This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (2000).






Edward M. Owens, petitioner,





State of Minnesota,



Filed May 14, 2002


Randall, Judge

Dissenting, Lansing, Judge


Hennepin District Court

File No. DC69775-1



John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy J. Klobuchar, Hennepin County Attorney,  Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klapahke, Judge.



U N P U B L I S H E D  O P I N I O N


R. A. RANDALL, Judge


Appellant challenges the summary denial of his petition for post conviction relief, arguing that he had a right to an evidentiary hearing.  Because we conclude that the district court abused its discretion and erred as a matter of law, we reverse.




On December 28, 1977, appellant Edward Owens raped a college student in her dormitory room.  Appellant was convicted of first-degree criminal sexual conduct and first-degree burglary.  The district court sentenced appellant to two consecutive 20-year terms.  Appellant's sentence will expire in 2005.

After appellant was given two consecutive indeterminate sentences, the Minnesota legislature adopted a determinate-sentencing scheme, which became effective May 1, 1980.  On August 31, 1981, appellant petitioned the district court for resentencing of his indeterminate sentences under the recently adopted Minnesota Sentencing Guidelines.

On August 5, 1982, the district court denied appellant's petition for relief.  The court found that appellant had not completed any sex-offender treatment required by statute and had put forward no evidence to prove that he was no longer a danger to the public.  The Minnesota Supreme Court affirmed this denial of relief for appellant.  See Owens v. State, 331 N.W.2d 758 (Minn. 1983) (holding that district court did not err in denying postconviction relief).

Following the 1983 decision of the supreme court, appellant entered, successfully completed the sex-offender treatment program, and was discharged in August 1997.  On May 10, 2001, appellant filed a second petition in district court seeking resentencing under the Minnesota Sentencing Guidelines.  Appellant argued that since he completed the sex-offender treatment program and had been a law-abiding citizen for many years, he was no longer a danger to the public.  The second petition was filed with affidavits of support from his parole officer and other community members attesting to appellant's rehabilitation.  The district court reasoned that since appellant raised the same issue in 2001, namely postconviction relief, that he raised in his first postconviction proceedings in 1982, there was no need to have a hearing on the merits, as there was no chance that appellant would get relief.  This appeal followed.




In general, a district court's postconviction decision will not be disturbed absent an abuse of discretion.  Hanley v. State, 534 N.W.2d 277, 278 (Minn. 1995); State v. Rainier, 502 N.W.2d 784, 787 (Minn. 1993).  "The scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court's findings."  Rainier, 502 N.W. 2d at 787.  We need to note that a defendant does not have to prove an entire case to receive an evidentiary hearing on a motion for postconviction relief.  A defendant is required only to allege facts that, ifproven, would entitle him to relief.  See Hanley, 534 N.W.2d at 278.  Nonetheless, "facts alleged must be more than bald assertions or conclusory allegations without factual support."  Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (citation omitted), review denied (Minn. May 18, 1987).

Appellant argues that the district court abused its discretion when it summarily denied his second petition without an evidentiary hearing because there has been a significant change of circumstances, which warrants a hearing on the merits as well as possible sentencing relief pursuant to Minn. Stat. § 590.01, subd. 3 (2000).  This statute provides that a person who has been convicted of and sentenced for a crime committed before May 1, 1980, may institute a proceeding applying for relief on the ground that a significant change in substantive or procedural law has occurred, which, in the interests of justice, should be applied retrospectively, including resentencing under subsequently enacted law.  Minn. Stat. § 590.01, subd. 3.  The statute further provides that a petition seeking resentencing will not be granted unless the court makes specific findings of fact that releasing the petitioner before the time the petitioner would normally be released under the current sentence "does not present a danger to the public and is not incompatible with the welfare of society."  Id.  Appellant argues that because he has completed the required sex-offender treatment program, he deserves resentencing, and, at a minimum, he deserves an evidentiary hearing to offer proof that he no longer presents a threat to the public.  Appellant has collected numerous affidavits from probation officers and community members that attest to his rehabilitation.  The state, in its brief, makes the "creative" argument that appellant is mistaken about the extent of what the district court knew when it denied appellant's petition for postconviction relief.

The state argues:

[T]he post-conviction court obviously knew that appellant had completed sex offender treatment when it denied his post-conviction case, since it specifically referred to that fact in its Order.


