author: JOHNSON, Judge. CRIPPEN, Judge

text:
    CITY OF WEST ST. PAUL, Respondent v. Alice Jane KRENGEL, Appellant.
    No. A07-310.
    Court of Appeals of Minnesota.
    May 6, 2008.

      Pierre N. Regnier, Susan Steffen Tice, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for respondent.
    Michael Hagedorn, and Julia Althoff, Southern Minnesota Regional Legal Services, St. Paul, MN, for appellant.
    Considered and decided by JOHNSON, Presiding Judge; HUDSON, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

JOHNSON, Judge.

Alice Jane Krengel has been a homeowner in the City of West St. Paul for approximately 20 years. She has been an extreme annoyance to her neighbors. For that reason, the district court issued injunctions pursuant to the Public Nuisance Law that prevented Krengel from living at or using her homestead property for one year.

Krengel appeals, arguing that the permanent injunction was improper because the public nuisance was not ongoing when the city sought and obtained the permanent injunction. We interpret the Public Nuisance Law to require the city to prove that two or more incidents of nuisance activity, as defined by statute, occurred within the 12-month period preceding the hearing on the city’s request for the permanent injunction. We thus conclude that the district court erred because the city’s evidence of nuisance activity consisted solely of incidents occurring 15 or more months before the hearing on the city’s request for the permanent injunction. Therefore, we vacate the permanent injunction.

FACTS

A. Background

Krengel has owned a house on Allen Avenue in West St. Paul for approximately 20 years. The house has been her residence during that time period, except for a one-year period between August 2006 and August 2007, when she was prohibited from using the property by a temporary injunction and by the permanent injunction that she challenges in this appeal.

The district court found that, over a six-year period, Krengel’s neighbors “have been subjected to intoxicated persons at her home, yelling, arguing with one another, and screaming obscenities, at all hours of the days and nights.” For example, a next-door neighbor witnessed Krengel’s guests urinating on the neighbor’s bushes. Another neighboring family feared for the safety and welfare of its teen-aged daughter because Krengel’s boarders and guests made lewd and suggestive comments to her when she walked past Krengel’s house. The police department received 29 reports regarding the property in a period of approximately one year. Krengel has not challenged these findings of facts. Furthermore, Krengel twice pleaded guilty to the misdemeanor charge of public nuisance, in violation of Minn.Stat. § 609.74(1) (2004) and Minn.Stat. § 609.745 (2004), for incidents occurring on November 14, 2004, and April 10, 2005.

The incidents described above occurred between September 28, 2004, and July 12, 2005. Those incidents prompted the city attorney to send a letter to Krengel on July 29, 2005, to put her on notice that if she did not either abate the nuisance or enter into an abatement plan with the city, the city would seek an injunction pursuant to the Public Nuisance Law. The letter described 13 objectionable incidents. Among them were several incidents in which Krengel’s guests were taken to a detoxification unit or to a hospital because of high blood-alcohol content; an incident in which two intoxicated males assaulted one another with hammers, with resulting injuries; and an incident in which two persons argued loudly in Krengel’s yard while pushing and slapping each other. The city attorney informed Krengel that the city would commence an action in district court to enjoin the public nuisance if Krengel did not either “abate the nuisance or enter into an agreed abatement plan within 30 days of service of this Notice.”

After receiving the city’s July 29, 2005, letter, Krengel and the city entered into an abatement plan. Krengel signed the two-page document on August 17, 2005. The city council ratified it by a 6-0 vote on August 22, 2005, and the plan subsequently was signed by the mayor. The operative terms of the abatement plan (1) prohibited Krengel from using alcohol or controlled substances; (2) prohibited Krengel from keeping alcohol, alcohol containers, or controlled substances at the property; (3) prohibited Krengel from allowing more than three unrelated persons to reside at the property; (4) permitted certain police officers to make “random visits” to her home; (5) permitted certain police officers to administer random preliminary breath tests to Krengel; and (6) required Krengel to attend 90 meetings of Alcoholics Anonymous within 120 days and to submit verification of her attendance to the city attorney’s office. The abatement plan was to be in effect for one year. In the final paragraph of the plan, Krengel acknowledged “that any violation of the terms and conditions of the Abatement Plan will allow the City Council to pursue injunctive action as stated in the Notice of Injunctive Action.”

During the subsequent year, Krengel apparently stopped the egregious conduct that had prompted the city to send the July 29, 2005, letter, but she did not comply with the abatement plan. The district court found that Krengel violated the plan on seven occasions. First, on September 17, 2005, Krengel purchased a bottle of rum at a' liquor store. When police officers went to her home to investigate, Krengel refused to admit them. Second, on March 16, 2006, one of Krengel’s boarders purchased a 12-pack of beer at a liquor store and walked directly to Krengel’s home. Investigating police officers who went to Krengel’s home detected alcohol on Krengel’s breath. Third, on May 6, 2006, Krengel refused to admit a police officer who sought to conduct a random inspection pursuant to the abatement plan. Fourth, on May 7, 2006, Krengel again refused to admit a police officer who sought to conduct a random inspection pursuant to the abatement plan. The officer detected the odor of alcohol on Kren-gel’s breath as well as slurred speech when she answered the door. Fifth, on June 29, 2006, an anonymous caller reported to police that Krengel had been drinking. When an officer went to Krengel’s home, Krengel was sleeping in a bedroom. Sixth, on July 28, 2006, an officer saw Krengel walking on the sidewalk near her home and into her home while carrying a bottle that Krengel later admitted contained vodka. Krengel consented to a preliminary breath test, which revealed an alcohol concentration of 0.258. The officer’s report stated that the “house was very quiet” and Krengel was “very cooperative.” Seventh, on August 4, 2006, an officer saw Krengel walk into a neighborhood liquor store and, after entering the store, witnessed Krengel buying a bottle of vodka.

In response to Krengel’s violations of the abatement plan, the city sent Krengel a second letter on June 27, 2006, that again provided notice of the city’s intent to seek injunctive relief. The letter set forth the first four incidents described above that constituted violations of the abatement plan and also recited the same 13 incidents that were described in the first notice in July 2005. The letter concluded with language similar to the first letter— that the city would commence an action in district court to enjoin the nuisance if Krengel did not either “abate the nuisance or enter into an agreed abatement plan within SO days of service of this Notice.”

B. District Court Action

On July 31, 2006, thirty-four days after its second notice, the city commenced an action in the Dakota County District Court. The city promptly moved for a temporary injunction to prohibit Krengel from maintaining a nuisance at her property. On August 3, 2006, the district court conducted a hearing on the motion. On August 10, 2006, the district court issued an order granting the motion and enjoining Krengel from residing at the property, from engaging in nuisance activity at the property, and from entering the property without prior approval of the police department. The order required Krengel to vacate her property by August 5, 2006, which indicates that the district court may have granted the motion orally at the hearing.

The city then proceeded to seek a permanent injunction. The district court conducted a hearing on October 17, 2006. The district court issued findings of fact and conclusions of law in an order that was signed by the district judge on November 15, 2006, and filed with the court administrator on November 20, 2006. The order stated that Krengel is enjoined from occupying her home for one year from the date of the issuance of the temporary injunction, except that she may “enter the premises on five days from the hours of 8 a.m. to 5 p.m. to pack up personal belongings and to secure valuables and other items.” In an affidavit that Krengel filed with the district court in August 2007, she stated that she lived at a homeless shelter for most of her year-long expulsion.

Krengel filed a timely notice of appeal from the district court’s permanent injunction. The temporary injunction is not at issue in this appeal.

C. Post-Judgment Motions

After the district court issued the permanent injunction, Krengel made three attempts to stay enforcement of the injunction while she pursued this appeal. First, on December 13, 2006, Krengel filed a petition for a writ of prohibition with this court, seeking to preclude the district court from enforcing the permanent injunction. This court denied the petition in an order dated January 16, 2007. Second, on February 14, 2007, Krengel filed a motion in the district court to stay enforcement of the permanent injunction pending appeal. The district court conducted a hearing on February 27, 2007, and denied the motion in an order dated March 21, 2007. Third, on May 3, 2007, Krengel asked this court to review and reverse the district court’s denial of her motion for a stay. This court denied Krengel’s motion in an order dated May 22, 2007.

On July 26, 2007, shortly before the expiration of the permanent injunction, the city moved the district court to extend the permanent injunction for six additional months. After an August 9, 2007, hearing, the district court denied the motion on the ground that the city had not given Krengel the notice required by Minn.Stat. § 617.81, subd. 4 (2006).

On August 15, 2007, after this appeal had been fully briefed and was awaiting oral argument, the city filed a motion to dismiss the appeal as moot because the permanent injunction had expired. On August 28, 2007, this court issued an order deferring the motion to the panel considering the merits of the appeal.

ISSUES

I. Does Krengel’s appeal present a jus-ticiable controversy even though the permanent injunction has expired?

II. Under Minn.Stat. §§ 617.81-.87, may a district court issue a permanent injunction if the last incident of statutorily defined nuisance activity occurred more than 12 months before the hearing on the city’s request for a permanent injunction?

ANALYSIS

I.

