This opinion will be unpublished and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

A05-1425, A05-2518,

A06-433, A06-542

 

Jeffrey C. Morris, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed November 21, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File Nos. 93023601, 97085756, 99119692, 93023158, 00086973, 77901098

 

Dakota County District Court

File No. K04-01-1837

 

Jeffrey C. Morris, pro se appellant, Minnesota Correctional Facility, 7600 525th Street, Rush City, MN 55069, and

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis , MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Jay Heffern, Minneapolis City Attorney, Lisa M. Godon, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402; and

 

Patrick G. Leach, Thomas F. DeVincke, Bonner & Borhart, LLP, 1950 U.S. Bank Plaza, 220 South Sixth Street, Minneapolis, MN 55402; and

 

Jason T. Hutchinson, Prosecuting Attorney, City of Hopkins, Miller, Steiner and Curtiss, PA, 1011 First Street South, Suite 400, Hopkins, MN 55343; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487; and

 

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Chief Deputy, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

Appellant seeks review of seven separate district court orders denying petitions for postconviction review.  Certain issues overlap in the various appeals, and all appeals have been consolidated for purposes of this proceeding.  Appellant asserts that the postconviction courts erred and abused their discretion by: (1) failing to appoint counsel and conduct an evidentiary hearing in two proceedings; (2) summarily denying relief based on a procedural bar in the Dakota County proceeding; (3) dismissing his postconviction petitions as not timely in five proceedings; (4) denying requests to withdraw guilty pleas in six proceedings; (5) failing to recognize improper waiver of the right to counsel in one proceeding; (6) denying appellant the right to represent himself in one proceeding; and (7) holding in one proceeding that the harassment statute under which he was convicted is constitutional.  We affirm.

 

FACTS

Appellant Jeffrey Charles Morris has a lengthy criminal record and an extensive history of mental health issues, including a brief civil commitment in September 1993.  Appellant is currently incarcerated and serving a 102-month sentence on a 2001 harassment and stalking conviction in Dakota County, which is the subject of appellate file A06-542.  He has already appeared before the court of appeals in several of the cases that are part of this appeal and in several unrelated matters. 

Appellant is currently challenging seven separate orders denying postconviction relief.  These challenges result in four separate appeals pending before this court (A05-1425, A05-2518, A06-433, and A06-542).  Pursuant to appellant’s request, and partly on its own initiative, this court consolidated the various appeals into this single proceeding.  However, each denial of postconviction relief (and its subsequent appeal) has its own specific facts and its own procedural history, and each is addressed individually in this opinion.

D E C I S I O N

I.          A05-1425[1] (Hopkins Window Case)

On August 13, 1993, appellant appeared pro se and pleaded guilty to a charge of gross misdemeanor criminal damage to property for breaking the window of a building in Hopkins, a violation of Minn. Stat. § 609.595 (1992).  Appellant did not directly appeal this conviction.  On April 6, 2005, however, appellant filed a pro se petition for postconviction relief.  In his postconviction petition, appellant argued that his waiver of counsel was not knowing, intelligent, and voluntary, and that he should be allowed to withdraw his guilty plea.  The Hopkins City Attorney’s Office challenged the timeliness of the petition.            

The postconviction court summarily denied postconviction relief.  It determined that appellant was adequately advised of the dangers of self-representation, that his plea was voluntary, intelligent, and knowledgeable, and that the petition for postconviction relief was untimely.  This appeal followed. 

A.  Waiver of Counsel and Guilty Plea Withdrawal

            The first issue in the Hopkins window case is whether the postconviction court abused its discretion by finding that appellant’s waiver of counsel at his 1993 guilty plea proceeding was knowing, intelligent, and voluntary, and whether the postconviction court abused its discretion by refusing to allow appellant to withdraw his plea.

Appellate courts review the denial of postconviction relief for an abuse of discretion.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005); Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record,” and we give great deference to a postconviction court’s findings of fact.  Dukes, 621 N.W.2d at 251. 

