Post Conviction Relief in Minnesota

What types of Post Conviction Relief are there in Minnesota?

            The main one is a Petition for Post Conviction Relief. https://www.revisor.mn.gov/statutes/2018/cite/590.01

            A Petition for Post Conviction Relief in Minnesota is filed with the trial court.  The trial court where the conviction was had.  In a Petition for Post Conviction Relief, the remedy sought is a reversal of the conviction, or, in other words, to have the conviction vacated.  To support a reversal of the conviction, there must have been defects in the proceedings that would warrant reversing the conviction.

            Some examples include– you did not get a fair trial.  Or, there was a constitutional violation. https://www.archives.gov/founding-docs/constitution-transcript  Or, evidence was admitted that should not have been admitted.  Or, the court did not apply the law correctly in determining your sentence.  Or, you have newly discovered evidence that would exonerate you. 

            A Petition for Post Conviction Relief must be filed within two (2) years of your conviction.  That means within two (2) years of being sentenced.  This is a very short time frame.  If the Petition for Post Conviction Relief is not filed within two (2) years of your conviction, then you must establish a good reason for why the court should make an exception to the two (2) year requirement, for example, it is in the interests of justice.  This is a difficult, but not impossible burden of proof.

            Another important requirement is that you must raise all bases for relief in the first Petition for Post Conviction Relief.  Subsequent petitions are frowned upon.  The general rule is that you must raise all possible issues for relief in the first petition.  All issues that are known, or should be known with the exercise of reasonable diligence must be raised.

            The Petition for Post Conviction relief is then filed in the trial court where the conviction was had.  The trial court then reviews the Petition.  The trial court may hold a hearing on the Petition.  This is when witnesses would testify, and evidence would be entered.  The trial court would then issue a ruling as to whether or not your petition would be granted.  If granted, then essentially, your case goes back to square one, unless it is due to some un-remediable error, such as a denial of a Speedy Trial.  If the latter, your conviction would be permanently reversed, and no re-trial would take place.  Other times, you would be granted a new trial.  Then, you could re-do a settlement negotiation, or, have another jury trial.

            If your Petition is denied and you subsequently bring another Petition for Post Conviction Relief, it will be procedurally barred if the issue could have been brought earlier.  One exception to this rule is if there is newly discovered evidence.  If it is newly discovered evidence, then the trial court may address a second or subsequent Petition for Post Conviction Relief.

            Once a conviction has been entered, generally, it is very difficult to get it reversed.  It is best to handle your case the best way the first time around.  However, sometimes, errors have occurred that need to be addressed via a Petition for Post Conviction Relief.

            Ms. Torgerson, a lawyer of excellence  and experience of over 25 years, has had success in this type of case.  For help with a Petition for Post Conviction Relief, call expert attorney Lynne Torgerson at (612) 339-5073.

Do I need Pre-Charge Representation?

Minnesota Pre-Charge Criminal Defense Attorney

What is Pre-Charge Representation?

Pre-Charge representation is where you hire a lawyer to represent you before you are formally charged, usually during the investigative stage of a case.

A case is usually initiated when someone calls the police and make a report of criminal conduct committed against that person, or against that person’s child.  That person is usually called the victim.  Historically, that person was labelled the complainant.

When a person makes a report, the police department will initiate an investigation.  For example, law enforcement will go to the scene of a crime and interview witnesses, take photographs, take DNA samples, obtain fingerprint samples, seize drugs, seize weapons, seize clothing, record statements, wear body worn cameras, obtain squad videos.  After the date of offense, they may interview other witnesses.  The last step usually involves interviewing the suspect, or defendant.

This will be initiated, usually by a telephone call to the suspect.  The police will request that the suspect come to the police department that day, or, the next morning, to make a “voluntary” statement.  The police want a “voluntary” statement, where you are not in custody, because then they do not need to read you your Miranda Warning. https://en.wikipedia.org/wiki/Miranda_warning The police will try and schedule the appointment very quickly, so that the suspect will come in a make a statement, before he has time to hire a lawyer.  It is a tactic to avoid the person retaining a lawyer.

            The most common type of case needing Pre-Charge representation usually involves an allegation of criminal sexual conduct.  A typical scenario is where a parent has called the police, with a report that the suspect had sex relations of some sort with their child, usually their daughter.  Then, an investigation begins, culminating in the police seeking a statement from the suspect/defendant. 

