Brett Thomas Green v. State of Minnesota ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1386
Brett Thomas Green, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed April 11, 2016
Affirmed
Smith, John, Judge
Isanti County District Court
File No. 30-CR-08-1174
Brett Thomas Green, Rush City, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Jeffrey Edblad, Isanti County Attorney, Scott A. Hersey, Special Assistant County
Attorney, St. Paul, Minnesota (for respondent)
Considered and decided by Cleary, Chief Judge; Rodenberg, Judge; and Smith,
John, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
SMITH, JOHN, Judge
We affirm the district court’s order summarily denying appellant Brett Thomas
Green’s postconviction petition and his motion for correction of his sentence because his
petition is Knaffla-barred and the district court properly calculated his jail credit when
appellant was resentenced.
FACTS
Green was found guilty of criminal sexual conduct in the first, third, and fourth
degrees in August 2010. Green was sentenced to 153 months in prison and a lifetime period
of conditional release. Green filed a direct appeal, arguing that Spreigl evidence was
improperly admitted, there was insufficient evidence to support his conviction, the
prosecutor engaged in misconduct, and several other claims that this court concluded were
meritless. State v. Green, No. A11-850, 2012 WL 1470164 (Minn. App. Apr. 30, 2012)
(Green I). We affirmed Green’s conviction in an unpublished opinion. Id.Green subsequently filed numerous petitions for postconviction relief from
September 2012 to February 2014. Collectively, those petitions raised arguments for
sentence modification, manifest injustice based upon credibility of trial witnesses and
actual innocence, sufficiency of the evidence, prosecutorial misconduct, newly discovered
evidence, ineffective assistance of trial and appellate counsel, and multiple requests for
appointment of counsel. The district court denied Green’s motions on various grounds,
noting that the claims brought by Green were barred by State v. Knaffla, 309 Minn. 246,
243 N.W.2d 737 (1976), and Minn. Stat. § 590.01, subd. 1(2) (2012). The district court
2
also denied Green’s requests for appointment of counsel because the direct appeal had
already occurred. Minn. Stat. § 590.05 (2012).
On March 27, 2014, Green filed his second appeal challenging the denial of several
of his petitions for postconviction relief. Green v. State, No. A14-0613, 2015 WL 46502(Minn. App. Jan. 5, 2015) (Green II), review denied (Minn. Mar. 17, 2015). We affirmed,
stating that the issues raised by Green were barred by Knaffla and that Green failed to
provide a factual or legal basis for the relief requested. Id. at *3. Additionally, we
considered and rejected Green’s argument that he received ineffective assistance of
appellate counsel. Id. at *2.
In October 2014, Green filed multiple petitions for postconviction relief, raising the
same issues that had been rejected by both this court and the district court. The district
court again denied Green’s motions. In a separate file, 30-CR-07-71, the district court
granted Green’s request to withdraw his guilty plea. Because the conviction in that file
was used as a basis for Green’s criminal-history score for sentencing in the present case,
the district court ordered that the matter be scheduled for resentencing, and appointed
counsel for Green on that issue.
On April 15, 2015, the district court resentenced Green to 144 months with a
conditional-release term of 10 years and credit for 2,344 days spent in custody. Green filed
additional petitions for postconviction relief, raising the same previous claims, and again
requested appointment of counsel. The district court denied the petitions on the basis that
Green’s claims were barred by Knaffla, Minn. Stat. § 590.01, subd. 1(2), and that the prior
order appointing counsel for purposes of resentencing had been fulfilled.
3
In July 2015, Green filed two motions. The first motion requested the district court
to recalculate his jail credit and reconsider its decision not to impose a downward departure.
The second motion requested postconviction relief based upon the same claims that had
been rejected multiple times. The district court denied Green’s motion for a corrected
sentence, holding that the time spent in jail for which Green sought credit was served prior
to the date the state acquired probable cause on the present offense. The court refused to
consider Green’s request to reconsider the downward departure as untimely because it was
filed while direct appellate review was still available. Finally, the district court summarily
denied Green’s petition for postconviction relief on the grounds that it reiterated his
previous postconviction filings and offered no new basis for review. Green appeals.
