RECURRING SENTENCING ISSUES

Transcription

1 RECURRING SENTENCING ISSUES Scott A. Hersey Minnesota County Attorneys Association Criminal Justice Institute 2016

2 Sentencing Issues Can arise from the interpretation of the Minnesota Sentencing Guidelines, which are quite complicated and are changed regularly.

3 Sentencing Issues Can arise from the interpretation of the Minnesota Sentencing Guidelines, which are quite complicated and are changed regularly. Can arise from miscalculations of the criminal history score.

4 Sentencing Issues Can arise from the interpretation of the Minnesota Sentencing Guidelines, which are quite complicated and are changed regularly. Can arise from miscalculations of the criminal history score. Can arise from the record that was made at the plea hearing, the sentencing hearing, or postconviction hearings.

5 Sentencing Issues Can arise from the interpretation of the Minnesota Sentencing Guidelines, which are quite complicated and are changed regularly. Can arise from miscalculations of the criminal history score. Can arise from the record that was made at the plea hearing, the sentencing hearing, or postconviction hearings. Can arise from errors in the charging language or statutory citations in the complaint or indictment.

6 Consequences Some errors, even mutual mistakes, cannot be corrected since jeopardy has attached for prosecutors.

7 Consequences Some errors, even mutual mistakes, cannot be corrected since jeopardy has attached for prosecutors. Some required condition, such as supervised release, is not included in the plea, resulting in a different sentence than negotiated.

8 Consequences Some errors, even mutual mistakes, cannot be corrected since jeopardy has attached for prosecutors. Some required condition, such as supervised release, is not included in the plea, resulting in a different sentence than negotiated. An overlooked issue can result in claims of ineffective assistance of counsel.

9 Suggestions Create and use checklists for each type of hearing to make sure everything is covered and the record is complete. Ask court to address any matters that the court may have overlooked. Double check any documents generated from the hearing for accuracy before leaving the courtroom.

10 Five Sentencing Issues 1. When does a guilty plea become a conviction for purposes of double jeopardy and for determining the length of conditional release for sex offenders?

11 Five Sentencing Issues 1. When does a guilty plea become a conviction for purposes of double jeopardy and for determining the length of conditional release for sex offenders? 2. Are the Jones/Jackson restrictions on upward sentencing departures dead, and can overlapping facts be used?

12 Five Sentencing Issues 1. When does a guilty plea become a conviction for purposes of double jeopardy and for determining the length of conditional release for sex offenders? 2. Are the Jones/Jackson restrictions on upward sentencing departures dead, and can overlapping facts be used? 3. What does the new standard for determining jail credit mean?

13 Five Sentencing Issues 4. What are the correct factors that can be used for a dispositional versus a durational departure?

14 Five Sentencing Issues 4. What are the correct factors that can be used for a dispositional versus a durational departure? 5. Why use a Rule Subd. 9 motion to challenge a sentence as opposed to a postconviction petition?

15 1. Determining the Date of Conviction Does the date of an actual conviction matter after a guilty plea?

16 Determining the Date of Conviction Does the date of an actual conviction matter after a guilty plea? The Minnesota Supreme Court has emphatically said YES.

17 Determining the Date of Conviction Does the date of an actual conviction matter after a guilty plea? The Minnesota Supreme Court has emphatically said YES. It has held that double jeopardy can apply once a conviction takes place and mutual mistakes cannot be remedied.

18 Determining the Date of Conviction Does the date of an actual conviction matter after a guilty plea? The Minnesota Supreme Court has emphatically said YES. It has held that double jeopardy can apply once a conviction takes place and mutual mistakes cannot be remedied. It has held that the date of conviction can affect the length of conditional release.

19 State v. Thompson 754 N.W.2d 352 (Minn. 2008) Interpreted the definition of conviction in , subd. 5.

20 State v. Thompson Interpreted the definition of conviction in , subd. 5. It affected the length of conditional release of a sex offender under the old

21 State v. Thompson Interpreted the definition of conviction in , subd. 5. It affected the length of conditional release of a sex offender under the old A 10-year conditional release period applied if the current offense was a second or subsequent sex offense.

22 State v. Thompson Interpreted the definition of conviction in , subd. 5. It affected the length of conditional release of a sex offender under the old A 10-year conditional release period applied if the current offense was a second or subsequent sex offense. Defendant had three sex offenses pending.

23 State v. Thompson Defendant was given probation on all 3.

24 State v. Thompson Defendant was given probation on all 3. Defendant violated probation and was sentenced to prison.

25 State v. Thompson Defendant was given probation on all 3. Defendant violated probation and was sentenced to prison. The issue was whether he had a previous conviction for a sex offense when sentenced for the second and third crimes.

26 State v. Thompson Defendant was given probation on all 3. Defendant violated probation and was sentenced to prison. The issue was whether he had a previous conviction for a sex offense when sentenced for the second and third crimes. If so, his conditional release period was 10 years; if not, it was 5 years.

27 State v. Thompson The definition of second or subsequent offense at the time required an actual conviction for the prior crime before the date of offense of the second sex crime.