            If a person is contacted by the police about going into the station to give a statement, they absolutely MUST NOT DO SO.  Instead, they need to immediately hire a Minnesota Criminal Defense Lawyer.  Very often, if a person had not made any statements, they would not have been able to be criminally charged ever.  The convicting piece of evidence in criminal cases usually are the statements of the suspect. 

            In the United States, the Constitution was enacted to protect us; it benefits us.  Accordingly, we should take advantage of our Constitutional rights.  One such right is the right to remain silent.  You should ALWAYS remain silent.  You can do so politely:  Just say:

                                          I don’t want to talk, and, I want a lawyer.

            Once you invoke your right to remain silent, the police are no longer allowed to ask you questions.

            If you are contacted by the police for a statement, you should immediately hire Minnesota Criminal Defense Lawyer Lynne Torgerson, a lawyer of excellence and experience, at (612) 339-5073.  You need to remain silent, and let Ms. Torgerson protect your rights, and communicate with law enforcement for you, so you don’t have to.  Sometimes, Ms. Torgerson is even able to avoid having criminal charges brought at all. 

What does a Minnesota Criminal Defense Lawyer do?

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So, what is a Criminal Defense Lawyer doing in your case?  What is going on behind the scenes in his/her office? 

A Criminal Defense Lawyer usually becomes a criminal defense lawyer because they are interested in practicing in that area.  Why would anyone want to become a criminal defense lawyer?  Well, that is a good question.  First, a criminal defense lawyer’s practice involves a tremendous amount of litigation around Constitutional rights.  So, an interest in protecting Constitutional rights is probably a strong reason a person became a criminal defense lawyer.  Another reason is that he/she is probably mercy gifted:  meaning, God made them in such a way that they naturally have mercy on their clients and want to help them.  So, after that, what do they do?

Well, first of all, he/she gets a telephone call from you.  The initial call is called a Free Consultation.  This call usually addresses the name of the person who has been charged with a crime.  The name is required because lawyers must do conflict of interest checks, and not represent someone who has a conflict with a current or former client.  For the average criminal case, the Criminal Defense Lawyer will also need to find out what the charges are, what county, whether it is a misdemeanor gross misdemeanor or felony, when the next court date is, the date of birth of the person (because the Clerk of Court requires the date of birth before they will discuss the case), whether the person has any prior criminal convictions, and very helpful, the case number.  It will be determined that the person needs a Criminal Defense Lawyer (not, for example, a family law lawyer), in the State of Minnesota, and not another state, because lawyers are licensed by state and can only practice in the state in which they are licensed.  The Criminal Lawyer will then provide a quote—the amount of money that representation for that case will cost.  Some lawyers also provide payment plans.  There is usually an abbreviated discussion of what occurred, that gave rise to the criminal charges.  The Criminal Defense Lawyer may also provide some background information on their experience.  If the person decides to hire the Criminal Defense Lawyer, then an appointment will be scheduled for an Intake.

An Intake will usually take about 1 to 3 hours.  A lot of lawyers only take about 20 minutes; Ms. Torgerson, with a standard of excellence, takes about 1 to 3 hours to obtain the background information and information regarding the case, which is necessary to adequately represent someone.  The Criminal Defense Lawyer and the client will also go over the written Retainer Agreement, and collect payment. 

The Criminal Defense Lawyer will then essentially begin preparing for a jury trial.  Misdemeanor cases typically take about 6 months to resolve; felony cases will take about 12 months to resolve.  Often, clients think there is only 1 court date per case.  Au contraire!  Most cases will involve about 3 to 12 court date, over the span of about a year.  And, it is very important to remain patient to resolve your case.  Better outcomes usually result over a longer time.  It is a bad idea to try and resolve a court date quickly.  The prosecutor and courts would love for you to quickly enter and guilty plea and go away; this results in a permanent criminal conviction, which usually many years later, the person still very much regrets.  Criminal convictions can have long term, broad, unforeseen consequences, which may affect employment, the ability to possess firearms, and housing opportunities.  Lynne Torgerson always has an eye on how a particular case could affect her client’s future, and works to obtain results which are the least harmful to her client’s future.

