This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re Application of Leonard J. Richards,

for payment of services

pursuant to Minn. Stat. § 611.21(a).

Filed January 6, 1998

Affirmed; motion to strike brief denied

Klaphake, Judge

Hennepin County District Court

File No. 87900689

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)

Leonard J. Richards, P.O. Box 10, Stillwater, MN 55082-0010 (Appellant pro se)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.



Leonard J. Richards appeals from two district court orders denying his application for public funds under Minn. Stat. § 611.21 (1996), providing findings of fact in response to this court's remand in State v. Richards, C6-96-1586 (Minn. App. Dec. 17, 1996) ("Richards I"), and denying his motion for an evidentiary hearing and amended findings. Because the district court's findings are adequate for our review and because the court did not abuse its discretion in any of its rulings, we affirm.


Appellant was convicted of two counts of first-degree murder and is currently serving consecutive life terms at the Minnesota Correctional Facility in Oak Park Heights. See State v. Richards, 552 N.W.2d 197 (Minn. 1996); State v. Richards, 495 N.W.2d 187 (Minn. 1992).

In February 1996, appellant filed an ex-parte application with Hennepin County District Court seeking: (1) release from custody; (2) appointment of counsel to represent him in a postconviction proceeding; and (3) $5,000 in public funds in order to access legal materials for preparation of his postconviction relief petition. The district court denied appellant's requests.

On appeal, this court affirmed the district court's refusal to appoint counsel, but remanded the matter for findings on the denial of appellant's application for public funds. Richards I. On May 27, 1997, based on its review of the parties' affidavits and other submissions, the district court made a number of findings and denied appellant's application. He thereafter filed an "Ex-parte Notice of Motion for Amended Findings and Request for Extension of Time to Prepare Motion Papers," which the district court denied by order dated July 3, 1997. This appeal is from both orders.



Appellant argues that the district court improperly denied his request for an evidentiary hearing on remand. In Richards I, this court remanded "to allow the district court to set forth its reasoning for the denial of [appellant's] application." Because this court did not instruct the district court to reopen or supplement the record by holding an evidentiary hearing, the district court had discretion to handle the remand in any manner not inconsistent with our decision. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).

Although the district court denied appellant's request for an evidentiary hearing, it allowed him to submit a detailed affidavit to explain: (1) how much public funds he was requesting; (2) what he planned to do with the requested funds; (3) who he planned to hire in pursuit of his claims; and (4) why the previous public funds granted to him were not sufficient for pursuit of his claims. In response, appellant submitted a 13-page affidavit with attached exhibits. Under these circumstances, we cannot conclude that the district court abused its discretion in refusing to grant appellant an evidentiary hearing.


Appellant argues that the district court prematurely ruled on his motion for amended findings because he had not yet submitted his motion papers. After receiving a copy of the district court's order on remand, which made findings and denied his application for funds, appellant filed a document entitled "Defendant's Notice of Motion for Amended Findings and Request for Extension of Time to Perfect Motion Papers." In that document, he stated that he "intends to move the District Court for amended findings." Appellant then continued to explain which findings he objected to and why he believed they were erroneous.

The district court easily could interpret this document as a motion. Further, even if the district court's denial of appellant's motion was premature, he has failed to show how he was unable to present persuasive argument to the court or to preserve any issues for appeal, or was otherwise prejudiced. We therefore conclude that the trial court did not prematurely or improperly rule on appellant's motion for amended findings.


Appellant applied for additional public funds under the following statute:

(a) Counsel appointed by the court for an indigent defendant * * * may file an ex parte application requesting investigative, expert, or other services necessary to an adequate defense in the case. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant. The court may establish a limit on the amount which may be expended or promised for such services.

Minn. Stat. § 611.21 (1996)[1]. A district court's determination on an application for public funds will not be reversed absent a clear abuse of discretion. In re Application of Wilson, 509 N.W.2d 568, 570 (Minn. App. 1993). The court must make findings to support a denial of funds, and those findings must be affirmed unless clearly erroneous. Minn. Stat. § 611.21(c); Minn. R. Civ. P. 52.01.

Limit to Funds

The statute allows the district court to "establish a limit on the amount which may be expended or promised for such services." Minn. Stat. § 611.21(a). In this case, the district court found that Hennepin County had already provided $620,682 in funds to appellant for his defense, that he did not appropriately spend all of these funds, and that $620,682 "is more than adequate."

Appellant argues that because Hennepin County only provided funds for his trials and did not provide any funds for either of his direct appeals, it has actually spent nothing to aid him in challenging his convictions. Appellant also disputes the $620,682 figure cited by the district court, and criticizes several of the expenditures as having been made to incompetent attorneys or to vendors chosen by those attorneys. Appellant finally insists that no evidence supports the district court's finding that he inappropriately used some of the public funds he received to finance his run for public office.