28 State v. Thompson The definition of second or subsequent offense at the time required an actual conviction for the prior crime before the date of offense of the second sex crime. The dates of the sex crimes were: 1 st offense: nd offense: rd offense:

29 State v. Thompson Defendant pleaded guilty to the first offense on and was sentenced for it on

30 State v. Thompson Defendant pleaded guilty to the first offense on and was sentenced for it on

31 State v. Thompson Defendant pleaded guilty to the first offense on and was sentenced for it on The issue was whether he was convicted on the date of his plea on for the first offense or on the date of his sentence on

32 State v. Thompson Defendant pleaded guilty to the first offense on and was sentenced for it on The issue was whether he was convicted on the date of his plea on for the first offense or on the date of his sentence on If convicted on the date of his plea, he would have a prior conviction for his third sex offense committed on

33 State v. Thompson While the judge at the first plea said he found a factual basis and was adjudicating the defendant guilty, he also said he would await the P.S.I. and sentencing to determine if he would accept the plea agreement.

34 State v. Thompson While the judge at the first plea said he found a factual basis and was adjudicating the defendant guilty, he also said he would await the P.S.I. and sentencing to determine if he would accept the plea agreement. The Supreme Court held that the defendant was not convicted until the sentencing hearing, when the judge accepted the agreement.

35 State v. Thompson Therefore the defendant had no prior convictions since all the offenses occurred before he had any convictions.

36 State v. Thompson Therefore the defendant had no prior convictions since the offenses occurred before he had any convictions. The shorter conditional release period applied.

37 State v. Martinez-Mendoza 804 N.W.2d 1 (Minn. 2011) Defendant pleaded guilty to Second Degree Crim Sex.

38 State v. Martinez-Mendoza Defendant pleaded guilty to Second Degree Crim Sex. Prosecutor, defense attorney and judge all thought that the presumptive sentence was 90 months in prison.

39 State v. Martinez-Mendoza Defendant pleaded guilty to Second Degree Crim Sex Prosecutor, defense attorney and judge all thought that the presumptive sentence was 90 months in prison. Defendant entered guilty plea; judge accepted the guilty plea and adjudicated Defendant guilty.

40 State v. Martinez-Mendoza Defendant pleaded guilty to Second Degree Crim Sex Prosecutor, defense attorney and judge all thought that the presumptive sentence was 90 months in prison. Defendant entered guilty plea; judge accepted the guilty plea and adjudicated Defendant guilty. Parties later learned presumptive sentence was 36 months stayed.

41 State v. Martinez-Mendoza State appealed on the grounds of mutual mistake.

42 State v. Martinez-Mendoza State appealed on the grounds of mutual mistake. Court of Appeals reversed the sentence on the grounds of mutual mistake.

43 State v. Martinez-Mendoza State appealed on the grounds of mutual mistake. Court of Appeals reversed the sentence on the grounds of mutual mistake. The Supreme Court reversed the Court of Appeals.

44 State v. Martinez-Mendoza State appealed on the grounds of mutual mistake. Court of Appeals reversed the sentence on the grounds of mutual mistake. The Supreme Court reversed the Court of Appeals. Using the definition of conviction the Court ruled that a trial court records a conviction upon accepting a plea and adjudicating a defendant guilty on the record.

45 State v. Martinez-Mendoza Defendant was therefore convicted upon the trial court accepting the plea and adjudicating him guilty.

46 State v. Martinez-Mendoza Defendant was therefore convicted upon the trial court accepting the plea and adjudicating him guilty. Double jeopardy attached at that moment.

47 State v. Martinez-Mendoza Defendant was therefore convicted upon the trial court accepting the plea and adjudicating him guilty. Double jeopardy attached at that moment. Rule precluded the State from appealing once jeopardy attached.

48 State v. Martinez-Mendoza Defendant was therefore convicted upon the trial court accepting the plea and adjudicating him guilty. Double jeopardy attached at that moment. Rule precluded the State from appealing once jeopardy attached. The probationary sentence of the trial court was affirmed.

49 State v. Jeffries 806 N.W.2d 56 (Minn. 2011) Defendant assaulted his girlfriend s teenage daughter.

50 State v. Jeffries 806 N.W.2d 56 (Minn. 2011) Defendant assaulted his girlfriend s teenage daughter. This was a felony due to two prior domestic assaults.

51 State v. Jeffries 806 N.W.2d 56 (Minn. 2011) Defendant assaulted his girlfriend s teenage daughter. This was a felony due to two prior domestic assaults. A plea agreement was reached and Defendant entered a guilty plea to the charge.

52 State v. Jeffries 806 N.W.2d 56 (Minn. 2011) Defendant assaulted his girlfriend s teenage daughter. This was a felony due to two prior domestic assaults. A plea agreement was reached and Defendant entered a guilty plea to the charge.

53 State v. Jeffries 806 N.W.2d 56 (Minn. 2011) Defendant assaulted his girlfriend s teenage daughter. This was a felony due to two prior domestic assaults. A plea agreement was reached and Defendant entered a guilty plea to the charge. The judge accepted the plea and adjudicated Defendant guilty.

54 State v. Jeffries When the judge saw the P.S.I., he told Defendant his record looked a lot worse than the judge thought it was.

55 State v. Jeffries When the judge saw the P.S.I., he told Defendant his record looked a lot worse than the judge thought it was. The judge told Defendant: I am giving your pleas back. So you are not guilty.

