author: RUSSELL A. ANDERSON, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Jeffrey Warren BAIRD, Respondent.
    No. C1-01-894.
    Supreme Court of Minnesota.
    Dec. 5, 2002.

      Mike Hatch, Minnesota Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Charles C. Glasrud, Stevens County Attorney, Morris, for Appellant.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, for Respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

We are asked in this case if our holding in State v. Glowacki, 630 N.W.2d 392, 402 (Minn.2001)-that when acting in self-defense there is no duty to retreat from one’s own home even if the aggressor is a co-resident — is to be given retroactive application. We hold that the Glowacki rule applies retroactively. Further, we hold that the district court’s erroneous instruction that respondent had a duty to retreat constitutes plain error and requires a new trial.

Respondent Jeffrey Warren Baird was charged with disorderly conduct, fifth-degree assault, and third-degree assault, in violation of Minn.Stat. § 609.72, subd. 1 (1998), § 609.224, subd. 1 (1998), and § 609.228, subd. 1 (1998), respectively, in connection with an altercation with a co-resident at Baird’s home. Baird asserted at trial that he was acting in self-defense, and the district court instructed the jury that Baird had a duty to retreat. Baird was found guilty on all charges. Baird appealed the third-degree assault conviction, contending that the district court committed plain error by instructing the jury that he had a duty to retreat when the assault occurred inside his home. The court of appeals reversed the conviction, concluding that the district court had erred by instructing the jury that Baird had a duty to retreat, and remanded to the district court for a new trial. We affirm the court of appeals.

Baird and James Nelson resided together in Baird’s motor home at a campground. At about 1:30 a.m. on June 16, 2000, Nelson, Baird, and Jolene Bedel, Baird’s ex-wife, returned to the campground from a local bar. All three had been drinking. Nelson’s girlfriend Alicia Bergs was at the motor home at that time. Bedel wanted to leave the campground in her vehicle, but Baird thought she was too drunk to drive and confronted her, taking away her keys. Nelson offered to let Bedel use his vehicle, but Baird blocked the door to Nelson’s vehicle. Those who testified dispute what happened next.

Nelson testified that he tried to push Baird away from the vehicle’s door but did not threaten or punch Baird. Baird became hostile and egged Nelson on, saying “let’s go” and “come on” before tackling Nelson and pinning him face-down to the ground. Nelson did not strike back. Bergs added that when she tried to break up the fight, Baird stood up and elbowed her in the chin. Nelson told Baird to leave Bergs alone, and Baird resumed attacking Nelson, telling him to get his things from inside the motor home and leave. Finally Baird and Nelson stood up. Nelson and Bergs went inside the motor, home to collect Nelson’s belongings. Baird followed them. He attacked Nelson again, this time pinning Nelson face down on the bed and punching him. Nelson admitted that he may have had a screwdriver in his hand while inside the motor home and that someone had taken it away from him. Bergs' testimony was consistent with Nelson’s.

Baird testified that Nelson tried to push him away from the vehicle door. Eventually, Baird swung at Nelson, who fell to the ground. Baird admitted that he continued to punch Nelson in the back and that he went “a little overboard” in attacking Nelson. After Nelson and Bergs went into the motor home, Baird heard a loud “kaboom.” He went inside to investigate. Inside he saw his television set “all over the floor” and Nelson approaching him with a screwdriver in his hand. Afraid that Nelson was going to stab him with the screwdriver, Baird hit Nelson in the face and wrenched his arm so that someone could take the screwdriver away from him. Baird admitted that he was nearest the motor home door and could have left at any time.

After the altercation, Nelson reported the incident to police. Baird was charged with disorderly conduct, fifth-degree assault, and third-degree assault. He claimed self-defense. The district court instructed the jury that the excuse of self-defense imposes a duty to retreat or avoid the danger if reasonably possible:

The legal excuse of self defense [sic] is only available to those who act honestly and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible.

Baird did not object to the instruction at trial. The jury found Baird guilty on all counts.

Baird appealed from the judgment of conviction of third-degree assault. State v. Baird, 640 N.W.2d 363, 364 (Minn.App.2002). He argued that the district court committed plain error by instructing the jury that he had a duty to retreat when the assault took place inside his own home. Id. at 366. Because Baird did not make an objection at trial or make a motion for a new trial based on the instruction, the court of appeals applied the plain error test. Id. Under the first prong of the plain error test, the court of appeals considered whether the duty-to-retreat instruction was error. Id. at 367. The court noted that State v. Hennum, 441 N.W.2d 793, 800 n. 5 (Minn.1989), and State v. Morrison, 351 N.W.2d 359, 362 (Minn.1984), seemed to approve of jury instructions that imposed a duty to retreat within one’s home when the aggressor is a co-resident. Baird, 640 N.W.2d at 367. Looking to State v. Carothers, 594 N.W.2d 897, 902-04 (Minn.1999), and our decision in Glowacki, however, the court of appeals concluded that the duty-to-retreat instructions had been summarily upheld in Hennum and Morrison and that self-defense in the home should not include a duty to retreat. Baird, 640 N.W.2d at 367.

The court of appeals acknowledged the general rule under Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn.1982), that absent special circumstances or specific pronouncements of prospectivity, a decision is given retroactive effect. Baird, 640 N.W.2d at 367. Recognizing that this court did not specifically indicate that Glowacki should apply only prospectively, the court of appeals continued its analysis under the special circumstances test. Baird, 640 N.W.2d at 367-68. The court determined that Glowacki failed under the first factor of the special circumstances test because the Glowacki decision did not establish a new principle of law by overruling clear past precedent. Baird, 640 N.W.2d at 368. Because special circumstances did not exist, the court of appeals held that Glowacki would be given retroactive effect. Baird, 640 N.W.2d at 368.

The court of appeals then returned to the plain error test. Id. at 368. The court determined that the district court erred and that the error was plain because, under Glowacki, the district court should not have instructed the jury that Baird had a duty to retreat. Baird, 640 N.W.2d at 368. The court then examined the third prong of the plain error test — whether “ ‘the error was prejudicial and affected the outcome of the case’ ” —and decided that-the error was prejudicial. Id. at 369 (quoting State v. Griller, 583 N.W.2d 736, 741 (Minn.1998)). The court concluded that all three prongs of the plain error test were satisfied and that the error was not harmless, warranting reversal and remand for a new trial. Id. at 369-70.

I.

Whether a decision applies retroactively or nonretroactively is a legal question we review de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002). Generally, our rulings are given retroactive effect. Baker v. State, 590 N.W.2d 636, 640 (Minn.1999). We have followed the lead of the United States Supreme Court, however, in making certain limited exceptions to the general rule. Thus, in State v. Hamm, we adopted a test developed by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), for determining whether a new constitutional rule of criminal procedure should be applied prospectively. State v. Hamm, 423 N.W.2d 379, 386 (Minn.1988) (holding that the Minnesota Constitution guarantees a criminal defendant’s right to a 12-person jury in misdemeanor prosecutions and, adopting the Supreme Court’s clear break exception, applying rule prospectively), superseded on other grounds by Minn. Const. art. I, § 4; see Griffith v. Kentucky, 479 U.S. 314, 320, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (discussing Linkletter); see also State v. Olsen, 258 N.W.2d 898, 906-07 (Minn.1977) (adopting procedural rule in dual-representation situation for defendants to be advised of their right to counsel and, citing Linkletter, 381 U.S. at 629, 85 S.Ct. 1731 and Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), holding new rule is prospective). Similarly, in Hoff v. Kempton, we adopted the special circumstances test for dealing with the retroactivity question as announced by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Hoff, 317 N.W.2d at 363-65 (applying Chevron Oil and holding that the rule of Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980), that the attachment-of-insurance-policy method of establishing quasi-in-rem jurisdiction denies an out-of-state defendant’s due process rights, applies retroactively).

In this case, the parties have assumed the applicability of the Chevron Oil special circumstances test and have asked us to give Glowacki retroactive or nonret-roactive effect on the basis of whether a special circumstances exception exists. The special circumstances test requires that three factors be satisfied for a decision to apply nonretroactively:

First, the decision to. be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ⅜ * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed ⅜ ⅜ *. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ⅞ ⅜ * pjnany; we have weighed the inequity imposed by retroactive application, for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. 349 (citations omitted), quoted in Hoff, 317 N.W.2d at 363. We have had occasion to apply the special circumstances test in the past but “have made purely prospective rulings in only very limited situations.” Turner v. IDS Fin. Servs., Inc., 471 N.W.2d 105, 108-09 (Minn.1991) (citing Olsen, 258 N.W.2d at 907 n. 15, and Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597, 603 (1975)).