The city has moved to dismiss the appeal as moot, arguing that there no longer is a live controversy because the permanent injunction has expired. “The issue of whether a cause of action is moot is a question of law, which we review de novo.” In re Risk Level Determination of J.V., 741 N.W.2d 612, 614 (Minn.App.2007), review denied (Minn. Feb. 19, 2008).

A case is moot if there is no justiciable controversy. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn.2005); State e* rel. Sviggum v. Hanson, 732 N.W.2d 312, 321 (Minn.App.2007). A justiciable controversy is one that “involves definite and concrete assertions of right,” J.V., 741 N.W.2d at 614, and “allows for specific relief by a decree or judgment of a specific character as distinguished from an advisory opinion predicated on hypothetical facts,” Sviggum, 732 N.W.2d at 321 (citing Holiday Acres No. S v. Midwest Fed. Sav. & Loan Ass’n of Minneapolis, 271 N.W.2d 445, 447 (Minn.1978)). Appellate courts “decide only actual controversies and avoid advisory opinions.” In re McCaskill, 603 N.W.2d 326, 327 (Minn.1999). Thus, when there is “no injury that a court can redress, the case must be dismissed for lack of justiciability,” except in certain “narrowly-defined circumstances.” Sviggum, 1Z2. N.W.2d at 321.

A matter will not be dismissed as moot, however, if (1) the issue raised is capable of repetition yet evading review or (2) collateral consequences attach to the otherwise moot ruling. McCaskill, 603 N.W.2d at 327. At oral argument, Krengel abandoned her argument concerning the second exception. She argues only that we should apply the first exception, that the propriety of the permanent injunction is capable of repetition yet evading review. This exception is well established. See, e.g., Kahn, 701 N.W.2d at 821; State ex rel. Archabal v. County of Hennepin, 505 N.W.2d 294, 297 (Minn.1993); State ex rel. Doe v. Madonna, 295 N.W.2d 356, 361 (Minn.1980). The eapable-of-rep-etition-yet-evading-review exception may apply if “ ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Kahn, 701 N.W.2d at 821 (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975)). The rationale of the exception is that to “ ‘abandon the case at an advanced stage may prove more wasteful than frugal.’ ” Sviggum, 732 N.W.2d at 322 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 710, 145 L.Ed.2d 610 (2000)).

A. Duration of Challenged Action

We first must determine whether the permanent injunction “was in its duration too short to be fully litigated prior to its cessation or expiration.” Kahn, 701 N.W.2d at 821. The permanent injunction was in effect for approximately nine months before it expired. This period of time was too short to allow the judicial process to reach conclusion. In fact, the oral argument in this case was scheduled for a date approximately six months after the permanent injunction had expired.

The procedural posture of this case is comparable to that of Madonna, in which the plaintiffs challenged their confinements while awaiting a hearing to determine whether they should be committed to mental institutions. 295 N.W.2d at 358. The plaintiffs filed petitions for habeas corpus during their pre-hearing confinements, which lasted only a matter of weeks, but the petitions were not adjudicated before their pre-hearing confinements ended. Id. at 358-59. Approximately two and one-half years later, the supreme court held that the case was not moot, reasoning that “some method of review must exist.” Id. at 361; see also Burkstrand v. Burkstrand, 632 N.W.2d 206, 208 n. 2 (Minn.2001) (holding that challenge to one-year order for protection was not moot even though it had expired); Davis v. Davis, 297 Minn. 187, 188 n. 1, 210 N.W.2d 221, 223 n. 1 (1973) (holding that challenge to one-year residency requirement for divorce action was not moot even though plaintiff had since satisfied requirement). Thus, the first requirement of Kahn has been satisfied.

B. Reasonable Expectation of Repetition

The second requirement of Kahn is that there is “a reasonable expectation that the same complaining party would be subjected to the same action again.” 701 N.W.2d at 821 (quotation omitted). Throughout its brief, the city emphasizes the persistent nature of the objectionable situation at Krengel’s property and the resources that the city’s police department has been forced to expend in responding to complaints from Krengel’s neighbors as well as calls for assistance from Krengel herself when guests or boarders are out of control. The city has vigorously pursued this legal action as a means of preventing future problems. It appears that the city is likely to continue to pursue a legal solution to the situation that exists at Krengel’s property.

In fact, the city has sought to apply the Public Nuisance Law to Krengel on a second occasion. When the permanent injunction was due to expire in August 2007, the city sought to extend the injunction for an additional six months pursuant to the Public Nuisance Law. The district court denied relief on the ground that the city had not given Krengel the written notice required by Minn.Stat. § 617.81, subd. 4 (2006). The city’s repeated efforts to enforce the Public Nuisance Law against Krengel “undercut[ ] [the city’s] claim that repetition of the governmental action in this case is remote and speculative as to” Krengel. Madonna, 295 N.W.2d at 861.

These facts lead to the conclusion that there is “a reasonable expectation” that Krengel may be “subjected to the same action again.” Kahn, 701 N.W.2d at 821 (quotation omitted). We need not consider the possibility that another person in Minnesota who owns or possesses real property may become a defendant in a civil action in which a city, a county, or the state seeks an injunction pursuant to the Public Nuisance Law. See id. at 823 (considering whether same issue may arise in future with respect to non-parties). Thus, the second requirement of Kahn has been satisfied.

C. Summary

Both of Kahn’s requirements have been satisfied. Nonetheless, mootness is “ ‘a flexible discretionary doctrine, not a mechanical rule that is invoked automatically.’ ” Jasper v. Commissioner of Pub. Safety, 642 N.W.2d 485, 439 (Minn.2002) (quoting State v. Rud, 359 N.W.2d 573, 576 (Minn.1984)).

Although we naturally hesitate to make an exception to mootness, it is appropriate to do so here. It is significant that Kren-gel was unable to obtain appellate review of the permanent injunction before it expired despite having made three vigorous efforts to do so. First, she petitioned for writ of prohibition with this court, seeking to prohibit the district court from enforcing the permanent injunction. Second, she moved the district court for a stay of enforcement of the permanent injunction pending appeal. And third, she asked this court to review the district court’s denial of her motion for a stay. All of these efforts were unsuccessful. Although Krengel’s notice of appeal and her requests for stays were not filed as soon as possible, the lack of appellate review prior to expiration of the permanent injunction was due simply to the duration of the legal process.. In addition, to decline to exercise appellate review would leave open the possibility that Krengel might, in the near future, be in the same position again if the city resumes legal action against her.

Thus, we conclude that Krengel’s appeal is not moot despite the expiration of the permanent injunction.

II.

Krengel’s primary argument is that the Public Nuisance Law requires a court to find that two incidents of a statutorily defined public nuisance occurred within the previous 12 months and that there is no such proof in this case. Krengel’s argument requires that we construe the Public Nuisance Law. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

A. Statutory Framework

Sections 617.80 through 617.87 of the Minnesota Statutes provide a means by which a city, a county, or the state may abate a public nuisance. The statute is known as the “Public Nuisance Law.” City of Minneapolis v. Fisher, 504 N.W.2d 520, 522-27 (Minn.App.1993), review denied (Minn. Sept. 30, 1993). The statute defines “public nuisance” by listing nine types of activities, including certain conduct relating to prostitution, gambling, controlled substances, unlicensed and unlawful sales of alcoholic beverages, and firearms. Minn.Stat. § 617.81, subd. 2(a)(1), (2), (5), (6), (7), (8) (2006). As is relevant to this ease, the statute provides:

For purposes of sections 617.80 to 617.87, a public nuisance exists upon proof of two or more separate behavioral incidents of one or more of the following, committed within the previous 12 months within the building:
(3) maintaining a public nuisance in violation of section 609.74, clause (1) or (3);[] [and]
(4) permitting a public nuisance in violation of section 609.745;[]....

Minn.Stat. § 617.81, subd. 2(a).

The Public Nuisance Law sets forth both substantive criteria and procedural requirements for litigation involving alleged public nuisances. There are four steps in the process of obtaining a permanent injunction to abate a public nuisance under the Public Nuisance Law.

First, if a city (or other governmental entity authorized by Minn.Stat. § 617.80, subd. 9 (2006), to invoke the Public Nuisance Law) has reason to believe that a nuisance is being maintained, the city sends written notice to the owner of such a property and all other interested persons. Minn.Stat. § 617.81, subd. 4(a). Among other requirements, the notice must “state that a nuisance as defined in subdivision 2 is maintained or permitted,” must “summarize the evidence” of a nuisance, and must “inform the recipient that failure to abate the conduct ... could ... result in enjoining the use of the building for any purpose for one year.” Minn.Stat. § 617.81, subd. 4(b)(l)-(3). This written notice is a prerequisite to a civil action in district court and must be served on a property owner and all interested persons at least 30 days in advance of a civil action. Minn.Stat. § 617.82(c) (2006).

Second, the city commences a civil action in district court. The city may do so only if the “prosecuting attorney has cause to believe that a nuisance described in section 617.81, subdivision 2, exists.” Minn.Stat. § 617.82(c). If, within 30 days after service of the prior notice, the recipient of a notice has abated the nuisance or has entered into an abatement plan and remains in compliance with it, the city may not file a nuisance action in district court. Minn. Stat. § 617.82(a). But if there is an abatement plan and the recipient “fails to comply with the agreed abatement plan,” the governmental entity may commence the action in district court. Minn.Stat. § 617.82(b).

