author: /s/Alan C. Page Associate Justice

text:
    STATE of Minnesota, Respondent, v. Charden GOMEZ, Appellant.
    No. A03-1075.
    Supreme Court of Minnesota.
    Sept. 28, 2006.

      John M. Stuart, State Public Defender, Ann McCaughan Assistant State Public Defender, Office of the State Public Defender Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Sr. Assistant County Attorney, Minneapolis, MN, for Respondent.
   ORDER

Following a remand to the district court for correction of the record, on March 10, 2006, this court granted both the state’s petition and Gomez’s cross-petition for reconsideration of the opinions filed October 13, 2005.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the opinions filed October 13, 2005 be, and the same are, withdrawn and the opinion filed herewith is substituted in their place.

BY THE COURT:

/s/Alan C. Page Associate Justice

PAGE, Justice.

OPINION

A Hennepin County grand jury indicted appellant Charden Gomez for the March 17, 2001, murders of Abel and Esther Hill-man at their home in Minneapolis. Following a trial, the jury acquitted Gomez of two counts of first-degree premeditated murder but convicted him of the remaining 12 counts, including two counts of first-degree intentional murder during the commission of a burglary. Minn.Stat. § 609.185(3) (2000). The district court sentenced Gomez to two consecutive life terms, one for each victim.

Gomez appealed, arguing that his convictions must be reversed because the trial court: (1) improperly admitted other-crimes evidence; (2) gave the jury a no-adverse-inference instruction with respect to his right not to testify without making a record of his consent to give the instruction; and (3) overruled Batson challenges to the state’s peremptory strikes of two non-Caucasian jurors and allowed the strike of another non-Caucasian juror. In an opinion that we have now ordered withdrawn, we reversed and remanded for a new trial on the Batson issue but on a different ground. We held in part III of that opinion that the district court erred by initiating a peremptory strike of venire-person A.A., eliciting defense counsel’s Batson challenge, and giving reasons justifying the strike before the state actually struck A. A.

We subsequently granted the state’s motion for an extension of time to file a petition for rehearing and remanded to the district court to consider the state’s request for correction or modification of the record. Following a hearing, the district court corrected the record. The state then filed a petition for rehearing, arguing that the corrected record does not support part III of this court’s decision. Gomez opposed the petition and alternatively cross-petitioned for review on the issue of whether the state’s peremptory strikes of the three venirepersons were based on race. We granted both the state’s petition and Gomez’s cross-petition.

At the time of their deaths, the Hillmans were both 89 years old, had been married to each other for 60 years, and had lived for the previous 52 years in the house where they were murdered. The Hillmans had one child, Larry Hillman. Larry had three children, only one of whom, Lori Williamson, lived in Minnesota. Williamson was a crack addict and a prostitute. The Hillmans would, from time to time, give money to Larry’s children. Because of Williamson’s crack addiction, they would occasionally give her small amounts of cash, buy her groceries and bus passes, or pay her rent, but they would not give her large sums of money.

Sometime in early 2001, Williamson met Gomez, who had recently been released from prison. At some point, Williamson introduced Gomez to her grandparents as her landlord and, on at least two occasions, Esther Hillman wrote checks collectively totaling $625 payable to Gomez for Williamson’s rent. In fact, Gomez was not Williamson’s landlord. Nonetheless, Gomez cashed the checks and gave the proceeds to Williamson, who used the money to purchase drugs.

On March 16, 2001, Williamson drove Esther Hillman to the bank, where she bought two certificates of deposit, one in the amount of $100,000 payable on death to her son Larry and the other in the amount of $25,000 payable on death to Williamson. After their trip to the bank, Williamson dropped Esther Hillman off at home, called several friends, and bragged about money she was going to be receiving from the Hillmans. When Williamson told her sister Lisa that the Hillmans were giving her a large sum of money in the form of a certificate of deposit, Lisa explained that the only way Williamson could collect the proceeds from the certificate of deposit was if the Hillmans died.

Lisa Hillman talked with Esther Hill-man on the evening of Friday, March 16. The following morning, at approximately 6:34 a.m., a 911 call was placed from the Hillmans’ home. When the operator answered the call, no one was on the line. Police officers, following up on the 911 call, went to the Hillmans’ home. They found a newspaper laying on the sidewalk, the front door locked, all the lights off, and the shades pulled down. After ringing the doorbell and getting no answer, they left.

When Lisa was unable to reach the Hill-mans on Sunday, March 18, she called her father and asked him to check on them. When he arrived at his parents’ home, Larry Hillman found that a light in the bedroom window was on and the front door was unlocked. Upon entering, he discovered his parents’ bodies. Autopsies revealed that Abel Hillman died of blunt force injuries to his head and that Esther Hillman had been stabbed more than 70 times, four of which could have been fatal in and of themselves.

After further investigation linked Gomez to the crime, he was arrested, indicted for, and ultimately convicted of the Hillmans’ murders.

I.

First, we consider whether the trial court improperly admitted evidence of previous crimes committed by Gomez. We review a trial court’s decision to admit evidence of other crimes for an abuse of discretion. State v. Blom, 682 N.W.2d 578, 611 (Minn.2004) (citing State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998)). Evidence of past crimes, frequently referred to as Spreigl evidence, is generally not admissible to prove the defendant’s character for committing crimes, but can be admitted to show motive, intent, absence of mistake, identity, or a common scheme or plan. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Spreigl evidence can be admitted only if:

(1)notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

Kennedy, 585 N.W.2d at 389. If it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded. Id.

To prove identity, the state successfully sought to admit evidence related to the following four crimes committed by Gomez:

(1) On August 12, 1989, at 4:55 p.m., Gomez forcibly entered into an elderly couple’s home. He struck both, knocked one to the ground, demanded money, and fled with their purse and wallet.
(2) On August 12, 1989, at 9:30 p.m., Gomez forcibly entered into another elderly couple’s home. He took the man’s wallet and struck him in the face, causing him a minor cut.
(3) On August 13, 1989, at 1:05 a.m., Gomez broke into the home of a 74-year-old woman, shoved her off the bed, demanded money, and rummaged through her closet and cabinet.
(4) On August 13, 1989, at 2:30 a.m., Gomez broke into an elderly couple’s home. When the elderly woman attempted to reach for the phone, he grabbed her and pushed her onto a bed. He fled with a wallet.

Gomez concedes that the first three factors to be considered when determining the admissibility of Spreigl evidence were met, but argues nonetheless that the evidence should not have been admitted. He argues that the Spreigl evidence is inadmissible because the state’s case was not “weak.” We have previously held that “[e]vidence of other crimes is admissible only if the trial court finds that the direct or circumstantial evidence of the defendant’s identity is otherwise weak or inadequate, and that the evidence is necessary to support the state’s burden of proof.” State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) (emphasis added). Here, the trial court found that the state’s identity evidence was weak. Specifically, the trial court stated:

The State has a weak case here in terms of Spriegl [sic] as they’ve acknowledged in their memo. It’s purely circumstantial. They’ve got a fingerprint with a little DNA from the defendant’s car, they got a couple of well-impeached witnesses, and so forth. * * * The case is weak in that sense and the State has a need for this type of evidence * * * [It is] a circumstantial case where the handwriting is a positive identification I think essentially, but can be accounted for in a number of ways, like the DNA, like the fingerprint — all of those things are subject to alternate theories, obviously. What I meant is simply that.

Having reviewed the record, we are satisfied that the trial court’s finding is not clearly erroneous.

Gomez also argues that the Spreigl evidence was not relevant because the charged offenses and the Spreigl offenses are dissimilar. Specifically, he asserts that the Hillman murders were not part of a crime spree, that stabbing the victims multiple times is not the same as hitting or shoving the victims, that he knew the Hill-mans but not the previous victims, and that the time of the crimes varied. The state contends that the Spreigl evidence was relevant and material because of the similarities of the offenses.

