author: MEYER, Justice.

text:
    STATE of Minnesota, Appellant, v. Frank E. HOLMES, Respondent.
    No. A04-1134.
    Supreme Court of Minnesota.
    July 27, 2006.
    Rehearing Denied Aug. 23, 2006.

      Mike Hatch, Attorney General, St. Paul, MN, Bruce F. Alderman, Crow Wing County Attorney’s Office, Brainerd, MN, for appellant.
    Benjamin J. Butler, Asst. State Public Defender, Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

In this appeal, we are asked to construe the meaning of Minn.Stat. § 169A.28, subd. 1 (2004), which provides for mandatory consecutive sentencing for a felony driving while impaired (DWI) conviction where a defendant’s sentence on a prior gross misdemeanor DWI offense is executed at the time of sentencing for the felony DWI. Respondent Frank E. Holmes was on probation for a prior gross misdemean- or DWI offense when he was convicted of felony DWI. The district court imposed consecutive sentences, did not downwardly amend Holmes’ criminal history score, and sentenced Holmes to 66 months in prison on the felony DWI, the presumptive sentence for a felony DWI offender with a criminal history score of five. The court of appeals vacated Holmes’ 66-month sentence, concluding that Holmes’ criminal history score should be amended downward to one, and remanded for resentenc-ing. We reverse the court of appeals in part, and remand to the district court for resentencing.

Holmes was arrested on September 29, 2003, after a traffic accident in Brainerd, Minnesota. At the time of the accident, Holmes was on probation for a prior gross misdemeanor DWI under Minn.Stat. § 169A.25 (2000). He was charged by complaint with felony first-degree DWI under Minn.Stat. § 169A.20, subd. 1(1) (2004), and MinmStat. § 169A.24 (2004), and felony first-degree refusal to submit to chemical testing under MinmStat. § 169A.20, subd. 2 (2004), and MinmStat. § 169A.24. After a one-day trial, the jury found Holmes guilty of both felony counts. Felony DWI under Minn.Stat. § 169A.24 is a severity level seven offense, see Minn. Sent. Guidelines IV, V, and the presen-tence investigation produced a criminal history score of five for Holmes, including one custody status point. The presumptive sentence for the felony was 66 months of imprisonment. Minn. Sent. Guidelines IV.

On March 22, 2004, the district court imposed a 66-month executed sentence to be served consecutively to Holmes’ previously imposed one-year sentence on the gross misdemeanor DWI, followed by five years on conditional release. The next day, the court found that Holmes’ felony DWI conviction constituted a violation of his probation on the gross misdemeanor DWI. The court ordered the one-year gross misdemeanor sentence executed consecutively to the 66-month felony DWI sentence that had been imposed the previous day (switching the imposed order of service of the sentences). The court also found Holmes in violation of his probation on two other convictions, and ordered the sentences executed concurrently with the previously imposed sentences.

Holmes appealed to the court of appeals on several issues, and the court of appeals determined that: (1) the district court erred in ordering the executed gross misdemeanor sentence to run consecutively to the felony sentence, instead of the other way around; (2) the statutorily mandated consecutive sentence for the felony DWI should be considered presumptively consecutive as defined by Minnesota Sentencing Guidelines II.F because the consecutive sentence was mandatory; and (3) section II.F should be applied, reducing Holmes’ criminal history score to one to produce a presumptive 42-month stayed felony sentence. State v. Holmes, 701 N.W.2d 267, 272-73 (Minn. App.2005). The state appealed, and we granted review.

Statutory construction and interpretation of the sentencing guidelines are subject to de novo review by this court. State v. Zeimet, 696 N.W.2d 791, 793 (Minn.2005). “The object of statutory interpretation is to determine and effectuate legislative intent,” and “[t]he ambit of an ambiguous criminal law should be construed narrowly according to the rule of lenity.” Id.

Holmes was convicted of driving while impaired under Minn.Stat. § 169A.20 (2002 & Supp.2003). He was on probation for a prior DWI offense and, therefore, was subject to a mandatory consecutive sentence under subdivision 1 of section 169A.28, which states in relevant part:

The court shall impose consecutive sentences when it sentences a person for: ⅜ ⅜ ⅜ ⅝ ⅜ ⅝:
(2) a violation of section 169A.20 when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a violation of section 169A.20 * * * and the prior sentence involved a separate course of conduct

Minn.Stat. § 169A.28, subd. 1. Holmes was sentenced to 66 months in prison, the presumptive sentence for a felony DWI offender with a criminal history score of five. The district court executed Holmes’ one-year sentence for the previous DWI consecutive to the felony sentence.

The principal question presented by this appeal is whether the duration of Holmes’ felony DWI sentence should have been adjusted downward to 42 months under section II.F of the Minnesota Sentencing Guidelines. Holmes concedes that the court of appeals erred in determining that his sentence should be stayed. When an offender is convicted of multiple offenses, the Minnesota Sentencing Guidelines presume that the sentences will be served concurrently. Minn. Sent. Guidelines II.F. In certain limited circumstances, the guidelines call for or permit consecutive sentences, and in those cases the offender’s criminal history score is amended downward to a score of one or zero, depending on whether the consecutive sentence is presumptive or permissive. Id. Comments to the sentencing guidelines explain the rationale for amending downward a criminal history score when a consecutive sentence is imposed:

Consecutive sentences are a more severe sanction because the intent of using them is to confine the offender for a longer period than under concurrent sentences. If the severity of the sanction is to be proportional to the severity of the offense, consecutive sentences should be limited to more severe offenses.

Minn. Sent. Guidelines cmt. II.F.01.

There are three types of consecutive sentences under the guidelines: presumptive, permissive, and a departure. See Minn. Sent. Guidelines II.F. In each situation, the offender’s criminal history score is altered. If a consecutive sentence is presumptive, a criminal history score of one is assigned. Id. para. 7. If a consecutive sentence is permissive or a departure, a criminal history score of zero is assigned to determine the duration of the sentence. Id. para. 17.

The court of appeals held that Holmes’ sentence under Minn.Stat. § 169A.28, subd. 1, was “a presumptive consecutive sentence calculated using a criminal-history score of one,” even though the court acknowledged that the consecutive sentencing provision of the guidelines does not list consecutive sentencing under section 169A.28 as a case in which either a presumptive or a permissive consecutive sentence may be imposed. Holmes, 701 N.W.2d at 272-73. For felony DWI, a severity level seven offense, the presumptive duration of the sentence with a criminal history score of one is 42 months. Minn. Sent. Guidelines IV. Under the court of appeals’ holding, for felony DWI offenders such as Holmes with a criminal history score of five, section 169A.28, subdivision 1, and Minn. Sent. Guidelines II.F combine to result in a shorter sentence than if the offender had been sentenced concurrently (where the duration would be calculated using the offender’s unaltered criminal history score), and less than a sentence received by a DWI offender who repeats the offense with less frequency (because the offender’s probationary period would be expired, so he would receive the presumptive guidelines sentence, also based on his unaltered criminal history score).

The state argues that applying the guidelines as the court of appeals did produces a result contrary to the plain legislative intent behind section 169A.28 to crack down on repeat DWI offenders. The state points to the guidelines’ stated goal of achieving rational and consistent sentencing, Minn. Sent. Guidelines I, and draws a contrast between the court of appeals’ 42-month sentence for Holmes and the consecutive 66-month felony sentence and 12-month gross misdemeanor sentence in State v. Kier, 678 N.W.2d 672, 675-76 (Minn.App.2004) (consecutive felony and gross misdemeanor sentences imposed as part of the same behavioral incident), rev. denied (Minn. June 15, 2004).

Alternatively, the state argues that if any provision of section II.F applies, it should be the reference in the presumptive consecutive sentences section to circumstances where “the total time to serve in prison would be longer if a concurrent sentence is imposed in which case a concurrent sentence is presumptive.” Minn. Sent. Guidelines II.F para. 6. If such logic were applied, Holmes’ 12-month executed gross misdemeanor sentence would run concurrently to his executed 66-month felony sentence.

Holmes asserts that “under the Minnesota Sentencing Guidelines, an offender’s criminal history score is amended when a consecutive sentence is imposed.” Holmes essentially argues that consecutive sentencing under section 169A.28 must be classified under the guidelines as either presumptive, permissive, or a departure. See Minn. Sent. Guidelines II.F. Holmes argues that section 169A.28 is best read to provide for a presumptive consecutive sentence because a consecutive sentence under section 169A.28 does not fit the definition of a permissive sentence or a departure.

