This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
John Jerry Cermak, petitioner,
Scott County District Court
File No. 70-1981-08573
John Jerry Cermak, OID No. 120249,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center - JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)
Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.
John Cermak appeals from an order denying his second postconviction petition that challenges his 1981 guilty pleas and sentencing on six counts of first-degree criminal sexual conduct, which the supreme court affirmed on direct appeal in State v. Cermak, 344 N.W.2d 833 (Minn. 1984). Cermak argues that by imposing the maximum sentence of 480 months, the district court deprived him of any benefit of his plea bargain because the court could not have sentenced him to more time even if he had pleaded guilty to the counts that were dismissed in exchange for the plea. He also argues that the postconviction court erred by ruling that Knaffla procedurally bars his claims and by denying him an evidentiary hearing. Because we find that the district court did not abuse its discretion by summarily denying Cermak’s repetitious petition for postconviction relief, we affirm.
The state charged Cermak in three separate complaints with
seven counts of first-degree criminal sexual conduct, seven counts of
second-degree criminal sexual conduct, and one count of engaging a minor in
obscene acts, stemming from his and his brother’s multiple sexual assaults in
1980 and 1981 of seven children between the ages of three and twelve. State
v. Cermak, 344 N.W.2d 833, 835-836 (
Cermak soon petitioned the district court for postconviction
relief, seeking to withdraw his guilty pleas because his counsel purportedly failed
to inform him of the maximum potential sentence he faced. At the postconviction evidentiary hearing,
Cermak testified that he would not have pleaded guilty if he had been advised
that he might receive the 40-year maximum sentence after doing so. The district court denied the petition. Cermak then appealed to the supreme court,
arguing that his sentence should be reduced to the maximum sentence permitted
without departure. The supreme court affirmed
Over twenty-two years later, Cermak filed a second petition for postconviction relief, again challenging his guilty pleas and sentencing and again arguing that he did not receive any benefit of his plea bargain. He again contends that the dismissal of nine counts in exchange for his guilty pleas on six counts did not work to his benefit because even if he had pleaded guilty to all fifteen counts the district court could not have imposed a greater sentence than it did. And he has again argued that the possibility of receiving the statutory maximum was not explained to him at the plea hearing. He requested that the district court amend his sentence and impose an aggregate sentence of a length that, as it happens, would result in his immediate release from prison.
The district court summarily denied Cermak’s second petition
for postconviction relief in July 2006. It
found the issues raised to be barred by the rule announced in State v. Knaffla, 309
D E C I S I O N
Cermak argues that the district court abused its discretion by not affording him an evidentiary hearing and by failing to address the merits of his claims. We agree with the district court’s decision procedurally and on the merits.
A petition for postconviction relief is a collateral attack on a judgment that carries a
presumption of regularity and, therefore, cannot be lightly set aside. Pederson
v. State, 649 N.W.2d 161, 163 (
It is now settled that
“[o]nce a petitioner has directly appealed his criminal conviction and has
filed previous petitions for postconviction relief, any
matter raised in the direct appeal
or matters that were known to the defendant and could have been raised in the
previous petitions will not be considered upon a subsequent petition for postconviction relief.” Jones
v. State, 671 N.W.2d 743, 746 (
Cermak was not entitled to a hearing on the merits of his
petition. A petitioner seeking
postconviction relief must establish facts, by a fair preponderance of the
evidence, that would warrant relief.
Cermak repeats his 1983 argument that he received no benefit from his plea bargain because the district court could not have statutorily imposed a greater sentence even if the jury convicted him of all fifteen counts. His assertion that he never presented the argument on direct appeal misses the point because he could have raised it on direct appeal and he did raise it in his first petition. His claim is now barred by Knaffla. Similarly, Cermak’s present claim that his counsel did not inform him that he could be sentenced to the statutory maximum of 480 months was specifically raised in his first petition and argued during the evidentiary hearing in 1983.