State of Minnesota v. Dylan Micheal Kelley

269 offenses defining it involves criminal when Minnesota, establishing Respondent, criminal sentences. STATE of Osterloh, 578, 580

State v. (Minn.1978) (“Determination of what con a criminal offense and the duct constitutes Dylan KELLEY, Appellant. Micheal imposed to be ... punishment ought judicial peculiarly legislative is a not a No. A12-0993. (quoting

function.” State ex rel. Ahern v. Supreme Court of Minnesota. 243, 141 15, 240, Young, 273 Minn. N.W.2d Moilen, (1966))); 17 State v. 140 Minn. Oct. (“It (1918) 346 N.W. Legislature province

the exclusive of crime, acts ...

declare what constitute a impose appropriate the same and

prohibit thereof”). a violation

penalties for “judicial

Squarely scope within the of however, is the to sever an

power,” power provision and enforce

unconstitutional remaining portions

those of the statute do not violate the United or States

Minnesota Constitutions. See State v.

Barker, (Minn.2005); N.W.2d Shattuck,

(Minn.2005); see also State v. Melchert-

Dinkel, determining

(setting guidelines forth permissible

when it is to sever the uncon statute). portions

stitutional of a That is requires

what Minnesota Constitution phrased

us to do here. Whether terms

of or of statutory revival severance remedy

unconstitutional provisions,

the same: we must declare the heinous- applied

crimes as statute unconstitutional Ali and remand the case to the district impose

court with instructions to sen possibility

tence of life with the of release. problem Blakely re constitutional under v. Wash ment to the United States Constitution ington, quires by jury, those facts to be found 301-04, (2004). judge. statutory If maxi 124 S.Ct. 2531. Of L.Ed.2d 403 Id. course, applicability Blakely depends hypothetical mum the is life court’s statute statute, possibility years, specific wording which with the of release after 30 on the why Legislature, impose and additional facts must be found to is another reason LWOR, court, a sentence of then Sixth Amend not this must amend the statute.

appeals grant requested could relief under Minn. P. 31.02 R.Crim. because the plainly instruction violated the newly announced rule in State v. (Minn.2012).2 N.W.2d 789 The court of conviction, appeals Kelley’s affirmed con- cluding liability the accomplice instruction error, given was but that he was not enti- tled to relief Rule 31.02 under because the law was the time of unsettled at the error and did not settled in become favor of Kelley until the of appeal. time We con- clude Rule 31.02 not limited to errors that were time of trial. In- stead, it includes errors are based on law, which although unsettled at the time error, was in favor settled Swanson, Attorney General, Lori James appellate defendant at the time of review.3 General, B. Early, Attorney Assistant Nevertheless, alleged because in Paul, MN; Miller, Saint Philip and K. Kelley’s this case did not affect substantial County Attorney, MN, Benton Foley, for rights, we affirm modified. as respondent. victim, S.A., The told police at a St. Colbert, Legal Bradford Assistance to hospital Cloud he was assaulted and Prisoners, Paul, MN, Minnesota Saint robbed early two men morning appellant. hours of 2011. January police The in- case, vestigated and S.A. identified OPINION Kelley as one of Kelley his attackers. was DIETZEN, charged first-degree arrested and with ag- Justice. gravated robbery in violation of Minn.Stat. Appellant Dylan Kelley Micheál was 609.245, (2012), § subd. 1 and third-degree guilty by found Benton County jury a and 609.223, assault in § violation of Minn.Stat. convicted accomplice as an to first-degree (2012). subd. 1 aggravated robbery and third-degree as- sault.1 Kelley appealed trial, his first-degree At presented the State evidence aggravated robbery conviction to the court that on January S.A. went to the appeals, friend, of requesting B.G., a new trial apartment based on his St. Cloud. an unobjected-to jury arrived, instruction on ac- When S.A. having par- B.G. was a complice He liability. ty claimed the court of and there were approximately twenty 26.03, Kelley challenging only 19(4)(b) (stat- 1. first-degree his Minn. R.Crim. P. subd. aggravated robbery ing party’s objection conviction. jury instruc- grounds”). specific tions “must state Kelley object giving did trial to the court instruction, accomplice liability jury but 3.Minnesota Rule Criminal Procedure ground not on that the applies posttri- instruction failed 31.02 to review and explain "intentionally aiding” subsequent al phrase element motion. Our use of the liability. of accomplice Kelley opinion therefore con- "time of review” this rule, cedes simply that the rather than the reflects the fact that this case is before rule, appropriate. harmless-error appeal. us on direct At apartment. point, jury Kelley at the some found people guilty of both in getting S.A. told B.G. he was interested offenses. Subsequently, the district court marijuana and was directed toward judgment some entered of conviction for first- Dylan Kelley. approached Kelley, S.A. degree aggravated robbery and third-de- buy gree and told him he could some assault and him sentenced to the marijuana from a friend. S.A. drove Kel- presumptive sentence of 58 months. house, ley Kelley pur- to the friend’s and affirmed, appeals The court of even marijuana gave chased the it to S.A. it though concluded that the accomplice complained inadequate S.A. that it was an liability given instruction to the marijuana, Kelley respond- amount of legally erroneous because it failed to ex- bring the ed that his friend would rest plain the “intentionally aiding” element of apartment. B.G.’s accomplice liability as required by State v. Kelley’s apart- friend arrived at B.G.’s (Minn.2012), evening, ment later that and told S.A. that which was Kelley’s decided after conviction Kelley wanted to see him outside. S.A. but before he filed his brief. agreed approached Kelley, who was Kelley, 451-52 leaning parked into the window of car. (Minn.App.2013). But the court further Kelley quickly turned around and hit S.A. concluded the error was not plain because Kelley’s in the face. friend held S.A. from at the obligation time of the Kelley repeatedly behind and hit S.A. in the district explain court to the “intention- ground, the face. S.A. fell the When ally aiding” accomplice liability element of they they both kicked him. After kicked was unsettled and did not become settled S.A. the face and fractured five of his in favor of Kelley appeal. until the time of teeth, Kelley S.A. lost consciousness. and Id. at 456-57. cigarettes, lighter, his friend stole S.A.’s phone, keys. cell and car Subsequently, I. S.A. regained consciousness and returned Kelley argues that the accomplice apartment to the and those present told liability given instruction jury the

what happened. S.A. later discovered that first-degree aggravated offense of rob wallet, $240, his which contained about was bery accurately failed to state the law. missing from his car. S.A. was taken to Kelley acknowledges object that he did the hospital morning for treatment. basis, to the specific instruction on this and At the close of the evidence State therefore we review the instruction for requested that the district court instruct plain error. jury accomplice liability. Kelley argued that in- accomplice liability requirements ap The three that an given struction should not be pellant satisfy plain-error because he must under the charged as a and principal was not doctrine were first articulated in United Olano, charged aiding abetting. Kelley with States v. 507 113 U.S. 1770, (1993), further argued that the State had not of- 123 L.Ed.2d 508 S.Ct. States, any fered evidence commit- regarding who later clarified Johnson v. United 461, 1544, 466-67, ted the crime or who aided and 117 S.Ct. 137 (1997). adopted abetted. The district court overruled Kel- L.Ed.2d 718 those We Griller, ley’s objection accomplice requirements and the standard 583 State (Minn.1998). 736, liability jury given instruction was to the 740 N.W.2d Under doctrine, jury. appellant must plain-error 274 (1) (2) error;

show that there was a manner that can be by understood (3) plain; the error must affect jury. Scruggs, State v. 822 N.W.2d Griller, rights. substantial 583 N.W.2d at (Minn.2012). 642 Johnson, (citing 740 520 U.S. at 117 Accomplice liability by is defined statute 1544). appellant S.Ct. If the satisfies the (2012). § in Minn.Stat. 609.05 The statute prongs first three doc provides: trine, may only “we correct the error if it fairness, Subdivision 1. ‘seriously Aiding, abetting; lia- integrity, affeet[s] public bility. person or A reputation judicial proceed criminally hable for a Crowsbreast, ings.’” State v. 629 N.W.2d crime committed another if per- Johnson, 437 (quoting aids, advises, hires, son intentionally 1544); U.S. at accord counsels, Gril conspires or with or otherwise ler, 583 N.W.2d at 740. We consider each procures the other to commit the crime. doctrine in turn. Subd. 2. Expansive liability. A per- doctrine,