56 State v. Jeffries When the judge saw the P.S.I., he told Defendant his record looked a lot worse than the judge thought it was. The judge told Defendant: I am giving your pleas back. So you are not guilty. Parties renegotiated an agreement with a harsher sentence

57 State v. Jeffries When the judge saw the P.S.I., he told Defendant his record looked a lot worse than the judge thought it was. The judge told Defendant: I am giving your pleas back. So you are not guilty. Parties renegotiated an agreement with a harsher sentence. Judge accepted the new agreement and sentence; committed Defendant to prison.

58 State v. Jeffries Defendant appealed.

59 State v. Jeffries Defendant appealed. Court of Appeals affirmed and held Defendant waived double jeopardy by pleading a second time.

60 State v. Jeffries Defendant appealed. Court of Appeals affirmed and held Defendant waived double jeopardy by pleading a second time. Supreme Court reversed.

61 State v. Jeffries Defendant appealed. Court of Appeals affirmed and held Defendant waived double jeopardy by pleading a second time. Supreme Court reversed. Court held there was no waiver of double jeopardy rights.

62 State v. Jeffries Defendant appealed. Court of Appeals affirmed and held Defendant waived double jeopardy by pleading a second time. Supreme Court reversed. Court held there was no waiver of double jeopardy rights. Court said that trial judge could have postponed acceptance of the plea to the time of sentencing.

63 State v. Jeffries The Court said that trial court had not done that.

64 State v. Jeffries The Court said that trial court had not done that. The Court said that by accepting the first plea and adjudicating Defendant guilty at the plea hearing, Defendant stood convicted at that time.

65 State v. Jeffries The Court said that trial court had not done that. The Court said that by accepting the first plea and adjudicating Defendant guilty at the plea hearing, Defendant stood convicted at that time. Double jeopardy applied; the second sentence was void.

66 State v. Jeffries The Court said that trial court had not done that. The Court said that by accepting the first plea and adjudicating Defendant guilty at the plea hearing, Defendant stood convicted at that time. Double jeopardy applied; the second sentence was void. The Court held that a court records a plea by accepting it and adjudicating on the record.

67 State v. Nodes 863 N.W.2d 77 (Minn. 2015) Defendant sexually assaulted two children, a 5 year-old and a 3 year-old, on separate dates.

68 State v. Nodes Defendant sexually assaulted two children, a 5 year-old and a 3 year-old, on separate dates. Both offenses were charged in a single complaint.

69 State v. Nodes Defendant sexually assaulted two children, a 5 year-old and a 3 year-old, on separate dates. Both offenses were charged in a single complaint. Defendant pleaded guilty to both charges at a single hearing.

70 State v. Nodes Defendant sexually assaulted two children, a 5 year-old and a 3 year-old, on separate dates. Both offenses were charged in a single complaint. Defendant pleaded guilty to both charges at a single hearing. Judge deferred accepting the plea until sentencing, after the P.S.I. was done.

71 State v. Nodes At sentencing, the judge accepted the pleas and adjudicated Defendant guilty of both offenses.

72 State v. Nodes The judge said: I will now formally accept the pleas, and on count one adjudicate him guilty of criminal sexual conduct in the first degree, a felony, in violation of [statutory cite] on or abut February 26, 2013, and also on count three, criminal sexual conduct in the second degree, a felony, in violation of [statutory cite] on or about March 19, 2013.

73 State v. Nodes The judge said: I will now formally accept the pleas, and on count one adjudicate him guilty of criminal sexual conduct in the first degree, a felony, in violation of [statutory cite] on or abut February 26, 2013, and also on count three, criminal sexual conduct in the second degree, a felony, in violation of [statutory cite] on or about March 19, The court imposed two 10-year conditional release periods, but declined to impose lifetime conditional release on the second offense.

74 State v. Nodes Lifetime conditional release is required for a sex conviction involving a commitment to prison when an offender has a prior or previous sex offense conviction.

75 State v. Nodes Lifetime conditional release is required for a sex conviction involving a commitment to prison when an offender has a prior or previous sex offense conviction. The definition of previous sex offense conviction in , subd. 1(f) still requires a conviction for a sex offense before the date of commission of the next or current offense.

76 State v. Nodes Lifetime conditional release is required for a sex conviction involving a commitment to prison when an offender has a prior or previous sex offense conviction. The definition of previous sex offense conviction in , subd. 1(f) still requires a conviction for a sex offense before the date of commission of the next or current offense. But the definition of prior sex offense conviction does not require a conviction before the date of offense of the next or current offense.

77 State v. Nodes Under Minn. Stat , subd. 1(g), A conviction is considered a prior sex offense conviction if the offender was convicted of committing a sex offense before the offender has been convicted of the present offense, regardless of whether the offender was convicted of the first offense before the commission of the present offense, and the convictions involved separate behavioral incidents.

78 State v. Nodes The district court ruled that two sex convictions entered at the same time would not call for lifetime conditional release on the second conviction; the Court of Appeals affirmed.

79 State v. Nodes The district court ruled that two sex convictions entered at the same time would not call for lifetime conditional release on the second conviction; the Court of Appeals affirmed. The Supreme Court reversed.