We agree with Holmes’ assertion that consecutive sentencing under section 169A.28 cannot be classified as a departure because it is statutorily mandated. However, we do not agree with Holmes’ assertion that consecutive sentencing under section 169A.28 must be imposed as either a presumptive or a permissive consecutive sentence. Neither the text nor the comments to section II.F address consecutive sentencing under section 169A.28 as a case in which either a presumptive or a permissive consecutive sentence may be imposed. See Minn. Sent. Guidelines cmts. II.F.01-.06. Section 169A.28 is not referenced directly or indirectly in the comments. Presumptive consecutive sentencing, which the court of appeals applied, is limited to cases where “the conviction is for a crime committed by an offender serving or on supervised release, or on escape status from, an executed prison sentence.” Minn. Sent. Guidelines II.F para. 4 (2003). Permissive consecutive sentencing is even more limited to very specific situations that also do not apply in this case. Id. para. 8.

The statutory mandate of section 169A.28, subdivision 1, is straightforward: a court shall impose consecutive sentences for qualifying DWI convictions. Therefore, we hold that the duration of an offender’s consecutive sentence imposed under MinmStat. § 169A.28, subd. 1, is measured by the offender’s criminal history score, which score is not amended downward under Minnesota Sentencing Guidelines II.F because by its terms section II.F does not apply to a mandatory consecutive sentence under Minn.Stat. § 169A.28.

The duration of Holmes’ sentence under the guidelines, based on a criminal history score of five, including one custody status point, is 66 months. Holmes’ criminal history score is not amended downward under Minn. Sent. Guidelines II.F because by its terms section II.F does not apply to a section 169A.28 sentence. The result is that Holmes must first serve his executed one-year gross misdemeanor sentence, then his executed 66-month felony sentence.

We affirm the court of appeals’ determination that Holmes’ felony DWI sentence should run consecutively to the executed sentence for the violation of probation imposed on the gross misdemeanor. Holmes, 701 N.W.2d at 272 (citing State v. Klang, 320 N.W.2d 718, 719 (Minn.1982)). We reverse the court of appeals’ application of Minn. Sent. Guidelines II.F to Holmes’ consecutive statutory sentence and remand for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded for resentencing.

      . Holmes had been sentenced on January 3, 2002, to one year in jail on the first-degree DWI (which was, at the time, a gross misdemeanor). Execution of the sentence had been stayed, and Holmes had been placed on probation.

      . Section 169A.24 is the mechanism by which a DWI violation becomes a felony. It provides that a person who commits a DWI violation under section 169A.20 within 10.years of the first of three or more qualified prior impaired driving incidents, or a person who has previously been convicted of felony DWI, is guilty of a felony. Minn.Stat. § 169A.24, subd. 1. (The statute has recently been amended to provide additional prior convictions that will serve as a basis for a felony DWI. See Act of June 1, 2006, ch. 260, art. 2, § 3, 2006 Minn. Laws-,-.)

      . Holmes also had been charged with two gross misdemeanor counts that were later dismissed by the state.

      . Holmes' criminal history score also included a misdemeanor/gross misdemeanor point. Holmes points out that under this court’s holding in State v. Zeimet, prior criminal convictions should be used as predicates to enhance Holmes’ September 2003 DWI offense to a felony under Minn.Stat. § 169A.24 before qualified civil incidents are allocated for the same purpose. State v. Zeimet, 696 N.W.2d 791, 797 (Minn.2005). Once the criminal convictions are used as predicates, they cannot be used again in the determination of Holmes' criminal history score. Zeimet, 696 N.W.2d at 797; accord Minn. Sent. Guidelines cmt. II.B.601. Holmes concedes that he likely has enough other qualifying prior convictions to merit assignment of the misdemeanor/gross misdemeanor point.

      . The trial court did not specifically refer on the record to the January 3, 2002, sentencing, but that was the predicate offense for the application of section 169A.28 to Holmes' sentencing.

      . The court of appeals also held that sufficient evidence supported Holmes’ conviction, and that the district court's assignment of a custody status point to Holmes because he was on probation did not violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Holmes, 701 N.W.2d at 273. We denied Holmes’ petition for cross-review of the constitutionality of the district court’s imposition of the custody status point and the sufficiency of the evidence supporting the felony DWI conviction.

      . Under State v. Klang, it was improper for the sentencing court to order the executed sentence for the previously imposed gross misdemeanor to run consecutively to the later imposed felony DWI sentence. 320 N.W.2d 718, 719 (Minn. 1982).

      . If section II.F in fact applies to Holmes’ case, it requires that his criminal history score should be reduced only for purposes of determining the presumptive duration of the consecutive sentence. Minn. Sent. Guidelines II.F para. 7. For the presumptive disposition (i.e., determining whether the sentence should be stayed or executed), sections II.C and II.E, paragraph 7, of the guidelines direct that the grid in section IV of the guidelines should be used to determine the presumptive disposition of the defendant's consecutive sentence. In Holmes’ case that would mean that even if section II.F applies he would receive an executed sentence, given his criminal history score of five.

      . Section 169A.28 has been amended to allow concurrent sentencing under circumstances similar to those presented by Holmes' case. See Act of June 1, 2006, ch. 260, art. 2, § 4, 2006 Minn. Laws-, -; see also Minn. Sentencing Guidelines Comm'n, Report to the Legislature 51-52 (Jan.2006), http:/! www.msgc.state.mn.us/Data% 20Reports/Le-gReportJan06.pdf (proposing amendments to the sentencing guidelines that would permit concurrent sentencing in a case similar to Holmes' case). We express no opinion about the recent changes and the effect they will have on sentencing in future cases similar to Holmes’.


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Eric Maurice WRIGHT, Appellant.
    No. A05-1747.
    Supreme Court of Minnesota.
    Aug. 17, 2006.

      John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul MN; and Janelle Prokopec Kendall, Stearns County Attorney, St. Cloud, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Following a jury trial in Stearns County District Court, appellant Eric Maurice Wright was convicted of first-degree premeditated murder and sentenced to life in prison without the possibility of release in connection with the stabbing death of 82-year-old Raymond Wander. On appeal from the judgment, Wright asserts he was denied a fair trial by the erroneous admission of Spreigl evidence and prosecutorial misconduct; and he also asserts constitutional error in sentencing. By pro se supplemental brief, Wright makes additional claims of ineffective assistance of counsel. We affirm.

Wander lived alone in the family home in Elrosa, Minnesota. He was meticulous in maintaining the home on his own, believing that everything had its place. Wander had a checking account for bills but would otherwise pay for items with cash that he kept in a two-drawer filing cabinet in his main-floor bedroom. As part of his daily routine, Wander would retrieve his newspaper from his mailbox and his mail from the post office. He had children living in Elrosa and Richfield who were in contact with him on an “almost” daily basis. His daughter, Marjorie, would call him nearly every night around 9:00 p.m. so as not to interrupt his favorite TV show. She last spoke with her father on March 23, 2004.

Appellant Wright lived in Richfield with Wander’s daughter, Mary Jane. Wright was also the primary driver of Mary Jane’s 1995 Toyota Camry. He was on good terms with Mary Jane’s father, playing cards with him and helping with yard work in the fall, and he had spent the night in the Wander family home roughly half a dozen times. Although Wright had struggled with substance abuse during his relationship with Mary Jane, he was working at Cub Foods and going to college.

On March 23, 2004, Wright was in the midst of what would eventually be a 2- or 3-day drug binge. In the afternoon of the 23rd, Wright and another man in a red and white Indiana jacket purchased a TV at Target and traded it for five 20-dollar rocks of cocaine. At about 6:20 p.m., Wright and the man in the Indiana jacket arrived at Wright’s and Mary Jane’s home. Wright lied that he was in trouble and needed money. Although Mary Jane thought Wright had probably been drinking and doing drugs, she drove the men in the 1995 Toyota Camry to an ATM where she withdrew $200 and gave the money to Wright. When they returned home, Wright said he had to drive to Brooklyn Center. Following an argument, Mary Jane threw the car keys at Wright who then left with the man in the Indiana jacket. Wright bought crack cocaine two more times that night, the second occurring sometime between 11:30 p.m. and midnight. He was alone both times.

On March 24, 2004, Wright returned home between 5:15 a.m. and 5:30 a.m., as Mary Jane was getting ready to get up for work. He said he was tired and needed a place to lie down. He ironed her pants and made her coffee. He was “antsy” and his hands were shaking. Wright called Mary Jane at work around 8:00 a.m., told her that he loved her and that he needed to get help. Wright borrowed money from neighbors and coworkers and purchased crack cocaine. He seemed nervous and agitated; and he looked “kind of ragged.”

