EN BANC CALENDAR

Before the Minnesota Supreme Court

December 2014

SUMMARY OF ISSUES

Summaries prepared by the Supreme Court Commissioner’s Office

Monday, December 1, 2014

Courtroom 300, Minnesota Judicial Center

Abshir Abtidon Barrow, Appellant vs. State of Minnesota, Respondent – Case No. A13-1520: Appellant Abshir Abtidon Barrow was a passenger in a vehicle driven by his wife when they were stopped by police. Barrow had just bought a small amount of cocaine for personal use. He handed the cocaine to his wife and told her to hide it. The police found the cocaine, and Barrow was charged with several drug-related offenses, including the unlawful “sale” of cocaine, a third-degree controlled substance crime. Barrow pled guilty to this offense in return for dismissal of the other charges and a favorable sentencing recommendation by the State. He testified at the plea hearing that he possessed the cocaine and that just before the traffic stop he gave the cocaine to his wife to hide for him. He also testified that he understood that the statutory definition of “sale” includes giving drugs to someone, even though no payment is received in return.

Barrow subsequently filed a petition for postconviction relief seeking to withdraw his guilty plea. He contended that the plea was invalid because the conduct he admitted did not meet the legal definition of a “sale.” He asserted there had been no sale because he had never relinquished constructive possession of the cocaine after giving it to his wife; and under State v. Carithers, 490 N.W.2d 620 (Minn. 1992), spouses who jointly acquire a controlled substance each have constructive possession of the substance and cannot be convicted of selling that substance to one another. The district court denied postconviction relief. The court of appeals affirmed.

On appeal to the supreme court, the issue presented is whether a person commits a “sale” of a controlled substance by handing the substance to another person, while maintaining constructive possession of the controlled substance, for the other person to hold and eventually return. (Rice County)

In re Petition for Disciplinary Action against Herbert Azubuike Igbanugo, a Minnesota Attorney, Registration No. 191139 – Case No. A13-2350: An attorney discipline matter that presents the question of what discipline, if any, is appropriate based on the facts of the matter.

Tuesday, December 2, 2014

Courtroom 300, Minnesota Judicial Center

In re the Matter of Dakota County, Appellant, Lorinda Elaine Floding vs. Darrell Ray Gillespie, Respondent – Case No. A13-1240: Respondent Darrell Gillespie and appellant Lorinda Floding are the parents of children who live with Floding. Gillespie makes child-support payments to assist with the support of the children. Gillespie became disabled and began receiving Social Security Retirement, Survivors, and Disability Insurance benefits. Gillespie informed Floding that she should apply to receive derivative Social Security benefits for the children, which she did. Beginning February 1, 2012, Floding began receiving derivative benefits on behalf of the children. Gillespie continued making the full child-support payment until July of 2012, when he moved to modify his child-support obligation.

Pursuant to Minn. Stat. § 518A.34(f) (2012), the district court ordered that Gillespie’s child-support obligation be prospectively reduced by the amount of the derivative benefits. The district court also addressed the “overage” payments made by Gillespie—that is, the amount to which the derivative benefits and actual child support benefit payments paid to Floding between February and July exceeded Gillespie’s pre-modification child-support obligation. The district court ruled that the overage would constitute an offset to Gillespie’s post-modification child-support obligation. The court of appeals affirmed.

On appeal to the supreme court, the issue presented is whether the overage should be treated as a reduction to Gillespie’s post-modification child-support obligation, or as a gratuity or windfall in favor of the children. (Dakota County)

State of Minnesota, Appellant vs. Michael David Franklin, Respondent – Case No. A13-1129: Appellant Michael Franklin pleaded guilty to fourth-degree sale of a controlled substance. At the sentencing hearing, the State asked the court to sentence Franklin under subdivision 4 of the career-offender statute, Minn. Stat. § 609.1095 (2012). Before a court may sentence an offender under subdivision 4, a factfinder must determine that the offender has five or more prior felony convictions, and that the present offense is a felony that was committed as part of a pattern of criminal conduct. After waiving his right to a Blakely jury, Franklin argued that he did not have five prior felony convictions because one of his earlier felony convictions had been deemed a misdemeanor pursuant to Minn. Stat. § 609.13, subd. 1(2) (2012). The district court found that Franklin has five prior felony convictions and sentenced him under the career-offender statute. The court of appeals affirmed.

On appeal to the supreme court the issue presented is whether a factfinder may use a prior felony conviction that has been deemed a misdemeanor pursuant section 609.13 when determining whether an offender has five more prior felony convictions for purposes of subdivision 4 of the career-offender statute. (Polk County)

Monday, December 8, 2014

Courtroom 300, Minnesota Judicial Center

Contractors Edge, Inc., Appellant vs. City of Mankato, Respondent – Case No. A14-0223: Appellant Contractors Edge sued respondent the City of Mankato on several theories. In October 2012, the district court entered an order granting partial summary judgment in favor of the City. Its memorandum explaining the order contained the language set out in Minn. R. Civ. P. 54.02: “There being no just reason for delay, let judgment be entered accordingly.” Neither the memorandum nor the order made reference to Rule 54.02, and neither party had requested certification pursuant to Rule 54.02.

