author: PER CURIAM.

text:
    Antonio SPEED, Appellant, v. STATE of Iowa, Appellee.
    No. 99-1008.
    Supreme Court of Iowa.
    Aug. 28, 2000.
    Christopher A. Kragnes, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven M. Foritano, Assistant County Attorney, for appellee.
    Considered by McGIVERIN, C.J., LARSON, CARTER, TERNUS, and ANDREASEN, JJ.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   PER CURIAM.

Antonio Speed appeals from the district court’s denial of his application for post-conviction relief following his guilty plea, conviction, and sentence for going armed with intent in violation of Iowa Code section 708.8 (1995). He claims he was denied his right to effective assistance of counsel because his defense counsel failed to attempt to suppress the statements he made to officers and committed other errors prior to his plea. We affirm.

The State initially charged Speed with first-degree murder after a woman was killed when she entered a rolling gun battle between rival gang members on April 8, 1996. Pursuant to a plea agreement, he pled guilty to one count of going armed with intent. After denying his motion in arrest of judgment, the court sentenced him to an indeterminate term of imprisonment not to exceed five years. He appealed the denial of his motion in arrest of judgment, and this court affirmed his conviction and sentence, finding, in part, that his plea was voluntary. State v. Speed, 573 N.W.2d 594 (Iowa 1998). The district court denied Speed’s application for post-conviction relief, and he appeals.

Speed contends he was denied his right to effective assistance of counsel because the waiver of his Miranda rights was not knowing and voluntary and his counsel failed to attempt to suppress his statements to police. He also claims that the cumulative effect of all of the errors in this case was so prejudicial that he was denied effective assistance of counsel. Speed asserts counsel failed to file a motion in limine in relation to gang activity and evidence of other murders, failed to adequately investigate and depose certain individuals, waived his speedy trial rights without his consent, and failed to introduce a letter written to him by trial counsel during the hearing on the motion in arrest of judgment which would have helped prove his claim that counsel coerced him into pleading guilty. The State contends Speed did not raise many of these arguments in his direct appeal and the only issue preserved in this appeal is whether trial counsel was ineffective for fading to file a motion to suppress Speed’s confession to police.

It is well established the entry of a guilty plea pursuant to Iowa Rule of Criminal Procedure 8(2)(b) waives all defenses and objections which are not intrinsic to the plea itself. State v. Antenucci 608 N.W.2d 19, 19 (Iowa 2000); State v. Mattly, 513 N.W.2d 739, 740 (Iowa 1994); State v. Morehouse, 816 N.W.2d 884, 885 (Iowa 1982). The record in this case reveals the district court’s compliance with the requirements set forth in rule 8(2)(b). We have previously found claims arising from the denial of a motion to suppress or from counsel’s failure to investigate or file a motion to suppress do not survive the entry of a guilty plea. See State v. Sharp, 572 N.W.2d 917, 918-19 (Iowa 1997); State v. Freilinger, 557 N.W.2d 92, 93-94 (Iowa 1996); State v. Culbert, 188 N.W.2d 325, 326 (Iowa 1971).

Finally, Speed attempts, in the guise of an ineffective-assistance-of-counsel claim, to show that his plea was coerced because of counsel’s failure to secure the suppression of inculpatory evidence. That is not a circumstance that bears on the knowing and voluntary nature of a plea. As we recognized on Speed’s direct appeal:

Speed asserts ... the amount of evidence the State has against a defendant affects the defendant’s decision to plead guilty. This argument fails to distinguish between a defendant’s tactical rationale for pleading guilty and a defendant’s understanding of what a plea means and his or her choice to voluntarily enter the plea. Any subsequently discovered deficiency in the State’s case that affects a defendant’s assessment of the evidence against him, but not the knowing and voluntary nature of the plea, is not intrinsic to the plea itself.

Speed, 573 N.W.2d at 596. We affirm the denial of postconviction relief.

AFFIRMED.


source: Caselaw Access Project

author: BLATZ, Chief Justice. PAUL H. ANDERSON, Justice

license: Public Domain

text:
    STATE of Minnesota, petitioner, Appellant, v. Ammanuel AMBAYE, Respondent.
    No. C9-98-2221.
    Supreme Court of Minnesota.
    June 29, 2000.

      Michael Hatch, Minnesota Attorney General, St. Paul, Amy Klobuchar, Henne-pin County Attorney, Beverly J. Benson, Assistant County Attorney, Minneapolis, for appellant.
    Maureen Williams, Law Office of Maureen Williams, Minneapolis, for respondent.
   OPINION

BLATZ, Chief Justice.

This case began with respondent’s petition for the expungement of his criminal record. The district court concluded that respondent was not entitled to expungement under either the expungement statute or the court’s inherent power to expunge. The Minnesota Court of Appeals reversed and remanded for the entry of an expungement order under the expungement statute. We hold that a verdict of not guilty by reason of insanity does not satisfy the legal threshold that would entitle a petitioner to a presumption of ex-pungement under the statute. Accordingly, we reverse the court of appeals. We also affirm the district court’s refusal to grant respondent an expungement order under that court’s inherent power.

Respondent Ammanuel Ambaye was indicted in 1973 for the first-degree murder of his roommate. The jury found him not guilty by reason of insanity. Following the jury verdict, respondent was civilly committed to the Minnesota Security Hospital, and subsequently transferred to the St. Peter State Hospital in St. Peter, Minnesota. In total, respondent was committed for approximately five years. After being provisionally discharged from the hospital, respondent moved to Mankato, where he lived in a halfway house and studied for and received a master’s of science in criminal justice.

In May 1998, respondent petitioned the district court to expunge the records of his first-degree murder indictment and prosecution. He stated then, and still maintains, that he has lost several social work positions, has been denied an apartment lease, and has been removed from direct client contact several times due to his criminal record.

There are two legal bases that provide for the expungement of criminal records: MinmStat. ch. 609A (the expungement statute) and a court’s inherent expungement power. See generally State v. C.A., 304 N.W.2d 353, 358 (Minn.1981); In re R.L.F., 256 N.W.2d 803, 807-08 (Minn.1977). The Minnesota expungement statute allows for the expungement of criminal records in certain circumstances. See Minn.Stat. § 609A.02 (1998). Relevant to this case is the statute’s recognition of a petition for expungement if all pending actions and proceedings were “resolved in favor of the petitioner.” Minn.Stat. § 609A.02, subd. 3 (1998). The statute specifically states that if the actions and proceedings were resolved “in favor of the petitioner,” he or she is presumptively entitled to expungement “unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.” Minn.Stat. §§ 609A.02, subd. 3; 609A.03, subd. 5(b) (1998).

In addition to statutory expungement under chapter 609A, Minnesota courts also have the inherent power to expunge criminal records in two situations. First, courts may use their inherent ex-pungement power “where the petitioner’s constitutional rights may be seriously infringed by retention of his records.” R.L.F., 256 N.W.2d at 807-08. Second, when a petitioner’s constitutional rights are not involved, “the court must decide whether expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order.” C.A., 304 N.W.2d at 358.

In the instant ease, the district court concluded that respondent’s not guilty by reason of insanity verdict was not a determination “in favor of’ respondent, and thus he was not entitled to a presumption of expungement under chapter 609A. In addition, the district court declined to use its inherent authority to grant the petition because it concluded that the benefits respondent might gain through expungement were not as great as the detriments to the public that might result from the same. The court of appeals reversed, holding that respondent’s verdict was a determination in favor of him. See State v. Ambaye, 596 N.W.2d 668, 670 (Minn.App.1999). Unlike the district court, the court of appeals also performed the statutory balancing test provided in section 609A.03, subd. 5(b), and concluded that respondent is entitled to expungement. See Ambaye, 596 N.W.2d at 670-71. Having decided that respondent was entitled to expungement under the expungement statute, the court of appeals did not reach the question of whether respondent was also entitled to expungement under the court’s inherent power. See id. at 671.

I.

This case presents the question of whether a jury verdict of not guilty by reason of insanity is a resolution “in favor of’ respondent for- purposes of the ex-pungement statute. The proper construction of a statute is a question of law that we review de novo. See State v. Ronquist, 600 N.W.2d 444, 447 (Minn.1999). Section 609A.02, subd. 3 contains a legal threshold that must be met before a petitioner can have his need for expungement weighed against “the interests of the public and public safety.” Minn.Stat. § 609A.03, subd. 5(b). “A petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict ⅜ * * if all pending actions or proceedings were resolved in favor of the petitionerMinn.Stat. § 609A.02, subd. 3 (emphasis added). Once this requirement is met, the petitioner has a presumption of expungement that can be overcome only by clear and convincing evidence that the public’s interest in having the criminal records available outweighs the petitioner’s interest in expungement. See Minn.Stat. § 609A.03, subd. 5(b).

Construction of the expungement statute is a matter of first impression. However, this court has decided cases under another statute, Minn.Stat. § 299C.11 (1980), which contained nearly identical “in favor of’ language. See State v. M.C., 304 N.W.2d 362, 364 (Minn.1981); C.A., 304 N.W.2d at 357 n. 3; City of St. Paul v. Froysland, 310 Minn. 268, 272-76 246 N.W.2d 435, 437-39 (1976). Minnesota Statutes § 299C.11 (1980) did not provide for the expungement of criminal records, but did permit one to demand the return of all identification data such as fingerprints and photographs, “[u]pon the determination of all pending criminal actions or proceedings in favor of the arrested person.” Minn.Stat. § 299C.11 (1980) (emphasis added). Therefore, a brief discussion of the cases involving section 299C.11 is instructive in understanding the statutory language set forth in section 609A.02, subd. 3.