On March 25, 2004, at around 5:15 a.m. or 5:30 a.m., the Durand, Wisconsin police department called Mary Jane. Wright had been hospitalized in Durand following suicide attempts and arrangements needed to be made for the return of the Toyota Camry to Richfield. After Wright was transferred to a hospital in Eau Claire, Wisconsin authorities called again, telling Mary Jane that Wright was concerned about her father’s safety and asking that she confirm that he was all right. When Mary Jane was unable to reach her father by phone, she contacted family members to check on him. At 1:08 p.m., Lorraine Wander, Wander’s daughter-in-law, called 911 and reported finding Wander dead in the basement of his home. Responding officers found Wander lying face down in a pool of blood. His hands had been tied behind his back with an electrical cord that had been cut from a nearby battery charger, and his body had several knife wounds, including a gaping wound to the neck. He was fully clothed and was wearing one slipper.

The officers found no signs of forced entry; the home was well-kept, neat, and everything seemed to be in order, although a single slipper matching the one on the body was found in the middle of the living-room floor. The police canvassed the neighborhood, spoke to a family member, found newspapers dated March 24 and 25 still in the mailbox, and mail for the same dates still at the post office. An elderly neighbor reported hearing people arguing in the street around 2:30 a.m. on March 24 and seeing Wander standing in his doorway.

In processing the crime scene, investigators found a bent steak knife with a piece missing from the handle on Wander’s bed, a blood smear on the bed sheet, and a bank bag and wallet in the bedroom filing cabinet. No paper currency was found in the house. In the kitchen, investigators found a knife block with an empty slot and a drop of blood on the kitchen floor near the top of the basement stairway. In the basement, they found the missing piece from the handle of the knife found in the bedroom. Investigators also noted boxes of liquor bottles but did not check them further as they seemed to be in place; nothing appeared to have been “riffled [sic] through.” Outside, they found four cigarette butts between the residence and the driveway, on the driveway, and in the corner of the garage; two were unfiltered Camel cigarettes, and the other two were also unfiltered, but not identifiable by brand. Wright smoked unfiltered Camel cigarettes.

Meanwhile, some four hours into the investigation of the Wander homicide, Wisconsin authorities notified the Stearns County Sheriffs Department that Wright had made comments to hospital staff about having a vague recollection of pulling a knife from Wander’s back. A BCA agent traveled to Wisconsin to interview Wright that night. Following a Miranda warning and waiver, Wright said that on March 24, after being up all night smoking crack, he arrived home around “5 something in the morning.” He said that after Mary Jane left for work, he smoked crack, became despondent because of his addiction, purchased some liquor, and tried to commit suicide by carbon monoxide poisoning in the garage, but he woke up. He then borrowed money, purchased crack, and eventually ended up in Mounds Park where he again tried to commit suicide, this time by slicing his wrists with a box cutter. He said he awoke to find himself driving, eventually ending up in a hospital in Durand and then being transferred to a hospital in Eau Claire. He said that while at the Eau Claire hospital, he “just felt something that [he] could see [himself] pulling the knife out” of Wander, being “angry at somebody,” and having “three guys with [him].” He said that because he did not know if this was a dream, he wanted Mary Jane to check on Wander. He indicated that when using drugs, he had trouble recalling what happened. At the end of the interview, he asked if Wander was all right. When told that Wander was dead, Wright became upset.

In subsequent statements to the authorities and letters to Mary Jane, Wright admitted driving up to Wander’s home on March 24, arriving around 2:00 a.m. Wright told the authorities that he had three other men in his car and told them to “stay down” and wait for him. He did not know their names, although one of the men had been with him earlier at Target and on the drive to the ATM. He was not sure why he “ended up there,” guessing that he was “so stoned out of [his] mind” that he “probably suggested going up there to borrow the money.” He said that after Wander gave him some money, he and Wander went down to the basement to get some liquor and that one of the men from the car followed them. He said he thought he looked through liquor boxes for Captain Morgan, grabbed a bottle of some “fruity type” liquor, turned around and saw Wander lying on the floor with a knife in his back and one of the men from the car standing over Wander. He said he pulled the knife out of Wander, remembered feeling anger but could not recall thinking about Wander. He could not recall much about the trip back to Minneapolis. He said that all four of them were drinking, doing crack, and smoking cigarettes and marijuana that night. Wright denied killing Wander and denied knowledge of what happened but nevertheless felt responsible for Wander’s death and expressed deep remorse.

The Minnesota Bureau of Criminal Apprehension (BCA) analyzed the evidence collected from the crime scene and determined that the DNA profile of the blood on the knife matched Wander’s DNA profile and that the DNA profile of the blood on the kitchen floor and bed sheet matched Wright’s DNA profile. One of the cigarette butts found on the driveway of the Elrosa residence had DNA material matching Wright’s DNA profile; biological material was not found on the other three cigarette butts. The clothing Wright wore on the night of the homicide had no blood on it. The police located the person in the red and white Indiana jacket who was with Wright at the Target store and later at the ATM but found no evidence other than Wright’s statements to connect that man to the crime scene.

Wright was indicted by grand jury for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2004), several counts of first-degree felony murder, Minn.Stat. § 609.185(a)(3) (2004), and second-degree murder, Minn.Stat. § 609.19, subd. 1(1) (2004). At trial, in addition to the physical evidence and forensic analysis of the evidence collected at the crime scene, Wright’s statements to the authorities and letters to Mary Jane were admitted in the state’s case-in-chief. There also was evidence that when the 1995 Toyota Camry was still in Durand, Wisconsin, the local police executed a search warrant on the vehicle because of comments Wright had made indicating the possibility that a dead body was in the trunk. The police opened the trunk and observed a glove with a red substance suggestive of blood. At that point, the police impounded the vehicle, sealed it with evidence tape, and turned it over to the Minnesota BCA. With the exception of the driver’s area, the BCA found the vehicle fairly clean and well maintained, and there was nothing in the back seat compartment to indicate that anyone had recently been in that area. The glove found in the trunk tested negative for blood.

The medical examiner testified that Wander’s body had contusions on the arms, wrists, and left shoulder, all occurring within 24 hours of death. There was bruising on the back of the right hand consistent with punching something, also occurring close to the time of death. There were four stab wounds on the chest and abdominal region; three stab wounds on the back; and multiple incised wounds on the neck, which severed the windpipe, causing death. There was little internal bleeding, indicating that all of the stab wounds occurred in a short period of time. The stab wounds on the back occurred last; and one of those wounds hit the vertebral column, suggesting that the knife blade bent on impact. The BCA forensic scientist testified that there was no blood behind Wander’s hips and that blood spatter across the doorway indicated that he was on his knees when the fatal wound was inflicted. Over objection of defense counsel, the state was allowed to admit evidence of a prior assault conviction for purposes of identity. Wright’s decision to exercise his Fifth Amendment right not to testify was placed on the record. The jury found Wright guilty as charged. The district court entered judgment of conviction for first-degree premeditated murder and imposed a life prison term without the possibility of release. This appeal followed.

I.

Wright initially challenges the admission of other-crimes evidence. In 1991, Wright was charged with attempted second-degree murder and first-degree criminal sexual conduct. He ultimately entered a guilty plea to first-degree assault and was sentenced to a 180-month prison term. During the trial for the current offense, the factual-basis inquiry portion of the 1991 plea-hearing transcript was read to the jury. At the plea hearing, Wright acknowledged that after days of extensive drug use, on March 25, 1991 at around 12:30-12:50 a.m., he went to the apartment of a long-time female acquaintance; that they got into an argument about drugs; that he was “not quite clear as to what happened” but that he did recall hitting her and acknowledged that she was stabbed with a knife, resulting in lacerations on her neck and puncture wounds on her back.

We review the admission of other-crimes evidence for an abuse of discretion. State v. DeWald, 464 N.W.2d 500, 503 (Minn.1991). Evidence of other crimes, wrongs, or acts is inadmissible to prove the character of the accused in order to show that the individual acted in conformity therewith on a particular occasion. Minn. R. Evid. 404(b). But other-crimes or Spreigl evidence may be admitted “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.; State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965). Admission of Spreigl evidence is evaluated under a five-step process requiring that:

(1) the state must give notice * * *; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential for prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 686 (Minn.2006). The fifth step incorporates a consideration of the level of need the state has for the Spreigl evidence, though the state’s need for the evidence is not a separate requirement for admission. Id. at 690. Here, Wright challenges application of the fourth and fifth steps, requiring that the Spreigl evidence be relevant and that the probative value of the evidence not be outweighed by its potential for prejudice.

