This opinion will be unpublished and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
Filed August 9, 2005
Toussaint, Chief Judge
Hennepin County District Court
File No. 01094765
William Colbert, L.A.M.P., Room 254,
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Randall Ricardo Wilson challenges the denial of his petition for post-conviction relief, arguing that (1) he did not have a proper trial; (2) the postconviction court erred in denying him an evidentiary hearing; and (3) the trial court erred in his sentencing. Because (1) the trial court followed proper procedure for a stipulated-facts trial; (2) appellant did not establish that he was entitled to a new trial or an evidentiary hearing; (3) the trial court did not err in applying certain aggravating factors to support the sentencing departure; and (4) Blakely does not apply retroactively, we affirm.
Appellant was sentenced to 270 months, an upward departure from the presumptive sentence and the sentence provided in the agreement of the parties. The trial court explained that the departure was based on the following factors: age and vulnerability of the victim, position of trust, violation of the zone of privacy, and multiple acts of penetration that were particularly cruel.
Appellant filed a
postconviction petition, requesting a new trial because the “proceeding”
appellant participated in was not authorized under the Minnesota Rules of
Criminal Procedure and because the victim had recanted in a videotaped
statement and in an affidavit. Alternatively,
appellant asked that the trial court vacate the sentence and impose the
presumptive sentence because the judge erred in finding aggravating
factors. When the state responded, it
not only argued that appellant’s stipulated-facts trial was a proper procedure,
but also that the recently released. Blakely v. Washington, 124
D E C I S I O N
An appellate court reviews “a
postconviction proceeding to determine only whether sufficient evidence exists
to support the postconviction court’s findings.”
Construing rules of criminal
procedure and reviewing possible violations of constitutional rights are
questions of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25
The rules of criminal procedure provide that a trial on stipulated facts is a permissible form of trial. Minn. R. Crim. P. 26.01, subd. 3. The postconviction court stated in its order denying relief that the proceeding was a stipulated-facts trial and not a Lothenbach trial, and that appellant had validly waived his jury-trial rights.
This court has “observed
continuing confusion over the distinction between a stipulated-facts trial
under rule 26.01 and a stipulated-facts trial under [State v. Lothenbach, 296 N.W.2d 854 (
A stipulated-facts trial under
rule 26.01, subdivision 3, requires either a written or oral waiver of the
defendant’s right to testify at trial, to have prosecution witnesses testify in
the defendant’s presence, to question those witnesses, and to have favorable
witnesses for the defense testify. See also State v. Halseth, 653 N.W.2d 782, 785-87 (Minn. App.
2002) (explaining that more than just the right to jury trial must be validly
waived under subdivision 3). “[S]trict compliance is required in order
to assure that [waivers are] voluntarily and intelligently made.” State v.
Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002)
(quotation omitted), review denied (
The record reflects that the parties’ agreement was made on the record, allowing the court to proceed “as on any other trial to the court.” See Minn. R. Crim. P. 26.01, subd. 3. Appellant stated that he understood that he would have a stipulated-facts trial, not a jury trial, and that he knowingly and intelligently waived each of his rights under the rule. Moreover, the district court did not come to a preordained result. The district court stated on the record that it had examined the submitted evidence, made findings, and determined that the evidence satisfied each element of the crime beyond a reasonable doubt. Therefore, we conclude appellant received a proper stipulated-facts trial under the rule.
Recantation and Supportive Affidavits
Appellant argues that the postconviction court erred by failing to either grant a new trial or hold an evidentiary hearing because of the victim’s recantation and the affidavits of various family members supporting the victim’s new assertions.
Traditionally, courts have looked
with disfavor on motions for a new trial based on recantation unless the
circumstances are extraordinary and unusual.
State v. Hill, 312
The postconviction court here made
detailed findings regarding why the recantation was not credible by drawing a
distinction between the victim’s statements of recantation on the videotape and
her statements of recantation in her subsequent affidavit. See
State v. Davis, 422 N.W.2d 296, 299-300 (Minn. App. 1988) (affirming
trial court because it “made detailed findings as to why the recantation was
not credible”). The postconviction court
found that the victim stated in her affidavit that she “lied on my dad because
I was [m]ad at him,” but she stated in the videotape simply that she lied and
did not provide an explanation. Further,
she accused another man of abuse in the affidavit, but not in the video. The postconviction court found these inconsistencies,
and the timing of the video (the victim mentions Easter, which would put the
making of the video several months before her affidavit), to weigh against
authenticity. Finally, the court found that
the victim’s body language and her lack of remorse for lying, along with her desire
not to go to “juvenile,” indicated that she was forced or threatened to recant. See
We also conclude that the postconviction court did not abuse its discretion in denying an evidentiary hearing because the record conclusively shows that appellant is not entitled to relief. See Minn. Stat. § 590.04, subd. 1 (2004). See also Opsahl, 677 N.W.2d at 423 (stating that “argumentative assertions without factual support” are not enough to require evidentiary hearing). The record supports the postconviction court’s findings that the victim was pressured to recant, as well as its findings regarding the lack of trustworthiness of the family-member affidavits. See Crisler v. State, 520 N.W.2d 22, 25 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994) (concluding that an evidentiary hearing will not be required if affidavits are not “of such a persuasive nature as to require an evidentiary hearing”). The postconviction court did not abuse its discretion by finding the affidavits unpersuasive, and by finding the record to be wanting of factual support which would require an evidentiary hearing.
Furthermore, appellant’s lack of due diligence in filing his petition for postconviction relief weighs against granting an evidentiary hearing. Although unexcused delay is not determinative, it does raise questions regarding the legitimacy of the petitioner’s claim. See, e.g, Whelan v. State, 298 Minn. 545, 545, 214 N.W.2d 344, 345 (1974) (petitioner delayed bringing petition for two years after learning his victim recanted and therefore did not act with due diligence). Here, the victim’s recantation occurred sometime in the spring of 2003, when she was videotaped, and then in August 2003, when she signed the affidavit. The postconviction petition was not filed until June 2004. The postconviction court did not abuse its discretion by denying appellant an evidentiary hearing.
The trial court sentenced
appellant to 270 months, basing its upward departure not only on the
suggestions made by the parties in their stipulation, but also on the
additional factors of the position of trust and violation of the victim’s zone
of privacy. A district court must state
its reasons for departure, and the reasons must justify the departure. Williams
v. State, 361 N.W.2d 840, 843 (
Appellant argues that there are
no substantial and compelling reasons for the departure. There appears to be no dispute that two of
the four bases for departure were improper: the vulnerability of the victim due
to age and appellant’s violation of the position of trust. See Taylor
v. State, 670 N.W.2d 584, 589 (
Appellant also argues that Blakely applies retroactively to his
sentencing and that this court erred in its decision in State v. Houston, 689 N.W.2d 556 (Minn. App. 2004), review granted (
At oral argument, appellant argued that violation of the victim’s zone of
privacy was an improper aggravating factor because the acts occurred at the
victim’s grandmother’s home. We struggle
to see the merit in this argument because the victim undoubtedly felt safe when
she would stay there while visiting her father.
See State v. Bock, 490 N.W.2d
116, 121 (Minn. App. 1992), review denied
(Minn. Aug. 27, 1992) (recognizing that violation of zone of privacy “encompasses
the fact that the violator deliberately trespassed in a place where the victim
felt particularly safe”). Regardless, appellant
raises the argument for the first time here.
Failure to raise an argument before the trial court or brief the
argument for this court waives the argument.