In City of St. Paul v. Froysland, the first case construing section 299C.11’s “in favor of’ language, this court held that a dismissal of charges following a stay of imposition of sentence is not a determination “in favor of’ the accused. See Froysland, 310 Minn. at 276, 246 N.W.2d at 439. In that case, a defendant convicted of a misdemeanor following a guilty plea was told by the district court judge that if she committed no offenses for six months the conviction would be vacated and the charges dismissed. See id. at 274, 246 N.W.2d at 438. In Froysland, this court reasoned that “in favor of’ under section 2990.11(b) could not encompass a disposition in which the defendant pleaded guilty, even if the charges were later dismissed. Id. at 276, 246 N.W.2d at 439.

Two other cases construing the statutory language of section 299C.11 serve to further define the scope of “in favor of.” In State v. M.C., the appellant was found not guilty of two counts of first-degree murder. 304 N.W.2d at 363. We concluded that a verdict of not guilty was a determination in favor of the appellant. See id. at 364. The second case, State v. C.A., presented the question whether a conviction for consensual sodomy which was set aside by this court was a resolution “in favor of’ appellant. 304 N.W.2d at 355. The conviction was set aside pursuant to a stipulation between the state and the defense, the charges were dropped, and appellant was never subsequently retried. See id. at 357 n. 3. We concluded that a voluntary dismissal of charges was a determination “in favor of’ an appellant. See id. Therefore, the scope of “in favor of’ under section 299C.11 includes verdicts of not guilty and voluntary dismissals, and does not include resolutions where the defendant pleaded guilty.

Here, in concluding that a jury verdict of not guilty by reason of insanity is not a determination “in favor of’ respondent, the district court relied on a decision of the Pennsylvania Superior Court, Commonwealth v. W.P., 417 Pa.Super. 192, 612 A.2d 438 (1992). In W.P., the question was whether a person found not guilty by reason of insanity was entitled to expungement under the court’s inherent expungement power. See id. at 440. The court of appeals correctly determined that the district court’s reliance on W.P. was misplaced as the Pennsylvania Superior Court was not construing a statute but rather addressing expunction as a judicial remedy. See Arnbaye, 596 N.W.2d at 670.

In contrast to the district court, the court of appeals analyzed the verdict of not guilty by reason of insanity within a double jeopardy framework, concluding that the verdict is a determination “in favor of’ respondent. See id. at 670. The court of appeals reasoned that because a verdict of not guilty by reason of insanity arguably prevents the state from retrying a defendant for the same crime, the verdict “at least approaches the status of an acquittal for double jeopardy purposes.” Id. This reasoning is unpersuasive, however, as a verdict of guilty gives a defendant the same protection — i.e., it bars retrial — and yet could not be considered a determination “in favor of’ a defendant.

We conclude that the correct and applicable construction of the “in favor of’ language is that a verdict of not guilty by reason of insanity is not a resolution “in favor of’ a petitioner within the meaning of the section 609A.02, subd. 3. This conclusion is consistent with and is guided by our reasoning in Froysland, M.C. and C.A. While a verdict of not guilty by reason of insanity can be distinguished from a verdict of guilty, it is not the equivalent of a verdict of not guilty. See State v. Bouwman, 328 N.W.2d 703, 705 (Minn.1982) (“There is a distinction, which society understands and accepts, between a verdict of ‘not guilty’ and a verdict of ‘not guilty by reason of insanity.’ ”). At the conclusion of respondent’s trial, the jury reached a verdict of not guilty by reason of insanity, indicating that respondent would have been convicted but for the rebuttal of the presumption that he was responsible for his actions. See generally Minn.Stat. § 611.025. If the prosecution had not proved all elements of respondent’s crime beyond a reasonable doubt, a verdict of not guilty would have issued. In short, while a person found not guilty by reason of insanity is not criminally liable, he has been found to have committed the act of which he was accused. A verdict reflecting such a fact is not one “in favor of’ respondent.

II.

Next, we address respondent’s claim that the district court abused its discretion by refusing to expunge respondent’s criminal record under the court’s inherent power. While the court of appeals did not reach this issue, it was properly preserved for appeal by respondent. The exercise of a court’s inherent power to expunge is a matter of equity, and we therefore review the district court’s conclusion under an abuse of discretion standard. See R.L.F., 256 N.W.2d at 807; Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979).

Because no constitutional right was involved, in deciding whether to exercise its inherent power to expunge, the district court was to consider whether expungement would yield a benefit to respondent greater than the disadvantages to the public from the elimination of his criminal record and the burden on the court in issuing, enforcing and monitoring an ex-pungement order. See C.A., 304 N.W.2d at 358. In its order denying expungement, the district court noted that the benefit respondent would gain by way of expungement was greater ease in obtaining employment. The court explained that background checks are commonly performed by an employer before an offer for employment is made. Such background checks would reveal respondent’s criminal prosecution, and therefore expungement would allow him to avoid such damaging revelations.

Nonetheless, the district court set forth several factors weighing against expungement. First, the court stated that the benefit respondent stood to gain from ex-pungement, if granted, would override the very purpose of the background check. Employers, sometimes pursuant to law and sometimes voluntarily, have required background checks in order to “assess any potential risk involved with hiring certain individuals.” Further, the district court reasoned that the public had a “compelling interest in maintaining [respondent’s] record of violence, particularly because the underlying offense [respondent] was charged with was murder in the first degree.” Finally, the district court noted that respondent “is currently gainfully employed, thus his [criminal record] is not preventing him from obtaining employment.” For these reasons, the district court determined that the balancing test weighed in favor of retaining respondent’s records. Given this record, we hold that the district court did not abuse its discretion in refusing to expunge under its inherent power.

Reversed.

PAUL H. ANDERSON, Justice

(concurring specially).

I concur with the result the majority reaches today. But I write separately to address my concerns about the majority’s description of a verdict of not guilty by reason of mental illness as being a verdict that presumes the accused was guilty of the crime charged but for a finding of mental illness or defect.

We have recently discussed the nature of the mental illness defense in State v. Schreiber, 558 N.W.2d 474 (Minn.1997). In Schreiber, we stated that preventing a defendant from presenting subjective psychological evidence to rebut the state’s evidence on intent does not violate the defendant’s due process rights under the United States or Minnesota Constitutions. Id. at 478. We stated in Schreiber that once a person has been determined to be “legally insane” or to lack the mental capacity to form a criminal intent, “the defendant is completely excused from criminal liability by reason of mental illness.” Id. at 480 (emphasis in original).

Our reasoning in Schreiber was based in part on our earlier decision in State v. Bouwman, 328 N.W.2d 703, 706 (Minn.1982), where we distinguished the defense of mental capacity from other subjective intent defenses, such as age or intoxication. In Bouwman, we reiterated the legal presumption that all persons are responsible for their acts and “that they have the capacity to intend what they do.” Id. at 705 (discussing Minn.Stat. § 611.025 (1980)). As such, the prosecution in a criminal case need only produce factual evidence to show that defendant committed the act for which he has been charged. See id. Intent may then be inferred from this objective manifestation of the defendant’s intent. See id. Evidence of a subjective and psychological nature that may tend to show that the defendant could not form this intent is irrelevant at this point as it does nothing to refute the physical evidence the state has presented. See id. However, once the defense of mental illness or defect is asserted, “[t]he question becomes whether the defendant, even though he has manifested the specific intent to do the thing that he did, was laboring under such a defect of reason that he lacked the capacity to form the intent that was otherwise manifested.” Id. (emphasis added).

Evidence of other subjective defenses to intent, such as intoxication, are permitted in cases, like first-degree murder, where specific intent is an element of the crime to be presented by the defendant in his case in chief. See id. at 706. However, in order to avoid confusion on the distinction between intent as an element of the crime and lack of mental capacity, we have ordered that the trial shall be separated or bifurcated in cases where the defendant intends to offer an insanity defense in addition to challenging other elements of the crime. See State v. Hoffman, 328 N.W.2d 709, 716-17 (Minn.1982).

In the first phase of the bifurcated trial, the state presents its case and then the defense presents its case to refute the state’s evidence, absent any psychological evidence concerning mental capacity. See id. at 716. The defense then rests provisionally. See id. This first phase is frequently referred to by the misnomer “guilt phase.” See, e.g., Schreiber, 558 N.W.2d at 477. However, guilt has not been established. In the second phase, the burden now shifts to the defendant who must overcome by a fair preponderance of the evidence the presumption that he possesses the mental capacity to form the requisite criminal intent. See Hoffman, 328 N.W.2d at 717. Here, psychological evidence is relevant and permitted. See id.

It is true that at the close of the first phase of the bifurcated trial the jury must find that the state has carried its burden and proven the elements of the crime, including intent. See Minn. R.Crim. P. 20.02, subd. 4(6). However, the defendant, who has only provisionally rested, still has a defense to present — that he lacked the mental capacity to form the intent otherwise manifested by his acts.

It is inappropriate and constitutionally problematic to describe the result of this first phase of the bifurcated trial as a finding of guilt, therefore concluding that the defendant was guilty but for a finding of mental illness or defect. Intent remains an essential element of most crimes and specific intent an element of first-degree murder. The state must still prove all elements of a crime beyond a reasonable doubt. A finding that the defendant lacked the mental capacity to form the requisite intent will generally defeat any objective showing of intent. Despite the pejorative connotations society may place on a finding of not guilty by reason of mental illness, it is an acquittal of the crime as charged that “completely excuses [the defendant] from criminal liability” (emphasis in original). Schreiber, 558 N.W.2d at 480; see also Black’s Law Dictionary 24 (7th ed.1999) (defining “acquittal” as “legal certification * * * that an accused person is not guilty of the charged offense”); see generally Minn.Stat. § 253B.01 -.23 (1998) (Minnesota Commitment and Treatment Act) (referring to verdict of not guilty by reason of mental illness as “an acquittal of a criminal charge under section 611.026”).