We find the special circumstances test, which was formulated to deal with questions of retroactivity for civil cases, ill-suited to the present criminal case. See Griffith, 479 U.S. at 322 n. 8, 107 S.Ct. 708 (differentiating retroactivity analysis for newly declared rules of constitutional criminal procedure from retroac-tivity analysis for civil cases). The rationale behind the special circumstances test is that, in some cases, the disruptive effect retroactivity has on parties arid their individual situations outweighs the countervailing interest in treating all similarly situated parties alike. See American Trucking Associations v. Smith, 496 U.S. 167, 181-86, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990). This case does not present that concern. Here we are asked whether Glowacki, which was on appeal to our court at the time of Baird’s trial and which imposed no duty on Baird’s part to retreat from his home before using self-defense against a co-resident, applies to Baird. We' conclude that it does. To hold otherwise would be to treat similarly situated criminal defendants differently. See Griffith, 479 U.S. at 327, 107 S.Ct. 708 (quoting Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (Powell, J., concurring in judgment), quoting Desist v. United States, 394 U.S. 244, 255, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Douglas, J., dissenting)) (internal quotation marks omitted) (“[I]t hardly comports with the ideal of administration of justice with an even hand, when one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle — enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.”); United States v. Johnson, 457 U.S. 537, 547-48, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (quoting Desist, 394 U.S. at 258-59, 89 S.Ct. 1030 (Harlan, J., dissenting)) (“ ‘[Wjhen another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a “new” rule of constitutional law.’”); see also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 538-43, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (addressing the retroactive application of Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), holding that Bacchus applies retroactively in an opinion joined by only Justices Souter and Stevens, and suggesting that Chevron Oil should be overruled); Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 90, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (rejecting civil retro-activity and holding “[i]n accord with Griffith v. Kentucky * * * and James B. Beam Distilling Co. v. Georgia * * * that this Court’s application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision”). It seems patently unfair to us to apply different rules to Glowacki and Baird — two similarly situated defendants — simply because Glowacki’s appeal reached us first. We therefore decline to apply the special circumstances test to the instant case. Furthermore, finding no rationale to except Glowacki from our general rule of retroactivity, we hold that Glowacki applies retroactively.

II.

Generally speaking, an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). In the absence of an objection, the appellate court may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001); State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983); see also Minn. R.Crim. P. 26.03, subd. 18(3), 31.02. Under this test, the challenging party must show: 1) error, 2) that is plain, and 3) that affects substantial rights. Griller, 583 N.W.2d at 740. If all three prongs are satisfied, the court determines whether the error must be addressed to ensure the fairness and integrity of the judicial proceedings. Id.

We apply the plain error test because Baird neither objected to the instruction at trial nor made a motion for a new trial based on the instruction. Baird, 640 N.W.2d at 366. We begin by addressing whether the district court erred in giving the duty-to-retreat instruction.

A trial court is given considerable latitude in selecting the language of jury instructions, but instructions may not materially misstate the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). Because we decide today that Glowacki, which does not impose a duty to retreat from one’s home before using self-defense against a co-resident, applies retroactively, the duty-to-retreat instruction given at Baird’s trial in December 2000 misstated the law. Under Glowacki, the district court’s instruction was erroneous because Baird did not have a duty to retreat from his home against a co-resident. The first prong of the plain error test is thus satisfied.

Having determined that the district court erred in instructing the jury that Baird had a duty to retreat, we turn to the second and third prongs of the plain error test. Under the second prong of the plain error test, we consider whether the district court’s error is plain. “[T]o satisfy the second prong it is sufficient that the error is plain at the time of the appeal.” Griller, 583 N.W.2d at 741 (emphasis added). In this case, the district court gave a duty-to-retreat instruction; but by the time of appellate consideration, under Glowacki, a co-resident does not have a duty to retreat before using self-defense in the home. Because' Glowacki’s holding now renders th'e duty-to-retreat instruction given in error at Baird’s trial clear and obvious, the error is plain. Baird has established the second prong of the plain error test.

The third prong of the plain error test requires us to determine if the error was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. Plain error is prejudicial if there is a “ ‘a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.’ ” Id. at 741 (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990)). The State argues that even if Glowacki is to be applied retroactively, Baird is not entitled to a new trial because the third prong fails. The State contends that any error was not prejudicial to Baird because Baird used an excessive amount of force in attacking Nelson and thus even a properly instructed jury could not have found that Baird acted in self-defense where Baird continued to hit Nelson after the screwdriver had been removed from Nelson's hand. Baird argues that there is a reasonable likelihood that a properly instructed jury could have accepted his claim of self-defense.

We agree with Baird. Evidence in the record that Nelson was holding a screwdriver at the time of the attack establishes that the jury could have concluded that Baird acted in self-defense. Under the circumstances, we conclude that it is simply impossible to determine whether the, jury rejected Baird’s version of the facts or whether it accepted his version but concluded that.he was guilty nevertheless because he failed to retreat. If the jury had known that Baird did not have a duty to retreat, it is possible that it would have decided that Baird’s actions were reasonable and taken in self-defense. • Because there is a reasonable likelihood that the error had a significant effect on the jury’s verdict, we conclude that the error was prejudicial and affected the outcome of the case and therefore that it cannot be considered harmless. Id.

Finally, we address whether a new trial is required “to ensure fairness and the integrity of judicial proceedings.” Griller, 583 N.W.2d at 742. In this case, the district court instructed the jury that self-defense “includes the duty to retreat or avoid the danger if reasonably possible.” No evidence was offered that Baird tried to retreat. Furthermore, the State emphasized a duty to retreat in closing argument:

There’s also an instruction in here about retreat. Remember we talked about ■could — could you leave that place, could you go get help. Did you have to hit him? The Judge will tell you that the legal excuse of self defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid danger if reasonably possible. So let’s be real clear on this. Whatever he thinks, the defendant does not have the right to say well, he’s in here in this place that we live in and he’s got a screwdriver in his hand. Think I’ll hit him in the face. He can only do that if that’s reasonably necessary to protect himself, but he had a world of other options * * *.

Given the instruction and the State’s emphasis in closing argument, the jury may not have considered whether Baird’s conduct was reasonable under the circumstances. Fairness requires that Baird be given an opportunity to present his account of the facts to a jury under the proper instructions. We therefore affirm the court of appeals.

Affirmed.

      . Baird testified that he drank two or three 12-ounce beers about noon and one beer about 11:30 p.m. on June 15 and two screwdrivers between midnight and 1 a.m. on June 16. Nelson testified that he consumed 10 to 12 8-ounce glasses of beer between 8 p.m., June 15 and 1 a.m., June 16.

      . On the date the court instructed the jury, December 14, 2000, relevant case law for the jury instruction on the duty to retreat issue included: State v. Carothers, 594 N.W.2d 897, 904 n. 6 (Minn.1999) (implying that whether one has a duty to retreat from one's home before using self-defense against a co-resident was an open issue); State v. Hennum, 441 N.W.2d 793, 800 n. 5 (Minn.1989) (summarily affirming juty instructions that included duty to retreat language in a self-defense case between co-residents); and State v. Glowacki, 615 N.W.2d 843, 845 (Minn.App.2000) (holding no duty to retreat in self-defense case against a co-resident), rev. granted September 27, 2000, State v. Glowacki, 630 N.W.2d 392 (Minn.2001).

      . Baird was sentenced on the third-degree assault conviction to 18 months' confinement, execution stayed for a period of ten years subject to conditions of probation, which included an order to pay restitution for Nelson's lost wages.

      . In Morrison, the defendant attacked her boyfriend's roommate, who was not a co-resident, in the defendant's home. 351 N.W.2d at 360. Thus, Morrison may not be read to impose a duty to retreat within one's home when the aggressor is a co-resident.