Third, the city obtains a hearing on its motion for a temporary injunction and presents evidence in support of its motion. “Upon proof of a nuisance described in section 617.81, subdivision 2, the court shall issue a temporary injunction.” Minn. Stat. § 617.82(c). The temporary injunction “must describe the conduct to be enjoined.” Id.

Fourth, the city requests a permanent injunction and submits additional evidence, if any, in support of that request. “Upon proof of a nuisance described in section 617.81, subdivision 2, the court shall issue a permanent injunction and enter an order of abatement_” Minn.Stat. § 617.83 (2006). As with a temporary injunction, a permanent injunction “must describe the conduct permanently enjoined.” Id. As a general rule, “The order of abatement must direct the closing of the building or a portion of it for one year....” Id.; Fisher, 504 N.W.2d at 524.

B. Meaning of “Within the Previous Twelve Months”

In this case, the district court found that Krengel previously had pleaded guilty to criminal charges of public nuisance, in violation of sections 609.74 and 609.745, for incidents that occurred on November 14, 2004, and April 10, 2005. The district court also found that “nine different incidents of public nuisance” occurred between July 2004 and July 2005.

Krengel argues that the district court’s permanent injunction was improperly issued because the alleged public nuisance was not “ongoing” when the district court issued the permanent injunction. If an alleged nuisance is a static condition (such as, for example, an unlawful junkyard or the day-to-day operation of an illicit business), its presence is continuous so that it is reasonably clear whether the alleged condition is ongoing. But if the alleged nuisance is episodic, consisting of discrete incidents, as is the alleged nuisance at Krengel’s property, it is less clear whether the alleged condition is ongoing. Yet the statute contains a means of resolving the question; it provides that “a public nuisance exists upon proof of two or more separate behavioral incidents ... committed within the previous 12 months.” Minn. Stat. § 617.81, subd. 2(a). The issue at the core of this case is the meaning of the phrase “within the previous 12 months.”

Krengel urges us to interpret section 617.81, subdivision 2, to require proof of two “behavioral incidents” occurring within the 12 months preceding the city’s request for a permanent injunction. The city, on the other hand, contends that the 12-month period should be measured from the date on which the city served written notice of intent to seek injunctive relief pursuant to section 617.81, subdivision 4. The city sent its first notice on July 29, 2005, and its second notice on June 27, 2006. The city argues that the evidence offered to support the permanent injunction is sufficient because there were multiple incidents of nuisance activity in the 12-month period preceding the first notice.

If a statute is reasonably susceptible of more than one meaning, it is ambiguous. American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). But if “a statute’s meaning is plain, judicial construction is neither necessary nor proper.” Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002) (citing American Tower, 636 N.W.2d at 312), review denied (Minn. May 28, 2002). In that event, when “the language of a statute is plain, that meaning is applied as a manifestation of legislative intent.” Glacial Plains Coop. v. Hughes, 705 N.W.2d 195, 197 (Minn.App.2005).

The requirement that two or more behavioral incidents have occurred “within the previous 12 months” is contained in section 617.81, subdivision 2, which is a reference point for several other sections of the Public Nuisance Law. For example, the provision that authorizes a permanent injunction requires “proof of a nuisance described in section 617.81, subdivision 2.” Minn.Stat. § 617.83. Section 617.81, subdivision 2, in turn, states that “a public nuisance exists upon proof of two or more separate behavioral incidents ... committed within the previous 12 months.” The use of the word “proof’ in section 617.81, subdivision 2, and in section 617.83 demonstrates that the relevant event for purposes of measuring 12 months is the hearing on a city’s request for a permanent injunction. That is when the city is required to offer its “proof’ of a nuisance. This conclusion follows naturally from the principle that words and phrases of a statute should be given their ordinary meaning, and the various sections of a statute must be read together to give a whole act context. American Tower, 636 N.W.2d at 312; Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989). Furthermore, the word “exists” appears in the present tense, which requires that the nuisance not have been abated or otherwise resolved at the time of the city’s proof. See Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999) (stating that rules of grammar apply when determining meaning of statute). Thus, the statute requires a city or other governmental entity to prove that a nuisance exists at the time of the hearing on a request for a permanent injunction, which requires proof of two or more incidents of statutorily defined nuisance activity within the 12-month period preceding the hearing.

The city’s argument for a contrary interpretation of the statute is unpersuasive because it ignores the connection between section 617.83 and section 617.81, subdivision 2. As the supreme court recently stated, when words of a particular statutory provision are “used elsewhere in the statute,” they “furnish authoritative evidence of the legislature’s intent and meaning,” and a statute should be interpreted “in light of its surrounding sections, in order to avoid conflicting interpretations.” All Parks Alliance for Change v. Uniprop Manufactured Hous. Communities Income Fund, 732 N.W.2d 189, 193-94 (Minn.2007). Furthermore, the city’s argument fails to identify any statutory language that ties the 12-month period solely to the written notice. We do not suggest that the 12-month requirement does not apply to the written notice required by section 617.81, subdivision 4. We simply respond to Krengel’s argument by concluding that the 12-month requirement applies to the hearing on the request for a permanent injunction, an interpretation that is made plain by the common usage of the word “proof’ in section 617.83 and section 617.81, subdivision 2. We are appropriately “attentive” to the text of the statute “because statutory text is all that is enacted into law.” Klein Bancorporation, Inc. v. Commissioner of Revenue, 581 N.W.2d 863, 868 (Minn.App.1998), review denied (Minn. Sept. 22,1998). Thus, there is no reason to refer to extrinsic sources of information to divine the legislature’s intent.

C. Application of Public Nuisance Law to Krengel

The city sought to prove the existence of a public nuisance based on the episodic disturbances caused by Krengel and her guests rather than a static physical condition affecting her real property. The district court did not find that two or more behavioral incidents had occurred at Krengel’s home within the 12 months preceding the permanent injunction hearing. In fact, the city’s evidence was too stale to satisfy the 12-month requirement. The last of the “separate behavioral incidents” of statutorily defined nuisance activity occurred no later than July 12, 2005, which is approximately 15 months before the October 17, 2006, hearing on the city’s request for a permanent injunction. Thus, the city could not prove that “a public nuisance exist[ed]” at the time of the hearing on the request for a permanent injunction because it could not offer “proof of two or more separate behavioral incidents ... committed within the previous 12 months.” Minn.Stat. § 617.81, subd. 2. Therefore, the statute did not provide a legal basis for the district court’s permanent injunction.

The city makes two alternative arguments. First, the city argues that the abatement plan stayed the operation of the statute and tolled the running of the 12-month period. Although the statute expressly addresses abatement plans, there simply is no provision in the statute for staying or tolling the statutory procedures while an abatement plan is in force. It is true that a city may not commence a civil action if a person is in compliance with an abatement plan. Minn.Stat. § 617.82(a). But it does not follow that if a person does not comply with an abatement plan, a city may proceed with a civil action without regard for whether a statutorily defined nuisance still exists. The statute expressly permits a city to commence a civil action if a property owner “fails to comply with the agreed abatement plan.” Minn.Stat. § 617.82(b). But the statute states that, in that event, the city may “initiate a complaint for relief in the district court consistent with paragraph (c).” Minn.Stat. § 617.82(b) (emphasis added). Section 617.82(c), in turn, refers back to section 617.81, subdivision 2, the provision that states that “a public nuisance exists upon proof of two or more separate behavioral incidents ... committed within the previous 12 months.” Minn.Stat. § 617.81, subd. 2(a). Thus, when a property owner fails to comply with an abatement plan, a city is permitted to proceed with a civil action for injunctive relief, but the city must do so pursuant to the ordinary procedures and requirements of the Public Nuisance Law.

Second, the city argues that Kren-gel’s violations of the abatement plan, in and of themselves, justified the district court’s issuance of the permanent injunction. The language of the abatement plan executed by Krengel and the city does not support the city’s argument. Rather, the abatement plan, like section 617.82(c), refers the parties back to the Public Nuisance Law. The final paragraph of the abatement plan states that “any violation of the terms and conditions of the Abatement Plan will allow the City Council to pursue injunctive action as stated in the Notice of Injunctive Action.” (Emphasis added.) Both of the city’s notices, in turn, make multiple references to section 617.81. As previously discussed, section 617.81, subdivision 2, requires “proof of two or more separate behavioral incidents ... committed within the previous 12 months.” Minn.Stat. § 617.81, subd. 2(a). Thus, in entering into the abatement plan, Krengel merely agreed that, in the event of a breach, the city would be free to seek an injunction pursuant to the statute, but nothing in the abatement plan altered the statutory requirements of an action for injunctive relief in that event.

DECISION

Krengel’s appeal presents a justiciable controversy. Although the permanent injunction has expired, the parties’ dispute is capable of repetition and likely would evade review. Thus, we deny the city’s motion to dismiss the appeal as moot.