Criminal defendants are guaranteed the right to counsel and, reciprocally, the right of self-representation.  U.S. Const. amend. VI; amend. XIV, § 1; Minn. Const. art. I, §§ 6, 7; Faretta v. California, 422 U.S. 806, 817-18, 95 S. Ct. 2525, 2532 (1975); Gideon v. Wainwright, 372 U.S. 335, 343-45, 83 S. Ct. 792, 796-97 (1963).  There is a two-pronged inquiry for determining whether a waiver of the right to counsel or a guilty plea by a defendant whose competency may be questioned was constitutionally valid.  State v. Camacho, 561 N.W.2d 160, 171-72 (Minn. 1997) (adopting the two-prong inquiry outlined in Godinez v. Moran, 509 U.S. 389, 400, 113 S. Ct. 2680, 2687 (1993)).  First, if a court has reason to doubt a defendant’s competence, “the court must make a finding that the defendant is competent to stand trial.”  Camacho, 561 N.W.2d at 171 (quotations omitted).  The legal standard “for competence to waive counsel is the same as the legal standard for competence to stand trial.”  Id.  Second, the court must determine that the defendant’s waiver of his constitutional rights is both knowing and voluntary.  Id. 

The district court proceedings carry a presumption of correctness, and a criminal defendant who has waived counsel and pleaded guilty bears the burden of proving that his plea was invalid.  State ex rel. Shelby v. Rigg, 255 Minn. 356, 366, 96 N.W.2d 886, 894 (1959).  In order to meet this burden, a postconviction petitioner’s allegations “must be more than argumentative assertions without factual support.”  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (quotations omitted). 

            1.  Appellant’s competence

The focus of a competency inquiry is whether the defendant has the ability to understand the proceedings.  Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975).  Evidence of irrational behavior, demeanor at trial, and prior medical opinions on competence to stand trial are relevant in determining whether there is reason to doubt a defendant’s competence.  Id. at 180, 95 S. Ct. at 908.  A Minnesota defendant is incompetent to stand trial if he or she lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel or is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.  Camacho, 561 N.W.2d at 171; Minn. R. Crim. P. 20.01, subd. 1 (1992). 

Appellant claims that when he waived counsel and pleaded guilty, he was not given notice of the consequences of those decisions.  But appellant failed to provide a transcript of the 1993 guilty plea proceeding.  The only record of the guilty plea available for review at the postconviction stage is a petition to enter a plea of guilty that appellant completed and signed.  A petition to enter a plea of guilty is a written document that outlines detailed discussions that defendants must have with an attorney before pleading guilty.  See Minn. R. Crim. P. 15 app. A.  Such a petition outlines, in detail, the consequences of pleading guilty.  Id.  For example, section 19 of appellant’s petition to enter a guilty plea states that a person with prior convictions may be subject to a longer sentence if he or she pleads guilty.  Although appellant did not have an attorney, the petition he signed put him on notice of the consequences of pleading guilty. 

The petition to enter a guilty plea does indicate that appellant had some mental health history at the time of the plea.  However, appellant failed to provide any evidence of irrational behavior at the time of the guilty plea proceedings, of his demeanor at those proceedings, or of any medical opinion on his competence to stand trial.  Because appellant failed to meet his burden to establish incompetency, we conclude that the postconviction court in the Hopkins window case did not abuse its discretion in determining that appellant was competent to stand trial, waive counsel, and plead guilty.

            2.  Knowing and voluntary waiver of counsel

The purpose of the “knowing and voluntary” inquiry is to determine whether the defendant actually understands the significance and consequences of his or her decision to waive counsel.  Faretta, 422 U.S. at 835, 95 S. Ct. at 2541.  Again, appellant failed to provide evidence of irrational behavior, medical opinions, or other evidence showing that he did not understand the significance and consequences of his decision at the guilty plea proceedings.  He has also failed to provide any evidence that his decision was coerced.  In this consolidated appeal, appellant challenges convictions dating back to 1977.  Throughout that time, appellant has repeatedly opted to waive the right to counsel, or even discharged appointed counsel.  The guilty plea petition signed by appellant also indicates he was fully apprised of the significance of the court proceedings. 

Appellant has failed to provide any evidence that he did not understand the significance and consequences of his decisions at the 1993 guilty plea proceedings.  Therefore, we conclude that the postconviction court did not abuse its discretion in determining that appellant’s decision to waive the right to counsel and plead guilty was knowing and voluntary.

            3.  Guilty plea withdrawal

Appellant argues that the district court abused its discretion by refusing to allow appellant to withdraw his guilty plea.  The Minnesota Rules of Criminal Procedure define the right of an accused to withdraw a guilty plea.  Minn. R. Crim. P. 15.05.

A defendant does not have an absolute right to withdraw a guilty plea.  After a sentence has been imposed, a defendant may withdraw a guilty plea only if the petition is timely and the defendant shows that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P., subd. 1; see also Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (stating that burden of proof to establish basis for plea withdrawal rests with defendant).  A district court’s decision to deny withdrawal of a guilty plea will only be reversed if the district court abused its discretion.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). 

