IN COURT OF APPEALS
State of Minnesota,
Cheyenne Douglas Lussier,
Beltrami County District Court
File No. K6-03-813
John M. Stuart, State Public
Defender, Susan J. Andrews, Assistant State Public Defender,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Timothy R. Faver, Beltrami County Attorney, Judicial Courts Annex, 619 Beltrami Avenue, Suite 40, Bemidji, MN 56601 (for respondent)
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*
To establish a violation of the right to due process based on pre-charge delay, a defendant must establish that a pre-charge delay substantially prejudiced the defendant’s right to a fair trial and that the state intentionally caused such delay in order to gain a tactical advantage over the defendant.
Appellant asserts that his right to due process was violated because the state intentionally delayed charging him with first-degree burglary in order to obtain a substantially increased criminal history score and sentence. We affirm.
On March 15, 2003, hours after police received a report of a home burglary, appellant Cheyenne Lussier was arrested. On March 18, 2003, in connection with this incident, the state charged Lussier with one count of second-degree burglary, in violation of Minn. Stat. § 609.582, subd. 2 (2002); one count of third-degree burglary, in violation of Minn. Stat. § 609.582, subd. 4 (2002); and three counts of attempted theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (2002). Lussier subsequently pleaded guilty to these charges, and on May 5, 2003, Lussier was sentenced to 33 months’ imprisonment.
On March 21, 2003, while Lussier was in custody for the March 15 burglary, he admitted his involvement in a home burglary committed on November 27, 2002. On May 7, 2003, the state charged Lussier with one count of first-degree burglary with a dangerous weapon, in violation of Minn. Stat. § 609.582, subd. 1(b) (2002), for the November 27 offense. Lussier moved to dismiss this charge, alleging prosecutorial misconduct and violation of his right to due process. According to Lussier, the state had probable cause to charge him with the November 27 burglary before it was charged on May 7, but the state delayed prosecution of the November 27 burglary offense so that the convictions of the March 15 offenses would increase the severity of his criminal history score for the November 27 burglary.
In support of this assertion, Lussier relied on a statement by the prosecutor at the guilty plea hearing on the March 15 offenses. Regarding the sentences on the five counts, as well as the sentence executed upon the revocation of probation on another offense, the prosecutor explained to the district court, “I looked for a way to make them consecutive, but I couldn’t find it. So that is my understanding, that under the Guidelines, they would be concurrent sentences, Your Honor.” Lussier argued that, because the state’s prior attempt at securing consecutive sentences had been frustrated, the state improperly delayed prosecution of the November 27 offense to increase the severity of the sentence. The convictions arising from the March 15 incident increased Lussier’s criminal history score from three to six and increased his presumptive guideline sentence from 78 to 108 months.
The state denied the allegations of bad faith or improper motive. In its order dated August 4, 2003, the district court denied Lussier’s motion to dismiss.
Lussier pleaded guilty to first-degree burglary with a dangerous weapon on December 3, 2003. Relying on its argument that the state had delayed prosecution to obtain a more severe sentence, Lussier moved for a downward durational departure. He sought a sentence of 78 months, based on a criminal history score that did not reflect the convictions of the March 15 offenses. The district court denied the departure motion and sentenced Lussier to 108 months’ imprisonment. This appeal followed.
argues that his sentence was imposed in violation of his right to due process
because the state intentionally delayed charging him with the November 27
offense in order to obtain a substantially increased criminal history score,
resulting in a longer sentence. Whether a sentence violates the right to due
process is a question of law, which we review de novo. See State v. Gutierrez, 667 N.W.2d
426, 438 (
In United States v. Marion, 404
Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.
a threshold consideration is whether prejudice can be based on a pre-charge
delay that affects sentencing. Such a
broad definition of prejudice cannot be derived from
note that our decision in Klindt is contrary to the majority rule in
other jurisdictions that have considered the issue. When a pre-charge delay affects only
sentencing, some jurisdictions characterize the potential prejudice as
If a due process challenge to a sentence
imposed following a guilty plea were permitted to proceed on the basis of a pre-charge
delay, we would then consider whether Lussier could establish a violation of
due process. Although authorities have
not adopted a uniform standard as to the defendant’s burden for this claim,
most require the defendant to prove both substantial prejudice and improper
Several principles limit the scope of
substantial prejudice based on a prosecutor’s exercise of discretion as to when
and whether to proceed with criminal charges.
