This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Jerome Sterling Dahlen, Jr.,
State of Minnesota,
Reversed and remanded
Clay County District Court
File No. K3-01-1316
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa N. Borgen, Clay County Attorney, 807 Eleventh Street North, P.O. Box 280, Moorhead, MN 56560 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
Appellant challenges the denial, without hearing, of his petition for postconviction relief on several grounds, including that the public defender was not notified of his pro se motion as required by law and that his sentence violated the plea agreement. Because Minnesota law requires notification of the public defender of all pro se petitions for postconviction relief and because it does not appear that such notification was given, we reverse and remand.
On August 31, 2001, appellant pleaded guilty to one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2000), one count of disseminating pictorial representations of a minor in violation of Minn. Stat. § 617.247, subd. 3 (2000), and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2000). He now seeks postconviction relief. The threshold questions are whether failure to appoint counsel for appellant prior to the district court ruling on his petition was in error and whether the public defender was notified of appellant’s pro se status.
“We 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). Petitioners for postconviction relief must show “by a fair preponderance of the evidence, facts which warrant a reopening of the case.” State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968). The district court’s findings will not be disturbed unless they are clearly erroneous. State v. Johnson, 653 N.W.2d 646, 649 (Minn. App. 2002). Decisions by a postconviction court are not reversed absent an abuse of discretion. Id.
Pursuant to statute, an indigent offender has the right to representation by the public defender during postconviction proceedings under certain circumstances.
A person financially unable to obtain counsel who desires to pursue the remedy [of postconviction relief] may apply for representation by the state public defender. The state public defender shall represent such person under the applicable provisions of sections 611.14 to 611.27, if the person has not already had a direct appeal of the conviction.
Minn. Stat. § 590.05 (Supp. 2003) (emphasis added). Additionally, statutes in Minnesota provide that “[i]n the event the petitioner [in a postconviction relief proceeding] is without counsel, the court administrator shall forthwith transmit a copy of the petition to the state public defender and shall advise the petitioner of such referral.” Minn. Stat. § 590.02, subd. 1(4) (2002).
In the instant case, appellant has not had a direct appeal of his convictions and he began his postconviction relief effort pro se. At the district court postconviction proceeding, appellant’s arguments were presented and considered without the benefit of counsel. This court’s files and the district court file transmitted to us in connection with this appeal do not indicate that the court administrator gave any notice to the public defender as required by Minn. Stat. § 590.05, subd. 1(4), or that appellant waived his right to counsel in accordance with Minn. Stat. § 611.19 (2002).
In Paone v. State, we stated that we are “not prepared to say that it was harmless error for appellant not to have the services of an appointed criminal defense attorney.” 658 N.W.2d 896, 899 (Minn. App. 2003) (reversing and remanding a petition for postconviction relief where the state public defender’s office did not receive notification of the petition and the district court summarily denied the petition without a hearing). Because there is no evidence in the record before us that provides an explanation regarding appellant’s lack of representation, the instant case presents reversible error. Accordingly, we reverse and remand for determination whether any notice was given to the state public defender and whether appellant waived notification of or participation by the state public defender in his petition for postconviction relief to the district court. On remand, if the district court determines that the state public defender was not given the required notice or that appellant did not waive his right to counsel, appellant shall be afforded his right to counsel and, after appropriate leave for participation of counsel, the district court shall re-examine whether appellant is entitled to an evidentiary hearing on the petition for postconviction relief.
In light of this disposition, we do not reach and express no opinion on whether appellant is entitled to an evidentiary hearing or relief based on the other arguments offered in his brief. However, if the district court determines that the state public defender received the required notice and that appellant waived his right to counsel, appellant may file a new appeal from the order on remand, and the scope of review on such a future appeal would extend to the issues addressed in the original postconviction order and raised in this appeal.
 We note that appellant has twice requested that this court appoint private counsel for him in connection with this appeal, that both times these requests were denied on the ground that the court of appeals lacks authority to appoint counsel, and that the state public defender is now assisting him with respect to yet additional issues.