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Conviction Partially Reversed On Unlawfully Enhanced Sentence

Tuesday, October 3, 2017  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

A man convicted on several counts of sex-related crime will get a new sentencing hearing thanks to a partial reversal of his conviction based on an unlawfully enhanced sentence at the district court level.

The appellant, Rashad Ivy, was charged in June 2015 with second-degree sex trafficking and domestic assault by strangulation, with the complaint later amended to add 10 related charges, including second-degree solicitation, sex trafficking and conspiracy to engage in sex trafficking.

During Ivy’s trial, Tonya Price of Homeland Security Investigations testified as an expert in human trafficking, providing the court with descriptions and definitions related to sex trafficking. Ivy’s “main girl” was Danika Johnson, who moved in with Ivy in September 2014 and shortly after began working for him as a prostitute. At his direction, Johnson also recruited other women to become prostitutes.

On June 13, 2015, one of Ivy’s prostitutes, named A.B. by the court, got into a fight with Johnson, whom A.B. hit. Ivy, according to A.B., choked her, punched her in the side of the head, made her ears bleed, and held her face underwater in the bathtub. A.B. eventually convinced Ivy to take her to the hospital, where she told staff that appellant was prostituting her. A.B.’s statements prompted a police investigation, and appellant’s vehicle was stopped later that day.

Inside the car were two cell phones, prepaid Visa cards, and multiple condoms. W.M-H., a 17-year-old female in the car when it was stopped, first told police that Ivy had recruited her to work as a stripper and a prostitute, but recanted that story at trial, saying she couldn’t remember what she had told police.

A Ramsey County District Court jury found appellant guilty of all charged offenses except for two counts involving W.M.-H. After a sentencing trial, the jury also found 15 aggravating factors. The court imposed consecutive sentences for four counts of aiding and abetting second-degree sex trafficking and three counts of second-degree solicitation to practice prostitution. It also imposed concurrent sentences for the third-degree criminal-sexual-conduct offense and the domestic-assault offense, for a total length of 700 months.

Diminishing enhancement

Ivy appealed his convictions of 10 counts that included sex-trafficking, criminal sexual conduct, and solicitation to practice prostitution. In doing so, he argued that the District Court erred by denying his motion to sever, which would have allowed separate trials for some of the counts he was charged under. He said the court also committed prejudicial plain error by not giving jury instruction pertaining to one count of the complaint; that there was insufficient evidence to sustain his conviction for one count; that the prosecutor committed prejudicial misconduct during closing argument; and that his sentence was unlawfully enhanced.

It was the latter assertion that turned the tide for the Court of Appeals. The court acknowledged that courts at the district level have broad sentencing discretion, and that on appeal, Minnesota statute provides that an appeals court may review the sentence to make sure it’s not inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or unwarranted by the findings of fact.

A Minnesota defendant convicted of second-degree sex-trafficking or second-degree solicitation to practice prostitution is subject to imprisonment for not more than 15 years, with a maximum possible sentence of 25 years if certain aggravating factors are present.

Ivy was charged with four counts of second-degree sex-trafficking and three counts of second-degree solicitation to practice prostitution. The state also alleged a statutory aggravating factor in that the offense involved more than one sex-trafficking victim. A jury found appellant guilty of the seven charged offenses, and the judge added 48 months to the sentence for each of appellant’s seven convictions, ordering the sentences to be served consecutively.

When an offense under section 609.322, subdivision 1a, involves multiple victims, the presence of that aggravating factor increases the presumptive sentence. The appeals court’s review of section 609.322 found that Ivy’s sentence was inconsistent with the language of the statute. Under section 609.322, the state could have charged Ivy based on the inclusion in the crime of more than one victim, which would have brought a maximum sentence of 48 months. In Ivy’s case, though, the state charged him with a single count of sex-trafficking, or solicitation to practice prostitution, in the second degree for each alleged victim. But the aggravating factor of multiple victims set forth in section 609.322 couldn’t be applied because each separate count referenced only one victim.

Because Ivy was charged with seven separate counts, all of which alleged a different victim, each individual count alleged a single victim. Also, jury instructions did not list multiple victims as an element of the individually charged offenses.

“Appellant’s sentence is inconsistent with the plain language of Minn. Stat. § 609.322, because the aggravating factor of multiple victims found in section 609.322, subdivision 1(b), and used to enhance appellant’s sentence, is not present in each separately charged offense,” wrote Court of Appeals judge James Florey.

Ivy’s case will be sent back to the District Court for resentencing. The rest of his conviction was affirmed, and his appeals regarding the earlier motion to sever and that he is entitled to a new trial were denied.


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