So, after a Criminal Defense Lawyer is hired, the lawyer will draft, file and serve a formal request for discovery on the prosecutor.  This is so the prosecution will send the Criminal Defense Lawyer the police reports, witness statements, medical records, photographs, audio recordings, video recordings, test results, and the like.  Usually, all of this discovery costs money.  The prosecutors usually charge around $20 for police reports, and then they also charge for each audio recording, video recording, DVD, CD, flash drive, etc.  And, usually, the electronic discovery sent by the prosecution does not work.  So, then a request for new electronic discovery is made, and this procedure usually causes the case to drag out longer for weeks and/or months. 

After the discovery is received, it is reviewed by the Criminal Defense Lawyer.  Copies of the reports are also usually sent to the client.

During representation, the Criminal Defense Lawyer is looking for factual defenses, and, legal defenses.  During the proceeding, usually after about the 3rd court date, offers of settlement also start to be exchanged.  It is up to the defendant to decide whether or not he/she wants to accept or reject an offer, and, whether or not to make an offer, whether or not to plead guilty, and whether to go to trial, and whether to testify at trial or not.  If a settlement agreement is reached, then at the next court date, the defendant would waive his rights to a jury trial and to a pretrial evidentiary hearing which determines the admissibility of evidence, and, then enter a guilty plea.

If a settlement agreement is not reached, then the case is scheduled for a contested omnibus hearing.  This hearing determines the admissibility of evidence, such as whether the defendant’s statements are admissible, whether the evidence seized pursuant to a search is admissible.  This hearing usually litigates whether or not the evidence was obtained in a Constitutional fashion.  If not, the evidence is inadmissible.  These are the most common issues litigated at a contested omnibus hearing.  A motion to dismiss for a lack of probable cause may also be brought where the State’s case is weak; while it is possible to sometimes win such a motion, it is extremely rare.

After the contested omnibus hearing, a settlement conference or pretrial conference will be scheduled.  This is usually the last court date before an actual jury trial begins.  So, there is one last ditch effort to resolve the case pursuant to an agreement, before the case actually goes to a jury trial.

If the case does not settle, the case is scheduled for a jury trial.  At a jury trial, for a misdemeanor, there are 6 jurors.  For a felony jury trial, there are 12 jurors.  Most trials last about 3 to 5 days.  The first morning of trial usually involves motions in limine, to determine the other non-constitutional evidentiary issues.  After the motions in limine, jury selection is conducted.  Each party has a number of peremptory strikes by which they can eliminate a juror for any reason.  Usually, there are very biased people that need to be easily removed.  For the record, each party will always want more peremptory strikes than they are allotted.

After jury selection, the jury is sworn and the judge usually reads some preliminary jury instructions.  Then, the prosecutor will give an opening statement.  After, the Criminal Defense Lawyer will give an opening statement.  Then, the prosecutor calls all of its witnesses and has each of its witnesses testify.  The Criminal Defense Lawyer gets to question each witness, after the witness is questioned by the prosecution.  This is called the right of confrontation.  After the State presents its case, the defendant puts on his/her case, or simply rests.  The defendant has the right to subpoena witnesses into court, to force a witness to testify on his/her behalf.  This also is a constitutional right.  Then, the defendant has the right to testify, or, the right to remain silent.  This also is a constitutional right.  The decision of whether or not to testify is up to the client, not the lawyer.  However, strategy of trial is up to the lawyer; the lawyer’s decision. 

Each side, the prosecution first, makes a Closing Argument.  A closing argument is where the lawyer argues the facts and the law to the jury.  Then, the Criminal Defense Lawyer makes a Closing Argument.  Then, unfairly, under Minnesota law, the prosecution gets to make a rebuttal argument to the jury.  The Criminal Defense Lawyer does not get a second shot.

After closing arguments, the trial judge will read the final jury instructions to the jury.  https://mn.gov/law-library/how-do-i-find/jury-instructions.jspThis instructs the jury on the law.  The jury is the decider of the facts.  The jury then is brought to a Jury Room, where they deliberate in secrecy.  When they come to a unanimous decision, the Jury Foreman informs the Bailiff.  The Bailiff informs the judge’s chambers that the jury has come to a verdict.  The judge’s Clerk then calls the attorneys and parties and instructs them to return to the courthouse.

When everyone has returned to the courtroom, the jury is brought into the courtroom.  The Jury Foreman then hands the Bailiff the written Verdict form, the Bailiff hands the Verdict to the Clerk, the Clerk hands the Verdict to the Judge, the Judge reads the Verdict, the Judge hands the Verdict back to the Clerk, and then the Clerk reads out loud the caption of the case, such as In case of State of Minnesota versus Jack Smith, case number 12-CR-22-3456, on count 1 charging the defendant with ABC Crime, we the Jury find the defendant NOT GUILTY or GUILTY.  For the record, the process is agonizing. 