In this case, Ambaye was found not guilty by reason of insanity before we required bifurcated trials. However, that difference has made the “but for” reasoning of the majority even more problematic. The jury considered all of these issues together and we can make no clear statement about what the jury intended other than their stated verdict — not guilty by reason of insanity.

Despite the fact that a finding of not guilty by reason of mental illness completely excuses a defendant from criminal liability, I agree with the majority that it is not a favorable determination under Minn. Stat. § 609A.02, subd. 3 (1998). I agree that a favorable determination under this statute is a technical term, limited to those instances when a criminal charge has been resolved by a finding of not guilty or by voluntary dismissal. Additionally, while a finding of not guilty by reason of mental illness completely excuses the defendant’s criminal liability, it does not mean that society does not continue to require protection from that person’s dangerous propensities. After a finding of not guilty by reason of insanity, the defendant is held in custody by the court pending a mental evaluation and the court continues to exercise supervision and control over the civil commitment process. See generally Minn. Stat. § 253B.07, subd. 2a (1998). Consequently, while I disagree with the majority’s description of the nature of the verdict of not guilty by reason of mental illness, I agree that it is not a favorable determination under Minn.Stat. § 609A.02, subd. 3.

      . Respondent pleaded not guilty, and was subsequently found "not guilty by reason of insanity” as stated on the verdict form returned by the jury. Nonetheless, we note that in 1971, the criminal responsibility statute was amended, and the phrase "mentally ill or mentally deficient” was inserted in place of “a state of idiocy, imbecility, lunacy, or insanity.” See Act of May 17, 1971, ch. 352 § 1, 1971 Minn. Laws 602, 602. In addition, when the Rules of Criminal Procedure were promulgated in 1975, this statutory amendment was recognized and Minn. R.Crim. P. 14.01 for the first time provided a plea of not guilty by reason of mental illness or mental deficiency. See Minn. R.Crim. P. 14.01 & Cmt. (1998).

      . While retaining the "in favor of” language, the statute has been amended to include two additional conditions that must be met before the identification data must be returned, and to require that the records of a person who has had his 609A petition granted be sealed. See Act of Apr. 2, 1996, ch. 408, art. 9, § 5, 1996 Minn. Laws 605, 697.

      . To successfully establish the insanity defense, respondent had to rebut the statutory presumption of responsibility for his actions. See Minn.Stat. § 611.025 (1998). To rebut this presumption, respondent had to prove that at the time of his criminal act he "was laboring under such a defect of reason * * * as not to know the nature of his act, or that it was wrong.” Minn.Stat. § 611.026; see also State v. Rowland, 294 Minn. 17, 46, 199 N.W.2d 774, 790 (1972).

      . The special concurrence states that the majority is incorrect in asserting that respondent’s verdict evidences that the state proved all elements of its case. Citing State v. Schreiber, 558 N.W.2d 474, 477 (Minn. 1997), and State v. Hoffman, 328 N.W.2d 709, 716-17 (Minn.1982), the concurrence states that, presently, a defendant who pleads not guilty by reason of mental illness or mental deficiency receives a bifurcated trial. See generally Minn.R.Crim. P. 20.02, subd. 6(2). The first phase of the trial determines whether the state has met its burden of proof as to the defendant’s guilt; that is, whether the state has proven all elements of the crime beyond a reasonable doubt. See Minn. R.Crim. P. 20.02, subd. 6(4)(b). If the state carries its burden and the defendant is found guilty, the trial moves to its second phase to determine whether the defendant has established the defense of mental illness. See id.

      However, the bifurcated trial referred to by the concurrence is mandated upon a defendant’s plea of both not guilty and not guilty by reason of mental illness or deficiency. See Minn. R.Crim. P. 20.02, subd. 6(2). Such a double plea was the situation in Schreiber. 558 N.W.2d at 475. In contrast, where á defendant enters only a plea of not guilty by reason of mental illness or deficiency, the trial is not bifurcated. See Minn. R.Crim. P. 20.02, subd. 6(1). Moreover, unlike the situation in Schreiber, in a case where only not guilty by reason of mental illness or deficiency is pleaded, psychological evidence from the defendant’s mental examinations is admissible in the defendant's case-in-chief. See Minn. R.Crim. P. 20.02, subd. 6(1).
      Nonetheless, whatever the Rules of Criminal Procedure presently require, they were not in existence at the time of respondent’s trial as they were not adopted until July 1, 1975. See Act of May 11, 1971, ch. 250, § 1, 1971 Minn. Laws 454, 454, as amended by Act of Apr. 9, 1974, ch. 390, §§ 1-3, 1974 Minn. Laws 697, 697-98, codified at Minn.Stat. § 480.059 (1998); see also State v. Olson, 274 Minn. 225, 233, 143 N.W.2d 69, 74 (1966) ("|T]here are no statutes in this state governing the procedure in cases where the accused pleads insanity as a defense * * *.”). Respondent gave his plea on July 2, 1974, and the jury rendered its verdict on August 12, 1974. As there was no appeal of respondent’s trial, there is no transcript to aid in determining whether his trial was bifurcated. In addition, the record does not contain the jury instructions given by the trial court. However, we do have four verdict forms, all of which were in the jury's possession, and only one of which was signed by the jurors. The verdict forms are as follows: (1) guilty of murder in the first degree; (2) guilty of murder in the second degree; (3) not guilty; and (4) not guilty by reason of insanity. The jury signed the fourth form, finding respondent not guilty by reason of insanity. We believe this to be a strong indication that the trial was not bifurcated, and that the defense of insanity was presented in respondent's case-in-chief.
      Thus, we are puzzled by the concurrence's statement that "[i]t is inappropriate and constitutionally problematic to describe the result of this first phase of a bifurcated trial as a finding of guilt * * It is the majority’s view, deducing from the record before us, that regardless of respondent’s evidence as to capacity, if the state had not met its burden on every element, the juiy would have returned a verdict of not guilty.
      Finally, the concurrence states that, at least in a bifurcated trial, "[a] finding that the defendant lacked the mental capacity to form the requisite intent will generally defeat any objective showing of intent.” While discussing Schreiber, 558 N.W.2d at 480, the concurrence implies that a person adjudged legally insane has been adjudged to lack the mental capacity to form criminal intent. In effect, the concurrence views a successful defense of insanity, mental illness, or mental deficiency as negating a jury finding that the defendant intended to commit the acts charged. While this is one approach, we believe a more accurate description is that a successful defense negates the statutory presumption of responsibility. If the defense truly negated the element of intent, a defendant presumably would be acquitted with a not guilty verdict.


author: PAUL H. ANDERSON, Justice. PAGE, Justice

text:
    John E. BAKER, et al., Respondents, v. John W. PLOETZ, Respondent, Morris, Fuller & Seaver, P.A., petitioner, Appellant.
    C6-98-2144
    Supreme Court of Minnesota.
    Aug. 17, 2000.

      Eric J. Magnuson, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, Richard M. Carlson, Morris, Carlson & Hoelscher, Minneapolis, for appellant.
    Scott A. Johnson, Johnson Law Group LLP, Minnetonka, for respondents Baker.
    John W. Ploetz, St. Paul, pro se.
    Stuart T. Williams, Henson & Efron, P.A., Minneapolis, for amicus curiae MN State Bar Association.
   OPINION

PAUL H. ANDERSON, Justice.

The law firm of Morris, Fuller & Seaver, P.A. appeals a Minnesota Court of Appeals decision holding it liable for treble damages for the fraudulent conduct of its associate attorney, respondent John Ploetz. A jury found that Ploetz committed fraud within the scope of his employment and that respondents John E. Baker and Barbara K. Baker (Bakers) were entitled to $48,000 in damages. The district court then ordered treble damages in the Bakers’ favor against Ploetz, but not against Morris, Fuller & Seaver. The court of appeals affirmed the damages award against Ploetz, but also held Morris, Fuller & Seaver liable for treble damages under Minn.Stat. §§ 481.07 and 481.071 (1998). We reverse.

In September 1993, John Baker responded to Robert Annenberg’s newspaper advertisement seeking investors for real estate properties located throughout the United States. When John Baker contacted Annenberg, Annenberg told him that there were a number of condominium units in Minneapolis that Annenberg’s company, Property Access and Control, planned to purchase with money contributed by investors. According to Annenberg, the purchase price of each unit was $15,500, plus an additional $500 for closing costs. Payment for each unit was to be comprised of a $10,000 contract for deed and $6,000 in cash. John Baker agreed that he and his wife, Barbara, would provide the necessary capital to purchase 12 units for $16,000 each. John Baker later stated that at this time he believed that he, his wife, and Annenberg would be acquiring the properties jointly from Michael Fischer, the man who Annenberg claimed owned the units.

On October 28, 1998, the Bakers signed a partnership agreement with Annenberg for the purpose of owning and operating the 12 units. On November 1, 1998, John Baker met with Fischer to inspect the units and to close the real estate sale. Following the inspection, John Baker went to the law offices of Morris, Fuller & Seaver to meet with Ploetz, whom John Baker understood to be the attorney for the partnership that he and his wife had formed with Annenberg. At that time, Ploetz was a salaried associate attorney at Morris, Fuller & Seaver and was to handle the closing.

The closing took place as scheduled at the law offices of Morris, Fuller & Seaver. At the closing, Ploetz met with John Baker, explained the closing procedure, and presented documents for his review. However, Ploetz had prepared two sets of closing documents, one set reflecting the actual sale from the true sellers to Annen-berg for $13,000 per unit and the other for a fraudulent sale to the Bakers for $16,000 per unit. Ploetz did not disclose to John Baker any of the documents that revealed the actual $13,000 sale price or the names of the true sellers. During the closing, John Baker told Ploetz that he was confused because the documents indicated that he and his wife were being assigned the properties from Property Access and Control rather than acquiring them jointly with Annenberg. Ploetz then assured John Baker that such an assignment was how this type of real estate transaction was structured in Minnesota. Following this assurance, John Baker proceeded with the closing and delivered $72,000 to Ploetz.