The state argued that the Spreigl incident was relevant to show the identity of the individual who actually committed the homicide. Spreigl evidence may be relevant and material to show the identity of the perpetrator if identity is at issue and if there is a sufficient “time, place, or modus operandi nexus” between the charged offense and the Spreigl offense. State v. Blom, 682 N.W.2d 578, 612 (Minn.2004). “The past crime does not have to be a ‘signature’ crime, as long as the crime was sufficiently similar to the incident at issue before the jury.” Id. However, “if the prior crime is simply of the same generic type as the charged offense, it ordinarily should be excluded.” State v. Shannon, 583 N.W.2d 579, 585 (Minn.1998). Further, “the more distant the Spreigl act is in terms of time, the greater the similarities as to place and modus operandi must be to retain relevance.” State v. Washington, 693 N.W.2d 195, 202 (Minn.2005). Temporally remote Spreigl incidents may be less objectionable if:

(I) the defendant spent a significant part of that time incarcerated and was thus incapacitated from committing crimes; (2) there are intervening acts that show a repeating or ongoing pattern of very similar conduct; or (3) the defendant was actually convicted of a crime based on the prior bad act, thus reducing the prejudice of having to defend against claims of acts that occurred years before.

Ness, 707 N.W.2d at 689.

Here, the district court determined that the prior assault had sufficient similarities to the charged offense to be relevant to the issue of identity: both incidents involved intrusions into homes of vulnerable victims whom Wright had known for some time; both incidents occurred in the early morning hours; both incidents were preceded by extensive drug use; and the weapon used and injuries inflicted in both incidents were markedly similar. Wright correctly points out that the Spreigl offense occurred 13 years prior to the charged offense and that the incidents occurred in two different cities located 2 hours apart. But temporal-remoteness concerns were considerably reduced by Wright’s extensive incarceration between the two offenses; and circumstances of the prior offense were sufficiently similar to the charged offense for Rule 404(b) purposes.

Nevertheless, even if relevant, Spreigl evidence must not be more prejudicial than probative. Ness, 707 N.W.2d at 686. Courts must balance the probative value of relevant Spreigl evidence against the “overarching concern” that such evidence “might be used for an improper purpose, such as suggesting that the defendant has a propensity to commit the crime or that the defendant is a proper candidate for punishment for his or her past acts.” Id. at 685, 139 N.W.2d 167. This balancing also takes into account the level of need the state has for the evidence. Id. at 690, 139 N.W.2d 167. Here, the district court determined that the state had the requisite level of need for the evidence given Wright’s statements, and any potential prejudice was mitigated by the limiting instruction given to the jury. State v. Kennedy, 585 N.W.2d 385, 392 (Minn.1998) (explaining that standard cautionary instructions to the jury lessen “the probability of undue weight being given by the jury to the evidence”). Accordingly, the admission of other-crimes evidence in this case was not an abuse of discretion.

II.

Wright also argues that the prosecutor deprived him of his right to a fair trial by engaging in prejudicial misconduct during the opening statement and closing argument. In reviewing claims of prosecutorial misconduct, this court will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000). Wright argues that the prosecutor’s “overall theme,” that Wright’s account of what occurred was a lie, amounted to improper comment on his credibility and character. It is improper for the state to express a personal opinion on the defendant’s credibility. State v. Powers, 654 N.W.2d 667, 679 (Minn.2003). But it is not misconduct for the state to analyze the evidence and argue that particular witnesses were or were not credible. State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003), which is what the prosecutor did at Wright’s trial. Wright also argues that the prosecutor disparaged his intoxication defense. While the state may argue that there is no merit to the particular defense, the state may not disparage the defense “either in the abstract or by suggesting that the defendant raised the defense because it was the only defense that may be successful.” State v. MacLennan, 702 N.W.2d 219, 236 (Minn.2005). Examined in context, the prosecutor’s remarks related to Wright’s intoxication defense had more to do with the merits of that defense and were not aimed at improper disparagement.

III.

Wright challenges the legality of his sentence. Under Minnesota law, a conviction for first-degree premeditated murder is punishable by a term of life in prison. Minn.Stat. § 609.185(a) (2004). A defendant convicted of first-degree premeditated murder who has “one or more previous convictions for a heinous crime” shall be sentenced to life without possibility of release. Minn.Stat. § 609.106, subd. 2(3) (2004). Heinous crimes include “a violation of section 609.221 [first-degree assault].” Minn.Stat. § 609.106, subd. la(2) (2004). Because Wright had a prior conviction for first-degree assault, he was sentenced to life without possibility of release. Wright asserts that this sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi holds that “[o]ther 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, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Apprendi has no application to a mandatory life sentence with a release dis-qualifier based on a prior conviction.

IV.

By pro se supplemental brief, Wright argues that he was deprived of his right to effective assistance of counsel. The Sixth Amendment right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). To set aside a conviction on the ground of ineffective assistance of counsel, a defendant must show “that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” 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, 80 L.Ed.2d 674 (1984)). The record reflects that trial counsel proceeded reasonably; and much of trial counsel’s approach that Wright now claims was inadequate relates to trial tactics. What 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). Wright was not denied effective assistance of counsel.

Affirmed.

      . The state presented a certified copy of the judgment of the 1991 conviction and sought to establish the underlying acts either through the complaint or guilty plea transcript. To mitigate possible prejudice, the court allowed a limited portion of the guilty plea inquiry. Prior misconduct may be proved by convictions; but a judgment of conviction "is hearsay if offered to prove the underlying act for the purpose of showing intent and the like under FRE 404(b), since it is not the fact of conviction that counts, but the fact that the person convicted committed the acts." 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 109, 616 & n. 3 (2d ed.1994); see State v. Crocker, 409 N.W.2d 840, 844 (Minn.1987) (citing first edition of Treatise). And evidence of "arrests or charges should not itself be admitted to prove the underlying acts under FRE 404(b), since neither is sufficiently probative of the basic question whether the defendant committed the underlying crime, or whether any other underlying act occurred.” Mueller & Kirkpatrick, supra, at 616. Statements in a complaint are hearsay, implicating confrontation concerns. 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice — Criminal Law and Procedure § 32.22, at 468 (3d ed.2001). Ordinarily, "the state will need to call witnesses to prove the other crime, [although] this is not always the case.” Crocker, 409 N.W.2d at 844. Witness testimony may be needed to establish the underlying acts even for prior convictions obtained by guilty plea. E.g., State v. Blom, 682 N.W.2d 578, 601 (Minn.2004). The trial court may exclude some of the proffered other-crimes evidence and "limit inquiry into some of the more prejudicial details.” 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 404.23[5][a], 404-139 (Joseph M. McLaughlin ed., 2d ed.2006). The parties may also "stipulate to the form in which the evidence is received ⅜ * McCarr & Nord-by, supra.


author: PER CURIAM. GILDEA, J.

text:
    In re THE PETITION FOR REINSTATEMENT OF Sharon D. RAMIREZ, a Minnesota Attorney, Registration No. 231162.
    No. A04-2499.
    Supreme Court of Minnesota.
    Aug. 17, 2006.

      William J. Wernz, Dorsey & Whitney LLP, Minneapolis, MN, for Appellant Sharon D. Ramirez.
    Betty M. Shaw, Acting Director, St Paul, MN, for Respondent Office of Lawyers Professional Responsibility.
   OPINION

PER CURIAM.

In this case we consider the recommendation of a three-member panel of the Lawyers Professional Responsibility Board that disbarred attorney, petitioner Sharon Ramirez, be conditionally reinstated to the practice of law in Minnesota. The Director of the Lawyers Professional Responsibility Board (the director) challenges the panel’s conclusion that Ramirez has proved by clear and convincing evidence that she has undergone the requisite moral change to render her fit to resume the practice of law. The director recommends that Ramirez be denied reinstatement. We have independently reviewed the record and we conclude that Ramirez is entitled to be reinstated to the practice of law, subject to conditions recommended by the panel and described more fully below.

Ramirez was admitted to the practice of law in Minnesota in October 1992. She was employed as an in-house government affairs attorney from 1992 until August 1996. From June 1994 to July 1996, Ramirez submitted “well over 14-15” improper requests for reimbursement of travel expenses to her employer. Ramirez knew these requests were false and improper, and her conduct in submitting the requests involved planning and conscious decisions on her part. In July 1996, Ramirez falsely represented to her employer that she had attended a meeting out of state. A corporate audit resulted, and on the advice of her supervisor, Ramirez resigned in the middle of an audit meeting. In November 1997, Ramirez stipulated to disbarment, which we then ordered. In re Ramirez, 577 N.W.2d 480, 481 (Minn.1997). As a result of her misconduct, Ramirez was charged in Ramsey County District Court with theft by swindle, to which she pleaded guilty. She was sentenced to 90 days incarceration and 10 years of probation, and was ordered to pay restitution to her employer. Ramirez was fully discharged from probation more than 5 years early and satisfied her restitution obligation ahead of schedule.

After her release from jail, Ramirez was employed for approximately 1-1/2 years as a program manager for the Battered Women’s Legal Advocacy Project. Since February 2001, Ramirez has been employed by the United States Bankruptcy Court in Puerto Rico (the bankruptcy court). Initially she held the position of legal analyst at the bankruptcy court, which involved legal research and case administration for bankruptcy court judges. Her position later changed to team supervisor of case administration and then to team supervisor for the core services team. One of her current responsibilities is supervising the reconciliation clerk, who each day reconciles the daily transactions of court fees with cash register receipts.

