This opinion will be unpublished and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

A03-63

 

Ronald R. Ernst, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed December 30, 2003

Affirmed

Stoneburner, Judge

 

Scott County District Court

File No. 1997-11929

 

Ronald R. Ernst, #23241, N.D.S.P., Box 5521, Bismarck, ND, 58506 (pro se appellant)

 

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

 

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379-1380 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            In September 1999, appellant Ronald R. Ernst, in a postconviction proceeding, succeeded in having his 1998 felony sentence for indecent exposure reduced to a gross misdemeanor sentence because the original charge was improperly enhanced.  In December 2002, appellant requested vacation of his conviction.  The district court treated appellant’s request as a second postconviction relief petition and denied the petition without a hearing, as untimely.  We affirm.

FACTS

 

In July 1997, appellant was charged with two counts of felony indecent exposure, two counts of fifth-degree criminal sexual conduct, failure to register as a predatory offender, and two counts of exhibition of obscene material.  Under a plea agreement, appellant entered a plea of guilty to one count of felony indecent exposure, and the remaining charges were dismissed.  At the plea hearing, appellant admitted exposing his genitals to a 12-year-old female child.  He also admitted that he had been previously convicted of indecent exposure in Wisconsin and Colorado.  Appellant was sentenced to 18 months in prison, the guidelines presumptive sentence for the offense of felony indecent exposure.  At sentencing, the district court told appellant that he would be subject to any conditions imposed by the commissioner of corrections.

            In 1999, appellant petitioned for postconviction relief in the form of resentencing, arguing that his criminal history score was miscalculated and his sentence was incorrectly enhanced.  The district court agreed, concluding that the state failed to prove a prior conviction to enhance the charge to a felony level.  The district court ordered that appellant’s conviction be treated as a conviction for gross misdemeanor indecent exposure, and resentenced appellant to 365 days in the Scott County jail with credit for time served.

            In December 2002, without any notice to respondent, appellant wrote to the district court attacking almost all aspects of his conviction and requesting that his conviction be set aside.  Appellant is primarily seeking relief from the continuing obligation to register as a sex offender.[1]  The district court treated the letter as a second petition for postconviction relief and denied the petition as untimely, without a hearing.  This appeal followed.

D E C I S I O N

 

This court reviews the denial of a petition for postconviction relief “to determine only whether sufficient evidence exists to support the postconviction court’s findings and will not disturb the court’s decision absent an abuse of discretion.”  King v. State, 649 N.W.2d 149, 156 (Minn. 2002).

            The district court “may dismiss a petition for postconviction relief without conducting an evidentiary hearing if the petition, files, and records ‘conclusively show that the petitioner is entitled to no relief.’”  Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (quoting Minn. Stat. § 590.04, subd. 1 (2002)).  But an evidentiary hearing is necessary “whenever material facts are in dispute that . . . must be resolved in order to determine the issues raised on the merits.”  State v. Rhodes, 627 N.W.2d 74, 86 (Minn.

2001) (quotation omitted).  To be entitled to an evidentiary hearing, “appellant must allege facts that would, if proven by a fair preponderance of the evidence, entitle him to relief.”  Id.  Any doubts about whether to conduct an evidentiary hearing should be resolved in favor of the party requesting the hearing.  State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

            Appellant alleges that the district court’s refusal to allow him to withdraw his plea to the charge of felony indecent exposure and “recharge” him with gross-misdemeanor indecent exposure, for which he would not be required to register as a sex offender, is a denial of his due process rights.  We disagree. 

“The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner . . .”  Minn. Stat. § 590.04, subd. 3 (2002).  And a second petition can be summarily dismissed where petitioner failed to raise the issue in his initial petition.  See Dunn v. State, 578 N.W.2d 351, 353 (Minn. 1998) (affirming summary dismissal of a third petition for postconviction relief filed seven years after conviction because new allegations of error were not so novel as to be unavailable in prior petitions).

            The relief appellant seeks is substantially the same relief he sought in his first petition for postconviction relief.  The registration issue and complaints about counsel are not novel or new and could have been raised in the first petition.  On this record, we cannot conclude that the district court abused its discretion by summarily denying appellant’s second petition for postconviction relief.

            Respondent argues that because the registration requirement is imposed by the Department of Corrections, appellant has failed to include the proper party in this controversy and therefore his appeal should be dismissed.  Because the district court did not abuse its discretion by dismissing the petition, we do not reach this issue.          

            Appellant also argues on appeal that the evidence was insufficient to support his conviction and that the registration statute unconstitutionally violates due process.  But neither argument was raised in either of his postconviction petitions, and therefore, there is no need to address these issues on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Furthermore, the claims are without merit.  Appellant’s conviction was based on a guilty plea and the record supports that he entered the plea agreement voluntarily and intelligently, and answered questions that established a factual basis for the conviction.  See Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (stating that a valid guilty plea must be accurate, voluntary, and intelligent).  And the predatory offender registration statute has been held by the Minnesota supreme court not to violate due process.  See Boutin v. LaFleur, 591 N.W.2d 711, 718-19 (Minn. 1999). 

            Affirmed.

 



[1] Appellant is required to register as a sex offender under Minn. Stat. § 243.166 (1996) because he was charged with a felony and was convicted of a gross-misdemeanor offense arising out of the same set of circumstances.  See Minn. Stat. § 243.166 (1996), amended to include indecent exposure, 1998 Minn. Laws ch. 367, art. 3, §§ 1–3; State v. Lilleskov, 658 N.W.2d 904 (Minn. App. 2003) (holding that 1998 amendment applies to defendants who committed qualified crimes before the effective date of the statute).