DECISION
I. The district court did not abuse its discretion when it summarily denied
Green’s postconviction petition.
“A petition for postconviction relief after a direct appeal has been completed may
not be based on grounds that could have been raised on direct appeal of the conviction or
sentence.” Minn. Stat. § 590.01, subd. 1 (2014). Once a direct appeal has been taken, all
matters raised and all claims known but not raised, will not be considered upon a
subsequent petition for postconviction relief. Knaffla, 309 Minn. at 252, 243 N.W.2d at
741. Two exceptions to the Knaffla rule apply when: (1) a novel issue has been raised or
(2) the interests of justice require review. Carridine v. State, 867 N.W.2d 488, 493 (Minn.
2015).
4
A postconviction court may summarily deny a successive petition for
postconviction relief if the issues raised in the petition have been previously decided by the
court of appeals or the supreme court in the same case. Minn. Stat. § 590.04, subd. 3
(2014). An evidentiary hearing is required if the petitioner alleges facts that, if proven by
a preponderance of the evidence, would entitle him to the requested relief. Roby v. State,
547 N.W.2d 354, 356 (Minn. 1996). “The petitioner’s allegations must be more than
argumentative assertions without factual support.” Hodgson v. State, 540 N.W.2d 515, 517
(Minn. 1995) (quotation omitted). A summary denial of a postconviction petition is
reviewed for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).
We review issues of law de novo and factual findings for sufficiency of the evidence
supporting them. Id.Knaffla Rule
Green argues that the district court abused its discretion when it summarily denied
his petition for postconviction relief. We disagree. Green has filed numerous petitions for
postconviction relief and has now filed three separate appeals. In his most recent petition
for relief, which is the subject of this appeal, Green raises the issues of ineffective
assistance of trial and appellate counsel, sufficiency of the evidence, prosecutorial
misconduct, and credibility of the trial witnesses. The district court denied Green’s petition
with respect to these issues, noting that his requests “essentially reiterate his previous
multiple postconviction challenges and present no new evidence or other substantive basis
for review.” In fact, all of these issues, except for the claims of ineffective assistance of
counsel, were raised and rejected in Green’s first appeal. See Green I, 2012 WL 1470164,
5
at *4-5. Because Green does not assert that the claim of ineffective assistance of trial
counsel required examination of evidence outside of the trial record, that claim would have
been available to him on direct appeal. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013)
(“When a claim of ineffective assistance of trial counsel can be determined on the basis of
the trial record, the claim must be brought on direct appeal or it is Knaffla-barred.”).
Additionally, Green’s assertion that he received ineffective assistance of appellate counsel
with respect to his first appeal was raised and rejected in Green’s second appeal. Green II,
2015 WL 46502, at *2. Because the assertions made by Green were raised on direct appeal,
could have been raised on direct appeal, or have subsequently been decided by this court,
we conclude that they are now procedurally barred. Minn. Stat. § 590.04, subd. 3; Knaffla,
309 Minn. at 252, 243 N.W.2d at 741.
Exceptions to the Knaffla Rule
Green argues that even if he is procedurally barred under Knaffla, his arguments
satisfy the exceptions to the Knaffla rule and should be considered by this court. We are
not persuaded. To be eligible for relief under an exception to the Knaffla rule, Green would
have to raise an issue that is “so novel that its legal basis was not reasonably available at
the time of the direct appeal” or requires review in the interests of justice and the failure to
raise the issue on direct appeal was not deliberate and inexcusable. Carridine, 867 N.W.2d
at 493 (quotation omitted).