The Bakers’ $72,000 payment was deposited in the Morris, Fuller & Seaver trust account. John Baker testified that he believed that all of these funds were to be applied to the $6,000 cash payment due for the down payment and closing costs on each of the 12 units. However, John Baker later learned that the actual purchase price for each unit was only $13,000 and that Michael Fischer was not the actual seller. After closing, Morris, Fuller & Seaver distributed the funds deposited in its trust account. It paid itself $2,600 in attorney fees, paid the settlement charges, refunded $2,769.09 in excess closing costs to the Bakers, and then distributed to Annenberg, without the Bakers’ knowledge or consent, the balance of the funds invested by the Bakers. Annenberg and Property Access and Control subsequently defaulted on the contracts for deed for the 12 units, failing to make the required payments to the true sellers, who then sought payment from the Bakers.

In April 1995, the Bakers commenced an action against Ploetz and Morris, Fuller & Seaver for negligence and fraud in connection with the real estate transaction. In their complaint, the Bakers asserted that they suffered over $50,000 in damages as the result of Ploetz’s fraudulent acts. The case went to trial and a jury found that Ploetz committed fraud within the scope of his employment, that there was an attorney-client relationship between Ploetz and John Baker, and that the Bakers were entitled to $48,000 in damages. The jury also found that Ploetz was negligent, but denied the Bakers any damages arising from that negligence. The Bakers then moved for treble damages against both Ploetz and Morris, Fuller & Seaver under Minn.Stat. §§ 481.07 and 481.071 which classify attorney fraud as a misdemeanor and allow an injured party to collect treble damages. The district court concluded that sections 481.07 and 481.071 permit treble damages against Ploetz. But the court also concluded that sections 481.07 and 481.071 do not permit treble damages against Morris, Fuller & Seaver because there was no evidence of any fraud, deceit, or bad faith on its part.

The Bakers appealed, raising several issues, one of which was a claim that the district court erred in denying the Bakers’ request for treble damages against Morris, Fuller & Seaver. Morris, Fuller & Seaver also appealed, challenging the denial of its Motion for Judgment Notwithstanding the Verdict, New Trial, or Remittitur, and challenging the sufficiency of the evidence to support the judgment.

The court of appeals affirmed the district court’s award of treble damages against Ploetz. See Baker v. Ploetz, 597 N.W.2d 347, 354 (Minn.App.1999). The court of appeals also concluded that the evidence in the record supported the jury’s determination that Ploetz committed fraud while acting in the scope of his employment with Morris, Fuller & Seaver. See id. at 354. The court of appeals then reversed the district court, holding Morris, Fuller & Seaver vicariously liable for treble damages under sections 481.07 and 481.071. See id. at 355. The court of appeals determined that “the liability of a law firm under this statute is based not on its knowledge of or participation in the fraud, but on its employee’s violation of the statute while acting in the scope of employment.” Id. at 352. The court stated that subjecting law firms to treble damages will encourage law firms to carefully monitor their attorneys’ conduct and increase the likelihood that a fraud victim will actually recover a monetary award. See id.

Morris, Fuller & Seaver appealed and we granted review only on the question of whether Moms, Fuller & Seaver was vicariously liable for the treble damages imposed against Ploetz for his fraudulent conduct. Morris, Fuller & Seaver argues that sections 481.07 and 481.071 are unconstitutional because they violate the doctrine of separation of powers. Further, it argues that sections 481.07 and 481.071 are penal in nature, that the statutes must be strictly construed, and that when strictly construed, neither statute applies to it. Finally, Morris, Fuller & Seaver argues that if vicarious liability applies to sections 481.07 and 481.071, liability should only be imposed when the factors for vicarious liability in punitive damages cases are established under Minn.Stat. § 549.20 (1998).

In response, the Bakers argue that under the doctrine of respondeat superior, Morris, Fuller & Seaver is as accountable as its employee for treble damages under sections 481.07 and 481.071. The Bakers challenge Morris, Fuller & Seaver’s statutory construction argument, asserting that the statutes are remedial and not penal in nature, making strict construction unnecessary. Finally, the Bakers assert that Morris, Fuller & Seaver waived its constitutional arguments. In an amicus brief, the Minnesota State Bar Association raised for the first time on review to this court the argument that section 481.07 and section 481.071 do not apply to attorney fraud committed outside the scope of an action or judicial proceeding. Oral arguments took place on February 7, 2000.

After considering the oral and written arguments presented by the parties and amicus curiae, we determined that if we concluded that sections 481.07 and 481.071 apply only to fraud committed within an action or judicial proceeding, we need not address the vicarious liability issue. Therefore, on February 15, 2000, we issued an order for supplemental briefs to address the statutory interpretation issue raised in the amicus brief and supported by Morris, Fuller & Seaver.

I.

The two issues presented here are whether under either section 481.07 or section 481.071 a plaintiff can recover treble damages for attorney fraud that did not occur within the context of an action or judicial proceeding. These are issues of statutory interpretation, which we review de novo. See Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999), cert. denied; Boutin v. Hvass, — U.S.-, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999) (citing In re Blilie, 494 N.W.2d 877, 881 (Minn.1993)).

We first examine the language of Minn.Stat. § 481.07 to determine its application. Minnesota Statutes § 481.07 reads as follows:

An attorney who, with intent to deceive a court or a party to an action or judicial proceeding, is guilty of or consents to any deceit or collusion, shall be guilty of a misdemeanor; and, in addition to the punishment prescribed therefor, the attorney shall be liable to the party injured in treble damages. If the attorney permit[s] any person other than a general law partner to begin, prosecute, or defend an action or proceeding in the attorney’s name, the attorney giving such permission, and every person so using the name, shall forfeit $50 to the party against whom the action or proceeding is prosecuted or defended, recoverable in a civil action.

(Emphasis added.) This statute was first enacted by Minnesota’s territorial legislature in 1851 as part of a chapter regulating the conduct of attorneys. See Rev. St. 1851 (Terr.), ch. 93 § 8. It was subsequently adopted by the state legislature in 1858 and is criminal in nature because it classifies this type of attorney misconduct as a misdemeanor. See Pub. St. 1858, ch. 82, §§ 8, 9.

Morris, Fuller & Seaver argues that the district court and the court of appeals erred in applying section 481.07 to the misconduct in this case. More particularly, it argues that section 481.07 does not apply because Ploetz did not act with the intent to deceive the court or a party to an action or judicial proceeding. Morris, Fuller & Seaver asserts that the plain language of section 481.07 states “in clear and unequivocal terms” that the statute applies to fraud perpetrated by an attorney on the court or a party to an action or judicial proceeding. In support of its interpretation, Morris, Fuller & Seaver directs our attention to a case from our court holding that section 481.07 applies only to attorney fraud occurring within the context of an action or judicial proceeding. See Smith v. Chaffee, 181 Minn. 322, 326, 232 N.W. 515, 517 (1930).

The Bakers respond to this argument in their supplemental brief by contending that there was evidence presented to the district court of deceit and fraud by Ploetz and Morris, Fuller & Seaver that occurred in connection with this judicial proceeding. Thus, the Bakers argue that section 481.07 does apply to the attorney fraud that occurred in this case and the damages against Ploetz and Morris, Fuller & Seaver should be trebled.

When interpreting a statute, we first must determine whether the statute’s language, on its face, is clear or ambiguous. See Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Id. Basic rules of statutory construction instruct that words and phrases are to be construed according to their plain and ordinary meaning, see Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980), and the language of criminal statutes is to be strictly construed, see State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993).

A statute should be interpreted, whenever possible, to give effect to all of its provisions, and “no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Amaral, 598 N.W.2d at 384 (citing Owens v. Federated Mut. Implement & Hardware Ins. Co., 328 N.W.2d 162, 164 (Minn.1983)). Various provisions of the same statute must be interpreted in light of each other. See Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 74, 93 N.W.2d 690, 698 (1958). Finally, courts should construe a statute to avoid absurd and unjust consequences. See Erickson v. Sunset Mem’l Park Ass’n, 259 Minn. 532, 543, 108 N.W.2d 434, 441 (1961). If the language of a statute is ambiguous, courts then turn to the statute’s legislative history to determine how the language should be construed. See Amaral, 598 N.W.2d at 385-86.

We conclude that the language of section 481.07 is not ambiguous. Section 481.07 imposes treble damages on an attorney who intentionally “deceive[s] a court or a party to an action or judicial proceeding.” If we give these words their plain and ordinary meaning, deceiving a court clearly involves a judicial proceeding as opposed to misconduct that occurred outside the context of a judicial proceeding. In section 481.07, the term “party” is modified by the words “to an action or judicial proceeding.” An “action” is defined as “[a] civil or criminal judicial proceeding.” Black’s Law Dictionary 28 (7th ed.1999). Historically, there was a distinction between an action for damages and a suit in equity for equitable relief, but now the two terms are “nearly if not quite synonymous.” See id. at 29; see generally Fed.R.Civ.P. 2. A “proceeding” is “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgement.” Black’s Law Dictionary 1221 (7th ed.1999). A proceeding is more comprehensive than an action, because a proceeding “may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action, including the pleadings and judgment.” See id. (quoting The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899)).

