This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




A07-137, A07-138, A07-178, A07-407


State of Minnesota,





Dwayne Hutchinson,

Respondent (A07-137),


Jason Edward Johnson,

Respondent (A07-138),


Lemario Javaise Jones,

Respondent (A07-178),


Abdikhafar Abdukadir Mumin,

Respondent (A07-407).


Filed June 19, 2007

Reversed and remanded

Hudson, Judge


Hennepin County District Court

File Nos. 06061875, 06070247, 06066882, 06067082


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487 (for appellant)


Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, Minnesota 55401 (for respondents);


Jeffrey J. Keyes, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402; and


Teresa Jo Nelson, American Civil Liberties Union of Minnesota, 450 North Syndicate Street, Suite 230, St. Paul, Minnesota 55104 (for amicus curiae American Civil Liberties Union of Minnesota)


            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            In these consolidated appeals, appellant state challenges the district courts’ decisions to dismiss charges against respondents Dwayne Hutchinson, Jason Edward Johnson, Lemario Javaise Jones, and Abdikhafar Abdukadir Mumin for third-degree controlled-substance crime, sale or aiding and abetting the sale of cocaine.  Appellant argues that the district courts erred by concluding that the third-degree controlled-substance statute, Minn. Stat. § 152.023, subd. 1(1) (2004), violates respondents’ equal-protection rights as applied.  We reverse and remand for further proceedings.


            This appeal presents the identical legal issue decided by this court in State v. Richmond, 730 N.W.2d 62 (Minn. App. 2007), and followed by this court in State v. Holliday, No. A06-2249, 2007 WL 1191824  (Minn. App. Apr. 24, 2007).  In those cases, respondents were charged under the third-degree controlled-substance statute, Minn. Stat. § 152.023, subd. 1(1) (2004), with selling or  aiding and abetting the sale of cocaine, and the district courts dismissed the charges as violations of the equal-protection clause as applied.  The district courts reasoned that the third- and fourth-degree controlled-substance crimes punish the same criminal intent and behavior, when applied to cocaine, but the third-degree offense imposes a longer sentence.  The district courts concluded that the elements of the two statutes are identical, they punish identical criminal behavior in differing ways, and, therefore, the third-degree statute is unconstitutional as applied.

On appeal, this court reviewed the statutory scheme for controlled-substance offenses and construed the third-degree offense to be more specific than the fourth-degree offense.  Richmond, 730 N.W.2d at 69–70; accord Holliday, 2007 WL 1191824, at *1.  Based on that statutory construction, we held that the legislature intended the sale of less than three grams of cocaine to constitute a third-degree, rather than a fourth-degree, controlled-substance crime.  We also chose to address the constitutional challenge and concluded that the third-degree statute was not unconstitutional as applied.  Richmond, 730 N.W.2d at 72–73; accord Holliday, 2007 WL 1191824, at *2.

            The parties do not dispute that the context of this appeal is identical to that of the Richmond and Holliday appeals.  Here, the four respondents were charged with third-degree sales or aiding and abetting sales of cocaine.  Their criminal conduct also falls within the fourth-degree statute.  They argued that the third-degree statute was unconstitutional as applied because the state had discretion to arbitrarily charge either the more severe third-degree or the less severe fourth-degree offense for the same conduct.   The district courts issued dismissal orders identical to or adopting the district court decisions in Holliday and concluded that the third-degree statute was unconstitutional as applied.

On this appeal from the district courts’ dismissals of the third-degree charges against respondents, the parties substantially rely on the briefs.  Because the arguments are identical to the arguments submitted in the Holliday appeal, and because Richmond and Holliday considered and decided those arguments, we are not persuaded that a different resolution is warranted.  Accordingly, we conclude that the district courts erred in ordering the dismissals and the state properly charged respondents for their conduct under the third-degree controlled-substance statute, Minn. Stat. § 152.023, subd. 1(1).  We also conclude that respondents failed to show that their third-degree controlled-substance-crime charges constitute as-applied violations of the federal or state equal-protection clauses.

Respondents and amicus curiae present additional argument in support of the district courts’ dismissal decisions.  But the Richmond opinion demonstrates that this court considered all issues raised by, and even issues not raised by, respondents and amicus curiae:  the court considered a facial challenge to the third-degree controlled-substance statute, the government’s basis for the entire controlled-substance-crime statutory scheme, the need for evidence of dissimilarly treated defendants only in the context of the as-applied challenge, and precedent supporting application of Minnesota precedent, particularly that supporting broader application of Minnesota’s constitutional protections.  Therefore, we conclude that respondents and amicus curiae have not presented new or different arguments or precedent requiring this court to deviate from the holdings in Richmond and Holliday

            Reversed and remanded.