      . The terms retroactive, nonretroactive, and prospective have been variously defined. For example, one commentator has explained that when a decision applies "retroactively,” the decision applies to all cases (past, present or future); when the court applies a ruling to the case creating the new rule and to future cases, then the rule applies "nonretroactively”; and when the court applies a rule “prospectively,” the rule applies only to future cases and not to the case adopting the new rule or to previous cases. Charles Leonard Scalise, A Clear Break from the Clear Break Exception of Retroactivity Analysis: Griffith v. Kentucky, 73 Iowa L.Rev. 473, 473-74 n. 1 (1988). But see Pamela J. Stephens, The New Retroactivity Doctrine: Equality, Reliance and Stare Decisis, 48 Syracuse L.Rev. 1515, 1516 & n. 3 (1998) (footnotes omitted) ("When the Court decides that the new rule shall not apply to conduct or events which preceded its announcement, including those of the parties before the Court in the case which announces the new rule, the Court is said to engage in 'pure prospectivity' or to have announced a 'purely prospective rule.’ When the Court applies the announced rule to those before it as well as all those whose cases are still viable, it is said to have applied the rule 'retroactively.' * * * [Applying] the new rule to the parties before it in the case which announces the new rule, but [declining] to apply it to those similarly situated whose cases are still in the pipeline,” is called "non-retroactivity, modified prospectivity or limited retroactivity.”); Paul E. McGreal, Back to the Future: The Supreme Court's Retroactivity Jurisprudence. 15 Harv. J.L. & Pub. Pol'y 595, 597 (1992) (defining "full retroactivity” as "application of a new legal rule to the case in which the new rule was announced as well as in all cases that are not final”; "pure pros-pectivity" as application of "the new legal rule to neither the parties in the law-making decision nor to those others against whom or by whom it might be applied to conduct or events occurring before that decision”; and "[sjelective prospectivity” as application of "the new rule to the parties in the case announcing the rule” but not to "cases arising put of conduct predating the announcement of the new rule”). In practice, however, courts have confused these terms, often identifying nonretroactivity as prospectivity. Scalise, supra, at 473, 473-74 n. 1; see, e.g., Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Douglas, J., dissenting) ("At least the Court should not say as respects Katz that it is given 'wholly prospective application,’ when it was made retroactive in his case.”); Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (describing effect of decision as "prospective application only” but applying new rule to petitioner). The state asks us to apply Glowacki prospectively, but because we applied the rule we announced in Glowacki to the parties in that case, it is inappropriate to determine now that Glowacki applies prospectively. Glowacki, 630 N.W.2d at 402-03 (concluding that the district court erred when it instructed the jury "that Glowacki had a duty to 'avoid the danger if reasonably possible' " but that the error was harmless).

      . With United States v. Johnson, 457 U.S. 537, 562, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (holding that, subject to certain exceptions, “a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered"), and Griffith, 479 U.S. at 328 (holding that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break' with the past”), the United States Supreme Court overruled the clear break exception enunciated in Linkletter and Stovall.

      . Examples of our application of the special circumstances test include: Holmberg v. Holmberg, 588 N.W.2d 720, 721, 727 (Minn.1999) (applying the special circumstances test and holding that the administrative child support process is violative-of the separation of powers doctrine and thus unconstitutional and that this ruling is nonretroactive); Cambridge State Bank v. Roemer, 457 N.W.2d 716, 722 (Minn.1990) (applying special circumstances test and holding that bank franchise tax is discriminatory based on Memphis Bank & Trust Co. v. Garner, 459 U.S. 392, 398-99, 103 S.Ct. 692, 74 L.Ed.2d 562 (1983), and concluding that Memphis Bank is to be given "prospective application only"), vacated on other grounds by Norwest Bank Duluth v. James, 501 U.S. 1246, 111 S.Ct. 2881, 115 L.Ed.2d 1047 (1991); and Wolner v. Mahaska Indus., Inc., 325 N.W.2d 39, 41-43 (Minn.1982) (applying the special circumstances test and holding that Superwood Corp. v. Siempelkamp Corp., et al., 311 N.W.2d 159 (Minn.1981), overruled on other grounds by Hapka v. Paquin Farms, 458 N.W.2d 683 (Minn.1990), which limited tort recovery for economic losses in commercial transactions, did not apply retroactively).


source: Caselaw Access Project

author: PER CURIAM. GILBERT, Justice

license: Public Domain

text:
    Brian MELENDEZ, et al., Petitioners, v. Patrick H. O’CONNOR, Respondent, Michelle D. DesJardin, Respondent.
    No. C7-02-1722.
    Supreme Court of Minnesota.
    Dec. 19, 2002.

      Alan W. Weinblatt, Weinblatt & Gaylord PLC, St. Paul, MN, for Petitioners.
    M. Katherine Doty, Special Assistant Hennepin County, Anoka, MN, Attorneys for Respondents.
    Mike Hatch, Attorney General, State of Minnesota, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, MN, for Secretary of State Mary Kiffmeyer.
    Jason Samuels, Minneapolis, MN, pro se.
   OPINION

PER CURIAM.

Petitioners Brian Melendez and Ruth Stein filed a petition under Minn.Stat. § 204B.44 (2002) alleging that respondents, the Hennepin County Auditor/Treasurer and the Hennepin County Elections Manager, were about to commit an error in the preparation of the ballot for legislative district 59B by including Jason Samu-els’ name for the office of state representative. Petitioners alleged that Samuels had not resided in district 59B for the six months immediately preceding the November 5, 2002 election as required by Minn. Const, art. TV, § 6. Because there were no relevant facts in dispute, we did not appoint a referee. We issued an order granting the petition on October 15, 2002, and this opinion confirms that order.

Before June 1, 2002, Jason Samuels resided at 1206 Fourth Street Southeast, Minneapolis, which is located within legislative district 59B. On June 1, Samuels moved to 627 Pierce Street Northeast, Minneapolis. Before he moved, Samuels attempted to verify that the Pierce Street address was located within the boundaries of legislative district 59B. He did so by checking the Secretary of State’s official website. According to the Director of the Election Division of the Office of the Minnesota Secretary of State, between March 22 and August 20, 2002, the secretary’s website contained a disclaimer stating that information on the website regarding polling locations might not be current and would be updated later due to legislative redistricting ordered by this court in March 2002. The record does not indicate whether Samuels was aware of this disclaimer. Nonetheless, after visiting the website, Samuels concluded that the Pierce Street address was within -district 59B.

On July 16, 2002, Samuels filed to run for state representative for legislative district 59B. In his affidavit of candidacy, which was a form provided, by the Secretary of State, Samuels listed the Pierce Street address as his legal residence. The form affidavit required a candidate running for state senator or state representative to swear or affirm that he or she “will be a resident of Minnesota at least one year and of this district for six months on the. day of the general * * * election.”

On August 18, 2002, Samuels discovered that the Secretary of State’s website had been updated for redistricting and that his Pierce Street address was actually located in another legislative district — district 59A. Three days later, he sent an e-mail message to several parties, including the Election Division Director of the Secretary of State. In the e-mail, he explained his situation and stated that he “verified the district of this address as best [he] could through the Secretary of State’s website.” He stated that he was prepared to immediately move to another address within the district, but, because of the expenses involved in moving, he wanted to know whether it would be “legally proper” for him to do so. He also stated:

I want my candidacy to be legitimate and in full accordance with the law. If I have inadvertently violated the law, and if moving again would not properly rectify my error, than [sic] I want to know what proper steps I can take to own up to and resolve my situation.

The Election Division Director forwarded Samuels’ e-mail message to respondent Michelle DesJardin, Hennepin County Elections Manager. In a letter dated August 28, 2002, DesJardin informed Samuels that Minn. Const, art. IV, § 6 requires state representatives to have resided in the district from which elected for the six-month period immediately preceding the election. She informed him that because of this provision, his offer to move “would not be a viable option.” DesJardin also informed Samuels that it was too late for his name to be removed from the September 10, 2002 primary ballot, but that if he won the primary election, her office would not place his name on the ballot for the general election because it was “not possible for [him] to meet the constitutional qualifications to be elected from District 59B.”

Meanwhile, on August 28, 2002, Samuels signed a lease for a residence located at 612 Tenth Avenue Southeast, Minneapolis, and moved to the Tenth Avenue address on September 1. This address is located within legislative district 59B. It appears Samuels moved to the Tenth Avenue address before he received DesJardin’s letter informing him that moving into the district would not be sufficient to satisfy the constitutional residency requirement.

In a letter to DesJardin dated September 10, 2002, Samuels acknowledged receipt of her August 28 letter and informed her of his new address. He also informed DesJardin that his “intent to remain at 627 Pierce was based on the belief that this address was within the correct boundary lines of the district” and that “the moment that [he] discovered the discrepancy this intent became null and void.” He further stated that his letter would serve as an amendment to his affidavit of candidacy changing his legal residence.

In a letter dated September 16, 2002, DesJardin informed Samuels that his contentions regarding residency were beyond the jurisdiction of the Hennepin County Auditor. She stated that his name would appear on the ballot for the general election unless the Hennepin County Auditor was “otherwise directed that to do so would be an ‘error’ within the meaning of Minn.Stat. ■ Section 204B.44.” DesJardin also stated she would inform the other candidates for the office of state representative for legislative district 59B of the decision by sending them a copy of her letter.

Approximately two weeks later, on October 2, 2002, petitioners filed their petition seeking to have Samuels’ name removed from the ballot on the grounds that he had not resided in legislative district 59B for the six-month period immediately preceding the November 5, 2002 general election. We issued an order granting the petition on October 15, 2002.

I.

As a preliminary matter, we must determine whether the petition should be dismissed for laches. In election contests, “we especially consider the application of laches, an equitable doctrine applied to ‘prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.’ ” Piepho v. Bruns, 652 N.W.2d 40, 43 (Minn.2002) (quoting Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953)). Dismissal under the equitable doctrine of laches is appropriate if “there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for.” Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952).

