“First Appellate Review” By Post Conviction Proceedings Is Not “Direct Appeal” Under Post Conviction Limitations Provision

Staunton v. State, Minn.S.Ct., 2/22/2014.  The court’s obsessive, unrelenting assault on the post conviction statute continues.  Although Justice Dietzen writes for a unanimous court, that unanimity is only for the result.  A bare majority concludes that Mr. Staunton’s petition was untimely because it was not filed within two years of “an appellate court’s disposition of petitioner’s direct appeal.”  Minn.Stat. 590.01, subd. 4(a).  To arrive at this result, the majority has to concoct a disingenuous re-interpretation of what a “direct appeal” means in Minnesota.  

Mr. Staunton got convicted, filed an appeal which the court stayed while  he pursued a post conviction petition.  He withdrew that post conviction petition without prejudice and at Mr. Staunton’s request the court dismissed the appeal.  After a while Mr. Staunton filed a second post conviction petition which went away without a decision on the merits.  Still later, Mr. Staunton filed a third post conviction petition which the post conviction court denied after an evidentiary hearing.  On appeal from that denial the court agreed that this appeal was “the first appellate review of his claims” to which the state agreed he was entitled.  The court affirmed Mr. Staunton’s conviction.

The trouble starts when Mr. Staunton filed this fourth post conviction petition.  He said, correctly, that he filed it within two years of the disposition of his appeal of his third post conviction petition.  He went on to say that because the appeal of his third post conviction petition was his “first appellate review of his claims” that the disposition was the equivalent of a disposition of his “direct appeal”.  In other words, it was his direct appeal and so he could file this fourth post conviction petition within two years of the disposition of that appeal.  Which he did.

Minnesota has consistently said that a convicted defendant is entitled to a full appellate review of his claims.  That convicted defendant may do so either by an immediate appeal – the one commenced within ninety days of sentencing - or by post conviction petition – which until 2005 could be filed at just about any time.  This jurisprudence goes all the way back to 1976, in State v. Knaffla, 309 Minn.246, 243 N.W.2d 737 (1976).  There the court said that a first review by post conviction proceeding “is substantially similar in scope to a direct appeal.”  The court said that the only limitation was the additional procedural requirements of the post conviction statute.  (Not only that, but when that “full appellate review” is by post conviction petition, that defendant is entitled to appointment of counsel.  Deegan v. State, 711 N.W.2d 89 (Minn. 2006).) 

This logic is impeccable but it has the capability of upending the court’s determination to shut down post conviction proceedings by use of the limitations provision.  So, Justice Dietzen’s majority says, “Not so fast!”  Mr. Staunton’s “direct appeal” – the one taken within ninety days of the entry of judgment of conviction – was “disposed of” a decade ago when the court dismissed that proceeding at Mr. Staunton’s request (and with no merits review whatsoever).  This fourth petition is thus just way too late.  If that’s not enough, Justice Dietzen points to the language of the post conviction statute which does not contain the phrase “first review by post conviction proceeding.”  Never mind that by the time the legislature enacted the limitations provision to the post conviction statute in 2005 that body had just under thirty years of judicial opinions which consistently treated a “direct appeal” – the one commenced within ninety days – and a first post conviction petition proceeding where no “direct appeal” had been undertaken as the same damn thing:

We also presume the legislature acts with full knowledge of existing statutes and judicial interpretations of those statutes. See Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998) (un-reversed judicial construction is as much a part of statute as if part of original enactment)

Rockford Twp. v. City of Rockford, 608 N.W.2d 903, 908 (Minn. Ct. App. 2000)

In other words, there was absolutely no need for this additional phrase the absence of which the majority laments. 

Justices Page, Anderson and Lillehaug concurred only in the result.  They would have reached the merits of Mr. Staunton’s claims, and would have found them wanting.