This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1135

 

 

Brian William Pehrson,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 11, 2006

Affirmed
Klaphake, Judge

 

Kandiyohi County District Court

File No. 34-K5-94-129

 

 

John M. Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Boyd Beccue, Kandiyohi County Attorney, 415 SW Sixth Street, Willmar, MN  56201 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Brian William Pehrson appeals from the denial of his postconviction petition seeking relief from a 1994 conviction for aggravated robbery.  Because the district court did not abuse its discretion in concluding that appellant’s 10-year delay in bringing his petition unduly prejudiced the state’s ability to retry the case, we affirm.

FACTS

            In October 2004, ten years after his 1994 conviction for aggravated robbery, appellant filed a petition for postconviction relief, asserting that the district court had failed to obtain the proper waivers of his constitutional rights before trying the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980).  For the purposes of this petition, the state conceded that the waivers were inadequate,[1] but argued that appellant’s delay in bringing his petition prejudiced the state’s ability to retry the case and that the petition should be denied on that basis.

            In denying the petition, the postconviction court determined that appellant “has not acted with due diligence in seeking relief, his sentence on the underlying criminal matter has expired, and the unavailability or fading memories of witnesses would unfairly prejudice the State if a new trial were ordered.”

D E C I S I O N

            A criminal defendant may petition the district court for postconviction relief under Minn. Stat. § 590.01 (2004).  An appellate court reviews the summary denial of a petition for postconviction relief for an abuse of discretion.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).  We give “great deference to [the postconviction] court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            As a general rule, “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Here, appellant never filed a direct appeal and has never had a substantive review of the merits of his case; this factor thus weighs in favor of considering the merits of the petition in which appellant asserts that his waiver of a jury trial was inadequate.  Because the state has conceded that appellant’s waiver was inadequate, appellant is entitled to postconviction relief unless “he has abused the judicial process or the state can establish that it would be unduly prejudiced by a new trial.”  Hoagland v. State, 518 N.W.2d 531, 535 (Minn. 1994).

            Abuse of Process

            Abuse of judicial process refers to the length of the delay in seeking postconviction relief and the reasons behind that delay.  Id. at 536.  A substantial delay in the filing of a postconviction petition does not automatically preclude the granting of any relief, but may be considered a factor to be weighed against such relief.  See, e.g., Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (affirming denial of postconviction relief based in part on four-year delay); Wieland v. State, 457 N.W.2d 712, 715-16 (Minn. 1990) (affirming denial of postconviction relief and noting that ten-year delay weighed against petitioner).

            In addition to the length of the delay, the reasons for the delay are also examined.  “[A] delay that is deliberate and inexcusable [so as to constitute] an abuse of the judicial process . . . is sufficient grounds to justify denial of relief solely on the basis that the petition is untimely.”  James v. State, 699 N.W.2d 723, 728 (Minn. 2005) (citing McMaster v. State, 551 N.W.2d 218, 218-19 (Minn. 1996) (holding that appellant’s 15-year delay in filing petition for postconviction relief was “deliberate and inexcusable” and constituted abuse of judicial process because defendant purposefully delayed to avoid extradition for crimes committed in foreign jurisdiction)).

            Here, appellant offered no reason for his 10-year delay.  The postconviction court noted that if appellant “misunderstood the nature or consequences of his guilty plea, he should have become aware once he was sentenced and the time for direct appeal passed without counsel following through with the Lothenbach procedure.”  The court further noted that appellant’s “86-month sentence expired over four years ago” and that “[i]t appears that [appellant’s] purpose in pursuing the present petition is to attack the sentence in the unrelated offense for which he is currently incarcerated.”  See State v. Larson, 409 N.W.2d 63, 64 (Minn. App. 1987) (holding that postconviction petition cannot be used to collaterally attack later conviction), review denied (Minn. Sept. 23, 1987).  This factor, while not overwhelming, tends to weigh against appellant.

            Undue Prejudice

            Finally, the state has the burden to demonstrate that “it would be unduly prejudiced by a new trial.”  Hoagland, 518 N.W.2d at 535.  Here, the state claimed: 

In this case, the delay is such that the County Attorney’s Office no longer had a file.  We have reconstructed a file by obtaining copies of archives from Court Administration and the Willmar Police Department.  It would appear that, of the five witnesses the State would call, only one witness will definitely be available:  the investigating officer, . . . who is still a member of the Willmar Police Department.  . . .  Whether or not the State of Minnesota will be able to obtain the appearance of [the other four witnesses] with reasonable effort is unknown.

 

Appellant asserts that this “barebones assertion that some of [the state’s] witnesses might no longer be available is hardly enough to satisfy [the state’s] burden of establishing ‘undue prejudice.’”  We disagree.  The state made some attempt to reconstruct the file and locate witnesses.  Based on the record before us, we conclude that the state has met its burden and that the postconviction court did not abuse its discretion in determining that “witnesses’ memories have surely faded, assuming that the witnesses can be found,” and that “[i]t would be difficult for [appellant] and the State to receive a fair trial if a new one were granted.”

            We therefore affirm the court’s denial of appellant’s petition for postconviction relief.

            Affirmed.