STATE of Minnesota, Appellant, v. Dennis Gordon LEE, Respondent.
No. A04-1402.
Court of Appeals of Minnesota.
March 7, 2005.
691 N.W.2d 216
Mike Hatch, Attorney General, St. Paul, MN; and Joe E. Judd, Assistant Todd County Attorney, Long Prairie, MN, for appellant. Robert E. Pottratz, Melrose, MN, for respondent. Considered and decided by HALBROOKS, Presiding Judge, RANDALL, Judge, and KLAPHAKE, Judge.
Affirmed.
ANDERSON, G. BARRY, J., not having been a member of the court at the time of submission, took no part in the consideration or decision of this case.
KLAPHAKE, Judge.
After respondent Dennis Gordon Lee pleaded guilty to charges of driving after revocation and failure to provide insurance, the district court granted a stay of adjudication and imposed conditions that included service of jail time. The state filed this appeal, arguing that the district court erred in sentencing Lee, over the state’s objection, to a stay of adjudication in the absence of a clear abuse of discretion by the state in the exercise of its charging function. Lee challenges the state’s right to appeal. Because
FACTS
On February 9, 2004, Lee’s vehicle was stopped by police officers in the City of Long Prairie, which is located in Todd County, Minnesota. The officers stopped Lee because one of them recognized him and knew, based on a check of his license a few days earlier, that his license was revoked. Lee also admitted to the officers that he did not have insurance on the vehicle he was driving.
Lee was charged by formal complaint with three misdemeanors: (1) driving after revocation under
On June 21, 2004, Lee pleaded guilty to driving after revocation and failure to provide insurance. The court ordered a presentence investigation (PSI) and set a date for sentencing.
The transcript of the July 28, 2004 hearing begins: “Then I’ll call for sentencing hearing the matter of the State v. Dennis Gordon Lee.” The PSI was submitted and indicated that Lee “lost his license” in 1999 and 2004 for failure to pay child support. The PSI further noted that “there appears to be a disagreement regarding the possibility of defendant receiving a stay of adjudication” and that “I cannot recommend a stay of adjudication in this matter.” The PSI finally noted that “should [Lee] get adjudicated on this matter, he will lose his license for another year[.]”
The prosecutor argued that there was no abuse of discretion in the charging decision, that there were no substantial and compelling reasons for a stay of adjudication, and that the collateral consequence of yet another license violation was not a special circumstance warranting a stay of adjudication. Defense counsel argued that none of Lee’s license violations involved driving conduct and that his record was driven by economics: (1) his first violation occurred at age 21 when he lost his license as a consequence of failure to provide insurance; (2) he thereafter had two violations for driving after withdrawal; (3) his license was reinstated, but thereafter suspended for failure to pay a fine; (4) after “falling behind on his child support,” his license was again suspended; (5) during this suspension, he incurred two more violations for driving after withdrawal; and (6) after his license was reinstated, he was laid off of work and could not afford insurance, which resulted in another license withdrawal. At the time of the hearing, Lee’s license had been reinstated. In addition, Lee had insurance, was current in his child support, was living in Long Prairie, and was employed by a St. Cloud construction firm and working in Clearwater. Defense counsel pleaded with the district court to help Lee get off this “merry-go-round.” In response, the prosecutor objected and argued that “I don’t think
The district court agreed with the state that this was not “an abuse of discretion in charging.” The district court went on to state: “I also believe . . . that if we have a full-time employed person now with a driver’s license, with insurance, with child support . . . I don’t think we serve the public interest by stopping that. And so, I am going to stay adjudication on some pretty strict conditions[.]” The district court further noted that Lee’s guilty plea represented a violation of a prior probationary order.
The district court imposed the following conditions on Lee: (1) pay $500 toward the cost of prosecution on each of two counts; (2) serve 90 days in county jail on each of two counts, one-half suspended; and (3) have no further moving, license, or insurance violations and file proof of insurance every three months with the court. The court also issued a sentencing order with the following conditions: (1) 45 days in jail on each of two counts, stayed for one year; (2) 45 days to be served in jail at defendant’s expense on each of two counts; (3) $60 surcharge on each plea; (4) $5 law library fee on each plea; and (5) $500 prosecution fee on each plea.