80 State v. Nodes The district court ruled that two sex convictions entered at the same time would not call for lifetime conditional release on the second conviction; the Court of Appeals affirmed. The Supreme Court reversed. The Supreme Court ruled that the moment the district court adjudicated Defendant on the first count, he had a prior sex offense conviction for the purposes of the second count.

81 State v. Nodes The district court ruled that two sex convictions entered at the same time would not call for lifetime conditional release on the second conviction; the Court of Appeals affirmed. The Supreme Court reversed. The Supreme Court ruled that the moment the district court adjudicated Defendant on the first count, he had a prior sex offense conviction for the purposes of the second count. The Court stated that there was no particular temporal gap needed between the convictions.

82 State v. Nodes Therefore the Supreme Court ruled that the lifetime conditional release period applied if Defendant were committed to prison.

83 2. Are the Jones/Jackson restrictions on upward sentencing departures dead, and can overlapping facts be used? In 2008, the Minnesota Supreme Court significantly restricted upward sentencing departures in two decisions, State v. Jones, 745 N.W.2d 845 (Minn. 2008) and State v, Jackson, 749 N.W.2d 353 (Minn. 2008).

84 2. Jones/Jackson Restrictions on Upward Sentencing Departures The Court essentially ruled that the facts supporting an upward departure had to show that the offender committed the offense being sentenced in a particularly serious way, and that if the facts supported an uncharged offense or another offense of conviction from the same behavioral incident, they could not be used for a departure.

85 State v. Jones 745 N.W.2d 845 (Minn. 2008) Defendant was indicted for Third Degree Murder, Criminal Sexual Conduct in the Third Degree, Third Degree Controlled Substance Crime, and Felony Neglect and Endangerment.

86 State v. Jones 745 N.W.2d 845 (Minn. 2008) Defendant was indicted for Third Degree Murder, Criminal Sexual Conduct in the Third Degree, Third Degree Controlled Substance Crime, and Felony Neglect and Endangerment. At trial, Defendant was convicted of all charges except Third Degree Murder.

87 State v. Jones 745 N.W.2d 845 (Minn. 2008) Defendant was indicted for Third Degree Murder, Criminal Sexual Conduct in the Third Degree, Third Degree Controlled Substance Crime, and Felony Neglect and Endangerment. At trial, Defendant was convicted of all charges except Third Degree Murder. Defendant and the three others used methamphetamine at Defendant s home, which included the 16 year-old female victim.

88 State v. Jones They all went to a party at a different home.

89 State v. Jones They all went to a party at a different home. Victim showed signs of an overdose from the meth.

90 State v. Jones They all went to a party at a different home. Victim showed signs of an overdose from the meth. Defendant told others he would take her back to his house and take care of her.

91 State v. Jones They all went to a party at a different home. Victim showed signs of an overdose from the meth. Defendant told others he would take her back to his house and take care of her. The limo driver who drove Defendant and victim back to the house had to carry victim in; she was incoherent and soaked in sweat.

92 State v. Jones They all went to a party at a different home. Victim showed signs of an overdose from the meth. Defendant told others he would take her back to his house and take care of her. The limo driver who drove Defendant and victim back to the house had to carry victim in; she was incoherent and soaked in sweat. When the two others returned to Jone s home hours later, she wasn t breathing.

93 State v. Jones The two others rushed the victim to a hospital, but she died of the meth overdose.

94 State v. Jones The two others rushed the victim to a hospital, but she died of the meth overdose. Investigation showed that she had been sexually assaulted and the DNA from the sexual assault exam matched Defendant.

95 State v. Jones The two others rushed the victim to a hospital, but she died of the meth overdose. Investigation showed that she had been sexually assaulted and the DNA from the sexual assault exam matched Defendant. Sentencing judge imposed an upward durational departure on the sex offense, based on the fact that Defendant was the only person who could help her and his neglect of her medical condition caused her death.

96 State v. Jones Blakeley was decided by the U.S. Supreme two months after sentencing.

97 State v. Jones Blakely was decided by the U.S. Supreme Court two months after sentencing. The Court of Appeals remanded the case to the trial court for sentencing in compliance with Blakely.

98 State v. Jones Blakely was decided by the U.S. Supreme Court two months after sentencing. The Court of Appeals remanded the case to the trial court for sentencing in compliance with Blakely. Trial court ruled that the facts necessary for Blakely were established by the jury verdicts for Felony Neglect and Endangerment.

99 State v. Jones Blakely was decided by the U.S. Supreme Court two months after sentencing. The Court of Appeals remanded the case to the trial court for sentencing in compliance with Blakely. Trial court ruled that the facts necessary for Blakely were established by the jury verdicts for Felony Neglect and Endangerment. The Court of Appeals affirmed the district court s re-sentencing and compliance with Blakely.

100 State v. Jones The Supreme Court reversed, and held that facts underlying one conviction could not be used to support a departure on a sentence for a separate conviction.

101 State v. Jones The Supreme Court reversed, and held that facts underlying one conviction could not be used to support a departure on a sentence for a separate conviction. The Court said that the neglect and endangerment verdicts did not show that Defendant s conduct in the sexual crime was significantly more serious than that involved in the typical crime.

102 State v. Jones The Supreme Court s ruling substantially limited upward departure s by strictly compartmentalizing the facts of the same behavioral incident to the elements of the sentenced offense.

