September 2019

CRIMINAL PROCEDURE

PETTY MISDEMEANOR CONVICTIONS CANNOT BE USED TO ENHANCE SUBSEQUENT OFFENSE

Appellant’s two prior petty misdemeanor convictions from 2014 and 2015 for no proof of insurance were used to enhance a 2017 charge of operating a vehicle without insurance to a gross misdemeanor. Appellant received citations for the 2014 and 2015 offenses and paid the fine amounts, which were within the petty misdemeanor limits. As a result, per Minn. R. Crim. P. 23.02, the misdemeanor offenses became petty misdemeanor convictions.

Section 609.131, subd. 3, disallows enhancement of a subsequent offense to a gross misdemeanor by using “a conviction for a violation that was originally charged as a misdemeanor and was treated as a petty misdemeanor.” Despite the plain language of section 609.131, subd. 3, the State argues the enhancement here is permitted under either section 609.13, subd. 3 (convictions of felony or gross misdemeanors; when deemed misdemeanor or gross misdemeanor), or section 169.797, subd. 4(a) (penalties for failure to provide vehicle insurance). The Court of Appeals rejects the State’s argument, noting that section 609.13, subd. 3, involves an unrelated sentencing issue, and that section 609.131, subd. 3’s expansive language, “[n]otwithstanding any other law,” denotes that section 609.131, subd. 3’s prohibition of the use of petty misdemeanors to enhance a subsequent offense to a gross misdemeanor “eclipses any other purportedly contrary provision.”

Under section 609.131, subd. 3, Appellant cannot be convicted of a gross misdemeanor. However, the court finds Appellant can be convicted of a misdemeanor based on the stipulated facts found by the district court. Reversed and remanded to reduce Appellant’s conviction to a misdemeanor. State v. Selseth, No. A18-1426, 2019 WL 4147596 (Minn. Ct. App. Sept. 3, 2019).

IMPLIED CONSENT

PREHEARING REVOCATION ALLOWED ONLY IF DRIVER WAS GIVEN REFUSAL-IS-A-CRIME WARNING BEFORE BLOOD OR URINE TEST

Appellant’s driver’s license was revoked after a blood test, conducted pursuant to a search warrant, showed Appellant drove with an alcohol concentration over 0.08. Appellant was served with the search warrant but was never told test refusal is a crime. Minn. Stat. § 171.177, subd. 1, requires that, “[a]t the time a blood or urine test is directed pursuant to a search warrant…, the person must be informed that refusal to submit to a blood or urine test is a crime.” Section 171.177, subd. 1, was created to replace the implied consent statutes for blood and urine tests after the Minnesota and United States Supreme Courts held that testing of blood or urine without a warrant is unconstitutional, and the procedures in section 171.177 largely mirror those in the implied consent statutes. Thus, the Court of Appeals applies caselaw interpreting the related implied consent statutes to section 171.177.

The court look to Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275 (Minn. 1985), which held that complying with the warning requirement was necessary before a license could be revoked under the implied consent law. The court holds that an officer must have warned a driver as required under section 171.177, subd. 1, before the driver’s license may be revoked before a hearing under subd. 5. However, the court also suggests a number of other ways the commissioner could revoke Appellant’s license. Reversed and remanded to rescind Appellant’s prehearing revocation. Jensen v. Comm’r of Pub. Safety, 932 N.W.2d 844 (Minn. Ct. App. Sept. 3, 2019).

PUBLIC TRIAL

RIGHT APPLIES THROUGHOUT VOIR DIRE

A jury found Appellant guilty of aiding and abetting second-degree criminal sexual conduct, aiding and abetting kidnapping, and aiding and abetting second-degree assault. During jury selection, the district court closed the courtroom while individual jurors were questioned, at the State’s request. The courtroom remained closed throughout the remainder of voir dire, and 28 of 46 prospective jurors were individually questioned on a variety of topics.

The Minnesota and United States Constitutions confer upon all criminal defendants the right to a public trial. This right applies during all phases of trial, including voir dire of prospective jurors. Closure of a courtroom during criminal proceedings may be justified if: (1) the party seeking closure advances an overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary to protect that interest, (3) the district court considers reasonable alternatives to closing the proceeding, and (4) the district court makes findings adequate to support the closure. Here, the district court did not make findings concerning the reasons for closing the courtroom, the necessary breadth of the closure, or the existence or absence of reasonable alternatives. Thus, the Court of Appeals is unable to determine whether the closure was justified. The court finds the proper remedy is a remand for an evidentiary hearing and findings concerning whether the closure was justified. State v. Petersen, No. A18-1431, 2019 WL 4147598 (Minn. Ct. App. Sept. 3, 2019).