ISSUE
Can the state appeal from a stay of adjudication in a non-felony case that includes service of jail time?
ANALYSIS
The right of the state to appeal in criminal cases is strictly construed. State v. Kivi, 554 N.W.2d 97, 100 (Minn. App. 1996) (stating that state’s right to appeal in criminal case is strictly construed, and state may appeal only where expressly authorized by statute), review denied (Minn. Dec. 17, 1996); State v. Rhines, 435 N.W.2d 542, 544 (Minn. App. 1989) (same), review denied (Minn. Mar. 17, 1989). Under the rules of criminal procedure, the state may appeal from a sentence only in a felony case.
In State v. Thoma, 569 N.W.2d 205, 208 (Minn. App.), aff‘d mem., 571 N.W.2d 773 (Minn. 1997), this court held that a district court’s stay of adjudication in a non-felony case was appealable by the state as a “pretrial order” under
Thoma has been followed in subsequent cases from this court. See, e.g., State v. Ohrt, 619 N.W.2d 790, 792 (Minn. App. 2000); Smith v. State, 615 N.W.2d 849, 851 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000); State v. Prabhudail, 602 N.W.2d 413, 414 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). However, none of these cases discuss or appear to involve service of jail time. Although one case from this court involved a four-day jail sentence, the majority in that case did not discuss the jurisdictional issue, even
In addition, for all intents and purposes, the stay of adjudication here was treated as part of a sentencing proceeding, not as part of any pretrial proceedings. In particular, after Lee entered his guilty plea on two misdemeanor charges, the district court ordered a PSI and set a date for sentencing. At that hearing, the state was given an opportunity for allocution, during which the prosecutor argued that a stay was not an appropriate sentence for Lee. The district court issued an order in which it recited two misdemeanor counts, imposed a jail sentence of 45 days on each of these two counts, and ordered payment of the costs of jail, surcharges, and law library fees, all of which are generally associated with sentencing—and not pretrial—orders. The state’s appeal papers indicated that it was appealing from the “sentence” of July 28, 2004 and that its appeal challenged “the district court’s stay of adjudication of the guilty plea as part of the court’s sentencing order.” Characterizing Lee’s stay of adjudication as a “pretrial” order ignores these additional facts, which are unique to sentencing proceedings.
Finally, our decision here is entirely consistent with the supreme court’s description of a stay of adjudication as a “final disposition of a criminal case” and a “sentencing option.” State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996). Moreover, the state has not called our attention to any authority that would authorize the imposition of jail time as a sanction at pretrial stages of criminal proceedings, or at any other time before sentencing, and we are aware of no such authority. Unlike the consequences in Thoma, the consequences here, which included service of 45 days in jail, cannot be characterized as anything but a sentence. We therefore distinguish this case from Thoma and expressly limit our holding to cases involving non-felony stays of adjudication that include service of jail time.1
DECISION
Because the non-felony stay of adjudication involved here included jail time that must be served, it cannot be considered a “pretrial” order subject to appeal by the state. We therefore dismiss this appeal as unauthorized by
Appeal dismissed.
RANDALL, Judge (concurring specially).
“Legal interpretation takes place in a field of pain and death.”
This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A
Robert M. Cover, Violence and the World, 95 Yale L.J. 1601, (July 1986).
I fully concur with the majority’s reasoning that in looking at the state’s (appellant’s) brief and the defendant’s (respondent’s) brief, and the sentencing order of the district court, which included a monetary fine, a certain amount of time in jail, surcharges, and costs, the only possible conclusion is that appellant, respondent, and the district court treated this case as a sentence and then an appeal from that sentence. The statement of the case for appellant said:
At a sentencing hearing in the instant case, the district court judge sentenced the defendant to a stay of adjudication over the state’s objection in a non-felony case in the absence of a clear abuse of discretion by the state in the exercise of the charging function. The state appeals from that sentence.
