This opinion will be unpublished and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

A05-2234

 

State of Minnesota,

Respondent,

 

vs.

 

Tommy Lee Williams,

Appellant.

 

Filed July 11, 2006

Affirmed

Wright, Judge

 

Ramsey County District Court

File No. K7-98-2780

 

 

 

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, 1800 Bremer Tower, 445 Minnesota St., St. Paul, MN  55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

WRIGHT, Judge

            In this appeal from an order denying postconviction relief, appellant challenges the revocation of his probation in March 2001.  We affirm.

FACTS

            Appellant Tommy Williams pleaded guilty in 1999 to first-degree criminal sexual conduct for an offense against his daughter, L.W., and was sentenced to 134 months, with execution stayed.  Williams was placed on probation, and he later moved to Illinois, where his probation was transferred.

            On June 5, 2000, in Chicago, Williams confronted his wife with a gun that was apparently inoperable in an effort to regain possession of a vehicle that he claimed he owned.  At the time, L.W., the victim of the 1999 offense, was in the vehicle.  One of the conditions of Williams’s probation was that he have no contact with her.  Thus, Williams’s conduct on June 5, 2000, violated three conditions of his probation: that he obey all laws, that he have no contact with L.W., and that he refrain from possessing a firearm.

            The district court revoked Williams’s probation and executed his sentence in March 2001.  Williams did not appeal that decision.  But in April 2005, he filed a pro se petition for postconviction relief, claiming that the State of Minnesota improperly obtained his extradition based on a false claim that he had fled from this state.  The district court denied the petition, ruling that the extradition was not improper and that there were ample grounds to revoke probation.  This appeal followed.

D E C I S I O N

 

We review a postconviction proceeding to determine whether there is sufficient evidence in the record to support the findings of the postconviction court.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).  The postconviction court’s decision will not be reversed absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

Williams argues that the district court revoked his probation in 2001 without making the requisite findings on the three Austin factors.  See State v. Modtland, 695 N.W.2d 602, 605-07 (Minn. 2005) (reiterating the requirement to address factors set forth in State v. Austin, 295 N.W.2d 246 (Minn. 1980), when revoking probation).  But as the state points out, Williams did not raise the Modtland issue in his postconviction petition, which was filed pro se.  Although his counsel now raises it, we generally will not consider issues raised for the first time on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            Even if we were to make an exception to the general rule, there is no probation-revocation transcript in the district court file.  Thus, we could not determine whether the district court complied with Modtland.  And even if Williams had raised the Modtland issue in the district court, and we had a transcript of the revocation hearing, Williams would have to show that the Modtland decision, which was released in 2005, is applicable to his 2001 probation revocation.

We have held that Modtland announced a new rule that does not apply retroactively to a postconviction petition challenging a probation revocation that occurred before Modtland was released.  Erickson v. State, 702 N.W.2d 892, 897 (Minn. App. 2005).  Williams argues that Erickson was wrongly decided.  But under the principle of stare decisis, we are bound by the holding in Erickson.  See generally State v. Victorsen, 627 N.W.2d 655, 662 n.2 (Minn. App. 2001) (discussing stare decisis and general conditions under which we may choose not to follow legal precedent).  And it would be particularly inappropriate to reassess the retroactive application of Modtland in a case in which a Modtland challenge was not raised in the district court.

We decline to review Williams’s Modtland challenge for the reasons stated above.  We also note that Williams waited nearly four years before filing a postconviction petition challenging the 2001 probation revocation.  Delay is one factor that may be considered in determining whether a petitioner is entitled to postconviction relief.  See James v. State, 699 N.W.2d 723, 728 (Minn. 2005) (“[T]he timeliness of a petition to withdraw a guilty plea is a relevant consideration in determining whether that relief should be granted.”).  A remand to the district court to make the Austin findings five years after the revocation would be a remedy with no substantive meaning since the district court cannot now reassess Williams’s circumstances in 2001 under the Austin factors.

In his pro se supplemental brief, Williams alleges judicial bias and argues that he is entitled to credit for the 21 months he served on probation.  But there is no indication that Williams tried to remove the assigned judge from his probation-revocation proceeding.  Therefore, the claim of judicial bias is not properly before us.  In addition, Williams is not entitled to custody credit for time he spent under probationary supervision rather than in the custody of a correctional facility.  See State v. Wilkinson, 539 N.W.2d 249, 252-53 (Minn. App. 1995) (holding that defendant was not entitled to custody credit for time spent on electronic home monitoring as a condition of release from jail).

            Affirmed.