We conclude that we need not determine whether or when petitioners were put on notice of Samuels’ residency defect because regardless of whether there has been an unreasonable delay by petitioners in filing their petition, there would be no prejudice to Samuels or others in granting the relief requested. The petition alleges that Samuels is not ■ qualified to run for office in district 59B because he moved out of the district on June 1. If this move resulted in a change in Samuels’ residence to a place outside district 59B, then he is not eligible to run for state legislative office in district 59B regardless of the timing of the challenge to his eligibility. There is nothing in the record indicating that Sam-uels was prejudiced by the. timing of the filing of the petition. Therefore, the doctrine of laches does not require dismissal of the petition and we will consider the petition on its merits.

II.

We did not appoint a referee to make findings of fact because we concluded that there were no facts in dispute. As a result, we will apply a standard of review similar to that applicable to motions for summary judgment. Under this standard, petitioners are entitled to the relief requested if, viewing the facts in the light most favorable to Samuels, Samuels has, as a matter of law, failed to satisfy the constitutional residency requirement. See, e.g., Gradjelick v. Hance, 646 N.W.2d 225, 234 (Minn.2002) (setting forth summary judgment standard).

Article IV, section 6, of the Minnesota Constitution requires:

Senators and representatives shall be qualified voters of the state, and shall have resided one year in the state and six months immediately preceding the election in the district from which elected.

The legislature has codified this constitutional provision in the election laws. Minn.Stat. § 204B.06, subd. 4(f) (2002). In Piepho, we noted that the legislature has not adopted a definition of “residency” for evaluating candidate qualifications and held that the two primary considerations in determining candidate residency are physical presence and intent. 652 N.W.2d at 44. We also concluded that the

concept of residency is captured and perhaps best summarized by MinmStat. § 200.031(i) (2000): “The mere intention to acquire a new residence, is not sufficient to acquire a new residence, unless the individual moves to that location; moving to a new location is not sufficient to acquire a new residence unless the individual intends to remain there.”

652 N.W.2d at 44.

Samuels claims that he intended to reside within legislative district 59B for the six months immediately preceding the election and that this intention is sufficient because he ultimately established a residence within the district. However, a mere intention of establishing residency in a particular district without actually having a physical location in the district at which to establish residency is not sufficient. There is nothing in the record that allows us to conclude that between June 1 and August 28 there was any location within legislative district 59B where Samuels could claim he resided. Because Samuels did not have a physical presence in legislative district 59B for almost two months during the six-month period immediately preceding the general election, we hold that he is not eligible to run for state legislative office in that district.

Petition granted.

Took No Part.

PAGE, J„ and ELANSON, J., took no part in the consideration or decision of this case.

GILBERT, Justice

(concurring).

While I generally concur with the reasoning of the court, it appears from a review of the record that the Minnesota Secretary of State’s nonfeasance created confusion in this redistricting year. The statewide redistricting plan was decided by a court-appointed panel on March 19, 2002. The Secretary of State acknowledges maintaining a metropolitan area legislative district map of the newly created legislative districts on its website, but says it is not sufficiently detailed to determine the district location of specific addresses. However, the candidate in this case relied on this information plus the Secretary of State’s website polling place locator. This information confirmed to this candidate that the precinct polling place of his address at 627 Pierce Street N.E. was within legislative District 59B. This was evidently incorrect but the error was based on misinformation that was maintained by the Secretary of State’s website through July 29, 2002. The filings for office closed on Tuesday, July 16, 2002.

While it is true that there was a cautionary disclaimer on the Secretary of State’s polling place website stating that the information may be out-of-date due to redistricting, the Secretary of State committed nonfeasance in not having accurate and timely redistricting information for candidates to rely on before the filings closed. The Secretary of State, through a sworn affidavit dated October 8, 2002 from the Director of the Elections Division of the Office of the Minnesota Secretary of State, indicates that prior to July 29, 2002, “ * * * the district information may have been outdated.” Then, in that same affidavit, the Director indicates that:

Electronic in-depth legislative district information is only available on the Legislative Coordinating Commission GIS website. Detailed maps may also be purchased from the Office of the Secretary of State. This information is also available from the election filing office, which in this case was the Hennepin County Auditor.

The Office of the Secretary of State posted misinformation on its website through July 29, 2002, and the error was exacerbated by failing to have appropriate references or Internet links to the Legislative Coordinating Commission GIS website and failing to indicate that maps may be purchased from the Office of the Secretary of State and are available from the election filing office. The Secretary of State, as the chief election official of the state, held herself out to be an expert yet produced material misinformation, which this candidate relied upon. Notwithstanding this nonfeasance, I must concur with the majority opinion because of the constitutional requirement of residency, but this mishap occurred in large part because of the Secretary of State’s actions and inactions.


author: PAGE, Justice.

text:
    Johnny W. HALE, Respondent, v. VIKING TRUCKING COMPANY and Crum and Forster Insurance Group, Respondents, Primary Behavioral Health Clinics, Respondent, Pinnacol Assurance, Relator.
    No. C8-02-367.
    Supreme Court of Minnesota.
    Dec. 19, 2002.

      John P. Sieben, Sieben, Polk, LaVerdi-ere, Jones & Hawn, Hastings, MN, for Respondent Employee.
    Donald G. Fernstróm, Joseph M. Nemo, Lori J. LéCount, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for Relator Pinnacol Assurance Company.
    Franz F. Davis, Roderick C. Cosgriff, Heacox, Hartman, Mattaini, Koshmrl, Cos-griff, & Johnson, St. Paul, MN, for Respondent Employer.
   OPINION

PAGE, Justice.

This appeal stems from an order dismissing relator Pinnacol Assurance (Pinna-col) as an intervenor in respondent Johnny W. Hale’s (Hale) workers’ compensation proceeding because the compensation judge lacked subject matter jurisdiction over Pinnacol’s claim for reimbursement. The Workers’ Compensation Court of Appeals (WCCA) affirmed the compensation judge. We affirm the WCCA.

On or about January 10, 1998, Hale, while working for BFT Bookkeeping for Truckers (BFT), a Colorado corporation, sustained a work-related injury to his left anHe when Hale dropped a heavy steel plate on his left foot. Liability for Hale’s January 10 injury was accepted by BFT and its Colorado workers’ compensation insurance carrier, Colorado Insurance Authority d/b/a Pinnacol Assurance (Pinna-col). Pinnacol paid Hale benefits under the Colorado workers’ compensation system for lost wages and medical treatment related to his left ankle condition. As a result of the January 10 accident, Hale’s left ankle was operated on twice. During the second surgery, the ankle was fused. According to his treating physician, by July 13,1998, Hale’s ankle injury was healing well. Hale did not return to work at BFT.

On July 14,1998, Hale began working as a truck driver for Viking Trucking Company (Viking), a Minnesota corporation. On July 20, 1998, while driving for Viking, Hale was involved in a serious motor vehicle accident. Although his emergency room records from his visit to the hospital after the accident do not mention any problems with his left ankle, on August 1, 1998, Hale was admitted to the hospital and diagnosed as having a failed left ankle fusion. The fusion was surgically revised on August 4, 1998, and additional surgery was required on August 13 and October 27, 1998. In a letter dated May 27, 1999, Hale’s treating physician voiced the opinion that the January 1998 and July 1998 injuries contributed equally to Hale’s ongoing disability. Pinnacol alleges that Hale did not inform BFT or Pinnacol of his new employment with Viking, the July 20 accident, or the injuries to his ankle that allegedly resulted from that accident. Pin-nacol claims that, as a result, it continued to pay for all medical treatment concerning Hale’s left ankle after July 20 on the assumption that all costs incurred were causally related to Hale’s January 10, 1998, work-related accident.

On April 21, 1999, Hale filed a claim in Minnesota for workers’ compensation benefits from Viking and its Minnesota workers’ compensation carrier, Crum and Forster Insurance Group, for injuries to his “lower left extremity” that he claims were a result of the July 20,1998, accident. Hale’s claim petition listed “Colorado Compensation” as a third-party payor who paid disability or medical benefits related to the claim. According to Pinnacol, it was at this time that it first received notice of the July 20 accident, Hale’s employment with Viking, and the pending Minnesota claim. Claiming that Hale had sustained an intervening injury, Pinnacol petitioned to discontinue workers’ compensation benefits in Colorado. However, before a hearing on its petition was held, Pinnacol and Hale reached a full, final, and complete settlement of Hale’s Colorado workers’ compensation claim for injuries resulting from the January 10,1998, accident.

On February 23, 2001, Hale’s Minnesota claim was stricken from the active calendar for failure to provide a pretrial statement. A month and a half later, Pinnacol successfully intervened in Hale’s Minnesota workers’ compensation action. According to Pinnacol, it sought to intervene because it had, in good faith, mistakenly paid Colorado workers’ compensation benefits attributable to Hale’s July 20, 1998, work injury, which Viking was obligated to pay, and therefore was entitled to reimbursement from Viking. On May 7, 2001, Viking filed an objection to the motion to intervene and a motion to vacate the order granting intervention. The matter was heard at a prehearing conference and on July 20, 2001, Pinnacol was dismissed as an intervenor for lack of subject matter jurisdiction.