Under the son liable under subdivision is also an “error” is a legal from a any “[deviation liable for other crime committed in rule [ unless the rule has ] been waived.”4 pursuance of the intended crime if rea- Olano, 732-33, sonably person foreseeable as a instructions, In the jury context of a dis probable consequence committing or trict court has broad discretion. State v. attempting to commit the crime intend- Anderson, (Minn. ed. 2010). But a district court abuses that Id. The statute does not define the phrase if jury confuse, discretion its instructions “intentionally aids.” The district court mislead, materially or misstate the law. gave the standard accomplice liability jury (Minn. State v. Vang, instruction.5 2009); Moore, (Minn.2005). In State v. argued We review the in defendant

structions as a to for'the appeal whole determine whether first time on that an instruc- the accurately instructions state the law in tion accomplice liability legally was er- discussing prong advised, hired, plain- counseled, the first intentionally of the con- rule, error the Supreme United States with, Court spired procured or otherwise the oth- important has drawn an distinction between it, person er to commit the defendant is also waiver, explaining forfeiture and that "forfei- guilty any of other person crime the other ture” is timely "the failure to make a asser- trying commits while to commit the intend- right" tion of a whereas "waiver” is the "in- crime, ed if that other crime was reason- relinquishment tentional or abandonment of a ably prob- foreseeable to the defendant as a Olano, right.” known 507 U.S. at consequence trying able of to commit the (internal quotation omitted). S.Ct. 1770 marks intended crime. crime, guilty The defendant is of a howev- 5. The accomplice liability jury standard in- er, only person if the other commits struction states: crime. The defendant is not liable crimi- guilty The defendant is of a crime com- nally aiding, advising, hiring, counsel- person mitted another when the defen- ing, conspiring, procuring or otherwise the intentionally dant has per- aided the other crime, crime, it, commission of a unless some committing son in intentionally or has advised, hired, including counseled, attempt, actually with, committed. conspired Ass’n, procured Judges or person otherwise Minn. Dist. the other Minnesota Prac- to Guides, Criminal, commit it. Jury Instruction tice— intentionally (5th If the defendant ed.2006). aided an- CRIMJIG 4.01 crime, person other committing or plain-error of the prong the district court did doctrine estab because roneous knowingly find that he require jury lishing plain the the error was at the time of to commit intentionally aided another where the law was appeal unsettled at robbery. 821 aggravated N.W.2d trial but settled favor of a defendant (Minn.2012). explained that We during pendency appeal. of the requirement was un- regarding law such a (Minn.2002). 105, 113 Specifically, previous our discussions settled because we considered whether the district court’s in the con- “intentionally aiding” had been unobjeeted-to jury instruction that Baird claims, sufficiency-of-the-evidence text of duty had a to retreat from his home before Id. adequacy jury instructions. not the using against self-defense a co-resident accomplice that an at 807. We concluded constituted an error that was for the explain must that the liability instruction of the purposes doctrine. Id. aiding requires element intentionally acknowledged that at the time We a reasonable doubt beyond find regarding duty Baird’s the law alleged knew his ac- the defendant retreat was unsettled. Id. at 109 n. 2. commit a crime and complice going was pending While Baird’s before or presence the defendant intended his appeals, the court of the law became set of that actions to further the commission tled in Baird’s favor due to our decision in af- crime. Id. at 808. We nevertheless Glowacki, conviction, explaining firmed Milton’s (Minn.2001), which held that there is no he failed to establish an error that was duty to retreat from one’s own home be plain. Id. at 807. using against fore self-defense a co-resi liability in accomplice The instruction on Baird, dent. 654 N.W.2d at 112. intentionally explain this case failed to concluded in Baird that We required by as aiding element Indeed, the State is determined at the time of re- therefore was error. Kelley concedes that has satisfied first view the law was unsettled at the when doctrine. prong time of the error but settled in favor of the ap- during pendency defendant II. directly peal. quoted Id. at 113. We from “ dispute The crux of the is whether satisfy stating that the sec- ‘[t]o Griller plainness of the error is examined at it is doctrine] ond [of or at the time of the district court’s error sufficient that the error is at the time ” review. ar the time of Griller, appeal.’ (quoting the Id. 583 error is determined at the gues plain that 741). applied plain-at- at the We the State appellate time of review and announced in the-time-of-appeal rule Gril- plain counters that error is determined ler, and held that Glowacki’s “[b]ecause court’s error. For the time of district duty-to-retreat ... holding rendere[d] follow, we conclude that the reasons that given instruction in error at Baird’s trial at the time of plain error is determined obvious, plain.” the error [was] clear and appellate review. Id. A. plain-at- in Baird on the Our reliance Baird, rule announced in Gril- the-time-of-appeal In State v. we considered wheth and reasonable.6 Be- satisfy er a could the second ler was well-founded defendant that the Admittedly, in was not whether a defendant could establish the issue Griller Supreme cause we reversed the conviction based on The United States Court in — States, error, Henderson v. United U.S. plain prong our discussion of each (2013) -, 1121, 185 133 S.Ct. L.Ed.2d 85 was doctrine essential to recently reaffirmed the plain-at-the-time- decision, our and therefore dicta. See Henderson, rule. of-appeal the defen State, Carlton appealed ground dant his sentence on the (Minn.2012) (explaining the statement in plainly that the district court erred in sen question was “dicta” because the resolu- months, tencing prison him to a term of 60 question necessary tion of the was not which upward depar was an durational holding). our ultimate ture, participate so that Henderson could analysis upon Our in relied Griller John- in prison drug program. rehabilitation son, to ex- U.S. S.Ct. at -, Id. at 1125. S.Ct. At the time plain plain explained error. We sentence, of the split circuits were whether the sentence proper, was and the Johnson, States Su- [i]n [United circuit in which defendant was sentenced preme] Court considered whether (the Circuit), Fifth had not ruled on the plain error was when at the time of trial -, issue. Id. at 133 S.Ct. at 1125. correctly the district court stated the While the Henderson appeal, case was on law, but later that same law became the Supreme Tapia Court decided v. Unit based during incorrect on a case decided States, -, ed appeal. The Court concluded that to (2011), concluding 180 L.Ed.2d 357 that a satisfy prong the second it is sufficient imposes lengthens court errs when it or that the error is at the time of the prison sentence solely for rehabilitative appeal. — Henderson, at -, purposes. Griller, 583 applied N.W.2d at 741. We at 1125. S.Ct. Griller, analysis concluding the Johnson in decision, In a 6-3 the Henderson Court Pendleton, which re “[u]nder was Johnson, extended concluding regard leased after Griller’s conviction and while less of legal question whether appeal, his case was on the defense-of- trial, settled or unsettled at the time of error, dwelling given instruction is now second doctrine is plain.” and thus the error is Id. In other satisfied if the error is at the time of

