Hennepin County District Court File No. 99094315
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and
1. The post-conviction court did not err when it vacated respondent's plea and sentence on the basis of ineffective assistance of counsel for failing to move to suppress a DNA sample. The DNA sample at issue was taken pursuant to a court order requiring respondent, as part of his sentence in a previous case, to provide a sample. The sentencing order in that case was overturned on appeal.
2. The Knaffla rule does not prohibit the submission of a post-conviction petition in a separate and distinct criminal prosecution after a direct appeal has been taken.
The opinion of the court was delivered by: Randall, Judge
Dissenting, Lansing, Judge
Respondent Kevin Johnson entered a guilty plea to first-degree criminal sexual conduct and was sentenced for a period of 146 months. A post-conviction court granted respondent's petition for post-conviction relief finding there was ineffective assistance of counsel because respondent's attorney failed to challenge the admission of DNA evidence taken pursuant to a court order in a previous conviction that had been reversed on appeal. Appellant alleges that the post-conviction court erred in ruling that respondent's attorney was ineffective. The state further argues (1) respondent's attorney did in fact move to suppress the DNA evidence; (2) the Knaffla rule bars respondent from challenging the admission of the evidence; and (3) because the sample was obtained pursuant to a court order and not through any misconduct by police, the court erred in applying the exclusionary rule. We affirm.
On November 6, 1997, respondent Kevin Johnson was charged with first-degree criminal sexual conduct and third-degree criminal sexual conduct under Minn. Stat. §§á609.342, subd. 1(d) and 609.344, subd. 1(c) (1996). According to the complaint, on October 26, 1997, respondent held a large metal pipe to the head of T.H.S. and forced her to have sex with him, threatening to hurt or kill her if she resisted. Respondent denied the allegations, claiming T.H.S. falsely accused him of rape because he did not pay her money he had promised her. After a plea agreement had been reached, on February 3, 1998, respondent entered a guilty plea to the charge of promotion of prostitution by fraud in violation of Minn. Stat. § 609.322, subd. 2(1) (1996). In exchange, the state dismissed the criminal sexual conduct charges. The terms of the negotiation were that respondent would receive probation and a stayed sentence. Other terms and conditions were left up to the court.
As a basis for the guilty plea, respondent admitted that he and T.H.S. had agreed to carry out a prostitution scam on the weekend of October 26, 1997. Under the plan, respondent presented T.H.S. as a prostitute under his control, and they convinced people she would have sex with them for money. Respondent took money from the customers, but T.H.S. did not have sex with them. The plan was to divide the proceeds, but respondent never paid T.H.S. her share of the proceeds. Respondent was sentenced on March 3, 1998. The district court rejected respondent's argument that his conviction did not "arise from the same set of circumstances" as the original criminal sexual conduct charges and ordered him to register as a sex offender under Minn. Stat. § 243.166, subd. 1(a)(1)(iii) (1996).
As part of the plea agreement, respondent received a stayed sentence of 60 months, with five years' probation. As terms and conditions of probation, the court ordered respondent to follow all probation department rules, remain law abiding, serve 180 days in the workhouse, have no contact with T.H.S., successfully complete a sex-offender treatment program, and submit a DNA sample. Respondent initially complied with the terms of his probation, but in November 1998, he was dropped from the sex-offender treatment program for having missed four consecutive classes, twice failed to contact his probation officer, and missed one probation appointment.
Because of these violations, the state moved to revoke his probation. Respondent denied the allegations and filed a motion to withdraw his guilty plea. He claimed his plea was invalid for ineffective assistance of counsel and because he was unaware of the sex-offender registration requirement.
Respondent, at that point, did not mention the DNA sample that he had been required to submit. At the hearing for Respondent's motion to withdraw his guilty plea, he testified that he would not have pleaded guilty had he known it would require him to register as a sex offender. On April 20, 1999, the court denied his motion to withdraw his guilty plea finding that (a) appellant knew at sentencing of his duty to register but chose not to seek withdrawal of his guilty plea; (b) the duty to register was a collateral, rather than a direct, consequence of pleading guilty; (c) his counsel was not ineffective; (d) his plea was valid; (e) respondent violated his probation by being terminated from the sex-offender program and by failing to keep in contact with his probation officer. At this point, any issue of the DNA sample had still not come up. The district court denied respondent's motion to reconsider, concluded confinement was necessary, revoked probation, and executed the sentence.
Respondent appealed claiming the district court erred in (a) requiring him to register as a sex offender; (b) denying his motion to withdraw the guilty plea; and (c) revoking his probation. Respondent's then appellate attorney, SJ, "attorney number 1," argued that respondent was improperly required to register as a sex offender. The requirement to submit a DNA sample as part of that same sentencing still had not been raised at this point. This court on April 11, 2000, held that respondent's conviction did not arise from the same set of circumstances as the original charge and reversed and remanded so that respondent could, if he wished, withdraw his guilty plea. This court held that if "the "prostitution scam" statute turned out to be the basis for a new negotiated plea, registration as a sex offender cannot be required." State v. Johnson, 2000 WL 365051 (Minn. App. April 11, 2000) (Johnson I). Johnson I did not mention the requirement for a DNA sample. It had not been raised (only the requirement to register as a sex offender had been raised).
Now fast rewind. Back in April of 1999, while the appeal on the requirement to register as a sex offender was pending, the bureau of criminal apprehension (BCA) matched respondent's DNA sample with an unsolved 1992 rape. Respondent's DNA sample was the one ordered by the district court pursuant to that 1998 conviction for promotion of prostitution by fraud. On May 5, 1999, Sergeant Martinson executed a search warrant and obtained a sample of respondent's blood.
Now back to the present. At a July 12, 2000 bail hearing on this new rape charge, respondent's attorney, now JR, "attorney number 2," did bring up the subject of challenging the DNA sample because it had been taken as part of a sentencing order in a case that by now had been reversed. Attorney number 2 was later replaced by LR, "attorney number 3," a private attorney who worked on conflict cases for the Hennepin County Public Defender's Office. LR's representation is at issue.
On September 21, 1999, respondent was charged with first-degree criminal sexual conduct for the 1992 rape. At a Rasmussen hearing held on November 13, 2000, LR contested the May 5, 1999 blood sample taken pursuant to Martinson's search warrant. LR argued that a hearing should have been held prior to taking respondent's blood. LR did not argue that the initial DNA sample (matched to Martinson's search warrant sample) had been taken pursuant to the older 1998 conviction that had, by that point, been reversed and, thus, that 1998 sample should be suppressed. See Johnson I.
On November 15, 2000, respondent entered a guilty plea to first-degree criminal sexual conduct and on December 13, 2000, was sentenced for a period of 146 months. On March 13, 2001, respondent filed a notice of appeal to the court of appeals. Respondent then, in July 2001, filed a motion to stay the appeal to allow him to pursue post-conviction relief. That motion was granted on August 13, 2001.
In November 2001, respondent filed a petition for post-conviction relief arguing that his attorney, LR, was ineffective because he failed to challenge the admissibility of the DNA evidence based on the Johnson I conclusion that the "prostitution scam" conviction did not arise out of the same set of circumstances as the initial charge and, therefore, the requirement to provide a DNA sample should have been set aside, just as the requirement that respondent register as a sexual offender had been set aside.
On April 29, 2002, the post-conviction court granted the petition finding there was ineffective assistance of counsel for failing to challenge the DNA evidence based on ...