Spreigl evidence is relevant and material when there is a sufficiently close relationship between the charged offense and the Spreigl offense in terms of time, place, or modus operandi. Kennedy, 585 N.W.2d at 390. “[T]he closer the relationship, the greater is the relevance * * State v. Frisinger, 484 N.W.2d 27, 31 (Minn.1992). Spreigl evidence need not be identical in every way to the charged crime. Kennedy, 585 N.W.2d at 391. Here, while the charged offenses and the Spreigl offenses are not identical, their relationship is sufficiently close in terms of time and modus operandi. Although there is an 11-year gap between the charged offenses and Spreigl offenses, Gomez was incarcerated for the Spreigl offenses until approximately six months before the charged offenses. As we noted in State v. Wermerskirchen, 497 N.W.2d 235, 242 n. 3 (Minn.1993), the passage of time may be insignificant when the defendant has spent a substantial part of the time between the offenses in prison. Obviously, that is the case here. Thus, the gap in time between the offenses does not weigh against the Spreigl offenses’ relevance and materiality. We also conclude that there is sufficient similarity between the charged offenses and the Spreigl offenses. In three of the Spreigl offenses, elderly couples were burglarized or robbed in their homes. In the fourth case, a 74-year-old woman was burglarized in her home. The similarities between the Spreigl offenses and the charged offenses are striking. In each case, the victims were elderly, the victims were physically assaulted in their homes, and the victims’ wallets or purses were taken or money was demanded. Therefore, we conclude that the Spreigl evidence was sufficiently relevant and material.

Gomez further argues that the evidence related to his 1989 offenses should have been excluded because its probative value is substantially outweighed by the danger of unfair prejudice. In State v. Bolte, we stated:

In determining admissibility, the trial court should engage in a balancing of factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the evidence will be used by the jury for an improper purpose, or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.

530 N.W.2d 191, 197 (Minn.1995) (emphasis added). We further explained:

“[Prejudice” does not mean the damage to the opponent’s case that results from the legitimate probative force of the evidence, rather it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.

Id. at 197 n. 3 (citation omitted).

Gomez claims that the trial court concluded that the Spreigl evidence was unfairly prejudicial but admitted the evidence anyway. However, the transcript reflects that the court recognized the prejudicial nature of the Spreigl evidence and carefully weighed it against the probative value of the evidence. The court decided that the correct application of the law was to admit the evidence of Gomez’s other crimes. In doing so, the trial court stated:

I’ll state for the record that * * * there is very little doubt in my mind that this evidence is going to be highly prejudicial and it ought not be received, but the state of the law in Minnesota I think is such that it would be received in most trials, and I’ve looked at the cases carefully and commentaries on the cases, so what I say is, I say it should not be received is a broader statement in policy, but I say it for the record, were I working on a clean slate here, I would not use it as evidence. It is virtually inconceivable to me that the jury won’t, to some extent, conclude that Mr. Gomez has a propensity to rob old people and beat them up, which of course is exactly the reason this evidence is excluded under Rule 404, and it doesn’t fit any of the standard exceptions to Rule 404, but it does hit these cases that talk about modus operandi and signature crimes, and so forth.
* * * The courts have repeatedly held, and the State cited in its memo a couple of cases that are relatively similar to the present case, homicide cases where earlier incidents were received, and I don’t believe that I can exclude them without simply ignoring these cases, and I don’t think it’s within my authority to do that, as much as I do disapprove of it. * ⅞ *
* * * *
* * * I’ve looked at [the Spreigl evidence] with some care, trying to control the prejudice as best I can. What I propose to do without dictating the precise terms of it, counsel, is to allow you to elicit the fact * * *.
⅜ ⅜ ⅜ ⅜
I don’t want * * * those crimes to overwhelm this case, as they have a chance of doing. I’ve gone through the usual Spriegl [sic] analysis. Most of the factors are not even clear and convincing, of course, as established by the guilty plea. The similarity is sufficient, of course, and that’s why I’m letting them in * * * they’re close enough to satisfy any Spriegl [sic] analysis.
The remoteness is satisfied by the fact he was incarcerated.
‡ ⅜ $ ⅜
* * * I’ve given a great deal of thought, and that is where I stand on these issues now. I’ll instruct the jury as to the use of this evidence as best I can.

In admitting the evidence, the trial court, after consulting with the state and Gomez’s counsel, gave a proper limiting instruction to the jury as to the use of the other-crimes evidence both at the time the evidence was admitted and as part of the final instructions before jury deliberations.

Although the trial court expressed its personal view that as a matter of policy Spreigl evidence of the type admitted here should not be admissible, the trial court correctly ruled that the probative value of the evidence at issue outweighed the potential prejudice. The trial court appropriately instructed the jury to limit the use of such evidence.

In that we have concluded that the evidence of Gomez’s past crimes was relevant and material and that the probative value of the evidence outweighed its potential for unfair prejudice, we therefore conclude that the trial court did not abuse its discretion when it admitted the other-crimes evidence.

II.

We now turn to Gomez’s contention that the trial court committed reversible error when it instructed the jury on Gomez’s right not to testify without obtaining his consent to give the instruction on the record. Gomez contends that the questionable credibility of two key witnesses made his case a “close factual case” and that the instruction, coupled with the Spreigl evidence, “had to have some impact on the verdicts rendered by the jury.” We disagree.

A defendant in a criminal trial has the right to testify, but failure to testify shall not create any presumption against the defendant. Minn.Stat. § 611.11 (2004). If the defendant chooses not to testify, the trial court may instruct the jury not to draw any adverse inference from the fact that the defendant has not testified only if the defendant requests the court to do so. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed. 1999 & Supp.2003-04); McCollum v. State, 640 N.W.2d 610, 616 (Minn.2002). If the defendant requests the instruction, the court or the defendant’s counsel must make a record of “the defendant’s clear consent and insistence that the instruction be given.” McCollum, 640 N.W.2d at 617. No party may assign as error any portion of the charge or omission from the instructions given unless the party objects to the instructions before the jury retires to consider its verdict. Minn. R.Crim. P. 26.03, subd. 18(c). If no objection is made to the trial court giving the no-adverse-inference instruction, review is for plain error. State v. Darris, 648 N.W.2d 232, 240 (Minn.2002). For there to be plain error: (1) there must have been error; (2) the error was plain; and (3) the error must have affected the party’s substantial rights. Id.

We have stated that the third prong is satisfied if the error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn.1998). An error in instructing the jury is prejudicial if there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict. Id. We have held that a defendant who fails to object to the no-adverse-inference instruction bears a heavy burden of showing that substantial rights have been affected. Darris, 648 N.W.2d at 240 (citation omitted). Giving the no-adverse-inference instruction without consent, absent a showing of prejudice, is harmless. See id. If these three prongs are met, the reviewing court then assesses whether it should address the error to ensure the fairness and integrity of the judicial proceedings. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

Gomez did not testify at his trial. Because he did not testify, a question arose as to whether the jury was to be instructed that no adverse inference was to be made based on Gomez’s failure to testify. In resolving that question, the following discussion took place:

[DEFENSE COUNSEL]: Judge, do we need to put on the record — my client didn’t testify. That’s his choice—
THE COURT: Yes.
[DEFENSE COUNSEL]: Do we do that at this time or—
THE COURT: Yes. * * * Also you tell me whether you want an instruction on that.
[DEFENSE COUNSEL]: Judge, if I can think about that overnight I know we’ll be able to give you an answer tomorrow.
THE COURT: I can’t give the instruction — or at least I won’t—
[DEFENSE COUNSEL]: Right.
THE COURT: — without your specific request.
[DEFENSE COUNSEL]: My inclination is not to have you give it, but I would like to just sort of ponder it over the evening.
THE COURT: Yes. It won’t be given unless it comes from the defense request.