On page 11 of the state’s appellant’s brief, under the heading “Legal Analysis,” the first sentence is “the state is appealing the sentencing order of the district court in a non-felony case.”
This was an appeal from a misdemeanor sentence. As the majority points out,
There is some authority that appears to go the other way. See State v. Thoma, 569 N.W.2d 205, 208 (Minn. App. 1997) aff‘d mem. 571 N.W.2d 773 (Minn. 1997). An examination of misdemeanor sentencing cases by the Minnesota Supreme Court shows that the 28.04 issue has never been precisely identified by the Minnesota Supreme Court and addressed. State v. Cash, 558 N.W.2d 735 (Minn. 1997), State v. Foss, 556 N.W.2d 540 (Minn. 1996).
The issue is simple. If stays of adjudication on felony charges are handled as sentencing appeals, why are not misdemeanor charges on stays of adjudication handled as sentencing appeals (and thus barred by Minnesota Rules of Criminal Procedure 28.04).
The seminal case in stays of adjudication is State v. Krotzer, 548 N.W.2d 252 (Minn. 1996). In Krotzer, a felony charge of third degree criminal sexual conduct, as this misdemeanor case of Lee, from the state’s appeal of Krotzer’s sentence to the Minnesota Court of Appeals, and on to the Minnesota Supreme Court by certiorari, Krotzer was in all respects handled as a sentencing appeal. Id. at 254. It was understood to be a sentencing appeal by the state pursuant to the Rules of Criminal Procedure that allowed the state or the defendant to appeal from a sentence in a felony case. Id. at 255. Its posture on appeal was absolutely identical to the posture of State v. Lee. Krotzer’s sentence included terms of probation and terms of incarceration as part of probation. Id. at 253. Those terms were imposed on defendant Krotzer and he had to abide by them and had to serve his jail time. Id. Krotzer involved a sentencing hearing and a sentencing order. Then, there was a stay of adjudication of guilt to allow a deserving defendant to avoid the label of “sexual predator,” a harsh collateral consequence.
I can only conclude it is unethical to disenfranchise an entire class of criminal defendants in the State of Minnesota, meaning the thousands of Minnesotans each year who are charged with misdemeanors, by depriving them of the benefit of
Not only is there no rule or law stating that stays of adjudication in felonies are “different” from stays of adjudication for misdemeanors, we are faced with the long-time settled law that if there is an ambiguity, penal statutes are construed strictly in favor of the defendant and against the state. State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987), State v. Zacher, 504 N.W.2d 468, 473 (Minn. 1993), State v. Haas 280 Minn. 197, 200, 159 N.W.2d 118, 121 (Minn. 1968).
In State v. Thoma, our court found that non-felony stays of adjudication at sentencing were somehow “different” and the essential component of the reasoning was “the stay of adjudication functions in effect as a continuance for dismissal, which can fairly be characterized as a pretrial order.” 569 N.W.2d 205, 207 (Minn. App.), aff‘d mem., 571 N.W.2d 773 (Minn. 1997).
There is no other way to characterize this argument, but to take it head-on. First, the Minnesota Supreme Court, in thoroughly analyzing the stay of adjudication issue in Krotzer, not only did not look upon it as a “continuance for dismissal,” but in all respects treated it as a sentencing appeal by the state. Further, we note that misdemeanor sentences in Minnesota and “continuance for a dismissal” in Minnesota not only are different, but have never once in the State of Minnesota been used in the same breath. No district court judge in the State of Minnesota ever, including any judge sitting now or any judge sitting previously, or any Minnesota District Court Judge sitting on the Minnesota Court of Appeals or the Minnesota Supreme Court ever, when the record showed a continuance for dismissal (for example let us say six months or twelve months) said to the defendant at the end of hearing:
By the way, before you start your six months of a continuance for a dismissal premised on your committing no same or similar offenses in the next six months, I’m going to sentence you to 90 days in the Hennepin County Workhouse, and I’m going to fine you $500. I’m going to stay the execution of 45 days of that sentence in the workhouse; I’m going to stay execution of $250 of the $500 fine, and put you on probation for six months on the usual terms of probation, including being on your best behavior and committing no other offenses, in addition, I’m going to impose a surcharge on the criminal fine and a library fine.