            Appellant failed to provide a transcript of the 1993 guilty plea proceedings, and the record on this appeal indicates that a transcript no longer exists in the district court file.  Although this lack of a transcript may favor an evidentiary hearing, as indicated above, the petition to enter a plea of guilty provides support for the postconviction court’s denial of postconviction relief.  Further, appellant has not pointed to anything of record indicating that an evidentiary hearing is necessary to correct a manifest injustice.

            Based on the record that exists and the lack of evidence presented by appellant, we conclude that the postconviction court did not abuse its discretion in refusing to allow appellant to withdraw his guilty plea.

            B.  Legal Representation

            The next issue in the Hopkins window case is whether the district court erred by not appointing counsel for appellant in this postconviction proceeding.[2]  This is a legal issue which is subject to de novo review.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).

Minn. Stat. § 590.05 (2004) provides that a postconviction petitioner who is financially unable to obtain counsel for the postconviction proceedings may apply for representation by the state public defender.  If such a petitioner has not already directly appealed the conviction, the state public defender must accept representation.  Id.  However, a 2003 amendment to section 590.05 allowed the public defender to review the case and decline representation if the sentence was the presumptive guidelines sentence and if the public defender determined there was no basis for an appeal.  See Deegan v. State, 711 N.W.2d 89, 97-98 (Minn. 2006) (discussing the 2003 amendment). 

In Deegan, the Minnesota Supreme Court struck down the 2003 amendment as unconstitutional.  Id. at 98.  The supreme court determined that “a defendant’s right to the assistance of counsel under Article I, section 6 of the Minnesota Constitution extends to one review of a criminal conviction, whether by direct appeal or a first review by postconviction proceeding.”  Id.  Therefore, the court severed the 2003 amendment and revived section 590.05 as it existed before the amendment.  Id.

            Prior to the 2003 amendment, section 590.05 read as follows:

A person financially unable to obtain counsel who desires to pursue the remedy provided in section 590.01 may apply for representation by the state public defender. The state public defender shall represent such person . . . if the person has not already had a direct appeal of the conviction. The state public defender may represent, without charge, all other persons pursuing a postconviction remedy under section 590.01, who are financially unable to obtain counsel.

 

Minn. Stat. § 590.05 (2002).          

            Importantly, both the pre-Deegan and post-Deegan versions of Minn. Stat.            § 590.05 indicate that an indigent petitioner may apply for representation.   In Deegan, the postconviction petition was the petitioner’s first review of his conviction, and he specifically requested the assistance of the state public defender in filing the petition.  Deegan, 711 N.W.2d at 92.  The state public defender denied representation, and the petitioner filed a pro se petition for postconviction relief that included a motion for appointment of counsel.  Id.  The state public defender’s office reiterated its denial of representation, and the district court denied the petitioner’s motion for appointment of counsel.  Id.  In response, the supreme court declared the 2003 amendment unconstitutional because it “deprive[d] some defendants of meaningful access to one review of a criminal conviction.”  Id. at 98.  However, the court did not address the fact that the statute requires that a postconviction petitioner request counsel. 

Appellant relies on Deegan and claims that this case should be remanded to the district court to recommence this postconviction proceeding with appointed counsel.  But because appellant makes no claim, and the record does not indicate, that he ever requested assistance of counsel in the district court for this Hopkins window postconviction proceeding, and because he does not challenge the requirement that he make that request, we conclude that appellant’s right to counsel was not violated here.[3]

            C.  Evidentiary Hearing

The third issue in the Hopkins window case is whether the postconviction court abused its discretion by summarily denying appellant’s petition for postconviction relief without conducting an evidentiary hearing.  Appellate courts address the denial of a petition without an evidentiary hearing only to determine whether sufficient evidence exists to support the district court’s findings.  Powers, 695 N.W.2d at 374.  We will reverse only on proof that the district court abused its discretion.  Id.; Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003). 

Postconviction courts are required to schedule a hearing to address a postconviction petition, unless the petition, files, and record “conclusively show that the petitioner is entitled to no relief. . . .”  Minn. Stat. § 590.04, subd. 1 (2004).  As 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 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Any doubts about whether an evidentiary hearing is required should be resolved in favor of the petitioner.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003); see also Minn. Stat. § 590.04, subd. 1.  However, allegations of disputed fact must be more than mere assertions or conclusory allegations without factual support.  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). 

