State of Minnesota, Appellant, vs. Joshlin Dwayne Holliday, Respondent (A06-2249), and Timothy Wayne Wilson, Respondent (A06-2273).

State of Minnesota, Appellant, vs. Joshlin Dwayne Holliday, Respondent (A06-2249), and Timothy Wayne Wilson, Respondent (A06-2273). A06-2249, A06-2273, Court of Appeals Unpublished, April 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2249

A06-2273

 

State of Minnesota,

Appellant,

 

vs.

 

Joshlin Dwayne Holliday,

Respondent (A06-2249),

 

and

 

Timothy Wayne Wilson,

Respondent (A06-2273).

 

Filed April 24, 2007

Reversed and remanded

Kalitowski, Judge

 

Hennepin County District Court

File Nos. 06061845, 06061863

 

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

 

Michael O. Freeman, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

 

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

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            In this consolidated appeal, appellant state challenges the district court's decision to dismiss charges against respondents Joshlin Dwayne Holliday and Timothy Wayne Wilson for aiding and abetting third-degree controlled-substance crime, sale of cocaine, and third-degree controlled-substance crime, sale of cocaine, respectively.  Appellant argues that the district court 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.

D E C I S I O N

            Respondents were charged with crimes under the third-degree controlled-substance statute, Minn. Stat. § 152.023, subd. 1(1) (2004).  But they argued, and the district court agreed, that because the sale and aiding and abetting the sale of less than three grams of cocaine could violate either the third- or fourth-degree controlled-substance statute, appellant's election to charge them under the statute carrying the higher penalty amounted to an as-applied equal protection violation.  The district court accordingly ordered the charges against respondents dismissed.

            "In an appeal from a pretrial order, this court will reverse the district court's dismissal of charges only if the state clearly and unequivocally shows that the district court erred in its judgment and that the error, unless reversed, will critically affect the outcome of the prosecution."  State v. Meyer, 646 N.W.2d 900, 902 (Minn. App. 2002).  Because an error resulting in dismissal precludes appellant's ability to prosecute respondents under the third-degree statute, failure to reverse such an error will critically affect the outcome of the prosecution.   

            Appellant's arguments focus on the appropriate interpretation of Minnesota and United States Constitutional law, arguing that the district court erroneously concluded that charging respondents under the third-degree statute instead of the fourth-degree statute results in equal protection violations and that the third-degree controlled-substance statute is more specific than the fourth-degree controlled-substance statute and, therefore, it correctly charged respondents with the third-degree offenses. 

            We recently addressed this precise issue in State v. Richmond, A06-2092, ___ N.W.2d ___ (Minn. App. Apr. 17, 2007), and held that:

The legislature intended that the sale of less than three grams of cocaine, a schedule II narcotic drug, be punishable as a third-degree controlled-substance crime under Minn. Stat. § 152.023, subd. 1(1) (2004), which proscribes the sale of one or more mixtures containing a narcotic drug, rather than as a fourth-degree controlled-substance crime under Minn. Stat. § 152.024, subd. 1(1) (2004), which proscribes the sale of one or more mixtures containing a schedule I, II, or III controlled substance.

 

            Following Richmond, we conclude that the district court erred in ordering the dismissal of the third-degree controlled-substance offense charges against respondents for selling and aiding and abetting the sale of less than three grams of cocaine based on an as-applied equal protection violation.  We conclude that the proper charge for respondents' alleged conduct is a charge pursuant to the third-degree controlled-substance statute, Minn. Stat. § 152.023, subd. 1(1), and not a charge pursuant to the fourth-degree controlled-substance statute, Minn. Stat. § 152.024, subd. 1(1) (2004).

            Having resolved this appeal on statutory grounds, we need not reach respondents' constitutional arguments.  See In re Senty-Haugen, 583 N.W.2d 266, 269 n.3 (Minn. 1998).  But we choose to do so.  Essential to a prima facie case of an equal protection violation is a showing that otherwise similarly situated individuals have been treated more favorably than the claimant.  See, e.g.,  State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981); In re Petitions of McCannel, 301 N.W.2d 910, 916 (Minn. 1980).  Because respondents here made no showing of a disparately treated similarly situated class, we conclude, as we did in Richmond, that the district court erred by finding that respondents had successfully presented an equal protection challenge to Minn. Stat. § 152.023, subd. 1(1), and ordering the charges dismissed. 

            Reversed and remanded.

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.