IN COURT OF APPEALS
Randy Erickson, petitioner,
Filed September 6, 2005
Reversed and remanded
Toussaint, Chief Judge
Roseau County District Court
File No. K1-01-605
Robert D. Miller, Stephen V. Grigsby,
Mike Hatch, Attorney General, James B. Early, Office of the Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michelle Elise Moren, Roseau County Attorney’s
Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Forsberg, Judge.*
S Y L L A B U S
The Minnesota Supreme Court’s decision in State v. Modtland, 695 N.W.2d 602 (
State v. Modtland, 695 N.W.2d
O P I N I O N
TOUSSAINT, Chief Judge
Appellant Randy Erickson challenges
an order denying his postconviction petition contesting his 2003 probation
revocation. Appellant argues that the
district court abused its discretion when it failed to make the
Officers from the Roseau County Sheriff’s Department stopped at appellant’s residence on September 9, 2001. The purpose of their stop was to determine if appellant was complying with the conditions of his release on a pending controlled-substance charge. The officers observed beer cans and a container similar to one previously retrieved from a dismantled methamphetamine lab in the back of a truck parked in appellant’s driveway.
Appellant invited the officers to speak with him in his garage. While speaking with appellant, the officers observed empty cold-tablet containers, Coleman fuel, coffee filters and strainers, and crumpled aluminum foil lying around the garage. Additionally, the officers observed a “yellowish discoloration” on the concrete floor of the garage that was similar to the discoloration produced by the earlier-seized methamphetamine lab.
The officers informed appellant that a number of the items in his garage were similar to items seized from a suspected methamphetamine lab near a neighbor’s residence. Appellant initially indicated that he allowed some of the employees of Stoskopf Redi-Mix to use his shop and they could have made methamphetamines. Officers also informed appellant of the recent thefts of anhydrous ammonia in the area. Appellant checked his propane cylinders and found one that had contained anhydrous ammonia, but indicated that he did not know how the ammonia got into the cylinder.
Because the officers were suspicious that methamphetamine was being manufactured at appellant’s residence, they asked appellant for permission to search his property. Appellant consented to the search, and the officers seized a number of items commonly used to manufacture methamphetamine.
The officers asked
appellant to go to the law-enforcement center and provide a urine sample for
testing. Random testing was a condition
of his earlier release from
Appellant was read his Miranda rights and agreed to speak with an officer. Appellant eventually admitted that he had stolen anhydrous ammonia on September 7, 2001. Appellant admitted that, in an attempt to manufacture methamphetamine, he crushed up 100-200 pills in a bowl and added Coleman fuel, anhydrous ammonia, and sulfuric acid. Appellant also admitted that, in a separate attempt to create methamphetamines, he crushed up some pills, mixed them with white gas, and then evaporated the gas from the mixture.
On February 15, 2002, appellant pleaded guilty to one count of controlled-substance crime in the first-degree, one count of controlled-substance crime in the fourth degree, and one count of gross-misdemeanor driving while intoxicated (DWI). In accordance with a plea agreement, appellant received a 110-month sentence, which was stayed for a probationary period of 15 years. The district court informed appellant that if he violated his probation he could be sent to jail.
In January 2003, appellant was arrested because the officer believed appellant had violated his probation by consuming alcohol. Later, a case of beer was recovered from his vehicle. Upon arriving at the Roseau County Sheriff’s Office, appellant was given a PBT, which produced a reading of .08.
At appellant’s revocation hearing in February 2003, appellant admitted to violating his probation by consuming alcohol. On February 26, 2003, the district court revoked appellant’s probation and executed his sentences for the controlled-substance convictions - 110 months for the controlled-substance crime in the first degree and a concurrent sentence of 21 months for the controlled-substance crime in the fourth degree.
August 20, 2004, appellant filed a petition for postconviction relief. Appellant argued that the district court
failed to make the
I. Appellant challenges the denial of his petition for postconviction relief, alleging that the district court erred when it revoked his probation. Did sufficient evidence exist to support the district court’s decision to revoke appellant’s probation?
II. In appellant’s pro se supplemental brief, he claims that the attorney representing him at his revocation hearing also represented an individual he previously testified against. Did a conflict of interest create an ineffective-assistance-of-counsel issue for appellant?
III. Appellant claims that when he entered his original guilty plea he was under the influence of antidepressants and alcohol. Was his guilty plea voluntary?
