This opinion will be unpublished and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
Lance P. Wickner, petitioner,
Filed January 24, 2006
Beltrami County District Court
File No. K8-02-1001
Lance P. Wickner,
Mike Hatch, Attorney General,
Timothy R. Faver, Beltrami County Attorney, Randall Burg, Assistant County Attorney, 40 Judicial Courts Annex, 619 Beltrami Avenue Northwest, Bemidji, Minnesota 56601 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying appellant’s postconviction petition challenging his 2002 conviction for escape from custody, appellant argues that the conviction should be vacated as the product of vindictive prosecution. Because appellant has not put forth objective evidence of prosecutorial vindictiveness, and because the context of appellant’s conviction does not suggest a reasonable likelihood of vindictive prosecution sufficient to warrant a presumption of vindictiveness, we affirm.
November 9, 2000, appellant Lance Wickner absconded from electronic home monitoring
following his release from imprisonment on a criminal sexual conduct
conviction. On November 17, 2000,
appellant stole a car. That same
evening, appellant and a friend left a party at which appellant had been
drinking. Appellant drove the car into a
ditch where it rolled over, critically injuring appellant’s friend, who later
died as a result of the injuries. The
state charged appellant with criminal vehicular homicide and theft of a motor
vehicle but subsequently moved to amend the complaint to add an escape-from-custody
count. The state withdrew its motion to
amend, citing “trial tactics and considerations.” A jury convicted appellant of criminal
vehicular homicide and of theft of a motor vehicle. Appellant challenged his conviction, and this
court reversed and remanded for a new trial on the charge of criminal vehicular
homicide. State v. Wickner, No. C0-01-1020 (
Following the remand from this court, the state charged appellant with one count of felony escape from custody in violation of Minn. Stat. § 609.485, subd. 2(1), subd. 4(1) (2000), as a result of his November 9, 2000 absconding from electronic home monitoring. A jury convicted appellant of the charged offense, and the district court sentenced appellant to 13 months consecutive to the sentence for criminal sexual conduct that had been in effect when he absconded.
Appellant challenged this conviction
as well, arguing that the evidence could not sustain the conviction of escape
because he was on supervised release, a form of parole, and persons on parole
are specifically exempted from the escape statute. Appellant also argued that his conviction
resulted from vindictive prosecution.
This court affirmed appellant’s conviction, but it declined to address
appellant’s vindictive-prosecution argument because appellant had not raised
this issue at trial. State v. Wickner, 673 N.W.2d 859, 863 (
In September 2004, appellant petitioned for postconviction relief, requesting that his conviction and sentence be vacated and alleging vindictive prosecution and ineffective assistance of counsel. By order dated December 8, 2004, the postconviction court denied appellant’s petition. This appeal follows.
D E C I S I O N
courts will not disturb a postconviction court’s decision unless the court abused
its discretion. Dukes v. State, 621 N.W.2d 246, 251 (
Appellant argues that an unconstitutional appearance of retaliation will result if, after a defendant successfully challenges his conviction on appeal, a prosecutor is allowed to charge a defendant with additional offenses known to the prosecutor when he obtained the defendant’s overturned conviction. Appellant contends that the prosecutor’s conduct in his case violated appellant’s due process rights because it effectively punished appellant for exercising his statutory right to appeal and discourages other defendants who would otherwise challenge their convictions.
A government’s imposition of
additional penalties in retaliation for a defendant’s exercise of his legal
rights is impermissible vindictive prosecution.
State v. Pettee, 538 N.W.2d
126, 132 (
The United States Supreme Court
found a presumption of prosecutorial vindictiveness in charging in Blackledge v. Perry, 417 U.S. 21, 94 S.
Ct. 2098 (1974). In Blackledge, the defendant was originally charged with a
misdemeanor. After exercising his right
to a jury trial de novo on appeal in a higher state court, the prosecutor
substituted a felony charge for the misdemeanor charge. 417
In Goodwin, the Supreme Court stated that prosecutorial vindictiveness
was more likely, and application of a presumption of vindictiveness was
therefore more justifiable, in a charging decision made after trial, rather
than before trial. 457
Appellant does not argue that he demonstrated objective evidence of prosecutorial vindictiveness. Rather, appellant argues that this court should presume vindictiveness from the circumstances of this case: The prosecutor knew that appellant had absconded from electronic monitoring before trial and yet decided against charging appellant with the additional offense until after appellant obtained a new trial on his original conviction.
Minnesota courts have not addressed
the application of a presumption of vindictiveness in this context, but the
Wisconsin Court of Appeals recently concluded that a second indictment for
first-degree sexual assault filed after the defendant appealed his conviction
for a separate incident of first-degree sexual assault did not give rise to a
presumption of prosecutorial vindictiveness.
The reasoning of the
Applying the reasoning of the