Arend v Minnesota, 2010

Friend of mine sentenced to two years probation in Minnesota earlier this year is allowed to smoke cannabis while on probation.

 

Court transcripts from judges decision to allow him to smoke cannabis while on probation:

scan0001 (PDF)

 

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STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
State of Minnesota,
Plaintiff,
vs. File: 62-CR-10-430
Jamison Robert Arend,
Defendant.
The above-entitled matter was heard
before Judith M. Ti1sen, Judge of Di[trict
Court, at the Ramsey County Courthouse,
15 Kellogg Boulevard, St. Paul, Minnesota,
on the 24th day of March, 2010.
Appearances:
Joseph Amos, CSA – Assistant Ramsey
County Attorney, appeared on behalf of the
State.
Bruce Wenger, Assistant Ramsey County
Public Defender, appeared on behalf of
Mr. Arend.
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P-R-O-C-E-E-D-I-N-G-S
THE COURT: Appearances.
MR. WENGER: For the record, Your
Honor, Bruce Wenger, W-e-n-g-e-r, present in
court with Mr. Jamison.
MR. AMOS: Joseph Amos for the
State.
COURT: Last name is Arend.
MR. WENGER: I apologize to the
court and my client.
DEFENDANT: It’s okay. I’m used
to it.
THE COURT: All right. Any
additions or corrections to the PSI from
defense?
MR. WENGER: No, Your Honor.
THE COURT: Additions or
corrections from the State?
MR. AMOS: No, Your Honor.
THE COURT: Recommendations from
the State?
/
MR. AMOS: Your Honor, the State
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is~ecommending that the court follow the
plea agreement. He pled guilty to Count
II. Today the State is dismissing Count I.
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This also calls for a 45-day cap and
restitution, which at this time is unknown.
Probation is requesting a DNA order as well
as two no contact orders that cover both of
the victims in this case.
THE COURT: Thank you.
MR. WENGER: Your Honor, there is
significant mitigation that doesn’t rise to
a defense. My client was concerned when
there were two individuals in his bedroom
and these individuals had been told by my
client not to go into his bedroom. My
client was surprised and concerned when he
found them in his bedroom, a place where he
should feel safety and privacy. My client
acted inappropriately when he threatened the
individuals, but it is mitigation as to
where they were located.
Your Honor, my client has serve~ two
days in custody in this matter. He will be
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21 serving up to five years probation on this
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22 matter. My client has a clean record. He
23 has no criminal history score. He has no
‘/ 24 prior felonies. He has no prior
25 misdemeanors. Your Honor, I ask that you
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give him two days credit for the two days
that he’s already served.
I will specifically ask the Court not to
authorize UAs in this matter. I
specifically ask the court not to require a
Rule 25 in this matter. I ask the Court not
to consider it a violation of probation if
there is an indication of marijuana use.
There shouldn’t be one because there
arguably won’t be UAs, but if there is one
that slips through, that marijuana would not
be a violation of his probation.
THE COURT: I think I need you to
place on the record, and I know we’ve had
off the record discussions, but a few of the
reasons for that request.
DEFENDANT: d
) ,
I woul appreclate
18 that!./
19 MR. WENGER: Thank you,
20 Your Honor. My client is a Rastaf~rian. He
21 has indicated to me that he’s a licensed
mini~22 ter in the Rastafarian movement. The
23 Rastafarian movement uses cannabis in their
24 religious ceremonies. If my client uses
25 marijuana in his — as part of his religion
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it is possible and likely that he will have
a positive urinalysis for marijuana or THC.
I have concerns that by having my client GI.
tested for marijuana that that would be a
potential probation violation and that
potential probation violation in this matter
could put my client into prison for only
following the religious practices that my
client is very deeply involved with. That
is the reason for the request.
THE COURT: Just for the record,
the State is not stipulating to those facts,
is that correct?
MR. AMOS: The State is not, Your
Honor. The reason the State is leaving that
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16 condition up to the qourt is because this
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17 was a ~erson crime, specifically, the State
18 is concerned with the Victims. There was no
indication that use of controlled substances
played any role in the events and for that
21 reason we leave that to the discretion of
22 the court.
23 THE COURT: Thank you.
24 DEFENDANT: May I say something?
25 THE COURT: You better talk to
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your lawyer before you say something.
Okay? The answer is you have a right to,
but you may want to take the advice of your
attorney. That is okay too.
DEFENDANT: I’ll refrain.
THE COURT: I’m going to go along
wit~ the plea agreement in this matter in
that I’m staying imposition of this sentence
for a period of five years. You will be
placed on probation for a maximum period of
five years. If you cooperate with probation
in all respects probation could, and often
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does, make a recommendation that you get off
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probatidn earlier, bJt there is no promise.
Do you understand that?
DEFENDANT: Yeah.
THE COURT: I understand there was
a 40 day cap on time to serve and I
understand that you’ve already served two
days of that time. I do think it makes
sense, given the nature of the charge, the
terroristic threats and the lack of remorse
exhibited in the PSI, that I’m going to
order that you serve an additional — that
