This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Tommy Lee Williams,
Filed July 11, 2006
Ramsey County District Court
File No. K7-98-2780
John M. Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)
Mike Hatch, Attorney General,
1800 Bremer Tower, 445 Minnesota St., St. Paul,
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN† 55102 (for respondent)
††††††††††† Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Crippen, 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 postconviction relief, appellant challenges the revocation of his probation in March 2001.† We affirm.
††††††††††† Appellant Tommy Williams pleaded guilty in 1999 to first-degree criminal sexual conduct for an offense against his daughter, L.W., and was sentenced to 134 months, with execution stayed.† Williams was placed on probation, and he later moved to Illinois, where his probation was transferred.
††††††††††† On June 5, 2000, in Chicago, Williams confronted his wife with a gun that was apparently inoperable in an effort to regain possession of a vehicle that he claimed he owned.† At the time, L.W., the victim of the 1999 offense, was in the vehicle.† One of the conditions of Williamsís probation was that he have no contact with her.† Thus, Williamsís conduct on June 5, 2000, violated three conditions of his probation: that he obey all laws, that he have no contact with L.W., and that he refrain from possessing a firearm.
††††††††††† The district court revoked Williamsís probation and executed his sentence in March 2001.† Williams did not appeal that decision.† But in April 2005, he filed a pro se petition for postconviction relief, claiming that the State of Minnesota improperly obtained his extradition based on a false claim that he had fled from this state.† The district court denied the petition, ruling that the extradition was not improper and that there were ample grounds to revoke probation.† This appeal followed.
review a postconviction proceeding to determine whether there is sufficient
evidence in the record to support the findings of the postconviction
court.† Hummel v. State, 617 N.W.2d 561, 563 (
Williams argues that the district court revoked his probation in 2001
without making the requisite findings on the three Austin factors.†
††††††††††† Even if we were to make an exception to the general rule, there is no probation-revocation transcript in the district court file.† Thus, we could not determine whether the district court complied with Modtland.† And even if Williams had raised the Modtland issue in the district court, and we had a transcript of the revocation hearing, Williams would have to show that the Modtland decision, which was released in 2005, is applicable to his 2001 probation revocation.
We have held that Modtland announced a new rule that does
not apply retroactively to a postconviction petition challenging a probation
revocation that occurred before Modtland
was released.† Erickson v. State, 702 N.W.2d 892, 897 (
We decline to
review Williamsís Modtland challenge
for the reasons stated above.† We also
note that Williams waited nearly four years before
filing a postconviction petition challenging the 2001 probation
revocation.† Delay is one factor that may
be considered in determining whether a petitioner is entitled to postconviction
relief.† See James v. State, 699 N.W.2d 723, 728 (
In his pro se supplemental brief, Williams alleges judicial bias and argues that he is entitled to credit for the 21 months he served on probation.† But there is no indication that Williams tried to remove the assigned judge from his probation-revocation proceeding.† Therefore, the claim of judicial bias is not properly before us.† In addition, Williams is not entitled to custody credit for time he spent under probationary supervision rather than in the custody of a correctional facility.† See State v. Wilkinson, 539 N.W.2d 249, 252-53 (Minn. App. 1995) (holding that defendant was not entitled to custody credit for time spent on electronic home monitoring as a condition of release from jail).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.