words, the court in Griller concluded that at -, review. Id. the plain-at-the-time-of-appeal applies rule 1130-31. The Court reasoned that assess when a district correctly states the ing the error at the time of appellate re law at the time of but later that same view the general advances rule “that an law becomes incorrect based on a case apply court must the law in ef during decided appeal. fect at the time it renders its decision.”7 (Minn. 1997). Griller, error was at the time of the N.W.2d 265 N.W.2d at 741. where the law was unsettled at trial but settled during pendency favor of a defendant agree plain-at-the-time-of-ap 7. We that the Instead, appeal. issue Griller peal approach principle furthers the basic satisfy was whether the defendant could the appellate apply that "an the must law in plainness requirement where the district effect at the time it renders its decision.” jury appeared court’s instruction to be a cor - Henderson, -, at U.S. 133 S.Ct. at rect statement of the law at the time of trial 1129; Co., see also Interstate Power Inc. v. but became an incorrect statement of the law Comm'rs, Cnty. Nobles Bd. of during pendency appeal the of due to our (Minn.2000) ("The general 575 rule is Pendleton, intervening decision in State appellate apply courts law as it exists -, Griller, at (citing 741; Id. at 133 S.Ct. late review. 583 N.W.2d at Durham, Auth. Thorpe Johnson, v. Hous. 464-67, see 520 U.S. at 117 S.Ct. of 268, 281, 89 21 L.Ed.2d 474 U.S. S.Ct. 1544. The third is when the law is unset (1969)). Moreover, plain-at-the-time- tled at the time of the district court’s error is consistent with the of-appeal approach and the law has become settled in the doctrine, plain-error pro of the to purpose defendant’s favor at the appellate time of exception to the for vide fairness-based Baird, 113; review. 654 N.W.2d at see at -, feiture doctrine. Id. at S.Ct. — Henderson, at -, U.S. 133 S.Ct. at Additionally, distinguish 1127-28. to 1128-31. harshly treat more cases where the law at trial but then in was unsettled settled conclude purposes We that for of apply- during pendency favor of a defendant ing doctrine the court ex- (the Henderson-scenaño), appeal of the the law in existence at amines the time of versus cases where the law was settled review, appellate not the law in existence trial against the defendant at but then error, at the time of.the district court’s in changed during the defendant’s favor determine whether plain. an error is Our (the pendency of the Johnson- supported by our in conclusion decision scenario), simply promote argu “would Baird and Supreme the U.S. deci- Court’s ments about whether the law of the circuit sion in Additionally, Henderson. our con- -, was unclear.” Id. at at simplifies clusion the law adopting a Thus, in Court Henderson de unified standard for the scenarios dis- regardless termined that of whether an Olano, Johnson, in cussed and Henderson. error made under settled or unsettled law, long “plain” as as the error is at the We next review whether the review, appellate “plain” time of it is given instruction in this case plainly purposes doctrine. Id. Kelley erroneous. was convicted 8 months at -, 133 S.Ct. at 1130-31. before we decided and therefore sum, we have previously deter the district comply court’s failure to with plain mined that error is determined as of the Milton rule was not at the time the time appellate review in three cir Nevertheless, Kelley’s conviction. Kel cumstances. The first circumstance is ley his appeals filed brief the court of when settled law is the same at the decided, after Milton was and therefore time of trial appellate review. State v. comply district court’s failure to with Dobbins, (Minn.2006); the Milton rule was at the time of Olano, 730-34, see appellate review. Because the failure 1770. The second is when the law is set comply with the Milton rule was tled at the time of trial and the settled law review, has been reversed appel appellate as the time of the time of has case, they prong, at the time rule on a even if the law determine under the "error” first changed has case.”). since a lower court ruled on the would examine law in effect at the time of review, plain-at-the-time-of-appeal ap but to determine whether proach bright-line temporal "plain" is a rule that is the error was under the second straightforward application. prong, in its In con we would examine the law in effect at trast, Further, explained, as the Court Henderson the time of the error. we would plain-at-the-time-of-trial approach at the is more examine the circumstances existence requires complex cumbersome and time of review to determine whether "play temporal ping-pong.” court to a kind of the defendant has satisfied the third and at -, Specifically, prongs Id. 133 S.Ct. at 1128. fourth doctrine. ” Olano, plain- tion to determine it.’ 507 U.S. at satisfied the second (quoting 113 S.Ct. 1770 Yakus v. error doctrine. States, 414, 444, 64 United 321 U.S. S.Ct. B. (1944)); see State v. 88 L.Ed. 834 also (Minn. concurrence contends we should Williams, The adopt plain-at-the-time-of-trial rule on 2011) (explaining ordinarily that do “[w]e grounds the that it is most consistent with not raised for the first time consider issues doctrine, plain-error purpose the appeal, on even when those issues are State, Rairdon v. 557 N.W.2d 318 that questions proce constitutional of criminal (Minn.1996), a conclusion that supports challenges dure or are to the constitution actually “we have never decided which statute”); Goodloe, ality of a State v. plain-at-the-time-of-trial plain-at- or (explain 422 n. 6 rule — the-time-of-appeal under Rule ing that the term “forfeiture” most accu —controls 31.02,” that Milton and are and rately failing described the effect of situated, similarly giving and therefore bring alleged an error to the attention of Kelley the benefit of the Milton rule would court). the district The forfeiture doctrine follow, unfair. For the reasons that be encourage trial reflects the “need to all arguments by that the asserted conclude fair participants to seek a and accurate the concurrence lack merit. We will dis- trial the first time around.” United States argument cuss each in turn. Young, 470 U.S. 105 S.Ct. (1985) (citation omitted) (inter L.Ed.2d 1 alleges The concurrence first omitted); quotation nal marks accord plain-at-the-time-of-trial rule is most con- Ramey, purpose sistent with the of the plain-error (Minn.2006). differently, Put the forfei doctrine, which the concurrence claims encourages ture doctrine defendants to ob “provides incentive for criminal defen- ject any while in the district court so that trial object by limiting dants to errors can be corrected before their full unpreserved review of errors on impact is realized. making discretionary,” relief “raises unpreserved bar for relief based on doctrine serves errors,” “discourages strategic very purpose: providing different a means withholding objections gain in order to remedy courts to forfeited proverbial ‘second bite at the apple’ errors. The doctrine was first C-3, appeal.” The concur- C-4. Infra Supreme articulated States United argument upon rence’s rests the mistaken States, Wiborg Court in v. United premise doctrine (1896). 632, 16 1127, 41 L.Ed. 289 purpose serves the same as the common- Wiborg, request the defendants failed to law argument forfeiture doctrine. The jury “that be instructed to find for lacks merit. defendants.” Id. at [the] Wiborg explained

The doctrines of forfeiture and 1127. The Court purposes although error have different instruction issue “was court], guided by yet are the trial principles. properly different Under raised [in “ doctrine, forfeiture ‘a constitutional if a error was committed in a matter sort, defendants, right,’ right any ‘may absolutely or a other be so vital to we feel forfeited in criminal civil cases liberty as well as ourselves at to correct it.” Id. The timely holding Wiborg the failure to make assertion of was later memo Court’s 52(b). right having jurisdic before a tribunal rialized in See Fed. Fed.R.Crim.P. 52(b) explained error doctrines and advisory committee because R.Crim.P. judicial! rigid undeviating appli- “[a] ]” Federal Rule of Criminal notes—1944. 52(b) cation of the forfeiture doctrine “would be “A error that Procedure reads: harmony with ... out of rules of fun- may be consid rights affects substantial 52(b) justice,” damental Fed.R.Crim.P. re- brought to the though even it was ered 52(b). appellate power flects an court’s “limited attention.” Fed.R.Crim.P. court’s 52(b) to correct errors were forfeited be- enable the of Rule is “to purpose The timely cause not raised in district er court.” prejudicial to review appeals courts of (citation 731-32, 507 U.S. at 113 S.Ct. 1770 may of any miscarriage justice so that rors omitted) (internal quotation marks omit- Young, 470 U.S. at 15 n. be thwarted.” ted). omitted) (internal (citation 105 S.Ct. 1038 omitted). A serious mis quotation marks sum, it is well established that justice occurs when the error carriage forfeiture and doctrines are fairness, or “seriously integrity affects the competing purposes based on the of en- judicial proceedings.”

public reputation objections at couraging timely trial and Olano, 507 at 113 S.Ct. 1770 U.S. providing appellate courts a means to rem- (internal (citation omitted) quotation The edy unobjected-to errors. concur- omitted). Based on marks Fed.R.Crim.P. correctly points plain-at- rence out that the 52(b),8 Minn. P. promulgated R.Crim. encourages timely the-time-of-trial rule ob- 31.02, that a provides “[pjlain which jections argument at trial. But that affecting right can be consid a substantial neither relevant nor material because the for new ered the court on motion purpose of the doctrine is to motion, or on even if it posttrial provide appellate a means for an court to the trial court’s atten brought was not remedy unobjected-to errors. P. 31.02.