In December 2004, Ramirez petitioned for reinstatement to the practice of law, as permitted by Rule 18, Rules on Lawyers Professional Responsibility (RLPR). As required by Rule 18, the director investigated and reported to a three-member panel of the Lawyers Professional Responsibility Board. The director took no clear position on Ramirez’s petition at the panel hearing and presented no witnesses. The panel concluded that Ramirez had demonstrated evidence of both moral change since her disbarment and fitness to practice law. The director now challenges the panel’s conclusion that Ramirez has proven by clear and convincing evidence that she has undergone the requisite moral change to render her fit to resume the practice of law.

The first witness at the panel hearing was a professor who had supervised Ramirez in a civil practice clinic during law school and with whom she has remained in contact over the years. The professor testified that he had spoken with Ramirez about her misconduct both before she was disbarred and after her release from jail, and that Ramirez never discounted her personal responsibility. The professor testified that Ramirez had insight into the wrongfulness of her conduct, never denied her guilt, accepted full responsibility for her conduct, exhibited remorse, and had taken positive steps to “restore her soul and rebuild her reputation.”

Ramirez’s next witness was an attorney who had been her friend since law school and who had accompanied Ramirez to her first court, appearance and her sentencing hearing, visited her in jail, and helped her find employment upon her release. This witness testified that Ramirez took ownership of her actions, demonstrated insight into the wrongfulness of her conduct, and accepted personal responsibility. She also testified that the experience made Ramirez wiser, profoundly changed and shaped the way she acts, and made her “brutally honest” and “extremely candid.” The witness testified that Ramirez is now “more diligent” and “adheres to the letter of the law” without deviation.

The panel also heard testimony from two of Ramirez’s current coworkers and her current supervisor. Ramirez’s coworkers testified that they believe Ramirez regrets and accepts responsibility for her misconduct, and that she is responsible, intelligent, committed, motivated, honest, and a trusted coworker. They also testified that Ramirez disclosed her misconduct to them prior to petitioning for reinstatement and that her disclosure was not related to her petition.

Ramirez’s supervisor, the chief deputy clerk (chief deputy) of the bankruptcy court also testified. The two first met in late 2000 when the chief deputy interviewed Ramirez. Ramirez had applied for the position of legal analyst — which required a law degree but not a law license— by submitting a resume. During the interview, the chief deputy did not ask Ramirez if she had ever committed a crime or other misconduct. After Ramirez was hired, she was asked to fill out an employment application for her personnel file. No court employee reviewed this completed application before it was filed. Ramirez voluntarily provided a copy of her application to the director during the investigation of her petition for reinstatement.

On this application, Ramirez answered “yes” to the question: “Have you ever been convicted?” and added the note, “please contact me to discuss.” Ramirez also indicated that she was not admitted to the bar, and that her bar membership was inactive. In response to the question, “Have you ever been discharged from a position or asked to resign under threat of discharge?” Ramirez answered “no.” Ramirez testified that she “took [the question] on its face” and believes she answered it truthfully based on her perspective and the information available to her at the time she resigned. At that time, she did not fully comprehend the seriousness of the investigation, and she resigned based on the advice of her mentor, but did not believe that her resignation was under threat of discharge. Ramirez now believes that she would have been fired if she had not resigned when she did. Another application question asked Ramirez’s reason for leaving her position as a government affairs attorney, and Ramirez indicated that she was relocating to North Carolina. Ramirez testified at the panel hearing that the gap between her resignation and her move to North Carolina was actually several months, but that she would have relocated to North Carolina regardless of her misconduct because of family reasons. Ramirez now acknowledges that her application answer regarding the reason for leaving her position was misleading.

When Ramirez decided to petition for reinstatement, she informed the chief deputy of her conviction and disbarment.

The chief deputy testified that her foremost concern upon learning this information was the integrity of the bankruptcy court and its hiring process. After reviewing Ramirez’s hiring process, including her responses on the application, the chief judge and the clerk of the bankruptcy court determined that there was no legal basis to terminate Ramirez’s employment. The chief deputy testified that she believes Ramirez accepts responsibility for her misconduct, is remorseful, “is very careful of not bending any of the rules,” and that the chief deputy believes Ramirez acts this way because of ongoing feelings of guilt.

Ramirez testified on her own behalf at the panel hearing. She explained that a desire to take responsibility for her misconduct was the reason she pleaded guilty, served her sentence, paid restitution quickly, and “continued to live a life that has shown that I am not the same person who would make that kind of decision, to take the money that I took back in 1995 and '96.” She testified that she is remorseful for many different reasons, and on many different levels. She stated that she brought shame on herself, her family, her profession, and her colleagues. Ramirez testified that she petitioned for reinstatement because she wants to continue to grow in her career.

The panel concluded that Ramirez complied with Rules 24 and 26, RLPR, and proved by clear and convincing evidence that she has undergone the requisite moral change to now render her fit to resume the practice of law. The panel expressly adopted the professor’s conclusion that Ramirez “has restored her soul.” The panel also concluded that Ramirez possesses the intellectual competency to practice law. Ramirez has not yet retaken the bar examination, but she has earned 56.75 CLE credits and has applied for approval of an additional 42 hours of CLE credit.

Rule 18, RLPR, provides for reinstatement of disbarred attorneys. While reinstatement after disbarment is the rare exception to the rule, a disbarred attorney who meets the heavy burden of demonstrating her rehabilitation will be reinstated. In re Anderley, 696 N.W.2d 380, 385 (Minn.2005). “Disbarment should not be considered permanent in every case and one disbarred should not be considered irredeemable, for if disbarment were permanent in all cases, [Rule 18] would be a cruel hoax.” In re Swanson, 343 N.W.2d 662, 664 (Minn.1984).

An attorney seeking reinstatement must prove by clear and convincing evidence that she has undergone a moral change such that clients can have complete confidence in her competence and morality. Anderley, 696 N.W.2d at 384-85. The petitioning attorney is required to provide stronger proof of good character and trustworthiness than is required in the original application for admission to practice. Id. at 385. In addition to proof of moral change, we consider five factors: (1) the attorney’s recognition that her conduct was wrong; (2) the length of time since the misconduct and disbarment; (3) the seriousness of the original misconduct; (4) the attorney’s physical or mental illness or pressures that are susceptible to correction; and (5) the attorney’s intellectual competency to practice law. Id.

We independently review the entire record before determining if an attorney should be reinstated to the practice of law. Anderley, 696 N.W.2d at 385. The panel’s recommendations are considered but are not binding on us. See, e.g., In re Kadrie, 602 N.W.2d 868, 869-70 (Minn.1999) (reinstating suspended attorney over panel recommendation); In re Williams, 433 N.W.2d 104, 104 (Minn.1988) (reinstating suspended attorney over panel recommendation); In re Wegner, 417 N.W.2d 97, 97 (Minn.1987) (reinstating disbarred attorney over panel recommendation).

In this case, we conclude that the factors we consider weigh heavily in Ramirez’s favor. The panel found that both Ramirez’s recognition of her wrongdoing and her expression of remorse were sincere and credible. More than 8 years have passed since Ramirez was disbarred. Ramirez is not affected by physical or mental illness or pressures that require correction. It is undisputed that Ramirez has the intellectual competency to practice law.

Ramirez does not challenge the panel’s finding that her misappropriation of $30,000 from her employer was “very serious” misconduct. But as we have previously noted, the seriousness of misconduct “only rarely precludes further consideration of the attorney’s petition for reinstatement.” Anderley, 696 N.W.2d at 385 n. 6. In Anderley, we reinstated the petitioning attorney notwithstanding his serious misconduct in devising a fraudulent claim against his insurance company client, forging and altering documents to validate, support, and settle that claim, obtaining approval from the insurance company for settlement in the amount of $48,500, misappropriating that settlement money, forging settlement documents, and billing his client for his work on the false claim and settlement. Id. at 381; In re Anderley, 481 N.W.2d 366, 367-68 (Minn.1992). In In re Trygstad, we reinstated a disbarred attorney who had engaged in a conspiracy to distribute cocaine with a former client. 472 N.W.2d 137, 138 (Minn.1991). In In re Wegner, we reinstated a disbarred attorney who had participated in a conspiracy to smuggle marijuana into the United States and who had recruited others — including clients — to participate in the conspiracy. 417 N.W.2d 97, 98 (Minn.1987). We reiterate the facts of these previous cases not to marginalize the seriousness of the misconduct in each case, but to emphasize that the seriousness of the misconduct alone does not preclude consideration of a disbarred attorney’s petition for reinstatement.