Even if the $620,682 figure is inaccurate or includes inappropriate expenditures, the fact remains that Hennepin County has expended substantial public funds to ensure that appellant received an adequate defense. The supreme court confirmed that, at least in connection with one of his trials, Hennepin County "ultimately provided [appellant] more than $500,000 for his defense." Richards, 552 N.W.2d at 202. The court further affirmed the trial court's decision ordering appellant to reimburse Hennepin County $50,000, based on the trial court's estimation that appellant "had wasted at least that much." Id. at 210-11. Under these circumstances, the district court did not abuse its discretion in concluding that the funds Hennepin County has already provided to appellant are sufficient and in setting a limit on those funds.

Necessity of Funds

The statute also requires that the funds be "necessary to an adequate defense." Minn. Stat. § 611.21(a). Appellant claims he needs up to $5,000 in additional funds for storage space, transportation between the prison and storage site, services of security personnel for the time he is away from prison, and ancillary expenses necessitated by him working away from the prison. The district court found that his explanations as to why these additional funds were necessary for preparation of a petition for postconviction relief were "unsubstantiated" and "irrelevant."

Appellant argues that he needs these public funds to store his legal materials because the Department of Corrections has threatened to destroy them under its Allowable Property Policy. He insists that this DOC policy interferes not only with his ability to pursue postconviction relief, but also with his ability to litigate his long-pending federal tax court case. He also claims the policy will prevent him from obtaining federal habeas corpus review, which requires him to first properly exhaust state remedies.

This court recently rejected a constitutional challenge to this DOC policy in Kristian v. State, 541 N.W.2d 623 (Minn. App. 1996). In that case, the defendant was convicted of murder and "accumulated a great deal of legal materials related to his conviction," including "documents `unique' to his case, such as transcripts, briefs, and court orders." Id. at 628. At some point, he was informed his excess property was subject to the DOC policy. He thereafter sought injunctive relief, claiming that the policy denied him his constitutional right of access to the courts because it prevented a "potential collateral attack on his conviction." Id. at 627. This court rejected the defendant's claim concluding that he failed to show actual prejudice because the policy did not prevent him from filing documents or otherwise accessing the courts. Id. at 628. This court further noted that counsel had been appointed to assist the defendant in seeking postconviction relief and that part of counsel's responsibility was to assist him "in selecting those materials that would be useful to possess in prison and that will fit in the footlockers." Id.

Similarly, appellant has failed to show actual prejudice. He has failed to specify exactly when he might file a petition for postconviction relief or what possible grounds he might assert in such a petition. In addition, because appellant acted as his own attorney, he is familiar with his trial and appellate proceedings and is capable of selecting those materials that will be most useful in preparing any postconviction petition. Finally, appellant continues to have access to the prison law library and can petition to receive additional court documents as necessary, so long as he stays within the DOC policy. Thus, the district court did not abuse its discretion in finding that appellant's request for additional funding to store his legal materials was unreasonable and unnecessary where, as here, appellant has had the opportunity to present adequate defenses, his convictions have been affirmed on appeal, and he has presented no colorable collateral attacks on those convictions.


Appellant moves to strike the state's brief because he claims that he was never served with a copy of it. He insists that without access to the state's brief, he cannot prepare and submit his reply brief.

The state claims that it properly served its brief and appendix on appellant. As proof, the state has submitted an "Affidavit of Service" indicating that on October 6, 1997, respondent's brief and appendix were served by mail on appellant.

Nevertheless, by affidavit dated November 20, 1997 and in certified letters to this court dated November 10 and November 12, 1997, appellant continues to claim that he has not received a copy of the state's brief. Attached to his most recent affidavit, appellant includes a print-out from the prison's mail room that lists all mail received by him from October 9 through November 18, 1997. This print-out is not necessarily conclusive proof that appellant never received the state's brief, however, because the brief could have arrived before October 9.

Although we acknowledge that appellant may not, in fact, have actually received a copy of the state's brief due to some error by the post office or by the prison mailroom, service by mail is proper service and is complete upon mailing. See Minn. R. Civ. App. P. 125.03. Thus, we cannot conclude that the state failed in its obligation to serve its brief on appellant. Nor can we conceive that appellant would have provided any arguments in his reply brief that would have materially affected our decision here. We therefore deny appellant's motion to strike the state's brief.

The district court's May 21, 1997 and July 3, 1997 orders are affirmed.

Affirmed; motion to strike brief denied.

[1] It is questionable whether appellant, who was denied appointment of counsel in Richards I and who seeks funds in order to pursue postconviction relief after unsuccessful direct appeals, is entitled to apply for public funds under this statute. Nevertheless, the state did not initially raise these objections to appellant's application for funds, and our review after Richards I is limited to the adequacy of the findings on remand. We therefore assume, without deciding that under the circumstances presented by this case, that appellant was entitled to apply for funds under Minn. Stat. § 611.21. Our decision here, however, should not be read to hold or even imply that Minn. Stat. § 611.21 is necessarily available in a postconviction proceeding.