tion.” Minn. R.Crim. only plain-at-the-time-of-ap is the Not has Supreme The States Court United rule a better rule for allow pellate-review observed, doctrine of “The unobject- court to correct ing appellate 52(b) Procedure Federal Rule of Criminal errors, but it also is more consistent ed-to rigid application of a tempers the blow Supreme with the United States Court’s contemporaneous-objection require- analysis prong plain- of the second Young, 470 at ment.” U.S. Johnson, in error doctrine (quoted Ramey, in State v. 117 S.Ct. 1544. Our discussion (Minn.2006)). The Court analysis of the second Johnson Court’s 52(b) Rule Young explained further review of the is informed brief encourage the “need to carefully Olano, balances decision in Court’s trial to seek a fair and participants all alleged error Ola- 113 S.Ct. 1770. against trial the first time around accurate both at the time of trial and no was review, be injustice insistence that obvious and there [the] at the time of Young, redressed.” 470 U.S. at have announced the promptly fore the Court could omitted) (inter- (citation proposed by 105 S.Ct. 1038 rule the concurrence —the omitted). Later, only satisfied when the quotation plainness prong nal marks Olano, the time of trial and the emphasized compet- error is Court But plain- time of review. the Court ing purposes of the forfeiture ("Rule 52(b)”). R.Crim. P. 8. See Minn. R.Crim. P. 31 cmt.-1990 (Plain Error) F[ed.] 31.02 comes from instead observed that it “need not consider unless the error is clear under the at law review, special appellate case where the error was un the time of the Court clear at the time of trial but becomes clear considered the Government’s argument appeal applicable satisfy plainness prong, because the law has that to an 734, “plain” been clarified.” Id. at 113 S.Ct. 1770. error must be both at the time of ultimately appel appellate The held that an trial and at the time of Court review. late “cannot correct an error ... Id. acknowledged court The Court that such a certainly encourage timely unless the error is clear under current rule would ob added).9 in (emphasis Keeping jections questioned law.” Id. in the trial court but it Olano, in analysis objections rulings mind the we consider an the usefulness of that important plainness plainly by clarification to the were supported existing prece 467-68, Supreme made the United States dent. Id. at 117 1544. S.Ct. ultimately in rejected Court Johnson. Court the Govern argument, ment’s which demonstrates that Johnson, the Court considered for an appellate power court’s address the first time a situation in which the law injustice manifest is not limited to cases changed the time trial between of and recognized where a trial court should have appellate review. U.S. at and sua sponte unobjected-to corrected an S.Ct. 1544. The issue in Johnson was Indeed, error. held in Court “that whether the district court committed case such as this —where the law at the perjury error at the defendant’s trial when time of trial was settled clearly con court, jury, rather than the determined trary to the law at the time of is—it that the statement issue was “material.” enough an ‘plain’ that error be at the time Id. At the time of near unanimous 468, 117 appellate consideration.” Id. at precedent in the circuits held that S.Ct. 1544. question materiality was for judge decide, but before the case was appeal analysis Because the Court’s in Johnson ed, Supreme Court decided United demonstrates appellate that an court’s Gaudin, States v. power U.S. injustice to address a manifest (1995), L.Ed.2d 444 concluding not limited to where cases a trial court question materiality recognized must be should have and corrected the Johnson, jury. submitted to the error parties’ help, without the it substan 468 n. 1. The tially Court noted that undercuts the argu “[i]n concurrence’s the case with which we are today, plain-at-the-time-of-trial faced ments. The rule the error is certainly clear under ‘current is incompatible with Johnson it because ’ law, but it was no means clear at the appellate power limits an court’s to ad time of trial.” Id. at injustice 117 S.Ct. 1544 dress a manifest to cases where added). (emphasis Having clarified that recognized trial court should have an appellate court cannot correct sponte unobjected-to an error sua corrected an err 9. The rule announced in Olano was that misconduct was not "clear” or "obvious” where the law is unsettled both at the time of "conclusively where no court had resolved” review, trial and the time of Crowsbreast, question); the issue in State v. may not exercise limited its (Minn.2001) (explaining remedy unobjected-to discretion to errors un- continuing regarding doubt the control- 52(b). applied der Rule We have the Olano ling against plain- law cut the defendant’s See, e.g., rule on several occasions. argument it because confirmed that the Jones, (Minn.2008) (ex- plain). error was not plaining unobjected-to prosecutorial that the sum, argument the concurrence’s the context of discussing or.10 In Rairdon’s rule is plain-at-the-time-of-trial delay seeking review that we said: purpose more consistent with the proper standard for overturning “[T]he merit it doctrine lacks because murder convictions is found in Rairdon’s plain- purpose mischaracterizes the precedent existing at the time of his con ignores error doctrine United viction.” Importantly, Id. we did not de decision in Supreme States Court’s John cide Rairdon whether the error was son, 461, 117 1544. S.Ct. Instead, plain. we affirmed the district postconviction court’s denial of relief based upon Additionally, the concurrence relies prong on the third Rairdon, 323, doc language in 557 N.W.2d at trine, which requires showing a that the actually “we never de- allege to that have alleged error affected plain-at-the-time-of-trial cided which the defendant’s sub rule — rights. stantial plain-at-the-time-of-appeal spe or Id. at 324-25. More —controls argument is with- cifically, under Rule 31.02.” we although determined that in Rair- out merit because our statement prosecutor’s “may statements have consti don was mere dicta. tuted at the misconduct time of Rairdon’s conviction,” “[a]ny improper by conduct Rairdon, filed peti defendant a prosecutor ... prejudicial was not so years tion for relief nine postconviction that the defendant was denied a fair trial.” at 322. after his conviction. 557 N.W.2d added). (emphasis Id. at 324 In summar part petition, As of his he claimed the izing our analysis, emphasized we that we prosecutor plain committed error in clos had that assumed the error was ing argument. Id. at 322-23. Acknowl then addressed the third of the edging that after Rairdon’s trial our re plain-error doctrine. More specifically we sponse prosecutorial to misconduct had said that “even if Rairdon has identified grown stringent,” “more opined plain enough misconduct to “may any Rairdon from overcome his reap benefit object, failure to such merely such decisions because he waited misconduct is insuf years nine to seek review.” Id. at 323. It ficient to vacate Rairdon’s murder eonvic- court.”); Farrell, differently, 10. Put neither the defendant nor accord 672 United States 27, Moreover, (1st Cir.2012). the district court were at fault for the trial F.3d 36-37 adopting proposed by error in Johnson because the district court the rule the concur- Thus, following existing effectively precedent. preclude appellate was as- rence would an sessing perspective remedying injus- error from the court from ever manifest in the law district court Johnson scenario does not tice when the is unsettled at trial but purpose by further the of the doctrine settled in favor of the defendant the time of provide exception appellate to a fairness-based to the review because an error made un- Olano, "plain.” forfeiture U.S. at der law is definition not doctrine. 507 unsettled (“At minimum, Smith, 1303, 113 S.Ct. 1770 See United States v. 402 F.3d [an course, (11th Cir.) ("In appellate practice, ... cannot correct error 1315 n. 7 court] law.”); unless the error is clear under current this is the same as no error review at (ex- all, Young, ‘plain’ 105 1038 as error will never be under ‘unset- U.S. law.”), plaining purpose grounds, that the tled’ vacated on other injus- promptly doctrine redress 125 S.Ct. obvious L.Ed.2d Ross, (2005). tices); contrary prin- United States v. 77 F.3d Such a result is to the (7th Cir.1996) ("When ciple viewed as a limi- articulated the United States Su- appellate power preme Wiborg tation that an court circumvent Court debatable, eye forfeiture where an rather need not turn a blind errors in fault, to the defendant’s than as a measure of district court matters that are critical ‘plainness’ inquiry right must look to the error's to a fair trial. 163 U.S. at certainty perspective from the Baird, against question tions when viewed all the evidence into our decision in and in the prosecutor’s squarely the context of en N.W.2d at which addressed closing tire statement.” Id. at 325. Con issue before us in this case. our sequently, proper statement “the Further, proposed by the rule the con- overturning standard for Rairdon’s murder currence promote does not fairness. The precedent convictions is existing found argues concurrence and the at the time of his conviction” was dicta situated, defendant in similarly Milton are because it was not essential to our decis and therefore it is unfair for the court to Carlton, ion.11 See at 614 conclude that explain failure to (explaining question the statement “intentionally aiding” element of accom- “dicta” because the resolution of the ques plice liability to the was not “plain” necessary tion was not to our ultimate error in “plain” but is error here. (8th holding); Black’s Law Dictionary 485 disagree. We ed.2004) (defining judicial dicta as “[a]n The concurrence contends Milton and opinion by a question court on a that is Kelley are similarly situated because then- involved, briefed, directly argued and appeals “arrived at this court in an identi counsel, court, passed and even cal procedural posture.” at C-1. If Infra decision”). but that is not essential to the we announcing were a “plain-at-the-time- It is true that have we cited Rairdon for rule, of-filing-the-appeal” the concurrence’s proposition that an alleged error must argument might have merit. But we are See, be plain at the time of conviction. Instead, not announcing such a rule. Tscheu, e.g., 849, State v. 758 N.W.2d 863 are adopting a “plain-at-the-time-of-appel (Minn.2008) (“[F]or exist, plain error to late-review” rule. The phrase “appellate the trial error must have been so clear review” in this context means applicable under law at the time of the review by a court on motion for new conviction....”) (citation omitted) (inter- motion, posttrial or on appeal. See Minn. omitted). quotation nal marks But in each R.Crim. P. 31.02. At the time we re of those cases the law had either not conviction, Kelley’s viewed he and Milton changed during the pendency appeal of the were no longer similarly situated because or the defendant was relief denied based changed law had during pendency on another of the prongs.12 Kelley’s appeal. Because we conclude Consequently, the issue of when an error Milton Kelley similarly and were not situ plain must be was not material to our review, ated at the time analysis. Moreover, our reference to the concurrence’s argument fairness is not Rairdon dicta in a few cases does not call persuasive. argues