Appellant claims that he was not given notice of the consequences of pleading guilty.  However, the record shows that appellant was provided with a guilty plea petition, which he signed.  Although appellant makes generalized allegations regarding his competence to waive counsel and plead guilty, he has provided no evidence that would support a finding or create a factual dispute over whether he would be entitled to relief.[4]  Therefore, we conclude that based on the available record, the postconviction court did not abuse its discretion in refusing to grant appellant an evidentiary hearing. 

            D.  Timeliness

            The last issue presented in the Hopkins window case is whether the postconviction court abused its discretion by denying appellant’s petition as untimely.

Timeliness is a relevant consideration in determining whether a postconviction petition to withdraw a guilty plea should be granted.  See James v. State, 699 N.W.2d 723, 727-28 (Minn. 2005) (holding that petition to withdraw guilty plea filed 39 months after imposition of conditional release term was not untimely).  Delays do not automatically preclude postconviction relief.  See, e.g., Rairdon v. State, 557 N.W.2d 318, 322 (Minn. 1996) (nine-year delay did not preclude review on the merits); Riggers v. State, 284 Minn. 543, 543-44, 169 N.W.2d 58, 59 (1969) (33-year delay alone did not preclude relief).  But a delay in filing a postconviction petition weighs against a petitioner.   See Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (affirming the denial of postconviction relief based in part on four-year delay); Wieland v. State, 457 N.W.2d 712, 715-16 (Minn. 1990) (affirming denial of postconviction relief and noting that a ten-year delay weighed against petitioner).  Furthermore, “a delay that is deliberate and inexcusable constituting an abuse of the judicial process . . . is sufficient grounds to justify denial of relief solely on the basis that the petition is untimely.”  James, 699 N.W.2d at 728.  Doubts about the legitimacy of postconviction claims also increase when a petitioner has accepted an advantageous plea bargain, served the terms of the sentence without raising any questions about the plea, and raised a postconviction challenge only after a subsequent violation includes the initial plea as a factor in the punishment received for the new violation.  Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).

In the Hopkins window case, appellant’s nearly twelve-year delay in filing the petition weighs strongly against him.  The statutes identify an exception to the general timeliness rule in filing petitions for postconviction relief if “the petitioner establishes that a physical disability or mental disease precluded a timely assertion of the claim . . . .”  Minn. Stat. § 590.01, subd. 4(b)(1) (Supp. 2005).  In a supplemental appellate brief filed with this court, appellant alleged that he delayed in filing his brief because he suffers from bipolar disorder.  Appellant claims that procrastination and self-destructive behavior are symptoms of the disorder, and that he delayed in challenging his plea until he began receiving psychiatric care at the Rush City detention center in July 2005.  However, appellant provided no evidence that bipolar disorder impaired his ability to understand and participate in this 1993 legal proceeding.  We conclude appellant failed to show that his delay was justified by his bipolar disorder.

Appellant also argues that the state failed to establish that it would be burdened by the twelve-year delay.  In the absence of prejudice to the state, courts generally decline to hold that a postconviction petition is barred simply because it is untimely.  Bolinger v. State, 647 N.W.2d 16, 22 (Minn. App. 2002).  However, it appears this delay has created a logistical problem for judicial consideration: there is no transcript of the original proceeding and it is no longer realistic to reconstruct that proceeding.  Contrary to appellant’s contention at the postconviction level, the city indicated that it would be burdened by having to re-try a case that is twelve years old.  The postconviction court focused on the long delay in filing and implicitly found that the city met its burden in the postconviction proceedings.  We will not disturb this determination.

            Appellant generally argues that there is no evidence that he is attempting to deliberately abuse judicial process.  However, appellant did not file any of the postconviction petitions involved in the present appeal until after he was sentenced in Dakota County.  Appellant has testified that he believes the sentence he is currently serving in Dakota County was lengthened due to his status as a repeat offender, and that the sentence would have to be reduced if his earlier convictions were overturned.  The delay in filing coupled with the incentive to reduce the Dakota County sentence casts doubt on the justification for the delay.

We conclude that the postconviction court did not abuse its discretion by denying relief because of timeliness based on the limited available record and the nearly twelve-year delay in filing.

