This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-1720

 

James Mark Hauglid, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed June 3, 2003

Reversed and remanded

Minge, Judge

 

Becker County District Court

File No. K202143

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

MINGE, Judge

 

            This is an appeal from a district court order dismissing a pro se petition for postconviction relief without a hearing.  Because the pro se petition was not referred to the state public defender as required by law, and because this was the first petition for post conviction relief, we reverse and remand.

FACTS

 

            Appellant James Mark Hauglid lived with his girlfriend, Vicki Carrier.  Carrier filed for and received an order for protection because appellant had struck Carrier’s 14-year-old daughter.  Appellant violated the order for protection on the same day that it was issued.  He was arrested and charged with that violation and later was charged with assault.

            During a plea hearing, the court became aware that appellant had a 1997 assault conviction in Alaska and a 2001 conviction in Becker County for violation of an order for protection.  Based on his prior convictions, appellant was assigned a criminal history score of three, and on March 25, 2002, he was sentenced to 21 months in prison.

            Within less than 90 days of sentencing, appellant began contacting the district court challenging his sentence.  On May 24, 2002, he sent a letter to the clerk of court, claiming the prior charges in Alaska and Becker County were improperly included in his criminal-history score and that his sentence should be reduced from 21 months to 18 months or that the court should allow him to withdraw his guilty plea.  Appellant requested that the court accept the “letter as a pro se motion to correct or reduce sentence.”

            The second challenge to his sentence was a June 20, 2002, letter to the district court.  Appellant asked the court to consider the letter a pro se motion to withdraw his plea, which he claimed was entered under “duress and coercion.”  Appellant also claimed that, based on the lack of challenge to the accuracy of the criminal-history score, his counsel was ineffective.  On July 25, 2002, the district court held a hearing on both of appellant’s requests.  Appellant and his trial attorney testified, but it does not appear that the attorney was representing him in the proceeding.  On July 30, 2002, the court reduced appellant’s sentence to 18 months. 

             Appellant’s third effort was on August 9, 2002, when he filed a pro se petition for postconviction relief seeking to vacate his conviction.  Appellant now contended there were two issues:  (1) whether his constitutional rights to due process were denied because he was threatened with more severe sanctions if he challenged the validity of the criminal-history score and created a “headache” for the prosecutor; and (2) whether his two prior convictions were inappropriately used to determine his criminal-history score.  Appellant claimed that the 1997 Alaska conviction of assault was inappropriately used because he pleaded nolo contendere.  Appellant also contended that neither the Alaska conviction nor the 2001 Becker County charge could be considered because he was unrepresented in those proceedings.  Appellant further alleged that his trial attorney lied at various hearings, tried to convince appellant he was guilty, and conspired with the prosecutor to sabotage his case and send him to prison. 

            The state’s position before the district court was that appellant had waived his right to contest the ability of the state to use his prior convictions for enhancement purposes.  The district court summarily denied appellant’s petition for postconviction relief stating that “a petition for similar relief was before the court on July 25, 2002 and [that it had] issued an order concerning the matter.”  This appeal followed.

D E C I S I O N

 

            This case involves a petition for postconviction relief.  Petitions for postconviction relief are governed by Minn. Stat. §§ 590.01-.06 (2002).  Appellate courts “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 (Minn. 2001) (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).

            Appellant contends that the district court abused its discretion by summarily denying his August 9, 2002 petition without an evidentiary hearing.  Unless an exception applies, the district court is required to hold an “open court hearing” on the issues raised in the postconviction relief petition.  See Minn. Stat. § 590.04.  The basic exception is that no hearing is required if “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1.  Recently the supreme court stated:

An evidentiary hearing upon a petition for postconviction relief is not required unless the petitioner alleges such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief. 

 

Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) (citations omitted).  In addition, the district court may summarily deny a petition if it previously considered a postconviction petition for similar relief or if the issues raised have previously been decided by an appellate court in the same case.  Minn. Stat. § 590.04, subd. 3.

            When appellant petitioned the court on August 9, 2002, asserting that his constitutional right to due process was denied and that the Alaska and Becker County convictions were inappropriately used to determine his criminal-history score, the district court issued an order stating that

[t]he petition is summarily denied under Minn. Stat. § 590.04, subd. 3, as a petition for similar relief was before the court on July 25, 2002 and the court has issued an order concerning the matter.