11. The "prove prongs concurrence that we plain error doctrine. 520 U.S. 467-68, too 117 much” when we conclude S.Ct. 1544. the statement in Rairdon specifically, is dicta. More Tscheu, (involving 758 N.W.2d 863 a concurrence claims one can reach a similar changed during case in which the law had not regarding conclusion the United States Su- pendency appeal); the State, Arredondo v. preme plainness Court’s discussion of the 566, 754 N.W.2d 574 Johnson, 461, prong in (same); Manthey, State v. 711 N.W.2d Rairdon, 1544. But unlike the Court in John- (Minn.2006) (same); Blanche, 504 State v. son deciding did not assume without the exis- (Minn.2005) (same); 696 N.W.2d Instead, plain. tence of an error that was Hunt, (Minn. State v. 615 N.W.2d expressly Johnson Court found the defendant 2000) Pilot, (same); State v. 595 N.W.2d had "plainness” "satisfied” the "error" and (Minn.1999) (same). — Henderson, Moreover, any counterparts. un federal perceived -, of the law in this case is the result 1121 (extending fairness not error. retroactivity, regarding plain- relief available under the federal rule, rules” Teague apply “new rule, 52(b), Under P. to Fed. R.Crim. errors (1) at the on direct pending cases that were not at the time of trial but announcement, rule’s and time of the new review). by the had become time of (2) an after the rule is arising cases Although provided we have on occasion State, nounced. Chambers greater protection or relief to criminal de- (Minn.2013). certain ex Absent fendants, provided we have never less re- apply to de ceptions, “new rules” do lief than that available in federal court. were final at whose convictions fendants Ramey, See State v. 301- rule was announced. Id. the time the new (Minn.2006) (shifting the burden of drawn, retroactivity line is Whenever proving impact prosecutorial mis- can be made. For argument unfairness State); conduct from the defendant to the Kelley’s ap Milton and example, suppose Borst, 278 Minn. day at our court on the same peals arrived (1967) (extending right 894-95 procedural posture. in the same court-appointed persons counsel are issued opinions Milton offenses). misdemeanor charged with petitions neither defendant apart, week certiorari, Milton’s con consequently III. “final” a week before Kel viction becomes Kelley argues If the States Su next that the ley’s conviction. United during a new rule preme rights. Spe Court announces error affected his substantial week, Kelley will receive intervening cifically, Kelley argues that the evidence because, the benefit of the new rule unlike actually indicated S.A. did not know who Milton, Kelley’s yet conviction has not be property, properly took his and that a example, only come final. In such jury instructed could have concluded that Kelley Milton and difference between friend, Kelley’s unidentified and not Kel case first. that we decided Milton’s Under ley, S.A. actually robbed argument, concurrence’s fairness require deny Kelley would us to the bene Kelley To convict as an accom rule, though the new even his convic fit of first-degree aggravated robbery, plice of yet tion had not become final. Followed beyond a reason prove the State had conclusion, the logical its concurrence’s (1) Kelley that knew his friend able doubt argument effectively modifies our fairness (2) robbery, and going to commit retroactivity jurisprudence limiting to further the com presence intended his of a new rule to cases that arise application mission the crime. 821 N.W.2d new rule is announced. Neither after the Mahkuk, 806; 736 N.W.2d at State principles underlying nor the our case law (Minn.2007). that To establish retroactivity support such a limitation. liability jury instruc accomplice erroneous Kelley rights, tion affected his substantial argument fairness re- The concurrence’s heavy proving burden of that has the the relief available under Minn. stricts giv “there is a reasonable likelihood P. to errors that were R.Crim. 31.02 question signif had a ing the instruction adopt time of trial. If we were to State v. jury icant effect on the verdict.” interpretation the narrow of Rule 31.02 (Minn.2006); Gomez, concurrence, 721 N.W.2d state defen- proposed by the Griller, An at 741. relief than their accord N.W.2d dants would receive less jury pockets erroneous instruction will not ordi- ... then they rolled me over be- narily significant they have a effect on going through my pockets cause were if there is ... jury’s they asking your verdict considerable evi- and were me ‘where’s ” See, guilt. e.g., Kelley dence of the defendant’s wallet.’ After and friend his had State, belongings Montanaro v. 802 N.W.2d 733 taken all S.A.’s pock- from his (Minn.2011) ets, (concluding that they kicking self-de- continued hitting S.A. jury Kelley’s presence fense instruction could not have had a participation active significant jury’s S.A., effect on the verdict be- in punching kicking helping roll jury gain cause “no reasonable could find S.A. over to pock- [de- access to his back ets, actions to be a reasonable use of and rummaging through pockets fendant’s] his force”); Larson, strong proof that Kelley pres- intended his (Minn.2010) (holding that defendant’s ence to further the commission of the rob- Pierson, rights bery. substantial were not affected al- See State v.

legedly accomplice erroneous liability jury (stating “pres- ence, there instruction because was “considera- companionship, and conduct before ble evidence” of the defendant’s intent that and after the offense are circumstances murdered); Gomez, the victim be person’s from which a participation in the (“Given inferred”). totality may criminal intent be evidence, unlikely it seems jury Significantly, Kelley’s defense at trial verdict.”). would have reached a different accomplice did not focus on liability. In- deed,

We conclude there is no closing argument, reasonable like- his Kelley’s de- lihood that jury the erroneous only instruction fense counsel briefly mentioned ac- significant had a Instead, effect on the complice liability. verdict Kelley focused because there is considerable evidence of theory his defense on the that S.A. had Kelley’s guilt, and his defense did not fo- mistakenly him identified as one of the accomplice liability. assailants, cus on Specifically, guilty and he was not as a there is considerable evidence in the rec- principal. Kelley argue did not that he did ord that knew his friend was going person not know the other going to was crime, to commit robbery the and intended his commit the or that he did not intend presence to further the commission of the presence his to further the commission of Kelley crime. met with his friend for a Kelley’s strategy crime. Given fo- incident, shortly half hour before and cus liability principal as a and not as an they then went together outside and Kel- accomplice, the error accomplice ley’s friend asked S.A. jury to come outside to liability instruction was not prejudi- meet Kelley. Davis, with The meeting before- cial. See State v. 820 N.W.2d (Minn.2012) hand and the request friend’s that S.A. 538 (concluding that the de- Kelley meet with support the conclusion strategy fendant’s trial impacted whether Kelley that and planned his friend prejudicial). trial error was ensuing attack and robbery. sum, In Kelley has satisfy failed to

Moreover, doctrine, S.A. testified that third of the plain-error his friend “were searching through my therefore he is not entitled to a trial.13 new light Kelley's 13. In of our ("Only prongs conclusion that if the three violated, rights substantial plain-error] were not we need rule [the are satisfied will we not address whether the error affected the assess whether we should address the error to integrity judicial fairness and proceed- integrity judi- ensure fairness and the Morton, ings. See State v. proceedings.”). cial conviction, Kelley’s tion.” The text of the provides therefore affirm rule a clue We scope. its The grounds “plain on different than the about rule addresses although been, that error” could have but appeals. “was not[,] brought to the trial court’s atten- Affirmed as modified. tion.” Minn. P. Notably, R.Crim. 31.02. Minnesota specifically emphasizes rule CONCURRENCE party that focus is on whether a could STRAS, (concurring). Justice brought “plain have error” to the trial Compare court’s attention. Minn. R.Crim. erred it failed to The district court when (referring P. 31.02 to error that could have it means to “inten explain to the what “brought been to the trial court’s atten- person committing tionally aid” another 52(b) tion”), with (referring Fed.R.Crim.P. observes, a crime. As the court the error to error that could “brought have been in this case is identical to the error from attention”). the court’s The implies text Eugene Milton’s murder trial. See State the error must have been (Minn. v. 806-07 been, because if it had not then there 2012). case, that Milton said “plain bring would have been no error” to was not entitled to relief for the deficient to the trial court’s attention. because the error was not jury instruction case, however, Id. at 807. In this plain. helpful, While the text of Rule 31.02 opposite the court reaches the conclusion. does not definitively question answer the question why The the court treats the of whether the rule requires courts to eval- cases, at this two both which arrived plainness uate the of the error at the time procedural posture, court in an identical However, of trial or at the time of appeal. differently. provide only the text does not clue to Unlocking meaning. Rule 31.02’s The his- admits, answer, as the court is sim- tory purpose of the rule further ex- ply appeal that we decided Milton’s first. scope. its Specifically, adopts the court a rule that requires appellate courts to evaluate the

plainness of an error at the time of A.