II.        A05-2518 (Tear Gas Case)

On February 23, 1998, appellant pleaded guilty to a charge of unlawful possession of tear gas under Minn. Stat. § 624.731, subd. 3(b) (1996).  He did not directly appeal this conviction.  On August 16, 2005, appellant filed a postconviction petition requesting that the court vacate his sentence or permit withdrawal of his guilty plea.  In supplemental submissions to the postconviction court, appellant requested an evidentiary hearing and challenged his competence to plead guilty.

The postconviction court determined that an evidentiary hearing was unnecessary based on the factual record presented.  It also determined that appellant’s six-year delay was not a substantive basis for denying appellant’s petition.  However, the district court denied postconviction relief because it determined that appellant failed to offer any evidence supporting his contention that he was incompetent to plead guilty.  This appeal followed.

            A.  Guilty Plea Withdrawal

The first issue presented in the tear gas case is whether appellant’s February 1998 guilty plea was knowing, intelligent, and voluntary, and, if not, whether the postconviction court abused its discretion in refusing to allow appellant to withdraw his guilty plea.  The legal standards that govern our review of this issue have been summarized previously and apply to our review of this case as well. 

Appellant was represented by counsel when he originally pleaded guilty to the charge, and the transcript does not provide any evidence of irrational behavior or any of the other factors that would cause a court to doubt his competence.  The transcript also provides ample evidence of appellant’s extensive understanding of the proceedings.  For example, appellant testified that he understood he was giving up his right to trial, and that he was “fully aware of all of [his] 5th and 6th Amendment rights.” 

Appellant contends that the trial court’s competency determination should have been called into question because: (1) he was civilly committed six months after pleading guilty; and (2) he was initially diagnosed with delusional disorder and psychosis while in detention for the tear gas offense.  The postconviction court considered appellant’s petition and extensive evidence regarding appellant’s mental health history after the plea proceeding.  This evidence shows that appellant was diagnosed with delusional disorder and psychosis after he was incarcerated in April 1998, but nothing indicates that he was incompetent at the time he pleaded guilty.  The postconviction court also considered the transcript of the plea proceedings and appellant’s behavior therein.  As indicated above, this evidence provides ample confirmation of appellant’s extensive understanding of the proceedings.  Therefore, the postconviction court determined that the district court was justified in accepting appellant’s guilty plea, and denied appellant’s request for postconviction relief.  

Based on the lack of any record supporting appellant’s claims of incompetency at the time of the plea and the evidence tending to show competency at that time, we conclude that the postconviction court did not abuse its discretion by denying relief.

B.  Legal Representation

            The second issue present in the tear gas case is whether the postconviction court erred as a matter of law in failing to appoint counsel for appellant’s postconviction proceedings.  The legal standards that govern our review of this issue have been summarized previously and apply to our review of this case. 

Again, absent any claims or briefing showing that appellant ever requested the appointment of counsel in connection with the presentation of his postconviction petition to the district court, we decline to conclude that appellant’s right to counsel was violated in his postconviction proceeding.

            C.  Evidentiary Hearing

            The third issue presented in the tear gas case is whether the postconviction court abused its discretion by summarily denying postconviction relief without conducting an evidentiary hearing.  The legal standards that govern our review of this issue have been summarized previously and apply to our review of this case. 

In Morris v. State, No. A04-2095, 2005 WL 1804497 (Minn. App. Aug. 2, 2005), appellant made a similar competency argument regarding the consolidated Hennepin County cases that are discussed later in this opinion.  In the Hennepin County cases, this court remanded the issue to the postconviction court for further consideration.  Id., at *3.  However, the tear gas case we are now considering differs from the remanded Hennepin County cases.  Appellant was unrepresented by counsel at the initial plea hearing in the Hennepin County cases, and the postconviction court did not even consider the competency argument in those cases.  Here, appellant was represented by counsel when he pleaded guilty to the tear gas offense.  The postconviction court evaluated the competency claim, and determined that the petition, files, and record did not show that appellant was entitled to relief regarding his competency claim. 

Other than mere allegations that he was incompetent at the time he pleaded guilty, appellant has not provided any evidence to show that he would be entitled to relief.  The record supports the postconviction court’s findings, and we conclude that it did not abuse its discretion by denying an evidentiary hearing.

III.       A06-433 (Consolidated Hennepin County Cases)

A06-433 involves a consolidation of four different Hennepin County files. 