103 State v. Jones The Supreme Court s ruling substantially limited upward departure s by strictly compartmentalizing the facts of the same behavioral incident to the elements of the sentenced offense. The Court reaffirmed this holding in another case that same year, State v. Jackson.

104 State v. Jackson 749 N.W.2d 353 (Minn. 2008) In Jackson, two people broke into the house of an elderly man and robbed him, during which he was severely beaten, later suffering a heart attack.

105 State v. Jackson In Jackson, two people broke into the house of an elderly man and robbed him, during which he was severely beaten, later suffering a heart attack. Jackson was convicted of First Degree Aggravated Robbery.

106 State v. Jackson In Jackson, two people broke into the house of an elderly man and robbed him, during which he was severely beaten, later suffering a heart attack. Jackson was convicted of First Degree Aggravated Robbery. After a Blakely hearing, the trial court imposed a double upward departure on the robbery count.

107 State v. Jackson In Jackson, two people broke into the house of an elderly man and robbed him, during which he was severely beaten, later suffering a heart attack. Jackson was convicted of First Degree Aggravated Robbery. After a Blakely hearing, the trial court imposed a double upward departure on the robbery count. The court based the departure on the severity of the injuries and the invasion of the zone of privacy.

108 State v. Jackson The Supreme Court ruled that the injuries would have constituted the offense of Assault in the Third Degree, which was not charged.

109 State v. Jackson The Supreme Court ruled that the injuries would have constituted the offense of Assault in the Third Degree, which was not charged. The Court said that even if it had been charged, no penalty for that offense could be imposed due to Minn. Stat , since it was the same course of conduct.

110 State v. Jackson The Supreme Court ruled that the injuries would have constituted the offense of Assault in the Third Degree, which was not charged. The Court said that even if it had been charged, no penalty for that offense could be imposed due to Minn. Stat , since it was the same course of conduct. The also said that the zone of privacy was encompassed in the crime of burglary and burglary was not charged here.

111 State v. Jackson The Supreme Court ruled that the injuries would have constituted the offense of Assault in the Third Degree, which was not charged. The Court said that even if it had been charged, no penalty for that offense could be imposed due to Minn. Stat , since it was the same course of conduct. The also said that the zone of privacy was encompassed in the crime of burglary and burglary was not charged here. The upward departure was reversed.

112 State v. Jackson Justice Gildea dissented and cogently argued that the interpretation of the Guidelines by the Court effectively eliminated the well-established departure grounds of particular cruelty and zone of privacy.

113 State v. Edwards 774 N.W.2d 596 (Minn. 2009) In Edwards, the Supreme Court began the process of distancing itself from the Jones/Jackson rule that limited the facts available for upward departures.

114 State v. Edwards In Edwards, the Supreme Court began the process of distancing itself from the Jones/Jackson rule the limited the facts available for upward departures. The careful analysis of this issue in Edwards makes it recommended reading.

115 State v. Edwards Holding: Accordingly, we conclude that when a defendant is convicted of several offenses involving multiple victims arising out of a single behavioral incident, a sentencing court may use overlapping facts of those offenses as the basis for an upward departure, provided those facts show that the defendant committed the offense being sentenced in a particularly serious way.

116 Minn. Stat , subd. 5a(b) This statute was enacted in 2009, the year after the Jones and Jackson decisions were filed.

117 Minn. Stat , subd. 5a(b) This statute was enacted in 2009, the year after the Jones and Jackson decisions were filed. It appears to be a direct legislative response to those decisions.

118 Minn. Stat , subd. 5a(b) This statute was enacted in 2009, the year after the Jones and Jackson decisions were filed. It appears to be a direct legislative response to those decisions. In Tucker v. State, 799 N.W.2d 583, 593 (Minn. 2011), Justice Anderson stated in a concurring opinion that the legislature statutorily overruled Jackson when it adopted this statute.

119 Minn. Stat , subd. 5a(b) This statute was enacted in 2009, the year after the Jones and Jackson decisions were filed. It appears to be a direct legislative response to those decisions. The Supreme Court later stated in State v. Hicks, 864 N.W.2d 153 (Minn. 2015) that the statute limited the impact of caselaw that had restricted the grounds on which a departure could be based.

120 Minn. Stat , subd. 5a(b) The statute reads: Notwithstanding section or , or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.

121 State v. Fleming 869 N.W.2d 319 (Minn. App. 2016) In Fleming the Court of Appeals relied on the Supreme Court s decision in Edwards and Subd. 5a(b).

122 State v. Fleming 869 N.W.2d 319 (Minn. App. 2016) In Fleming the Court of Appeals relied on the Supreme Court s decision in Edwards and Subd. 5a(b). It held that the trial court properly imposed an upward departure for the crime of an Ineligible Person in Possession of a Firearm when the defendant fired a gun six times at another person in a busy public park.

123 State v. Fleming In Fleming the Court of Appeals relied on the Supreme Court s decision in Edwards and Subd. 5a(b). It held the the trial court properly imposed an upward departure for the crime of an Ineligible Person in Possession of a Firearm when the defendant fired a gun six times at another person in a busy public park. The defendant was also convicted of Assault in the Second Degree arising from the same course of conduct.

124 State v. Fleming The Supreme Court granted review in Fleming on , and briefing and oral arguments have been completed.