Having considered the panel’s findings and conclusions and having independently reviewed the record, we now conclude that Ramirez has proven by clear and convincing evidence that she has undergone a moral change such that clients can have complete confidence in her competence and morality. Ramirez took responsibility for her misconduct in the disciplinary action, the criminal process, and with the people who were and have since become important in her life. Ramirez has gained the trust of those with whom she works, and that trust has not been shaken by revelation of her wrongdoing. Without exception, the witnesses at the panel hearing testified that they believe Ramirez is an honest and trustworthy person who is deserving of the responsibility and trust that being reinstated would place upon her. We are especially persuaded by the fact that our sister court, the United States Bankruptcy Court in Puerto Rico, has concluded that Ramirez is worthy of a position of trust that includes access to and responsibility for court fees.

We conclude, as did the panel, that Ramirez has met the heavy burden of demonstrating her rehabilitation and of proving that she is fit to practice law, subject to certain restrictions. We therefore conclude that Ramirez will be entitled to reinstatement upon meeting the following conditions: that she (1) successfully complete the Minnesota bar examination, including the professional responsibility portion; (2) comply with CLE requirements; and (3) be placed on indefinite probation, requiring that she report her employment status to the director on at least a quarterly basis and promptly upon a change of status; abide by the rules of professional conduct; cooperate with monitoring the conditions of her reinstatement and her practice; not engage in any employment using her Minnesota license in which she will have an expense account or access to monies until a system of supervision has been established or determined by the director to be unnecessary; and not engage in the private practice of law under her Minnesota license until a probation supervisor has been appointed or the director has determined that unsupervised probation is appropriate.

So ordered.

GILDEA, J.

(dissent).

I respectfully dissent. I do not agree that Sharon Ramirez has proven by clear and convincing evidence that she has undergone a moral change such that clients can have complete confidence in her professional morality. I would deny reinstatement of Ramirez at this time.

The majority discusses the multi-prong analysis we follow in reviewing petitions for reinstatement. For me, this case begins and ends with analysis of moral change. We have said that evidence of moral change “is the ‘decisive’ factor in considering a petition for reinstatement.” In re Reutter, 474 N.W.2d 343, 345 (Minn.1991). Applicants for reinstatement “must establish by clear and convincing evidence that” they have “ ‘undergone such a moral change’ ” that they are now fit “ ‘to enjoy the public confidence and trust once forfeited.’” In re Hanson, 454 N.W.2d 924, 925 (Minn.1990) (quoting In re Smith, 220 Minn. 197, 201, 19 N.W.2d 324, 326 (1945)). We require this “high standard of proof’ so we can “be assured that reinstatement would serve the public interest.” Hanson, 454 N.W.2d at 925. Finally, the evidence of moral change must be persuasive enough so “clients can have complete confidence in [their attorney’s] competence and morality.” In re Anderley, 696 N.W.2d 380, 385 (Minn.2005). In my view, Ramirez has not made the requisite high showing.

Ramirez was disbarred because, while working in the position of a government affairs attorney for the St. Paul Companies, she stole approximately $30,000 from her employer by repeatedly submitting false expense reports over a period exceeding 1 year. Subsequent to her disbarment, Ramirez was convicted of felony theft by swindle for her misconduct. She served time in jail and was placed on probation. A little more than 2 years after she was discharged from probation, Ramirez applied for reinstatement.

The majority emphasizes Ramirez’s continued employment by the Federal District Bankruptcy Court in Puerto Rico as evidence of her moral change. Although I agree that what happened with the bankruptcy court provides compelling evidence on the question here, I reach the opposite conclusion from the majority. In my view, the way in which Ramirez secured her job with the bankruptcy court confirms that she has not shown sufficient moral change to warrant reinstatement.

In applying for the position with the bankruptcy court, Ramirez filled out an application form that asked her the reason for leaving the St. Paul Companies. She wrote: “relocated to North Carolina.” Although Ramirez testified that she had been planning to move to North Carolina at the time of her resignation, she testified that she would not have left the St. Paul Companies when she did if she had not been under investigation for stealing from her employer. She agrees that the bankruptcy court might have been misled by her answer to this question and also stated that “I think they would think that I left the company because I was going to another state.” She also testified that what she wrote was “not the complete truth, but it’s not a lie.”

Not only did Ramirez fail to tell the bankruptcy court “the complete truth” in February 2001, but she also did not tell her supervisor about her felony conviction and disbarment for more than 3 years. Ramirez finally told her supervisor not because her conscience compelled her to do the right thing (i.e. because of moral change), but because she had decided to petition for reinstatement and “wanted to ask her [supervisor] to be a witness on [her] behalf.” Such self-interested behavior does not support a finding of moral change.

We have said that “candor and integrity [are] required of a member of the bar.” In re Cunningham, 502 N.W.2d 53, 57 (Minn.1993). In fact, it was Ramirez’s lack of integrity in filling out expense reports that was the basis for her original disbarment. Ramirez’s continued lack of candor in both the job application for her current job and her decision to keep her true status from her supervisor leaves me unconvinced that she is fit “to enjoy the public confidence and trust once forfeited.” In re Hanson, 454 N.W.2d at 925 (quoting In re Smith, 220 Minn, at 201, 19 N.W.2d at 326) (internal quotation marks omitted).

“The practice of law is a privilege, not a right.” In re Swanson, 405 N.W.2d 892, 893 (Minn.1987). We have previously noted that misconduct similar to the type that led to Ramirez’s disbarment is “among the most serious acts of misconduct a lawyer can commit.” Id. Misappropriation of client funds “strike[s] at the heart of the relationship of trust that must exist between attorney and client.” Id. We have historically been very cautious in returning the privilege of practicing law to someone who has forfeited the public trust. I would exercise that same caution here and deny reinstatement at this time.

      . In Minnesota, a disbarred attorney is permitted to apply for reinstatement to the practice of law by petition to this court. Rule 18, RLPR. The director conducts an investigation and reports conclusions to a panel of the Lawyers Professional Responsibility Board. Id. at (a)-(b). The panel may conduct a hearing, as was done here, and the panel then files its recommendations with this court. Id. at (c). Unless specifically waived by this court, a disbarred attorney must successfully complete the Minnesota Bar Examination and the Multistate Professional Responsibility Examination, complete CLE requirements, and satisfy all claims made against him by the Client Security Board. Id. at (e)(1), (4).

      . We note that the dissent asserts that Ramirez made a “decision to keep her true status from her supervisor” and that she "finally told the truth” only when she decided to petition for reinstatement. This assertion disregards Ramirez's truthful responses to questions about her conviction and inactive bar status in her job application.

      . We reiterate in response to the dissent’s concern about the timing of Ramirez’s disclosures to her supervisor that Ramirez had disclosed her conviction and inactive bar status on her job application. We also note that Ramirez had informed bankruptcy court coworkers of her conviction and disbarment under circumstances that were completely unrelated to her petition for reinstatement.

      . Since 1985, we have disbarred 57 attorneys. During tire same time period, we reinstated only four disbarred attorneys to the practice of law. In re Anderley, 696 N.W.2d at 381; In re Trygstad, 472 N.W.2d 137, 138 (Minn.1991); In re Reutter, 474 N.W.2d 343, 344 (Minn.1991); In re Wegner, 417 N.W.2d 97, 97 (Minn.1987).

      . We note that the absence of physical or mental illness or pressures as an underlying cause of the misconduct appears to concern the director. It appears that the director’s concern about Ramirez's reinstatement is based not on any specific misstep Ramirez has taken since disbarment, but on a lack of affirmative evidence of moral change during that time. We acknowledge that an assessment of moral change can be more challenging when the misconduct leading to disbarment was not attributable to a problem that can be addressed through a formalized program or therapeutic process. But the absence of such an underlying problem does not preclude a finding of moral change.

      . We note that some of Ramirez’s answers on the employment application she submitted to the bankruptcy court over 5 years ago do raise concerns. Ramirez acknowledged her criminal conviction, affirmatively offered to provide more information upon request, and stated that she was not admitted to the bar and that her bar membership was inactive. Despite these admissions, Ramirez did provide a somewhat misleading response regarding her reason for leaving her former position, and her response to whether she had ever resigned "under threat of discharge” is open to interpretation. The bankruptcy court’s conclusion that Ramirez's application responses provided no basis to terminate her employment leads us to believe that the bankruptcy court is satisfied that Ramirez's application as a whole was not deceptive. We accord considerable deference to this conclusion by our sister court. See Trygstad, 472 N.W.2d at 140 (noting that we gave considerable deference to the South Dakota Supreme Court’s denial of petitioner's reinstatement petition, but nevertheless granting reinstatement to the practice of law in Minnesota).
      Furthermore, we have previously reinstated attorneys whose conduct since disbarment was not without blemish and/or who continued to struggle with undesirable character traits. See, e.g., Anderley, 696 N.W.2d at 383 (reinstating disbarred attorney who "does not show any symptoms of major psychopathology or psychopathy” but who would nonetheless "benefit from continued psychological counseling”); Trygstad, 472 N.W.2d at 139 (concluding that petitioner's unauthorized practice of law since his disbarment did not preclude reinstatement).

