A05-165

Lance P. Wickner, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 24, 2006

Affirmed

Hudson, Judge

Beltrami County District Court

File No. K8-02-1001

Lance P. Wickner, #204147, 5329 Osgood Avenue North, Stillwater, Minnesota 55082-1117 (pro se appellant)

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Timothy R. Faver, Beltrami County Attorney, Randall Burg, Assistant County Attorney, 40 Judicial Courts Annex, 619 Beltrami Avenue Northwest, Bemidji, Minnesota 56601 (for respondent)

Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On appeal from an order denying appellant’s postconviction petition challenging his 2002 conviction for escape from custody, appellant argues that the conviction should be vacated as the product of vindictive prosecution. Because appellant has not put forth objective evidence of prosecutorial vindictiveness, and because the context of appellant’s conviction does not suggest a reasonable likelihood of vindictive prosecution sufficient to warrant a presumption of vindictiveness, we affirm.

FACTS

On November 9, 2000, appellant Lance Wickner absconded from electronic home monitoring following his release from imprisonment on a criminal sexual conduct conviction. On November 17, 2000, appellant stole a car. That same evening, appellant and a friend left a party at which appellant had been drinking. Appellant drove the car into a ditch where it rolled over, critically injuring appellant’s friend, who later died as a result of the injuries. The state charged appellant with criminal vehicular homicide and theft of a motor vehicle but subsequently moved to amend the complaint to add an escape-from-custody count. The state withdrew its motion to amend, citing “trial tactics and considerations.” A jury convicted appellant of criminal vehicular homicide and of theft of a motor vehicle. Appellant challenged his conviction, and this court reversed and remanded for a new trial on the charge of criminal vehicular homicide. State v. Wickner, No. C0-01-1020 (Minn. App. May 14, 2002).

Following the remand from this court, the state charged appellant with one count of felony escape from custody in violation of Minn. Stat. § 609.485, subd. 2(1), subd. 4(1) (2000), as a result of his November 9, 2000 absconding from electronic home monitoring. A jury convicted appellant of the charged offense, and the district court sentenced appellant to 13 months consecutive to the sentence for criminal sexual conduct that had been in effect when he absconded.

Appellant challenged this conviction as well, arguing that the evidence could not sustain the conviction of escape because he was on supervised release, a form of parole, and persons on parole are specifically exempted from the escape statute. Appellant also argued that his conviction resulted from vindictive prosecution. This court affirmed appellant’s conviction, but it declined to address appellant’s vindictive-prosecution argument because appellant had not raised this issue at trial. State v. Wickner, 673 N.W.2d 859, 863 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).

In September 2004, appellant petitioned for postconviction relief, requesting that his conviction and sentence be vacated and alleging vindictive prosecution and ineffective assistance of counsel. By order dated December 8, 2004, the postconviction court denied appellant’s petition. This appeal follows.

D E C I S I O N

Appellate courts will not disturb a postconviction court’s decision unless the court abused its discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Appellate courts give broad deference to a postconviction court’s findings of fact and will not reverse the findings unless they are clearly erroneous. Id. But this court reviews constitutional questions de novo. State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002).

Appellant argues that an unconstitutional appearance of retaliation will result if, after a defendant successfully challenges his conviction on appeal, a prosecutor is allowed to charge a defendant with additional offenses known to the prosecutor when he obtained the defendant’s overturned conviction. Appellant contends that the prosecutor’s conduct in his case violated appellant’s due process rights because it effectively punished appellant for exercising his statutory right to appeal and discourages other defendants who would otherwise challenge their convictions.

A government’s imposition of additional penalties in retaliation for a defendant’s exercise of his legal rights is impermissible vindictive prosecution. State v. Pettee, 538 N.W.2d 126, 132 (Minn. 1995). “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” United States v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488 (1982) (quotation omitted). A defendant can establish prosecutorial vindictiveness through objective evidence that the prosecutor’s decision to seek the additional charges was intended to be retaliatory. Pettee, 538 N.W.2d at 133. Alternatively, a defendant is entitled to a presumption of vindictiveness in limited circumstances where the context suggests a reasonable likelihood of vindictiveness. Id. at 132. “A mere opportunity for vindictiveness is insufficient to justify imposing an inflexible prophylactic presumption.” Id. Once the circumstances warrant a presumption of vindictiveness, the presumption can only be overcome by proof of some objective factor which can explain or justify the prosecutor’s altering of the initial exercise of the prosecutor’s discretion. United States v. Krezdorn, 718 F.2d 1361, 1365 (5th Cir. 1983).