125 State v. Fleming The Supreme Court granted review in Fleming on , and briefing and oral arguments have been completed. We are awaiting the Supreme Court s decision and its determination as to the breadth of Edwards and Minn. Stat , subd. 5a(b).

126 State v. Fleming The Supreme Court granted review in Fleming on ; briefing and oral arguments have been completed. We are awaiting the Supreme Court s decision and its determination as to the breadth of Edwards and Minn. Stat , subd. 5a(b). Presumably the Court will decide if a district court has discretion as to which crime in a course of conduct it will apply overlapping facts to impose an upward sentencing departure.

127 3. JAIL CREDIT-- WHAT DOES THE NEW STANDARD MEAN?

128 Appellate courts were inundated with jail credit cases in the late 1980 s and early 1990 s.

129 Appellate courts were inundated with jail credit cases in the late 1980 s and early 1990 s. It appears that the courts were tired of the myriad of situations where jail credit was claimed and the nuances that they raised which seemed to defy any bright line rule.

130 Appellate courts were inundated with jail credit cases in the late 1980 s and early 1990 s. It appears that the courts were tired of the myriad of situations where jail credit was claimed and the nuances that they raised which seemed to defy any bright line rule. They brought the hammer down in 1994 in State v. Fritzke, with a fairly simple rule that generously granted jail credit.

131 State v. Fritzke 521 N.W.2d 859 (Minn. App. 1994) Fritzke was arrested in Dakota County for a felony theft in December of 1992, and released.

132 State v. Fritzke Fritzke was arrested in Dakota County for a felony theft in December of 1992 and released. He was not sentenced until June 21, 1993.

133 State v. Fritzke Fritzke was arrested in Dakota County for a felony theft in December of 1992 and released. He was not sentenced until June 21, In the meantime, he was arrested, charged and convicted in Ramsey County for another felony theft, for which he was sent to prison.

134 State v. Fritzke Fritzke was arrested in Dakota County for a felony theft in December of 1992 and released. He was not sentenced until June 21, In the meantime, he was arrested, charged and convicted in Ramsey County for another felony theft, for which he was sent to prison. Fritzke requested jail credit against the June 21, 1993 sentence in Dakota County for all the time that he spent in custody from the Ramsey County arrest and conviction.

135 State v. Fritzke The Dakota County court granted Fritzke credit from the date the Dakota County Complaint was filed, not for all the time related to the Ramsey offense.

136 State v. Fritzke The Dakota County court granted Fritzke credit from the date the Dakota County Complaint was filed, not for all the time related to the Ramsey offense. The Court of Appeals noted that since the defendant was not in custody after the Dakota County arrest, the prosecution there was under no time constraint to file its complaint.

137 State v. Fritzke The Dakota County court granted Fritzke credit from the date the Dakota County Complaint was filed, not for all the time related to the Ramsey offense. The Court of Appeals noted that since the defendant was not in custody after the Dakota County arrest, the prosecution there was under no time constraint to file its complaint. The court stated that a defendant need not show manipulation by the prosecution to get jail credit.

138 State v. Fritzke The Court held: When there is probable cause to charge a defendant, however, and the time constraints of Rule 4.03 do not apply, the date on which the complaint is filed is subject to manipulation by the prosecutor. Thus, a defendant is entitled to credit for all time spent in custody following arrest, including time spend in custody on other charges, beginning on the date the prosecution acquires probable cause to charge the defendant with the offense for which he or she was arrested. 521 N.W.2d at

139 State v. Fritzke Everyone thought this pretty much ended the jail credit appeals.

140 State v. Fritzke Everyone thought this pretty much ended the jail credit appeals. It basically did for 18 years.

141 State v. Fritzke Everyone thought this pretty much ended the jail credit appeals. It basically did for 18 years. There was no petition for review; Fritzke was the standard until 2012 when the Supreme Court weighed in.

142 State v. Clarkin 817 N.W.2d 678 (Minn. 2012) Clarkin had been in prison until April of 2008 for stabbing his ex-girlfriend.

143 State v. Clarkin 817 N.W.2d 678 (Minn. 2012) Clarkin had been in prison until April of 2008 for stabbing his ex-girlfriend. Between July 11 and 13, 2008, various acts of vandalism occurred by someone spray painting the houses of his ex-girlfriend and her father.

144 State v. Clarkin 817 N.W.2d 678 (Minn. 2012) Clarkin had been in prison until April of 2008 for stabbing his ex-girlfriend. Between July 11 and 13, 2008, various acts of vandalism occurred by someone spray painting the houses of his ex-girlfriend and her father. Clarkin was arrested on a supervised release violation and no acts of vandalism occurred while he was incarcerated.

145 State v. Clarkin Clarkin had been in prison until April of 2008 for stabbing his ex-girlfriend. Between July 11 and 13, 2008, various acts of vandalism occurred by someone spray painting the houses of his ex-girlfriend and her father. Clarkin was arrested on a supervised release violation and no acts of vandalism occurred while he was incarcerated. When he was released, the vandalism resumed and increased

146 State v. Clarkin Clarkin was arrested and charged with the multiple acts of vandalism on November 24, 2009, convicted, and sent to prison.