            1999 Edina Police Harassment

One of the four files involved in A06-433 is, in turn, a consolidation of four convictions for offenses arising out of a series of events.  In the fall of 1999, appellant was arrested by an Edina police officer for disorderly conduct.  Following appellant’s arrest, he was charged with criminal damage to property for writing derogatory statements about the same officer on a bathroom wall in the Southdale court facility.  Appellant was later charged with harassment by mail after he sent three pieces of derogatory and harassing mail to the officer’s workplace. 

In December 1999, appellant appeared pro se and pleaded guilty to one count of gross misdemeanor harassment-by-mail under Minn. Stat. § 609.749, subd. 2(a)(6) (1998), one count of misdemeanor criminal damage to property, and two counts of misdemeanor disorderly conduct.  Appellant did not file a direct appeal in the 1999 Edina case.  However, in 2004, appellant filed a petition for postconviction relief seeking the withdrawal of his guilty plea.  Appellant argued that he was not competent to waive counsel or plead guilty and that the harassment statute was unconstitutional.  The postconviction court summarily denied the petition. 

This court reversed the summary denial of postconviction relief and remanded the 1999 Edina case for an evidentiary hearing under Minn. Stat. § 590.04 (1998).  Morris v. State, No. A04-2095, 2005 WL 1804497, at *3 (Minn. App. Aug. 2, 2005).  We instructed the postconviction court to consider “appellant’s competency to waive his right to counsel” and his “challenge to the constitutionality of the mail harassment statute.”  Id., at *3-*4.  Collectively, that proceeding is referred to as the 1999 Edina case.

1977 Theft, 1993 Dayton’s Theft, 2000 Liquor Store

In the other three Hennepin County cases involved in A06-433, appellant pleaded guilty to a 1977 charge for felony attempted theft of over $2,500 (1977 theft); a 1993 charge for gross misdemeanor theft at a Dayton’s Department Store (1993 Dayton’s theft); and a 2000 charge for felony criminal damage to property for breaking the window of a liquor store (2000 liquor store).  Appellant did not directly appeal in any of these cases.

After the 1999 Edina case was remanded, appellant filed additional pro se postconviction petitions in the 1993 Dayton’s theft case and the 2000 liquor store case.  Appellant raised competency arguments in those petitions that were similar to the arguments in the 1999 Edina petition.  In order to consider the 1999 Edina case on remand, the postconviction court held an evidentiary hearing on November 15, 2005.  At that hearing, the postconviction court also received evidence regarding the 1993 Dayton’s theft case and the 2000 liquor store case. 

Shortly before the evidentiary hearing, appellant filed his postconviction petition regarding the 1977 theft case.[5]  The 1977 theft case was not a part of the evidentiary hearing, but the postconviction court still considered the petition in that case along with the three that were specifically addressed at the hearing.  The postconviction court ultimately denied all four petitions involved in A06-433.  It determined that none of the petitions were timely, that appellant was competent to waive counsel and plead guilty, and that the harassment statute was constitutional.  This appeal followed.

A.  Waiver of Counsel and Guilty Plea Withdrawal

The consolidated Hennepin County appeal presents three issues.  The first issue is whether appellant’s waivers of counsel at his guilty plea proceedings were knowing, intelligent, and voluntary, and, if not, whether the postconviction court abused its discretion in refusing to allow appellant to withdraw his guilty pleas. 

            Given the common principles, issues, and parallel factual settings in which these waivers and guilty pleas occurred, this opinion considers them jointly.  Again, the legal standards that govern our review of this issue have been summarized previously and apply to our review of this case.

The district court received extensive evidence, including appellant’s mental health records, his prison records, his 1993 civil commitment order, and his Anoka-Metro Treatment Center records.  The court also heard testimony from appellant and some of the attorneys involved in appellant’s prior plea proceedings.

In its findings in each of the proceedings, the postconviction court analyzed appellant’s competence based on the two-pronged inquiry for waiving the right to counsel or pleading guilty.  It determined that when appellant entered his guilty pleas, he understood the proceedings and conferred with a reasonable degree of rational understanding with defense counsel.  For example, during cross-examination regarding the 2000 liquor store case, appellant gave the following testimony:

            Q:  So you understood you were waiving rights by entering this plea?

            A:  Yes.

            Q:  And you understood that you were getting a reduced charge for doing this?

            A:  Well, you have already asked the question.

            Q:  Yes or no?

            A:  The answer once again is yes, sir.

The court also determined that appellant’s waiver of counsel at each of the original proceedings was knowing and voluntary.  For example, during cross-examination regarding the Dayton’s theft case, appellant testified as follows:

Q:  You completed this petition [to enter a plea of guilty] with your attorney in July, 1993, correct?