The parties resolved the remaining issues in the case and final judgment was entered on January 6, 2014. Contractors Edge appealed, seeking review of the district court’s order on partial summary judgment. The court of appeals dismissed the appeal as untimely, ruling that the partial summary judgment was immediately appealable because it was certified as a final partial judgment pursuant to Minn. R. Civ. P. 54.02 and therefore the time to appeal began to run in October of 2012 and had expired.

On appeal to the supreme court, the issues include whether the district court properly certified the partial judgment as final pursuant to Rule 54.02 and whether Contractors Edge was required to appeal the final partial judgment directly in order to challenge the certification. (Blue Earth County)

State of Minnesota, Appellant vs. Paul Joseph Welle, Respondent – Case No. A13-0256: Respondent Paul Welle punched a man in the face outside of a bar. The man fell back, struck his head on the pavement, and died several days later without regaining consciousness. Welle told police he hit the man but said he did so in self-defense. Appellant the State of Minnesota charged Welle with second-degree unintentional murder and first-degree manslaughter. Welle filed notice that he would be asserting the defense of self-defense.

Prior to trial, the district court ruled that the State could offer evidence of Welle’s prior convictions for disorderly conduct, third-degree assault, and fifth-degree assault to rebut Welle’s claim of self-defense. With respect to each of these prior convictions, Welle had claimed he acted in self-defense or was otherwise provoked by the victim. Following a trial, the jury found Welle guilty of both counts. The court of appeals reversed Welle’s conviction.

On appeal to the supreme court, the issue presented is whether the district court abused its discretion by admitting evidence of Welle’s three prior convictions under Minn. R. Evid. 404(b) when the State asserted the evidence was relevant to rebut Welle’s current defense of self-defense because it established a common scheme or plan of falsely claiming to have acted in self-defense in prior assault cases. (St. Louis County)

Tuesday, December 9, 2014

Courtroom 300, Minnesota Judicial Center

Rochester City Lines, Co., Appellant vs. City of Rochester, et al., Respondents, First Transit, Inc., Respondent, and Daniel Holter vs. Michael Wojcik, Respondent – Case No. A13-1477: Appellant Rochester City Lines operated a fixed-route bus system in respondent City of Rochester beginning in 1966. In 2011, the City solicited bids for the franchise to operate the system. Rochester City Lines and respondent First Transit, among others, submitted bids in response to the City’s request for proposals. The City determined that First Transit’s proposal represented the “best value” for the city and awarded it the contract. Rochester City Lines sued, alleging among other things that the bid process was fatally flawed and biased against it. The district court granted summary judgment dismissing Rochester City Lines’ claims. The court of appeals affirmed.

On appeal to the supreme court, the issues presented are the proper standard of review for courts to apply to governmental entities’ application of “best-value” contracting practices, and whether the district court properly granted summary judgment dismissing Rochester City Lines’ claim that the bid process was flawed. (Olmsted County)

State of Minnesota, Respondent vs. Thomas Raymond Struzyk, Appellant – Case No. A13-0821: The State charged appellant Thomas Raymond Struzyk with fourth-degree assault. The assault charge was based on Minn. Stat. § 609.2231, subd. 1 (2012), which provides that whoever “physically assaults” a peace officer who is making a lawful arrest is guilty of a gross misdemeanor. The statute further states that if the person “intentionally throws or otherwise transfers bodily fluids” onto the officer, the person is guilty of a felony. The evidence at trial established that, when sheriff’s deputies tried to arrest Struzyk on an outstanding warrant, Struzyk assumed a fighting stance and told the officers they would need “an army” to take him into custody. One of the deputies shot Struzyk with a taser. Struzyk put his finger in the blood from one of the taser wounds and rubbed the blood from his finger onto the shirt of one of the deputies. The trial court denied Struzyk’s request to instruct the jury that the State must prove that Struzyk threw or transferred bodily fluids in a manner that constituted a physical assault, instead instructing the jury that it needed only to determine that he intentionally threw or transferred bodily fluid at or onto the officer in order to find Struzyk guilty. The jury returned a guilty verdict. The court of appeals affirmed.

On appeal to the supreme court, the issue presented is under Minn. Stat. § 609.2231, subd. 1, does a person commit a felony merely by transferring a body fluid onto a licensed peace officer, or must the transfer be accompanied by a physical assault? (Benton County)

Wednesday, December 10, 2014

Courtroom 300, Minnesota Judicial Center

State of Minnesota, Appellant vs. Cree Rae Larson, Respondent – Case No. A14-0128: On March 15, 2013, respondent Cree Larson drove her car into a stoplight pole without slowing down, pinning herself and her passenger in the car. Larson told emergency personnel she had been drinking. Eventually, both women were taken to the hospital. A police officer went to the hospital and read the implied-consent advisory to the then-unconscious Larson. The officer asked a nurse to perform a blood draw. Testing of Larson’s blood sample revealed an alcohol-concentration of 0.16.

