This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Dean Preston Kennedy, petitioner,





State of Minnesota,




Filed March 20, 2007

Reversed and remanded

Halbrooks, Judge



Isanti County District Court

File No. K5-99-000440



John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Jeffrey R. Edblad, Isanti County Attorney, Isanti County Courthouse, 555 18th Avenue Southwest, Cambridge, MN 55008  (for respondent)



            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that (1) the district court erred when it dismissed his pro se petition as untimely, (2) the district court erred when it declined to conduct an evidentiary hearing and instead determined that his petition was barred by the doctrine of “collateral attack,” and (3) he was denied his right to counsel during the postconviction proceeding.  Because we conclude that appellant’s petition was timely and that it constituted a challenge to the district court’s earlier judgment for restitution rather than an attack on the underlying civil determination of the child-support arrearage, we reverse and remand. 


            In 1987, appellant Dean Preston Kennedy was ordered by the district court to pay child support in the amount of $151 per month.  By February 28, 1999, appellant had failed to pay support for a period in excess of 180 days and was $32,652.02 in arrears.  Appellant was subsequently charged with felony nonsupport of a child in violation of Minn. Stat. § 609.375, subds. 1, 2a (1998), and misdemeanor criminal contempt of court in violation of Minn. Stat. § 588.20(4), (8) (1998).  Appellant pleaded guilty to the charged crime of felony nonsupport of a child, and, after waiving his right to a presentence investigation despite the district court’s concern with correctly determining the proper restitution amount, appellant was sentenced to 19 months’ imprisonment and restitution of $35,699.47 (the arrearage at the time of the hearing). 

            On December 9, 2004, an Isanti County Child Support Magistrate (CSM) issued an order suspending appellant’s child-support obligations and staying interest on the arrears for the time periods during which appellant was incarcerated.  The result of the order was to reduce the amount of arrearage by $12,763.60, decreasing the total arrearage to $23,879.87 as of March 31, 2005.[1] 

In November 2005, appellant filed a pro se petition for postconviction relief, seeking to have the district court vacate the order for restitution.  Specifically, the petition stated:

[Appellant] is being held accountable to two different courts for this obligation.  [Appellant] has been dealing with his obligation with the Isanti County Child Support.


[Appellant] is asking the court to vacate the order for restitution and let [appellant] deal with his obligation of his child support arrears with Isanti County child support office, which has dealt with this obligation since it was ordered in November 24, 1987 and is designed as well as meant to deal with child support obligations, as well as the judgments they have had on [appellant] for this obligation. 


The Minnesota State Public Defender’s Office was appointed to represent appellant.  But on January 20, 2006, before the public defender had an opportunity to prepare a petition, the district court issued an order denying appellant’s petition for postconviction relief, concluding that the petition was untimely under Minn. Stat. § 590.01, subd. 4 (2004). 

            On January 31, 2006, the public defender wrote a letter to the district court asking it to rescind the denial of appellant’s petition, arguing that appellant’s petition was in fact timely under section 590.01, subdivision 4.  The public defender also asked the district court to grant it additional time to assist appellant in determining the amount of child support that he owed, stating that “[t]he restitution judgment in question appears to differ significantly from the Isanti county figure for the same back child support still owed by [appellant].” 

The district court responded by letter on February 2, 2006, stating that it could not entertain the public defender’s request to rescind because the matter was not properly before it.  The district court noted that “[t]he only proper way to invite a court to act is by motion and not by letter (except for reconsideration).”  On February 6, 2006, the public defender filed a motion for reconsideration, again arguing that appellant’s petition was timely and that the district court should reconsider its order denying appellant’s petition for postconviction relief.  But on March 16, 2006, the district court issued an order denying appellant’s motion to reconsider, concluding that appellant’s request “appears to be an impermissible collateral attack on a civil liability.”  This appeal follows.    


“A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  We will not disturb a postconviction decision of the district court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Our review for an abuse of discretion on issues of fact is limited to determining whether the evidence is sufficient to support the postconviction court’s findings.  Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005).  But we review de novo questions of law that are decided in a postconviction proceeding.  Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006).  Furthermore, we review a district court’s ruling on a motion to correct a sentence under the same standard used for our review of a ruling on a postconviction petition—an abuse-of-discretion standard with de novo review of questions of law.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (postconviction petition); State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (motion to correct sentence).