 

A:  What year?

Q: 1993?

A:  Yeah, yes.

Q:  Was this plea inaccurate?

A:  I wouldn’t say that it was inaccurate.

Q:  Was this plea involuntary?

A:  Well, certainly not.

Q:  By that do you mean to say it was voluntary?

A:  Well, yes, it was voluntarily submitted.  If it had been involuntary I certainly would have made an issue out of it in court.

 

The record in each of the proceedings contains evidence regarding the context of the pleas and waivers.  Appellant argues that the postconviction court erred in holding that the trial courts did not need to conduct a competency evaluation when counsel was waived and the guilty pleas were entered.  However, the evidence gathered at the postconviction hearing, including appellant’s own testimony, supports findings that appellant was competent to waive counsel and plead guilty when he did so.  In fact, one of the attorneys who testified at the evidentiary hearing stated that during the guilty plea proceeding, appellant appeared more experienced than some lawyers, and that appellant was able to cite statutes and cases and articulately discuss complex legal topics such as upward durational departures and sentence reductions.

Based on the evidence presented at the evidentiary hearing, we conclude that the postconviction court did not abuse its discretion by finding that appellant was competent to waive counsel and plead guilty in each of the four proceedings.

            B.  Timeliness

            The second issue is whether the postconviction court abused its discretion in denying appellant’s petitions as being untimely.  Again, the legal standards that govern our review of this issue have been summarized previously and apply to our review of this case.  After conducting the postconviction evidentiary hearing, the postconviction court indicated that appellant knew of the mental conditions under which he was seeking postconviction relief but delayed filing postconviction petitions challenging his competence to plead guilty for five, 12, even 28 years.  The record supports this determination because it shows that appellant’s mental health issues date back to the age of seven.  In addition, appellant was civilly committed in 1993, and he has been in and out of the state correctional system since then.  The record does not indicate that appellant just recently become aware of his condition.

Nothing in the record indicates that appellant’s condition undermined his ability to understand and address the issues.  Further, our earlier observation that appellant’s interest in these long-closed matters, in which he has served his sentence, appears to be prompted by his recent Dakota County sentence, applies here.  A defendant aware of the basis for a postconviction challenge has no right to wait until collateral consequences arise to challenge his convictions. Based on the record, we conclude that the postconviction court did not abuse its discretion by concluding that the four petitions in the consolidated Hennepin County case were untimely.

            C.  Constitutionality of the Harassment Statute

The third issue presented in the consolidated Hennepin County case is whether the postconviction court erred as a matter of law by concluding that the harassment statute under which appellant was convicted in the 1999 Edina case, Minn. Stat. § 609.749, subd. 2(a)(6) (1998), is constitutional.  Because we uphold the postconviction court’s dismissal of the petition as untimely and its denial of the request to withdraw the guilty plea based on competency, we do not reach the constitutional question. 

IV.       A06-542 (Dakota County Case)

In October 2001, appellant appeared pro se and was convicted of four counts of felony harassment and stalking and one count of impersonating a police officer in Dakota County.  Shortly before trial began, the district court ordered a competency evaluation under Minn. R. Crim. P. 20 to determine if appellant was competent to waive counsel and appear pro se at trial.  The court found appellant competent to proceed, and accepted his guilty plea.  At sentencing, the district court found that appellant was a dangerous repeat offender under Minn. Stat. § 609.1095 (2000) and sentenced him to an executed, upward double departure of 102 months.  Appellant directly appealed his conviction with the assistance of the public defender’s office.  This court affirmed.  State v. Morris, No. C8-02-434 (Minn. App. Feb. 4, 2003).  Appellant petitioned the Minnesota Supreme Court for further review, but his petition was denied. 

After appellant’s unsuccessful direct appeal in the Dakota County case, he filed several pro se petitions for postconviction relief and raised at least nine different claims.  Those petitions were denied by the postconviction courts, and they have been the subject of several appeals.  See, e.g., Morris v. State, Nos. A04-683 and A04-725, 2004 WL 2094675 (Minn. App. Sept. 21, 2004) (affirming the postconviction court’s denial of relief in appellant’s first and second petitions). 