Appellant State of Minnesota charged Larson with multiple gross-misdemeanors, including two counts of criminal vehicular operation and two counts of fourth-degree driving while impaired. Larson filed a motion to suppress the results of the blood test. She argued that the police had illegally taken her blood without a warrant in violation of Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013), which was decided after the police conducted the warrantless blood draw in her case. The district court granted the motion to suppress. The State filed a pretrial appeal, and the court of appeals affirmed.

On appeal to the supreme court, the issue presented is whether Minnesota should adopt the good-faith exception to the exclusionary rule articulated in Davis v. United States, __ U.S. __, 131 S. Ct. 2419 (2011). (Hennepin County)

State of Minnesota, Respondent/Cross-Appellant vs. Bonnie Ann Lindquist, Appellant/Cross-Respondent – Case No. 12-0599: Bonnie Lindquist was the driver of a car involved in a one-car accident. Lindquist left the scene of the accident. The police eventually located Lindquist at her home and noticed that she showed signs of intoxication. The police arrested Lindquist and brought her to a hospital, where a blood draw taken from Lindquist, and tested, revealed an alcohol-concentration of 0.23.

The State of Minnesota charged Lindquist with multiple offenses. Lindquist did not argue in the district court that her warrantless blood draw violated her Fourth Amendment rights. A jury found Lindquist guilty of two counts of third-degree driving while impaired. The court of appeals affirmed Lindquist’s conviction.

After the court of appeals affirmed Lindquist’s conviction, the United States Supreme Court issued its decision in Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). In a petition for review filed with the Minnesota Supreme Court, Lindquist sought to challenge her warrantless blood draw under McNeely. The Minnesota Supreme Court eventually remanded the matter back to the court of appeals to address Lindquist’s challenge to her warrantless blood draw. On remand, the court of appeals refused to consider the constitutionality of Lindquist’s warrantless blood draw because Lindquist did not challenge the legality of the search before the district court or in her direct appeal to the court of appeals.

On appeal to the supreme court, the following issues are presented: (1) whether Lindquist may challenge the warrantless draw of her blood under Missouri v. McNeely because her case was pending on direct review when McNeely was decided, McNeely announced a new rules of constitutional criminal procedure, and she did not forfeit review of the issue; and (2) whether Minnesota should adopt the good-faith exception to the exclusionary rule articulated in Davis v. United States, __ U.S. __, 131 S. Ct. 2419 (2011) (Aitkin County)

Thursday, December 11, 2014

Courtroom 300, Minnesota Judicial Center

Conga Corporation, d/b/a Conga Latin Bistro, Respondent vs. Commissioner of Revenue, Relator – Case No. A14-1042: Respondent Conga Corporation, which operates a restaurant, nightclub, and bar in Minneapolis, was audited by the Department of Revenue. The auditor determined that respondent’s records were insufficient or inaccurate, and therefore used an “indirect” audit method to determine respondent’s tax liabilities for the tax periods in question, 2007 to 2010. Following the audit of respondent’s sales and use tax returns, relator Commissioner of Revenue issued an order assessing additional taxes, penalties, and interest.

Respondent appealed the assessment to the Tax Court, arguing that the Commissioner made numerous errors in determining the tax liability. Following a trial, the Tax Court affirmed the Commissioner’s order with respect to 2007, but reversed the Commissioner’s order for the remaining tax periods.

On appeal to the supreme court, the issues include whether the Commissioner’s decision to conduct an “indirect” audit was proper, and whether the Tax Court applied the proper standard of review to the Commissioner’s order. (Minnesota Tax Court)

Nonoral: Michael Wayne, Appellant vs. State of Minnesota, Respondent – Case No. A14-0958: In 1987 a jury found appellant Michael Wayne guilty of first-degree murder, and he was sentenced to a mandatory term of life in prison. The supreme court affirmed his conviction on direct appeal. Wayne has since filed several unsuccessful petitions for postconviction relief.

Wayne filed the current petition in April of 2013, asserting that he was deprived of his right to effective counsel because he was not informed of certain plea agreements and/or negotiations between his counsel, the prosecutor, and the trial court, and that he was denied the right to be present for such negotiations. The district court dismissed the petition without a hearing, ruling that it was untimely under Minn. Stat. § 590.01, subd. 4 (2012), that the record did not support Wayne’s claim that the trial court and counsel conducted plea negotiations from which Wayne was excluded, and that the petition was barred by the rule of State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), that a post-conviction court will not consider claims which were raised or were known and could have been raised in a previous review of the conviction.

On appeal to the supreme court, the issues include whether the decisions in Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), provide a new interpretation of constitutional law that is retroactively applicable to Wayne’s case, which would justify an exception to the 2-year time requirement in the postconviction statute, and whether Wayne’s petition is barred by Knaffla. (Rice County)