This opinion will be unpublished and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

A05-1213

 

State of Minnesota,
ex rel. Robert Earl Vogt, petitioner,
Appellant,

vs.

Joan Fabian,
Commissioner of Corrections,
Respondent.

 

Filed May 23, 2006

Affirmed

Stoneburner, Judge

 

Carlton County District Court

File No. CV05879

 

Robert Earl Vogt, P.O. Box 1494, Bemidji, MN 56619 (pro se appellant)

 

Mike Hatch, Attorney General, Mark B. Levinger, Assistant Attorney General, 1100 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the denial of his petition for a writ of habeas corpus, in which he claimed that respondent violated his Fifth Amendment rights by extending his period of incarceration for refusing to enter a sex-offender treatment program that, he asserts, required him to admit to criminal acts.  Appellant also contends he was entitled to an evidentiary hearing.  Because appellant has failed to establish that his Fifth Amendment rights were violated or that unresolved material facts exist, we affirm.

FACTS

 

            Appellant Robert Earl Vogt was incarcerated on a conviction of two counts of criminal sexual conduct in the second degree based on a modified Alford plea entered in September 2000.  At the time Vogt was sentenced, the district court had not yet ruled on his motion to withdraw his plea.  Shortly after Vogt was committed to the custody of respondent, the Commissioner of Corrections, he was directed by respondent to undergo a sex-offender assessment and complete the recommendations and was informed that failure to do so could result in disciplinary action.  Before Vogt was interviewed by staff members of the sex-offender treatment program (SOTP), the district court had denied his motion to withdraw his plea, and Vogt had dismissed his appeal of that order.

            During the SOTP interview, Vogt stated that he was intoxicated at the time of the incidents underlying his convictions and did not remember the incidents.  Vogt was accepted into the SOTP and was placed on a waiting list.  While awaiting entry into the treatment program, Vogt corresponded with the state public defender about challenging the district court’s denial of his motion to withdraw his plea and the imposition of an upward sentencing departure.  Vogt, who had been housed with SOTP and pre-SOTP offenders after acceptance into the program, was scheduled to begin the SOTP in March 2002, but approximately six days before he was to enter the program, he withdrew from the program without explanation.  His withdrawal from the program was immediately noted in an incident report.

            Approximately three weeks after Vogt withdrew from the SOTP, he sent an “offender kite” notifying the SOTP director that he wanted to discuss the treatment process.  Not having received a response, he sent a similar kite six days later.  The day after he sent this kite, Vogt was charged with a violation for refusing mandated treatment.  Four days after he was charged, Vogt waived his right to a hearing and all procedural rights including appeal, and admitted the violation.  His incarceration was extended for 90 days as discipline for the violation.

            Approximately two weeks after Vogt was disciplined, the SOTP director, responding to Vogt’s kites, stated that she had been unable to reach Vogt in his unit and that because he had now been transferred to a different facility, he should send a kite with specific questions for the director to answer.  There is no evidence that Vogt submitted questions to the SOTP director.

            Approximately five months after Vogt was disciplined for refusing treatment, Vogt filed a petition for postconviction relief challenging only his sentence.  A month later, the district court granted the petition in part and denied it in part.  Approximately 17 months later, Vogt moved for an amended sentence.  The district court denied the motion, and this court affirmed.  Vogt v. State, No. A04-803 (Minn. App. Jan. 11, 2005).  While Vogt’s petition for review was pending in the supreme court,[1] he filed the petition for a writ of habeas corpus that is the subject of this appeal.

            In his petition for a writ of habeas corpus, Vogt argued that he was justified in refusing to enter the SOTP because the program requires participants to admit the crimes of which they are convicted, as well as uncharged crimes.  Vogt argued that because he was still litigating his case, the requirement that he admit the crimes involved in his convictions violated his Fifth Amendment right against self-incrimination, and he argued that requiring admission of uncharged crimes would also violate his Fifth Amendment rights.  Vogt submitted a “Quarterly Treatment Progress Review” form as evidence of his assertions of what SOTP requires, and the affidavits of two inmates attesting to the fact that Vogt had said he could not discuss his crimes on advice of counsel because his case was being appealed. 

