State of Minnesota
                            in Court of Appeals

     Dorian Waynewood, petitioner,

State of Minnesota,
     Filed May 14, 1996
Mulally, Judge

Ramsey County District Court

File No. K9-92-1455

Deborah K. Ellis, 700 St. Paul Building, Six West Fifth Street, St. Paul,
MN 55102 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101 (for Respondent State)

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant
County Attorney, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for
Respondent State)

Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and
Mulally, Judge.(*)

        [Footnote] (*)Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.

The state does not waive a procedural challenge to the use of a
postconviction proceeding to attack an adult certification order by failing
to file a notice of review in the postconviction appeal.

A criminal defendant who has been certified for adult prosecution and who
fails to appeal the certification order may not challenge that order in a
postconviction petition.

MULALLY, Judge (Hon. Gordon W. Shumaker, District Court Trial Judge)

This appeal is from an order denying appellant Dorian Waynewood's
postconviction petition challenging his May 1992 certification to stand
trial as an adult. Waynewood later pleaded guilty to second-degree
intentional murder. Minn. Stat. 𨺹.19(1) (1992). We affirm.

Appellant Dorian Waynewood was charged in a delinquency petition with
second-degree intentional murder and second-degree felony murder in the
February 29, 1992 death of Lorenzo Lara-Garcia. Waynewood was born on April
3, 1975, making him about one month short of his 17th birthday at the time
of the offense.

At the time of the incident, the state alleged that Waynewood was with a
friend, Frank Gums, and three other men. Waynewood was driving the car when
someone suggested stopping at a house to collect some money. They stopped
at Lara-Garcia's house, and Gums and one of the other men confronted the
victim. In the struggle, Waynewood shot Lara-Garcia, apparently at the
direction of Gums, with a gun that Gums had dropped.

At a reference hearing in May 1992, the court heard testimony from a
probation officer to whom Waynewood had been assigned for unadjudicated
conduct, a clinical psychologist, a psychologist retained by the defense,
and Waynewood's mother.

The trial court issued an order granting the state's motion for adult
certification. Waynewood pleaded guilty to second-degree intentional murder
in August 1992, and was sentenced in October 1992 to 144 months, the
presumptive sentence.

In October 1994, two years after he was sentenced, Waynewood filed a
petition for postconviction relief. In the petition, Waynewood challenged
the May 1992 certification and sought an order compelling the state to
provide discovery of Ramsey County juvenile files from 1991 to 1992 to
establish that African-Americans were disproportionately certified to stand
trial as adults.

The postconviction court issued an order denying the motion to compel
discovery and denying the postconviction petition without an evidentiary

I. Has the state waived its challenge to appellant's use of postconviction
petition to challenge a juvenile certification order by failing to file a
notice of review?

II. Can appellant challenge the certification order in a postconviction

The state argues that Waynewood cannot challenge the 1992 certification for
adult prosecution in this postconviction proceeding. Waynewood, however,
contends that the state was required to file a notice of review because the
postconviction court ruled against it on this issue. See generally
Minn. R. Civ. App. P. 106 (``respondent may obtain review of a judgment or
order entered in the same action'' that is adverse to him by filing notice
of review).

The postconviction court, although denying Waynewood's postconviction
petition, ruled that Waynewood could challenge the certification in a
postconviction petition.

This court has held that it will not
        consider the portions of a trial court
        judgment adversely affecting respondent when
        respondent failed to file a notice of review.

Furrer v. Campbell's Soup Co., 403 N.W.2d 658, 660 (Minn. App. 1987)
(emphasis added), review denied (Minn. May 28, 1987). In another
case, however, this court held:
        A respondent, however, is not required to file a
        conditional notice of review to preserve an
        alternative theory.

Villarreal v. Independent Sch. Dist. No. 659, 505 N.W.2d 72, 76 n.1
(Minn. App. 1993), rev'd on other grounds, 520 N.W.2d 735, 739
(Minn. 1994).