147 State v. Clarkin Clarkin was arrested and charged with the multiple acts of vandalism on November 24, 2009, convicted, and sent to prison. He later filed a petition for postconviction relief, asserting that he was entitled to credit against the vandalism charges for the time that he spent in prison on the supervised release violation from a separate conviction.

148 State v. Clarkin The trial court denied the jail credit and the Court of Appeals affirmed.

149 State v. Clarkin The trial court denied the jail credit and the Court of Appeals affirmed. The Supreme Court accepted review, and affirmed the Court of Appeals, but on a different ground.

150 State v. Clarkin The trial court denied the jail credit and the Court of Appeals affirmed. The Supreme Court accepted review, and affirmed the Court of Appeals, but on a different ground. The Court concluded that the Fritzke case was wrongly decided, and stated that to the exent that it conflicted with a previous decision of the Supreme Court in State v. Folley, 438 N.W.2d 372, it was overruled.

151 State v. Clarkin The Court held that the Folley decision better met the needs of the prosecution, defendants, and the Courts and reaffirmed the principle that it had announced in Folley in 1989.

152 State v. Clarkin The Court held that the Folley decision better met the needs of the prosecution, defendants, and the Courts and reaffirmed the principle that it had announced in Folley in The Folley principles were: the withholding of jail credit does not result in a de facto departure with respect to consecutive service.

153 State v. Clarkin The Court held that the Folley decision better met the needs of the prosecution, defendants, and the Courts and reaffirmed the principle that it had announced in Folley in The Folley principles were: the withholding of jail credit does not result in a de facto departure with respect to consecutive service. neither indigency nor whether the defendant pleads guilty or insists on a trial should affect whether jail credit is given.

154 State v. Clarkin The Court held that the Folley decision better met the needs of the prosecution, defendants, and the Courts and reaffirmed the principle that it had announced in Folley in The Folley principles were: the withholding of jail credit does not result in a de facto departure with respect to consecutive service. neither indigency nor whether the defendant pleads guilty or insists on a trial should affect whether jail credit is given. the total amount of time a defendant is incarcerated should not turn on matters that are subject to manipulation by the prosecutor.

155 State v. Clarkin The Court held: [We]reaffirm the principles we outlined in Folley. We conclude that an award of jail credit is appropriate for time spent in custody after the date when (1) the State has completed its investigation in a manner that does not suggest manipulation by the State, and (2) the State has probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged.

156 State v. Clarkin The Court held: [We]reaffirm the principles we outlined in Folley. We conclude that an award of jail credit is appropriate for time spent in custody after the date when (1) the State has completed its investigation in a manner that does not suggest manipulation by the State, and (2) the State has probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged. The Court denied the jail credit since the State had not yet completed its investigation into the numerous acts of vandalism and harassment during the Ramsey County incarceration.

157 State v. Clarkin What does the phrase probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged mean?

158 State v. Clarkin What does the phrase probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged mean? Evidence sufficient to provide a reasonable likelihood of actually convicting of the crimes charged by necessity incorporates the standard of proof beyond a reasonable doubt.

159 State v. Clarkin What does the phrase probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged mean? Evidence sufficient to provide a reasonable likelihood of actually convicting of the crimes charged by necessity incorporates the standard of proof beyond a reasonable doubt. That in turn includes not only the specific facts of a case and when they are discovered or obtained, but judgment of the prosecutor handling the case.

160 State v. Clarkin What does the phrase probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged mean? Evidence sufficient to provide a reasonable likelihood of actually convicting of the crimes charged by necessity incorporates the standard of proof beyond a reasonable doubt. That in turn includes not only the specific facts of a case and when they are discovered or obtained, but judgment of the prosecutor handling the case. But the fact that the court announced this new test and incorporated a reasonableness standard makes it clear that the courts will be the ultimate arbiters.

161 4. Factors that support dispositional versus durational departures

162 Most upward sentencing departures are litigated

163 Most upward sentencing departures are litigated They require significant preparation

164 Most upward sentencing departures are litigated They require significant preparation The Blakely decision and the promulgation of Minn. R. Crim. P. 7.03, 11.04, subd. 2, and Minn. Stat , Subd. 5, 5a, 6 and 7 place significant responsibilities on the prosecution before an upward sentencing departure can be sought.

165 Both aggravating and mitigating factors for sentencing departures are listed in the Minnesota Sentencing Guidelines, and caselaw.

166 Both aggravating and mitigating factors for sentencing departures are listed in the Minnesota Sentencing Guidelines, and caselaw. Minn. Stat Subd. 5a also contains a list of aggravating factors.

167 Both aggravating and mitigating factors for sentencing departures are listed in the Minnesota Sentencing Guidelines, and caselaw. Minn. Stat subd. 5a also contains a list of aggravating factors. A resort to applicable caselaw is necessary to determine which factors apply to dispositional departures as opposed to durational departures.

168 State v. Chaklos 528 N.W.2d 225 (Minn. 1995) Chaklos rear-ended a car on Highway 42 near Prior Lake, while having an alcohol concentration of.25 and while driving with no insurance.

169 State v. Chaklos 528 N.W.2d 225 (Minn. 1995) Chaklos rear-ended a car on Highway 42 near Prior Lake, while having an alcohol concentration of.25 and while driving with no insurance. The passenger in the other vehicle was killed and the driver suffered substantial bodily harm.