rather than at the time of trial. Based on law, early At common a defendant’s fail rule, the court concludes that object ure to to an error at trial resulted in case, Kelley’s error was even right the forfeiture of to have the though accomplice liability the law of alleged appeal. reviewed on identical at the time of both Be- trials. Hayes, State 273 Wis.2d approach cause the court’s is inconsistent (2004) (de J., 203, (Sykes, concurring) text, history, purpose with the rule). However, scribing the common-law rule, join I Minnesota’s cannot the harshness of the common-law rule led opinion. According- Part II of the court’s in exceptions, to creation of various I ly, only judgment. concur in the an cluding exception for error rights.

affects a defendant’s substantial I. Schumacher, 388, See State v. 144 Wis.2d (1988) 672, begin (describing I with the text of Minn. R.Crim. 424 N.W.2d 676-79 31.02, plain-er Minnesota’s “[pjlain exceptions). P. which states that error various 31.02, standard, affecting right pro ror set forth in Rule a substantial can be consid- by ered ... on even if it vides courts with the discretion errors, if remedy unpreserved only to but brought was not to the trial atten- court’s (2) (1) error; (1999) there is the error is plain; Mich. N.W.2d (8) (“Trial the error affects the defendant’s ‘by is far the time to best address a Griller, substantial See State v. rights. defendant’s constitutional and nonconstitu- ” (Minn.1998). 736, 740, 742 If 588 N.W.2d Grant, rights.’ tional (quoting People v. satisfied, preceding requirements are 445 Mich. 520 N.W.2d then an court will address the (1994))). only seriously error if it affected the fair A different rule —one that unpre- treats ness, integrity, public reputation judi or preserved served and errors alike—would proceedings. cial Id. permit to defendants lie wait and raise n WhileRule 31.02 provides a limited ex an error on appeal they if do not receive a ception consequences to the harsh contrast, favorable result at trial. rule, common-law forfeiture it does not standard, which raises the bar purpose, abandon its which was to encour errors, unpreserved relief based on age contemporane criminal defendants to discourages the strategic withholding of ously object any to potential during errors objections in gain order to proverbial

a trial. See Ramey, State v. “second bite at apple” appeal. (Minn.2006) 294, 298 (“Applying the plain States, Puckett v. United encourages error doctrine defendants to trial....”). 173 L.Ed.2d 266 object stan (2009). provides dard an incentive for criminal object defendants to at trial limiting the Assessing plainness at the time of trial review of unpreserved errors on appeal better objective serves the of encouraging making discretionary. relief criminal contemporaneously defendants to

Pearson, 155, 161 (Minn.2009); object potential to errors that during occur Ramey, 721 N.W.2d at 298-99. Preserv is, trial. Error that is plain clear —that ing object an incentive to important obvious, or Ramey, see 721 N.W.2d at contemporaneous objections because alert 302 — when it is committed definition is the trial court potential to errors when (or be) should apparent to the trial court. there is still an opportunity to correct When error is at the time of Ramey, them. See 721 N.W.2d at 298-99 the trial court recognize should be able to (explaining that contemporaneous objec and correct the error parties’ without the tions preferred because the “[are] district help, so there is less reason to insist on an court is in an unique position to [sic] [rule objection may unnecessary. be And issue]”); State, on the Rairdon v. because there is little benefit requir from (“Objec n. 5 ing party to inform the trial court about provide tions the trial court an opportunity obvious, an error that there is corre prevent or cure the effects of [an error] spondingly reviewing damage and enhance a little done ability court’s con make adequate judgments temporaneous-objection requirement of whether when [an (citation error] has fact occurred.” granted omit relief is unpreserved for an ted)); also, e.g., Carines, see People v. 460 that at the time of trial.1 See suggest 1. I do not mean to governs that there is no harmless-error rule—which object plain incentive to to a preserved error at trial. review of error —even when an er- incentive, course, primary The plain. particular, is that the ror is Ias have ex- court, error, elsewhere, trial might plained once informed of the plain-error standard Moreover, remedy it before generally it occurs. places showing preju- the burden of plain-error relief, satisfy rule is harder to party seeking than the dice on the makes relief — States, day cur on the same and the trial court in Henderson v. United -, -, each case reads the same model in- (2013) (Scalia, J., dissenting) L.Ed.2d jury. struction to the There is no ease so much needed when (“Objection is not indicating law whether the model instruc- to the court ought the error to be law, accurately tion states the and neither El prosecution.”); and to the objects defendant to the instruction. Both 1989) (Utah 29, 36 dredge, 773 P.2d convicted, are found guilty, defendants (“[W]hen can plain, an error is a trial court appeal. go and then The cases before dif- a reason be said to have had legitimately ferent of the court of panels appeals— it, to address and correct opportunity able again day on the same each defen- —and objection.”). In even in the absence of an argues that dant the model instruction short, plain-at-the-time-of-trial a rule tem One panel was erroneous. finishes its in in the harshness of forfeiture cases pers opinion faster. It determines that objection largely unnecessary, which an erroneous, jury instruction was but that object in while it leaves the incentive to the defendant is not entitled to relief be- objec for those instances in which an place cause the error was not The plain. other helpful is most to the trial court in tion its decision panel days issues a few later fair ensuring that the defendant receives a and reaches the same conclusion about Ramey, at 299 trial.2 time, however, jury instruction. This (“The employs [plain-error] doctrine a panel must hold that the second defendant balancing encourage careful of our need to eligible (assuming for relief to seek a fair and participants all trial requirements other against time around accurate trial first met), standard are because the error has injustice our insistence that obvious be light pan- now become of the first (citations omitted) promptly redressed.” decision, though even el’s error —and (internal omitted)). quotation marks everything else about the case—is identi- rule, in plain-at-the-time-of-appeal logical cal to the first case. I see no contrast, rule from a turns the differently reason to treat the two cases the contem- neatly complement tailored differing when the treatment is based on into a poraneous-objection requirement than nothing ap- more which two A lottery dilatory litigants. straight- for peals happens to be decided first. example inequities forward illustrates the example The above is an abstracted adopts. Sup- of the rule that the court summary that the trials of oc- of this case and State v. Milton.3 pose two defendants raising discretionary, high objection subsequent claim an at a and sets a bar for the Little, See, exercise of that discretion. See State v. during e.g., point a trial. Minn. R.Crim. (Minn.2014) (Stras, 888-89 26.03, 12(l) (giving parties oppor- P. subd. J., concurring part, dissenting part) tunity objections request to raise curative (contrasting and harmless-er- closing arguments, instructions after outside standards). ror id., 19(4)(f) ("Ob- jury’s presence); subd. jections claiming to instructions error in fun- plain-at-the-time-of-trial generally 2. A rule as- controlling principle may damental law or be an error is at the time sesses whether even if included in a motion for a new trial occurs, that the error rather than some deliberations.”). not raised before point other in a criminal defendant’s trial. Nevertheless, adopt phrase, "plain I the broad course, pro- two here did not trial,” 3. Of cases possi- at the time of to account for the that, errors, concurrently, they example, as in the but ceed bility a limited class of adequately preserve may well have because the law of accom- criminal defendant can as Kelley insists that proposition court and Milton disbelieve the lessening similarly are not situated because Milton’s noncompliance the costs of with con [the Specifically, was decided first. temporaneous-objection requirement] di Kelley court states that Milton and are “no minishes the diligent incentives to be in longer similarly situated because the law objecting.”). And it does so in instances changed during pendency of Kel- ha[s] contemporaneous objection which a is most ley’s appeal.” That is precisely my point. valuable. The facts of this case illustrate The fact that Milton’s appeal came first is point. trial, At the Kelley’s time of happenstance, and making availability specifically had never said that a district of relief turn on that fact does not encour- court is required explain to the age contemporaneous objections, promote what it means “intentionally an ]” aid[ fairness, any or serve other conceivable 609.05, § other under Minn.Stat. subd. 1 purpose rule. The court (2012), but, as we later recognized Mil that, says by treating Kelley and Milton ton, our cases implied had that such an alike, promote I not “do[ ] fairness.” The Milton, explanation was necessary. See leniency, confuses fairness with ap- 821 Kelley N.W.2d at 807. Had contempo parently motivated give the desire to raneously objected to the accomplice-liabil many relief to as possible. defendants as ity instruction at trial and referred the it, As I treating understand fairness means Mahkuk, district court to State v. similarly people similarly, situated so there (Minn.2007) case re — the nothing is unfair about insisting that we upon lied Milton —it possible treat and Milton alike when their district court would have concluded that appeals are identical in all relevant re- accomplice-liability jury model instruc spects. States, Desist v. United Cf. tion was deficient and would have correct U.S. 22 L.Ed.2d words, ed the instruction. In other a con (1969) (Harlan, J., dissenting) (arguing temporaneous objection in this case could that when presented a court is with simi- prevented have altogether by larly defendants, situated grant “we must allowing the district court to make a delib grant] give [or same relief or erate, informed legal decision about the principled reason acting differently”). accuracy of the accomplice-liability model contrast, By fairness is ill served — Henderson, jury instruction. U.S. Cf. rule, Milton, court’s under which who at -, (Scalia, J., 133 S.Ct. at 1133 dis brought this instructional error to our at- (“In senting) the difficult and often hectic tention, did any not receive benefit from process of conducting a judge de efforts, his Kelley, may while who not even pends on the parties —‘officers have raised the issue if not for flag court’—to less-than-obvious issues enjoys the benefit of the rule from Milton’s notice.”). might otherwise escape his case. Moreover, even inequities, aside from its B. the plain-at-the-time-of-appeal rule weak ens agrees the incentives for The court plain-at-the- criminal that “the defendants identify bring potential encourages time-of-trial rule timely objec- errors to trial,” Henderson, the trial court’s attention. tions at but considers that fact irrel- Cf. — at -, (Scalia, at 1134 evant only because the purpose (“It J., dissenting) remarkably naive to plain-error provide rule “is to a means for plice liability change did not between the two trials. remedy unobjected-to objections appellate allowing appellate court to and courts to prejudicial The court’s insistence that the correct

