2014-M-263       State of Minnesota, Respondent, vs. Jerry Vang, Appellant.

MAJORITY:  In August 2001, the State filed a delinquency petition charging then 14-year-old appellant Jerry Vang with first-degree felony murder (drive-by shooting) and second-degree felony murder (drive-by shooting) arising out of the shooting death of David Vang; and attempted first-degree felony murder (drive-by shooting) in connection with the shooting and resulting injuries sustained by Kou Vang.  Appellant was later indicted by a grand jury on those same charges.  He subsequently entered guilty pleas to first-degree felony murder (drive-by shooting) and attempted first-degree felony murder (drive-by shooting), he was convicted of those charges, and sentence was imposed.  In 2009, appellant filed a petition for post-conviction relief, arguing that he was never certified to adult court and that the juvenile court lacked subject matter jurisdiction to impose adult sanctions on him.  On appeal this court agreed, and vacated appellant’s convictions and sentences and remanded appellant’s case to the district court for further proceedings.  Vang v. State, 788 N.W.2d 111, 117-18 (Minn. 2010).

On remand, appellant pleaded not guilty to the original charges and, despite his objections that the district court lacked subject matter jurisdiction, the matter proceeded to trial.  A jury found appellant guilty of all three counts, and judgment of conviction was entered on the offenses of first-degree felony murder (drive-by shooting) and attempted first-degree felony murder (drive-by shooting).  He appealed and was granted a stay to pursue a post-conviction petition.  The post-conviction court summarily denied the petition and the appeal of that order was consolidated with appellant’s direct appeal.  For the reasons that follow, we affirm.

HELD:  1. Under Minn. Stat. § 260B.193, subd. 5(d) (2012), the district court had subject matter jurisdiction to consider an indictment filed against appellant at age 23 for a crime committed at 14 years of age.  

2.  The evidence was sufficient to support appellant’s convictions of first-degree felony murder while committing a drive-by shooting and attempted first-degree felony murder while committing a drive-by shooting.

3. Because the failure of an unobjected-to jury instruction to include all of the elements of drive-by shooting, Minn. Stat. § 609.66, subd. 1e (2012), did not affect appellant’s substantial rights, appellant was not entitled to a new trial.

4. A sentence of life imprisonment for a minimum of 30 years imposed upon appellant, who was a juvenile when he committed first-degree murder, was not cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution or cruel or unusual punishment in violation of Article I, Section 5, of the Minnesota Constitution. 

5. The district court did not abuse its discretion in imposing on appellant a longer sentence after trial than he received pursuant to an earlier plea agreement. 

6. The district court did not err in summarily denying appellant’s petition for post-conviction relief.

Affirmed.

CONCUR:  Justice Stras opined: “I write separately because Part V of the court’s opinion relies on State v. Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968), a case that has not stood the test of time.  In Holmes, we held that when an appellate court overturns a conviction on appeal, “judicial policy” prevents a district court from imposing a longer sentence following a retrial for

the same offense.  Id. at 296, 161 N.W.2d at 652.  In the years before and after Holmes, however, we have never invoked “judicial policy” as a reason to create another prophylactic criminal rule.  Nor have we explained our authority to make “judicial policy,” the scope of “judicial policy,” or even how to determine “judicial policy.”  Elsewhere, I have questioned our authority to reverse convictions and reduce sentences in the “interests of justice.”  See State v. Beecroft, 813 N.W.2d 814, 867 (Minn. 2012) (Stras, J., dissenting) (observing that there is no constitutional basis for reversing prophylactically “in the interests of justice”).  I harbor similar doubts about the constitutionality of reducing a criminal sentence based on a highly subjective and ill-defined “judicial policy.”

Dietzen (Gildea, Page, Anderson, Stras, Wright, and Lillehaug)

            Concur:  Stras

            Took no part:  Wright

[MURDER]

A12-956, A13-922,