In the end, a no-adverse-inference instruction was given to the jury without objection, but the record does not indicate that Gomez consented to the instruction. The record does indicate that Gomez’s counsel had the opportunity to review the preliminary instructions and seek changes before the instructions were finalized. No changes to the no-adverse-inference instruction were sought nor was any objection made to that instruction. In addition, after the instructions were given to the jury, Gomez’s counsel answered “No” when asked by the trial court whether there were “any objections, additions or anything on the instructions.” Finally, before the jury returned its verdict, the court asked whether either of the parties would like to put anything on the record. Gomez’s counsel also answered “No” to that question.

Here, the trial court gave the no-adverse-inference instruction without placing Gomez’s consent to the instruction on the record and Gomez did not make any objection. Thus, our review is for plain error. Because the record does not contain Gomez’s consent to the giving of the no-adverse-inference instruction, we conclude that giving the instruction was error and that the error was plain. See Darris, 648 N.W.2d at 240. The first and second prongs of the plain error test are satisfied.

In this case, the primary issue at trial was the identity of the killer. While there was no direct evidence, the state presented circumstantial evidence, including a partial DNA profile, fingerprint identification, handwriting analysis, wiretapped conversation, similar crimes committed by Gomez, and testimony of other witnesses. We have concluded above that evidence of Gomez’s prior crimes was relevant to prove identity and the probative value of the evidence is not outweighed by its potential for unfair prejudice. Moreover, the record shows that the state’s key witnesses, including Lori Williamson, were subject to extensive cross-examination. The credibility of these witnesses is for the jury to decide. Given the totality of the evidence, it seems unlikely that the jury would have reached a different verdict. We conclude both that Gomez has failed to show that the error was prejudicial and that he has failed to meet his heavy burden of showing that there “is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.” Darris, 648 N.W.2d at 240.

Because the third prong of the plain-error test is not satisfied, we need not consider the effect of the error on the fairness and integrity of the trial. We note, however, that the trial court stated, on the record, its intent not to give the instruction without Gomez’s consent and that the defense counsel had the opportunity to review the instruction and seek changes to it but did not. Thus, although we need not decide this issue, the record suggests that Gomez acquiesced in the instruction being given.

In summary, because the error in giving the instruction did not significantly affect the jury’s verdict, we conclude that Gomez is not entitled to a new trial based on that error.

III.

Finally, we address the parties’ various contentions regarding the state’s peremptory strikes of three non-Caucasian venire-persons, the corrected record relating to the strike of venireperson A.A., and our authority to rehear this appeal.

A.

We must first address Gomez’s argument that the court was divested of jurisdiction to rehear this appeal because we improperly granted the state’s untimely motion for an extension of time to file a rehearing petition. Minnesota Rule of Civil Appellate Procedure 140.01 provides that a petition for rehearing is due to be filed within 10 days after the filing of an opinion unless the court enlarges the time “within the 10-day period.” However, the rule governing enlargement of time states that an appellate court “may permit an act to be done after the expiration of [the time prescribed by the appellate rules] if the failure to act was excusable under the circumstances.” Minn. R. Civ.App. P. 126.02. Our order granting the extension motion was based on the determination that the state’s failure to seek an extension of time within the 10-day limit prescribed by Rule 140.01 was excusable under the circumstances. The state had no occasion to attempt to correct the record before our earlier opinion was released, the state acted promptly to obtain the backup audiotape, and it filed the extension motion two days after receipt of the audiotape.

We do not agree with Gomez’s contention that we were divested of jurisdiction under another provision of Rule 126.02, which prohibits an appellate court from extending “the time for filing the notice of appeal or ⅜ * * for securing review of a decision or an order of a court or an administrative agency, board, commission or officer, except as specifically authorized by law.” A petition for a rehearing or reconsideration of this court’s own decision differs in kind from securing appellate review of a decision by a lower court or administrative entity.

B.

Gomez next argues that the district court on remand clearly erred in its findings of fact regarding what occurred during the voir dire of venireperson A.A. The state contends that the district court’s findings are well supported by the record and by its credibility determinations.

The district court judge who presided at the hearing on remand found that the trial transcript of the voir dire of A.A. is inaccurate in several respects. Most important, the judge found that the following took place, none of which appeared in the original transcript. First, after the defense accepted A.A. as a juror, there was a bench conference at which the prosecutor stated he would interpose a peremptory strike and articulated reasons for it that he later placed on the record. Second, in overruling the Batson challenge, the trial court determined there was a “valid racially neutral reason” for the peremptory strike.

We have summarized the standards for reviewing the district court’s factual findings as follows:

It is not the province of this court to reconcile conflicting evidence. On appeal, a trial court’s findings of fact are given great deference, and shall not be set aside unless clearly erroneous. Findings of fact are clearly erroneous only if the reviewing court is “left with the definite and firm conviction that a mistake has been made.” If there is reasonable evidence to support the trial court’s findings of fact, a reviewing court should not disturb those findings.

Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (citations omitted).

We have carefully reviewed the trial transcript, the backup audiotape, and the testimony and other evidence presented at the remand hearing. We conclude that the findings of the district court judge on remand are clearly supported by reasonable evidence, and hence we will not disturb them. We also concur with the remand judge’s conclusions that the prosecutor initiated the peremptory strike at the bench conference and that the trial judge neither initiated the strike nor articulated reasons for it before the prosecutor did so.

C.

Last, we consider Gomez’s contention that the state’s peremptory strikes of three non-Caucasian members of the jury venire were motivated by race discrimination. During voir dire, the state exercised peremptory strikes against three venire-persons, A.A. and G.C., both African Americans, and M.P.H., an Asian American. Gomez raised Batson challenges to the strikes of A.A. and G.C., but not to the strike of M.P.H.

The Equal Protection Clause of the Fourteenth Amendment prohibits purposeful race discrimination in jury selection. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under the Batson three-step analysis, (1) the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race; (2) the burden then shifts to the prosecution to articulate a race-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); see Minn. R.Crim. P. 26.02, subd. 6a(3). Step one focuses on “(1) whether one or more members of a racial group have been peremptorily challenged and (2) whether the circumstances of the case raise an inference that the challenge was based on race.” State v. White, 684 N.W.2d 500, 506 (Minn.2004). Under step two, the issue is the facial validity of the prosecutor’s explanation, which need not be persuasive or even plausible; unless discriminatory intent is inherent in the explanation, the reason offered is deemed race-neutral. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The defendant ultimately carries the burden of persuasion to demonstrate the existence of purposeful discrimination; this burden never shifts from the opponent of the strike. Johnson v. California, 545 U.S. 162, -, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129 (2005). Because the existence of racial discrimination in the exercise of a peremptory strike is a factual determination, we give great deference to the trial court’s ruling and will not reverse unless it is clearly erroneous. State v. Reiners, 664 N.W.2d 826, 830-81 (Minn.2003).

1. Venireperson A.A.

On being questioned by defense counsel during voir dire, A.A. revealed that her father had been tried for and convicted of sexually abusing her half-sister about 15 years earlier, when A.A. was a young child. A.A. testified at her father’s trial, and upon his release from prison her father returned to live with the family. A.A. testified that she thought her father was wrongly convicted because there was insufficient evidence but did not recall any bias against her father at the trial. The prosecutor exercised a peremptory strike of A.A. without questioning her. In response to Gomez’s Batson challenge, the prosecutor stated that the strike was for

the obvious reason [that A.A.] had a tragic circumstance occur in her life at a very young age, and as she described for us, came into court and testified for the defense on behalf of her father. Her father was nevertheless convicted and she also described for us how * * * her family went to some length it sounds like to me to look at the evidence and still [sic] convinced that the evidence certainly didn’t justify having her father in prison, and then once he came out of prison, the father came back to live in the household with she [sic] and a younger sister. * * * It’s just a situation that is untenable.