The language of section 481.07 restricts the definition of party to a person involved in an action or judicial proceeding. Our 1930 decision in Smith v. Chaffee supports this interpretation. See Smith, 181 Minn. 322, 232 N.W. 515. In Smith, we held that Section 5689, Gen. St.1923, the predecessor to section 481.07, did not apply to fraud in a real estate transaction because “[t]here was no such action or proceeding pending or under consideration at the time of the deceit here claimed.” Smith, 181 Minn. at 326, 232 N.W. at 517. Thus, based on the plain meaning of the language used in Minn.Stat. § 481.07, we hold that the statute applies only to attorney fraud committed within the context of an action or judicial proceeding.

II.

We next examine the language of section 481.071. The Bakers argue that section 481.071 has a broader application than section 481.07, asserting that it contains language that differs significantly from that in section 481.07. Minnesota Statutes § 481.071 provides that:

Every attorney or counselor at law who shall be guilty of any deceit or collusion, or shall consent thereto, with intent to deceive the court or any party, or who shall delay the attorney’s client’s suit with a view to the attorney’s own gain, shall be guilty of a misdemeanor and, in addition to the punishment prescribed by law therefor, shall forfeit to the party injured treble damages, to be recovered in a civil action.

(Emphasis added.)

Morris, Fuller & Seaver essentially repeats the same arguments with respect to the language of section 481.071 that it made for its interpretation of section 481.07. It asserts that, while § 481.07 contains language explicitly referring to “action or judicial proceeding,” that language is implicit in the context and language of § 481.071. Thus, Morris, Fuller & Seaver argues that section 481.071 does not apply to the misconduct in this case because Ploetz’s acts of fraud were not committed within the context of an action or judicial proceeding. In support of its argument, Morris, Fuller & Seaver directs our attention to holdings of New York courts, which limit the application of identical language to attorney fraud occurring within such a context. Morris, Fuller & Seaver refers us to New York court decisions because in 1885 the language of section 481.071 was adopted, nearly word for word, from a New York penal statute. Compare Minn. Penal Code § 123 (Minn. Gen.Stat. 1891 § 6078) with N.Y. Penal Code § 148, now codified as N.Y. Judiciary Law § 487 (McKinney 1983).

The Bakers respond that the court of appeals correctly applied section 481.071 to treble damages against both Ploetz and Morris, Fuller & Seaver because the legislature “intended both Minn.Stat. §§ 481.07 and 481.071, when read together, to encompass deceit or collusion by any attorney, whether participating in a judicial proceeding or otherwise.” The Bakers contend that because we have consistently held that Minnesota statutes are to be construed so that no word, phrase, or sentence is superfluous, section 481.071 should be given a broader application than section 481.07 and we should hold that section 481.071 applies to attorney fraud that occurs beyond the confines of an action or judicial proceeding.

We begin our analysis by noting that the language of Minn.Stat. § 481.071 is not as clear as the language in section 481.07. Section 481.071 provides for the trebling of damages for attorney fraud committed with the “intent to deceive a court or any party.” Unlike section 481.07, in section 481.071 “party” is not qualified by any language that clearly demonstrates that it refers to those who are a party to an action or judicial proceeding. Thus, the focus of our analysis of section 481.071 is on the meaning of the word “party.”

Defining party, without the qualifying language present in section 481.07, is a complicated task. Party, in the legal sense, means “[o]ne by or against whom a legal suit is brought.” Black’s Law Dictionary 1144 (7th ed.1999). While this legal definition limits a party to those who are part of a legal suit, party is also defined as “[o]ne who takes part in a transaction,” as in a party to a contract. Id. Further, even though party has been described as “a legalism that is unjustified when it merely replaces person,” if it is used as a shortened reference to “party to the contract or party to the lawsuit, party is quite acceptable as a term of art.” A Dictionary of Modern Legal Usage 641 (2d ed.1995).

We have not directly addressed the issue of section 481.071’s applicability or the meaning of the word party within that section. We have stated that sections 481.07 and 481.071 are “virtually identical,” but we made this comment in passing and in a completely different context; therefore, it is not helpful. See Gilchrist v. Perl, 387 N.W.2d 412, 419 (Minn.1986). Morris, Fuller & Seaver claims that we decided in Smith that the predecessor to section 481.071 applied to an attorney who intended to deceive a party to a lawsuit. See Smith, 181 Minn. at 326, 232 N.W. at 517. However, our decision in Smith did not decide whether the statute applied outside of an action or judicial proceeding, but only that the statute did not create a new cause of action. See id.

Not having previously interpreted the specific language of section 481.071, we look to its legislative history for assistance. See Amaral, 598 N.W.2d at 385-86. Minnesota Statutes § 481.071 was enacted in 1885 as part of our legislature’s extensive adoption of the New York Penal Code to comprise the Minnesota Penal Code. See generally Minn. Gen.Stat. ch. 86 (1891) (Kelly) (citing throughout various sections of the New York Penal Code from which the Minnesota Penal Code was taken); Minn. Gen.Stat. § 6078 (1891) (predecessor to section 481.071). The legislature’s word-for-word adoption of the New York Penal Code lessens the likelihood that the legislature considered the specific language of any section of the Code before its adoption. Further, because sections 481.07 and 481.071 were enacted at different times and were not originally codified in the same chapter, there is little support for the assertion that section 481.071 was adopted to address fraud not punished by section 481.07. However, the statute’s legislative history is helpful because it emphasizes the importance of New York law when ascertaining the meaning of the word party as used in the statute.

When a statutory provision is taken from another state after the court of last resort of that state has construed the provision, then it is presumed that the adopting state also adopts the state of origin’s statutory construction. See Marier v. Memorial Rescue Serv., Inc., 296 Minn. 242, 244-46, 207 N.W.2d 706, 708 (1973) (citing Olson v. Hartwig, 288 Minn. 375, 377, 180 N.W.2d 870, 872 (1970)); see also Ewers v. Thunderbird Aviation, Inc., 289 N.W.2d 94, 99 n. 6 (Minn.1979); Minnesota Baptist Convention v. Pillsbury Academy, 246 Minn. 46, 53-54, 74 N.W.2d 286, 291 (1955). Under this rule of construction, when Minnesota enacted section 481.071, it adopted New York’s interpretation of party. Further, this rule carries particular weight - here because New York interpreted the language of its statute just one year before our legislature’s adoption of the identical language.

New York courts have interpreted Judiciary Law § 487, with language identical to section 481.071, as relating

to a case where the attorney intends to deceive the court or his client by collusion with his opponent, or by some improper practice. They do not, we think, include a transaction antecedent to the commencement of the action, as the court could have no connection with any such proceeding. The “party” referred to is clearly a party to an action pending in a court in reference to which the deceit is practiced, and not a person outside, not connected with the same at the time or with the court.

Looff v. Lawton, 97 N.Y. 478, 482 (1884). See also Gelmin v. Quicke, 224 A.D.2d 481, 638 N.Y.S.2d 132, 134 (1996) (relying on Looff to hold that § 487 did not apply because the fraud took place before commencement of the action); Beshara v. Little, 215 A.D.2d 823, 626 N.Y.S.2d 310, 311 (N.Y.App.Div.1995) (holding that § 487 did not apply because the fraud did not take place in the context of a pending judicial proceeding); Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 A.D.2d 384, 590 N.Y.S.2d 201, 203 (1992) (holding that § 487 did not apply because the deceit did not occur during a pending judicial proceeding in which plaintiff was a party); Nardella v. Braff 621 F.Supp. 1170, 1172 (S.D.N.Y.1985) (holding that § 487 did not apply because no action was ever filed).

We find further support for this interpretation of the word party in the decision of the only other state to have interpreted language nearly identical to that in section 481.071. Montana construes party, in a similar statute, to apply to attorney fraud committed within the context of an action or judicial proceeding. See Mont.Code Ann. § 37-61-406 (1999). In 1984, the Montana Supreme Court refused to apply section 37-61-406 to allow an award of treble damages because the case did not involve “deceit practiced upon the court or the adverse party during the litigation process.” Eaton v. Morse, 212 Mont. 233, 687 P.2d 1004, 1010 (1984).

The Bakers argue that this interpretation of the word party conflicts with three other rules of statutory interpretation. They argue that statutes should be interpreted to give effect to all of their provisions. See generally Amaral, 598 N.W.2d at 384. They contend that if we interpret section 481.071 to apply only in an action or judicial proceeding, it will have the same application as section 481.07, causing the first part of section 481.071 to have no effect. The Bakers next argue that the New York interpretation, when applied to section 481.071, violates the rule of statutory interpretation directing courts to construe statutes to avoid absurd results and unjust consequences. See Erickson, 259 Minn, at 543, 108 N.W.2d at 441. They assert that if section 481.071 is read to apply only to litigation fraud, an attorney who commits fraud in a court proceeding will be subject to treble damages whereas the fraud of an attorney who writes a will, negotiates a contract, creates a trust, or participates in a real estate transaction would not be subject to the same penalty. They contend that it is absurd that an attorney who commits fraud can avoid treble damages when the matter does not involve an action or judicial proceeding. Finally, the Bakers also argue that interpreting section 481.071 as applying only to fraud in court leads to unjust results because fraud victims whose matters do not involve an action or judicial proceeding do not have the same remedy as a victim whose fraud occurred within the bounds of an action or judicial proceeding.

While we agree that some of the rules of statutory construction cited by the Bakers conflict with our adoption of the New York and Montana definition of party, we conclude other rules of construction mandate our adoption of this definition. Because section 481.071 makes attorney fraud a misdemeanor, it is a criminal statute. The rules of statutory construction require that a criminal statute be strictly construed. See Zacher, 504 N.W.2d at 473. This rule of strict construction as applied to the interpretation of penal statutes requires that all reasonable doubts concerning legislative intent be resolved in favor of the defendants. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982). We have said that before “a person may be subject to criminal liability, it must be reasonably certain that the statute or ordinance renders his conduct a criminal offense.” Wong v. American Family Mut. Ins. Co., 576 N.W.2d 742, 745 (Minn.1998) (quoting State v. Larson Transfer and Storage, Inc., 310 Minn. 295, 304, 246 N.W.2d 176, 182 (1976)). Therefore, a narrow definition must be applied to section 481.071 so as not to criminally punish individuals or actions beyond what the legislature intended. See generally State v. Larson, 605 N.W.2d 706, 713-14 (Minn.2000).

