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DATE: MAY 2018

I. SENTENCING

A. DEFENDANT MUST PROVE INACCURACY OF CRIMINAL HISTORY SCORE UPON MOTION TO CORRECT SENTENCE AFTER TIME FOR DIRECT APPEAL HAS PASSED: Appellant pleaded guilty to first-degree aggravated robbery in Otter Tail County. In a promoting prostitution case in Hennepin County, it was agreed that he would plead guilty in exchange for a joint recommendation that his sentence by 96 months, concurrent to his Otter Tail County sentence. Appellant’s guilty plea was entered in Hennepin County in November 2012, and he was sentenced to 96 months. A pre-sentence report calculated his criminal history score at six, including 2.5 points three prior Illinois convictions. He was sentenced in Otter Tail County in January 2013. The pre-sentence report included criminal history points for his Hennepin County conviction, three Indiana convictions (1.5 points), and two Illinois convictions (2.5 points). The court found the bottom of the presumptive range to be 92 months based on Appellant’s criminal history, not the 84 months contemplated in the plea agreement, and sentenced Appellant to 92 months, concurrent to his Hennepin County sentence. Appellant did not contest his criminal history score calculations before either district court, nor did he directly appeal either sentences. Later, however, he filed a motion to correct both sentences, which the district courts denied.
The Supreme Court notes that this case is its first occasion to determine which party has the burden of proving the accuracy of a criminal history score in a post-appeal motion to correct a sentence. Here, the specific issue is which party has the burden to prove Appellant’s Illinois convictions would have been felonies in Minnesota and sentenced as such, so that they were properly included in his criminal history score calculations. Minn. R. 27.03, subd. 9, permits a district court to correct a sentence not authorized by law at any time. A sentence based on an incorrect criminal history score is not authorized by law, but the rule is silent as to who is required to prove the accuracy of the criminal history score upon a motion under the rule.
The Supreme Court notes that the burden of proof is generally placed on the defendant in a postconviction context, and that a Rule 27.03, subd. 9, motion, like a postconviction petition, is akin to a collateral attack on a final judgment. Because the burden is on the defendant in a postconviction context, the court finds that the burden should similarly be on the defendant in a Rule 27.03, subd. 9, context. This conclusion is bolstered by cases interpreting the federal rule on which Minnesota’s Rule 27.03, subd. 9 is based, which place the burden of proof on the defendant to prove the illegality of his sentence. Tramayne Colfred Williams v. State, 910 N.W.2d 736 (Minn. Apr. 25, 2018).

B. PROBABLE CAUSE STANDARD APPLIES TO DETERMINATION OF WHETHER AGGRAVATING SENTENCING FACTOR SHOULD BE SUBMITTED TO JURY: In Respondent’s drug case, the State provided notice of its intent to seek an aggravated sentence based on two factors: commission of the drug offenses in the presence of a child and Respondent’s two or more prior violent crime convictions, and asked the court to determine if the law and proffered evidence supported presenting aggravating factors to the jury. The district court did not allow aggravating factors to be presented to the jury, and the State appealed, arguing the district court applied the incorrect standard. If, as here, the State provides sufficient notice of its intent to seek an aggravated sentence, Minn. R. Crim. P. 11.04, subd. 2(a), requires the district court to determine whether the law and proffered evidence support an aggravated sentence. The rule, however, does not provide a standard for the court to apply. Because probable cause is required for every element of an offense, the Court of Appeals reasons the standard should be extended to factors used to enhance a sentence.
The court reverses the district court’s conclusion that the State failed to present sufficient evidence to present both aggravating factors to the jury, finding the proffered evidence satisfied the probable cause standard as to each aggravating factor. State v. Donyale Damon Gayles, 2018 WL 1998330 (Minn. Ct. App. Apr. 30, 2018).

C. MINN. STAT. § 617.247’S 10-YEAR CONDITIONAL RELEASE TERM REQUIRED ONLY IF CONVICTION AND SENTENCE FOR QUALIFYING OFFENSE PRIOR TO COMMISSION OF PRESENT OFFENSE: Appellant committed child pornography and first- and second-degree criminal sexual conduct offenses. In August 2009, he committed criminal sexual conduct, and entered a plea to second-degree criminal sexual conduct in January 2010. Adjudication on the criminal sexual conduct charge was stayed in April 2010, but a sentence was eventually executed in January 2012 after two probation violations. The child pornography offense was committed first, in June 2009, but he did not plead guilty to and was not sentenced for that offense until October 2012. As part of that sentence, the court imposed a 10-year conditional release term, which Appellant argues was unlawful. Minn. Stat. § 617.247, subd. 9, mandates a 10-year conditional release term if a defendant “has previously been convicted of a violation of this section.” Otherwise, the conditional release term is five years. “Has previously been convicted” is not defined in the statute, and the Court finds it is ambiguous because it lacks “temporal precision” – that is, it does not indicate the point in time at which the qualifying conviction must have existed to constitute a previous conviction that triggers imposition of the ten-year conditional-release term.
Applying the canon in pari materia, the court looks to Minn. Stat. § 609.3455, subd. 1(f), which defines “previous sex offense conviction” in the dangerous sex offender statute. The court holds that a sentencing court must impose the 10-year conditional release term under § 617.247, subd. 9, only if the offender has been convicted and sentenced for a qualifying offense before the commission of the present offense. Appellant was not convicted and sentenced for a qualifying offense (here, the criminal sexual conduct offense) before he committed the child pornography offense. As such, the ten-year conditional release period was not permitted by statute. State v. Everett Overweg, 2018 WL 1996958 (Minn. Ct. App. Apr. 30, 2018).

