This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed April 11, 2006
Kandiyohi County District Court
File No. 34-K5-94-129
Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Hudson, Judge.
In October 2004, ten years after his 1994 conviction for aggravated robbery, appellant filed a petition for postconviction relief, asserting that the district court had failed to obtain the proper waivers of his constitutional rights before trying the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980). For the purposes of this petition, the state conceded that the waivers were inadequate, but argued that appellant’s delay in bringing his petition prejudiced the state’s ability to retry the case and that the petition should be denied on that basis.
In denying the petition, the postconviction court determined that appellant “has not acted with due diligence in seeking relief, his sentence on the underlying criminal matter has expired, and the unavailability or fading memories of witnesses would unfairly prejudice the State if a new trial were ordered.”
A criminal defendant may
petition the district court for postconviction relief under Minn. Stat. §
590.01 (2004). An appellate court
reviews the summary denial of a petition for postconviction relief for an abuse
of discretion. Powers v. State, 695 N.W.2d 371, 374 (
a general rule, “a convicted defendant is entitled to at least one right of
review by an appellate or postconviction court.” State
v. Knaffla, 309
Abuse of Process
of judicial process refers to the length of the delay in seeking postconviction
relief and the reasons behind that delay.
addition to the length of the delay, the reasons for the delay are also
examined. “[A] delay that is deliberate
and inexcusable [so as to constitute] an abuse of the judicial process . . . is
sufficient grounds to justify denial of relief solely on the basis that the
petition is untimely.” James v. State, 699 N.W.2d 723, 728 (
Here, appellant offered no reason for his 10-year delay. The postconviction court noted that if appellant “misunderstood the nature or consequences of his guilty plea, he should have become aware once he was sentenced and the time for direct appeal passed without counsel following through with the Lothenbach procedure.” The court further noted that appellant’s “86-month sentence expired over four years ago” and that “[i]t appears that [appellant’s] purpose in pursuing the present petition is to attack the sentence in the unrelated offense for which he is currently incarcerated.” See State v. Larson, 409 N.W.2d 63, 64 (Minn. App. 1987) (holding that postconviction petition cannot be used to collaterally attack later conviction), review denied (Minn. Sept. 23, 1987). This factor, while not overwhelming, tends to weigh against appellant.
Finally, the state has the burden to demonstrate that “it would be unduly prejudiced by a new trial.” Hoagland, 518 N.W.2d at 535. Here, the state claimed:
In this case, the delay is such that the
Appellant asserts that this “barebones assertion that some of [the state’s] witnesses might no longer be available is hardly enough to satisfy [the state’s] burden of establishing ‘undue prejudice.’” We disagree. The state made some attempt to reconstruct the file and locate witnesses. Based on the record before us, we conclude that the state has met its burden and that the postconviction court did not abuse its discretion in determining that “witnesses’ memories have surely faded, assuming that the witnesses can be found,” and that “[i]t would be difficult for [appellant] and the State to receive a fair trial if a new one were granted.”
We therefore affirm the court’s denial of appellant’s petition for postconviction relief.
 On appeal, the state challenges the merits of appellant’s petition as an alternative argument to support the denial of appellant’s postconviction petition. The only issue addressed here is whether the postconviction court abused its discretion in determining that appellant’s petition was untimely.