967 N.W.2d 74 (Minn. Dec. 1, 2021).

WRONGFULLY OBTAINING PUBLIC ASSISTANCE: PROOF IS REQUIRED OF INTENT TO DEFEAT THE PURPOSES OF ONE OF THE LISTED PUBLIC ASSISTANCE PROGRAMS

Appellant received over $65,000 in public assistance through multiple county programs. In his applications, Appellant repeatedly claimed he had no income or assets, and claimed rent as his only expense. An investigation revealed Appellant had earned gambling income, had thousands of dollars in three bank accounts, owned twelve cars, owned a home, and did not pay rent. At trial, Appellant claimed he was unaware of mistakes on his applications, and he had no explanation for how false statements were included on multiple applications. A jury found Appellant guilty of wrongfully obtaining public assistance, in violation of Minn. Stat. § 256.98, subd. 1(1). The Court of Appeals affirmed.

Section 256.98, subd. 1, identifies various acts or omissions that are considered “theft” if “done with intent to defeat the purposes of sections 145.891 to 145.897, the MFIP program…, the AFDC program…, chapter 256B, 256D, 256J, 256K, or 256L, and childcare assistance programs.” Appellant argued for a “joint” reading of this phrase, while the State argued for a “several” reading. The Supreme Court concludes that the only reasonable interpretation of this section “is that it requires proof that a defendant acted with the ‘intent to defeat the purposes of’ any one or more of the public assistance programs listed” in that section. This is the only interpretation which gives effect to all provisions of the wrongfully obtaining assistance statute.

The court concludes that the circumstances proved at trial are consistent only with Appellant’s guilt. The evidence, viewed in the light most favorable to the verdict, proved beyond a reasonable doubt that Appellant acted with intent to defeat the purposes of the aid programs for which he applied. State v. Irby, A20-0375, N.W.2d , 2021 WL 5912899 (Minn. Dec. 15, 2021).

RESTITUTION: COURT MUST EXPRESSLY STATE IT CONSIDERED A DEFENDANT’S ABILITY TO PAY AND THE RECORD MUST INCLUDE SUFFICIENT EVIDENCE FOR A COURT TO CONSIDER A DEFENDANT’S ABILITY TO PAY

Appellant entered an Alford plea to first-degree arson following a house fire. The A presentence report did not contain any information regarding Appellant’s income, resources, obligations, or ability to pay restitution. There was also no mention of any of this information at the sentencing hearing. The district court ordered $87,500 in restitution, but, again, the order made no mention of Appellant’s ability to pay. A restitution hearing was held, at which the focus was the timeliness of the restitution request. At the hearing, there was no mention or evidence of Appellant’s income, resources, or obligations. The court again ordered $87,500 in restitution in an order that did not mention Appellant’s ability to pay. The Court of Appeals affirmed, and the Supreme Court granted review on the sole issues of whether the district court fulfilled its statutory obligation to consider Appellant’s ability to pay restitution.

Minn. Stat. § 611A.045, subd. 1, provides that a court “shall consider… the income, resources, and obligations of the defendant.” The Supreme Court finds that this statutory provision requires the court to affirmatively consider the defendant’s ability to pay when awarding and setting the amount of restitution. To fulfill this mandate, the district court must expressly state, orally or in writing, that it considered the defendant’s ability to pay. Specific findings regarding the defendant’s income, resources, and obligations are not required, but the record must contain sufficient information about these items to allow a district court to consider a defendant’s ability to pay.

The restitution order in this case was insufficient, as it did not expressly state that the district court considered Appellant’s income, resources, and obligations. The record is also devoid of any information about Appellant’s ability to pay. The Court of Appeals is reversed, and the case is remanded to the district court. State v. Wigham, A20-0857, N.W.2d , 2021 WL 6057995 (Minn. Dec. 22, 2021).

IMPLIED CONSENT: BIRCHFIELD DID NOT INVALIDATE LAW ALLOWING AN OFFICER TO REQUEST A PBT WITH REASONABLE SUSPICION A DRIVER WAS DRIVING WHILE IMPAIRED

Appellant’s vehicle was stopped for speeding. Appellant smelled of alcohol, had slurred speech, and watery, glassy, bloodshot eyes, leading the state trooper to believe Appellant was impaired. Appellant denied drinking alcohol, but the trooper noted several indicators of impairment during field sobriety tests. The trooper asked Appellant to submit to a PBT, but Appellant refused. Appellant was then arrested for DWI, and his driver’s license was revoked. Despite finding much of the trooper’s testimony at the implied consent hearing was not credible, the district court found the trooper had reason to believe Appellant was impaired, that the trooper, therefore, properly requested a PBT, and sustained the license revocation.

The Court of Appeals considers whether Minn. Stat. § 169A.41, subd. 1, violates the Fourth Amendment by allowing an officer to request a PBT based on reasonable suspicion and not probable cause. The court rejects Appellant’s argument that Birchfield v. North Dakota, 136 S.Ct. 2160, renders section 169A.41, subd. 1, unconstitutional. Birchfield discussed chemical breath tests, which the court distinguishes from a PBT, which cannot be used to establish any element of a crime and may be refused by a driver with no resulting direct penalty.