The trial court ruled that there was a valid racially neutral reason for the strike, stating that “if the race of the juror is left out of it, it would be bordering on ineffective representation not to challenge her because of that.”

Gomez makes three arguments in support of his claim that the peremptory strike was racially motivated. First, he contends that the prosecutor exaggerated by stating that A.A. described her family having gone to some length to examine the evidence of her father’s guilt. If this statement can be characterized as an exaggeration, it was not an exaggeration of A.A.’s belief that her father was wrongly convicted, the reason for the strike.

Second, Gomez contends that in her testimony A.A. expressed only a past, not a present, belief that her father had been wrongly convicted. Gomez did not make this argument in support of his Batson challenge at trial. We are satisfied that A.A.’s testimony reasonably can be read to mean a present belief. We have “consistently held that a family member’s involvement with the legal system is a legitimate race-neutral reason for the state to exercise a peremptory challenge.” Reiners, 664 N.W.2d at 832 (citing cases). In particular, we have held that the fact that a prospective juror’s father has been convicted of a serious felony was a sufficient nonrace-based justification for a peremptory strike. State v. Martin, 614 N.W.2d 214, 222 (Minn.2000).

Gomez’s third contention is that the state did not strike other jurors who expressed views similar to those of A.A. Five seated jurors had relatives or acquaintances who committed crimes or were victims of crime. But none of them testified in the earlier case or expressed the view that a relative had been wrongly convicted. Additionally, one of these five jurors is African American, so any similarity in answers does not reveal a race-based reason for striking A.A.

We conclude that the trial court did not err in determining that the peremptory strike of A.A. was based on a valid race-neutral reason.

2. Venireperson G.C.

The prosecutor exercised a peremptory strike of G.C. based on (1) G.C.’s expressed discomfort at deciding whether “to put someone away” and deciding another person’s future and (2) his changed view of police testimony since serving on a jury several years earlier. The district court overruled Gomez’s Batson challenge and allowed the strike.

Both reasons given by the prosecutor are facially race-neutral, and Gomez does not argue otherwise. See State v. Gaitan, 536 N.W.2d 11, 16 (Minn.1995) (prospective juror stricken because of expressed reluctance to sit in judgment of others); Angus v. State, 695 N.W.2d 109, 117 (Minn.2005) (venireperson stricken because he might favor police testimony). Gomez’s principal claim is instead based on comparative juror analysis, namely that the state did not strike other jurors with views similar to those of G.C. Purposeful race discrimination can be shown by evidence that the prosecutor’s proffered race-neutral reason for striking an African-American venireperson applies equally to an otherwise-similar non-African American who is permitted to serve on the jury. Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005).

Gomez has failed to demonstrate the existence of purposeful discrimination on the basis of comparative juror analysis. Of the three seated jurors who expressed reluctance to sit in judgment, one was African American and all three gave qualitatively different answers than G.C., whose reluctance extended to a reluctance to convict. Gomez’s suggestion that the prosecutor engaged in disparate questioning on this issue fails as a factual matter; defense counsel was the one who sometimes made this inquiry, as she did with G.C., and it appears that a question on the written juror questionnaire touched on this subject. With respect to seated jurors’ views of the police, none expressed a negative view of police testimony, and at least two jurors who were not asked about their views of the police were African Americans.

We conclude that on this record the trial court did not err in allowing the state’s peremptory strike of G.C. In order to reinforce what we said in Reiners, however, we say again that the trial court has a duty under Batson’s third prong to “state fully its factual findings, including any credibility determinations” for its determination of whether there has been purposeful discrimination by the party exercising the peremptory strike. Reiners, 664 N.W.2d at 832.

3. Venireperson M.P.H.

Gomez did not object to the prosecutor’s peremptory strike of M.P.H. during voir dire and did not raise a Batson challenge to the strike until appeal. We hold that the challenge is untimely.

Minnesota Rule of Criminal Procedure 26.02, subd. 6a(2), requires a Bat-son challenge to be made, and the district court to rule on the challenge, “before the jury is sworn to try the case.” Additionally, we have held that a challenge to a jury panel based on a constitutional violation must be made before the jury is sworn, and absent fraud or collusion, such an objection made subsequent to the verdict is untimely. State v. Arradondo, 260 Minn. 512, 518, 110 N.W.2d 469, 473 (1961). A timely Batson challenge “allows the trial court to remedy the discrimination prior to the commencement of trial.” United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994). To the extent Gomez might be contending the trial court should have raised a Batson challenge on its own initiative, see Minn. R.Crim. P. 26.02, subd. 6a(2), we see nothing in the record to suggest that the trial court erred by not doing so.

In summary, we hold that the trial court did not clearly err in allowing the peremptory strikes of A.A., G.C. or M.P.H.

Affirmed.

ANDERSON, G. BARRY, J., took no pai't in the consideration or decision of this case.

GILDEA, J., took no part in the consideration or decision of this case.

      . The jury also found Gomez guilty of two counts of second-degree intentional murder and eight counts of second-degree unintentional felony murder involving as predicate offenses various forms of burglary and aggravated robbery.

      . In our original opinion, now withdrawn, we referred to venireperson A.A. as venireperson 21.

      . The parties did not request, and we did not grant, rehearing on the issue of the admissibility of the Spreigl evidence. We note, however, that after the original opinion was issued in this case, we decided to "dispense with an independent necessity requirement for the admission of Spreigl evidence," and held that "[h]enceforth, courts should address the need for Spreigl evidence in the context of balancing the probative value of the evidence against its potential for unfair prejudice." State v. Ness, 707 N.W.2d 676, 689, 690 (Minn.2006).

      . In our original opinion, now withdrawn, we referred to venireperson G.C. as venireperson 12 and venireperson M.P.H. as venireperson 9.

      . We find no merit to Gomez’s other claim, that the prosecutor impermissibly exaggerated the second reason for the strike.


source: Caselaw Access Project

author: ANDERSON, G. BARRY, Justice. HANSON, Justice PAGE, Justice ANDERSON, PAUL H., Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Stephanie Dawn LOSH, Appellant.
    No. A04-1028.
    Supreme Court of Minnesota.
    Sept. 28, 2006.

      Bradford Colbert, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, Thomas Rogatz, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Earl Maus, Cass County Attorney, Walker, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Stephanie Dawn Losh was indicted for second-degree murder, Minn.Stat. § 609.19, subd. 2(1) (2004), for her actions in connection with the death of Brian Jenny. She pleaded guilty to kidnapping, Minn.Stat. § 609.25, subd. 2(2) (2004). At sentencing, the district court departed du-rationally and dispositionally, imposing a 120-month stayed sentence. On March 8, 2004, the district court found Losh to be in violation of the terms of her probation and executed her sentence. Losh appealed. The court of appeals affirmed Losh’s sentence and the execution of her sentence. State v. Losh, 694 N.W.2d 98, 99 (Minn.App.2005). We granted Losh’s petition for further review and, after hearing oral argument, we ordered the parties to file supplemental briefs addressing whether this court has jurisdiction to entertain Losh’s appeal in light of Minn.Stat. § 244.11, subd. 3 (2004). We hold that section 244.11, subdivision 3, violates the separation of powers under the Minnesota Constitution by encroaching on this court’s appellate jurisdiction and this court’s inherent authority over matters of appellate procedure. Addressing Losh’s sentencing appeal on the merits, we conclude that Losh is not entitled to the retroactive effect of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in this case and that the district court did not abuse its discretion in imposing an upward durational departure. Therefore, we affirm.