 

We partially agree with the district court.  Appellant had contacted the district court after his sentencing, claiming that he had ineffective assistance of counsel, that he should be allowed to withdraw his guilty plea because of duress and coercion, and that the Alaska and Becker County convictions were improperly considered.  The district court had held a hearing and had reduced appellant’s sentence.  One might ask how many times must the district court hold a hearing or formally consider the Alaska and Becker County convictions in determining the sentence, and how many times must it consider the more generalized challenges to the conviction or the process.

            In many settings and cases we have held that duplicative claims for relief are not entitled to a hearing, but here, there are four problems with the district court’s summary dismissal of appellant’s petition.  The first is that the statutes provide for a certain level of review in postconviction relief proceedings.  See Minn. Stat. § 590.04.  Also such proceedings cannot be initiated until after the time for direct appeal has expired.  See Minn. Stat. § 590.01, subd. 1.  A direct appeal may be filed by a  “defendant * * * within 90 days after final judgment * * * in felony and gross misdemeanor cases.”  Minn. R. Crim. P. 28.02, subd. 4(3): see also Minn. R. Crim. P. 28.05, subd. 1(1); State v. Riendeau, 603 N.W.2d 341, 343 (Minn. App. 1999) (stating that “a motion is treated as a post conviction petition only if it is brought after the time for direct appeal has expired”). 

In this case, appellant’s sentencing was on March 25, 2002; the 90th day following that was June 23, 2002.  The requests submitted to the court in the May 24 and June 20, 2002 letters were not petitions for relief under Minn. Stat. § 590.01, subd. 1.  At the time of these two letters, a direct appeal could still be taken.  The letters were informal requests for relief.  The August 9, 2002 petition is not a “second or successive petition for similar relief on behalf of the same petitioner.”  Minn. Stat. § 590.04, subd. 3.  Instead, the August 9, 2002 petition is the first petition for postconviction review.  The discretion of the district court to use the July 25 hearing as a basis for denying a postconviction hearing was limited. 

Second, appellant’s claims were shifting with his successive communications to the court.  Although there was a common complaint over the use of the Alaska and Becker County convictions, recurring complaints that he was a victim of inadequate representation and of coercion, and a recurring request that he should be allowed to withdraw his guilty plea, the pro se filings and the limited record leave this court with an incomplete basis for determining whether the claims were redundant or meritorious.  We are reluctant to construe informal, pro se, posttrial requests for relief without an attorney as precluding the right to a posttrial evidentiary hearing under Chapter 590 of the Minnesota Statutes.

Third, in his August 9 petition, appellant raised aspects of the Alaska and Becker County convictions that appear to be new – the nolo contendere plea and the lack of legal representation.  The district court did not consider these issues, and the record does not enable us to rule on them on appeal.  However, we observe that one of appellant’s claims is that convictions based on a nolo contendere plea cannot be counted in criminal-history scoring.  Appellant’s other claim is that because he was unrepresented by legal counsel when those pleas were entered, they cannot be considered in computing his criminal-history score.  The answer to this claim depends on the circumstances in those proceedings.  For example, appellant would need to establish he did not waive his right to counsel.  Appellant clearly has the burden of producing evidence to establish the legal sufficiency of his claims.  See State v. Goff, 418 N.W.2d 169 (Minn. 1988). 

Fourth, and perhaps most importantly, there is a limited right of access to the assistance of legal counsel in the postconviction process.  Minnesota law requires that when a postconviction petitioner is without counsel, the court administrator is to send the state public defender a copy of the petition.  Minn. Stat. § 590.02, subd. 1(4).  Here, both the county attorney and prosecutor were notified of appellant’s letters, but the public defender was not notified.  The failure to notify the public defender of the August 9 petition is clearly contrary to the statutory requirement.

            If the appellant had had the benefit of counsel at the July 25 hearing, one or more of his bases of appeal might have been more completely presented to the district court at an earlier date.  In such a situation the harmless error argument might apply to the failure to notify the public defender with respect to the August 9 petition.  But appellant did not have the advice of counsel at the July 25, 2002 hearing and the present record does not allow this court to determine whether the lack of notice to the public defender was harmless error.

            We note the district court gave appellant a full hearing on July 25 on his initial letters requesting relief and did modify appellant’s sentence.  The court was clearly responsive to appellant’s inquiries.  We conclude that it was error for the district court to deny appellant a hearing under the circumstances in this proceeding and that the public defender should have been notified that the appellant had filed a pro se petition.

            We do not address appellant’s arguments regarding retribution, inadequate legal representation, and a conspiracy between his defense attorney and the prosecutor to send him to prison. 

            Reversed and remanded.