170 State v. Chaklos 528 N.W.2d 225 (Minn. 1995) Chaklos rear-ended a car on Highway 42 near Prior Lake, while having an alcohol concentration of.25 and while driving with no insurance. The passenger in the other vehicle was killed and the driver suffered substantial bodily harm. The trial court imposed consecutive prison sentences for the CVH and CVO.

171 State v. Chaklos While it assumed without deciding that the consecutive sentence for the CVO was a dispositional departure, the Supreme Court upheld the departure.

172 State v. Chaklos While it assumed without deciding that the consecutive sentence for the CVO was a dispositional departure, the Supreme Court upheld the departure. The Court said that, As a general rule, the offender-related factor of particular unamenability to treatment in a probationary setting may be used to justify a dispositional departure in the form of execution of a presumptively-stayed sentence but may not be used to support an upward durational departure.

173 State v. Chaklos It follows from the Court s leading case on amenability to probation, State v. Trog, 323 N.W.2d 28 (Minn. 1982), that a defendant s particular amenability to probation will justify a downward dispositional departure and probation.

174 State v. Chaklos It follows from the Court s leading case on amenability to probation, State v. Trog, 323 N.W.2d 28 (Minn. 1982), that a defendant s particular amenability to probation will justify a downward dispositional departure and probation. The Court also said that offense-related aggravating factors may be used to support not only an aggravated dispositional departure but, alternatively, an upward durational departure.

175 State v. Behl 573 N.W.2d 711 (Minn. App. 1998) In Behl, the Court said that as to the duration of a sentencing departure, the court must analyze the act compared with other acts constituting the same offense.

176 State v. Behl 573 N.W.2d 711 (Minn. App. 1998) In Behl, the Court said that as to the duration of a sentencing departure, the court must analyze the act compared with other acts constituting the same offense. It added that as to duration, a court must not focus on a defendant s amenability or speculate about future conduct or background

177 State v. Lalli 338 N.W.2d 419 (Minn. 1983) The Court held that a district court is not barred from using the same aggravating factors to justify both a durational and a dispositional departure in the same case.

178 State v. Misquadace 644 N.W.2d 65 (Minn. 2002) Here the Supreme Court held that a plea agreement alone will not support a sentencing departure without a finding by the district court that the agreement is supported by aggravating or mitigating circumstances.

179 5. Why use a Rule 27.03, subd. 9 motion to challenge a sentence, as opposed to a postconviction petition?

180 Minn. R. Crim. P , subd. 9 states that the court may at any time correct a sentence unauthorized by law.

181 Minn. R. Crim. P , subd. 9 states that the court may at any time correct a sentence unauthorized by law. Minn. Stat allows a person convicted of a crime to file a petition for postconviction relief to vacate the judgment if the conviction or sentence violated rights under the Constitution or laws of the United States or of the state.

182 It also allows a petition if scientific evidence not available at trial and obtained by a motion under the statute establishes the person s actual innocence.

183 It also allows a petition if scientific evidence not available at trial and obtained by a motion under the statute establishes the person s actual innocence , subd. 2 also states that it takes the place of any other common law, statutory, or other remedy for challenging the conviction, sentence, or disposition and must be used exclusively in place of them unless inadequate to test the legality of the proceeding.

184 State v. Knaffla 309 Minn. 246, 243 N.W.2d 737 (1976) The Supreme Court held that where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.

185 State v. Knaffla Two exceptions to Knaffla permit review: (1) if a novel legal issue is presented; (2) if the interests of justice require review. Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005).

186 590.01, subd. 4 has fairly strict time limits: No petition for postconviction relief can be filed more than two years after the later of 1. The entry of judgment of conviction or sentence if no direct appeal is filed, or 2. An appellate court s disposition of petitioner s direct appeal. But a court can hear a petition later than that as long as it is filed within two years that the claim arises, if:

187 1. A physical disability or mental disease precluded a timely assertion of the claim

188 1. A physical disability or mental disease precluded a timely assertion of the claim 2. The petition asserts the existence of newly discovered evidence that could not have been discovered within the two-year period by the exercise of due diligence, and the evidence is not cumulative, is not for impeachment, and establishes by clear and convincing evidence that petitioner is innocent of the crimes of conviction.

189 1. A physical disability or mental disease precluded a timely assertion of the claim 2. The petition asserts the existence of newly discovered evidence that could not have been discovered within the two-year period by the exercise of due diligence, and the evidence is not cumulative, is not for impeachment, and establishes by clear and convincing evidence that petitioner is innocent of the crimes of conviction. 3. The petition asserts a new interpretation of federal or state constitutional or statutory law by the United States Supreme Court or a Minnesota appellate court that is applicable retroactively.

190 4. The petitioner was sentenced before May 1, 1980 (the date the Sentencing Guidelines were effective) and asserts the a significant change in substantive or procedural law occurred that in the interest of justice should be applied retroactively.

191 4. The petitioner was sentenced before May 1, 1980 (the date the Sentencing Guidelines were effective) and asserts the a significant change in substantive or procedural law occurred that in the interest of justice should be applied retroactively. 5. The petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice. Rule 27.03, subd. 9 does not contain any of the foregoing restrictions, time limits or burdens of proof that does.