Ultimately, the court finds the district court did not err in concluding that a reasonable suspicion existed to support the trooper’s request for a PBT. The court affirms the district court’s decision to sustain the revocation of Appellant’s driver’s license. Mesenburg v. Comm’r Pub. Safety, A21-0578, N.W.2d , 2021 WL 6110021 (Minn. Ct. App. Dec. 27, 2021).

SENTENCING: “CONVICTED OF A VIOLATION OF THIS CHAPTER” IN MINN. STAT. § 152.025, SUBD. 4(a), INCLUDES A PETTY MISDEMEANOR VIOLATION OF CHAPTER 152

Appellant was convicted of petty misdemeanor possession of marijuana (Minn. Stat. § 152.027, subd. 4(a)) in 2005. In 2007, he was convicted of fifth-degree possession of cocaine. In calculating his criminal history score for his 2019 domestic assault conviction, the district court assigned one-half of a felony point for the 2007 conviction, rejecting Appellant’s argument that the 2007 conviction should be classified as a gross misdemeanor, under the 2016 Drug Sentencing Reform Act (Minn. Stat. § 152.025, subd. 4(a)), because his 2005 petty misdemeanor conviction was not a qualifying prior conviction. The Court of Appeals affirmed.

Under section 152.025, subd. 4(a), a fifth-degree possession offense is a felony, unless the defendant “has not been previously convicted of a violation of this chapter [152],” and other requirements are met. If the requirements are met, the fifth-degree possession offense is deemed a gross misdemeanor for criminal history score calculation purposes.

The statute does not define “convicted” or “violation,” but they are defined elsewhere, and the Supreme Court finds that the definitions apply to chapter 152. Section 609.02, subd. 5, defines “conviction” as a plea of guilty or a verdict or finding of guilty. Section 645.44, subd. 17, defines “violate” as “failure to comply with.” Neither definition distinguishes between criminal and non-criminal offenses or carves out an exception for petty misdemeanors.

Given these definitions, the court concludes that section 152.025, subd. 4(a), unambiguously includes Appellant’s 2005 petty misdemeanor conviction. Appellant was convicted of the petty misdemeanor following the acceptance of his guilty plea, in which Appellant admitted to violating chapter 152. Thus, Appellant’s 2007 possession conviction was properly counted as a felony. State v. Morgan, A19-1902, N.W.2d , 2021 WL 6133171 (Minn. Dec. 29, 2021).

FOURTH AMENDMENT: PRETRIAL RELEASE VIOLATION DOES NOT CONSTITUTE CRIMINAL ACTIVITY TO SUPPORT EXPANDING A TRAFFIC STOP

While Appellant was on pretrial release in a DWI and controlled substance case, he was a passenger in a vehicle pulled over by police for failing to properly signal a turn. The officer recognized Appellant and was aware he was on pretrial release. The officer smelled alcohol coming from the vehicle and asked the driver if she had been drinking. She said no. The officer then asked the passengers if they had been drinking. Appellant responded affirmatively and admitted a condition of his release was abstaining from alcohol. Appellant then blew 0.03 on a PBT. He was arrested for violating his release conditions. During a search of his person, the officer found shotgun shells in his pocket. Appellant was charged with illegal possession of ammunition. The district court denied Appellant’s motion to suppress the shotgun shells, concluding the evidence was found during a valid search incident to arrest. Appellant was convicted after a stipulated facts bench trial. The Court of Appeals found the expansion of the traffic stop was reasonable and affirmed the district court’s denial of Appellant’s suppression motion.

The Supreme Court, however, disagrees, holding that the officer’s investigation into Appellant’s non-criminal violation of his pretrial release conditions exceeded the permissible scope and duration of the traffic stop. There is no dispute that Appellant was seized when the officer questioned him about his pretrial release conditions. The seizure was warrantless, and, therefore, per se unreasonable. However, to evaluate the reasonableness of seizures during traffic stops, the court asks whether the traffic stop was justified at its inception by a reasonable articulable suspicion of criminal activity and whether law enforcement’s actions during the stop were reasonably related to and justified by the circumstances that first gave rise to the stop.

After an initially lawful traffic stop, any expansion of the scope or duration of the stop must be justified by a reasonable articulable suspicion of other criminal activity. The Supreme Court applies prior case law holding that a probation violation does not constitute criminal contempt to conclude that a violation of a condition of pretrial release is not a crime. The court reaffirms that an officer must have reasonable articulable suspicion of conduct that is specifically a crime under Minnesota law, not merely “illegal activity” generally, to expand the scope of a traffic stop.

The Court of Appeals is reversed, and the case is remanded to the district court with directions to vacate Appellant’s conviction and grant his suppression motion. State v. Sargent, A19-1554, N.W.2d , 2021 WL 6133172 (Minn. Dec. 29, 2021).