This opinion will be unpublished and

may not be cited except as provided by

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






Mark Jeffrey Dunker, petitioner,





State of Minnesota,



Filed August 10, 2004


Harten, Judge


Ottertail County District Court

File No. K0-97-801


Mark Jeffrey Dunker, OID #177920, MCF–Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 West Junius Avenue, Fergus Falls, MN 56537 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant challenges the denial of representation by the public defender for his postconviction proceeding.  Because both statutory law and caselaw support the decision to deny representation, we affirm.



            In 1998, appellant Mark Dunker was convicted, sentenced, and told of his right to appeal.  In 1999, appellant, represented by the public defender’s office, appealed, and this court affirmed his conviction.  State v. Dunker, No. C7-98-1231 (Minn. App. 6 Apr. 1999), review denied (Minn. 26 May 1999).

            In 2003, appellant filed a petition for postconviction relief under Minn. Stat. § 590.02 (2002), asserting 25 claims for relief.  The district court summarily dismissed 22 of the claims and ordered an evidentiary hearing on the remaining three claims: (1) denial of effective assistance of appellate counsel; (2) failure of appellate counsel to inform appellant of his right to appeal his sentence; and (3) alleged destruction of evidence of an investigation done for appellant’s public defender.  On 2 September 2003, the district court issued an order directing appellant to apply to the state public defender’s office concerning his request for counsel, pursuant to Minn. Stat. § 590.05 (2002).  In a letter dated 29 September 2003, the public defender’s office declined to represent appellant.

            Appellant proceeded pro se at the hearing.  He called three witnesses, all of whom the district court found to be credible.  Following the hearing, the postconviction court denied appellant’s petition for postconviction relief.  He now challenges the denial of his request for the appointment of counsel to represent him in the postconviction proceedings.



            Because there is no constitutional right to appointment of counsel in postconviction proceedings, whether appellant’s claim that he was entitled to counsel is governed by statute.  See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987).  The application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

            Those entitled to representation by a public defender include “a person convicted of a felony or gross misdemeanor, who is pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction.”  Minn. Stat. § 611.14(2) (2002) (emphasis added).  See also Minn. Stat. § 611.18 (2002) (“For . . . a person pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction, the state public defender shall be appointed”) (emphasis added); Minn. Stat. § 611.25 subd. 1(a) (2002) (“The state public defender shall represent, without charge: . . . (2) a person convicted of a felony or gross misdemeanor who is pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction”) (emphasis added); Minn. Stat. § 590.05 (2002) (providing that in postconviction proceedings “[t]he state public defender shall represent [a] person . . . [who] has not already had a direct appeal of the conviction . . . and may represent all other persons pursuing a postconviction remedy”) (emphasis added). 

            The statute’s language is clear.  After providing representation in a direct appeal, the state public defender may, but is not required[] to [,] provide counsel to an indigent petitioner in a later postconviction proceeding.  Only if petitioner did not receive state public defender representation on direct appeal is the state public defender required to provide an indigent petitioner with postconviction counsel.


Gibson v. State, 569 N.W.2d 421, 423 (Minn. App. 1997), review denied (Minn. 31 Oct. 1997).  Appellant had a direct appeal in which he was represented by the state public defender.  See State v. Dunker, No. C7-98-1231 (Minn. App. 6 Apr. 1999), review denied (Minn. 26 May 1999).  The district court’s decision that appellant was not entitled to have the public defender represent him at the postconviction hearing accords with both statutory law and caselaw.