Cited by

See, d 318, 323 (Minn. 1996) (determining that a prosecutor “may have improperly appealed to the passions and prejudices of the jury by encouraging a conviction based on sympathy for 3 Lutz also argues that the prosecutor’s use of personal pronouns, such as “I,” was improper.

Our analysis is “based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.” (quotation omitted).

plain error, the “error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant ’s right to a fair trial, that the defendant ’s failure to object —and thereby present the trial court with an opportunity to avoid prejudice—should not forfeit his right to a remedy.” (quoting Rairdon v. State , ).

2 When the state provides notice of its intent to seek an upward durational departure, “[t]he court must .

Therefore, a victim’s age is not generally a permissible r eason for a departure when age is already an element of the offense, but “i n certain cases the youth of th e victim, in conjunction with other factors, may justify a departure.” Rairdon v. State

“[O]ur final analysis ‘must be based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.’” Barthman I , d at 132 (quoting Rairdon v. State , ).

respectively, in support of these arguments.

Id.; (“We have recognized that circumstances justifying a combined departure that more than doubles a presumptive sentence are extremely rare.” (emphasis added)).

must be based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.” Rairdon v. State , (quotation omitted).

at 299 ( n.5 (Minn. 1996)).

In response, the state argues that the district court did not err because consecutive sentences may be combined with upward durational departure s. For this argument

See, e.g. , Rairdon v. State , , 323 n.5 (Minn. 1996).

This determination follows a “qualitative assessment of the record” and “must be based on [appellate courts’] collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.” -28 (Minn. 1996) (quotation omitted).

Rairdon v. State , , 327 (Minn. 1996) (upholding a mandatory life sentence for first-degree murder and two consecutive sentences double durational departures for first- and second-degree intrafamilial sexual abuse) (citations omitted).

To justify a durational departure from the presumptive sentence, there must be “substantial and compelling circumstances.”

See, (stating that “the trial court was justified in noting the multiple forms of sexual abuse as a basis for departure”); (“We have indicated in a number of cases that subjecting the victim to multiple types of penetration can be considered in determini

“In the final analysis, determining whether severe aggravating circumstances are present must be based on our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.” (quotation omitted).

B. The concurrence contends we should adopt a plain-at-the-time-of-trial rule on the grounds that it is most consistent with the purpose of the plain-error doctrine, supports a conclusion that “we have never actually decided which rule — plain-at-the-time-of-trial or plain-at-the-time-of-appeal — controls under Rule 31.02,” and that Milton and Kelley are similarly situated, and therefore giving Kelley the benefit of the Milton rule would be unfair.

It is a well-established principle in our state that “the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object — and thereby present the trial court with an opportunity to avoid prejudice — should not forfeit his right to a remedy.” (emphasis added).

Id.; (“Although the victim’s age is generally not allowed to support a departure when age is already an element of the offense, we have also held that in certain cases the youth of the victim, in conjunction with other factors, may justify a departure.” (citation omitted)).

(holding that delay in filing a postconviction petition *319 is “one relevant factor against granting relief’)

See, (explaining that the “commitment to convicted defendants’ rights to at least one substantive review” allowed this court to review the merits of defendant’s petition despite a 22-month delay in obtaining appellate review); (finding defendant’s delay in filing a postconviction petition was outweighed by “our commitment to convicted defendants’ rights to substantive review” under the postconviction statute); (determining that an 8-year delay did not prevent this court fro

An error will affect a defendant’s substantial rights when the error “had the effect of depriving the defendant of a fair trial.” see also Jenkins, d at 230 .

(quoting Norton and stating that the court of appeals, too, applies -its “collective collegial experience in reviewing a large number of criminal appeals” to determine if a case is “rare”).