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UNPUBLISHED CRIMINAL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-0816William Richard Iverson, petitioner, Appellant, vs. State of Minnesota, Respondent. LANSING, Judge The postconviction court, without a hearing, determined that William Iverson's third petition for postconviction relief and his petition for a writ of habeas corpus were procedurally barred and denied both petitions. Iverson's postconviction claims are essentially the same claims of mental illness and improper sentencing that have been raised and decided in his earlier postconviction appeals, and his petition for habeas relief is procedurally barred because it was not filed in the county in which he is detained. We therefore affirm. = = = = A07-776 State of Minnesota, Respondent, vs. Brian Jeffrey Cohen, Appellant. WORKE, Judge On appeal from a conviction of fourth-degree driving while impaired, appellant argues that police seized him by approaching his parked vehicle and lacked reasonable suspicion to justify an investigative detention. Because we conclude that the officer's actions did not amount to a seizure and that, even if a seizure occurred, reasonable, articulable suspicion existed to investigate appellant for violating a city ordinance, we affirm. = = = = A07-0720 State of Minnesota, Respondent, vs. Martez Lavell Gibson, Appellant. HARTEN, Judge Appellant Martez Gibson challenges his conviction of possession of a firearm by an ineligible person, arguing that the evidence of the firearm should have been suppressed because the stop of the car in which appellant had the firearm was unconstitutional and the officers arrested him without probable cause. Because we conclude that the stop of the car was constitutional and that the officers' show of force was reasonable, we affirm. = = = = A07-0555 Marc J. Arens, petitioner, Appellant, vs. State of Minnesota, Respondent COLLINS, Judge On appeal from the denial of postconviction relief, appellant Marc J. Arens argues that the district court abused its discretion in summarily denying his petition without an evidentiary hearing. Because appellant's claims are procedurally barred by the Knaffla rule, we affirm. = = = = A07-0329 State of Minnesota, Respondent, vs. Frank Jessie LaRose, Appellant. MINGE, Judge Appellant challenges the district court's (a) denial of his request for a downward sentencing departure following a conviction for felony escape; (b) imposition of a consecutive instead of a concurrent sentence for the escape conviction; and (c) failure to calculate the consecutive sentence using a criminal history score of zero. Because we conclude that the district court did not abuse its discretion in denying a downward departure or imposing a consecutive sentence, but erred in failing to use a criminal history score of zero when calculating the length of appellant's sentence for escape, we affirm in part, reverse in part, and remand for resentencing. = = = = A07-318 State of Minnesota, Respondent, vs. Charles Lee Makidon, Appellant. WORKE, Judge On appeal from convictions of reckless use of a dangerous weapon and attempted discharge of a firearm, appellant argues that he is entitled to a new trial because the district court refused to give a self-defense or defense-of-home jury instruction. We affirm. = = = = A07-0170 State of Minnesota, Respondent, vs. Jesse P. Novicky, Appellant. STONEBURNER, Judge Appellant challenges his convictions of ineligible-person possession of a firearm and fifth-degree controlled-substance crime, arguing that the district court abused its discretion by (1) failing to suppress evidence obtained from a cell phone without a warrant; (2) admitting the cell phone into evidence without proper chain-of-custody evidence; (3) denying appellant's request for an in camera review of personnel records of one of the arresting officers; and (4) holding that if appellant testified he could be impeached with evidence of prior convictions. Because we conclude that the district court did not abuse its discretion in any of its evidentiary rulings, we affirm. = = = = A07-0053 State of Minnesota, Respondent, vs. Donald Poillon, Appellant. KLAPHAKE, Judge On appeal from the district court's order revoking his probation and executing a 72-month sentence for conspiracy to commit first-degree controlled substance crime, appellant Donald Poillon asserts that (1) the district court erred in concluding that no further jail time could be imposed as an intermediate sanction for his probation violations; (2) the district court abused its discretion in revoking appellant's probation because the evidence did not demonstrate that the need to confine him outweighed the policies favoring his continued placement on probation; and (3) the district court erred in determining jail credit because his participation in a residential treatment program was the functional equivalent of jail time. Although we agree that the district court erred as a matter of law in concluding that appellant could not receive more jail time as a sanction for violating probation, we conclude that the district court did not abuse its discretion in revoking appellant's probation because there was strong evidence to support revocation. We further observe no abuse of discretion in the district court's calculation of jail credit where the record evidence shows that appellant's placement in a residential treatment program was not the functional equivalent of jail time. = = = = A07-45 State of Minnesota, Respondent, vs. Paul Rogalski, Appellant. CONNOLLY, Judge Appellant challenged his conviction of first-degree driving-while-impaired and first-degree test refusal. Because no reversible error was committed, we affirm his conviction. However, because appellant was not given an opportunity to exercise his right to allocute at sentencing, we remand for a new sentencing hearing. = = = = A06-2436 State of Minnesota, Respondent, vs. Charles Lockhart, Appellant. WILLIS, Judge Appellant challenges his conviction of first-degree aggravated robbery, arguing that the evidence was insufficient to support the conviction and that the prosecutor committed misconduct. We affirm. = = = = A06-2364 State of Minnesota, Respondent, vs. Reginald Flowers, Appellant. MINGE, Judge Appellant argues that the district court abused its discretion by refusing to grant him a downward sentencing departure, and that it erred in failing to issue written findings regarding his motion for such a departure. Because the record indicates that the district court considered appellant's request and because there is no requirement that the district court issue written findings when imposing a presumptive sentence, we affirm. = = = = A06-2340 State of Minnesota, Respondent, vs. Creighton Martin Olcott, Appellant. SHUMAKER, Judge After being charged with careless driving and driving with a blood-alcohol concentration of .08 or more, appellant sought to discover the "source code" of the software used to operate the Intoxilyzer 5000EN that produced a breath analysis reading of .17. The district court ruled that appellant failed to make the rule 9.01, subd. 2(3), showing that is a prerequisite to such discovery. Appellant contends this ruling was an abuse of discretion. We affirm. = = = = A06-2115 State of Minnesota, Respondent, vs. Timothy Warren Kuhnau, Appellant. WILLIS, Judge Appellant challenges his conviction of fifth-degree possession of a controlled substance, arguing that the district court should have suppressed controlled-substance evidence because it was obtained as a result of (1) an unconstitutional seizure or, in the alternative, (2) a search that was unconstitutional because it was not incident to a lawful custodial arrest. We affirm. = = = = A06-2103 State of Minnesota, Respondent, vs. Ohohshecha Defoe, Appellant. SHUMAKER, Judge On appeal from his conviction of simple robbery, appellant challenges the admission into evidence of a one-person show-up, arguing that the show-up was impermissibly suggestive. Appellant also raises several arguments in his pro se supplemental brief. We affirm. = = = = A06-2012 State of Minnesota, Respondent, vs. Jay Dee Kaufman, Appellant. HUDSON, Judge On appeal from resentencing, appellant raises several issues associated with the resentencing-jury trial and his sentence. Specifically, appellant argues that the district court erred when it accepted the jury's finding that appellant treated the victim with particular cruelty, an aggravating factor that the district court then used to impose an upward durational departure on the kidnapping offense; imposed a consecutive sentence for his criminal-sexual-conduct offense; and failed to provide the jury with a definition of particular cruelty and instructed the jury that its decision would assist the court in sentencing. Appellant also argues that the prosecutor committed misconduct during closing argument and that the cumulative effect of the errors justifies reversal. In addition, appellant argues in his pro se supplemental brief that he received ineffective assistance of counsel and that his resentencing hearing date was delayed. We affirm. |
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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
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