      . The majority notes that it has been over 8 years since Ramirez was disbarred. In my view, the relevant temporal issue is the time that has lapsed since Ramirez was discharged from probation. See In re Swanson, 343 N.W.2d 662, 665 (Minn.1984) (noting that "the time passed since the expiration of probation is too limited to merit reinstatement”).

      . While the majority is "especially persuaded” by what it characterizes as the bankruptcy court’s decision to place Ramirez in a position of trust, I am not similarly persuaded. After learning the truth from Ramirez, Chief Deputy Clerk of the bankruptcy court, Wilma Jaime, testified that she was concerned about the integrity of the court's hiring process because the information about Ramirez’s criminal conviction and disbarment should have been known at the time of hiring. Ultimately, the bankruptcy court decided that the failure to know about Ramirez's past misconduct "was an administrative error” and the court "determined that there was no legal basis to terminate her employment” based on the representations made by Ramirez in her application. In my view, the bankruptcy court's legal decision regarding employment is inapposite to the issue of whether Ramirez has demonstrated moral change by clear and convincing evidence.


author: MORRIS, Judge.

text:
    Julius BENDER, Petitioner and Respondent, v. Emil BENDER, Mathilda Olson, Ella Bender, Helmina Berger, Edwin Bender, Amelia Bender, and Harold Bender, Respondents, and Annette Blumhagen and Albert Bender, Respondents and Appellants.
    No. 7534.
    Supreme Court of North Dakota.
    Sept. 23, 1955.

      Fred E. Saefke, Jr., Bismarck, for appellants. ' “
    John E. Williams, Washburn, for respondents.
   MORRIS, Judge.

This action involves the contest of the-will of Caroline Bender, deceased. The will was admitted to probate in the County Court of McLean County on December 16, 1953. The contestants, Albert Bender and. Annette Blumhagen, appealed to the district court o.f that, county where the matter was tried before a jury who returned a verdict in favor of the contestants, finding that the purported will was not the legal will of Caroline Bender.

At the close'of the testimony" the proponent of the will moved for a directed verdict. The granting of that motion was resisted and the motion was denied pursuant to the provisions .of Section 28-1509, NDRC 1953 Supp. After rendition of the verdict the proponent moved for, judgment notwithstanding the verdict or. in the alternative for a new trial. The motion for judgment notwithstanding the verdict was granted and judgment entered setting aside the verdict of the jury and dismissing the appeal of the contestants from the order of the county court admitting the will to probate. From this judgment the contestants now appeal to this court.

For many years John Bender, with his wife, Caroline Bender, owned, operated, and resided upon a farm consisting of 480 acres of land in McLean County. John Bender died intestate on August 13, 1951, and left surviving him a widow and ten adult children. In addition to the farm John Bender’s estate consisted of some personal property including. . cash, the amount of which the record does not show. Under our laws of descent and distribution the widow inherited, bne-third of the estate and each of the ten children inherited one-fifteenth. The oldest son, Julius Bender, also a farmer in 'McLean County, was named administrator. Before the estate was closed it was proposed, the record does not show by whom, that the children should assign their interests in the estate to their mother. Eight of the ten children agreed to»and di.d so .assign .their interests. Two of the children, Albert Bender, the youngest son, and Annette Blumhagen, a daughter who was married and lived in a distant state, refused to execute assignments. On settlement of the estate they received their shares of the personal property and.wer# each decreed to be the owner of an undivided one-fifteenth interest in the farm.,,... ,

During the course of probate' Albert Bender filed a claim against his father’s estate for wages in the sum of $4,200. This claim was not looked upon with favor by the administrator and some of the heirs and was finally compromised by the payment to Albert of $2,100. All of the éstate except the-' shares' of Albert and Añnetté was turned over to the widow, Caroline Bender. Caroline Bender later moved to Bismarck, North Dakota, where she purchased a house in which she resided with her unmarried daughter, Amelia, at the time of her death 'on: September 19, 1953.

During the forenoon of July 23, 1952, Caroline Bender, accompanied by her son, Julius, appeared at the office of John E. Williams, an attorney at law in Washburn and told him that she wanted to make a will. She gave him the details as to how the will was to be drawn. He made notations of what the will was to contain ¿nd she and Julius left. Mr. Williams drew up a will- On the afternoon of the same day she returned to the office alone and the attorney read to her the will that he had prepared. The fourth paragraph of this instrument provided:

“It is. my wish that my daughter, Annette Blumhagen, and my son, Albert Bender, receiye no share of my estate, for the reason that they have received their interest in their father’s estate.”

• She told the' attorney that she had changed her mind about one portion of the will and stated the change.that she wished to make. This change pertained to a- bequest to Amelia, the daughter with whom she lived. It had no reference to the fourth paragraph which disinherited the contestants. The attorney then prepared a new will, the fourth paragraph of which was identical with the fourth paragraph of.the draft that the-attorney had prepared that morning. The eight children, excluding the .contestants, were made residuary legatees in equal , shares. The attorney read to her the new draft in its entirety, which she then executed in the presence of the attorney and his- stenographer who signed as witnesses.

The contestants challenge the validity of the will on two grounds. They contend that at the time it was executed the testatrix wa^ incompetent to make a will and was not of sound and disposing mind and memory and that at the time of the. execution of the will she was “under undue influence by or on behalf of persons. who intended to profit thereby or who intended to deprive the respondents, as lawful heirs of,the decedent,, of their: lawful rights; * * * » ' ' " " ' _ '

There is no evidence in this record-that at the time the testatrix appeared at the attorney’s office to- make her will she lacked capacity to make a testamentary disposition of her property. ■

“Where a will is contested on the ground that the testator 'did' not-have testamentary capacity, the inquiry and proof as to such capacity should be directed to the time when the will was executed. The critical inquiry in determining testator’s mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his .previous or subsequent conduct is admissible only so far as it may throw light on his mental condition at the precise moment that the will was signed.” Stormon v. Weiss, N.D., 65 N.W.2d 475, 508.

The contestants strongly press the charge that the will, at least insofar as it disinherited them, was the result- of undue influence. Time is also a. factor in determining whether undue influence will destroy the validity of an otherwise valid will. While undue influence need not- be exerted at the time .of. the execution of the will, yet in order tp affect validity it must be operative at the rime, of execution. Drury v. King, 182 Md. 64, 32 A.2d 371; Page on Wills, Lifetime Edition, Section 191.

“We have often stated that to be undue, influence must operate at the time the will is made and must dominate and control the making of the will; that it must be such-as to make the will express the purpose apd. intent of the person exercising the influence and not the purpose and intent .of the testator; that undue influence is not .established by, proof of opportunity to exercise and disposition to do so or by proof of persuasion and request.” In re Eiker’s Estate, 233 Iowa 315, 6 N.W.2d 318, 320.

The contestant, Albert Render, testifies that in October 1,951, .which was some nine months before the will was made, he had a conversation with Julius Bender, administrator of his father’s estate, regarding the claim that Albert had filed against the'.estate and Julius said: “if you don’t stop that claim. I will have mother make out a will and disinherit ,you.” and that another .brother, Edwin, .who was present sajid:. “That is what we. are going to do.” These statements express .an intention on the part of.-Julius and Edwin to (attempt to persuade the testatrix to disinherit Albert. There is no evidence, that this intention was communicated to the testatrix, but if we assume that it was we regard evidence of these statements as having little probative value when we consider the time, place, and circumstances surrounding the execution, of. the will and the reasonableness pf its -provisions when viewed in the light of the conditions - that prevailed at the tipie of the execution of the-will with respect to the distribution that had been made- of the father’s estate.

Contestants of a will challenging jits yalidity on the ground of - undue- influence have the burden of sustaining their challenge. It is true, as the contestants point out, that where a verdict for the contestants is challenged on the ground of insufficiency of the evidence the court is required to consider the evidence in the light most favorable to the contestants. Stormon v. Weiss, supra; Nicholson v. Roop, N.D., 62 N.W.2d 473. But that does not mean that in order to sustain the verdict .we may resort to mere suspicion or conjecture. In re O’Donnell’s Estate, 158 Neb., 583, 64 N.W.2d 116.