This has never been done in the State of Minnesota, and never will be. No judge imposes a “sentence” at the start of the informal probationary period of a continuance for dismissal. The sentence is imposed only if during the continued period, there is a charge of a violation and then a finding of guilty. Only at that time then is the “sentence” imposed.
To disenfranchise people who are charged with misdemeanors and deprive
The anomaly of Thoma has been criticized by Minnesota district court judges and commentators. Minnesota Practice, McCarr & Nordby, § 37.17, says in relevant part:
In a highly questionable decision, it has been held that a trial judge’s stay of adjudication is a “pre-trial” order, and therefore, appealable by the State (though it is always a post-trial or post-guilty plea act). This decision not only does violence to the plain meaning of the term “pre-trial,” but appears contrary to the rule mentioned above that the State’s right to appeal must be narrowly construed and exists only where expressly authorized.
9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.3 (3d ed. 2001). (Footnotes omitted).
Thoma goes on to buttress its argument that a misdemeanor sentence is not a sentence when it’s a stay of adjudication because of some claimed lack of finality or some lack of a “final judgment.” Thoma at 207. It is true that a stay of adjudication on a sentence means that guilt is not formally entered, but that is just a mechanical device to help a person clear his criminal record. As the Minnesota Supreme Court stated in State v. Hoelzel, 639 N.W.2d 605, 610 (Minn. 2002):
Nevertheless, when formal adjudication and entry or judgment are prohibited, a final disposition must still be made and entered on the record, reflecting what action was taken by the court. Thus, even when there is a stay of adjudication, a final disposition must be made and stay of adjudication must be entered on the record.
The Hoelzel case was on another issue, but I cite to it to point out the fact that if there is a “stay of adjudication” that does not mean that you did not have a real court proceeding with a real sentence and conditions of that sentence. Going to jail as part of the terms of probation is part of a real sentence. I cite Hoelzel to point out that even when there is a stay of adjudication, that fact is still part of the official record. The fact that the guilt was not formally adjudicated did not prevent the state from appealing the sentencing order in Krotzer and does not prevent the state from appealing the sentencing in this case.
Stays of adjudication are similar to stays of imposition of sentence. With a stay of imposition, if the defendant gets through the probationary period without revocation his felony is marked down in Minnesota to a misdemeanor. With a stay of adjudication if you successfully get through the period of probation, your record is marked down to a “zero” conviction. The state has no reason to complain. The state routinely agrees to stays of imposition and has no power to force the district court judge not to use them. Thus high-level felonies can be marked down to misdemeanors. In Krotzer (third degree criminal sexual conduct) the state recommended a stay of imposition (to its credit, a favorable recommendation) and thus agreed to accept a “markdown” for the serious felony to a misdemeanor. Krotzer at 253. That is far less of a markdown than a stay of adjudication on a misdemeanor or a petty misde
The identical format was recognized in State v. Lattimer. Lattimer involved the serious felony of criminal vehicle operation resulting in great bodily harm. 624 N.W.2d 284 (Minn. App. 2001),
[T]he prosecutor’s power to file charges and prosecute an individual was not infringed upon here. As Krotzer states, the Carver County prosecutor investigated the allegations against Krotzer, filed criminal charges, obtained a guilty plea, and recommended a disposition and sentence to the court. The trial court then postponed acceptance of the plea and placed Krotzer on probation, but this did not affect the prosecutor’s carefully defined role. See Olson, 325 N.W.2d at 18. The final disposition of a criminal case is ultimately a matter for the presiding judge. As we stated in Olson, once the legislature has defined the range of punishments for a particu- lar offense, it cannot “condition the imposition of the sentence by the court upon the prior approval of the prosecutor.” Id. See People v. Superior Court of San Mateo County, 11 Cal. 3d 59, 113 Cal. Rptr. 21, 26, 520 P.2d 405, 410 (1974) (prosecutor may not “veto” trial judge’s decision to divert defendant into pretrial treatment program because “disposition is a function of the judicial power no matter what the outcome“).
