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Frisch v. State

Court of Appeals of Minnesota

December 9, 2013

Daniel Peter Frisch, petitioner, Appellant,
v.
State of Minnesota, Respondent.

Hubbard County District Court File No. 29-CR-12-217

Renée Bergeron, Assistant State Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and Donovan D. Dearstyne, Hubbard County Attorney, Jonathan D. Frieden, Assistant County Attorney, Park Rapids, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

SYLLABUS

Minnesota Rule of Criminal Procedure 28.02, subdivision 4(4), which permits this court to stay an appeal and remand a case to a district court for postconviction proceedings, does not apply to an appeal from the denial of a postconviction petition.

SPECIAL TERM OPINION

JOHNSON, Judge.

This appeal is before a special term panel on Daniel Peter Frisch's motion for a stay of his appeal and a remand to the district court so that he may file a postconviction petition. Because Frisch previously petitioned for postconviction relief, and now is appealing the denial of that petition, the remand he seeks is for the purpose of filing a second postconviction petition. We conclude that the rule on which he relies does not permit a stay of a postconviction appeal for the purpose of filing a second postconviction appeal, and we deny the motion.

Frisch was convicted of gross-misdemeanor driving while impaired. He filed a notice of appeal from his conviction and sentence in an untimely manner. This court dismissed his direct appeal because it was filed beyond the 90-day time period without a showing of "good cause" for an extension. State v. Frisch, No. A12-1503 (Minn.App. Sept. 13, 2012) (order), review denied (Minn. Oct. 24, 2012); see also Minn. R. Crim. P. 28.02, subd. 4(3)(a), (g).

Frisch later petitioned for postconviction relief on the grounds that the evidence was insufficient to support his conviction and that the district court erroneously instructed the jury. The district court denied relief. Frisch timely filed this appeal from the order denying his postconviction petition. Approximately two weeks before his appellate brief was due, Frisch filed a motion asking this court to stay the appeal and to remand the case to the district court for additional postconviction proceedings. Frisch's motion states that he wishes to file a second postconviction petition, this time alleging ineffective assistance of counsel in connection with the untimely direct appeal and the district court proceedings related to his first postconviction petition. The state opposes the motion.

DECISION

In support of his motion for a stay and a remand, Frisch relies on rule 28.02, subdivision 4(4), of the Minnesota Rules of Criminal Procedure. That rule provides, "If, after filing a notice of appeal, a defendant determines that a petition for postconviction relief is appropriate, the defendant may file a motion to stay the appeal for postconviction proceedings." Minn. R. Crim. P. 28.02, subd. 4(4).

Subdivision 4(4) was adopted in 2003. Promulgation of Amendments to the Minnesota Rules of Criminal Procedure, No. C1-84-2137 (Minn. Feb. 28, 2003) (order). Before 2003, this court sometimes would dismiss a direct appeal without prejudice so that a defendant-appellant could pursue postconviction relief and, if unsuccessful, later return to the court of appeals and file a single brief addressing all issues related to both the conviction and the denial of postconviction relief. See, e.g., State v. Riendeau, 603 N.W.2d 341, 342 (Minn.App. 1999) (citing State v. Steele, 449 N.W.2d 157, 157 (Minn. 1989)). Subdivision 4(4) serves the same purpose: to allow this court to review both a conviction and the denial of postconviction relief in a single appellate proceeding.

Since the adoption of subdivision 4(4), this court frequently has granted motions filed by defendant-appellants to stay a direct appeal for the sake of a remand to the district court for postconviction proceedings, so long as the motion contains a "threshold factual showing, " id. at 344, which must include a statement of the issues or claims to be explored and a statement of the "additional facts [that] would be developed in a postconviction hearing, " id. at 343. We have applied a somewhat more lenient standard to motions that seek a stay and remand for the purpose of pursuing a postconviction claim based on the alleged ineffective assistance of trial counsel. See Minn. R. Crim. P. 28.02, ...


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