The WCCA affirmed, noting that the only issue before it was whether, in determining that no basis for subject matter jurisdiction existed, the compensation judge erred in dismissing Pinnacol’s intervention and thus its reimbursement claim. In doing so; the WCCA concluded that neither it nor the compensation judge “has subject matter jurisdiction to determine or impose a Minnesota remedy where resolution of such a reimbursement claim involves determining whether an employee was entitled to workers’ compensation benefits in another state or whether those benefits were mistakenly or improperly paid.” Hale v. Viking Trucking Co., 2002 WL 431823, at *4 (Minn. WCCA Feb. 7, 2002). The WCCA went on to note that “the jurisdiction of the Minnesota workers’ compensation courts is limited by statute solely to interpreting and applying the workers’ compensation laws of this state.” Id.

Before this court, Pinnacol raises two issues. First, whether the compensation judge erred in dismissing it as an intervenor for lack of subject matter jurisdiction and, second, whether the dismissal violates Pinnacol’s rights to due process and/or equal protection. Because these two issues raise questions of law, our review is de novo. Owens v. Water Gremlin Co., 605 N.W.2d 733, 735 (Minn.2000).

I.

Minnesota Statutes § 175A.01 governs the jurisdiction of compensation judges and of the WCCA. See Minn.Stat. § 175A.01, subd. 5 (2002). Under section 175A.01, subdivision 5, that jurisdiction is limited to “questions of law and fact arising under the workers’ compensation laws of [Minnesota].” Id. Thus, any claim not involving Minnesota’s workers’ compensation laws must be dismissed for lack of subject matter jurisdiction. See id.

Generally, any party “who has an interest in any matter before the workers’ compensation court of appeals, or commissioner, or compensation judge such that the person may either gain or lose by an order or decision” has standing to intervene in a workers’ compensation proceeding. Minn.Stat. § 176.361, subd. 1 (2002). The interest claimed by the party wishing to intervene must be one for which a compensation judge has the power to grant relief. See Lemmer v. Batzli Electric Co., 267 Minn. 8, 125 N.W.2d 434, 436-37 (1963). Moreover, the rights and liabilities at issue must arise under Minnesota law. See Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 140 (2002) (stating that “normally the rights created by the compensation act of one state cannot be enforced in another state”).

Whether the compensation judge erred in dismissing Pinnacol as an interve-nor depends on whether the compensation judge had the power to grant the relief sought by Pinnacol. The ultimate relief sought by Pinnacol is “reimbursement for benefits due and payable under Minnesota law.” Pinnacol maintains that allowing its intervention in Hale’s workers’ compensation proceedings merely permits it to protect its rights during the determination of primary liability for benefits paid after the July 20, 1998, accident. According to Pin-naeol, once this determination is made, Viking must directly reimburse Pinnacol for those benefits that the compensation judge determines were due and payable under Minnesota law because Pinnacol paid all of Hale’s benefits following the July 20 accident.

There are a number of problems with Pinnacol’s argument. First, Pinnacol was not obligated to, nor did it, pay any benefits to Hale under the workers’ compensation laws of Minnesota. The benefit payments it paid to Hale were made under Colorado law. That being the case, any determination that Pinnacol overpaid benefits to Hale and, as a result, is therefore entitled to reimbursement must be made under the workers’ compensation laws of Colorado. This is because when an employee has suffered two or more successive injuries to the same body part, depending on the state, an employer/insurer may still be responsible for workers’ compensation benefits even though the second injury occurs while the employee is working for a different employer. See Larson, supra, § 153.01[2] (describing the three different strategies that have been adopted by various states to determine which employer is liable when an employee is injured multiple times while working for different employers). This lack of substantial uniformity among the compensation schemes in the various states means that, in order to determine whether the insurer on the risk for the first injury is entitled to reimbursement for benefits mistakenly paid, the workers’ compensation laws under which that insurer was paying benefits must be analyzed. In this case, the workers’ compensation laws of Colorado would have to be examined to determine whether Pinna-col made benefit payments to Hale that it was not required to make and, if so, the amount of any overpayment. Minnesota Statutes § 175A.01, subdivision 5, makes clear that a Minnesota compensation judge lacks subject matter jurisdiction to make that determination. As a result, the compensation judge could not grant the relief sought by Pinnacol and dismissal of Pinna-col as an intervenor was proper. In so holding, we observe that this decision is consistent with the WCCA’s decision in Rundberg v. Hirschbach Motor Lines in which the WCCA noted that neither the compensation judge nor the WCCA has “subject matter jurisdiction to determine whether an employee was entitled to workers’ compensation benefits in another state, whether those benefits were mistakenly or improperly paid, or to determine or impose a Minnesota remedy in the event that such benefits were improperly or mistakenly paid under another state’s law.” Rundberg v. Hirschbach Motor Lines, 51 Minn. Workers’ Comp. Dec. 193, 204 (WCCA), aff'd mem., 51 Minn. Workers’ Comp. Dec. 208 (Minn.1994).

II.

Pinnacol next argues that the compensation judge’s dismissal of Pinnacol as an intervenor violates Pinnacol’s “right to due process and [its] vested remedy” under the Fourteenth Amendment to the United States Constitution and Article I, §§ 7 and 8, of the Minnesota Constitution. According to Pinnacol, the act of dismissing it as an intervenor in Hale’s workers’ compensation matter denies its right to be heard and to have its rights administratively adjudicated. The first inquiry in determining whether there has been a violation of due process is whether the individual has been deprived of a protected property interest. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Alcozer v. North Country Food Bank, 635 N.W.2d 695, 705 (Minn.2001). It is only once it has been determined that there is a protected property interest that we look at whether there has been a due process violation. Sullivan, 526 U.S. at 59, 119 S.Ct. 977. As defined by the United States Supreme Court:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. * * *
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 38 L.Ed.2d 548 (1972).

Here, to the extent that Pinnacol has a property interest it seeks to protect, that interest was created under the workers’ compensation laws of Colorado, not under the laws of Minnesota. Because Pinnacol’s asserted interests do not arise under Minnesota workers’ compensation law, we hold that its claim is not one that can be adjudicated by the Minnesota’s workers’ compensation courts. As a result, Pinna-col’s due process claim fails.

III.

Finally, Pinnacol argues that its dismissal as an intervenor violates its right to equal protection of law under the Fourteenth Amendment to the United States Constitution and Article I, § 2, of the Minnesota Constitution because there is no rational basis for treating it differently from an out-of-state medical provider who is permitted to intervene under Minnesota law. The Fourteenth Amendment of the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of .the laws.” U.S. Const. amend. XIV, §. 1. Under the Minnesota Constitution, “no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land.” Minn. Const. art. I, § 2. Minnesota’s equal protection clause requires that similarly situated people be treated equally. State v. Frazier, 649 N.W.2d 828, 837 (Minn.2002).

Citing McRoberts v. Palmer West Construction Co., 42 Minn. Workers’ Comp. Dec. 449 (WCCA) aff'd, 448 N.W.2d 373 (Minn.1989), Pinnacol argues that there is no rational basis for distinguishing between out-of-state medical providers for whom Minnesota law “customarily allows” reimbursement and Pinnacol, an out-of-state workers’ compensation carrier, if both have “paid benefits” due to a Minnesota work-related injury. However, Pin-nacol’s reliance on McRoberts is misguided because the health care provider in McRo-berts and Pinnacol are not similarly situated.

While it is true that Pinnacol “paid benefits” to Hale, it did so based on its obligation under Colorado workers’ compensation law for the January 10, 1998, injury. McRoberts involved a health care provider seeking payment from a workers’ compensation insurer for medical services provided to an employee whose injury was compensable under the Minnesota Workers’ Compensation Act. See id. at 455. There is no similarity between a workers’ compensation insurance company required under the law of a state other than Minnesota to provide benefits to an injured employee and a health care provider seeking payment for health care services provided to an injured employee whose injuries are compensable under Minnesota law. Because Pinnacol and the health care provider in McRoberts are not similarly situated, Pinnacol’s equal protection argument fails. We therefore affirm the decision of the Workers’ Compensation Court of Appeals.

Affirmed.

      . As this appeal arises from a prehearing motion, no formal record has been established. The facts included in this section have been taken from the parties' briefs and attached documents. As the facts are still in dispute, this section is limited to those facts that appear to be undisputed from the parties’ respective briefs and is solely to provide context for this opinion. Accordingly, nothing in the factual background recited in this opinion should be construed as affecting the determination of any disputed fact in subsequent proceedings.

      . The parties do not dispute that "lower left extremity” refers to Hale’s left ankle.

