EN BANC CALENDAR

 
State of Minnesota, Respondent vs. Daniel E. Jones, Appellant – Case No. A06-1719:  Appellant Daniel Jones was convicted of criminal sexual conduct, controlled substance crime, felony neglect of a child, and felony child endangerment and, in 2004, was sentenced for controlled substance crime and criminal sexual conduct, including an upward durational departure of 24 months from the presumptive sentence based on Jones’ failure to seek medical help for the child.  Jones was not sentenced for felony child neglect or for child endangerment.  On remand for resentencing under Blakely v. Washington, 542 U.S. 296 (2004), the district court imposed the same sentence, relying on the jury’s guilty verdicts on the felony child neglect and child endangerment counts to satisfy Blakely’s requirement that any fact that increases the penalty for a crime beyond the statutory maximum be submitted to a jury and proven beyond a reasonable doubt.  The court of appeals affirmed the upward durational departure.  The issues before the supreme court are:  (1) whether the district court erred in using an element of an unsentenced offense that was part of the same behavioral incident as the basis for an upward durational departure; and (2) whether the district court erred in imposing an upward durational departure (24 months) that was longer than the presumptive guideline sentence for either of the unsentenced offenses.  (Dakota County)

In re the Matter of the Decision of County of Otter Tail Board of Adjustment to Deny a Variance to Cyril Stadsvold and Cynara Stadsvold – Case No. A06-1696:  Cyril and Cynara Stadsvold obtained a site permit from Otter Tail County Land Resource Management for construction of a cabin and garage on Blanche Lake in Otter Tail County.  More than a year after construction was complete, it was discovered that the cabin and garage violated the required setbacks.  The Stadsvolds applied for a variance, which was denied by the Otter Tail Board of Adjustment.  The court of appeals affirmed.  The supreme court is asked to decide:  (1) whether an exemption for grandfathered non-conforming lots applies to the property; (2) whether the Stadsvolds were deprived of a fair and complete hearing before the Board of Adjustment when the board announced at the hearing that the Stadsvolds’ application for a variance after-the-fact would be treated no differently than an application before construction; and (3) whether the board’s use of a “hardship” standard, rather than a “practical difficulty” standard, made its denial of the requested variance arbitrary and capricious.  (Otter Tail County)
 
In re Continental Casualty Company and Continental Casualty Insurance Company, Petitioners.  Continental Casualty Company, et al., Appellants vs. 3M Company, Respondent, ACE Bermuda Insurance, Ltd., et al., Defendants, Transamerica Premier Insurance Company, n/k/a Fairmont Premier Insurance, Respondent - Case No. A07-784:  In 1987, the chief justice appointed a judge in Ramsey County “to hear and decide all matters, including all pretrial and trial proceedings, in all presently pending and future actions before Minnesota state trial courts, whether related to personal injury, death or property damage, that arise from or seek recovery for the manufacture, distribution, use or exposure to asbestos and asbestos-containing products.”  In 2007, Continental Casualty Company brought a declaratory judgment action in Hennepin County against its insured, 3M Company, and 3M’s other liability insurers, seeking to determine its liability and those of the other insurers for claims made against 3M for exposure to asbestos and other chemicals.  3M Company moved to transfer venue of the matter to Ramsey County.  The district court granted 3M’s motion, both under the 1987 order and in the interests of justice.  Continental Casualty then sought a writ of mandamus from the court of appeals to require the Hennepin County district court to retain jurisdiction over the matter.  The court of appeals denied Continental Casualty’s request for a writ of mandamus.  Two issues are before the supreme court:  (1) whether the district court erred in ruling that Continental Casualty’s declaratory judgment action must be transferred to Ramsey County under the 1987 order; and (2) whether the district court abused its discretion in determining that transfer of venue to Ramsey County would promote the convenience of witnesses and the interests of justice.  (Hennepin County)

State of Minnesota, Respondent vs. Derrick Holliday, Appellant – Case No. A07-538:  Appellant Derrick Holliday was convicted, after a court trial, of first-degree murder and attempted first-degree murder under the doctrine of “transferred intent,” under which a defendant is guilty of premeditated murder if he intends to kill one victim but accidentally kills another instead.  On appeal, Holliday presents the following issues for review:  (1) whether his convictions must be reversed because, although the district court made findings as to Holliday’s intent, it made no findings specifically as to premeditation; and (2) whether the admission of the unsworn and unrecorded statements of a witness made to police violated Holliday’s right to confront the witnesses against him, where at trial the witness did not remember making the statements.  (Hennepin County)
 
In re Petition for Disciplinary Action against David A. Overboe, a Minnesota Attorney, Registration No. 83318 – Case No. A07-259:  An attorney discipline matter that presents the issue of what discipline, if any, is appropriate based upon the facts of the case. 

