STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1627

John Jerry Cermak, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 10, 2007

Affirmed

Ross, Judge

Scott County District Court

File No. 70-1981-08573

John Jerry Cermak, OID No. 120249, 1000 Lake Shore Drive, Moose Lake, MN 55767 (pro se appellant)

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center - JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

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

ROSS, Judge

John Cermak appeals from an order denying his second postconviction petition that challenges his 1981 guilty pleas and sentencing on six counts of first-degree criminal sexual conduct, which the supreme court affirmed on direct appeal in State v. Cermak, 344 N.W.2d 833 (Minn. 1984). Cermak argues that by imposing the maximum sentence of 480 months, the district court deprived him of any benefit of his plea bargain because the court could not have sentenced him to more time even if he had pleaded guilty to the counts that were dismissed in exchange for the plea. He also argues that the postconviction court erred by ruling that Knaffla procedurally bars his claims and by denying him an evidentiary hearing. Because we find that the district court did not abuse its discretion by summarily denying Cermak’s repetitious petition for postconviction relief, we affirm.

FACTS

The state charged Cermak in three separate complaints with seven counts of first-degree criminal sexual conduct, seven counts of second-degree criminal sexual conduct, and one count of engaging a minor in obscene acts, stemming from his and his brother’s multiple sexual assaults in 1980 and 1981 of seven children between the ages of three and twelve. State v. Cermak, 344 N.W.2d 833, 835-836 (Minn. 1984). After the start of his trial in November 1981, Cermak pleaded guilty to six counts of first-degree criminal sexual conduct in exchange for the dismissal of the remaining charges. The district court departed upward on each count, sentencing Cermak to consecutive terms of 80 months’ imprisonment for a total of 480 months, the then-statutory maximum for consecutive sentences. The district court stated its reasons for the departure on the record and memorialized the reasons in a departure report.

Cermak soon petitioned the district court for postconviction relief, seeking to withdraw his guilty pleas because his counsel purportedly failed to inform him of the maximum potential sentence he faced. At the postconviction evidentiary hearing, Cermak testified that he would not have pleaded guilty if he had been advised that he might receive the 40-year maximum sentence after doing so. The district court denied the petition. Cermak then appealed to the supreme court, arguing that his sentence should be reduced to the maximum sentence permitted without departure. The supreme court affirmed the sentence. Id. at 837, 840.

Over twenty-two years later, Cermak filed a second petition for postconviction relief, again challenging his guilty pleas and sentencing and again arguing that he did not receive any benefit of his plea bargain. He again contends that the dismissal of nine counts in exchange for his guilty pleas on six counts did not work to his benefit because even if he had pleaded guilty to all fifteen counts the district court could not have imposed a greater sentence than it did. And he has again argued that the possibility of receiving the statutory maximum was not explained to him at the plea hearing. He requested that the district court amend his sentence and impose an aggregate sentence of a length that, as it happens, would result in his immediate release from prison.

The district court summarily denied Cermak’s second petition for postconviction relief in July 2006. It found the issues raised to be barred by the rule announced in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), because they had previously been considered and decided. This appeal follows.

D E C I S I O N

Cermak argues that the district court abused its discretion by not affording him an evidentiary hearing and by failing to address the merits of his claims. We agree with the district court’s decision procedurally and on the merits.

A petition for postconviction relief is a collateral attack on a judgment that carries a presumption of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). We review a postconviction court’s findings only to determine whether sufficient evidence in the record supports them. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Absent an abuse of discretion, we will not disturb the decision of the postconviction court. Id.

It is now settled that “[o]nce a petitioner has directly appealed his criminal conviction and has filed previous petitions for postconviction relief, any matter raised in the direct appeal or matters that were known to the defendant and could have been raised in the previous petitions will not be considered upon a subsequent petition for postconviction relief.” Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003); see Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. There are two exceptions to the Knaffla rule. A court may consider a postconviction claim not previously raised when the claim presents a novel legal issue not reasonably ascertainable at the time of direct appeal, or when “fairness requires review of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.” Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005). Denial of postconviction relief based on Knaffla is reviewed for an abuse of discretion. Id. Because neither exception applies to the present case, we hold that the district court did not abuse its discretion by summarily denying Cermak’s second postconviction petition.

Cermak was not entitled to a hearing on the merits of his petition. A petitioner seeking postconviction relief must establish facts, by a fair preponderance of the evidence, that would warrant relief. Wilson v. State, 726 N.W.2d 103, 106 (Minn. 2007). A district court need not conduct an evidentiary hearing if the petition and the files and records from the proceeding “conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2006). A district court also “may summarily deny a second or successive petition for similar relief . . . when the issues raised in it have previously been decided by [an appellate court] in the same case.” Id., subd. 3 (2006). Because the issues raised in Cermak’s present petition were or could have been raised in his first petition or on direct appeal, the district court did not abuse its discretion by denying him a hearing.

Cermak repeats his 1983 argument that he received no benefit from his plea bargain because the district court could not have statutorily imposed a greater sentence even if the jury convicted him of all fifteen counts. His assertion that he never presented the argument on direct appeal misses the point because he could have raised it on direct appeal and he did raise it in his first petition. His claim is now barred by Knaffla. Similarly, Cermak’s present claim that his counsel did not inform him that he could be sentenced to the statutory maximum of 480 months was specifically raised in his first petition and argued during the evidentiary hearing in 1983.

Affirmed.