      . In addition, Pinnacol asserted constitutional claims. In affirming the compensation judge, the WCCA noted that it was not empowered to resolve these claims. Hale v. Viking Trucking Co., 2002 WL 431823, at *5 (Minn. WCCA Feb. 7, 2002) (citing Minn.Stat. § 176.421, subds. 1 and 6 (2002)).

      . This is not to say that Pinnacol may not have had standing to intervene for purposes other than interstate reimbursement. See Rundberg v. Hirschbach Motor Lines, 51 Minn. Workers’ Comp. Dec. 193, 206 (WCCA), aff'd mem., 51 Minn. Worker's Comp. Dec. 208 (Minn.1994).

      . It is not clear from the record whether Pinnacol's asserted claim to reimbursement arises from some purported "property interest” or from the contract under which it insured BFT. In either event, resolution of Pin-nacol's claim can only be made by a court of general jurisdiction and not by Minnesota workers' compensation courts.


author: RANDALL, Judge. LANSING, Judge

text:
    Kevin JOHNSON, Petitioner, Respondent v. STATE of Minnesota, Appellant.
    No. C8-02-790.
    Court of Appeals of Minnesota.
    Dec. 3, 2002.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for appellant.
    John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

RANDALL, Judge.

Respondent Kevin Johnson entered a guilty plea to first-degree criminal sexual conduct and was sentenced for a period of 146 months. A postconviction court granted respondent’s petition for postconviction relief finding there was ineffective assistance of counsel because respondent’s attorney failed to challenge the admission of DNA evidence taken pursuant to a court order in a previous conviction that had been reversed on appeal. Appellant alleges that the postconviction court erred in ruling that respondent’s attorney was ineffective. The state further argues (1) respondent’s attorney did in fact move to suppress the DNA evidence; (2) the Knaffla rule bars respondent from challenging the admission of the evidence; and (3) because the sample was obtained pursuant to a court order and not through any misconduct by police, the court erred in applying the exclusionary rule. We affirm.

FACTS

On November 6, 1997, respondent Kevin Johnson was charged with first-degree criminal sexual conduct and third-degree criminal sexual conduct under Minn.Stat. §§ 609.342, subd. 1(d) and 609.344, subd. 1(c) (1996). According to the complaint, on October 26, 1997, respondent held a large metal pipe to the head of T.H.S. and forced her to have sex with him, threatening to hurt or kill her if she resisted. Respondent denied the allegations, claiming T.H.S. falsely accused him of rape because he did not pay her money he had promised her. After a plea agreement had been reached, on February 3, 1998, respondent entered a guilty plea to the charge of promotion of prostitution by fraud in'violation of Minn.Stat. § 609.322, subd. 2(1) (1996). In exchange, the state dismissed the criminal sexual conduct charges. The terms of the negotiation were that respondent would receive probation and a stayed sentence. Other terms and conditions were left up to the court.

As a basis for the guilty plea, respondent admitted that he and T.H.S. had agreed to carry out a prostitution scam on the weekend of October 26, 1997. Under the plan, respondent presented T.H.S. as a prostitute under his control, and they convinced people she would have sex with them for money. Respondent took money from the customers, but T.H.S. did not have sex with them. The plan was to divide the proceeds, but respondent never paid T.H.S. her share of the proceeds. Respondent was sentenced on March 3, 1998. The district court rejected respondent’s argument that his conviction did not “arise from the same set of circumstances” as the original criminal sexual conduct charges and ordered him to register as a sex offender under Minn.Stat. § 243.166, subd. l(a)(l)(iii) (1996).

As part of the plea agreement, respondent received a stayed sentence of 60 months, with five years’ probation. As terms and conditions of probation, the court ordered respondent to follow all probation department rules, remain law abiding, serve 180 days in the workhouse, have no contact with T.H.S., successfully complete a sex-offender treatment program, and submit a DNA sample. Respondent initially complied with the terms of his probation, but in November 1998, he was dropped from the sex-offender treatment program for having missed four consecutive classes, twice failed to contact his probation officer, and missed one probation appointment.

Because of these violations, the state moved to revoke his probation. Respondent denied the allegations and filed a motion to withdraw his guilty plea. He claimed his plea was invalid for ineffective assistance of counsel and because he was unaware of the sex-offender registration requirement. Respondent, at that point, did not mention the DNA sample that he had been required to submit. At the hearing for Respondent’s motion to withdraw his guilty plea, he testified that he would not have pleaded guilty had he known it would require him to register as a sex offender. On April 20, 1999, the court denied his motion to withdraw his guilty plea finding that (a) appellant knew at sentencing of his duty to register but chose not to seek withdrawal of his guilty plea; (b) the duty to register was a collateral, rather than a direct, consequence of pleading guilty; (c) his counsel was not ineffective; (d) his plea was valid; (e) respondent violated his probation by being terminated from the sex-offender program and by failing to keep in contact with his probation officer. At this point, any issue of the DNA sample had still not come up. The district court denied respondent’s motion to reconsider, concluded confinement was necessary, revoked probation, and executed the sentence.

Respondent appealed claiming the district court erred in (a) requiring him to register as a sex offender; (b) denying his motion to withdraw the guilty plea; and (c) revoking his probation. Respondent’s then appellate attorney, SJ, “attorney number 1,” argued that respondent was improperly required to register as a sex offender. The requirement to submit a DNA sample as part of that same sentencing still had not been raised at this point. This court on April 11, 2000, held that respondent’s conviction did not arise from the same set of circumstances as the original charge and reversed and remanded so that respondent could, if he wished, withdraw his guilty plea. This court held that if “the “prostitution scam” statute turned out to be the basis for a new negotiated plea, registration as a sex offender cannot be required.” State v. Johnson, 2000 WL 365051 (Minn.App. April 11, 2000) {Johnson I). Johnson I did not mention the requirement for a DNA sample. It had not been raised (only the requirement to register as a sex offender had been raised).-

Now fast rewind. Back in April of 1999, while the appeal on the requirement to register as a sex offender was pending, the bureau of criminal apprehension (BCA) matched respondent’s DNA sample with an unsolved 1992 rape. Respondent’s DNA sample was the one ordered by the district court pursuant to that 1998 conviction for promotion of prostitution by fraud. On May 5, 1999, Sergeant Martinson executed a search warrant and obtained a sample of respondent’s blood.

Now back to the present. At a July 12, 2000 bail hearing on this new rape charge, respondent’s attorney, now JR, “attorney number 2,” did bring up the subject of challenging the DNA sample because it had been taken as part of a sentencing order in a case that by now had been reversed. Attorney number 2 was later replaced by LR, “attorney number 3,” a private attorney who worked on conflict cases for the Hennepin County Public Defender’s Office. LR’s representation is at issue.

On September 21, 1999, respondent was charged with first-degree criminal sexual conduct for the 1992 rape. At a Rasmussen hearing held on November 13, 2000, LR contested the May 5, 1999 blood sample taken pursuant to Martinson’s search warrant. LR argued that a hearing should have been held prior to taking respondent’s blood. LR did not argue that the initial DNA sample (matched to Mar-tinson’s search warrant sample) had been taken pursuant to the older 1998 conviction that had, by that point, been reversed and, thus, that 1998 sample should be suppressed. See Johnson I.

On November 15, 2000, respondent entered a guilty plea to first-degree criminal sexual conduct and on December 13, 2000, was sentenced for a period of 146 months. On March 13, 2001, respondent filed a notice of appeal to the court of appeals. Respondent then, in July 2001, filed a motion to stay the appeal to allow him to pursue postconviction relief. That motion was granted on August 13, 2001.

In November 2001, respondent filed a petition for postconviction relief arguing that his attorney, LR, was ineffective because he failed to challenge the admissibility of the DNA evidence based on the Johnson I conclusion that the “prostitution scam” conviction did not arise out of the same set of circumstances as the initial charge and, therefore, the requirement to provide a DNA sample should have been set aside, just as the requirement that respondent register as a sexual offender had been set aside.

On April 29, 2002, the postconviction court granted the petition finding there was ineffective assistance of counsel for failing to challenge the DNA evidence based on Johnson I. This appeal by the state follows.

ISSUE

I. Did the postconviction court err in finding that respondent’s attorney was ineffective because he failed to move to suppress a DNA sample taken pursuant to a court order, as part of his sentence in another case, when that case requiring the DNA sample had been reversed?

II. Does the Knaffla rule bar respondent from challenging the earlier sentence?

ANALYSIS

I. Ineffective assistance of counsel

Appellant alleges the postconviction court erred as a matter of law in finding that there was ineffective assistance of counsel. Appellant claims the court ignored the fact that respondent’s attorney, LR, made a motion to suppress the DNA evidence at a pretrial Rasmussen hearing. Appellant further argues the postconviction court failed to apply the Knaffla rule and the court improperly applied the exclusionary rule where there was no police misconduct.