D. “MERGED” OR “COMBINED” CONVICTION NOT PERMITTED: Appellant pleaded guilty to two counts of illegal possession of a firearm. The presumptive disposition was a 72-month commitment. At his plea hearing, Appellant admitted to possessing a pistol on or about March 7, 2016, so he could benefit or further the efforts of a gang, when he knew he was prohibited from possessing firearms. The district court sentenced Appellant to 72 months on count 1, stating that “[c]ount 2 will merge with count 1.” The warrant of commitment indicated convictions for both illegal possession of a firearm in furtherance of gang activity and illegal possession of a firearm, and stated the sentence for count 2 was “combined with count 1.”
The Court of Appeals finds the district court erred in entering a conviction on count 2. A defendant cannot be convicted of one offense and a lesser-included offense on the basis of the same criminal act. Where a crime is committed for the benefit of a gang, the underlying crime is an included crime. The district court erred in entering convictions on both counts on the warrant of commitment. The sentencing transcript shows the court speaking of convictions or counts “merging” and of sentences “combining,” but these are not legally recognizable terms. Appellant pleaded guilty to both counts, but the court should have entered a conviction only on count 1. So, while Appellant is entitled to have his conviction on count 2 vacated, he is not entitled to have the underlying finding of guilt vacated. Resentencing is not necessary, because Appellant was sentenced only on count 1. State v. Ohagi Charles Walker, 2018 WL 2187036 (Minn. Ct. App. May 14, 2018).

II. PHYSICIAN-PATIENT PRIVILEGE

A. SEIZURE OF PATIENT’S BLOOD PURSUANT TO WARRANT NOT A VIOLATION OF PHYSICIAN-PATIENT PRIVILEGE: Law enforcement found Respondent bleeding from his head, lying in the street following an ATV accident, and smelled alcohol on his breath. A deputy also smelled alcohol on Respondent’s breath before he was taken to a hospital, where he received a blood transfusion. The deputy learned the first hospital stored a vial of Respondent’s blood in the lab, and he obtained a search warrant to seize it for testing. Testing later revealed Respondent’s blood alcohol concentration was 0.155. Prior to his trial for fourth-degree DWI, the district court granted Respondent’s motion to suppress the blood sample and test results as “information” subject to the physician-patient privilege.
The privilege prohibits a physician from disclosing “any information or any opinion based thereon… acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity,” without the patient’s consent. Minn. Stat. § 595.02, subd. 1(d). The Court of Appeals finds statements from prior cases regarding the scope of the privilege in the context of physical articles, such as bottles of pills and a blood sample, to be mere dicta and not binding. Because “information” is not defined in section 595.02, the court looks to dictionary definitions, which indicate that “information, by nature, is not physical and is about something.” A blood sample, instead, is material and does not, by itself, provide information, so is not covered by the physician-patient privilege. The district court is reversed. State v. Heath Allen Atwood, 2018 WL 1998326 (Minn. Ct. App. Apr. 30, 2018).

