February 2022



A sheriff’s deputy visited Appellant at his mother’s home to fill out an annual predatory offender registration form. Appellant’s driver’s license was canceled as inimical to public safety at that time. The deputy saw Appellant driving a car in the driveway, but Appellant stopped before reaching the road. Appellant was arrested for driving after cancellation and, following a chemical test that revealed methamphetamine, he was also charged with first-degree DWI. Appellant argued the deputy had no probable cause to arrest him, because he drove only on private property. The district court denied the motion. He was found guilty of both charges after a stipulated facts trial.

Under Minn. Stat. § 171.24, subd. 5(3), a person disobeys an order canceling his or her license by operating a motor vehicle for which a license is required. Minn. Stat. § 171.02, subd. 1(a), requires a valid license to drive a motor vehicle “upon a street or highway,” which are defined to exclude private property. Thus, the plain language of the cancellation statute covers only situations in which a person operates a motor vehicle on a public street or highway. Here, the deputy lacked probable cause to believe Appellant drove after cancellation, because he observed Appellant driving only on a private driveway, and the evidence obtained as a result of his arrest should have been suppressed. Appellant’s convictions are reversed. State v. Velisek, A21-0275, N.W.2d , 2022 WL 351175 (Minn. Ct. App. Feb. 7, 2022).



Appellant pleaded guilty to first-degree criminal sexual conduct, including one heinous element of great bodily harm, first-degree assault, and inducement to prostitution, under an agreement with the State that he would receive a life sentence with the possibility of parole after 30 years. Prior to entering his plea, both Appellant’s counsel and the district court informed him that the parole decision would be made by the Department of Corrections (DOC) based on his conduct in prison, which is only one factor the DOC is to consider. See Minn. Stat. § 244.05, subd. 5(c) and (d). Appellant later sought to withdraw his guilty plea, arguing he was misinformed of the consequences of the plea. He was sentenced on the first-degree criminal sexual conduct offense first, followed by the inducement to prostitution offense. The district court sentenced Appellant to life with the possibility of parole after 30 years. Appellant appealed from his sentence and the court’s denial of his motion to withdraw his guilty plea.

The Court of Appeals holds that parole eligibility determinations are collateral consequences of a guilty plea that do not affect the intelligence of the plea. Parole eligibility determinations are based on factors that occur after the imposition of the sentence, so they cannot be “definite,” “immediate,” or “automatic” results of the sentence, as with direct consequences. Sentences and their direct consequences serve to punish defendants, while parole eligibility determinations also serve to ensure public safety. Any incomplete information Appellant received about the parole eligibility determination did not render his guilty plea unintelligent.

The Court also finds Appellant’s plea was not induced by an unfulfillable promise by the district court. Appellant entered his plea to avoid a life sentence without the possibility of parole, a real risk in his case, not because of any statements the district court made about parole eligibility. The district court also did not tell Appellant that only his in-prison conduct would be considered by the DOC, did not guarantee good behavior would automatically entitle Appellant to parole, or affirmatively promise anything regarding the DOC’s parole eligibility process.

However, the case is remanded for resentencing. Appellant should have been sentenced first on the inducement to prostitution offense, as it occurred first in time. The district court also used an incorrect criminal history score. Finally, the district court’s 30-year minimum term of imprisonment was an upward departure from the sentencing guidelines, but the court failed to state as much in its sentence or make any findings of substantial and compelling aggravating factors to support the departure. “This failure… requires reversal of the sentence and prohibits any future upward departures from the guidelines.” State v. Bell, A21-0283, N.W.2d , 2022 WL 351122 (Minn. Ct. App. Feb. 7, 2022).



After a jury trial, Appellant was convicted of third-degree possession of a controlled substance and giving a false name to police. During his trial, due to COVID-19, the district court required witnesses to wear a face covering while testifying and closed the courtroom, while providing a live video feed of the proceedings in a nearby courtroom. On appeal, Appellant argues these measures violated his rights to confrontation and a public trial.

A defendant’s confrontation rights are not absolute and may be satisfied without a full physical, face-to-face confrontation at trial if the interference with confrontation is necessary to further an important public policy and the testimony’s reliability is otherwise assured. Here, the district court’s COVID-19 procedures followed the Supreme Court’s COVID-19 orders and safety plans. The district court also noted that research showed an increase in the spread of COVID-19 was higher absent mask wearing and that the courtroom in which the trial took place was small. The trial also took place before COVID-19 vaccines were available and experts were still learning how to best prevent the spread of COVID-19.

The Court of Appeals notes that the masks prevented the jury from seeing only the witnesses’ mouths and nose. The jury was still able to see the witnesses’ eyes, observe their body language, and hear their tone and vocal inflections. Thus, the masks did not render the testimony unreliable.

The Court of Appeals also finds Appellant’s right to a public trial was not violated. The courtroom was closed to prevent the spread of COVID-19 and, to maintain public access, the court provided live video of the proceedings in a nearby courtroom that remained open to the public. The record also suggests the district court considered alternatives, but given the Supreme Court’s social distancing requirements and the small size of the courtroom, limiting public access to the courtroom was necessary to maintain safety.

Appellant’s right to confrontation and a public trial were not violated by the district court’s COVID-19 prevention measures here, and his convictions are affirmed. State v. Modtland, A21-0146, N.W.2d , 2022 WL 433245 (Minn. Ct. App. Feb. 14, 2022).



Following his sentencing for second-degree unintentional felony murder, the district court ordered Appellant to pay $7,500 in restitution as repayment for the victim’s funeral expenses. Appellant argued he was unable to pay that amount, testifying he had no prison job, could not collect Social Security, and had no assets. The district court denied Appellant’s motion to eliminate or reduce the restitution order.

The Court of Appeals first rejects Appellant’s argument that the State bears the burden of proving a defendant’s ability to pay and that the State failed to do so here. The plain language of the restitution statute, Minn. Stat. § 611A.045 and 611A.05, places the initial burden on the defendant to contest restitution and produce evidence stating his challenges. Then, the statute places two burdens on the State: (1) to demonstrate the amount of loss sustained by a victim, and (2) to demonstrate the appropriateness of a particular type of restitution. The statute plainly does not require the State to produce evidence of or proving the defendant’s ability to pay restitution.

The only mention of a defendant’s ability to pay in the restitution statute is the requirement that a district court consider the same in making a restitution determination. The district court must expressly state that it considered a number of factors, including the defendant’s ability to pay, and the record must contain sufficient evidence to facilitate the court’s consideration. Here, the district court made sufficient findings regarding Appellant’s ability to pay, and the record supports those findings.

However, the case is remanded to the district court for the court to assign responsibility for developing a restitution payment schedule or structure. The restitution statute requires that a restitution order include a payment schedule or structure requirement and permits the court to assign responsibility for developing the schedule or structure to probation, court administration, or another person. The court here merely stated there was no deadline for payment, which does not satisfy the statute’s payment schedule requirements. State v. Cloutier, A21-1270, N.W.2d , 2022 WL 518480 (Minn. Ct. App. Feb. 22, 2022).