Respondent argues (1) trial counsel’s failure to challenge the admissibility of the DNA evidence, based on Johnson I, was objectively unreasonable; (2) he was prejudiced by his attorney’s deficient performance; (3) the DNA sample was illegally obtained; and (4) there was no independent source to warrant inclusion of the DNA sample. Respondent argues that the Knaffla rule does not bar this appeal because the current case, first-degree criminal sexual conduct, is a separate and distinct criminal prosecution from the 1998 prostitution scam case.

A. Deficient Representation

An appellate court reviews “a post-conviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (citation omitted).

The state first argues that the court erred in finding that counsel’s representation fell below an objective standard of reasonableness because the court faded to account for the fact that respondent’s attorney moved to suppress the DNA evidence at the Rasmussen hearing held on November 13, 2000.

We disagree. The state misses the point of what the postconviction court found. The postconviction court’s order, finding ineffective assistance of counsel, did not discuss suppression based on respondent’s attorney’s argument that a hearing should have been held prior to taking respondent’s blood on May 5, 1999. Rather, the postconviction court discussed the complete lack of any motion to suppress the DNA sample taken in 1998 pursuant to a district court sentence that had been reversed. The May 1999 sample would not have had a DNA sample to match up with if the DNA sample taken in 1998 had either never been taken or had been suppressed.

The postconviction court pointed out that at a July 12, 2000, bail hearing, a previous attorney for respondent mentioned the issue of the 1998 DNA sample and that should have alerted LR, whose representation the postconviction court was reviewing, that there was a .significant issue previously unraised, but now exposed (by Johnson I) as to whether the 1998 sample should have ever been taken.

The postconviction court supported its order with a lengthy well-reasoned memorandum of law. The court stated:

Under the circumstances of this case, the Court is forced to conclude that Petitioner’s counsel was deficient in failing to move for suppression of the DNA evidence. The sole basis for Petitioner’s initial production of a. DNA sample was Judge Reilly’s erroneous order in case 97099945. The subsequent Court of Appeals opinion specifically held that the offense of promotion of prostitution did not arise from the same circumstances as the criminal sexual conduct charges. In so holding, the Appellate Court noted that a new negotiated plea under the “prostitution scam” statute could not serve as the basis for ordering registration as a sex offender.
The standard for ordering a DNA sample is identical to that for ordering sex offender registration (must arise from an enumerated offense or the same set of circumstances). Minn.Stat. § 609.322, is not an enumerated offense which would independently provide support for ordering a DNA sample, thus the DNA sample was ordered illegally. Petitioner also points out that the lack of authority for the first sample renders the sample obtained pursuant to [the] search warrant illegal as “fruit of the poisonous tree.”
The Court also cannot ignore the fact that the legality of the DNA sample was raised during a bail hearing in July of 2000. Counsel taking over representation in a case such as this would be expected to review the record of prior proceedings. Therefore, it must be presumed that efféctive trial counsel would be aware of significant preceding circumstances and potential ramifications associated therewith.
Furthermore, in contrast to other cases where there might be some tactical or strategic reason for not moving to suppress; here, the Court finds none. The Court can conceive of no scenario by which a motion to suppress could have harmed Petitioner’s case.
Given the state of the record, the Court can only conclude that Petitioner’s trial counsel did not exercise “the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” State v. Gassler, 505 N.W.2d 62, 70 (Minn.1993). [Respondent] has met the first prong of the Strickland/Gates test.
On the record before it, the Court can only conclude that said reasonable probability exists. The DNA evidence obtained without authority pursuant to Judge Reilly’s Order in case 97099945 is the dominant evidence linking Petitioner to the 1992 criminal sexual conduct case. A successful suppression motion would have resulted in the exclusion of this evidence. And, based upon the state of the record, the Court is compelled to find that there is at least a reasonable probability that said suppression motion would have been granted, had it been made. Accordingly, the Court must conclude that the second prong has been met as well.

Respondent’s defense counsel “could not have been compromised or hurt by a motion to suppress.” Rodriguez v. Young, 906 F.2d 1153,1160 (7th Cir.1990).

The court applies a two-part test to determine if counsel’s performance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Id. The defendant has the burden of overcoming a strong presumption of counsel’s reasonable conduct by showing that the errors were so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

We conclude the record supports the postconviction court’s determination that respondent’s defense counsel did not exercise the customary skill and diligence that a reasonably competent attorney would perform and that as a result respondent suffered prejudice. The only basis for respondent’s required production of a DNA sample was the 1998 district court order in the prostitution scam case in Johnson I. We reversed respondent’s conviction in Johnson I determining that the court improperly required him to register as a sexual offender because his conviction did not arise out of the same set of circumstances as the originally charged crime. The postconviction court found that competent representation would have included awareness of the entire record and the appellate court’s decision in Johnson I thus alerting the defense attorney that there was an issue with the original sentence requiring respondent to provide a DNA sample. The statutes requiring registration as a sexual offender and requiring the production of a DNA sample are virtually identical in language. Compare Minn. Stat. § 243.166, subd. l(a)(l)(iii) (1996) (requiring registration as predatory offender if convicted of an enumerated offense or if the conviction arose out of the same set of circumstances) with Minn.Stat. § 609.3461, subd. 1(1) (1996) (requiring offenders convicted under section 609.342-609.345 or any offense arising out of the same set of circumstances). We conclude, as did the postconviction court, that competent defense counsel would have moved to suppress the DNA evidence following Johnson I. See United States v. Easter, 539 F.2d 663, 665-66 (8th Cir.1976) (finding ineffective assistance of counsel when defense counsel failed to file a suppression motion).

B. Prejudice

The state argues that the postcon-viction court erred in concluding that respondent was prejudiced by his attorney’s failure to move to suppress DNA evidence acquired by court order. The district court concluded that because the DNA evidence was obtained without authority, there was a reasonable probability that a suppression motion would have been granted.

The exclusionary rule operates generally to vindicate a defendant’s fourth amendment rights by deterring police from engaging in illegal searches by excluding evidence acquired by means of the illegality from admission in the criminal trial. See State, City of Minneapolis v. Cook, 498 N.W.2d 17, 20 (Minn.1993). Here, the DNA evidence was acquired by means of a court order. The police were involved in the collection of this evidence to the extent that a probation officer informed respondent of his obligation under the court order to provide the sample, and arranged for the sample to be taken.

Respondent argues that the state has waived the applicability of the exclusionary rule by failing to raise the issue in the district court. See State v. Botsford, 630 N.W.2d 11, 16 (Minn.App.2001),. review denied (Minn. Sept. 11, 2001). But to determine whether respondent was prejudiced by his attorney’s failure to move to suppress the DNA evidence, this court must, determine whether there were any grounds upon which such a motion could have prevailed. See Gates v. State, 398 N.W.2d 558, 562 (Minn.1987) (holding that where defendant could not show the evidence was suppressible, there was no prejudice from attorney’s failure to move to suppress and therefore no ineffective assistance of counsel).

The forced removal of blood from the body for the purpose of scientific testing, such as - the DNA testing conducted here, is a search for purposes of the fourth amendment. In re Welfare of J.W.K., 583 N.W.2d 752, 755 (Minn.1998); see Kruger v. Erickson, 875 F.Supp. 583, 588 (D.Minn.1995) (holding withdrawal of blood for DNA testing under Minn.Stat. § 609.3461 was a search and seizure), aff'd 77 F.3d 1071 (8th Cir.1996) (relying on alternative grounds of lack of jurisdiction).

Thus, although the blood sample taken here was taken pursuant to a court order, not in the course of a police investigation, it was the type of intrusion covered by the Fourth Amendment. Further, although respondent does not claim the blood sample was initially taken in violation of the Fourth Amendment, the supreme court has recognized that in some situations, non-constitutional violations may require suppression of evidence acquired through the violation. State v. Smith, 367 N.W.2d 497, 504 (Minn.1985) (holding that although statutory violations may require suppression, “a technical violation which did not subvert the basic purpose of the statute” did not).

This court determined in Johnson I that it was error to require respondent to register as a sex offender under Minn.Stat. § 243.166, subd. 1(a)(1), a statute with requirements very similar to those of Minn. Stat. § 609.3461, subd. 1, under which respondent was ordered to supply a blood sample for DNA testing. The error in requiring respondent to supply the blood sample was not a technical violation of the statute. On the contrary, the court erred in classifying respondent among those required to comply, an error that resulted in the state acquiring highly incriminating evidence.

We acknowledge that the primary purpose of the exclusionary rule is not to deter errors made by the courts. See Cook, 498 N.W.2d at 20 (holding that the purpose of suppression is not “to affirm the integrity of the courts” but to deter police from engaging in illegal searches). But Minnesota has not adopted the narrow view of the exclusionary rule that is represented by the “good faith” exception to that rule. See State v. Zanter, 535 N.W.2d 624, 634 (Minn.1995). Thus, even where police have relied in good faith on judicial approval of a warrant, courts in Minnesota are bound to exclude the evidence seized under the warrant, if invalid, even though the defect in the warrant is attributable to the court approving it. Id.