you serve 30 days with credit for two. I
6 GI.
1 don’t think you totally are taking
2 responsibility.
3 DEFENDANT: 1–
4 THE COURT: It’s my turn.
5 MR. WENGER: Don’t say anything.
6 THE COURT: I remember your
7 factual basis when you pled guilty. I
8 remember how you sort of pled guilty until
9 we pushed you and I read the PSI and I don’t
10 think you’re taking responsibility. You get
/ .j
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to listen.
)
DEFENDANT: / I’m listening. I’m
listening.
THE COURT: I don’t think you’re
taking full responsibility for your
behavior. Your behavior is actually your
behavior to take responsibility for. I am
ordering reasonable out of pocket
restitution. I don’t have a restitution
amount at this time and I’m giving probation
60 days to come up with a restitution
amount. I am signing two no contact orders
with both of the victims in this matter. I
am signing a DNA order, as is required by
statute, I believe.
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1 Although it is not stipulated to, the
2 defense has proven a colorable claim of
3 religious right to ceremonial use of
4 cannibus, otherwise known as marijuana.
5 Ceremonial use is intermittent use, but
6 because of our chemistry and how we do UAs,
7 it would seem to me that even with limited
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8 ceremonial use that a UA would come up dirty
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on a -r:egular basis. I’m specifically not
ordering that Mr. Arend abstain frop(the use
11 of marijuana and I’m specifically not
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12 authorizing UAs to defendant for marijuana.
13 If probation is concerned about use of other
14 illegal substances, probation may then
15 perform UAs for other illegal substances,
16 but there is no evidence in the PSI of any
17 other substance use or abuse and, secondly,
18 there is no evidence of the involvement of
19 any controlled substance in the commission
20 of this crime and that is — for those
21 reasons I’ve just stated why I’m not
22 ordering the abstention order that I often
23 do.
24 Since Mr. Arend has some skills in the
25 drywall business and it looks like he’s able
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1 to be employed, I’m ordering a $100 fine in
2 this matter plus appropriate fees. Did you
3 mean to ask
4 MR. WENGER: We ask that you waive
5 the public defender fee. My client is
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unemployed at this time, is indigent. He
J qualifies for the services of the public
defender and a public defender fee would be
a hardship.
THE COURT: The public defender
fee is waived. I am ordering no same or
similar. Let me tell you something else,
Mr. Arend, I usually order remain
law-abiding in all respects. What I’m
ordering for you is that you have no
threatening behavior to anyone. That
includes misdemeanor charges. I’m not going
to order you to remain law-abiding because
in the State of Minnesota the colorable
claim that you have of being a Rastafarian
and using marijuana as part of your
ceremonies is not ictually legal and if I
ordered that you remain law-abiding knowing
that you do something that is not legal in
the State of Minnesota, I think I would be
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setting you up. So, what I am ordering is
that you have no same or similar and this is
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how I 6efine that: No threatening or
assaultive behavior to anyone and nd~threats
of any kind. Is that clear to you?
DEFENDANT: Very.
THE COURT: I don’t think it will
be an issue. I have ordered 30 days to
serve. I am willing to give your client up
to two weeks to turn himself in,
Mr. Wenger.
MR. WENGER: We ask for two weeks.
DEFENDANT: There’s just a couple
of questions I have.
MR. WENGER: I’ve answered his
questions.
THE COURT: April 7th is two weeks
from today, if my reading of the calendar is
right. I think it is. That is at nine
o’clock at the workhouse. You’ll get some
paperwork to allow you to turn yourself in.
MR. WENGER: Your Honor, we
specifically request that the court not
order a Rule 25 in this case. Did the Court
do that?
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THE COURT: I didn’t order it, but
let me say I’m specifically not ,,~rdering a
Rule 25. You are going to come up, after a
Rule 25, that you need treatment and there
is no way to do a Rule 25 and exclude some
of the things that are illegal, so because
the use of any illegal substances was not
specifically part of this crime, I’m not
ordering a CD evaluation.
MR. WENGER: Your Honor, at this
time we ask that Count I be dismissed.
THE COURT: Count I will be
dismissed.
MR. AMOS: Your Honor,
notwithstanding the not ordering the Rule 25
and abstention, is he subject to the usual
conditions of probation?
THE COURT: Yes. I believe I said
that, and if I didn’t I’ll say it now.
Probation needs to know how to reach you.
You need to communicate with them. You are
on probation. Is that clear?
DEFENDANT: Absolutely.
MR. AMOS: At this time,
Your Honor, the State is providing both
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co~;- of the no contact orders to defense
counsel.
MR. WENGER: Defense handed the no
contact orders of the victims to my client.
DEFENDANT: I know this guy and I
don’t know who this is.
MR. WENGER: Stay away from them.
THE COURT: Don’t seek them out
and you should be fine. Anything further?
MR. WENGER: Nothing further,
Your Honor.
DEFENDANT: Thanks.
e.
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REPORTER’S CERTIFICATE
I, Kristen A. Frazier, Official Court
Reporter in and for the County of Ramsey,
State of Minnesota, hereby certify that the
preceding transcript constitutes a true and
complete transcription of my stenographic
notes taken at the time and place herein
before set forth.
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