III. IMPLIED CONSENT

A. DUE PROCESS VIOLATION ONLY IF DRIVER SUBMITS TO TEST AFTER RELYING ON INACCURATE ADVISORY: Respondent was arrested for driving under the influence of a controlled substance. The implied consent advisory was read to Respondent, which stated that refusal to submit to a urine test was a crime. Respondent refused both urine and blood tests, and his license was revoked. The district court and Court of Appeals both held Respondent’s license revocation should be rescinded, agreeing that the implied consent advisory was misleading, because it incorrectly stated that refusal to submit to a urine test was a crime, relying on McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn. 1991).
On appeal, the Commissioner argues that, because Respondent refused testing, he did not rely on the advisory to his detriment and no due process violation occurred. Respondent argues the violation occurred when the legally inaccurate advisory was read. The Supreme Court clarifies that McDonnell recognized a due process violation under these circumstances only when (1) the person whose license was revoked submitted to a chemical test, (2) the person prejudicially relied on the advisory in deciding to undergo testing, and (3) the advisory did not accurately inform the person of the legal consequences of refusing to submit to testing. Because Respondent did not submit to chemical testing, the first two elements are missing here. Respondent is not entitled to a rescission of his license revocation. Tyler Lee Johnson v. Comm’r Pub. Safety, 911 N.W.2d 506 (Minn. May 2, 2018). In a case raising similar arguments, the Supreme Court again refused to rescind Appellant’s driver’s license. Following his DWI arrest, Appellant’s driver’s license was revoked after a blood test showed his alcohol concentration was over the legal limit. Prior to the test, he was read the implied consent advisory, which Appellant argues was inaccurate, necessitating the rescission of his license revocation. Relying on Johnson v. Comm’r Pub. Safety, 911 N.W.2d 506 (May 2, 2018), the Supreme Court finds that Appellant’s license revocation was not improper. Appellant fails Johnson’s 3-part test, because, although he did submit to a chemical test, he did not show he prejudicially relied on the advisory in deciding to submit to the test. Mitchell Edwin Morehouse v. Comm’r Pub. Safety, 911 N.W.2d 503 (Minn. May 2, 2018).

IV. CONFRONTATION CLAUSE

A. NO CONTACT ORDER VIOLATES CONFRONTATION CLAUSE IF PROHIBITS DEFENDANT FROM CROSS-EXAMINING WITNESS: The district court issued a no contact order in Appellant’s domestic assault case, prohibiting contact with the alleged victim, including in court. Appellant represented himself and declined to cross-examine the alleged victim following her testimony at trial, to avoid violating the court’s order. The jury found Appellant guilty of domestic assault. The no contact order prohibited Appellant from having contact with the victim even when “at the courthouse for a court appearance,” and contained no exception for cross-examination. When the district court became aware that Appellant interpreted this to mean he could not cross-examine the victim or he would face additional punishment, the district court was obligated to expressly allay Appellant’s stated burden on his cross-examination. The Court of Appeals finds that this error was not harmless and that Appellant is entitled to a new trial. State v. Anton Leo Schloegl, III, 2018 WL 2090400 (Minn. Ct. App. May 7, 2018).

V. CONTROLLED SUBSTANCES

A. SECOND-DEGREE CONTROLLED SUBSTANCE CONVICTION REQUIRES PROOF OF UNLAWFUL POSSESSION: After transporting Appellant to jail, police found a baggie containing methamphetamine in the back seat of the squad car. Prior to being placed in the car, Appellant and the squad car had been thoroughly searched. Appellant was charged with and convicted of second-degree controlled substance crime. He argues on appeal the state did not prove beyond a reasonable doubt he unlawfully possessed methamphetamine.
By statute, a person is guilty of second-degree controlled substance crime if he unlawfully possesses methamphetamine. Minn. Stat. § 152.022, subd. 2(a)(1). The state argues possessing methamphetamine is always illegal. However, possession of a physician-prescribed methamphetamine is lawful. Thus, unlawfulness is an element of second-degree controlled substance crime and must be proved by the State beyond a reasonable doubt. Here, the Court of Appeals finds State presented ample circumstantial evidence of Appellant’s unlawful possession of methamphetamine and affirms Appellant’s conviction. State v. Jeremy Jake Clarin, 2018 WL 2187179 (Minn. Ct. App. May 14, 2018).

VI. DWI

A. PRE-TEST RIGHT TO COUNSEL NOT TRIGGERED UNLESS IMPLIED CONSENT ADVISORY READ: Appellant was arrested for DWI and taken to jail, where he was asked to submit to a urine test, without police reading to him the implied consent advisory. He consented and the urine test revealed controlled substances. He was charged with second-degree DWI. The district court granted Appellant’s his motion to dismiss the test results, finding that, by failing to read the implied consent advisory, the police failed to allow Appellant to vindicate his right to counsel prior to testing, under Friedman v. Comm’r Pub. Safety, 473 N.W.2d 828 (Minn. 1991). The Court of Appeals reversed. The Supreme Court holds that the limited right to counsel before deciding whether to submit to chemical testing, recognized in Friedman, applies only in implied consent cases – that is, when the implied consent advisory is actually read, “because of the unique decision and consequences that come with the reading of the advisory” (possibly providing the police with evidence, license revocations, possibly more severe criminal consequences for refusal). Thus, it was error for the district court to suppress the urine test results in this case. State v. Scott Ross Hunn, 2018 WL 2223746 (Minn. May 16, 2018).

