This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Dennis William Denne,
St. Louis County District Court
File No. K8-03-300686
Attorney General, James B. Early, Assistant Attorney General, 1800
Alan Mitchell, St.
Louis County Attorney,
John Stuart, State
Public Defender, Sara Martin, Assistant State Public Defender,
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the postconviction court’s denial of his motion challenging the validity of his Lothenbach submission. We affirm.
On May 29, 2003, based on information provided by a confidential informant, police officers executed a search warrant at appellant Dennis Denne’s residence. As a result of the search, officers seized $329 in cash, approximately 10 and one-half ounces of marijuana, and other drug paraphernalia. Appellant was charged with one count of fifth-degree possession of marijuana with intent to sell in violation of Minn. Stat. § 152.025, subd. 1(1) (2002) and one count of fifth-degree possession of marijuana in violation of Minn. Stat. § 152.025, subd. 2(1) (2002).
On August 15, 2003, appellant filed
a motion to compel the state to disclose the identity of the informant. At the motion hearing on October 8, 2003, the
district court denied appellant’s motion to compel. Subsequently, on January 9, 2004, at a
pre-sentencing hearing and pursuant to State
v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), appellant waived his right to a
jury trial and agreed to submit to the court for its determination the charge
of possession of marijuana with intent to sell, with the understanding that the
state would dismiss the second charge in the event that the court found
defendant guilty. At the
same pre-sentencing hearing, appellant made an oral waiver of his rights after appellant’s attorney informed him of the consequences of the Lothenbach proceeding.
The district court found appellant guilty of the charge of possession of marijuana with intent to sell, and on February 20, 2004, the district court sentenced appellant to one year and a day in prison, but stayed execution of the sentence on the condition that appellant remain on probation for three years, serve 30 days in jail, pay a fine of $1,062, and comply with other probationary conditions.
On May 25, 2004, appellant filed a notice of appeal with this court. On September 16, 2004, this court granted appellant’s motion to stay the direct appeal and remand to the district court for post-conviction proceedings.
On October 13, 2004, appellant filed a post-conviction petition, arguing that the Lothenbach proceeding was invalid because the issue purportedly preserved, disclosing the identity of the informant, was not appropriate for appellate review. On December 27, 2004, the district court denied appellant’s post-conviction motion without an evidentiary hearing. This appeal followed.
D E C I S I O N
Appellant argues that the district
court erred in denying him postconviction relief without an evidentiary hearing
because his Lothenbach submission was
not valid. We review a postconviction
court’s decision to deny relief using an abuse of discretion standard. Dukes
v. State, 621 N.W.2d 246, 251 (
A postconviction court is not
required to hold an evidentiary hearing unless there are material facts in
dispute that must be resolved in order to determine the postconviction claim on
the merits. Hodgson v. State, 540 N.W.2d 515, 517 (
Relying solely on the contention
that his motion is unappealable, appellant does not fully address the merits of
the informant identity issue. The
identity issue is not unimportant. It is
not impossible that the disclosure of an informant’s identity could be so
crucial to a well-informed defense that a denial of that identity could be part
of a defendant’s appeal. Appellant
relies on cases from other jurisdictions, but cites no Minnesota case that
conclusively holds that dispositive issues only are appealable following a Lothenbach proceeding. See
generally State v. Lothenbach, 296 N.W.2d 854 (
 See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished opinions have persuasive value but are not precedential).