In early October 2002, Brian Jenny and his brother-in-law, David Matzke, were staying in a cabin in Federal Dam, Minnesota. After drinking beer at a local bar, Jenny and Matzke invited the bartender to join them at the cabin later that night. Sometime after 1:00 a.m., Losh, Kenneth Conger, Leaha Harper-Jenkins, and several other individuals arrived at the cabin. At some time after that, Jenny and Conger left to get more beer and Jenkins eventually joined them.

Jenkins later returned to the cabin and asked Losh for a ride. Losh drove Jenkins to a location where Losh observed Conger hitting a person (whom Losh later learned was Jenny) with a baseball bat. Losh and Jenkins returned to the cabin, and after leaving the cabin once again, they noticed Conger by the side of the road. Conger joined them in the vehicle and instructed Losh to drive to the location where he had left Jenny. Conger and Jenkins placed Jenny in the back of the car. Losh stated that she did not look at Jenny when Jenkins and Conger placed him in the car and that Jenny was not saying anything. Jenkins and Conger told Losh to drive “toward Sugar Point or * * * Peter’s Pond Road” and told Losh to stop “by the pond or the bog.” After Losh stopped, Jenkins and Conger took Jenny out of the vehicle and placed him by the side of the road — Losh stated that she did not help move Jenny. Losh then drove Jenkins and Conger to Sugar Point. Days later, Jenny died from blunt force trauma to the head.

Losh was indicted for second-degree felony murder; the underlying felony was kidnapping. Losh reached a plea agreement with the state, and the district court accepted Losh’s plea of guilty to kidnapping involving unsafe release and great bodily harm, MinmStat. § 609.25, subd. 2(2). This is a severity level nine offense with a presumptive sentence of imprisonment for 86 months. Minn. Sent. Guidelines IV, V. On August 18, 2003, the district court sentenced Losh to a 120-month term of imprisonment. The district court stayed the execution of this sentence. Losh’s sentence, therefore, was an upward durational departure and downward dispo-sitional departure. At the sentencing hearing, the district court stated that the upward durational departure was based on the vulnerability of the victim. Losh was placed on probation — conditions included serving 365 days in jail, abstaining from mood-altering substances, and submitting to random drug testing.

On March 8, 2004, the district court found that Losh had violated the terms of her probation, namely by ingesting a pill containing a narcotic. The district court executed her 120-month sentence. Losh appealed to the court of appeals, and while her appeal was pending, the Supreme Court decided Blakely. The court of appeals affirmed the district court, holding that Blakely did not apply retroactively to Losh’s sentence because Blakely was decided after the time to file a direct appeal from the judgment had expired. Losh, 694 N.W.2d at 99. We granted review, and before this court, Losh challenges her sentence on two grounds: (1) that her sentence violates Blakely, a rule to which Losh claims she is entitled, and (2) that the district court abused its discretion in imposing an upward durational departure. After hearing argument, we ordered the parties to file supplemental briefs addressing the question of whether we have jurisdiction to entertain Losh’s appeal in light of Minn.Stat. § 244.11, subd. 3. We first address the jurisdictional issue and then Losh’s sentencing challenges.

I.

The threshold issue of this case is whether Losh’s appeal is time-barred by section 244.11, subd. 3. If the appeal is time-barred, then this court appears to be without jurisdiction to entertain this appeal. See Ford v. State, 690 N.W.2d 706, 709 (Minn.2005) (“[T]ime requirements for the filing of an appeal are jurisdictional.”). The state argues, and Losh does not contest, that section 244.11, subd. 3, applies to Losh’s appeal and that Losh did not meet the time requirements set out by the statute. The statutory text provides:

(a)As used in this subdivision, “appeal” means:
(1) an appeal of a sentence under rule 28 of the Rules of Criminal Procedure; and
(2) an appeal from a denial of a sentence modification motion brought under Rule 27.03, subdivision 9, of the Rules of Criminal Procedure.
(b) If a defendant agrees to a plea agreement and is given a stayed sentence, which is a dispositional departure from the presumptive sentence under the Minnesota Sentencing Guidelines, the defendant may appeal the sentence only if the appeal is taken:
(1) within 90 days of the date sentence was pronounced; or
(2) before the date of any act committed by the defendant resulting in revocation of the stay of sentence; whichever occurs first.
(c) A defendant who is subject to paragraph (b) who has failed to appeal as provided in that paragraph may not file a petition for postconviction relief under chapter 590 regarding the sentence.
(d)Nothing in this subdivision shall be construed to:
(1) alter the time period provided for the state to appeal a sentence under Rule 28 of the Rules of Criminal Procedure; or
(2) affect the court’s authority to correct errors under Rule 27.03, subdivision 8, of the Rules of Criminal Procedure.

Minn.Stat. § 244.11, subd. 3 (footnotes added).

Because Losh entered a plea agreement with the state, was given a stayed sentence which was a dispositional departure, and appealed pursuant to Minn. R.Crim. P. 27.03, subd. 9 as interpreted by this court in State v. Fields, 416 N.W.2d 734 (Minn.1987), the statute applied to her appeal. Because Losh did not violate the terms and conditions of her probation until more than 90 days after the date her sentence was pronounced, under section 244.11, subd. 3, Losh had 90 days after pronouncement of sentence to appeal her sentence. She did not meet that time restriction, and consequently, under the plain language of section 244.11, subd. 3, her appeal is time-barred.

Losh does not argue that her appeal falls outside the scope of section 244.11, subd. 3, or that she has met the statute’s requirements. Her principal argument is that section 244.11, subd. S, is unconstitutional because it violates the separation of powers under the Minnesota Constitution. We review the constitutionality of a statute de novo. Deegan v. State, 711 N.W.2d 89, 92 (Minn.2006). “[D]ue respect for coequal branches of government requires this court to exercise great restraint in considering the constitutionality of statutes particularly when the consideration involves what is a legislative function and what is a judicial function.” State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994). This due respect notwithstanding, “courts have the power to ‘determine what is judicial and what is legislative; and if it is a judicial function that the legislative act purports to exercise, [this court] must not hesitate to preserve what is essentially a judicial function.’ ” State v. McCoy, 682 N.W.2d 153, 160 n. 7 (Minn.2004) (alteration in original) (quoting Sharood v. Hatfield, 296 Minn. 416, 423, 210 N.W.2d 275, 279 (1973)).

“This court has ‘primary responsibility under the separation of powers doctrine for the regulation of evidentiary matters and matters of trial and appellate procedure.’ ” State v. Lindsey, 632 N.W.2d 652, 658 (Minn.2001) (quoting State v. Olson, 482 N.W.2d 212, 215 (Minn.1992)). This authority over procedural matters is derived from the court’s inherent judicial powers. Johnson, 514 N.W.2d at 553. Consequently, while “[t]he legislature has the power to declare what acts are criminal and to establish the punishment for those acts as part of the substantive law[,] * * * the court regulates the method by which the guilt or innocence of one who is accused of violating a criminal statute is determined.” Lindsey, 632 N.W.2d at 658 (citation omitted). A statute is procedural, and therefore subject to this court’s inherent authority, “ ‘when it neither creates a new cause of action nor deprives [a] defendant of any defense on the merits.’ ” Johnson, 514 N.W.2d at 555 (quoting Strauch v. Superior Court, 107 Cal.App.3d 45, 165 Cal.Rptr. 552 (1980)).