The district court erred in issuing a permanent injunction. The district court did not find that the city had proved that two or more separate behavioral incidents of statutorily defined nuisance activity occurred within the 12-month period preceding the hearing on the city’s request for a permanent injunction. The incidents on which the city’s action is based occurred no later than 15 months before the hearing. Thus, a public nuisance did not exist at the time of the hearing on the city’s request for a permanent injunction. Furthermore, the abatement plan did not permit the city to obtain a permanent injunction based on Krengel’s violation of the plan. Thus, we vacate the permanent injunction.

Vacated; motion denied.

Dissenting, CRIPPEN, Judge.

CRIPPEN, Judge

(dissenting).

Minnesota’s 1987 nuisance-abatement statute prescribes a process leading to a mandatory district court injunction that deprives the owner of use of her property for one year. Minn.Stat. § 617.81-.83 (2006). I respectfully disagree with the majority’s construction and application of these statutory provisions, and I would affirm the district court’s decision. For alternative reasons, in my opinion, the court was obligated to provide the prescribed statutory relief in the circumstances of this case. First, proof of appellant’s failure to comply with the 2005 agreement of the parties demonstrates that she continues to maintain, without abatement, a nuisance as defined by law; and that this condition, in and around her home, on this record, has existed for approximately 15 years. Alternatively, after appellant failed to comply with the plan, respondent was entitled to injunctive relief upon proof of the disturbances stated in the nuisance notice that was issued in 2005 to initiate these proceedings. For these reasons, appellant did not suffer an unwarranted loss of use of her property under the 2006 district court injunction orders.

Municipal action under the statute unfolds in prescribed stages. When evidence surfaces that gives the prosecuting authority “reason to believe that a nuisance is maintained or permitted,” the prosecutor is authorized to serve a written notice that states, among other things, a summary of the evidence prompting the prosecutor’s belief. Minn.Stat. § 617.81, subd. 4. Significantly, this notice advises the recipient of three options: (1) abatement of the nuisance within 30 days; (2) “otherwise resolv[ing] the matter” with the prosecutor in the same time frame; or (3) suffering “the filing of a complaint for relief in district court that could, among other remedies, result in enjoining the use of the building for any purpose for one year.” Id., subd. 4(b).

The recipient’s timely and adequate response to the notice — when she “abates the conduct constituting the nuisance” or “enters into an agreed abatement plan ... and complies with the agreement within the stipulated time period” — eliminates the prosecutor’s right to seek a judicial injunction “regarding the nuisance activity described in the notice.” Minn.Stat. § 617.82(a).

Thus, the statute gives the notice recipient two choices “regarding the nuisance stated in the notice,” abate this nuisance or “resolve” this nuisance with an “agreed abatement plan.” The statute does not limit the term or the nature of the steps that constitute abatement under the plan; in other words, nothing in the statute stands in the way of an agreement like the one formulated by these parties, lasting for a year and calling for correction of conduct underlying the occurrence of nuisance events rather than the cessation of those event. Id.

The majority sees the evident pattern of the statute upset at this point by Minn. Stat. § 617.82(c), which states that the prosecutor may proceed to seek a judicial injunction when there is “cause to believe that a nuisance described in section 617.81, subdivision 2, exists.” Minn.Stat. § 617.82(c).

The parties in this case adopted a one-year abatement plan. As a result, when appellant indisputably “failed to comply” with the plan, a year had passed and appellant asserted that the unabated nuisance did not in fact “exist” because “behavioral incidents” had not been “committed within the previous 12 months.” Minn.Stat. § 617.81, subd. 2 (defining acts constituting a nuisance).

A The Continuing Nuisance

Commission of “behavioral incidents” constituting a nuisance includes “maintaining a public nuisance in violation of section 609.74, clause (1) or (3).” Id. The section referred to deals with maintaining or permitting a condition that, inter alia, “unreasonably annoys, injures or endangers” the community. Minn.Stat. § 609.74 (2006). Proof that this condition is maintained is proof that the nuisance exists, thus permitting the prosecutor to seek an injunction as stated in section 617.82(c).

It is reasonable to conclude, under these statutes, that respondent’s prosecutor proved and the district court properly determined that there existed on appellant’s property, because the abatement plan failed, an ongoing nuisance; the record shows that she maintained and continued to “maintain” — without abatement — an “incident” in the form of a “condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public.” Id. In my opinion, the continuous existence of a festering set of circumstances that has included 180 police responses over 15 years can reasonably be considered a static, existing nuisance. The abatement plan sought to cure the nuisance conditions; appellant’s noncompliance with the abatement plan perpetuates the nuisance that has produced both disturbing affects on neighboring property and investment of substantial municipal police resources.

The legislature anticipated that nuisance-abatement remedies would include injunctions, specifically providing for disuse for a year, and said in passing that there might be “other,” unspecified remedies. Minn.Stat. § 617.81, subd. 4(b)(3). But for injunctive remedies, of course, there must be something to enjoin. In the context of this law, there must be some remaining reason to deprive appellant of the use of her property for a year. It is reasonable under the governing statutes to conclude that the district court properly determined the cause for an injunction in this case; the prosecution evidence showed that the nuisance stated in the 2005 notice continued to exist.

B. Specified Disturbances

Alternatively, if appellant’s nuisance is labeled episodic rather than static, it is among reasonable interpretations of the statute to read it as a demand for injunc-tive relief upon proof of the episodes first stated in the abatement notice.

The original nuisance notice is permitted when a prosecutor “has reason to believe that a nuisance is maintained or permitted.” Minn.Stat. § 617.81, subd. 4(a). The notice must specify the nuisance that is maintained. Id. If the parties choose an abatement agreement and the recipient complies with this agreement, “the prosecuting attorney may not file a nuisance action ... regarding the nuisance activity described in the notice.” Minn.Stat. § 617.82(a). The prosecutor may seek an injunction upon “cause to believe” that a nuisance “exists.” Id., § 617.82(c).

Read together, the provisions of Minn. Stat. § 617.82 are in harmony: If the notice recipient abates or resolves the nuisance, the prosecutor must take no action; if the notice recipient fails to abate the nuisance or to comply with the abatement plan, the prosecutor may act. Respondent contends that the existing nuisance regards the activities described in the original notice. The serious nuisance recited in 2005 is the thread running through every stage of action in this case, and it has not been abated as provided by law. In this statutory scheme of action, the abatement plan, when it is chosen by the parties, has the nature as respondent has characterized it, a tolling of abatement-enforcement steps while efforts are made to voluntarily address the nuisance problem reported earlier.

Adding weight to respondent’s contention, Minn.Stat. § 617.82(e), the same subsection that says the prosecutor may seek injunctive relief when a nuisance exists, expressly provides that his burden is for “proof of a nuisance described in section 617.81, subdivision 2.” As the majority observes, the section defining nuisances speaks of those that exist, determined by examining acts committed in the prior year; the majority states the view that the year must be the period immediately before the proof. But as respondent suggests, the statute fails to resolve, upon failure of an abatement plan, whether the “nuisance” addressed in the stated burden of proof is the nuisance stated in the original notice, as it then existed, or another nuisance currently observed. It may be either without offending the words stated and the scheme of action provided in the statute.

C. Resolving Ambiguities

The language of the public nuisance abatement act fails to clearly define terms and prescribe the process, creating ambiguities that must be resolved by established standards on statutory construction. It is not clear from the language of Minn. Stat. § 617.82 whether new episodes of disturbance must exist or whether failure to comply with an abatement plan perpetuates the former nuisance — proven either by showing the failure to comply or by also showing the original disturbances. Not surprisingly, when respondent provided appellant with a second notice immediately before court proceedings, the prosecutor fully stated both the precipitating disturbances and appellant’s specific failures respecting the abatement plan. In my opinion, there are dominant reasons to resolve these ambiguities in the fashion underlying the district court’s deliberations and findings of fact:

(1) The nuisance-abatement statute contemplates a series of steps that govern the parties “regarding the nuisance activity described in the (initial) notice.” Minn. Stat. § 617.82(a). These include an abatement plan that might reasonably last for a year and reasonably deal with explosive conditions that must be remedied to end the risk of continuous disturbances. It does mischief to this statute to interpret and apply it in a fashion that alters its usefulness. We are to construe the statute “to give effect to all its provisions.” Minn. Stat. § 645.16. And we are to take into account the need for the law, the mischief it aims to remedy, the object it aims to attain, and the consequences of a particular interpretation. Id., § 645.16(1), (3), (4), (6). The object of construction of laws is to effectuate the legislative intent. Id.; Minn.Stat. § 645.17 (2006).

(2) The statutory tie between the initial notice and the subsequent injunction action is ratified by the chosen language of the parties in their 2005 abatement plan. They expressly anticipated, when addressing the July 2005 abatement notice and the nuisance it reported, that the prosecutor could seek an injunction in the event that appellant failed to comply with the plan. In the same instrument, appellant committed herself to remedial steps that did not occur; she did not merely agree to be sure that no disturbance occurred during a one-year waiting period. Respondent proceeded in this case as anticipated in (1) the advisory stated in the 2005 abatement notice, (2) the statutory provision on noncompliance, and (3) the language on consequences stated in the abatement plan itself. The understanding and the conduct of the parties suggests the common meanings of the statutes, which are to be construed “according to their common and approved usage.” Minn.Stat. § 645.08(1) (2006).

