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Whipple v. State

Court of Appeals of Minnesota

June 3, 2013

Michael Ray Whipple, petitioner, Appellant,
v.
State of Minnesota, Respondent.

UNPUBLISHED OPINION

Crow Wing County District Court File No. 18-K4-05-001644

David W. Merchant, Chief Appellate Public Defender, Cathryn Young Middlebrook, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and Donald F. Ryan, Crow Wing County Attorney, Rockwell J. Wells, Assistant County Attorney, Brainerd, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Stauber, Judge.

HUDSON, Judge

In this postconviction appeal seeking relief from his 2005 guilty plea to third-degree criminal sexual conduct, appellant Michael Ray Whipple argues that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), applies to civil commitments and that his attorney was ineffective for failing to advise him of the possibility of being civilly committed before he pleaded guilty. Therefore, appellant argues, he is entitled to relief in the interests of justice pursuant to Minn. Stat. § 590.01, subd. 4(b)(5) (2010). Because Padilla is inapplicable to civil-commitment consequences, and because an attorney is not ineffective for failing to advise a client about this potential consequence, we affirm.

FACTS

In July 2005, appellant was charged with third-degree criminal sexual conduct arising out of allegations that he had sexual intercourse with a mentally disabled 15-year-old girl. On November 30, 2005, appellant appeared before the district court to resolve the charges in this case, as well as pending charges of solicitation of a child to engage in prostitution and solicitation of a child to engage in sexual conduct arising out of two other incidents. All three matters were resolved: appellant pleaded guilty to one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2004), and to one count of solicitation of a child to engage in sexual conduct in violation of Minn. Stat. § 609.352, subd. 2 (2004); the other charges were dismissed. That same day, appellant was sentenced to 48 months in prison for the criminal sexual conduct conviction, and 23 months for the solicitation conviction to be served concurrently.

In February 2009, while appellant was still incarcerated, Crow Wing County Human Services petitioned to civilly commit him as a sexual psychopathic personality (SPP) and sexually dangerous person (SDP). After appellant stipulated that there were sufficient facts to commit him as an SDP, the district court ordered the initial commitment of appellant as an SDP; the petition to commit appellant as an SPP was dismissed. In September 2009, the district court reviewed appellant's case and ordered that he be indeterminately committed.

In the fall of 2010, appellant moved the district court to vacate his commitment under Minn. R. Civ. P. 60.02. The district court denied his motion, and appellant appealed, arguing, inter alia, that he received ineffective assistance of counsel because his attorney promised him that if he stipulated to commitment he would be released in a few years. On appeal, this court affirmed appellant's commitment, dismissing some of his claims as not justiciable and concluding that his ineffective-assistance argument lacked factual support. See In re Civil Commitment of Whipple, No. A10-2098 (Minn.App. May 23, 2011). Appellant never directly appealed his conviction.

On March 29, 2012, appellant filed a petition for postconviction relief seeking to withdraw his guilty plea. The district court denied appellant's petition, concluding that his claim was time barred under Minn. Stat. § 590.01, subd. 4(a)(1) (2010). This appeal follows.

DECISION

In reviewing a postconviction court's decision to grant or deny relief, this court reviews issues of law de novo and reviews factual findings for sufficiency of the evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007); see also Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (noting that appellate courts "extend a broad review of both questions of law and fact" when reviewing postconviction proceedings) (quotation omitted). "The decisions of a postconviction court ...


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