This opinion will be unpublished and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
Ryan Kemmer, petitioner,
State of Minnesota,
Filed September 20, 2005
Beltrami County District Court
File No. KO99784
Nelson, Blair W. Nelson, Ltd.,
Faver, Beltrami County Attorney,
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying a postconviction petition challenging a conviction for sodomy, appellant Jerrold Ryan Kemmer contends that because his claim that the Minnesota sodomy statute is unconstitutional was not supported by case law until after his direct appeal was decided, the claim is so novel that its legal basis was not reasonably available at the time of his direct appeal, and the postconviction court should have considered the claim. We affirm.
Kemmer was charged with fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(d) (1998). He pleaded guilty to gross-misdemeanor sodomy in violation of Minn. Stat. § 609.293, subd. 5 (1998), and the criminal-sexual-conduct charge was dismissed. Based on the results of a psychological evaluation and Kemmer’s prior record of sexual misconduct, the court determined that Kemmer posed a high risk for reoffending and sentenced him to 122 days in jail, with credit for time served; placed him on two years’ probation; and ordered him to register as a sex offender under Minn. Stat. § 243.166 (1998).
his brief on direct appeal, Kemmer addressed three issues: (1) whether there
was an adequate factual basis to support his guilty plea; (2) whether there was
an adequate basis for ordering him to register as a sex offender; and (3)
July 2004, Kemmer filed a petition for postconviction relief, requesting that
his conviction be vacated because the
“A petition for
postconviction relief is a collateral attack on a judgment which carries a
presumption of regularity and which, therefore, cannot be lightly set
aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). “The decisions of a postconviction court will
not be disturbed unless the court abused its discretion.” Dukes
v. State, 621 N.W.2d 246, 251 (
In State v. Knaffla, the supreme court
established the rule that once a petitioner has directly appealed a conviction,
all matters raised in that appeal, and all matters that were known but not
raised, “will not be considered upon a subsequent petition for postconviction
relief.” 309 Minn. 246, 252, 243 N.W.2d
737, 741 (1976). An exception to the Knaffla rule is that a postconviction
court may hear and consider a claim that was previously known but not raised if
the claim is so novel that its legal basis was not reasonably available at the
time of the direct appeal. Greer v. State, 673 N.W.2d 151, 155 (
decided Kemmer’s direct appeal on April 10, 2001. State
v. Kemmer, No. C6-00-1402 (
argues that because the precedent for claiming that the
[Kemmer] now argues that the
constitutionality of the sodomy statute was a novel argument at the time of his
appeal and that the legal basis for such a challenge was unavailable to
him. I find no merit in this
argument. First, the very fact that he
challenged the statute’s constitutionality in his appeal belies any claim that
it was a “novel argument” unavailable to him.
Second, the issue of the constitutionality of
Moreover, numerous states have had their sodomy statutes challenged and overturned or repealed. North and South Dakota, Nebraska and Iowa repealed similar laws in the late 1970s, and Wisconsin did the same in the early 1980s. And, in fact, the Minnesota Supreme Court addressed a challenge to the statute as early as 1987 in State v. Gray, 413 N.W.2d 107 (Minn. 1987). In Gray, decided just after Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986) [upholding sodomy law against federal constitutional challenge], the Court expressly limited its holding to commercial sexual conduct and signaled that other facts might expand the privacy right:
Today’s decision is limited to a holding that any asserted Minnesota constitutional privacy right does not encompass the protection of those who traffic in commercial sexual conduct. Whether the scope of any privacy right asserted under the Minnesota Constitution should be expanded beyond federal holdings remains to be resolved in future cases wherein the issue is properly raised.
For all these reasons, [Kemmer] argues unconvincingly that the constitutional challenge to the law was not known or available to him in late 2000 – early 2001.
(Emphasis omitted) (citations omitted.) We find the district court’s reasoning persuasive.
argues that even if the state constitutional challenge is not a novel claim, a
federal constitutional challenge is a novel claim. At the time of Kemmer’s direct appeal, Bowers, a five-to-four decision
upholding a sodomy law against a federal constitutional challenge, was still
good law. In 2003, the Supreme Court overruled
Bowers, holding that a
cites no authority supporting his position that the existence of contrary
precedent makes a constitutional claim novel.
Because Kemmer’s claim that the
reasonably available to him at the time of his direct appeal, the district court did not abuse its discretion in denying postconviction relief.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.