We find no evidence in the record that the testatrix, who was 71 years of age at the time she executed her will, was of weak or vacillating mentality or that she in any way was more' subject' than the normal person to' influence ór persuasión. Neither was there'any unusual opportunity on the part of the proponent of the will to exercise undue influence upon her. She owned her own hpme in Bismarck where shé lived'with her daughter, Amelia. She provided in her will tliat Amelia was to have free use of this home for' one year after her 'death. Amelia wás also, bequeathed '$1,000 and personal property. But there is no evidence that Amelia in any way influenced the testatrix in making a testamentary disposition of her property. Evidence which merely shows-that a party benefited by a will had both motivé'and opportunity to assort influence' over the testator'is not sufficient to invalidate a will where there is no evidence that such iii-fluence was actually asserted. Armstrong v. Armstrong, 65 S.D. 233, 272 N.W. 799.

‘ The contestants point to the fact that Julius Bender who was named executor in the will accompanied the testatrix to the lawyer’s office' on the-forenoon of the day the will was made and it is argued that' he influenced her over the noon hour to change the-bequest to'Amelia. According to the undisputed testimony of Jhlius, after he and his mother l'eft the lawyer’s office his mother -did not fully 'understand the beqeust to Amelia that was provided for in" thé first draft which gave to her $5,000 of the money to be received from the sale of the house in Bismarck. The balance was- to be divided equally among the seven children, excluding Amelia and the contestants. His mother expressed the thought that the $5,000 bequest to Amelia was too much. That was- all that' was said. After lunch Julius "went home and the testatrix went back to the attorney’s office. There she directed a change in the bequést so that Amelia would receive $1,000 from the sale of the house and the 'balance of -the money from that sale was to be divided equally among her eight children, including Amelia and excluding the contestants. It is clear that in both drafts of the will the testatrix ‘intended to exclude 'the contestants' from any participation in the estate' and'that th'e change in the bequest to Amelia was her idea and not that of Julius.

There is á suggestion that the will itself appears to be the result of undue influence because it is unnatural and unjust in. -the exclusion of two of her children f-rom,.participation in her estate. In both drafts of the will her reason for that ex-, elusion is clearly expressed. The property, that constituted her estate had passed to her, from her- husband’s estate by the laws of -descent and distribution and by assignment to 'her by eight of her ten children of their interest in his estate. As for the two: contestants, she clearly expressed the wish that they receive no share of-her. estate for the reason that they had received their share of their father’s estate, while the other .eight children had turned their shares over- to her. That reason is one that, she might well have entertained under the circumstances and does not indicate an unnatural or unjust disposition of her estate.

The contestants complain that the trial court erred in excluding some additional testimony by Annette • Blumhagen and another' witness. While these alleged errors are not properly before us for review on this record,- we have noted them in reading the transcript and without determining whether the court erred or not it is apparent- that if the proffered evidence had been admitted the verdict would have still been without sufficient-evidence- to sustain it. See Ouren v. Friswold, 55 N.D. 664, 215 N.W. 160. The trial court’ was correct in determining that as a matter of" law the will was valid and that the proponent was entitled to judgment notwithstanding the verdict. The judgment appealed from is affirmed,

BURKE, C. J., and SATHRE, JOHNSON and GRIMSON, JJ., concur.


author: BURKE, Chief Justice.

text:
    William SCHULE, Plaintiff and Respondent, v. Otto REULE, State Bank of Ross, North Dakota, a Corporation, et al., Defendants, J. A. Graham, State Examiner, Defendant and Appellant.
    No. 7451.
    Supreme Court of North Dakota.
    Sept. 23, 1955.
    Q. R. Schulte, Stanley, for plaintiff, and respondent.

      Paul Benson, Atty. Gen., John E. Adams, Asst. Atty. Gen., for defendant and appellant.
   BURKE, Chief Justice.

This appeal is from a judgment entered-in an action to quiet title to certain land located in Mountrail County. The judgment was in favor of the plaintiff. The defendant J. A. Graham, State Examiner, has appealed from the judgment and demanded a trial de novo in this court.

Prior to 1930 the land, with which we are concerned, was owned by the State Bank of Ross. This hank became insolvent and L. R. Baird was appointed its receiver on June 25, 1930. No taxes were paid upon said lands by the receiver and the land was sold to Mountrail County for delinquent taxes for the year 1930 and subsequent years. Notice of the expiration of the period of redemption from tax sale was issued on May 13, 1942 and served upon the receiver by registered mail. No redemption was made and a tax deed of the land was issued to Mountrail County on October 1, 1942. The receiver was finally discharged November 4, 1943.

On February 15, 1951,- the County of Mountrail received an offer to purchase said land from Arthur Domaskin. The county auditor thereupon issued a notice, directed to the State Bank of Ross, the former title holder of record, that -the sale to Domaskin would become final within thirty days from the date of the mailing of the notice unless the bank repurchased the land within that time. The notice was sent to the bank by registered mail. The envelope containing the notice was never delivered and it was returned to the county auditor unopened. On March 27, 1951, Mountrail County conveyed the land to Domaskin. On September 5, 1951, Domas-kin and his wife conveyed the land to the plaintiff, William Schule.

The defendant, State Examiner, has attacked the sale of the land by the county to Domaskin upon several grounds. The first question to be decided, however, is whether the State Examiner has a sufficient interest in the subject matter of this action to give him standing to contest the sale.

Section 6-0738, NDRC 1943 provides in part:

“ * * * When the receivership of a closed bank is terminated, all * * * property of such bank, * * * shall be delivered over by such receiver to the state examiner * * *. The state examiner * * * shall be vested with title to "any assets belonging to such bank and not distributed in such receivership, * *

We think it clear that, by the provisions of the above statute, the State Examiner, on November 4, 1943, when the receivership of the Ross State Bank was terminated, became the successor in interest to the receiver with respect to title to the undistributed assets of the bank and all rights and privileges in connection therewith which would legally devolve upon a successor in interest.

The proceedings by which the county ac-. quired tax title to the land in question are not challenged. It is apparently conceded that these proceedings were in all respects regular and that the county’s title to the land was valid. By statute however there was reserved in the former owner a right of repurchase which continued as long as the county held title to the land. The statute in effect, at the time the state examiner acquired title to the assets of the bank as successor in interest to the receiver, was Chapter 121, Laws of N.D.1943. . Section 2 of this act provided:

“The former owner his executor or administrator or any member of his immediate family shall have the right to repurchase all real estate * * * forfeited to the county under tax deed proceedings, so long as- the tax title thereto remains in the county. * * * ”

The right of repurchase granted by this and prior statutes does not prevent complete title from, vesting in a county by virtue of a valid tax deed. The right of repurchase is not an interest in real property but merely a privilege which the legislature may grant upon such terms as it deems advisable. Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837; Bloomdale v. Sargent County, 74 N.D. 651, 24 N.W.2d 38; Ulrich v. Amerada Petroleum Corp., N.D., 66 N.W.2d 397.

It is clear therefore that the State Examiner acquired no interest in the .real property, title to which is in issue, at the time he succeeded to the interest of the receiver. Could he, as successor in interest to the receiver acquire a right of repurchase? We are agreed that he could not. Chapter 121, Laws of N.D.1943, specifically restricts this right to the former owner, his executor or administrator or any member of his immediate family.. Whether a corporate owner could qualify as a “former owner” under this statute we do not decide for, in any event, it is clear that a successor in interest to a former ownér cannot so qualify. The intent of the législature to limit the grant of the fight of repurchase to the persons named and to fnake thi-s privilege unassignable' is' made évident by comparing the 1943 statute with those of 1939 and 1941.

Section 1 of Chapter 238, Laws of N.D. 1939 provided:

“Any real estate heretofore or hereafter forfeited to the county under tax deed proceedings, shall be subject to redemption by the owner whose title was , forfeited, or: his successor in interest, at any time while the tax title thereto remains in - .such county ■* * *»

Section 19, Chapter 286, Laws of N.D. 1941 provided:

“The owner, or his successor in interest, shall have the right to repurchase' all real estate heretofore or hereafter, forfeited to the county under tax deed proceedings, so long as the tax title thereto remains in the county.”

Each of these statutes confers the-privilege of repurchase, not only upon the former owner, but also on his successor in interest. When the words “successor in interest” were deleted from the 1943 statute the deletion must have been intentional. It must therefore have been the legislative intent that successors in interest to a former owner should not have a right of repurchase under the 1943 statute.

Upon the record in this case plaintiff had a prima facie title to the land and since the State Examiner, when he succeeded to the interests of the receiver in the assets of the State Bank of Ross, acquired neither any title to, nor any rights or privileges with respect to, that land, he has no interest therein sufficient to enable him to challenge plaintiff’s title. State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767.

The judgment of the district court is therefore affirmed. ' '

GRIMSON, JOHNSON, SATHRE and MORRIS, JJ., concur.,