(3) In a practical sense, the demand for current disturbances creates barriers on the future formulation of abatement plans, adding to the legislative scheme the urging that abatement plans either should be short in duration or should only call for a cessation of disturbances. These are barriers that may be adverse to the interests of both municipal authorities and notice recipients. The prosecutor in this case is penalized for what is evidently a display of sound prosecutorial discretion. Rather than attempting to monitor the behavior of intoxicated guests in appellant’s home, the prosecutor attempted to understand a problem and to attempt to deal with it most effectively by addressing its roots and choosing a reasonable time to address the problems. The agreement was a natural, reasoned, and laudatory approach of both parties to the nuisance problem. It is axiomatic that we are limited by what the legislature has said, having no freedom to add to or alter its enactments.

(4) Although the consideration can rightfully be seen as secondary to others already stated, “the legislature intends to favor the public interest as against any private interest.” Minn.Stat. § 645.17(5). The statute invites the interpretation chosen by the district court, and this is consistent with an important public interest in property uses that are not threatening to others.

(5)Finally, deference to the public interest goes beyond the protection of municipal efforts to control public nuisances. The injunction challenged on this appeal, as mandated by the statute, deprived appellant of her property, and she has candidly disclosed to us in motion documents that she anticipates the collateral consequence of unrequited damage if the matter is not reviewed. It is equally evident that appellant anticipates proceedings to ascertain damages in the event we determine that the city was not entitled to the injunction that the district court granted. In my opinion, appellant has not met her burden to show that she is entitled to an award of damages on a theory of wrongful taking; the injunction sought and obtained by respondent was warranted by law.

For the reasons stated, I respectfully dissent from the majority decision.

      . Section 609.74(1) provides that it is a crime if a person "maintains or permits a condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public.” Minn.Stat. § 609.74(1) (2006). Section 609.74(3) provides that it is a crime if a person is "guilty of any other act or omission declared by law to be a public nui-sanee and for which no sentence is specifically provided.” Id. § 609.74(3) (2006).

      . Section 609.745 provides that a person "having control of real property permits it to be used to maintain a public nuisance or lets the same knowing it will be so used is guilty of a misdemeanor.” Minn.Stat. § 609.745 (2006).

      . The dissent reasons that there was "an ongoing nuisance" at Krengel's property because of "the continuous existence of a festering set of circumstances” such that Krengel "maintained and continued to 'maintain'— without abatement — an ‘incident’ in the form of a 'condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public.' ” See infra p. 347 (quoting Minn.Stat. § 609.74). This statement ignores the requirement that the city prove "separate behavioral incidents” of statutorily defined nuisance activity. Minn. Stat. § 617.81, subd. 2. The statutory definition of a public nuisance does not encompass the mere possession or consumption of alcoholic beverages. See id., subd. 2(a). Furlher-more, the mere potential, propensity, or predisposition to engage in behavior that might constitute a public nuisance cannot substitute for the “separate behavioral incidents” that are required by the statute.
      The dissent also reasons that Krengel’s "noncompliance with the abatement plan perpetuates the nuisance” that the city had identified in its prior notice. See infra p. 347. As far as the Public Nuisance Law is concerned, the abatement plan was successful; it led to the elimination of the statutorily defined nuisance that previously existed. The abatement plan did not resolve all issues between the city and Krengel only because the plan imposed a standard of conduct that was significantly more stringent than the statutory standard.

      . The dissent correctly states that "nothing in the statute stands in the way of an agreement like the one formulated by these parties.” See infra p. 346. It also may be said that the city and Krengel were not limited to the specific terms of the abatement plan to which they agreed. Freedom of contract permitted them to agree to alternative terms, including a shorter time period, which likely would have allowed the city to commence legal action soon enough to ensure that the incidents identified in the first notice were sufficiently current at the time of the hearing on the request for a permanent injunction. As it happened, Krengel first breached the agreement approximately one month after she signed it. The city then had the option, pursuant to section 617.82(b), to proceed with a civil action. Furthermore, if the incidents identified in a city's notice become too stale, the statute does not prohibit a city from providing an additional notice, and the statute does not prohibit a city from amending or supplementing its complaint, see Minn. R. Civ. P. 15.01, 15.04.

      . These statutory provisions are simply structured. The topic of the act is the matter of obtaining an injunction or order of abatement; "[i]n order to obtain” this relief, these statutes "must be followed.” Minn.Stat. § 617.81, subd. 1. Section 617.81 defines the acts constituting a nuisance at subdivision 2 and delineates the notice requirements at subdivision 4. Minn.Stat. § 617.82, which is the center of controversy in this case, describes the procedure following a notice:
      (a) If the recipient of a notice under section 617.81, subdivision 4, either abates the conduct constituting the nuisance or enters into an agreed abatement plan within 30 days of service of the notice and complies with the agreement within the stipulated time period, the prosecuting attorney may not file a nuisance action on the specified property regarding the nuisance activity described in the notice.
      (b) If the recipient fails to comply with the agreed abatement plan, the prosecuting attorney may initiate a complaint for relief in the district court consistent with paragraph (c).
      (c)Whenever a prosecuting attorney has cause to believe that a nuisance described in section 617.81, subdivision 2, exists within the jurisdiction the attorney serves, the prosecuting attorney may by verified petition seek a temporary injunction in district court in the county in which the alleged public nuisance exists, provided that at least 30 days have expired since service of the notice required under section 617.82, subdivision 4. No temporary injunction may be issued without a prior show cause notice of hearing to the respondents named in the petition and an opportunity for the respondents to be heard. Upon proof of a nuisance described in section 617.81, subdivision 2, the court shall issue a temporary injunction. Any temporary injunction issued must describe the conduct to be enjoined.
      Finally, the use of ''shall” in Minn.Stat. § 617.83 requires the district court to issue an injunction upon proof of a nuisance. See Minn.Stat. § 645.44, subd. 16 (2006) (stating " ‘[sjhair is mandatory”).


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. John E. OUTLAW, Appellant.
    No. A07-0245.
    Court of Appeals of Minnesota.
    May 6, 2008.

      Lori Swanson, Attorney General, and Susan Gaertner, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Jodie L. Carlson, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and CONNOLLY, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant John E. Outlaw challenges his conviction of and sentence for first-degree burglary. Appellant argues that: (1) the district court’s determination that his out-of-state convictions are felonies under Minnesota law violated his right to a jury trial; (2) the state failed to prove that his out-of-state convictions are felonies under Minnesota law; (3) there was insufficient evidence to support his burglary conviction; (4) there was insufficient evidence that the current offense was part of a pattern of criminal conduct; (5) the prosecutor committed misconduct; and (6) appellant received ineffective assistance of counsel.

FACTS

On June 28, 2006, around 1:00 a.m., Paj Yang and her fiancé, John Dittbenner, were at their home watching a movie. Yang heard her dog barking and noticed that the garage lights were on. Yang and Dittbenner went out to the garage and saw that the padlock was gone. Dittbenner approached the garage and began yelling at an intruder. Subsequently, Dittbenner and the intruder began scuffling inside the garage, with Dittbenner preventing the intruder from getting out the door. Yang was standing two to three feet from the intruder and got a 30-to-60-seeond look at his face. Dittbenner was face-to-face with the intruder while keeping him in a headlock “for awhile.” The intruder eventually dug his hands into Dittbenner’s eyeball, causing Dittbenner to let him go. The intruder then hit Dittbenner with a trash can and ran away. Dittbenner sustained minor injuries.

The next day, a police officer contacted Yang'and Dittbenner at their home. The officer presented a photographic array containing six pictures, including one of appellant. The officer first asked Dittben-ner, outside of Yang’s presence, if he could identify the garage intruder from among the six pictures. Dittbenner picked out appellant’s picture, indicating that he was certain that appellant was the intruder. The officer then presented the array to Yang, who also indicated she was certain that appellant was the intruder. Yang and Dittbenner did not communicate with each other during this process.

Appellant was charged with and found guilty of first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(c) (2006). The state filed a motion for an aggravated sentence under Minn.Stat. § 609.1095, subd. 4 (2006). The state presented evidence of appellant’s 11 prior felony convictions at the Blakely hearing, and the jury returned a special-verdict form finding that the burglary was committed as part of a pattern of criminal conduct. The district court sentenced appellant to the statutory-maximum sentence of 20 years in prison.

ISSUES

1. Did the district court violate appellant’s right to a jury trial by determining that appellant’s out-of-state convictions qualify as felonies under Minnesota law?

2. Did the district court err in determining that appellant has five prior felony convictions?

3. Does sufficient evidence support appellant’s conviction?

4. Does sufficient evidence support the jury’s finding that appellant’s conduct was part of a pattern of criminal conduct?

5. Did the prosecutor commit misconduct?

6.Did appellant receive ineffective assistance of counsel?

ANALYSIS

I.

Appellant argues that the district court’s determination as to whether his out-of-state convictions are felonies under Minnesota law violates the principles set out by the Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We disagree.

In Apprendi v. New Jersey, the United States Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Applying Apprendi, Blakely held that an upward durational departure from the statutory-maximum sentence based on a judge’s findings, rather than those of a jury, is invalid under the Sixth Amendment right to trial by jury. 542 U.S. at 301-05, 124 S.Ct. at 2536-38.