Both Krotzer and Lattimer are classic cases of nothing more than a stayed sentence, akin to a dispositional downward departure. Minn. Sent. Guidelines II. D.2a. There is no logical reason for some of Krotzer’s progeny to go into flights of fancy about “undefined special circumstance.” Krotzer is a good case that is an effective tool for district court judges when exercising their independent right to fashion a sentence to fit the ultimate facts of a case. The ultimate facts are never known until the conclusion of the pre-sentence
If you acknowledge that a stay of adjudication, like a stay of execution or a stay of imposition, is just a lenient reasonable sentence fashioned on the facts, and is just a dispositional downward departure, the state can stop crying “that the sky is falling down” when there is a stay of adjudication.
A respected commentator stated in relevant part:
A stay of adjudication is essentially a continuance of sentencing without final adjudication of guilt, usually upon certain conditions, and with the prospect of avoiding a conviction. In State v. Krotzer, the Minnesota Court of Appeals and Supreme Court, in well-reasoned opinions, recognized that the stay of adjudication is an inherent judicial power, which does not infringe upon the executive branch’s domain under the separation of powers doctrine. Then, however, in State v. Foss, a cursory and very poorly reasoned order, the Supreme Court greatly confused a situation which had been well-analyzed in Krotzer. The Foss order suggests that a stay of adjudication is appropriate only where “special circumstances” in a record display a “clear abuse of discretion in the exercise of the charging function.” But this is not what the Krotzer opinion said, and it is entirely inconsistent with Krotzer’s correct analysis of the separation of powers doctrine. The Foss order will not bear scrutiny and it is to be hoped the court will abandon it.
Two things should be obvious here, and appeared to be in Krotzer. First, the accusatory function is inherently and exclusively an executive function so long as probable cause is shown, the statute of limitations has not run, and there is no other fatal defect in the charge, the courts have no right or power to interfere with it. Second, the sentencing decision is inherently and exclusively judicial, with the sentencing parameters established by the legislature. Prosecutors may not control the decision, beyond the right to advocate for a particular disposition. The Foss court appears momentarily to have lost the understanding of this that it had demonstrated just months earlier in Krotzer.
The idea that the remedy for a clear abuse of discretion in charging is a stay of adjudication is insupportable. First, if the charge is constitutional and otherwise lawful, the courts have no right to undo it. Second, if it is not constitutional or lawful, the only and obvious remedy is immediate dismissal, not a stay of adjudication. Foss thus stands for the wholly untenable proposition that a defendant who has been wrongly accused may be placed upon probation and even jailed as a condition of probation and, of course, ultimately convicted if the probation is violated.3
The Foss order has had a number of unfortunate consequences. It confused the law on the separation of powers in a very important area. Because it did not overrule or reverse Krotzer, it left the bench and bar with two conflicting, and ultimately irreconcilable, decisions to struggle with. And it deprived trial judges of a sometimes very important, useful, and productive tool for dealing with the disposition of particular cases. The Supreme Court would do a considerable service to the bench, the bar, and the administration of justice if it would promptly abrogate the Foss order and reaffirm the validity of the Krotzer opinion.
A judge staying adjudication does not accept the guilty plea.
The defendant, however, may be placed in jail as a condition of the stay.
A stay of adjudication is specifically provided for by statute for certain drug offenses. Because of the separation of powers question discussed above, however, this provision is probably invalid and superfluous, since the power is inherent in the judiciary independent of the statute. A similar provision applies to juveniles.