            Respondent submitted an affidavit of the director of the SOTP at respondent’s Lino Lakes facility stating that Vogt has never reapplied for the SOTP, but that if he reapplied and was found to be eligible, he would be placed back on the waiting list.  The director attested that “an offender who is in the Program is strongly encouraged to discuss all past criminal sexual behavior as part of the treatment process, but no offender is required to describe past uncharged criminal acts in the level of specificity which would be necessary for criminal charges to be brought with respect to those acts.”

            The district court denied Vogt’s petition without a hearing, concluding that Vogt did not have any legal action pending at any level at the time he withdrew from the SOTP program and failed to allege any situation involving a Fifth Amendment claim with regard to uncharged offenses.  This appeal followed.

D E C I S I O N

 

            “We are to give great weight to the trial court’s findings in considering a petition for a writ of habeas corpus and will uphold the findings if they are reasonably supported by the evidence.”  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied, (Minn. Nov. 17, 1998).  Questions of law are reviewed de novo.  State ex rel. McMaster v. Benson,495 N.W.2d 613, 614(Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

            The Fifth Amendment protection against compelling a person to be a witness against himself in a criminal case not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also permits him “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”  Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141 (1984) (quotation omitted).  The “constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony.”  McKune v. Lile, 536 U.S. 24, 36, 122 S. Ct. 2017, 2026 (2002) (emphasis in original) (quotation omitted).  The burden is on Vogt to prove compulsion.  See id. at 51, 122 S. Ct. at 2034 (O’Connor, J., concurring) (stating “it is [the inmate]’s burden to prove compulsion”).  “Prison inmates—including sex offenders—do not forfeit the privilege at the jailhouse gate.”  Id.at 55, 122 S. Ct. at 2036 (Stevens, J., dissenting).

            “The writ of habeas corpus, although a writ of right, does not issue as a matter of course.  It [is] incumbent upon relator to set forth in his petition sufficient facts to establish a prima facie case for his discharge.”  State ex rel. Fife v. Tahash, 261 Minn. 270, 271, 111 N.W.2d 619, 620 (1961).  The allegations must be “more than argumentative assertions without factual support.”  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).  An “evidentiary hearing is required whenever material facts are in dispute which have not been resolved in the proceedings resulting in conviction and which must be resolved in order to determine the issues raised on the merits.”  State ex rel Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

Vogt argues that respondent violated his Fifth Amendment right against self-incrimination by extending his incarceration for refusing to enter the SOTP because the program required him to admit acts underlying his conviction and other uncharged offenses.  In a recently released opinion, this court held that extending a prisoner’s term by delaying his supervised-release date as a disciplinary sanction is a penalty that rises to the level of compulsion for purposes of the Fifth Amendment privilege against self-incrimination.  Johnson v. Fabian, ­­­___ N.W.2d ___, ___, 2006 WL 852167, at * ___ (Minn. App. Apr. 4, 2006).  Johnson’s incarceration, like Vogt’s, was extended for 90 days for refusal to participate in the SOTP, but unlike Vogt, Johnson was denied admission into the SOTP program because he expressed a lack of interest, was appealing his conviction, and he did not want to admit the offense.  Id. Vogt, by contrast, was not appealing his convictions when he was screened for the SOTP, and was admitted to the SOTP despite his lack of memory of the incidents that led to his convictions.

            We conclude that Vogt, unlike Johnson, has failed to establish that he is entitled to assert a Fifth Amendment privilege against self-incrimination with regard to his conviction.  The “right not to testify concerning transactions for which one has been convicted continues until the time for appeal has expired or until the conviction has been affirmed on appeal.”  United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991).  Vogt’s challenge to his convictions ended when he withdrew his appeal from the district court’s denial of his petition to withdraw his guilty plea.  All subsequent actions initiated by Vogt were limited to challenges to his sentence.  Vogt, therefore, was no longer entitled to assert the privilege against self-incrimination with regard to his conviction at the time he withdrew from SOTP.

            With regard to uncharged sexual offenses, the document submitted by Vogt demonstrates that he was accepted into the program despite refusing, on advice of counsel, to discuss a separate sexual offense that was pending at the time he was screened for the SOTP.  The affidavit of the Lino Lakes SOTP program director established that participants are not required to incriminate themselves with regard to uncharged offenses in order to successfully participate in and complete the program. 

            There were no material facts in dispute, and we therefore conclude that the district court correctly determined without an evidentiary hearing that Vogt has failed to establish that the SOTP compelled him to provide incriminating information about uncharged offenses in order to enter or complete the program.

            Affirmed.