The United States Supreme Court found a presumption of prosecutorial vindictiveness in charging in Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098 (1974). In Blackledge, the defendant was originally charged with a misdemeanor. After exercising his right to a jury trial de novo on appeal in a higher state court, the prosecutor substituted a felony charge for the misdemeanor charge. 417 U.S. at 28, 94 S. Ct. at 2102. The Supreme Court did not find actual bad faith or malice on the prosecutor’s part, but it held that the more severe charge was nonetheless barred by the Due Process Clause because due process “requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the [prosecutor].” Id. (quotation omitted).

In Goodwin, the Supreme Court stated that prosecutorial vindictiveness was more likely, and application of a presumption of vindictiveness was therefore more justifiable, in a charging decision made after trial, rather than before trial. 457 U.S. at 376–78, 102 S. Ct. at 2490–91. The court reasoned that a prosecutor’s assessment of the appropriate charges should crystallize by the time the initial trial begins, and the institutional biases inherent in the judicial system disfavor the retrial of issues previously decided. Id. at 381, 102 S. Ct. at 2493. Moreover, “[a] prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining [a new trial], since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free.” Id. at 376, 102 S. Ct. at 2490 (quoting Blackledge, 417 U.S. at 27, 94 S. Ct. at 2102).

Appellant does not argue that he demonstrated objective evidence of prosecutorial vindictiveness. Rather, appellant argues that this court should presume vindictiveness from the circumstances of this case: The prosecutor knew that appellant had absconded from electronic monitoring before trial and yet decided against charging appellant with the additional offense until after appellant obtained a new trial on his original conviction.

Minnesota courts have not addressed the application of a presumption of vindictiveness in this context, but the Wisconsin Court of Appeals recently concluded that a second indictment for first-degree sexual assault filed after the defendant appealed his conviction for a separate incident of first-degree sexual assault did not give rise to a presumption of prosecutorial vindictiveness. See State v. Williams, 677 N.W.2d 691 (Wis. Ct. App. 2004), review denied (Wis. Apr. 20, 2004). In doing so, the Williams court distinguished a previous decision, State v. Edwardsen, 430 N.W.2d 604 (Wis. Ct. App. 1988), in which the court found a reasonable likelihood of vindictiveness when the prosecutor added an additional charge based on the same incident following the defendant’s successful postconviction challenge. 677 N.W.2d at 703. Characterizing this distinction as “critical,” the Williams court noted that a defendant’s concern that a state will substitute a more severe charge on appeal is not implicated when the new charge stems from a separate, distinct incident: “In that situation, it is not the appeal that opens the door for the second charge. The prosecutor could have brought the charges against the defendant at any time, regardless of whether the defendant chose to appeal his or her conviction in the original case.” Id. at 703–04.

The reasoning of the Wisconsin court has support from the federal appellate circuit courts as well. The Ninth Circuit has concluded that no presumption of vindictiveness arises if the additional charge did not “aris[e] out of the same nucleus of operative facts as the original charge.” United States v. Martinez, 785 F.2d 663, 669 (9th Cir. 1986) (quotation omitted). Similarly, the Eleventh Circuit holds that Blackledge is not applicable where the defendant has not faced stiffer charges arising out of one single incident but has faced charges in a second indictment that are based on independent acts. Humphrey v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989).

Applying the reasoning of the Wisconsin court, we hold that the postconviction court did not err in concluding that appellant had not demonstrated a reasonable likelihood of vindictiveness sufficient to trigger the presumption. A prosecutor is afforded considerable discretion in his charging decisions. State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980). When a prosecutor adds a charge stemming from a separate behavioral incident, there is no reason to presume that the prosecutor’s assessment of the extent of appropriate charges had crystallized by the time the prosecutor tried the defendant on the original offense. Furthermore, when the additional, unrelated offense shares no common questions of law or fact, the institutional biases in the judicial system disfavoring the retrial of issues are not applicable. Accordingly, because the context of adding an unrelated charge arising from a separate behavioral incident following a successful appeal does not suggest a reasonable likelihood of vindictiveness, appellant is not entitled to a presumption of vindictiveness.

Affirmed.