Respondent would be deprived of any meaningful remedy for the ineffectiveness of his attorney if the DNA evidence could be admitted against him in the later prosecution for the 1992 offense. The 1998 conviction (prostitution scam) is not affected by that evidence, and the intrusion itself, which allowed the state to obtain a sample of his bodily fluid for future use, cannot be undone. The mere removal of the DNA evidence from the BCA database, after its use to convict him of an offense resulting in a 146-month prison sentence, is a meaningless remedy. Therefore, we conclude that the DNA evidence, acquired through a fundamental violation of Minn.Stat. § 609.3461, subd. 1, would have been suppressed had respondent’s attorney challenged it. Had the DNA evidence, the critical evidence presented against respondent, been suppressed, respondent in all probability would not have pleaded guilty to that offense. See Berg v. State, 557 N.W.2d 593, 596 (Minn.App.1996) (noting rule that defendant who pleads guilty and claims ineffective assistance of counsel must show a reasonable probability that absent counsel’s errors she would not have pleaded guilty). Therefore, respondent has shown that he was prejudiced by his attorney’s failure to move to suppress the DNA evidence.

II. Knaffla rule

The state asserts that the Knaffla rule bars respondent from chai-lenging the admissibility of the DNA evidence because he failed to raise that issue on direct appeal in the previous case. We disagree. Ordinarily once a petitioner has directly appealed a conviction, a postcon-viction court will generally not consider any claim raised in the direct appeal, or any claim known at the time of the direct appeal, but not raised. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Postconviction claims of ineffective assistance of trial counsel are generally precluded if known at the time of direct appeal. Black v. State, 560 N.W.2d 83, 85 (Minn.1997).

However, a common sense reading of Knaffla shows that it is a procedural bar only when a defendant attempts to bring a postconviction petition after filing a direct appeal regarding the same criminal conviction, not where there is a separate and distinct criminal prosecution. Here we have a separate and distinct criminal prosecution. When a criminal case is reversed and remanded for a new trial, both sides begin anew. After Johnson I, a plea agreement was reached between appellant and respondent. As part of the plea agreement, respondent pleaded guilty to promotion of prostitution by fraud and was sentenced. That was the end of Johnson I. The present charge against respondent, first-degree criminal sexual conduct, is a far more serious charge and arises out of circumstances totally unrelated to the facts in Johnson I. Evidence in this case starts over. Nothing is “grandfathered” in from Johnson I. Appeals issues in this case will be from this case. There may be some seeming overlap here from the facts pertinent to the appeal in Johnson I, but that overlap cannot denigrate respondent’s constitutional right to appeal issues in a new and different case.

Put another way, respondent successfully challenged the requirement to register as a sexual offender in Johnson I. That he did not include in that appeal the requirement to provide a DNA sample does not prevent him from arguing ineffective assistance of counsel regarding that DNA sample in this first-degree criminal sexual conduct case.

We disagree with appellant’s argument that the court’s order requiring a DNA sample is a collateral consequence of the sentence imposed and is not subject to review under Minn. R.Crim. P. 27.03. Rule 27.03, subd. 9, states:

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.

Direct consequences are those that flow definitely, immediately, and automatically from a guilty plea, namely, the maximum sentence to be imposed and the amount of any fine. All other consequences are collateral. Alanis v. State, 583 N.W.2d 573, 578 (Minn.1998). In the prostitution scam case, registration was not a collateral consequence. The district court judge directly imposed the registration requirement. In that case, the requirement that respondent provide a DNA sample was directly imposed by the district court judge at sentencing. The district court’s March 25,1998 order issued in the “prostitution scam” case stated that respondent must submit a “biological specimen for DNA analysis per MS 609.3461.” The requirement to provide a DNA sample was directly imposed by a district court judge in the prostitution scam case and should not be dismissed as a “collateral consequence.” It would gut the spirit of the exclusionary rule if mistakes by district courts “did not count” so tainted evidence comes in anyway. If the only unit of government really held accountable is law enforcement, would the judiciary retain any credibility?

III. Exclusionary rule

The state argues that the postcon-viction court erred in applying the exclusionary rule to a sentencing order issued in the prostitution scam ease. The state asserts that the exclusionary rule applies only where there is police misconduct, not a reversed court sentencing order. Respondent argues that because appellant failed to raise the applicability of the exclusionary rule in the postconviction court, he has waived it.

We decline to address the issue presented by the state that the exclusionary rule applies only where there is police misconduct and not a district court sentence reversed on appeal. This issue had not been briefed and argued before the postconviction court. The record is incomplete and inadequate for a meaningful appeal. Ferguson v. State, 645 N.W.2d 437, 448 (Minn.2002) (stating that arguments raised for the first time on appeal will not be considered).

DECISION

The postconviction court did not erroneously conclude that respondent was deprived of effective counsel when there was no motion made to suppress a DNA sample linking respondent to a crime when that sample was taken pursuant to a sentence that was reversed on appeal.

The Knaffla procedural bar applies only when a defendant attempts to bring a postconviction petition after filing a direct appeal regarding the same criminal conviction, not where there is a separate and distinct criminal prosecution.

The record is incomplete and inadequate for a meaningful review of whether the exclusionary rule applies only where there is police misconduct and that it can never be applied when there is an error of law by a court. The issue had not been briefed and argued before the postconviction court; thus, it is not before this court.

Affirmed.

LANSING, Judge

(dissenting).

I respectfully dissent because I believe that the exclusionary rule does not apply to the DNA sample. Accordingly, I believe the postconviction court erred as a matter of law in concluding that Johnson received ineffective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (“a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim [of ineffective assistance of counsel]” based on failure to seek suppression of evidence); see also State ex rel. Fruhrman v. Tahash, 275 Minn. 242, 244-45, 146 N.W.2d 174, 176 (1966) (“[N]o inadequacy can be attributed to counsel for failing to make a motion, which should have been denied had it been made.”).

The postconviction court concluded there was a “reasonable probability” that a motion to suppress the DNA sample would have been granted because the sample was “ordered illegally.” But even assuming this court’s prior decision in this case invalidated the basis for ordering Johnson to provide the DNA sample, it must still be determined whether exclusion is the appropriate remedy for that invalid seizure. See New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 738 n. 3, 83 L.Ed.2d 720 (1985) (explaining that the question of whether evidence should be excluded from a criminal proceeding involves two discrete inquiries: whether the evidence was ille-gaily seized, and whether the exclusionary rule is the appropriate remedy for the violation).

It is well-settled in Minnesota that “[t]he purpose of suppression [of illegally obtained evidence] is not to vindicate a defendant’s rights nor to affirm the integrity of courts, but to deter police from engaging in illegal searches.” State, City of Minneapolis v. Cook, 498 N.W.2d 17, 20 (Minn.1993). In this case there was no misconduct to deter — by police or any other state authority. Johnson’s probation officer collected the biological specimen on the basis of a valid court order. The district court issued that order in accordance with a statutory requirement, see Minn.Stat. § 609.117 (stating that the court “shall order” collection of a biological specimen from specified offenders), and the order remained valid and binding until this court subsequently rejected the district court’s construction of the sex-offender registration statute. By that time, the initial sample had already been collected, analyzed, and linked to the unsolved 1992 sexual assault, and the state had already charged Johnson with first-degree criminal sexual conduct in connection with that assault. Under these facts, the exclusionary rule would have no deterrent effect and should therefore not apply. See State v. Smith, 652 N.W.2d 546, 549 (Minn.App.2002) (exclusionary rule should only be used when its deterrent value outweighs social costs of excluding probative, but illegally obtained evidence).

Because application of the exclusionary rule to the DNA sample would not be appropriate, Johnson did not receive ineffective assistance of counsel due to his attorney’s failure to seek suppression of the sample.

      . At the July 12, 2000 bail hearing, attorney number 2 stated that respondent had not been informed that it was the DNA sample from the 1998 prostitution scam case that led to charges in the current case.

      . Respondent’s attorney challenged the search warrant by which police acquired the second blood sample from respondent. But he did not challenge the admissibility of the DNA evidence from the tests conducted on the first sample, acquired by court order under the 1998 sentence.

      . Because the sentencing order that included the DNA sample requirement was not merely "facially valid,” U.S. v. Leon, 468 U.S. 897, 902, 104 S.Ct. 3405, 3410, 82 L.Ed.2d 677 (1984), there is no question in this case of whether the probation officer who collected the sample acted in "good faith” reliance on a defective order. Accordingly, the fact that the Minnesota Supreme Court has not recognized a good-faith exception to the warrant requirement under the Minnesota Constitution does not affect the analysis.