This court has previously construed statutes that set time limits for an appeal as procedural. See In re Welfare of J.R., 655 N.W.2d 1, 2-3 (Minn.2003) (concluding that a rule of juvenile procedure setting time limit for taking an appeal governed instead of a statute setting an identical time limit for taking an appeal). The state argues that the rules of criminal procedure do not preclude the time limit established by section 244.11, subd. 3. But, a statute purporting to govern criminal procedure need not conflict with the rules of procedure in order to violate the separation of powers and be struck down by this court. See Lindsey, 632 N.W.2d at 659 (declaring Minn. Stat. § 631.04 (2000) unconstitutional as a violation of the separation of powers despite the absence of a conflicting rule of procedure). Moreover, section 244.11, subd. 3, conflicts with this court’s interpretation of the rules of criminal procedure in State v. Fields. In Fields, this court interpreted the rules to allow a probationer to move for modification of the sentence at a probation revocation hearing, occurring long after the original sentence was imposed, and to appeal from a denial of that motion. 416 N.W.2d at 736 (citing Minn. R.Crim. P. 27.03, subd. 9). The legislature has attempted to prohibit such an appeal by certain defendants by requiring them to bring a sentencing appeal within 90 days or before they violate probation — whichever deadline passes first. Section 244.11, subd. 3.

Because this court has previously construed statutes setting time limits on taking an appeal as procedural, see J.R., 655 N.W.2d at 3, and because section 244.11, subd. 3, does not create a new cause of action or deprive a defendant of a defense on the merits, the statute unconstitutionally encroaches on a judicial function in violation of the separation of powers under the Minnesota Constitution.

The state argues that the statute does not violate the separation of powers because it is “jurisdictional, not procedural.” In addition to this court’s implicit rejection of such a distinction in J.R., we have already determined that the legislature may not constitutionally encroach on our appellate jurisdiction. We have “original jurisdiction in such remedial cases as are prescribed by law, and appellate jurisdiction in all cases.” Minn. Const, art. VI, § 2 (emphasis added). We have interpreted these constitutional provisions to grant us “constitutionally independent authority to review determinations by the other state courts.” State v. Wingo, 266 N.W.2d 508, 511 (Minn.1978). Because such authority is granted by the state constitution, the legislature cannot “prohibit or require this court to exercise its appellate jurisdiction.” Id. at 512. While in the past we have recognized that “the legislature may enact reasonable regulation of the conditions under which this court’s jurisdiction shall be invoked,” In re O’Rourke, 300 Minn. 158, 163, 220 N.W.2d 811, 815 (1974), such regulations are recognized as a matter of comity. Wingo, 266 N.W.2d at 512. To the extent section 244.11, subd. 3, purports to limit this court’s ability to hear an appeal in certain cases, it violates the separation of powers by encroaching on this court’s power to define its appellate jurisdiction.

Despite these constitutional infirmities, this court can acquiesce to section 244.11, subd. 3, as a matter of comity. See McCoy, 682 N.W.2d at 160-61 (recognizing a statutory rule of evidence as a matter of comity despite arguable conflict with Minn. R. Evid. 404(b)); Wingo, 266 N.W.2d at 512. We decline to do so, in part, based on the policy, previously expressed in Fields, 416 N.W.2d at 736, that a defendant who has been placed on probation should not be required to appeal his or her sentence at the time the sentence is pronounced, and that such a requirement would lead to an increase in sentencing appeals. In addition, we are concerned that a recognition of this statute under comity could limit a defendant’s ability to obtain relief from an illegal sentence under Minn. R.Crim. P. 27.03, subd. 9, a possibility the state conceded at oral argument. Having determined section 244.11, subd. 3, to be unconstitutional, Losh’s appeal is properly before this court.

II.

Losh argues that she is entitled to benefit from the rule in Blakely v. Washington. The state argues, and the court of appeals held, that because Blakely was released after the period to file a direct appeal from Losh’s conviction had expired, Blakely does not apply retroactively to Losh. Losh, 694 N.W.2d at 100-01.

In State v. Shattuck, pursuant to Blakely, we held Section II.D of the Minnesota Sentencing Guidelines to be unconstitutional as applied “insofar as it permits an upward durational departure based on judicial findings.” State v. Shattuck, 704 N.W.2d 131, 142-43 (Minn.2005). Blakely is a new rule of federal constitutional criminal procedure. See State v. Houston, 702 N.W.2d 268, 270, 273 (Minn.2005). A defendant is entitled to benefit from such a “new rule” if the defendant’s case is “pending on direct review” when the rule is announced. O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (applying the federal retroactivity framework established by Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and Teague v. Lane, 489 U.S. 288, 310-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion)). We have held Blakely is a new rule, retroactive to cases pending on direct review but not to cases on collateral review (e.g., a petition for postconviction relief). Houston, 702 N.W.2d at 269 (syllabus), 270. Whether Losh can receive any benefit from Blakely, therefore, turns on whether her case was “pending on direct review” at the time of the Blakely decision.

We have recently addressed the question of when a case is pending on direct review. We held that “a case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.” O’Meara, 679 N.W.2d at 336. O’Meara failed to perfect a direct appeal from the judgment of conviction. Id. at 340. We held that O’Meara’s conviction became final on the date that his period for direct appeal ended. Id.

Like O’Meara, Losh did not perfect an appeal directly from the judgment of conviction. See Minn. R.Crim. P. 28.02, subd. 2(1), subd. 4(3) (stating that appeal from final judgment must be taken within 90 days). Under O’Meara, Losh’s conviction appears to have become final the date her period of direct appeal expired. Losh argues, however, that she is entitled to the benefit of Blakely because: (1) for the purposes of determining the retroactive effect of Blakely, the sentence, not the conviction, must be final, and (2) “direct review” of her sentence was pending at the time Blakely was decided. Because we conclude that the appeal procedure followed by Losh does not qualify as “direct review” of her sentence, we need not reach the questions of whether “finality of the sentence” (as opposed to “finality of the conviction”) is ever the touchstone for determining retroactive effect and whether or not some methods of review of a sentence qualify as “direct review.”

Losh argues that she did seek “direct review” of her sentence through the procedure approved by this court in State v. Fields. Fields, like the present ease, involved a defendant whose sentence was both an upward durational departure and a downward dispositional departure. 416 N.W.2d at 735. In that case, we faced the issue of whether a defendant could challenge a durational departure on appeal from the denial of a motion for sentence modification made at a probation revocation hearing. The defendant in Fields challenged the durational departure at the probation revocation hearing, the district court reaffirmed the sentence, and the defendant appealed the district court’s decision. Id. The court of appeals held that the departure issue could only be attacked on a timely direct appeal from the original judgment of conviction or by a postconviction petition. Id. We reversed and remanded, holding that Minn. R.Crim. P. 27.03, subd. 9, allowed a defendant to “challenge the departure by a simple motion at the time of the revocation hearing.” Fields, 416 N.W.2d at 736.

Neither Fields nor subsequent decisions by this court interpreting Fields have described such a procedure as a “direct appeal” or “direct review.” Losh argues that the policy arguments mentioned in Fields support her position that an appeal of a sentence pursuant to Fields should be considered direct review for retroactivity purposes. In Fields this court stated that defendants initially placed on probation often have less incentive to appeal the dura-tional departure. Id. at 736. Fields, however, did not deal with retroactivity and never described an appeal pursuant to Minn. R.Crim. P. 27.03, subd. 9, as a “direct appeal.” Moreover, Losh’s appeal pursuant to Fields and Minn. R.Crim. P. 27.03, subd. 9, was not her first opportunity to appeal her sentence. See Minn. R.Crim. P. 28.02, subd. 2(3); 28.05, subd. 1(1) (allowing appeal from sentence to be taken within 90 days of judgment and sentencing). For these reasons, Fields does not provide a basis to hold that Losh’s conviction was on “direct review” at the time Blakely was decided.

III.

Losh also argues that the district court abused its discretion in imposing an upward durational departure. Departures from the presumptive sentence are only justified when substantial and compelling circumstances are present in the record. State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002). When reviewing a district court’s decision to depart from the presumptive guideline sentence, we review for abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003). We have established the following rules when reviewing departures:

1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify the departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.

McIntosh, 641 N.W.2d at 8 (quoting Williams v. State, 361 N.W.2d 840, 844 (Minn.1985)).

