State v. Prabhudail
| Decision Date | 16 November 1999 |
| Docket Number | No. C2-99-501.,C2-99-501. |
| Citation | 602 N.W.2d 413 |
| Parties | STATE of Minnesota, Appellant, v. Bhawesh PRABHUDAIL, Respondent. |
| Court | Minnesota Court of Appeals |
Mike Hatch, Attorney General, St. Paul, MN; and Jay M. Heffern, Minneapolis City Attorney, Daniel P. Rogan, Special Assistant City Attorney, Minneapolis, MN (for appellant).
Stanley H. Nathanson, Richfield, MN (for respondent).
Considered and decided by SCHUMACHER, Presiding Judge, RANDALL, Judge, and FOLEY, Judge.1
Appellant State of Minnesota challenges the district court's continuation for dismissal of a solicitation charge, contending there were no justifying special circumstances. We reverse.
The Minneapolis police arrested respondent Bhawesh Prabhudail after he allegedly offered a plain-clothes officer, acting as a prostitution decoy, money for sexual contact. The state charged Prabhudail with misdemeanor solicitation of prostitution in violation of Minn.Stat. § 609.324, subd. 3 (1998). At a pretrial hearing, Prabhudail's counsel informed the district court that, due to Prabhudail's immigration status, a conviction would be grounds for immediate deportation. Prabhudail's counsel requested the court to resolve the case by either a stay of adjudication or a continuance for dismissal. Over the prosecutor's objection, the district court continued the matter for one year conditioned upon no solicitation violations and a $100 payment for prosecution costs. The state appeals.
Is deportation a special circumstance justifying a continuance for dismissal?
State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996).
Here, the district court, relying on Krotzer and Foss, determined that disruption of Prabhudail's family upon deportation for misdemeanor solicitation was a sufficiently adverse circumstance to warrant exercising the court's inherent authority. Any deportation in this case, however, does not result from a clear abuse of the prosecutor's discretion in the exercise of the charging function. See Alanis v. State, 583 N.W.2d 573, 574 (Minn.1998)
(). Since there is no evidence of any prosecutorial abuse of discretion, the possible deportation consequences are not justifying special circumstances. To hold otherwise would ignore the limitation that the supreme court laid out in Foss and has applied in similar circumstances. See State v. Vahabi, Nos. C7-95-1795, C9-95-1796, 1996 WL 940208 (Minn. Dec. 11, 1996) (order opinion reversing opinion of this court that affirmed deportation as special circumstance justifying stay of adjudication).
Absent evidence of a prosecutor's clear abuse of discretion in the charging function, deportation consequences are not special circumstances justifying a continuance for dismissal.
Reversed.
The simple issue in this case is whether the district court abused its discretion with what was, in effect, a minute downward departure from the usual sentencing on a misdemeanor (there are no "sentencing guidelines," as such, on misdemeanors and gross misdemeanors). Here, giving due respect for the record laid by the district court, I conclude the district court properly sentenced respondent based on the court's inherent judicial authority.
Respondent, an immigrant, took a look-alike prostitute, an undercover police woman acting as a decoy, at her word, and offered her money (just $10 was involved) for sex, which she fully intended him to believe was the case. Upon respondent's completion of the act of transferring cash to her, the undercover policewoman said, no thanks, and by the way, you are under arrest for soliciting a prostitute. First of all, I conclude, as the district court did, that an immigrant taking a look-alike prostitute at her word, only a misdemeanor to start with, is not the most serious misdemeanor with which we deal.
The district court was assured by respondent's criminal defense attorney that he had checked out respondent's immigration status with an immigration attorney. The attorney told respondent's counsel that soliciting a prostitute could be interpreted as a crime of moral turpitude and could endanger respondent's immigrant status and subject him to deportation. 8 U.S.C. § 1251(a)(2)(A)(ii) (1994) states:
Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined thereof and regardless of whether the convictions were in a single trial, is deportable.
Respondent's attorney argued that deportation for respondent would mean separation from his family, and according to respondent's attorney, respondent's wife will herself soon gain U.S. citizenship.
To avoid a technical conviction for a low-level crime of moral turpitude, the district court then continued the case for a dismissal, provided respondent had no further prostitution or solicitation for sexually related violations for a year and paid $100 in court costs. The sentence by the district court was perfectly appropriate under the circumstances. Nothing more would accrue to appellant, the State of Minnesota, if the district court had entered a technical conviction for the misdemeanor of soliciting, which is what the state is here on appeal whining about.
The district court could have entered a misdemeanor conviction and imposed exactly the same sentence, a one-year informal probation, and $100 in court costs, and the state would have been satisfied, would have had to be satisfied, because the Minnesota Rules of Criminal Procedure are unambiguous. Misdemeanor sentences are not appealable by the state. See Minn. R.Crim. P. 28.04, subd. 1 (). However, the record conviction for this low-level misdemeanor would have subjected this immigrant to the potential threat of deportation to a country thousands of miles away from here and from his family.
To rectify this grotesque imbalance between what respondent did and the possible consequence, deportation, the district court properly employed a sentencing device that has been around for years. I will take judicial notice that it has been used by district court judges for at least 30 years, if not longer. It is still being used, despite ineffective and muddled attempts by the state and by the appellate court system to stamp it out. The sentencing device, one of the more caring and thoughtful discretionary tools in a district court judge's arsenal, is stay of adjudication/continuance for dismissal.
As I pointed out above, the year of informal probation and the $100 court costs are the same to the state either way, whether a sentence upon a formal conviction, or a continuance for a dismissal. The state has no power to appeal a misdemeanor sentence. If the state got its precious misdemeanor conviction, and the district court put respondent on probation for one day, and then suspended that, and fined him $1.00 and then suspended that, the state would have to be satisfied.
What is happening here is an eerie recreation of a criminal case that I studied over 30 years ago, as a freshman in law school. To illustrate the arbitrary and capriciousness of law, as it is written on the books, and to illustrate the power that judges have, and should employ, to dilute egregious effects of blind adherence to black-letter law, the criminal law casebook set out the tale of two trial court level English judges in the Eighteenth Century.
Two men, both with families, appeared before two different trial judges on the same day. Each man had been caught red-handed stealing chickens for food. The first judge took a look at the facts and the law, and said to the defendant that, yes, chicken stealing was against the law, but he could understand the man's need for food to feed his family. So he fined him six pence for restitution for the chickens, and an additional six pence as a court fine and sent him home with the admonition to stop stealing chickens. The second judge (I suspect somewhat arrogant in his assumption that he was a "defender of the establishment," rather than a lackey thereof), had a theory that stealing chickens was a "gateway" crime and that if you didn't crack down on a defendant the first time he was caught stealing chickens, why it might be the crown jewels of the Monarchy the next year, it might be the Tower of London the following year, and then where would the British Empire be! Thus, he sentenced the defendant for stealing chickens to life imprisonment without parole and ordered his immediate deportation to the then penal colony of Australia. So on that same afternoon, the chicken thief who had appeared in front of the first judge, the commonsense judge, while walking home, passed by jailers carrying his counterpart in shackles toward the harbor and the prison ship to be deported to begin a life sentence.
In this case today, the district court judge appears in the...
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