JURY INSTRUCTIONS

NO ERROR TO DENY COUNSEL’S REQUEST FOR NO ADVERSE INFERENCE JURY INSTRUCTION WHEN DEFENDANT IS ABSENT AND HAS NOT CONSENTED TO OR REQUESTED INSTRUCTION

On the second day of Appellant’s trial on charge of first- and second-degree criminal sexual conduct, he failed to appear. After excusing the jury and recessing to discuss jury instructions, the district court noted that Appellant’s counsel preferred to include a no-adverse-inference jury instruction. It was not known whether Appellant wanted the instruction, and the court ultimately did not give the instruction. The jury found Appellant guilty.

First, the Court of Appeals holds Appellant did not waive his challenge to the jury instructions through his voluntary absence at trial. Second, the court holds the district court did not err by denying Appellant’s counsel’s request for the no-adverse-inference instruction. The instruction must be given when requested by a defendant who did not testify at trial, but it should ordinarily not be given unless requested or personally consented to by the defendant. Here, there was no record of Appellant’s counsel conferring with him about the instruction or Appellant’s agreement to such an instruction, and Appellant was voluntarily absent when the instruction was requested. The court finds no error in the district court’s refusal to give a no-adverse-inference instruction. State v. Flah, No. A18-1758, 2019 WL 4251985 (Minn. Ct. App. Sept. 9, 2019).

HABEAS CORPUS

HABEAS RELIEF IS PROPER PROCEDURAL REMEDY FOR CHALLENGE TO CONTINUED INCARCERATION DURING CONDITIONAL RELEASE PERIOD

Appellant was convicted of third-degree criminal sexual conduct in 2008 and sentenced to three years’ imprisonment, stayed for 15 years, and a five-year conditional release term. The sentence was executed in 2013. He was placed on supervised release in January 2014, but supervised release was revoked in August 2014. Appellant’s supervised release term expired in February 2015 and he became eligible for conditional release. On his release date, Appellant was instead transferred to Blue Earth County jail because he did not have approved housing in Blue Earth County. He unsuccessfully searched for housing and his release was revoked for 90 days, and Appellant was returned to prison. This pattern continued, with Appellant being unable to find approved housing and his incarceration extended.

Appellant petitioned for a writ of habeas corpus, arguing the Department of Corrections unlawfully extended his incarceration after his conditional release term began. The Court of Appeals reversed, finding the Department of Corrections was required to provide assistance to Appellant in finding approved housing, and remanded to permit the Department to develop the record as to what other housing options were available, warning that, if no suitable options were available, the Department was required to consider restructuring the conditions of release.

Two days before the case was scheduled for a hearing before the district court, appellant was released to a residential sex offender treatment program in Hennepin County, Alpha House, and the DOC argued appellant’s release made Appellant’s habeas petition moot. The hearing proceeded and the district court ultimately granted appellant’s petition, ordering the Department to treat either Hennepin or Ramsey County as appellant’s presumptive release jurisdiction and, if either county declined to accept supervision, to provide supervision in that county or modify Appellant’s release conditions. The Court of Appeal reversed, finding appellant’s petition moot upon his release to Alpha House.

The Supreme Court reverses the Court of Appeals, finding Appellant’s release to Alpha House did not render his petition moot, that a writ of habeas corpus provides the proper procedural relief under the circumstances of this case, and that the Department failed to adhere to the law. Appellant’s petition is not moot because he could be returned to prison after his release from Alpha House, based on the likelihood that Hennepin County would not supervise Appellant and that Appellant would not be able to find approved housing.

Habeas relief is also the proper procedural remedy here. Minn. Stat. § 589.01 allows any person imprisoned or otherwise restrained of liberty to petition for a writ, and Appellant’s liberty was restrained by the Department’s failure to abide by its own internal policies regarding supervised release and judicial precedent.

Lastly, the Department failed to follow the law, specifically State ex rel. Marlowe v. Fabian, 755 N.W.2d 792 (Minn. Ct. App. 2008). The Court of Appeals in Marlowe stated that the Department “has an obligation to fashion conditions of release that are workable and not impossible to satisfy.” Id. at 793. The Supreme Court accepts the district court’s conclusion in this case that, contrary to Marlowe’s holding, the Department “never modifies offenders’ conditions of release.” The court upholds the district court’s order for the Department to “fully comply” with Marlowe. State ex rel. Ford v. Schnell, No. A17-1895, 2019 WL 4282040 (Minn. Sept. 11, 2019).