Frisch v. State

840 N.W.2d 426, 2013 WL 6391300, 2013 Minn. App. LEXIS 110
Court of Appeals of Minnesota·Decided December 9, 2013·No. No. A13-1121·Published

Opinion

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 postcon-viction 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 post-conviction 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 post-conviction 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 di[428] rect 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, cmt. ¶ 4. It has been this court’s experience that counsel understand the requirement of a threshold showing and usually are able to satisfy the requirement.

Frisch’s motion is different from the type of motion frequently granted by this court because he seeks to stay a postcon-viction appeal, not a direct appeal. He seeks to stay an appeal from the denial of his first postconviction petition so that he can return to the district court to file a second postconviction petition, before obtaining appellate review of the denial of his first postconviction petition. Frisch’s motion raises the question whether the stay- and-remand procedure in subdivision 4(4) of rule 28.02 applies to postconviction appeals as well as direct appeals.

The text of the rule does not answer the question. But a comment to the rule provides considerable insight into the intentions of the rules committee and the supreme court. The comment concerning subdivision 4(4) of rule 28.02 states, “Rule 28.02, subd. 4(4) establishes a procedure by which a defendant who has initiated a direct appeal may nonetheless pursue postconviction relief.” Minn. R.Crim. P. 28.02, cmt. ¶ 4 (emphasis added). Although a rules advisory committee’s comment is not binding on the courts, such comments “ ‘are recognized as providing guidance which courts may follow.’ ” State v. Dahlin, 753 N.W.2d 300, 307 (Minn.2008) (quoting State v. Pero, 590 N.W.2d 319, 326 (Minn.1999)). Comments to rules of court frequently are deemed persuasive because rules should be interpreted according to “ ‘the sense in which they were understood and intended at the time the rule was promulgated.’ ” Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn.1997) (quoting House v. Hanson, 245 Minn. 466, 473, 72 N.W.2d 874, 878 (1955)).

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Frisch v. State, 840 N.W.2d 426, 2013 WL 6391300, 2013 Minn. App. LEXIS 110 (Mich. Ct. App. 2013).

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Related

State v. Knaffla
243 N.W.2d 737 (Supreme Court of Minnesota, 1976)
State v. Yang
774 N.W.2d 539 (Supreme Court of Minnesota, 2009)
State v. Dahlin
753 N.W.2d 300 (Supreme Court of Minnesota, 2008)
State v. Steele
449 N.W.2d 157 (Supreme Court of Minnesota, 1989)
Nguyen v. State Farm Mutual Automobile Insurance Co.
558 N.W.2d 487 (Supreme Court of Minnesota, 1997)
Powers v. State
731 N.W.2d 499 (Supreme Court of Minnesota, 2007)
State v. Riendeau
603 N.W.2d 341 (Court of Appeals of Minnesota, 1999)
House v. Hanson
72 N.W.2d 874 (Supreme Court of Minnesota, 1955)
State v. Pero
590 N.W.2d 319 (Supreme Court of Minnesota, 1999)
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