errors.” error. The court’s in plain-error consistency forfeiture rule and the rule point on this is understanda ble, however, purposes guided “have different and are because it impossi would be principles” different is confused both ble explain why to the rule limits confusing. and correcting courts to only plain errors if its only purpose were “providing a means for The position court’s is confused because remedy courts to forfeited er plain-error actually the rule does not have rors.” If the plain-error really just rule is purpose a different than the common-law an invitation for appellate courts to review repeatedly forfeiture doctrine. have We unpreserved errors to avoid “a serious recognized that the and purpose effect miscarriage justice,” as the sug rule, like the common-law gests, there would be no for reason doctrine, encourage forfeiture is to con- to rule be concerned with the plainness of See, temporaneous objections. e.g., Pear- all, the error at all. After the third and son, (“The plain at 161 error prongs fourth of the plain-error standard encourages object doctrine defendants to adequate are to ensure that the error is any while in the trial court so that errors sufficiently important to merit reversal. can corrected before their full impact be is Griller, 583 N.W.2d at 740. Accord realized.”); 298-99; Ramey, 721 N.W.2d at ingly, the fact that require the rule does Puckett, 184-36, see also 556 U.S. at plain, the error to be Minn. R.Crim. P. (recognizing that 31.02; Griller, see also 583 N.W.2d at directly contemporane- rule is tied to the not, demonstrates that error correction is ous-objection requirement as it “sets forth be, only and cannot purpose of the consequences” failing object plain-error rule.4 “judicial promotes efficiency”). view, position confusing my court’s is because In rule strikes the the court elsewhere states that the plain- proper remedying balance between errors “carefully rule balances” the encouraging timely objections dual is the purposes encouraging contemporaneous plain-at-the-time-of-trial approach, not an that, states, says "[although incorporated against 4. The court elsewhere are California Greenwood, provided greater protec we have on occasion v. defendants, (1988); Fuller, tion or relief to criminal we have 100 L.Ed.2d 30 State (Minn.1985); provided emphasizing never less relief.” 374 N.W.2d 726-27 O’Con further, that, Johnson, (Minn. point implies the court if nor v. 1979), nothing prevents criminal defendants Minnesota were to a state court from adopting procedural provides "receive less relief than their federal a rule counter less parts,” unjust protection it would somehow be or con to criminal defendants than a com precedent. Coupled parable flict with with the federal rule. To the extent that the standard, otherwise, wrong. court's discussion of the court concludes it is Our says primarily procedural which interpreting it is concerned with task in is to rules unfairness, remedying implication adopt interpretation the clear better of the rule’s text, Underdahl, one-way ratchet in favor of criminal defen see State v. dants, (Minn.2009), requiring interpre Minn. R.Crim. P. 31.02 to whether or not much, provide adopt least as tation we more or sometimes less restrictive more, protection corresponding Notably, to criminal defendants than federal rule. than However, corresponding analysis hardly federal rule. the court’s addresses the text all, parallel provisions, explains why contrast constitutional of Rule 31.02 at much less closely aligns pro interpretation in which the United States Constitution its more with the rights respect vides a floor with those rule’s text. hap- approach under Minnesota law. See 583 that turns on which approach (citing at 741 first. N.W.2d Johnson United to be decided pens States, 1544, 117 520 U.S. S.Ct. (1997)). Baird, II. 137 L.Ed.2d 718 And in addressing] far from the issue” “squarely justifica- offers four additional The court claims, simply quoted as the court our plain-at-the-time-of-appeal ap- tions for the statement in Griller without comment or proach. persuasive. None is fact, 113. In analysis. See 654 N.W.2d at probably contains our most com Rairdon A. because we plete analysis question on the precedent The court first claims that actually provided selecting a reason for partic dictates its decision in this case. In approach Specifically, one over other. ular, court relies on a from statement “ plain-at-the-time-of-trial we stated that a that, satisfy the sec State v. Baird ‘[t]o rule ensured that the defendant could not rule,] it is plain-error ond [of “reap any [intervening benefit from sufficient that the error is at the time ” merely in because he changes the law] (quoting 654 at 113 appeal.’ N.W.2d of years to seek Rair waited nine review.” 741). Griller, 583 N.W.2d at The state don, id., Compare 557 at 323. N.W.2d supports ap ment from Baird the court’s Baird, 113, with 654 N.W.2d and Gril sure, proach, to be but the truth is that ler, 583 N.W.2d at 741. our on the have been topic statements varying example, and inconsistent. For in The court dismisses our statement we stated as follows in Rairdon v. State: dicta, however, Rairdon as because we “the trial error must have been so clear ultimately any that determined applicable under law at the time convic of that case had not affected the defendant’s tion ... that the defendant’s failure to Rairdon, rights. substantial See 557 object thereby present the trial court —and Thus, according N.W.2d at 324-25. to the with an to avoid opportunity prejudice— court, plainness our articulation of the re right remedy.” should not forfeit his to a quirement in Rairdon “was essential 318, 557 323 (empha N.W.2d pro to our decision.” The court’s broad added). sis In subsequent a number of nouncements about dicta undermine its cases, we relied on Rairdon as support analysis prove own too much. Under See, plain-at-the-time-of-trial e.g., rule. approach, key aspects the court’s of our Tscheu, State v. 863 articulation of the rule in Gril- (Minn.2008); Manthey, 711 dicta,” ler were “mere as were the Su (Minn.2006); N.W.2d 504 State v. Pi preme Court’s statements about the first (Minn.1999). lot, three rule in prongs

However, we did not so much as ac landmark cases such as Johnson Unit Baird, Olano, knowledge Rairdon or in State v. ed States v. 507 U.S.

