Beltrami County District Court File No. K6-03-813.
Considered and decided by Minge, Presiding Judge; Wright, Judge; and
To establish a violation of the right to due process based on pre-charge delay, a defendant must establish that a pre-charge delay substantially prejudiced the defendant's right to a fair trial and that the state intentionally caused such delay in order to gain a tactical advantage over the defendant.
The opinion of the court was delivered by: Wright, Judge
Appellant asserts that his right to due process was violated because the state intentionally delayed charging him with first-degree burglary in order to obtain a substantially increased criminal history score and sentence. We affirm.
On March 15, 2003, hours after police received a report of a home burglary, appellant Cheyenne Lussier was arrested. On March 18, 2003, in connection with this incident, the state charged Lussier with one count of second-degree burglary, in violation of Minn. Stat. § 609.582, subd. 2 (2002); one count of third-degree burglary, in violation of Minn. Stat. § 609.582, subd. 4 (2002); and three counts of attempted theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (2002). Lussier subsequently pleaded guilty to these charges, and on May 5, 2003, Lussier was sentenced to 33 months' imprisonment.
On March 21, 2003, while Lussier was in custody for the March 15 burglary, he admitted his involvement in a home burglary committed on November 27, 2002. On May 7, 2003, the state charged Lussier with one count of first-degree burglary with a dangerous weapon, in violation of Minn. Stat. § 609.582, subd. 1(b) (2002), for the November 27 offense. Lussier moved to dismiss this charge, alleging prosecutorial misconduct and violation of his right to due process. According to Lussier, the state had probable cause to charge him with the November 27 burglary before it was charged on May 7, but the state delayed prosecution of the November 27 burglary offense so that the convictions of the March 15 offenses would increase the severity of his criminal history score for the November 27 burglary.
In support of this assertion, Lussier relied on a statement by the prosecutor at the guilty plea hearing on the March 15 offenses. Regarding the sentences on the five counts, as well as the sentence executed upon the revocation of probation on another offense, the prosecutor explained to the district court, "I looked for a way to make them consecutive, but I couldn't find it. So that is my understanding, that under the Guidelines, they would be concurrent sentences, Your Honor." Lussier argued that, because the state's prior attempt at securing consecutive sentences had been frustrated, the state improperly delayed prosecution of the November 27 offense to increase the severity of the sentence. The convictions arising from the March 15 incident increased Lussier's criminal history score from three to six and increased his presumptive guideline sentence from 78 to 108 months.
The state denied the allegations of bad faith or improper motive. In its order dated August 4, 2003, the district court denied Lussier's motion to dismiss.
Lussier pleaded guilty to first-degree burglary with a dangerous weapon on December 3, 2003. Relying on its argument that the state had delayed prosecution to obtain a more severe sentence, Lussier moved for a downward durational departure. He sought a sentence of 78 months, based on a criminal history score that did not reflect the convictions of the March 15 offenses. The district court ...