This opinion will be unpublished and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
ex rel. Robert Earl Vogt, petitioner,
Commissioner of Corrections,
Carlton County District Court
File No. CV05879
Robert Earl Vogt,
Mike Hatch, Attorney
General, Mark B. Levinger, Assistant Attorney General, 1100
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.
Appellant challenges the denial of his petition for a writ of habeas corpus, in which he claimed that respondent violated his Fifth Amendment rights by extending his period of incarceration for refusing to enter a sex-offender treatment program that, he asserts, required him to admit to criminal acts. Appellant also contends he was entitled to an evidentiary hearing. Because appellant has failed to establish that his Fifth Amendment rights were violated or that unresolved material facts exist, we affirm.
Appellant Robert Earl Vogt was incarcerated on a conviction of two counts of criminal sexual conduct in the second degree based on a modified Alford plea entered in September 2000. At the time Vogt was sentenced, the district court had not yet ruled on his motion to withdraw his plea. Shortly after Vogt was committed to the custody of respondent, the Commissioner of Corrections, he was directed by respondent to undergo a sex-offender assessment and complete the recommendations and was informed that failure to do so could result in disciplinary action. Before Vogt was interviewed by staff members of the sex-offender treatment program (SOTP), the district court had denied his motion to withdraw his plea, and Vogt had dismissed his appeal of that order.
During the SOTP interview, Vogt stated that he was intoxicated at the time of the incidents underlying his convictions and did not remember the incidents. Vogt was accepted into the SOTP and was placed on a waiting list. While awaiting entry into the treatment program, Vogt corresponded with the state public defender about challenging the district court’s denial of his motion to withdraw his plea and the imposition of an upward sentencing departure. Vogt, who had been housed with SOTP and pre-SOTP offenders after acceptance into the program, was scheduled to begin the SOTP in March 2002, but approximately six days before he was to enter the program, he withdrew from the program without explanation. His withdrawal from the program was immediately noted in an incident report.
Approximately three weeks after Vogt withdrew from the SOTP, he sent an “offender kite” notifying the SOTP director that he wanted to discuss the treatment process. Not having received a response, he sent a similar kite six days later. The day after he sent this kite, Vogt was charged with a violation for refusing mandated treatment. Four days after he was charged, Vogt waived his right to a hearing and all procedural rights including appeal, and admitted the violation. His incarceration was extended for 90 days as discipline for the violation.
Approximately two weeks after Vogt was disciplined, the SOTP director, responding to Vogt’s kites, stated that she had been unable to reach Vogt in his unit and that because he had now been transferred to a different facility, he should send a kite with specific questions for the director to answer. There is no evidence that Vogt submitted questions to the SOTP director.
Approximately five months after Vogt
was disciplined for refusing treatment, Vogt filed a petition for
postconviction relief challenging only his sentence. A month later, the district court granted the
petition in part and denied it in part.
Approximately 17 months later, Vogt moved for an amended sentence. The district court denied the motion, and
this court affirmed. Vogt v. State, No. A04-803 (
In his petition for a writ of habeas corpus, Vogt argued that he was justified in refusing to enter the SOTP because the program requires participants to admit the crimes of which they are convicted, as well as uncharged crimes. Vogt argued that because he was still litigating his case, the requirement that he admit the crimes involved in his convictions violated his Fifth Amendment right against self-incrimination, and he argued that requiring admission of uncharged crimes would also violate his Fifth Amendment rights. Vogt submitted a “Quarterly Treatment Progress Review” form as evidence of his assertions of what SOTP requires, and the affidavits of two inmates attesting to the fact that Vogt had said he could not discuss his crimes on advice of counsel because his case was being appealed.
Respondent submitted an affidavit of
the director of the SOTP at respondent’s
The district court denied Vogt’s petition without a hearing, concluding that Vogt did not have any legal action pending at any level at the time he withdrew from the SOTP program and failed to allege any situation involving a Fifth Amendment claim with regard to uncharged offenses. This appeal followed.
“We are to give great weight to the
trial court’s findings in considering a petition for a writ of habeas corpus
and will uphold the findings if they are reasonably supported by the
evidence.” Northwest v. LaFleur, 583 N.W.2d 589, 591 (
The Fifth Amendment protection
against compelling a person to be a witness against himself in a criminal case
not only permits a person to refuse to testify against himself at a criminal
trial in which he is a defendant, but also permits him “not to answer official
questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal
proceedings.” Minnesota v. Murphy, 465
“The writ of habeas corpus, although
a writ of right, does not issue as a matter of course. It [is] incumbent upon relator to set forth
in his petition sufficient facts to establish a prima facie case for his
discharge.” State ex rel. Fife v. Tahash, 261
Vogt argues that respondent violated his Fifth Amendment
right against self-incrimination by extending his incarceration for refusing to
enter the SOTP because the program required him to admit acts underlying his
conviction and other uncharged offenses.
In a recently released opinion, this court held that extending a
prisoner’s term by delaying his supervised-release date as a disciplinary
sanction is a penalty that rises to the level of compulsion for purposes of the
Fifth Amendment privilege against self-incrimination. Johnson
v. Fabian, ___ N.W.2d ___, ___, 2006 WL 852167, at * ___ (
We conclude that Vogt, unlike
Johnson, has failed to establish that he is entitled to assert a Fifth
Amendment privilege against self-incrimination with regard to his
conviction. The “right not to testify
concerning transactions for which one has been convicted continues until the
time for appeal has expired or until the conviction has been affirmed on
With regard to uncharged sexual offenses, the document submitted by Vogt demonstrates that he was accepted into the program despite refusing, on advice of counsel, to discuss a separate sexual offense that was pending at the time he was screened for the SOTP. The affidavit of the Lino Lakes SOTP program director established that participants are not required to incriminate themselves with regard to uncharged offenses in order to successfully participate in and complete the program.
There were no material facts in dispute, and we therefore conclude that the district court correctly determined without an evidentiary hearing that Vogt has failed to establish that the SOTP compelled him to provide incriminating information about uncharged offenses in order to enter or complete the program.
The supreme court granted review with respect to
the issue of retroactive application of Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). When the supreme court
issued its opinion in State v. Houston,
702 N.W.2d 268 (