Sometimes, the jury finds the defendant guilty.  Sometimes, the jury finds the defendant not guilty. 

In one jury trial, the jury found Ms. Torgerson’s client not guilty, after a 1 week long trial.  Essentially, her client’s future was on the line.  He was a young man, in his mid 20s.  After the jury rendered its Verdict of Not Guilty, a couple of the jurors felt so bad for her client that they walked over to him and shook his hand.  Evidently, they felt the accusations were unjust.  Ms. Torgerson’s client, and his father, we so relieved.  So, was Ms. Torgerson.

At the beginning of a case, no one knows what the outcome is going to be.  So often, clients want to know the odds.  Every case really is so unique.  It really is impossible to predict.  It becomes even more unpredictable when a case goes to trial, and people start testifying.  One never knows what is going to come out of people’s mouths.  In a trial, there is always some fantastic surprise!  A Criminal Defense Lawyer can take a fine tooth comb to the case, and turn over every rock:  there is always some unknown!  Some hidden piece of evidence . . .

Even so, it is always best if some sort of settlement agreement can be reached.  When a case goes to trial, the stakes get pretty high, pretty quick.  At trial, a person either wins, or loses.  And, if a person loses, then sentencing is completely up to the judge; there is no pre-determined agreement of the parties, so that everyone knows what the outcome will be.

Sometimes however, the parties simply do not agree.  The parties are so far apart, that there is no way to agree.  That is when the cases end up going to a jury trial.  And, jury trials are a crucible.  There is nothing like a jury trial.  They are intense.  The stakes are high.  Interestingly, they are always intense for everyone involved:  the defendant, the judge, the prosecutor, the Criminal Defense Lawyer, the witnesses.  No one is bored. 

So, if you want an experienced, expert Criminal Defense Lawyer, who knows what she is doing and does it well:  Call Lynne Torgerson Criminal Defense Attorney at (612) 339-5073.  She has been getting good results for her clients over 30 years.  Trustworthy.  Dependable.  Excellent.

What levels of assault are there under Minnesota law?

Minneapolis Criminal Appeals Attorney

In the State of Minnesota, generally, there are five (5) levels of assault, and, domestic assault. An assault is defined as doing an act with intent to cause fear in another of immediate bodily harm or death, or intentionally inflicting bodily harm upon another. A domestic assault case is an assault case typically involving a romantic partner.

In Minnesota, the five (5) levels, from least severe, to most severe, include fifth degree misdemeanor assault. This usually involves a fist fight, where someone is slapped or bruising occurs. There is an important distinction in misdemeanor 5th degree assault. Sometimes, people just do an act with the intent to cause fear in another of immediate bodily harm. This typically involves lesser consequences. The other type of 5th degree assault is where the person actually inflicts some type of bodily harm. The remainder of the levels are all felonies. Fourth (4th) degree assault is a felony, and usually involves an assault against a law enforcement officer or a correctional officer. Third degree assault is a felony, and usually involves a broken bone. Second (2nd) degree assault is a felony, and usually involves the use of a dangerous weapon. A dangerous weapon usually involves a firearm, a knife, or a motor vehicle. First (1st) degree assault is the most severe, and usually involves the infliction of injuries which are life threatening.

Typically, the extent of injuries inflicted determined the severity level of the offense. These are also defined by statutes. “Bodily harm” means physical pain or injury, illness, or any impairment of physical condition. “Substantial bodily harm,” this is involved in felony 3rd degree assault, is defined as bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which cause a fracture of any bodily member. “Great bodily harm,” which is involved in 1st degree assault, means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or roan or other serious bodily harm.

For a misdemeanor, the maximum punishment is up to $1000.00 fine and 90 days in jail. The punishment for a felony is one year and one day in prison or longer.

If you or a loved one is charged with a crime, you need to hire a Top Criminal Defense Lawyer such as Lynne Torgerson as soon as possible. Your lawyer needs as much time as possible to work on the case. Top Criminal Defense Lawyer Lynne Torgerson has been practicing in excess of 30 years. Experience makes a difference. Contact Lynne Torgerson today at (612) 339-5073.

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