Waynewood's argument that the state should have filed a notice of review
assumes that the state could file a notice of review in a
postconviction appeal. This court held in Bolstad v. State, 435
N.W.2d 547, 549 (Minn. App. 1989) that a postconviction appeal is a civil
appeal, and that therefore the defendant-petitioner could file a notice of
review in the state's postconviction appeal. Since Bolstad, the
rules governing criminal appeals have been amended to include provisions
for postconviction appeals. See Minn. R. Crim. P. 28.02, .04. The
implicit effect of these amendments is that postconviction appeals are now
criminal appeals, despite the holding of Bolstad.

The state may not file a notice of review in a criminal appeal. State v.
Schanus, 431 N.W.2d 151, 152 (Minn. App. 1988). Even if
Bolstad's holding on the civil nature of a postconviction appeal
remains good law, the ruling adverse to the state did not result in a
separate order or involve a separate claim for relief, but was only
mentioned in the court's memorandum as an alternative theory rejected by
the court. We conclude that it is questionable whether the state could have
filed a notice of review on that issue. Therefore, the state did not waive
the issue by failing to do so.

The state argues that the proper scope of a postconviction proceeding does
not include review of a juvenile certification order transferring
jurisdiction to adult criminal court.

A person who has been convicted of a crime may file a postconviction
petition to challenge ``the conviction obtained or the sentence or other
disposition made.'' Minn. Stat. § 590.01, subd. 1 (1994).

This court has held that a juvenile who has been certified for adult
prosecution and has not appealed the certification order may not challenge
it on direct appeal of his criminal conviction. State v. Anderson,
394 N.W.2d 813, 815-16 (Minn. App. 1986), review denied (Minn. Dec.
12, 1986). This court stated:
        Appellant failed to appeal the [certification] order
        and therefore cannot attack the validity of the
        [certification] in this proceeding. Consequently,
        the [certification] must be considered a sufficient
        basis for the exercise of the district court's
        subject matter jurisdiction.

Id. at 816.

If a juvenile cannot challenge a certification for adult prosecution on
direct appeal of his criminal conviction, it follows that he cannot do so
in a postconviction proceeding. That conclusion is particularly compelling
in this case. Waynewood waited two years after sentencing to file a
postconviction petition challenging the certification. He is now 21 years
old, past the point at which juvenile court jurisdiction would lie, even if
this could be designated an extended jurisdiction juvenile (EJJ)
prosecution. See generally Minn. Stat. §§ 260.126 (1994)
(EJJ prosecutions); .181, subd. 4(a) -(b) (1994) (juvenile court
jurisdiction generally ends at age nineteen while EJJ jurisdiction ends at
age twenty-one).

To allow Waynewood at this point to challenge his certification would give
him either a meaningless remedy, because juvenile jurisdiction is no longer
a viable option to adult certification, or a ``home free'' sanctuary from
any further consequences for his criminal behavior. Minnesota appellate
courts, however, have consistently rejected this ``home free'' argument.
See, e.g., In re Welfare of A.N.J., 521 N.W.2d 889, 890
(Minn. App. 1994), review denied (Minn. Nov. 29, 1994).

The trial court erred in relying on Wensman v. State, 342 N.W.2d 150
(Minn. 1984). The supreme court in Wensman held only that a
defendant who did not file a direct appeal of his conviction could still
raise a search and seizure issue in the postconviction proceeding.
Id. at 151. Waynewood failed to appeal the certification order, as
well as his criminal conviction. As this court indicated in
Anderson, the failure to appeal the certification order bars a later
challenge to that order in a direct appeal. 394 N.W.2d at 816. We now hold
that it also bars a collateral attack on the certification order in a
postconviction proceeding.

The state has not waived its procedural challenge to the petition by
failing to file a notice of review. Appellant cannot challenge the adult
certification order in this postconviction proceeding.