Appellant first argues that the district court erred when it dismissed his pro se petition for postconviction relief as untimely.  Minn. Stat. § 590.01, subd. 4(a) (Supp. 2005), provides that “[n]o petition for postconviction relief may be filed more than two years after the later of:  (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s direct appeal.”  But the statute did not become effective until August 1, 2005, and “[a]ny person whose conviction became final before August 1, 2005, shall have two years after the effective date . . . to file a petition for postconviction relief.”  2005 Minn. Laws ch. 136, art. 14, § 13, at 1098.  Accordingly, as respondent concedes, this statutory provision does not bar appellant’s postconviction petition, as appellant’s conviction of March 23, 2000, became final before August 1, 2005, and the postconviction petition was filed in November 2005, well within the two-year period provided for by the statute.   

            Appellant also contends that the district court erred when it denied his postconviction petition because he raised a legal issue in his petition with regard to his sentence and was therefore entitled to an evidentiary hearing to consider the merits of his motion to vacate.  An evidentiary hearing is required unless the postconviction petition and the files and records of the postconviction proceeding conclusively show that the postconviction petitioner is not entitled to the relief requested.  Minn. Stat. § 590.04, subd. 1 (2004).  The supreme court has consistently interpreted this section to require a postconviction petitioner to allege facts that, if proved by a fair preponderance of the evidence, would entitle the petitioner to the relief requested.  See, e.g., Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002) (holding that to prevail on request for evidentiary hearing, petitioner “must allege facts that would, if proved by a fair preponderance of the evidence, entitle him to relief”); State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001) (same). 

            Here, the district court denied appellant’s petition for reconsideration and declined to hold an evidentiary hearing, instead determining that the doctrine of collateral attack barred appellant’s petition.  Specifically, the district court reasoned:

On April 25, 2000, [appellant] plead[ed] guilty to Felony Nonsupport of Spouse or Child and made a request to be sentenced at the Plea Hearing.  [Appellant] agreed that he had the right to a Presentence Investigation, but he wished to waive that right.  Furthermore, [appellant] was asked if there was any dispute as to the amount of restitution owed and [appellant] did not dispute those amounts.  [Appellant] now submits that if a Presentence Investigation were done or a Restitution Hearing were held, the court would see that the restitution ordered to Pamela Maranell was actually owed to both she and Isanti County.  [Appellant’s] request therefore appears to be an impermissible collateral attack on a civil liability.


By definition, a “collateral attack” is “[a]n attack on a judgment entered in a different proceeding.”  Black’s Law Dictionary 255 (7th ed. 1999).  Because “public policy favors the finality of judgments and the ability of parties to rely on court orders[,] . . . Minnesota law does not permit the collateral attack on a judgment valid on its face.”  Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996) (citation omitted) (stating that“[a] judgment alleged to be merely erroneous, or founded upon irregularities in the proceedings not going to the jurisdiction of the court, is not subject to attack”), review denied (Minn. Feb. 26, 1997).  Conversely,

[a] direct attack on a judgment is an attempt to annul, amend, reverse, or vacate a judgment or to declare it void in an appropriate proceeding instituted initially and primarily for that purpose . . . such as by appeal, writ of error, proper motion or petition, bill in equity, or by a proper statutory . . . action.


Stumer v. Hibbing Gen. Hosp., 242 Minn. 371, 375, 65 N.W.2d 609, 612 (1954) (footnote and citation omitted).

            Here, appellant petitioned the district court for postconviction relief, specifically asking the district court to vacate the judgment for restitution, which was a part of appellant’s original sentence.  While we do not believe that appellant is entitled to have the restitution amount vacated in its entirety, we conclude that the district court erred when it denied appellant’s postconviction petition, determining that it was an impermissible attack on the underlying civil determination of the child-support arrearage.  Instead, we conclude that the petition was a proper attack on the judgment for restitution ordered in the earlier criminal proceeding and that the restitution amount should conform to appellant’s arrearage as determined by the CSM.  We therefore reverse and remand for the district court’s modification of appellant’s child-support arrearage based on the CSM’s calculation.[2]

            Reversed and remanded.


[1]  The county attorney’s office has not opposed the reduction in the amount of appellant’s arrearage.

[2] Appellant also argues that he was denied his right to counsel during the postconviction proceeding.  But because appellant will be represented by counsel on remand, we decline to address this issue.