Griller, (1993) the decision on which Baird relied. 123 L.Ed.2d 508 — decisions Indeed, given support we have never much atten the court relies on to its timing tion to the the plainness require preference plain-at-the-time-of-ap for the Griller, any opinions, likely peal ment in of our rule. at 742 which varying (concluding accounts for our statements. the defendant had not Griller, prong); the State conceded that the error satisfied the fourth see also John (con son, under the federal U.S. S.Ct. adopt cluding rule and did not us to that the defendant had not satis ask different Olano, at whether an error is must be deter prong); fourth fied the appeal, mined at the time of not at the (concluding that time under Fed.R.Crim.P. the third had not satisfied defendants — 52(b). at -, 133 S.Ct. at 1130- analysis Even the from prong). on, however, goes 31. The court to treat Kelley’s appeal, the basis of which forms if binding Henderson as it were on this approach dicta under the court’s would be says court. For example, in that our discussion of the error because the Supreme Court’s reaffirmation of the was not told what it case—that plain-at-the-time-of-appeal rule “intentionally aid” another in means to important Henderson is even “[m]ore ]” committing a crime—was not essential to precedent than our own on the issue. ultimate conclusion that Milton was our See at not entitled to relief. 821 N.W.2d forget The court seems to that we have routinely interpreted pro our own rules of independently Supreme cedure Only by disregarding a line of cases can Court, language when the of particularly precedent requires the court conclude that corresponding our rule is different from a adopt plain-at-the-time-of-appeal us to rule, Supreme federal because the Court’s Bobo, See, e.g., v. 770 approach. State “ ‘instructive,’ interpretation is but not (Minn.2009); Tscheu, 129, 143-44 N.W.2d Bank, N.A., binding” on us. Walsh v. U.S. State, 863; 758 N.W.2d at Arredondo v. (Minn.2014) 598, (quoting 851 N.W.2d 603 (Minn.2008); 566, 574 Man 754 N.W.2d Sons, Constr., Schifsky T.A. & Inc. v. Bahr 504; Blanche, 711 State v. they, N.W.2d (Minn. LLC, 773 787 n. 3 N.W.2d (Minn.2005); 351, 375 State v. 696 N.W.2d 2009)) (declining adopt “plausibility” (Minn.2000); Hunt, 615 302 N.W.2d Corp. standard from Bell Atlantic short, Pilot, 595 at 518. In even a N.W.2d 1955, 167 544, 127 Twombly, 550 U.S. cursory past of our cases from the review (2007), L.Ed.2d v. Iqbal, Ashcroft years reveals that we have never actual 173 L.Ed.2d plain-at-the-time- ly resolved which rule — (2009), in context of a motion to plain-at-the-time-of-appeal of-trial or —con brought dismiss under Minn. R. Civ. P. Compare, e.g., Rule 31.02. trols under 12.02(e)). instance, Ramey, we held Tscheu, (following at 863 Rair that, involving prosecutorial in cases mis don), with, Jones, e.g., State v. 753 N.W.2d conduct, the State bears the burden of (Minn.2008) (following Baird and disprove an effect on a de persuasion Griller). presents this case Accordingly, rights fendant’s substantial under our opportunity us with a clear to reconcile standard, though ap even definitively and to decide which of cases was inconsistent with proach adopted the two more consistent with Rule rules is Supreme case law. N.W.2d Court Co., 31.02. v. Allstate Ins. Oanes Cf. 301-02; (Anderson, see also id. at 303 (Minn.2000) (stating 405-06 Paul, J., that “the concurring) (recognizing lines of that the contradiction between two holding represented] sharp majority’s cases can be “sufficient to override stare 180° turn —from departure and radical —a concerns”). decisis Supreme States our court’s and the United as to the burden of jurisprudence Court’s B. persuasion on the third test”). cannot correctly The court observes that There is no reason we error of Minn. adopt interpretation decid our own Supreme Court of the United States case, just as in P. 31.02 this ed Henderson v. United States R.Crim. least, Ramey. very At Ramey turns on whether a case has become final.6 Houston, Supreme Walsh establish that the Court’s interpretation (stating that principle “[t]he of a federal rule is not bind us, finality key” in determining ing particularly when the whether language counterp retroactive). changes in the law are Plain- of our rule differs from its federal review, contrast, is about deter- art.5 mining whether remedy a forfeited er- ror. In assessing whether an error C. plain, we have never asked whether a rule The court also invokes the principle that procedure criminal is retroactive. generally apply courts law that, The court nevertheless asserts if effect at the time of their decision. The conclusion,” logical “[flollowed to its correctly articulates that venerable plain-at-the-time-of-trial rule would “effec principle, but then acknowledge fails to tively modifly] retroactivity our jurispru plain-at-the-time-of-trial that a rule is also dence limiting application of a new consistent with principle. Appellate rule to cases that arise after the new rule long courts have been required “apply is announced.” The court’s erroneous cri law effect at the [they] time render tique simply a product of its misplaced Bradley [their] decision.” v. Sch. Bd. of belief that there link is an inextricable Richmond, City 696, 711, 416 U.S. of between retroactivity and plain-error re (1974); 40 L.Ed.2d 476 see also reality, view. In whatever rule we adopt (1 United v. Peggy, States Schooner 5 U.S. in this case will impact have no on our Cranch) 103, 110, (1801) (articu 2 L.Ed. 49 retroactivity jurisprudence because the dif rule). lating the ference between plain-at-the-time-of- However, recitation of general prin- trial and the plain-at-the-time-of-appeal ciple provides guidance only on how to approaches solely relates to whether a exists, determine whether an error not the criminal defendant is entitled to relief from point at which an appellate court must forfeiture under Minn. R.Crim. P. 31.02. evaluate the plainness of that error. all, After whether an error is is not fact, the court’s approach mistakenly con- about “what the law is” but “how clear the flates two analytically distinct concepts: is,” law United States v. Escalante-Reyes, retroactivity law of (5th Cir.2012) (Smith, J., F.3d cases, review. In criminal retroactivity is dissenting), and there is why no reason about what law to apply, which usually rule or statute focusing on the latter ques Compare ("Plain Minn. R.Crim. P. 31.02 treatment in another area. In the retroactivi- affecting error right a substantial can context, be con- ty inconsistent treatment of defen- sidered the court on motion for new required by dants is sometimes "principle motion, post-trial or on even if it was finality!,] of which opera- is essential to the brought attention.”), to the trial court’s justice tion system.” of our criminal Teague 52(b) ("A with Fed.R.Crim.P. error that Lane, v. 489 U.S. 109 S.Ct. rights affects may substantial be considered (1989) (plurality 103 L.Ed.2d 334 opinion); though even brought it was not to the court’s State, see also Chambers v. attention.”). (noting importance "finality providing bright-line rule for 6. The court is correct when it states that the retroactive”). However, when relief is to be law retroactivity can lead to inconsistent defendants, proposes correspondingly court impor- treatment of no criminal but presents court why justifying differing no reason tant value inconsistent treatment of de- justifies treatment in one area inconsistent fendants in review. necessarily must be limited to the law III. tion decision, in effect at the time of Land reasons, foregoing For the cf. I would af- Prods., graf v. Film USI Kelley’s firm ground conviction on the 273-80, 128 L.Ed.2d 229 the plain. his case was not (1994) (explaining that the law effect at generally governs of decision

the time un otherwise).

less a statute states

D.

Finally, the court is concerned that as- Jacky LARSON, sessing Appellant, whether an error was when it L. occurred would be “cumbersome and com- plex” tempo- and would call for “a kind of The NORTHWESTERN MUTUAL ral ping-pong.” apparent court’s con- COMPANY, LIFE INSURANCE disorienting cern is that it would be for an Respondent, to first examine current law to determine whether an error has Specialists, CMInformation occurred and then govern- turn the law Inc., Respondent. the error at the time trial ing to deter- No. A13-0186. plain. mine whether the error was Supreme Court of Minnesota. routinely Courts look to the laws and Oct. may facts existence at various It times. inconvenient, inquiry really

be but the “is — Henderson,

not all hard.” U.S. at

-, (Scalia, J., 133 S.Ct. at 1135 dissent cases,

ing). postconviction for example, routinely decide both what the law was

at the time of conviction and whether the

petitioner knew or should have known legal

about a claim appeal. on direct State, (Minn.

King v.

2002) (applying procedural from bar Knaffla, 309 Minn. (1976)). And in

N.W.2d official-immu cases,

nity we evaluate the law effect at injury

the time of an to determine whether clearly prohibited public

the law official’s

discretionary they actions when occurred. State,

See Rico v. 107-09

(Minn.1991). nothing suggest There is

that a retrospective examination of the law

in plain-error any cases would be more

taxing on courts than in these other areas

of the law.

Case Details

Case Name: State of Minnesota v. Dylan Micheal Kelley

Court Name: Supreme Court of Minnesota

Date Published: Oct 22, 2014

Citation: 855 N.W.2d 269

Docket Number: A12-993

Court Abbreviation: Minn.