Recent studies have repeatedly shown that members of minorities are prosecuted with a frequency and sentenced with a severity in great disproportion to the representation in the population at large. A part of this very serious problem is that minorities are much more often arrested and prosecuted for low-level offenses, usually in relatively distressed areas of large cities. This, in turn, results in criminal records which interfere with employability (and thus lead to public dependence and further crime), and enhance the seriousness of later charges and penalties. The stay of adjudication is (or was, before the Foss decision, and could be again if the court would reverse it) a device with which trial judges can to a degree temper this insupportable process of stigmatizing minorities.
This is not to say, of course, that a defendant’s race is in itself a proper basis for a sentencing decision; clearly it is not. But trial judges are well informed as to the total circumstances of an offense and an offender; they can draw upon their experience of hundreds and thousands of cases; they are familiar with arrest and prosecution practices within their communities and are thus able to discern disparate treatment of potential offenders in different parts of a jurisdiction. Yet, judges also realize that in most of these instances the prosecutor has not “abused discretion” in charging the defendant; there is usually ample probable cause the offense was committed. Most of these defendants are pro se or represented by public defenders, whose caseloads are often intolerably heavy. Plea bargains are offered at initial appearances which result in little or no penalty beyond a day or two in jail, and which defendants naturally accept. Thus, there is little incentive to dispute the issues involved. This saves the courts the enormous expense of trial of these offenses. But the cases nevertheless create criminal records (and incidentally fill already overburdened jails). It is highly desirable for judges to have the power in these circumstances to stay adjudication, in appropriate cases, and provide programs to help the offender avoid further mis-
Neither defense lawyers nor judges should abandon the hope that the Foss ruling will be altered. Prosecutors, remembering the duty ultimately to seek justice, not merely convictions, should also be open to more sympathetic consideration of stays of adjudication.
9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.3 (3d ed. 2001). (Footnotes omitted).
It is true that the Supreme Court has granted further review of misdemeanor sentences, in State v. Cash, 558 N.W.2d 735 (Minn. 1997), and State v. Foss, 556 N.W.2d 540 (Minn. 1996). However, in neither case did the Minnesota Supreme Court precisely consider the jurisdictional issue of
I understand that Thoma still stands for the proposition that the state can appeal a misdemeanor sentence when there is a stay of adjudication on the theory that it is some kind of pretrial order. I do not attempt to overrule Thoma. I make no attempt at distinguishing Thoma from this case. Both cases are out there, Thoma, and now this one. The Minnesota Supreme Court will have to take a stand and make a definitive statement on the precise issue. The issue could be defined as follows:
When the charge is a felony and the district court judge hears a defendant’s plea of guilty and finds that the essential facts of the charged crime are proven and goes on to order a pre-sentence investigation, and then at sentencing goes on to look at different sentencing options, including an executed sentence, a stay of execution, a stay of imposition, and a stay of adjudication and then selects a stay of adjudication, and the state appeals that sentence to an appellate court, that procedure is known as a sentencing appeal.
When the criminal charge is a misdemeanor (or a petty misdemeanor),4 and, the identical format to Krotzer is followed, meaning a plea hearing, a determination that a crime was committed, a pre-sentence investigation, and then a sentence composed of probation, jail time, costs, surcharges, etc., and then a stay of adjudication, why is it not an appeal from that sentence the same as a sentencing appeal in Krotzer leading to the logical bar of
I will not, at the expense of the thousands of Minnesotans who are charged with mis-4a
There is no other satisfactory answer than a full review of this precise question. Stays of adjudication, as the prosecution freely admitted in Lattimer, have been going on for years, both before and after Krotzer, and it’s only the arbitrary state’s appeal that questions their validity as a sentence.
This haphazard approach without a firm and final review by the Minnesota Supreme Court has led to the triangulation we now face between the district court judges, the Minnesota Court of Appeals, and the Minnesota Supreme Court.
In conclusion, the first issue the Supreme Court must address is a misdemeanor sentence when there is a stay of adjudication and the effect of
The second issue is the basis for a stay of adjudication on felonies, and on misdemeanors if an appealability exception is carved out. I suggest strongly that the justification be, as I stated before, nothing more complicated than the standard for a downward dispositional departure.
Krotzer is a good case. Let us all just read it and follow it.