VII. SEARCH AND SEIZURE

A. APPLYING THREE-FACTOR WINSTON V. LEE TEST TO PROCEDURE USED TO REMOVE NARCOTICS FROM RECTUM DOES NOT VIOLATE FOURTH AMENDMENT: At the police station after his arrest following a controlled buy, Appellant was observed attempting to insert something in his rectum and a strip search revealed plastic coming from Appellant’s anus. Police obtained a warrant authorizing hospital staff to use any medical/physical means necessary to retrieve the item from Appellant’s anus. Appellant refused a liquid laxative and other less-invasive measures. Appellant was then sedated and an anoscopy was performed, during which a baggie containing crack cocaine was removed. Appealing his fifth-degree drug conviction, Appellant argues the procedure by which the cocaine was removed violated his right against unreasonable searches and seizures. Winston v. Lee, 470 U.S. 753 (1985), articulated three factors to consider when determining whether a medical procedure search is reasonable, assuming threshold probable cause and search warrant requirements are met: (1) the extent to which the procedure may threaten the safety or health of the individual, (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence. The Court of Appeals finds the record shows that an anoscopy poses minimal health risks and is not a complicated procedure. However, the procedure is an extreme infringement on Appellant’s dignitary interests. Lastly, though, the court finds that drugs found during the anoscopy was the only direct evidence of Appellant’s crack cocaine possession, and the community has a strong interest in prosecuting those who sell illegal drugs. Although a search warrant or applicable exception is a separate, threshold requirement, it also informs the reasonableness analysis under the third Winston factor. Here, there was a warrant issued.
Balancing the three Winston factors, the court affirms the district court’s decision to deny Appellant’s motion to suppress the evidence obtained as a result of the anoscopy, holding that the procedure was reasonable under these circumstances. State v. Guntallwon Karloyea Brown, 2018 WL 2407195 (Minn. Ct. App. May 29, 2018).

VIII. MURDER

A. STATE MUST PROVE “WITHOUT INTENT TO EFFECT THE DEATH OF ANY PERSON” ELEMENT OF THIRD-DEGREE MURDER: Appellant was charged with third-degree murder, criminal vehicular homicide, and criminal vehicular operation after she crashed her vehicle into a city maintenance vehicle, killing one occupant and seriously injuring the other. After a stipulated facts trial, the district court found Appellant guilty on all counts, finding Appellant’s conduct was a suicide attempt, but that there was no evidence she intended to kill anyone else. On appeal, Appellant argues the district court erred in finding she had not established a mental illness defense and that the State did not prove she acted “without intent to effect the death of any person.” The Court of Appeals holds that the phrase in Minn. Stat. § 609.195(a) “without intent to effect the death of any person” is an element of third degree murder. The court finds the lack of intent integral to the definition of third-degree murder, which was intended to cover cases involving reckless and wanton acts committed without special regard to their effect on any particular person. The State argues that the statute is unclear as to whether “any person” includes the defendant – that is, here, whether Appellant’s intent to kill herself qualifies as an intent to effect the death of “any person” – rendering the statute ambiguous. However, the court concludes that the plain meaning of “any person” extends to any and all persons, including the actor, so the statute is not ambiguous.
The record in Appellant’s case contains insufficient evidence to prove Appellant acted without the intent to effect the death of any person, because the district court found the evidence proved Appellant intended effect her own death. Thus, the court finds the district court did not err in finding Appellant did not establish a mental illness defense, but reverses Appellant’s third-degree murder conviction. State v. Marie Jessica Hall, 2018 WL 2407194 (Minn. Ct. App. May 29, 2018).

IV. ELECTRONIC SOLICITATION OF A CHILD

A. DIRECT COMMUNICATION WITH MINOR NOT REQUIRED: A sheriff’s deputy posed as a 16-year-old girl and texted Appellant in a response he left on the deputy’s 17-year-old daughter’s car while she was at work. During the text exchange, Appellant sent sexually explicit messages relating to a planned meeting between Appellant, the fictitious 16-year-old, and her fictitious 15-year-old friend. Appellant was arrested driving to the meeting and eventually convicted of electronic solicitation of a minor and fifth-degree possession of a controlled substance. The Court of Appeals considers for the first time whether a person may solicit a child through an intermediary. A child is defined as a person 15 years or younger, and Appellant argues he did not solicit a child because he never directly contacted the fictitious 15-year-old. To “solicit” includes attempting to persuade someone. The statute at issue, Minn. Stat. § 609.352, subd. 2a(1), does not require that the person persuade a child through direct communication. Also, the Court of Appeals previously found that electronic solicitation of a child may be committed through a defendant’s contact with an undercover police officer, and federal courts interpreting a similar federal statute have found that a person can persuade or induce a child to engage in sexual activity through an intermediary. Thus, the court holds that if an individual who makes statements to an intermediary with the objective of getting a child to engage in sexual conduct is guilty of violating Minn. Stat. § 609.352, subd. 2a(1). State v. Gary Stephen Gundy, 2018 WL 2407191 (Minn. Ct. App. May 29, 2018).

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