In February 2006, appellant filed his tenth petition for postconviction relief in the Dakota County case.  It is the subject of this appeal.  In the tenth petition, appellant requested an evidentiary hearing to challenge the validity of the competency evaluation.  Appellant argued that his history of mental heath issues and a letter he recently discovered in his prison file cast doubt on the validity of the rule 20 evaluation.  The letter is a prisoner evaluation written by a Dakota County jail administrator.  It outlines the administrator’s observations, and it describes appellant as a “[s]trange inmate according to staff, [who] may have undiagnosed mental concerns.”

The postconviction court summarily denied appellant’s tenth petition for postconviction relief.  The court determined that the Knaffla case and other procedural bars prevented appellant from raising this issue in his tenth postconviction petition because it could have been raised in an earlier appeal or petition and because the letter presented “nothing new.”  This appeal followed. 

The issue presented in the Dakota County case is whether the postconviction court abused its discretion by denying appellant’s petition as being procedurally barred.  A postconviction petition filed after a direct appeal has been completed may not be based on grounds that could have been raised during the direct appeal.  Minn. Stat. § 590.01(2) (Supp. 2005).  Although a defendant is entitled to substantive review of a conviction, “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  Therefore, in successive petitions for postconviction relief, courts will not consider claims that the petitioner raised or knew of and could have raised in earlier proceedings.  Id; see also Wayne v. State, 601 N.W.2d 440, 441-42 (Minn. 1999) (holding that denial of petitioner’s third petition for postconviction relief was not abuse of discretion where issues raised were known and could have been raised in two previous petitions); Dunn v. State, 578 N.W.2d 351, 353 (Minn. 1998) (holding that issues raised in successive petitions were not so novel that their legal bases were not reasonably available when previous postconviction petitions were filed). 

Appellant argues that this procedural bar should not extend to his current postconviction challenge to the validity of the rule 20 evaluation.  Appellant argues that his extensive history of mental illness and the newly discovered letter in his prison records cast doubt on the validity of the rule 20 evaluation that was conducted in this case and that the postconviction court abused its discretion by denying his tenth petition for postconviction relief.

Appellate courts review the denial of a postconviction petition for relief for an abuse of discretion.  Powers, 695 N.W.2d at 374.  Newly discovered evidence will only be used to grant postconviction relief if: “(1) the evidence was not known to the petitioner or counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence probably would produce an acquittal or a more favorable result.”  Sutherlin v. State, 574 N.W.2d 428, 434 (Minn. 1998) (citing Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997)).

Appellant claims that he was unaware of the letter until he was recently reviewing his prison records.  However, it could have been discovered as he prepared for the original proceeding, the direct appeal, or any of the prior nine postconviction challenges in this case.  In addition, the evidence, even if newly discovered, is cumulative, doubtful, and unlikely to produce a different result.  As the postconviction court noted, appellant’s mental health is “nothing new” to this case.  Appellant has an extensive history of mental illness that began when he was seven years old.  In fact, he had been in treatment.  The record indicates appellant knew of his mental condition at the time of the direct appeal and when he filed the prior nine postconviction petitions in the Dakota County case.  Doubt about appellant’s mental health was the reason the court conducted the rule 20 evaluation in the first place.  The letter in question is the observation of a lay staff person that is not likely to call the validity of the professionally administered rule 20 evaluation into question. 

Based on the record, we conclude that the postconviction court did not abuse its discretion by determining that the “newly discovered” letter and appellant’s history of mental health issues were insufficient to warrant postconviction relief.

            Affirmed.



[1] The state has not made an appearance in connection with A05-1425.  We decide this appeal on the merits.  See Minn. R. Civ. App. P. 142.03.

[2] By contrast, the record reflects that appellant did request appointment of counsel on appeal.  The public defender initially declined appellate representation.  Shortly after the release of the Deegan decision, this court ordered the state public defender to review its decision to decline representation on appeal, and the state public defender undertook representation.

[3] Appellant makes no claim that the state had an obligation to advise him of a right to counsel.  He has shown himself to be aware of his right to counsel in court proceedings, and he has routinely requested, waived, or even discharged counsel.

[4] As discussed infra, this court remanded the postconviction proceedings involved in A06-433 for an evidentiary hearing to address, in part, his competence to waive counsel and plead guilty.  We note that even when a hearing was held, appellant failed to provide sufficient evidence to cause the postconviction court to allow withdrawal of his guilty plea.  However, we recognize that each of the appeals before us arises out of a separate conviction at a separate point in time and do not by reference to other cases indicate the facts and result on an issue in one case to determine the result in another.

[5] The 1977 case had been archived, so there was no longer a district court record for the trial proceedings in that case.