Minn.Stat. § 609.1095, subd. 4 (2006), provides: “[T]he judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the factfinder determines that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” In State v. Adkins, we held that the statute is unconstitutional “to the extent that it authorizes a judicial finding that a pattern of criminal conduct exists.” 706 N.W.2d 59, 64 (Minn.App.2005). But we have not addressed whether a judicial finding regarding prior out-of-state felony convictions is permissible.

Appellant argues that the Supreme Court’s analysis in Shepard v. United States should guide this court’s analysis. 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). But the Shepard court focused on which documents a sentencing court may examine in determining whether a defendant has a prior conviction. Id. at 19-26, 125 S.Ct. at 1259-63. Accordingly, we conclude that Shepard does not apply to the issue presented here.

But the question before us has been addressed by another appellate court. In State v. Thomas, 135 Wash.App. 474, 144 P.3d 1178 (2006), the Washington Court of Appeals held that a sentencing court may determine whether an out-of-state conviction is a felony under Washington law without running afoul of Blakely. Id. at 1182. The court concluded that limited fact-finding was permissible, as long as the findings were based on admitted or stipulated facts or facts proved beyond a reasonable doubt in another jurisdiction. Id. at 1181-82.

The reasoning in Thomas is persuasive. Here, appellant does not contend that the district court relied on facts not proven beyond a reasonable doubt. And the jury properly made the determination of whether appellant’s offenses established a pattern of criminal conduct, as required by Adkins. See 706 N.W.2d at 64. We conclude that a sentencing court does not violate a defendant’s right to a jury trial when it determines whether out-of-state convictions are felonies under Minnesota law. Accordingly, the district court did not err in determining which of appellant’s out-of-state convictions are felonies.

II.

Appellant argues, and respondent concedes, that the record does not indicate that the state has proved that at least five of appellant’s prior convictions are felonies under Minnesota law. We agree.

Minn.Stat. § 609.1095, subd. 4 (2006) (the “career-offender statute”), permits a sentencing court to depart from the presumptive guidelines sentence “if ... the offender has five or more prior felony convictions.” Out-of-state convictions may count toward the requisite number of felony convictions. Minn.Stat. § 609.1095, subd. 1(b) (2006). The Minnesota Sentencing Guidelines instruct that “the classification of ... felonies should be determined on the basis of current Minnesota offense definitions and sentencing policies.” Minn. Sent. Guidelines cmt. II.B.502; see also State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001) (“[T]he [sentencing] court must comply with the sentencing guideline’s mandate that the court determine how the offender would have been sentenced had the offense occurred in Minnesota at the time of the current offense, not when the offense actually occurred out of state.”). The state has the burden of proving by a preponderance of the evidence “the facts necessary to justify consideration of out-of-state convictions in determining a defendant’s criminal history score.” State v. Griffin, 336 N.W.2d 519, 525 (Minn.1983).

Here, after the guilty verdict, the jury was asked to determine whether the current offense was committed as part of a pattern of criminal conduct. During that proceeding, the state offered certified copies of appellant’s 11 prior convictions. Appellant did not object to their admission. On appeal, appellant argues that he does not have the five felony convictions required for an aggravated sentence under the career-offender statute. Ordinarily, failure to object to evidence at trial waives the issue on appeal. Van Buren v. State, 556 N.W.2d 548, 551 (Minn.1996). But because a sentence based on an incorrect criminal history score is an illegal sentence, “a defendant may not waive review of his criminal history score.” State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007). Thus, this issue is properly before us.

The record indicates that two of appellant’s prior convictions are felonies that occurred in Minnesota. And appellant concedes that his two Tennessee convictions for aggravated burglary qualify as felony convictions under Minnesota law. Thus, the issue is whether any of appellant’s remaining seven prior convictions can be counted toward the five felony convictions required for enhanced sentencing.

Appellant has five out-of-state convictions for burglary of an automobile. It is not clear whether that offense is a felony under Minnesota law. See Minn.Stat. § 609.546(2) (2006) (stating that a person who enters a vehicle -without the owner’s permission is guilty of a misdemeanor). Because the record contains no additional evidence regarding these offenses, we conclude that the state has not proved that these convictions would be felonies under Minnesota law. See Griffin, 336 N.W.2d at 525.

In addition, the state has not established that appellant’s remaining two convictions of receiving/possessing stolen property and unlawful possession of a weapon can be counted toward the five prior convictions required for enhanced sentencing. The record does not show the value of the stolen property that appellant received or possessed, which is necessary in determining whether the convictions are felonies under Minnesota law. See Minn. Stat. § 609.52, subd. 3 (2006). And in Minnesota, the penalty for possession of a firearm by a felon depends on the existence of specific factors that cannot be determined based on the record here. See MinmStat. § 624.713, subds. 1, 2 (2006).

Because on this record the state has not proved that at least 5 of appellant’s 11 prior convictions are felonies under Minnesota law, we reverse and remand for a determination of whether appellant has the requisite number of prior felony convictions to support an aggravated sentence. The record indicates that appellant did not object to the district court’s determination that his out-of-state convictions were felonies. Thus, on remand, respondent is permitted to further develop the sentencing record so that the district court can appropriately make its determination. See Reece, 625 N.W.2d at 825-26 (remanding for further examination of appellant’s out-of-state offense to determine appropriate number of criminal-history points).

III.

Appellant maintains that the evidence was not sufficient to support his conviction because the only evidence connecting him to the offense is the identifications by Yang and Dittbenner, and those identifications are not credible. We disagree.

In considering a claim of insufficient evidence, we will not set a jury’s verdict aside unless it is clearly erroneous. Walker v. State, 394 N.W.2d 192, 196 (Minn.App.1986), review denied (Minn. Nov. 26, 1986). Again, our review is limited to a “painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” is sufficient to allow the jury to reach the verdict that it did. Webb, 440 N.W.2d at 430. We “assum[e] the jury believed the state’s witnesses and disbelieved any contradictory evidence.” State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Assessing the credibility of witnesses and weighing witness testimony are duties within the exclusive province of the jury. State v. Landa, 642 N.W.2d 720, 725 (Minn.2002).

Appellant argues that the only evidence tying him to the burglary is the two identifications. But Minnesota courts have sustained convictions based on identification by a single witness. State v. Gluff, 285 Minn. 148, 150-51, 172 N.W.2d 63, 64-65 (1969); State v. Walters, 262 Minn. 26, 28-29, 113 N.W.2d 468, 470-71 (1962); State v. Taylor, 427 N.W.2d 1, 3 (Minn. App.1988), review denied (Minn. Sept. 28, 1988). Corroboration is required when a single witness’s identification of the defendant is made after only “fleeting or limited observation.” State v. Walker, 310 N.W.2d 89, 90 (Minn.1981).

Appellant relies principally on State v. Gluff for his argument that the identifications made by Yang and Dittbenner were not credible. See 285 Minn, at 151, 172 N.W.2d at 65. But the identification evidence here is stronger than that in Gluff. In Gluff, the identifying witness “saw th[e] intruder for only a matter of some 30 seconds before he leveled a revolver at her. Thereafter her attention was riveted on the gun.” Id. Here, both Yang and Dittbenner had a good opportunity to view the intruder. Yang was two to three feet from the intruder, while Dittbenner was face-to-face with him “for awhile.” And even if those opportunities to view the intruder could be characterized as “fleeting” or “limited,” Yang and Dittbenner each independently identified appellant as the intruder, in contrast to the single identification of Gluff. Furthermore, appellant has not presented any authority for his assertion that the police officer’s techniques in presenting the photographic array to Dittbenner and Yang improperly influenced their identifications. Thus, we conclude that the jury’s verdict was supported by sufficient evidence.

IV.

Appellant argues that even if a judicial determination of appellant’s prior convictions was proper, the evidence was insufficient to establish a “pattern of criminal conduct.” See Minn.Stat. § 609.1095, subd. 4. In reviewing a challenge to the sufficiency of the evidence, we are limited to determining whether the evidence was sufficient to support the conclusion reached by the jury. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We review the record in the light most favorable to the jury’s determination. State v. Bias, 419 N.W.2d 480, 484 (Minn.1988).

A “pattern of criminal conduct” is established upon “proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.” State v. Gorman, 546 N.W.2d 5, 9 (Minn.1996). Here, the jury could reasonably have concluded that appellant’s seven other burglary convictions, and one conviction of attempted burglary, share similar characteristics with this first-degree burglary conviction. Accordingly, we conclude that the evidence was sufficient to support the jury’s determination that appellant’s prior convictions establish a pattern of criminal conduct.

Y.

Appellant argues that the prosecutor committed misconduct at trial by inflaming the passions and prejudices of the jury, offering his opinion of the evidence, and arguing facts not in evidence. We disagree.

