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Buermann v. State

Court of Appeals of Minnesota

August 26, 2013

Justin Michael Buermann, petitioner, Appellant,
v.
State of Minnesota, Respondent.

UNPUBLISHED OPINION

Otter Tail County District Court File No. 56-K8-05-000396

Lynne Torgerson, Minneapolis, Minnesota (for appellant).

Lori Swanson, Attorney General, Christie Bennett Eller, Deputy Attorney General, St. Paul, Minnesota; and David J. Hauser, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Cleary, Judge; and Willis, Judge. [*]

KALITOWSKI, Judge

Appellant Justin Michael Buermann challenges the district court's denial of his petition for postconviction relief and motion to withdraw an Alford plea. We affirm.

DECISION

I.

When reviewing a postconviction court's decisions, we review issues of law de novo, and we review factual findings to determine whether the findings are supported by sufficient evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). The petitioner may not file a petition for postconviction relief "more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court's disposition of petitioner's direct appeal, " unless an exception applies. Minn. Stat. § 590.01, subd. 4(a), (b) (2012).

One exception to the two-year requirement is when "the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice." Id., subd. 4(b)(5). For the interests-of-justice exception to apply, the petition for postconviction relief must be filed no more than two years after the time the claim arose. Id., subd. 4(c) (2012); Sanchez v. State, 816 N.W.2d 550, 557-58 (Minn. 2012). A claim for postconviction relief arises when the petitioner "knew or should have known that he had a claim." Sanchez, 816 N.W.2d at 560. This is an objective standard; a petitioner's subjective, actual knowledge is irrelevant. Id. at 558.

It is undisputed that Buermann filed his postconviction petition more than two years after the disposition of his direct appeal. Buermann argues that his petition falls within the interests-of-justice exception. We disagree.

In 2006, Buermann was found guilty of one count of first-degree criminal sexual conduct for the sexual abuse of K.T.B.; Buermann entered an Alford plea to a second count of first-degree criminal sexual conduct for the sexual abuse of a second victim, K.B. In 2012, he filed a petition for postconviction relief and a motion to withdraw his Alford plea. In his petition, and now on appeal, Buermann argues that his "actual innocence is clearly established by new evidence that [K.T.B.] has an absent vagina." Buermann presented no evidence about when he learned of the medical record indicating that the victim has an "absent vagina, " other than his own assertion that he did not learn about the medical record in question until August 2011.

But the record indicates that the state disclosed this medical record before trial. And the postconviction court found Buermann's assertion that he did not see the medical record until after the appeal "not credible and immaterial." We must defer to this credibility determination. Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006). Thus, Buermann knew or should have known about his plea claim when his direct appeal became final, which was 90 days after the Minnesota Supreme Court denied review on November 13, 2007. Berkovitz v. State, 826 N.W.2d 203, 207 (Minn. 2013). Because Buermann did not petition for postconviction relief until January 23, 2012, —almost ...


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