This opinion will be unpublished and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

A05-2364

 

Terry Rae Jackson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed December 26, 2006

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 92047776

 

 

Mark D. Kelly, Law Office of Mark D. Kelly, 2295 Waters Drive, St. Paul, MN  55120 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the denial of his petition for postconviction relief from a 1993 conviction, arguing that the district court erred in determining that the victim’s recantation was not sufficiently credible to entitle appellant to a new trial or an evidentiary hearing and the postconviction petition was untimely.  We affirm.

FACTS

 

Appellant Terry Jackson was convicted of attempted first-degree criminal sexual conduct, a violation of Minn. Stat. §§ 609.17, .342, subd. 1(e)(i) (1992), based on the events of June 13, 1992.[1]  The district court sentenced Jackson to 150 months’ imprisonment, the statutory maximum.  This sentence was an upward durational departure from the presumptive guidelines sentence based on the existence of aggravating factors, including that the victim was mentally disabled and Jackson was a danger to society and in need of long-term treatment or supervision. 

            On January 21, 1994, Jackson petitioned for postconviction relief, arguing that he received ineffective assistance of counsel, that the district court erred in admitting Spreigl evidence, and that the district court abused its discretion in departing upward from the presumptive guidelines sentence.  The district court held an evidentiary hearing on the petition and subsequently denied Jackson’s claims.  We affirmed the district court’s decision, and the Minnesota Supreme Court denied review.  Jackson v. State, No. C0-94-1353, 1995 WL 311745, at *4 (Minn. App. May 23, 1995), review denied (Minn. Aug. 30, 1995).

            On August 28, 2001, the state petitioned to civilly commit Jackson as a sexually dangerous person.  In early 2002, at Jackson’s request, Jackson’s mother met with the victim, M.H., and asked her to “tell the truth.”  At that meeting, M.H. signed two statements prepared by Jackson’s mother that recanted M.H.’s allegations regarding the 1992 sexual assault. 

            In May 2002, a hearing was held on the state’s civil commitment petition during which M.H. recanted her statements and testimony regarding the 1992 sexual assault.  Jackson also presented M.H.’s signed statements.  The district court found that the written statements were devoid of any persuasive value and that M.H.’s testimony was not credible because it was influenced by her contact with Jackson’s mother.  The district court determined by clear and convincing evidence that Jackson is a sexually dangerous person and ordered his civil commitment.  Jackson appealed the district court’s civil commitment order, which we affirmed in In re Civil Commitment of Jackson, 658 N.W.2d 219 (Minn. App. 2003), review denied (Minn. May 20, 2003).

Jackson, who has served his criminal sentence but is committed as a sexually dangerous person, again petitioned for postconviction relief on June 28, 2005, seeking a new trial based on M.H.’s recantation.  The district court denied the petition without a hearing.  This appeal followed.  

D E C I S I O N

            Jackson contends that the denial of the postconviction petition was an abuse of discretion.  A petition for postconviction relief is a collateral attack on a judgment that carries a presumption of regularity.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  The petitioner bears the burden of establishing by a preponderance of the evidence that the petitioner is entitled to relief.  Minn. Stat. § 590.04, subd. 3 (2004).  We will not disturb the decision of the postconviction court absent an abuse of discretion.  Zenanko v. State, 688 N.W.2d 861, 864 (Minn. 2004).  Our review for an abuse of discretion on issues of fact is limited to determining whether the evidence is sufficient to support the postconviction court’s findings.  Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005).  But we review the district court’s application of law de novo.  Id.

When considering the merits of the postconviction petition, the district court independently reviewed the transcript of Jackson’s civil commitment proceedings during which M.H. recanted her 1993 testimony at the criminal trial.[2]  After doing so, the district court determined that M.H.’s recantation was not credible, a conclusion that had been reached in the earlier civil commitment proceedings and affirmed on appeal.  The postconviction court concluded that Jackson was not entitled to a new trial based on M.H.’s recantation because it lacked credibility.

            We apply a three-pronged test to determine whether a new trial based on a postconviction claim of witness recantation is warranted.  Such relief is granted when (1) the postconviction court is reasonably well satisfied that the trial testimony in question was false; (2) without the testimony the jury might have reached a different verdict; and (3) the petitioner was surprised by the false testimony at trial or did not know of its falsity until after the trial.  Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).  The first two prongs are compulsory.  Id.  Although the third prong is not a “condition precedent” for granting a new trial, it is a factor that should be considered when deciding whether to grant the requested relief.  Id.

Jackson cannot meet either the first or third prong.  It is not sufficient to rely on a “simple statement contradicting earlier testimony” or “a determination that the witness is generally unreliable.”  Id.  Rather, to satisfy the first prong, the postconviction court must be “reasonably certain that the recantation is genuine.”  State v. Walker, 358 N.W.2d 660, 661 (Minn. 1984).  Because M.H.’s recantation occurred during a visit with Jackson’s mother in which Jackson’s mother presented M.H. a prepared recantation statement for M.H.’s signature, the postconviction court’s determination that it was not reasonably certain that the recantation is genuine is well founded.  Indeed, the credibility of this recantation was rejected for similar reasons during the civil commitment proceedings.

            Moreover, Jackson, who had received police reports of M.H.’s account of the sexual assault during pretrial discovery, was not surprised by her trial testimony; nor can he claim that he did not know of the “alleged falsity” of M.H’s testimony until after trial.  As we noted in our opinion denying Jackson’s prior postconviction petition, M.H.’s credibility was challenged during cross-examination at trial, and the jury rejected this challenge.  Jackson v. State, No. C0-94-1353, 1995 WL 311745, at *3 (Minn. App. May 23, 1995), review denied (Minn. Aug. 30, 1995).  We also noted that M.H. gave a description of the inside of Jackson’s house that included details that she would not have learned, according to Jackson’s account of their altercation, and that M.H.’s injuries corroborated her description of the assault.  Id.  Any alleged falsity in M.H.’s testimony was thoroughly aired for both Jackson and the jury.  Accordingly, Jackson failed to establish by a preponderance of the evidence that he is entitled to postconviction relief. 

In light of the robust record on the witness-recantation claim available for the district court’s review, it was not an abuse of discretion for the district court to deny Jackson’s petition for postconviction relief without a hearing.  Minn. Stat. § 590.04, subd. 1 (2004) (when petition, files, and record show that petitioner is not entitled to relief, postconviction petition may be denied without a hearing).  And because Jackson failed to establish that he is entitled to postconviction relief based on witness recantation, we need not address the district court’s conclusion that Jackson’s petition was untimely.[3]

Affirmed.