A defendant generally waives the right to appellate review of a prosecutor’s inappropriate final argument unless he objects or seeks cautionary instructions. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997). This court, however, has the discretion to review unobjected-to prosecuto-rial misconduct if it amounts to plain error. State v. Ramey, 721 N.W.2d 294, 299 (Minn.2006); see also Minn. R.Crim. P. 31.02 (providing for review of “[p]lain errors or defects affecting substantial rights” not brought to district court’s attention). The plain error analysis asks whether (1) the prosecutor’s unobjected-to argument was error; (2) the error was plain; and (3) it affected the defendant’s substantial rights. Ramey, 721 N.W.2d at 298 (quoting State v. Griller, 583 N.W.2d 736, 740 (Minn.1998)). “[W]hen prosecutorial misconduct reaches the level of plain or obvious error — conduct the prosecutor should know is improper — the prosecution should bear the burden of demonstrating that its misconduct did not prejudice the defendant’s substantial rights.” Ramey, 721 N.W.2d at 299-300.

A prosecutor, as “a minister of justice,” has “an affirmative obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence of guilt.” Id. at 300 (quotation omitted). “The overarching concern regarding prose-cutorial misconduct ... is that such misconduct may deny the defendant’s right to a fair trial.” Id. But, when evaluating a claim of prosecutorial misconduct, this court examines the closing argument “as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993).

Inflaming the passions or prejudices of the jury

Appellant argues that the prosecutor’s portrayal of Yang and Dittbenner’s garage as a “sanctuary” was improper and that the sanctuary references served to inflame the passions and prejudices of the jury. We disagree.

A prosecutor’s closing argument should be based on the evidence and “should not be calculated to inflame the passions and prejudices of the jury.” State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980). Arguing facts intended to inflame the jury is considered prosecutorial misconduct. Ramey, 721 N.W.2d at 300. But a prosecutor is free to make legitimate arguments on the basis of all proper inferences from the evidence introduced. State v. Smith, 541 N.W.2d 584, 589 (Minn.1996). And a prosecutor is not constrained to deliver a “colorless” argument. State v. Porter, 526 N.W.2d 359, 363 (Minn.1995).

Here, we conclude that the prosecutor’s references to the victims’ garage as a sanctuary did not constitute misconduct. First, the mere use of the term “sanctuary” does not constitute language calculated to inflame the passions of the jury. See The American Heritage College Dictionary 1228 (4th ed.2007) (defining “sanctuary” as “[a] place of refuge”). And second, because the record shows that Dittbenner spent a great deal of time in his garage, the evidence supports an inference that the garage may have been a sanctuary for him. Accordingly, we conclude that the prosecutor’s sanctuary references did not constitute reversible error.

Offering personal opinions about the evidence and arguing facts not in evidence

Appellant also maintains that the prosecutor offered a personal opinion about the evidence by arguing that common sense suggests that the witnesses’ identifications were reliable. We disagree.

During closing argument, the prosecutor has “the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.” State v. Wahlberg, 296 N.W.2d 408, 419 (Minn.1980). A prosecutor, however, may not personally endorse the credibility of a witness. State v. Patterson, 577 N.W.2d 494, 497-98 (Minn. 1998).

But appeals to common sense are not personal opinions, and they do not constitute facts not in evidence. Here, in response to appellant’s argument that the identifications were flawed because Yang and Dittbenner were under stress, the prosecutor asked the jury to rely on their own experiences with stress and further pointed out that both witnesses independently expressed certainty that appellant was the intruder they found in their garage. We conclude that the prosecutor did not improperly offer a personal opinion about the evidence or argue facts not in evidence.

VI.

In a pro se supplemental brief, appellant argues that he received ineffective assistance by his attorney. We disagree.

To obtain reversal on a claim of ineffective assistance of counsel, appellant must “affirmatively prove [1] that his counsel’s representation ‘fell below an objective standard of reasonableness’ and [2] ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)) (citation omitted). If one prong is not proved, we need not address the other. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

To establish ineffective assistance of counsel, “[t]here must be a showing of actual prejudice, which requires this court to consider the totality of the evidence.” State v. Hood, 405 N.W.2d 459, 462 (Minn.App.1987), review denied (Minn. June 9, 1987). “[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Ineffective-assistance claims involve mixed questions of law and fact, and are reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn.2004).

Appellant challenges his counsel’s decisions not to object to or present certain evidence. But “[w]hat evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel.” State v. Mems, 708 N.W.2d 526, 534 (Minn.2006) (citing State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999)).

Appellant also claims that his attorney improperly raised racial issues in the trial. Although usually raised on appeal as prosecutorial-misconduct claims, “[r]emarks calculated to evoke bias or prejudice should never be made in a court by anyone, including defense counsel.” ABA Standards for Criminal Justice Prosecution Function and Defense Function § 4-7.7 at 228 (James G. Exum, Jr., et al. eds., 3d ed.1993). Here, the record does not reveal an attempt by defense counsel to evoke bias or prejudice. During her opening statement, defense counsel stated:

Again, I would also ask you to keep in mind and not judge [appellant] for anything other than what you hear as evidence. That you not judge him for who he is or what he is called or what you may think about him or any other person of his ethnicity. I ask that you keep an open mind....

And in closing, she said: And don’t throw away [appellant] just because he’s different from you, that he may be different from your family or your neighbors.” Although the Minnesota Supreme Court has held that it is improper for prosecutors to inject race into a case if race is not relevant, there is no authority for appellant’s position that the comments in this case constituted ineffective assistance. See State v. Cabrera, 700 N.W.2d 469, 473-75 (Minn.2005).

Finally, appellant claims that his attorney used inappropriate language towards him during their interactions. But when asked in court why he requested new counsel, appellant did not raise this issue but only complained about his attorney’s advice to accept a plea bargain and her alleged failure to thoroughly investigate his case. Moreover, even if appellant’s attorney made the outrageous remarks quoted in appellant’s pro se brief, appellant has made no showing that there is any connection between the alleged remarks, which occurred only in his presence, and his conviction. Accordingly, we conclude that appellant has not met his burden of proving that he received ineffective assistance of counsel.

DECISION

We conclude that the evidence was sufficient to support the jury’s guilty verdict and that appellant did not receive ineffective assistance of counsel. We further conclude that appellant’s right to a jury trial was not violated by the judicial determination that his out-of-state convictions are felonies under Minnesota law and that the jury properly found that appellant’s current offense was part of a pattern of criminal conduct. But because on this record the state has not proved that five of appellant’s prior convictions should be counted toward the five felony convictions required for enhanced sentencing, we remand this matter to the district court for resentencing following a further development of the sentencing record.

Affirmed in part, reversed in part, and remanded.

      . The analysis in Adkins was based on the 2004 version of Minn.Stat. § 609.1095. In 2005 the current language "if the factfinder determines that” was substituted for "if the judge finds and specifies on the record that.” 2005 Minn. Laws ch. 136, art. 16, § 12 at 1118-19.


author: SHUMAKER, Judge.

text:
    Paul FISH, Respondent v. COMMISSIONER OF the MINNESOTA DEPARTMENT OF HUMAN SERVICES, Appellant, Roseau County Social Services, Appellant.
    No. A07-0798.
    Court of Appeals of Minnesota.
    May 6, 2008.

      Steven E. Huglen, Law Office of Steven A. Anderson, P.A., Warroad, MN, for respondent.
    Lori Swanson, Attorney General, Robin Christopher Vue-Benson, Assistant Attorney General, St. Paul, MN, for appellant Commissioner of the Minnesota Department of Human Services.
    Lisa B. Hanson, Roseau County Attorney, Roseau, MN, for appellant Roseau County Social Services.
    Considered and decided by SHUMAKER, Presiding Judge; TOUSSAINT, Chief Judge; and, WILLIS, Judge.
   OPINION

SHUMAKER, Judge.

This is an appeal from a district court judgment reversing the order of the Commissioner of the Minnesota Department of Human Services (commissioner) and concluding that respondent could properly deduct monthly social security disability insurance from his income when calculating the monthly spend-down for medical assistance and that respondent qualified for the home-maintenance deduction set out in Minn.Stat. § 256B.0575 (2006). We reverse the district court’s determination regarding the monthly spend-down deduction and hold that the commissioner was correct in finding that the applicable law disallows a deduction. However, we agree with the district court’s conclusion that the commissioner erred and that respondent may utilize the home-maintenance deduction, and affirm in part.

FACTS

In 2002, as a result of extensive floods, President Bush designated Lake of the Woods County a federal disaster area. Respondent Paul Fish was severely injured while removing insulation from a flood-damaged home in the area and is now legally blind and a quadriplegic.

Fish entered a long-term care facility in November 2002, stayed for a month, and then went into a hospital. On January 28, 2003, he returned to the long-term care facility. Because of his injury, Fish was paid RSDI.

On March 1, 2004, Fish became eligible for medical assistance through Roseau County, his place of residence. He applied for such assistance, and the county notified him of the amount of his monthly “spend-down,” which is the sum a recipient has to spend on medical care before attaining an eligible income level. The county also deducted no sums for Fish’s home maintenance. Fish challenged those determinations and appealed to the commissioner.

Fish argued, before the commissioner, that the county’s income calculation was incorrect for two reasons. First, his SSDI benefits, referred to generally as RSDI by appellants and the court, should not have been counted as income because they relate to injuries Fish received while working in a federal disaster area and thus are excludable under the Disaster Relief and Emergency Assistance Act (DREAA). Second, his home-maintenance costs for three months should have been deducted from the calculation as well. The commissioner determined that the county’s calculation was correct and also rejected Fish’s later request for reconsideration.