We do not understand the state's argument.  Appellant's brief and his attorney's oral argument demonstrate conclusively that appellant knew he had completed sex-offender treatment, knew that the judge knew it, and knew the judge still denied him relief.  What appellant and his attorney do not understand is the district court's reasoning wherein it said in 1982 that appellant gets no relief because he has not completed treatment, and then in 2001, when appellant has completed treatment, the same district court judge says he gets no relief because he had raised the identical issue in 1982 and lost there!  It is self-evident, and should be to the state, that appellant did not raise the identical issue in 1982.  Appellant acknowledges that he had not completed treatment before the 1982 hearing and now argues that he has completed treatment and should at least get a hearing for potential relief because the court in 1982 focused on the lack of treatment (and lack of other evidence showing rehabilitation) as reasons for the denial of relief.  That the circumstances between 1982 and 2001 have changed should be evident, even to the state.

We acknowledge that we cannot automatically conclude on the record before us that appellant is guaranteed postconviction relief.  That decision will have to come from the district court after an evidentiary hearing.  But we can conclude from this record that appellant is entitled to an evidentiary hearing.  Our reasoning is common sense.  The 1982 reason for denying appellant postconviction relief has now been cured.  Appellant may not be eligible for postconviction relief after an evidentiary hearing because the state has yet to present its case at an evidentiary hearing.  But, on these facts, the judiciary cannot deny appellant an evidentiary hearing on the ground that he had one before and lost; the ground for losing the first hearing has been rectified.   

It was an abuse of discretion for the district court to summarily deny appellant's request for an evidentiary hearing on the theory that appellant already had a chance to establish the merits of his postconviction case 17 years ago.  In appellant's first petition for postconviction relief, the same district court judge, then as now, denied the petition because appellant had not completed the required sex-offender treatment.  In his second petition for postconviction relief the district court denied appellant's petition without an evidentiary hearing claiming appellant had previously raised a postconviction petition and therefore could not be entitled to any relief as a matter of law.  Simply put, that is an analysis that cannot be made if we give more than lip service to due process and the belief that claims are best settled on the merits with both sides having a day in court.  Now that appellant has completed sex-offender treatment, a significant change of circumstances has occurred that merits an evidentiary hearing.  Appellant has alleged more than "bald assertions."  See Berg,403 N.W.2d at 318.

There may be instances where evidentiary hearings are not always required in denying postconviction relief.  At minimum, however, the record should reflect that the court considered the merits of the appellant's petition.  Minn. Stat. § 590.04, subd. 1 (2000).  There is no such reflection in this record.

The district court did not present findings sufficient to support the summary denial of appellant's request for an evidentiary hearing.  Absent such findings we cannot be satisfied that appellant's petition was sufficiently considered.  It is duly noted that the mere fact appellant may be eligible for postconviction relief after his evidentiary hearing does not mandate that he has to be granted relief.  But appellant has easily established enough of a claim to warrant an evidentiary hearing.  The district court's rationale for denying that evidentiary hearing was an abuse of discretion. 

Reversed and remanded.



LANSING,Judge (dissenting)

            I respectfully dissent.  Edward Owens was sentenced in 1978 for first-degree criminal sexual conduct and first-degree burglary.  In 1981, he petitioned for postconviction relief in the form of resentencing under the then-recently enacted Minnesota Sentencing Guidelines.  The district court denied the petition based on the testimony of Owens’s probation officer, two licensed psychologists, and the executive director of a program for sexual offenders.  One of the reasons for the denial was that the expert witnesses testified that Owens needed further treatment, particularly treatment specifically designed for sexual offenders.

            Owens again petitioned the court in 2001 to be resentenced under the guidelines.  Owens is currently on parole, and his sentence will expire in 2005.  Owens and the state submitted written material for the court’s consideration.  One of the documents indicates that Owens has completed a sexual-offender program.  The material also includes an October 26, 2000, parole review that recommends that Owens be continued on parole because, in relation to the seriousness of his offense, too little time has elapsed to warrant discharge from parole.  Owens’s parole agent stated that Owens had an earlier parole violation because of employment instability and personal-relationship issues and that continued supervision is recommended to give him an opportunity to stabilize his life.

            Although the district court could reasonably have scheduled a hearing on the petition, the court acted within its discretion in denying the petition without a hearing.  The court denied postconviction resentencing in 1983 because it concluded that Owens had not demonstrated that his early release was consistent with public safety.  Owens’s completion of sex-offender treatment is commendable.  But in light of the documentary evidence submitted, the court could reasonably conclude that the petition, files, and record do not warrant an evidentiary hearing because Owens has still not shown that his unsupervised release would not present a danger to the public or that any material facts must be resolved to determine the petition on the merits.  Minn. Stat. § 590.04, subd. 1 (2000); Scales v. State, 620 N.W.2d 706, 707-08 (Minn. 2001).  I would affirm this decision as within the district court’s discretion.