may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joseph Phillip Ray,
State of Minnesota,
Filed December 22, 1998
Ramsey County District Court
File No. K6963026
Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Joseph P. Ray, MCF-Faribault, 1101 Linden Lane, Faribault, MN 55021 (appellant pro se)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Foley, Judge.[*]
Appellant contends the trial court erred when it denied his postconviction petitions requesting an evidentiary hearing and a sentence modification on the basis of newly discovered evidence. We affirm.
Appellant pleaded guilty in February 1997 to criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1(4) (1996). This subdivision provides as an element of the offense that the person operated a motor vehicle "while having an alcohol concentration of .10 or more, as measured within two hours of the time of driving." Id. Appellant voluntarily submitted to a breathalyzer test at a police station in Ramsey County within two hours of the accident, and his blood-alcohol level registered .21. The court accepted appellant's guilty plea and sentenced him to 50 months, an eight-month downward departure from the guidelines.
In August 1997, a television newscast reported that breathalyzers used by Ramsey County might be producing incorrect results because the county did not have a procedure of annual maintenance checks for the machines. Appellant filed two postconviction relief petitions, requesting an evidentiary hearing and a modification of his sentence in light of the news report.
The trial court denied the first petition, finding that appellant failed to allege and submit facts that entitled him to an evidentiary hearing:
Petitioner submitted absolutely nothing to support his assertion that such a news report was made, nor the circumstances surrounding this unsubstantiated report. Nor did Petitioner submit anything to support his assertion the breathalyzer used to detect his blood alcohol content level on September 22, 1996 was the one referred to in such report or that in fact, the breathalyzer used was defective on that date.
The court also noted that there was more than ample evidence, independent of the breathalyzer results, to support the plea agreement or for a jury to convict appellant of the offense. The trial court affirmed its denial after appellant petitioned the court again for relief, this time with a copy of the newscast transcript attached.
To establish a claim of relief based on newly discovered evidence, the petition must show: (1) the evidence would not have been discovered through the exercise of due diligence before trial, (2) at the time of trial the evidence was not within the petitioner's or his counsel's knowledge, (3) the evidence is not merely impeaching, cumulative, or doubtful, and (4) it would probably produce a different or more favorable result than what actually occurred. State v. Caldwell, 322 N.W.2d 574, 588 (Minn. 1982).
The record coincides with the trial court's observations, and it did not abuse its discretion in denying appellant's petition. Although the television report did cast doubt on the reliability of Ramsey County breathalyzers, appellant did not successfully demonstrate how the result of his case would have been different or how the report affected his sentence.
Appellant contends for the first time on appeal that he would not have pleaded guilty had he known of the report, but this is a purely speculative conclusion that does not take into account other factors relevant to his plea decision. Also, appellant acknowledged a separate factual basis apart from the breathalyzer result prior to the trial court's acceptance of his guilty plea; he admitted having consumed alcohol at the time of the offense, and he admitted that his blood-alcohol level was more than .10.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.