Further, we do not agree with the Bakers’ argument that it is absurd or unjust to punish more severely attorney fraud committed on the court or within the context of a judicial proceeding. There is plausible concern about attorneys who, having taken an oath to uphold justice, engage in fraudulent behavior intended to deceive a party to an action or proceeding before the court. This type of fraud damages the integrity of the judicial system and weakens the faith of the citizenry in the third branch of the government. Reading section 481.071 as enforcing a more severe punishment on attorneys who commit fraud within an action or judicial proceeding is not an absurd or unjust interpretation.

For all of the foregoing reasons, we conclude that when the legislature adopted New York’s penal code by enacting section 481.071 over 100 years ago, it in effect adopted New York’s interpretation of the word “party.” If the definition of this word is to be changed, it must be changed by the legislature, not by us. Therefore, we hold that section 481.071 applies only to attorney fraud committed in the context of an action or judicial proceeding. Accordingly, we reverse the district court’s award of treble damages against Ploetz and the court of appeals’ award of treble damages against Morris, Fuller & Seaver. However, because the district court incorrectly interpreted and applied both section 481.07 and section 481.071 and did not determine whether attorney fraud was committed in the context of an action or judicial proceeding, we remand to the district court for a determination of whether Ploetz or Morris, Fuller & Seaver committed fraud in the context of an action or judicial proceeding.

Because our conclusions pertaining to the proper interpretation of sections 481.07 and 481.071 are dispositive, we conclude that there is no need for us to reach Morris, Fuller & Seaver’s separation of powers argument.

Reversed and remanded.

PAGE, Justice

(dissenting).

I respectfully dissent. It is the constitutional responsibility of this court to regulate the practice of law. See In re Integration of Bar of Minnesota, 216 Minn. 195, 199, 12 N.W.2d 515, 518 (1943). That responsibility includes protecting the public from unscrupulous attorneys. See In re Isaacs, 451 N.W.2d 209, 211 (Minn.1990). We have recognized this responsibility since at least 1945. See In re Smith, 220 Minn. 197, 199, 19 N.W.2d 324, 325 (1945). We have also recognized our responsibility to guard the administration of justice as well as to deter future misconduct by attorneys. See Isaacs, 451 N.W.2d at 211.

Today, the court neglects those responsibilities by holding that Minn.Stat. § 481.071 does not apply to attorney fraud perpetrated on a client outside of a judicial proceeding. Implicit in that holding is the notion that attorney fraud committed in a court or in a judicial proceeding is somehow more serious than attorney fraud committed outside of a court or judicial proceeding. In fact, attorney fraud, wherever it occurs, is extremely serious and certainly attorney fraud on a client that occurs outside of a court or judicial proceeding is neither less serious nor less harmful than that which occurs in court or within a judicial proceeding.

The real question here is whether we are going to protect the interests of attorneys and law firms or those of the public. For me, that is an easy question to answer. New York jurisprudence notwithstanding, I would vindicate our constitutional responsibility as well as give meaning to the language of Minn.Stat. § 471.071 by holding that the term “party,” as used in the statute, includes parties to transactions outside of judicial proceedings and that section 481.071 applies to those parties.

      . On July 6, 1994, the Bakers released Robert Annenberg ''from all claims and liability regarding these condominiums in the past, present, and future.”

      . Although Ploetz submitted a brief to the court of appeals, he did not do so for this court. On October 29, 1996, Ploetz signed a Stipulation for Dispensing with Panel Proceedings, for Filing Petition for Disciplinary Action, and for Disbarment and this court officially disbarred him on December 20, 1996.

      . Montana Code Annotated § 37-61-406 (1999) provides that "An attorney or counsel- or who is guilty of any deceit or collusion or consents to any deceit or collusion with intent to deceive the court or a party forfeits to the party injured by his deceit or collusion treble damages. He is also guilty of a misdemean- or.” (Emphasis added.)


author: PAGE, Justice.

text:
    AMERICAN FAMILY INSURANCE GROUP, petitioner, Appellant, v. Harold L. SCHROEDL, Respondent.
    No. C7-99-428.
    Supreme Court of Minnesota.
    Aug. 24, 2000.

      Rider, Bennett, Egan & Arundel, LLP, Eric J. Magnuson, Jeanne H. Unger, Minneapolis, for appellant.
    Blomquist & Espeset, Robert V. Espes-et, Barry L. Blomquist, Minneapolis, for respondent.
    Lommen, Nelson, Cole & Stageberg, P.A., Kay Nord Hunt, Minneapolis, amicus curiae for The Insurance Federation of Minnesota.
   OPINION

PAGE, Justice.

Respondent, Harold Schroedl, suffered a severe closed-head injury when he was hit by a car on December 6, 1997. Because of the accident, Schroedl was incapacitated and resided in a nursing home until he died in December 1998. Although Schroedl was retired at the time of the accident, he owned income-producing rental property that he managed and maintained. Because he was incapacitated after the accident, he was no longer able to maintain the rental property. As a result, Schroedl’s son and others were hired and paid to maintain the property. At the time of his injuries, Schroedl had an automobile insurance policy with appellant, American Family Insurance Group. Schroedl filed a no-fault insurance claim with American Family for “replacement services” or, in the alternative, a claim for wage loss to recover the amount expended hiring his son and others to maintain the rental property. American Family denied Schroedl’s claim, contending that when Schroedl purchased the no-fault insurance policy from American Family, he elected to exclude coverage for “work loss” and that the exclusion was still in effect on December 6,1997.

After American Family’s denial of the claim, the matter proceeded to arbitration. The arbitrator ruled that Schroedl was entitled to recover income loss benefits and that those benefits were not barred by his insurance policy’s “work loss” exclusion. In addition, the arbitrator noted that American Family had not complied with its responsibility under Minn.Stat. § 65B.491 to inquire about Schroedl’s need for wage loss reimbursement coverage. American Family appealed to the district court, which vacated the arbitrator’s award based on its finding that Schroedl’s policy with American Family specifically excluded “work loss” benefits from coverage. Schroedl appealed and the court of appeals reversed, holding that American Family had an ongoing statutory duty to inquire whether Schroedl needed wage loss reimbursement coverage and, having failed to make such inquiry, was precluded from denying coverage.

In 1992, at the age of 72, Schroedl purchased the initial policy from American Family. Consistent with the no-fault insurance scheme, the policy provided mandatory benefits for basic economic loss as required by Minn.Stat. § 65B.49. Basic economic loss benefits encompass income loss benefits including “costs incurred by a self-employed person to hire substitute employees to perform tasks which are necessary to maintain” income. Minn.Stat. § 65B.44, subd. 3 (1998). Income includes wages, see Minn.Stat. § 65B.43, subd. 6 (1998), and loss means “economic detriment resulting from the accident” and includes losses resulting from replacement services. Minn.Stat. § 65B.43, subd. 7 (1998).

Minnesota Statutes § 65B.491 provides an exception to the mandatory basic economic loss benefits required by section 65B.49. Section 65B.491 provides that:

[N]o plan of reparation security issued to or renewed with a person who has attained the age of 65 years may provide coverage for wage loss reimbursement that the insured will not reasonably be expected to be able to receive. It is the responsibility of the person issuing or renewing the plan to inquire as to the applicability of this section.

Id.

In its effort to comply with the provisions of Minn.Stat. § 65B.491, the American Family application Schroedl filled out when he applied for the initial plan contained the following provision:

EXCLUSION OF WORK LOSS UNDER PERSONAL INJURY PROTECTION COVERAGE * * * *
I also acknowledge and agree that I have been given the opportunity to exclude Work Loss Coverage under the Minnesota Personal Injury Protection (PIP) Endorsement and I select to:
(Check Only One Box)
□ Keep work loss
□ Exclude work loss ⅜ ⅜ ⅜ ⅜
I understand and agree that this ac-knowledgement of coverage selection or rejection of * * * work loss * * * will apply until I subsequently request a change in writing.

In filling out the application, Schroedl checked the “Exclude work loss” option and did not, during the initial policy period or at any subsequent renewal, request a change in writing.

I.

This case asks us to resolve three questions. First, we are asked to decide whether it is the insurer or the insured that is required under Minn.Stat. § 65B.491 to make the ultimate decision with respect to the insured’s need for wage loss reimbursement coverage. Second, we are asked to decide whether section 65B.491 requires an insurer to inquire as to the insured’s need for wage loss reimbursement coverage at each renewal of a plan of reparation security after the insured has reached the age of 65. Finally, we are asked to decide whether Schroedl’s expenditures for maintenance of his rental property during his incapacity resulting from the automobile accident are recoverable under section 65B.491. Each of these questions requires us to engage in statutory construction. Therefore, our review is de novo. See Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999) (citing In re Blilie, 494 N.W.2d 877, 881 (Minn.1993)), cert. denied sub nom. Boutin v. Hvass, — U.S.-, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999).

When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. See Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Id. Basic canons of statutory construction instruct that we are to construe words and phrases according to their plain and ordinary meaning. See Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). A statute should be interpreted, whenever possible, to give effect to all of its provisions; “no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Amaral, 598 N.W.2d at 384 (citing Owens v. Federated Mut. Implement & Hardware Ins., 328 N.W.2d 162, 164 (Minn.1983)). We are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations. See Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 73-74, 93 N.W.2d 690, 698 (1958); see also Erickson v. Sunset Mem’l Park Ass’n, 259 Minn. 532, 543, 108 N.W.2d 434, 441 (1961). Finally, courts should construe a statute to avoid absurd results and unjust consequences. See Erickson, 259 Minn. at 543, 108 N.W.2d at 441. When construing a statute, our goal is to ascertain and effectuate the intention of the legislature. See Amaral, 598 N.W.2d at 385-86.