“review a postconviction court’s findings to determine whether there is
sufficient evidentiary support in the record.”
Dukes v. State, 621 N.W.2d
246, 251 (
Appellant argues that the district court erred when it denied appellant’s petition for postconviction relief because the revocation of appellant’s probation was improper. Specifically, appellant claims that the district court erred in revoking his probation by (1) failing to make written findings on the Austin factors, based on a the record that is inadequate to support the revocation; and (2) failing to consider treatment as an option before revoking his probation.
The district court “has
broad discretion in determining if there is sufficient evidence to revoke
probation and should be reversed only if there is a clear abuse of that
discretion.” State v.
a. Impact of State v. Modtland
In the past, appellate
courts have applied a “sufficient evidence exception” to the requirement that
district courts make findings in support of the
Whether or not a decision
applies retroactively is a question appellate courts review de novo. O’Meara
v. State, 679 N.W.2d 334, 338 (
Under Teague, a district court’s decision articulates “a ‘new rule of
law’ when the decision was not dictated by precedent existing at the time the
defendant’s conviction became final.” O’Meara, 679 N.W.2d at 339. Existing precedent at the time of appellant’s
probation revocation included a sufficient-evidence exception to the
The first exception allows
for retroactive application of a new rule that places particular private
conduct beyond the scope of lawmakers to proscribe. Teague,
The second exception allows for retroactive
application of a new rule that requires the observance of procedures that
implicate the fundamental fairness of a trial and that are implicit in the
concept of ordered liberty. Teague, 489
In this case, appellant is
challenging a denial of his petition for postconviction relief. A petition for postconviction relief is a collateral attack. Pederson
649 N.W.2d 161, 163 (Minn.2002). And, generally, new
rules of law are not retroactively applicable to cases on collateral
review. Teague, 489
Appellant claims not only
that the district court failed to make
Here, the district court’s
failure to make the
Consideration of Treatment
Appellant also argues that the district court erred when it failed to consider treatment as an option before revoking his probation. Based on our determination above, we need not address this argument.
Conflict of Interest
Appellant asserts in his pro se supplemental brief that
the attorney representing him at his probation-revocation hearing had a
conflict of interest and, thus, he was denied his Sixth Amendment right to
conflict free representation.
Essentially, appellant is making an ineffective-assistance-of-counsel
claim on postconviction review. A
postconviction petitioner who claims ineffective assistance of counsel must
allege facts that would affirmatively prove that counsel committed
unprofessional errors and that, but for those errors, there is a reasonable
probability the result would have been different. Fratzke
v. State, 450 N.W.2d 101, 102 (
Appellant argues that the attorney representing him at his probation-revocation hearing had a conflict of interest because she also represented one of the individuals appellant had previously testified against. However, appellant fails to show how that fact, even if true, affected the outcome of his hearing. In fact, appellant admitted to violating his probation, and evidence was presented of this violation. It is unclear how his counsel’s previous representation could have had any influence on appellant’s situation. Therefore, appellant’s claim of ineffective assistance of counsel fails.
Appellant claims that the guilty plea he entered on April
15, 2002, was in error because he was under the influence of alcohol and Paxil
at the time. A criminal defendant may withdraw a
guilty plea if the withdrawal is necessary to correct a manifest injustice. Minn. R.Crim. P. 15.05,
subd. 1. A guilty plea must be accurate,
voluntary, and intelligent to be valid. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). If a guilty plea is inaccurate, involuntary, or unintelligent, a manifest injustice occurs, and a
defendant should be allowed to withdraw his plea. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). However, a record showing a voluntary guilty
plea may preclude a claim that the plea was involuntary. See
State v. Ecker, 524 N.W.2d 712, 719 (
Appellant asserts in his pro se supplemental brief that he was on both Paxil, a commonly prescribed anti-depressant medication, and alcohol at the time that he entered the guilty plea. However, at the plea hearing, appellant testified that he had time to consider what he was doing and that he understood what rights he was foregoing. Additionally, at the time he entered the guilty plea, appellant testified that he was not under the influence of any alcohol or drugs. Because appellant clearly testified that he was not under the influence of drugs or alcohol and that he understood the ramifications of his guilty plea, appellant’s claim that the plea was involuntary also fails.
D E C I S I O N
Because the record is vacant as to the factors the district court relied on when it revoked appellant’s probation, we reverse and remand.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.