Some courts have suggested that, when a delay
results in a disproportionate criminal history, there is sufficient prejudice
to require a downward durational departure.
Brockman, 183 F.3d at 897;
Our research has produced only two cases that have considered whether a pre-charge delay, resulting in a more severe criminal history, is attributable to an improper state motive. In Brockman, the Eighth Circuit noted that any increased criminal history is the product of the defendant’s actions and cannot be attributed to the state. 183 F.3d at 896. In Randall v. State, when an intervening offense caused a defendant to be eligible for the death penalty but the defendant failed to offer any proof of improper state motive, the Mississippi Supreme Court held that an improper motive may not be inferred. 806 So.2d at 215-16.
Lussier claims that, because the state was unable to obtain consecutive sentencing for the March 15 offenses, the state delayed prosecution of the November 27 offense in order to obtain a more severe penalty. This assertion is based solely on the prosecutor’s statement at the guilty plea hearing for the March 15 offense, when he noted that he was unable to obtain consecutive sentences.
It is the prerogative of the state to request
a sentence from the district court, State v. Krotzer, 548 N.W.2d 252,
253-54 (Minn. 1996), and an improper motive cannot be established by an
accurate statement of the law, In re Lord, 255 Minn. 370, 381, 97 N.W.2d
287, 294 (1959). Here, during a
discussion with the district court regarding sentencing options, the prosecutor
accurately stated that consecutive sentencing was not available for the March
15 offenses. See
Because Lussier entered a guilty plea, Lussier is unable to establish that a pre-charge delay substantially prejudiced his rights at trial. He, therefore, waived the right to assert that such delay violated his right to due process.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The state raises two
procedural objections to this appeal.
The state first asserts that, because Lussier did not demand
recalculation of his criminal history score before the district court, he cannot
seek this relief on appeal. Although
Lussier did not seek recalculation, he sought equivalent relief in the form of
a downward durational departure. Both
parties litigated the due process issue, and the district court ultimately
decided against Lussier. Because Lussier’s claim of prejudicial
pre-charge delay was litigated before and decided by the district court, it is
properly preserved for appeal. State
v. Foreman, 680 N.W.2d 536, 539 (
The state also contends that Lussier’s appeal was untimely. Although Lussier’s notice of appeal was filed 92 days after his sentencing, it was properly filed with an affidavit of service by mail, which establishes that the notice of appeal was mailed before the 90-day deadline. Thus, Lussier’s appeal is timely. Minn. R. Civ. App. P. 125.03 (providing that service by mail is complete on mailing); State v. Kortkamp, 633 N.W.2d 863, 866 (Minn. App. 2001).
Most jurisdictions, however, have not squarely addressed whether prejudice can
be based on delay that affects the severity of a sentence. Some jurisdictions have considered instead
whether prejudice can be based on a delay that prevents a sentence to be served
concurrently with a prior conviction.
Most have held that such delay, by itself, is insufficient to support a
claim of actual prejudice. See, e.g., United States v. Stokes, 124
F.3d 39, 44 (1st Cir. 1997); United States v. Sherlock, 962 F.2d 1349,
1354 (9th Cir. 1989); State v. Higa, 74 P.3d 6, 10 (Haw. 2003); Jones
v. State, 607 P.2d 116, 117 (
Some courts have held that an improper state motive may not be inferred from the fact that charging is delayed until completion of a separate proceeding. Stokes, 124 F.3d at 45 (finding that prosecutor admitted federal prosecution was contingent on outcome of state prosecution); see also State v. Waterhouse, 659 P.2d 1013, 1016 (Or. Ct. App. 1983) (holding that prosecution after discharge from parole was not prejudicial). The Minnesota Supreme Court reached a similar conclusion in F.C.R., noting in dictum that “[t]he mere fact that a prosecutor waits to see how long a defendant serves on a prior offense before charging him with another crime does not deny the defendant due process.” 276 N.W.2d at 639.