Fish then appealed to the district court. After procedural issues had been resolved, the court entered its order on February 12, 2007, reversing the commissioner’s determinations and holding that Fish’s RSDI benefits are exempt for purposes of calculating his income level respecting medical-assistance eligibility and that he is entitled to reimbursement for home-maintenance costs that the county should have treated as deductions from income in making its calculations. The commissioner and the county appealed from that order.

ISSUES

1. Did the district court err in its determination that Fish’s monthly social security disability insurance benefit is not income for purposes of calculating the medical assistance spend-down amount?

2. Did the district court err in its determination that Fish is eligible for a home-maintenance deduction under the language of Minn.Stat. § 256B.0575 (2006)?

ANALYSIS

I.

Appellants commissioner and county first argue that the district court erred in determining that Fish’s monthly disability benefit is exempt as income for purposes of calculating medical assistance eligibility.

In this appeal, we review the commissioner’s order, and we give no deference to the district court’s decision. Estate of Atkinson v. Minn. Dep’t of Human Servs., 564 N.W.2d 209, 213 (Minn.1997); Johnson v. Minn. Dep’t of Human Servs., 565 N.W.2d 453, 457 (Minn.App.1997). Our review, authorized by statute, requires us to decide whether the commissioner’s decision was

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.

Minn.Stat. § 14.69 (2006). The burden is on the party challenging the commissioner’s decision to show that the decision should be reversed on at least one of those six grounds. Atkinson, 564 N.W.2d at 213. When reviewing such decisions, we must exercise judicial restraint, lest we substitute our judgment for that of the agency. In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001). However, this appeal involves a question of law, which we review de novo. St. Otto’s Home v. Minn. Dep’t. of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989).

Appellants contend that the commissioner’s determination that Fish’s RSDI benefit is income for medical assistance purposes was correct. Fish contends that those benefits are to be excluded under 42 U.S.C. § 1382a(b)(ll) (2000), which exempts from income “assistance received under the [DREAA] or other assistance provided pursuant to a Federal statute on account of a catastrophe which is declared to be a major disaster by the President.” The commissioner held that the benefits are not exempt under the federal law because Fish received the benefits “on account of his physical condition only. The fact that he became injured while he was working in a federal disaster area is irrelevant to his receipt of RSDI.”

Courts are to give effect to a statute’s plain meaning. Minn.Stat. § 645.08(1) (2006). The object of all statutory interpretation is to ascertain and to give effect to the legislature’s intent. Minn.Stat. § 645.16 (2006). We construe a statute “to give effect to all its provisions.” Id. “[N]o word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation omitted). Federal law exempts from income “assistance provided pursuant to a Federal statute on account of a catastrophe” declared a major disaster by the President. 42 U.S.C. § 1382a(b)(ll) (emphasis added). “On account of’ is synonymous with “because of.” Webster’s New World College Dictionary 128 (4th ed. 2002) (defining “because of’ as “on account of’).

Fish’s RSDI benefits are not paid “on account of’ the disaster and are not related to the DREAA. Rather, the benefits are paid because of his injury, which coincidentally he sustained while working in a disaster area. See 42 U.S.C. § 423(a)(l)(A)-(E) (2000 & Supp. V 2005) (listing criteria for disability insurance benefits, none of which relate to the place at which the disability occurred).

Thus, RSDI benefits are not paid “on account of’ or “because of’ a federal disaster, but instead are predicated on a disabled person’s satisfaction of eligibility criteria, irrespective of the place of injury. The federal regulation interpreting the treatment of income received because of a disaster is instructive here, stating:

We do not consider other assistance to be income if you receive it under the [DREAA] or under another Federal statute because of a catastrophe which the President declares to be a major disaster or if you receive it from a State or local government or from a disaster assistance organization. For example, you may receive payments to repair or replace your home or other property.

20 C.F.R. § 416.1150(c) (2007). A lifelong disability payment, such as RSDI, is not within the purview of the statute.

We find Fish’s argument to the contrary unpersuasive. He contends that because he was injured in a federal disaster area, he is receiving RSDI “on account of’ that federal disaster. But we must read 42 U.S.C. § 1382a(b)(ll) in context of the entire provision. See In re Appeal of Staley, 730 N.W.2d 289, 299 (Minn.App.2007) (“Our regard for the whole statute works to ensure that an isolated portion of a statute is not interpreted inconsistently with other portions of the same statute.”). The applicable provision excludes from countable income “assistance received under the [DREAA] or other assistance provided pursuant to a Federal statute on account of a catastrophe which is declared to be a major disaster by the President.” 42 U.S.C. § 1382a(b)(ll). The assistance contemplated is either that received under the DREAA or is comparable assistance. We conclude that RSDI is not the type of “other assistance” contemplated by the law.

Because the district court erred in reversing the commissioner’s decision that Fish’s monthly RSDI benefit is countable income for purposes of determining the spend-down amount for medical assistance, we reverse on that issue.

II.

Appellants also argue that the district court erred in determining that the home-maintenance deduction set forth in MinmStat. § 256B.0575 (2006) applies to Fish. They contend that the statutory language bars Fish from qualification for a home-maintenance deduction from his available income. “The construction of a statute or a regulation is a question of law to be determined by the court.” Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn.2003). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous.” Schroedl, 616 N.W.2d at 277. A statute is ambiguous only when its language is reasonably subject to more than one interpretation. Id. “While this court is not bound by an agency’s conclusions of law, the manner in which an agency has construed a statute may be entitled to some weight when the statutory language is technical in nature and the agency’s interpretation is one of longstanding application.” Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996).

Minnesota law requires that medical-assistance recipients who are in a long-term care facility contribute all available income, except for a personal-needs allowance and a few additional deductions, toward the cost of that facility. Minn.Stat. § 256B.0575. The statute begins, “[w]hen an institutionalized person is determined eligible for medical assistance, the income that exceeds the deductions in paragraphs (a) and (b) must be applied to the cost of institutional care.” Id. (emphasis added). It continues:

(b) Income shall be allocated to an institutionalized person for a period of up to three calendar months, in an amount equal to the medical assistance standard for a family size of one if:
(1)a physician certifies that the person is expected to reside in the long-term care facility for three calendar months or less;
(2) if the person has expenses of maintaining a residence in the community; and
(3) if one of the following circumstances apply:
(i) the person was not living together with a spouse or a family member as defined in paragraph (a) when the person entered a long-term care facility; or
(ii) the person and the person’s spouse become institutionalized on the same date, in which case the allocation shall be applied to the income of one of the spouses.
For purposes of this paragraph, a person is determined to be residing in a licensed nursing home, regional treatment center, or medical institution if the person is expected to remain for a period of one full calendar month or more.

Id.

Appellants argue that the statute allows the home-maintenance deduction only for the first three months of institutionalization, while Fish contends that it applies for the first three months after becoming eligible for medical assistance. The commissioner found that the deduction did not apply because Fish “did not reside in a nursing home for three calendar months or less.” Fish resided in the long-term care facility from January 2003 until spring 2004. But he was not deemed eligible for medical assistance until March 2004, at which time he fit the statutory criteria for a home-maintenance deduction: his physician certified that he was expected to reside in the long-term care facility for less than three months, Fish still maintained his home in the community, and he was living alone at the time of his injury.

Appellants read the word “when” as used in the first sentence of the statute to mean “if.” But The American Heritage Dictionary defines “when” as “[a]t what time,” “[a]t the time that,” “[a]s soon as,” “[wjhenever,” “[w]hat or which time,” “[t]he time or date,” and “[w]hereas.” The American Heritage Dictionary 926 (4th ed. 2001). The word “when” connotes a temporal element. The applicable definitions refer to an event occurring at a specific time. Here, the district court was correct in holding that the statute does not state that when an institutionalized person enters a long-term care facility he or she may immediately take a home-maintenance deduction or forfeit it, but instead that it provides that the significant event is the time at which that person is deemed eligible for medical assistance.

Appellants argue that to the extent this statute is ambiguous, we should defer to the agency as the expert in this case. But this statute is not ambiguous, nor is the interpretation of “when” technical in nature. See Lolling, 545 N.W.2d at 375 (holding that a reviewing court gives deference to an agency’s interpretation when the term is technical).

A statute’s plain language is the touchstone of legislative intent, and when the plain language is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16. We hold that Minn.Stat. § 256B.0575 allows a person in a long-term care facility who fits the statutory criteria for a home-maintenance deduction to take that deduction at the point at which he or she becomes eligible for medical assistance. Because we conclude Fish was qualified for the home-maintenance deduction and that the commissioner’s decision barring him from using the deduction was based on an error of law, we affirm the district court on this issue.

DECISION

We reverse the district court’s determination regarding Fish’s monthly deduction and hold that the commissioner correctly decided that Fish is barred by 42 U.S.C. § 1382a(b)(ll) (2000) from deducting his monthly disability benefits in calculating his medical assistance spend-down amount. But because we conclude that the commissioner erred in its determination that the home-maintenance provision is inapplicable to Fish, we affirm the district court’s decision on that issue and hold that Minn.Stat. § 256B.0575 (2006) predicates eligibility for a home-maintenance deduction upon eligibility for medical assistance, whenever it may occur.

Affirmed in part and reversed in part.