In determining whether to durationally depart from the guideline sentence, the district court considers “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime described in the applicable statute.” State v. Thao, 649 N.W.2d 414, 421 (Minn.2002). Losh argues that the district court abused its discretion in imposing an upward durational departure because there were no substantial aggravating factors justifying the departure. The state argues that, in addition to the aggravating factor cited by the district court at sentencing (vulnerability of the victim), the departure is supported by two additional aggravating factors: (1) particular cruelty and (2) Losh committed the crime as part of a group of three or more persons who all actively participated in the crime. Because sufficient evidence in the record justifies the latter two grounds for departure, we do not reach the question of whether vulnerability of the victim is an appropriate ground for departure in this case.

A basis for an upward departure can be that “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b(2). The state argues that Jenny was treated with particular cruelty because he was left, severely injured, in a secluded location by a swamp. Losh admitted to stopping the vehicle by a “pond or * ⅜ ⅜ bog” and to driving home after Conger and Jenkins left Jenny by the side of the road. While a “district court may not base an upward durational departure on factors that the legislature has already taken into account in determining the degree or seriousness of the offense,” Shattuck, 704 N.W.2d at 140, Losh’s sentence under the guidelines was based on the fact that Jenny suffered “great bodily harm,” not on the fact that Jenny was dumped in a remote and unsafe place. See Minn.Stat. § 609.25, subd. 2(2); Minn. Sent. Guidelines V (listing kidnapping with “great bodily harm” as a severity level IX offense and kidnapping with “unsafe release” as a severity level VIII offense). Because the evidence shows that Jenny was released in an unsafe place and this factor was not already taken into account in determining the presumptive sentence, the evidence shows that Jenny was treated with particular cruelty for which Losh should be held responsible.

Another basis for upward departure which the state argues is present in this case is “[t]he offender committed the crime as part of a group of three or more persons who all actively participated in the crime.” Minn. Sent. Guidelines II. D.2.b(10). In this case, three people were involved in the kidnapping of Jenny. Losh drove the vehicle; Conger and Jenkins placed Jenny in and removed Jenny from the vehicle. The evidence in this case supports this aggravating factor in light of our prior decision in State v. Hough, 585 N.W.2d 393, 397 (Minn.1998) (holding this aggravating factor to be present where group of four traveled in vehicle to victim’s house, defendant shot at house out of the window of the vehicle, and all departed in the vehicle).

In light of the presence of these two aggravating factors, there is sufficient evidence in the record to justify the departure and the district court did not abuse its discretion in imposing an upward durational departure.

Affirmed.

HANSON, Justice

(dissenting).

DISSENT

Although I agree with the majority’s conclusion that Minn.Stat. § 244.11, subd. 3 (2004) is unconstitutional and does not preclude Losh’s appeal, I disagree with the majority’s conclusion that Blakely does not apply to this appeal. The focus of the majority opinion on “direct review” only addresses one element of the federal test for retroactivity and thus does not provide a complete answer to the issue before us. Because the federal test permits retroac-tivity of a new rule for the conduct of criminal prosecutions to all cases “pending on direct review or not yet final,” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (emphasis added), it is also necessary to determine when Losh’s conviction became “final.” Griffith defines “final” as when the case has “run the full course of appellate review” and “the availability of appeal [has been] exhausted.” Id. at 321 n. 6 and 323, 107 S.Ct. 708. I conclude that Losh’s conviction was not final at the time Blakely was announced because, under State v. Fields, 416 N.W.2d 734, 736 (Minn.1987), her case had not run the full course of appellate review and her right to direct appeal had not been exhausted. Accordingly, I would reverse the court of appeals and remand the case to the district court for resentenc-ing in light of Blakely.

I begin by focusing on the federal law of retroactivity. As we recognized in O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004), the scope of the retroactivity of a new rule of federal constitutional criminal procedure is for the United States Supreme Court to decide under the United States Constitution. In Griffith, the court began the process of achieving greater uniformity in its retroactivity determinations by adopting the view of Justice Harlan that “retroactivity must be rethought.” Griffith, 479 U.S. at 321-23, 107 S.Ct. 708 (quoting United States v. Johnson, 457 U.S. 537, 548, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). The Court then expressed approval of Justice Harlan’s concept of finality, quoting from his concurring opinion in Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971):

“If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. * * * In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” Mackey v. United States, 401 U.S., at 679, 91 S.Ct. 1160 (opinion concurring in judgment).

479 U.S. at 323, 107 S.Ct. 708 (emphasis added). The Court defined “final” as follows:

By “final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for cer-tiorari finally denied. See United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (citing Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)).

479 U.S. at 321 n. 6, 107 S.Ct. 708 (emphasis added).

In Teague v. Lane, 489 U.S. 288, 299-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Court further adopted Justice Harlan’s view on the limits of finality, concluding that the new rule need not be retroactively applied to cases on “collateral review.” But the Court equated “collateral review” with habeas corpus, quoting Justice Harlan as follows:

Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in read-judicating convictions according to all legal standards in effect when a habeas petition is filed.

Teague, 489 U.S. at 306, 109 S.Ct. 1060 (quoting Mackey, 401 U.S. at 682-83, 91 S.Ct. 1160).

I take from these cases the understanding that a case is “not yet final” when the availability of appeal has not been exhausted and appellate review has not run its full course. Alternatively, I also take from these cases that “direct review” includes all forms of appellate review that are not considered collateral review. Either way, for Losh, her case was not yet final (because the appeal rights made available in Fields had not been exhausted or run their full course) and her case was not on collateral review at the time that Blakely was announced.

O’Meara does not lead me to a different conclusion because any comments we made in O’Meara about when a case is “final” were dicta and, to the extent they were inconsistent with Griffith and Teague, they are not controlling. We did say in O’Meara that the conviction became final on the date the time for direct appeal expired. 679 N.W.2d. at 340. But that comment was only fact specific to O’Meara’s case. O’Meara’s sentence had been executed, not stayed, and thus the conviction did become final when the time for direct appeal expired. And because the new rule of criminal procedure that we were dealing with in O’Meara had been announced before the time had expired for O’Meara to take direct appeal, that comment was dicta. Further, we fully recognized the broader rule of Griffith and Teague that “a case is pending until such time as the availability of appeal has been exhausted, the time for a petition for cer-tiorari has elapsed or a petition for certio-rari with the Supreme Court has been filed and finally denied.” 679 N.W.2d. at 339.

For Losh, the questions under Griffith and Teague are whether, at the time Blakely was announced, (1) the availability of an appeal from Losh’s conviction had been exhausted (i.e., appellate review of that conviction had run its course), or (2) Losh’s appellate rights already had been relegated to collateral review. I would answer those questions in the negative. I would conclude that the consequence of our ruling in Fields is that appellate review of a stayed sentence is not exhausted until the time to appeal from any revocation of the stay has expired and that the appellate review of an order denying a motion to modify a stayed sentence is not collateral review.

Fields decided that a defendant in Losh’s position need not file a postconviction petition to obtain review of his sentence, but could appeal directly from the denial of his motion to modify the sentence when his stay of execution is revoked. We held that a postconviction petition was not preferable, and we concluded that a defendant could challenge his departure by a simple motion when his stay was revoked. Our ruling undoubtedly encouraged persons in Losh’s position to forego an immediate appeal and, in my view, provided assurance that they would still be able to receive a full review of their sentences upon revocation. We provided this encouragement and assurance for our own reasons, to avoid the burden on the court system of an “increase in sentencing appeals” that might turn out to be unnecessary. Our ruling in Fields necessarily implied that a defendant’s right to appellate review of a departure in a stayed sentence would not be exhausted until after revocation of the stay and that such review, when sought after revocation, would not be treated as collateral review. Accordingly, Losh’s case meets the criteria of Griffith and Teague for retroactive application of Blakely.