While statutory construction focuses on the language of the provision at issue, it is sometimes necessary to analyze that provision in the context of surrounding sections. See Van Asperen, 254 Minn. at 74, 93 N.W.2d at 698; Erickson, 259 Minn. at 543, 108 N.W.2d at 441. This is one of those cases. The operation of Minn.Stat. § 65B.491 only becomes clear when it is read in conjunction with the rest of the No-Fault Act. See generally Minnesota No-Fault Automobile Insurance Act. Minn.Stat. §§ 65B.41-65B.71 (1998). Therefore, we begin our discussion with a brief review of the Minnesota No-Fault Automobile Insurance Act.

The Act’s purpose is to relieve “the severe economic distress of uncompensated victims of automobile accidents within this state.” MinmStat. § 65B.42, subd. 1 (1998). To ensure that the Act’s purpose is met, an insurer may not provide less coverage than that required by the Act. See Hertz Corp. v. State Farm Mut. Ins. Co., 573 N.W.2d 686, 689-90 (Minn.1998). The “ ‘insurer’s liability is governed by the contract between the parties only as long as coverage required by law is not omitted and policy provisions do not contravene ’ ” the Act. Id. (quoting Streich v. American Family Mut. Ins. Co., 358 N.W.2d 396, 399 (Minn.1984)); see American Nat’l Property & Cas. Co. v. Loren, 597 N.W.2d 291, 292 (Minn.1999). The Act mandates, with one limited exception, that basic economic loss benefits be included in every plan of reparation security. See Minn.Stat. § 65B.49, subd. 2; Minn.Stat. § 65B.491. Basic economic loss benefits include income loss benefits. See Minn.Stat. § 65B.44, subd. 3. Wage loss reimbursement is a subset of income loss benefits. See generally Minn.Stat. § 65B.43, subds. 6-7.

Under limited circumstances, the Act precludes a plan of reparation security from including coverage for wage loss reimbursement. Those circumstances are found in MinmStat. § 65B.491, which provides that:

[N]o plan * * * issued to or renewed with a person who has attained the age of 65 years may provide coverage for wage loss reimbursement that the insured will not reasonably be expected to be able to receive. It is the responsibility of the person issuing or renewing the plan to inquire as to the applicability of this section.

Id. (emphasis added). The language categorically prohibits an insurer from providing coverage for wage loss reimbursement to an insured who is 65 years of age or older and who will not reasonably be expected to be able to receive “a benefit” from the coverage. See id.

Of note is the fact that the language of sections 65B.49 and 65B.491 places the burden on the insurer to either include or exclude coverage for wage loss reimbursement, for it is the insurer and only the insurer who provides the plan of reparation security. The language of section 65B.491 does not make reference, either explicitly or implicitly, to the insured being able to elect to keep or reject coverage for wage loss reimbursement. Regardless of whether the insured wants coverage for wage loss reimbursement, the insurer has to comply with both statutes. Pursuant to section 65B.49, subd. 2, all plans of reparation security issued “shall provide” payment for economic loss benefits, including wage loss reimbursement coverage. Therefore, if the insured is reasonably expected to benefit from wage loss reimbursement coverage, whether the insured wants it or not, the insurer must provide it to comply with the statute. Pursuant to section 65B.491, “no plan * * * may provide” coverage for wage loss reimbursement if the insured is 65 years of age or older and will not reasonably be expected to be able to receive a benefit from the coverage. MinmStat. § 65B.491 (emphasis added). Therefore, if the insured cannot reasonably be expected to benefit, the insurer cannot write a plan containing that coverage, even if the insured would like to have it. Based on the language the legislature has chosen for the two relevant statutes, we see no other way to reconcile them. Either a plan must include coverage for wage loss reimbursement, or it cannot. There is no provision in the No-Fault Act for the insured to choose. Sections 65B.49, subd. 2, and 65B.491, when read together, do not provide the insured with a waiver or an “opt out” provision. Rather, they instruct the insurer about what must be and what cannot be included in a plan.

Because the substantive impact of section 65B.491, when read together with section 65B.49, subd. 2, is to establish a standard for when the insurer must or must not include wage loss reimbursement coverage in a plan, it follows that it is the insurer who must make the decision required by section 65B.491. It is not sufficient for the insurer to simply inquire as to whether the insured does or does not elect to receive wage loss reimbursement and provide coverage accordingly. The inquiry to be made is whether the insured, who is 65 years of age or older, may personally be expected to be able to receive wage loss reimbursement.

II.

It appears from Minn.Stat. § 65B.491’s language that its purpose is to protect people 65 years of age and older, who no longer earn wages, from being required to pay a premium for insurance coverage for which they have no need and from which they cannot reasonably expect to receive a benefit. Given that purpose, the language of section 65B.491, when read in conjunction with section 65B.49, makes a number of things clear. First, every plan of reparation security must provide income loss benefits, including wage loss reimbursement coverage, except as provided for in section 65B.491. See MinmStat. § 65B.49, subd. 2; MinmStat. § 65B.43, subds. 6-7. Second, insurers are prohibited from providing coverage for wage loss reimbursement to someone who has reached the age of 65 if they will not reasonably be able to receive a benefit from that coverage. See MinmStat § 65B.491. Third, the legislature placed the burden on insurers to inquire of their insureds who are 65 years of age or older as to whether the insured will reasonably be expected to receive wage loss reimbursement if injured in an accident. See id. Finally, it is also clear that an insurer must make an inquiry when issuing a new plan to anyone who has reached the age of 65 and when renewing the plan of an insured who turned 65 during the previous policy period. See id. What is less clear is whether the insurer has the duty to inquire at every renewal subsequent to the first inquiry. We turn now to that issue.

American Family makes a number of arguments to support its contention that the court of appeals erred when it concluded that Minn.Stat. § 65B.491 requires an insurer to inquire as to whether the insured will reasonably be expected to be able to receive wage loss reimbursement benefits at each plan renewal for insureds 65 years of age or older. American Family first contends that the requirements of section 65B.491 are akin to, and should be treated the same as, statutorily mandated offers of optional coverage. American Family also contends that the plain language of section 65B.491 directs that the duty of inquiry extends only to those insureds 65 and over who currently have work loss coverage in their policy. Their argument, as stated in their brief to this court, is:

The specific inquiry required by the second sentence [of section 65B.491] is an inquiry about applicability of the first sentence: whether the policy provides “coverage for wage loss reimbursement that the insured will not reasonably be expected to be able to receive.” Thus, the duty of inquiry under the second sentence is limited to asking those senior insureds who have wage loss reimbursement coverage whether they want to decline it - there is no duty to make any inquiry of seniors who have already waived the coverage.

(Appellant’s Br. at 16-17.) On that basis, American Family argues that because Schroedl waived coverage when he first purchased his policy in 1992, it had no further duty to inquire about the applicability of section 65B.491.

American Family next argues that use of the disjunctive word “or” in the second sentence of section 65B.491 suggests that only one inquiry need be made, either when a policy is issued to a person 65 and over or when a policy is renewed by a person who turned 65 within the last policy period. American Family contends that the legislature would have used the word “and” if it had intended to create a duty to inquire at every renewal.

American Family’s arguments are unpersuasive. While American Family asserts that the statutory exception to mandated coverage found in section 65B.491 is similar to mandated offers of optional coverage, it provides no support for that proposition. In fact, they are not similar or akin to each other. The coverage involved in mandated offers of optional coverage is just that, optional. The insured may decide to accept or reject the coverage. Once the decision is made, there is no pressing need to revisit it. That is not the case with mandatory coverage. As discussed above, an insurer may not provide less than the minimum coverage required by the Act. See Hertz Corp., 573 N.W.2d at 688-90. The wage loss reimbursement coverage involved here is mandatory and must be included in every plan of reparation security unless the insured is 65 years of age or older and “will not reasonably be expected to be able to receive” a benefit from it, in which case the plan may not provide it and the insured’s premium must be reduced accordingly. Minn.Stat. § 65B.491. The only way for the insurer to comply with the mutually exclusive provisions of section 65B.49, subd. 2, and section 65B.491 is to inquire at the time of each renewal for insureds 65 years of age or older.

The language of section 65B.491 does not turn wage loss reimbursement into optional coverage when the insured turns 65. The second sentence of section 65B.491 requires the insurer to inquire as to the “applicability of this section.” Significantly, the statute does not, by its terms, require or authorize an inquiry as to whether the insured desires to retain or omit the coverage, but only an inquiry about the applicability of the section which prohibits coverage for reimbursement that the insured would not reasonably be expected to receive. In other words, the insurer must inquire whether the insured can reasonably be expected to receive the benefits of the coverage. If the answer is yes, coverage remains mandatory; if no, coverage is prohibited. This compels the conclusion that the coverage is not an option for the insured to exercise or waive.

The problem with American Family’s argument that the language of the policy states that insurers are only required to inquire of insureds who currently have work loss coverage in their policy is that, as discussed above, section 65B.491 does not provide a vehicle for the insured to waive coverage for wage loss reimbursement. The concern of section 65B.491 is not whether the insured would select or reject the coverage, but whether an insurer may provide a plan of reparation security containing coverage for wage loss reimbursement to a person 65 years of age or older. American Family’s argument is that an insurer need not inquire about the applicability of a statute that prohibits specific coverage if that coverage is not in force. However, because the coverage is mandatory if section 65B.491 is not applicable, in applicability of the section is equally important in determining the insurer’s obligation. This necessitates inquiry even if coverage is not currently provided.