In re Petition for Disciplinary Action against David Timothy Redburn, a Minnesota Attorney, Registration No. 212672 – Case No. A07-1590:  An attorney discipline matter that presents the issue of what discipline, if any, is appropriate based upon the facts of the case.
 
State of Minnesota, Respondent vs. David Michael Tscheu, Appellant – Case No. A06-2239:  Appellant David Tscheu was convicted by a jury of first-degree murder while committing criminal sexual conduct.  On appeal to the supreme court, Tscheu raises the following issues:  (1) whether the evidence was sufficient to convict him; (2) whether the state should have been required to give Tscheu advance notice that it intended to impeach him with his prior criminal convictions, and the district court should have been required to rule on the admissibility of the prior convictions, before Tscheu testified in his own defense; and (3) whether it was plain error for the district court to permit the introduction of certain hearsay testimony.  (Crow Wing County)

In the Matter of the Welfare of the Child of:  B.J.-M. and H.W., Parents – Case No. A07-272:  In January 2006, Hennepin County filed a petition to terminate the parental rights of mother B.J.-M. to her infant daughter on grounds that mother had not complied with the duties imposed by the parent-child relationship and was palpably unfit to parent.  The petition named H.W. as the alleged father of the child; H.W. and B.J.-M. later signed a recognition of parentage form.  The county amended its petition to acknowledge the recognition of parentage but did not explicitly seek termination of H.W.’s parental rights.  After a two-day trial, at which H.W. participated and was represented by counsel, the district court terminated the parental rights of both B.J.-M. and H.W.  The court of appeals affirmed.  At issue before the supreme court is whether a district court can terminate a parent’s rights in the absence of a petition that names the parent as a party and states the statutory grounds upon which termination is sought.  (Hennepin County)

EN BANC NONORAL:  Jacob Stephen Brown, petitioner, Appellant vs. State of Minnesota, Respondent – Case No. A07-1754:  Appellant pro se Jacob Brown pleaded guilty to first-degree murder and attempted first-degree murder.  Brown’s third petition to withdraw his plea argued that newly discovered evidence indicated he was mentally ill when he agreed to plead guilty.  The district court denied Brown’s petition without an evidentiary hearing, noting that Brown had unsuccessfully petitioned for post-conviction relief on grounds of lack of mental capacity to enter into a plea agreement.  Brown asks the supreme court to decide whether he should be permitted to withdraw his plea due to plain error and manifest injustice.  (Hennepin County)
 
In re the Marriage of:  Carol Bernice Baker, Respondent vs. Daniel Remember Baker, Appellant – Case No. A06-1252:  Appellant Daniel Baker and respondent Carol Baker were married in 1990 and divorced in 2005.  The district court ruled that the appreciation in Daniel Baker’s retirement accounts during the marriage was nonmarital property.  The district court also ruled that Daniel Baker’s payment of attorney fees during the marriage did not constitute dissipation of marital assets.  A divided court of appeals reversed the district court on both issues.  At issue before the supreme court are:  (1) whether increases in retirement accounts are marital property where the owner-spouse gives an investment advisor complete discretion over the accounts but retains the right to control the accounts and to withdraw funds from them; and (2) whether payment of attorney fees during the pendency of marital dissolution proceedings constitutes dissipation of marital assets.  (Ramsey County)

State of Minnesota, Respondent vs. Lanny David Green, Appellant – Case No. A06-218:  Appellant Lanny Green was convicted after a jury trial of criminal sexual conduct for digitally penetrating a four-year-old girl’s genitals.  During cross-examination of the investigator, Green’s counsel introduced a transcript of Green’s interview by the investigator.  According to the transcript, Green was asked “where just exactly did you put your two fingers,” and responded “Well I, oh I don’t know, I suppose in, I can’t remember if it was this way or that way.”  After trial, Green’s attorney compared the tape of Green’s statement to the transcript and learned that Green actually said, “Well I, oh I don’t know, I suppose um, I can’t remember if it was this way or that way.”  Green moved for a new trial; his motion was denied, the district court noting that Green clarified his comments to police in the same interview and the entire interview was heard by the jury.  The court of appeals affirmed.  The issue before the supreme court is whether the district court erred in denying Green a new trial.  (Watonwan County)