Viewed another way, if we apply the full text of Griffith, the definition of finality requires not only that the availability of appeal to our court has been exhausted, but also that the time for a petition for certiorari to the Supreme Court has elapsed or a petition has been denied. Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708. In view of Fields, could Losh petition for certiorari to the United States Supreme Court from the decision of the majority that Blakely does not apply to Losh’s case? I conclude that such a petition would not be time barred and, accordingly, that Losh’s appeal is not yet final.

Finally, I address one of the underlying concerns expressed in Griffith that “selective application of new rules violates the principle of treating similarly related defendants the same.” Griffith, 479 U.S. at 323, 107 S.Ct. 708. I would agree that any retroactivity rule will inevitably have some degree of inequity because the line must be drawn somewhere. But I am concerned that the decision of the majority treats a defendant with a stay of execution of her sentence differently from the class of defendants who are perhaps most similarly situated, those who have received a stay of imposition of their sentences. The latter class of defendants would clearly benefit from a new rule of criminal procedure announced after they were convicted but before the time had expired to appeal their sentence after the stay of imposition was revoked and the sentence executed. Thus, two defendants who committed a crime on the same day could have significantly different laws applied to them, depending on whether they received a stay of execution or a stay of imposition. Yet, these two defendants are more similar to each other than they are to a third defendant whose sentence was immediately executed because the former two are essentially on probation until revocation, while the third is in prison.

For all these reasons, I would reverse the court of appeals’ decision and hold that Blakely applies to Losh’s appeal of the departure made in her sentence.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Sam Hanson.

ANDERSON, PAUL H., Justice

(dissenting).

I join in the dissent of Justice Sam Hanson.

      . The plea agreement between Losh and the state did not involve a joint sentencing recommendation to the district court or other sentencing agreement.

      . The applicability and constitutionality of section 244.11, subd. 3, was not initially briefed or argued by the parties. Additional briefing and argument concerning this issue was ordered by this court.

      . But, "this court has 'inherent authority to [accept] an appeal in the interests of justice even when the filing or service requirements set forth in a rule or statute have not been met.’ ” State v. Barrett, 694 N.W.2d 783, 788 n. 4 (Minn.2005) (alteration in original) (quoting In re Welfare of J.R., 655 N.W.2d 1, 3 (Minn.2003)).

      . "The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.” Minn. R.Crim. P. 27.03, subd. 9.

      ."Clerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” Minn. R.Crim. P. 27.03, subd. 8.

      . "The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.” Minn. Const, art. Ill, § 1.

      .' The state correctly points out, however, that Minn. R.Crim. P. 27.03, subd. 9 does not discuss any appeal from the district court’s denial of a motion for sentence modification.
        Fields, in effect, created a new means of appealing a sentence not explicitly provided for in the Rules of Criminal Procedure.

      . This court has noted a potential exception to this rule in stating that "[i]t may well be that the legislature, in creating a substantive right by statute, may, as an element of that substantive right, circumscribe the adjudication of that right more strictly than in other cases, subject to constitutional requirements of due process.” In re O’Rourke, 300 Minn. 158, 175 n. 11, 220 N.W.2d 811, 821 n. 11 (1974). This court has already expressly stated that the right of appeal does not fall within this exception. Wingo, 266 N.W.2d at 511 n. 7. In addition, the state does not argue that this exception applies in this case.

      . Losh additionally argues that section 244.11, subd. 3, is unconstitutional on the basis that it violates her constitutional right to appellate review of her sentence. Because we invalidate the statute on the ground that it violates the separation of powers, we need not address this issue here.

      . Losh argues that because the state, before the court of appeals, conceded that Blakely applied to Losh's case, the state has waived this issue. Losh cites no authority supporting this proposition, however, and the authority she does cite indicates that the state cannot be deemed to have waived arguing this issue on appeal. See State v. Grunig, 660 N.W.2d 134, 136 (Minn.2003) (stating waiver rule is administrative rule dictating that appellate courts will not decide issues that were not raised below). Losh raised the issue of Blakely’s retroactive effect below, and the court of appeals addressed it, so the waiver rule is not applicable here.

      .The dissent draws a distinction between cases that are "pending on direct review” and cases that are “final” based on language in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). As we recognized in O’Meara, however, "pending on direct review” and "not yet final” are two ways of saying the same thing in federal retroactivity analysis. See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ("When a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances.”) (emphasis added) (citation omitted); O’Meara, 679 N.W.2d at 339 ("If the conviction is not yet final (i.e., is ‘pending’) when the Supreme Court announces the rule * ⅛ *•”)•

      . In addition, the dissent argues that, under the framework of retroactivity analysis laid out by the Supreme Court, Losh should receive the benefit of Blakely in this case because: (1) when Blakely was decided Losh’s availability of appeal had not been exhausted and (2) Losh could petition to the United States Supreme Court for certiorari from this court’s judgment in this case. We initially note that the United States Supreme Court has not yet had to classify state appellate review methods (other than direct appeal from judgment of conviction) as either "direct review” or "collateral review.”
      We agree that Losh was properly pursuing a Fields appeal at the time of Blakely’s decision and that this court's decision of a Fields appeal is a final judgment from which review by writ of certiorari could be granted. See 28 U.S.C. § 1257 (2000). But, the availability of appeal and review by writ of certiorari are not themselves sufficient qualities to make a form of appellate review "direct review” for retroactivity purposes. A postconviction petitioner has the ability to appeal a district court’s denial of postconviction relief as well as the opportunity to petition the Supreme Court for a writ of certiorari from a final judgment of this court affirming denial of postconviction relief. See 28 U.S.C. § 1257 (2000); Minn.Stat. § 590.06 (2004); see also Snow v. Ault, 238 F.3d 1033, 1035-36 (8th Cir.2001) (holding statute of limitations for federal habeas corpus petition was not tolled during 90-day period during which petitioner could have filed a petition for a writ of certio-rari from the denial of state postconviction relief). A state postconviction petition, however, does not qualify as direct review for retroactivity purposes. See Houston, 702 N.W.2d at 270.

      .As discussed earlier, we decline to recognize section 244.11, subd. 3, as a matter of comity based, in part, on the policies expressed in Fields. These policies, however, do not impact our analysis regarding whether a Fields appeal qualifies as direct review. As a matter of procedure, we have determined that a probationer should not be required to appeal his or her sentence within 90 days of pronouncement of that sentence. It does not follow that this individual should be entitled to benefit from all new rules of federal constitutional criminal procedure which arise between the expiration of the direct appeal period pursuant to Minn. R.Crim. P. 28.02, subd. 2(3); 28.05, subd. 1(1) (within 90 days of judgment and sentencing), and the resolution of any eventual appeal pursuant to Fields. Contrary to the dissent, we do not read federal law to require a Fields appeal to be classified as a direct review, and such a classification runs contrary to the principle of finality underlying the federal retroactivity framework applied by this court in O’Meara and Houston. See Teague, 489 U.S. at 309-10, 109 S.Ct. 1060; Houston, 702 N.W.2d at 270-74; O’Meara, 679 N.W.2d at 338-40.

      . The dissent also argues that our decision treats similarly situated defendants differently by drawing a distinction between a defendant who receives a stay of imposition and a defendant who receives a stay of execution. The dissent is referencing the court of appeals decision in State v. Beaty, 696 N.W.2d 406 (Minn.App.2005). In Beaty, the court of appeals held that Blakely applied retroactively to a defendant when Blakely was decided during the defendant’s appeal from a probation revocation proceeding in which the district court vacated a stay of imposition and imposed a sentence. 696 N.W.2d at 408-09, 411. No petition for review was filed regarding this decision and the wisdom of Beaty is not before this court.

      . Because we hold that Losh is not entitled to the retroactive application of Blakely on this appeal, we do not reach the issue of whether the rule in Blakely, if applied, would entitle Losh to relief.