American Family vigorously argues that the word “or” in the second sentence of section 65B.491 should be read in the disjunctive. We agree that the legislature intended the word “or” in section 65B.491 to be disjunctive. That conclusion, however, does not end our inquiry, nor does it assist American Family’s case. American Family’s reading of the word “or” would have us ignore the legislature’s intent in enacting section 65B.491. That intent is set out in the first sentence of section 65B.491, which states that “no plan of reparation security issued to or renewed * * * may provide coverage for wage loss reimbursement * * The legislature used the disjunctive “or” to make clear that two separate acts are prohibited. The first prohibited act is the issuance of a plan of reparation security providing coverage for wage loss reimbursement to a person 65 years of age or older who will not reasonably be expected to be able to receive the wage loss reimbursement. The second prohibited act is the renewal of a plan of reparation security containing coverage for wage loss reimbursement with a person 65 or older who cannot reasonably expect to receive wage loss reimbursement. That interpretation of the word “or” is consistent with the reading we gave to the word “or” in State v. Rossow, 310 Minn. 899, 401-02, 247 N.W.2d 398, 400 (1976) (explaining that the disjunctive “or” is used to show that the evidence is admissible on either of two separate grounds). The use of the disjunctive phrase “issuing or renewing” in the second sentence of section 65B.491 parallels the first sentence, requiring the insurer to make the required inquiry whether it is performing the act of issuing or renewing a plan of reparation security.

The section 65B.491 exception to otherwise mandatory coverage under the Act is intended to protect insureds who are 65 years of age or older and no longer earn wages from being required to purchase coverage that cannot reasonably be expected to provide them a benefit. The statute is not intended to eliminate mandatory coverage for which the insured has a need. Therefore, reading section 65B.491 in conjunction with "section 65B.49, subd. 2, we conclude that insurers must make the inquiry required under section 65B.491 at every renewal of a plan of reparation security to ensure both that the insureds who are 65 years old or older are being provided all coverage mandated by the Act and that they are not being provided coverage which the insurer is prohibited from selling them.

Because American Family’s failure to inquire at every renewal violated the No-Fault Act, the statutory exclusion of wage loss reimbursement coverage provided in section 65B.491 cannot be applied to Schroedl’s policy and Schroedl is therefore entitled to the full scope of mandatory basic economic loss coverage, including coverage for wage loss reimbursement.

Affirmed.

      . Minnesota Statutes § 65B.491, in its entirety, reads:
      After August 1, 1987, no plan of reparation security issued to or renewed with a person who has attained the age of 65 years may provide coverage for wage loss reimbursement that the insured will not reasonably be expected to be able to receive. It is the responsibility of the person issuing or renewing the plan to inquire as to the applicability of this section. The rate for any plan for which coverage has been excluded or reduced pursuant to this section must be reduced accordingly. This section does apply to self-insurance.

      . Minnesota Statutes § 65B.49, subd. 2, provides: "Each plan of reparation security shall provide for payment of basic economic loss benefits.”

      . In Randall v. State Farm Mut. Auto. Ins. Co., 335 N.W.2d 247, 250 (Minn.1983), this court held that mandated offers of optional coverage need only be made once. See also Hastings v. United Pac. Ins. Co., 318 N.W.2d 849, 851, 853 (Minn. 1982); League Gen. Ins. Co. v. Tvedt, 317 N.W.2d 40, 42-43 (Minn.1982).

      . As for American Family's argument that had the legislature intended to create an ongoing duty to inquire at each renewal, it would have used the word “and;” it can be just as easily argued that had the legislature intended to require insurers to make only one inquiry, it could simply have added a sentence at the end of what is now section 65B.491 stating: "The insurer need only inquire once, either when a plan is issued to a person who is 65 years of age or older or at the first renewal after a person turns 65 years of age.” But the legislature did not. Moreover, "every use of 'and' or 'or' as a conjunction involves some risk of ambiguity.” Maurice B. Kirk, Legal Drafting: The Ambiguity of "And” and "Or,” 2 Texas Tech L.Rev. 235, 253 (1971). Both "and” and "or” are equally ambiguous because both are subject to multiple interpretations, some of which may be the same. For instance, "and” can have a joint or a several meaning while "or,” commonly thought to be exclusive, can also be inclusive, depending on the context. In fact, Professor Reed Dickerson noted that "observation of legal usage indicates that the tendency is to use 'or' in the inclusive sense.” Id. at 238 (emphasis added) (citing Reed Dickerson, The Fundamentals of Legal Drafting, 77-78, 84 (1965)). In order to ascertain the legislature’s intent with respect to the use of the word "or,” the word must be considered in context. See Erickson, 259 Minn. at 543, 108 N.W.2d at 441 (construing a statute in light of related statutes).

      . Because we hold that the statutory exclusion of wage loss reimbursement coverage does not apply here, we need not address the third issue raised by American Family— whether the money expended by Schroedl in hiring his son and others to maintain his rental property constituted wage loss within the meaning of section 65B.491. While we decline to reach this issue, we note with some concern, that the American Family plan at issue here, instead of referring to coverage for “wage loss reimbursement,” refers to "work loss coverage,” a term found nowhere in section 65B.491 or in any of the statutory provisions that describe basic economic loss coverage.


author: DAVIES, Judge.

text:
    STATE of Minnesota, Respondent, v. Randall Orion HUSTON, Appellant.
    No. C3-00-725.
    Court of Appeals of Minnesota.
    Aug. 22, 2000.

      Mike Hatch, Attorney General, St. Paul; and Michael K. Riley Sr., Nicollet County Attorney, Jerold M. Lucas, Assistant County Attorney, St. Peter, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by DAVIES, Presiding Judge, AMUNDSON, Judge, and STONEBURNER, Judge.
   OPINION

DAVIES, Judge.

Appellant Randall Orion Huston challenges his sentence under the “career-offender statute.” He argues that he does not have the five “prior felony convictions” required by that statute. We agree and reverse the departure.

FACTS

Appellant has a lengthy felony record for property crimes, including one 1996 conviction (theft), three 1999 convictions (motor-vehicle theft, forgery, and attempted theft), and two January 2000 convictions (motor-vehicle theft and third-degree burglary).

Later in January 2000, appellant pleaded guilty to an additional felony offense: theft. On this theft charge, he was sentenced under the career-offender statute to 45 months in prison, an upward departure from the presumptive 30-month sentence.

ISSUE

Did the trial court err in sentencing appellant under the career-offender statute?

ANALYSIS

Minn.Stat. § 609.1095, subd. 4 (1998) (the “career-offender statute”), permits the sentencing court to depart from the presumptive guidelines sentence

if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

(Emphasis added.) Subdivision 1 of this section provides the following definition: As used in this section * * * *.

“Prior conviction” means a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section.

Minn.Stat. § 609.1095, subd. 1 (1998). Appellant argues that this statutory definition for “prior conviction” should logically also be applied to the term “prior felony conviction,” the term used in subdivision 4. If it is so applied, five sequential felony offenses and convictions are required (i.e., offense/conviction, offense/conviction, offense/conviction, etc.). And, if so applied, appellant has only three prior felony convictions because he committed a string of offenses in 1999 before any of them resulted in a conviction.

The following shows the sequential order in which these offenses and resultant convictions should have been counted under appellant's reading of the statute:

1. Auguat 1996: 1. November 1996: March 1999: March 1999: 2. May 1999: 2. June 1999: June 1999: 2. July 1999: Cctober 1999: 9. Cctobcr 1999: January 2090: Cffeuae: Cunviction: Cffeuae: Cffeuee: Cffenae: Conviction: Cffeuae: Cffeuae: Conviction: Conviction: Conviction: Convictiun: theft (Scott Coooty) for Auguet 1996 theft (Scott County) motor-vehicle theft (Beltram( County) third-degree burglary (Beltra-mi County) motor vehicle theft (Lake County) for May 1999 meter-vehicle theft (Lake County) forgery (Stearne County) attempted theft (Stearne County) for June 1999 forgery (Stearna County) fur July 1999 attempted theft (Stearue County) fur March 1999 motor-vehicle theft (Beltrami County) fur March 1999 third-degree burglary (Beltrami Caunty)

Whether the statutory definition of "prior conviction" also applies to the term "prior felomy conviction" involves statutory interpretation. Statutory interpretation seeks to ascertain and effectuate the intention of the legislature. Minn.Stat. § 645.16 (1998). Interpretation of a statute is subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

We agree with appellant and hold that the "prior conviction" definition should also be applied to the phrase "prior felony conviction." The phrases are almost identical and the defined term is the more inclusive. In addition, the sequencing requirement better serves the general purpose of the statute by permitting five full "postconviction opportunities for reform." See, e.g., State v. Spears, 560 N.W.2d 723, 727-28 (Minn.App.1997) (interpreting similar language under the repeat sex~offender statute), review denied (Minn. May 28, 1997). This sequencing requirement also excludes prejudicial use of multiple convictions resulting from a short crime spree, which is not what the career-offender statute contemplated.

This interpretation also complies with the general rule that an ambiguity in a criminal statute should be resolved in favor of leniency to the defendant. Minnesota follows that rule. State v. Collins, 580 N.W.2d 36, 41 (Minn.App.1998), review denied (Minn. July 16, 1998). If the "prior felony conviction" phrase is viewed as undefined, it is ambiguous; and, appl~ying the rule of lenity, we resolve the ambiguity in favor of the defendant.

DECISION

Because appellant does not have five prior felony convictions, he was improperly sentenced under the career-offender statute. We reverse the departure and modify his theft sentence to 30 months.

Reversed.