Here, Green argues that he has raised novel issues of sufficiency of the evidence,
ineffective assistance of trial and appellate counsel, actual innocence, and prosecutorial
misconduct. There is nothing novel about these claims. With the exception of the claim
6
of ineffective assistance of appellate counsel, all of the issues asserted by Green were raised
or could have been raised on direct appeal. And the issue of ineffective assistance of
appellate counsel was addressed in Green’s second appeal. Green II, 2015 WL 46502, at
*2. Green argues that review is required in the interests of justice because any issues not
raised on direct appeal were excusable on the grounds that his appellate counsel “raised
only one issue, which was completely moot, without legal grounds.” But this issue was
addressed in Green’s second appeal, when we held that Green failed to demonstrate how
any of the claims not raised by his appellate counsel had merit or would have altered the
outcome of his direct appeal. Id. (citing Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009)
(noting that counsel does not act unreasonably by not asserting claims that counsel could
have legitimately concluded would not prevail)). Further, we noted that Green filed
supplemental pro se briefs on direct appeal but failed to offer a reason for why those briefs
did not include the issues that were later raised in his successive postconviction petitions.
Id. This same reasoning applies to this appeal, and exemplifies why Green’s arguments
fail to satisfy either exception to the Knaffla rule.
Appointment of Counsel
Finally, Green argues that the Knaffla rule should not apply because he was not
appointed counsel in accordance with the district court’s January 20, 2015 order. The
district court’s order granted Green’s request for appointment of counsel and stated that the
matter was to be scheduled to address sentencing issues presented by Green’s plea
withdrawal in file 30-CR-07-71. By Green’s own admission, he was represented by
7
counsel at the April 15, 2015 sentencing hearing. Therefore, the district court’s order was
fulfilled.
Green asserts that aside from the issue of sentencing, he was entitled to appointment
of counsel to address the other issues raised in his successive postconviction petitions. An
indigent person who desires to pursue postconviction relief may apply for representation
by the state public defender. Minn. Stat. § 590.05 (2014). And the state public defender
shall represent such an individual if the person has not already had a direct appeal of the
conviction. Id. Here, because Green already had a direct appeal of his conviction, he is
not entitled to representation to pursue the other issues raised in his postconviction
petitions.
Green’s arguments are procedurally barred under Knaffla and Minn. Stat. § 590.01,
subd. 1(2), he does not satisfy either exception to the Knaffla rule, and he is not entitled to
counsel to address the issues raised in his successive postconviction petitions. Therefore,
the district court did not abuse its discretion by summarily denying Green’s petition.
II. The district court did not miscalculate Green’s jail credit.
When pronouncing the sentence of an individual, the court must “[s]tate the number
of days spent in custody in connection with the offense or behavioral incident being
sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B). “That credit must be deducted from the
sentence and term of imprisonment and must include time spent in custody from a prior
stay of imposition or execution of sentence.” Id. Jail credit shall be awarded for time in
custody after the date when “(1) the [s]tate has completed its investigation in a manner that
does not suggest manipulation by the [s]tate, and (2) the [s]tate has probable cause and
8
sufficient evidence to prosecute its case against the defendant with a reasonable likelihood
of actually convicting the defendant.” State v. Clarkin, 817 N.W.2d 678, 689 (Minn. 2012).
“The defendant has the burden of establishing that he is entitled to jail credit for any
specific period of time.” Id. at 687. Awarding jail credit is a mixed question of fact and
law. Id. We review the district court’s factual findings concerning jail credit for clear
error, then apply the rules of law to those circumstances under the de novo standard. Id.
“The sentencing court does not have discretion in awarding jail credit.” Id.
Credit from Prior Conviction
Green argues that he is entitled to jail credit for time spent in custody on a previous
conviction in file 30-CR-07-71. Green acknowledges that he was incarcerated for his
conviction in file 30-CR-07-71 from January 19, 2007 until April 25, 2007, and again from
February 7, 2008 until July 4, 2008. The complaint and amended complaints in the present
file allege that the current offenses occurred on or about August 7, 2008. When Green was
resentenced, the court awarded credit for any time in custody dating back to August 7,
2008. Because the present offense occurred after Green’s release from incarceration on
file 30-CR-07-71, he was not entitled to credit for time spent in custody on that file.
Therefore, the district court did not err.
Calculation of Jail Credit
Green also argues that the jail credit for time spent in custody on this file was
miscalculated. “[A] criminal defendant at sentencing shall get credit for time spent in jail
in connection with the criminal charges.” State v. Johnson, 744 N.W.2d 376, 379 (Minn.
2008). Jail credit is applied by subtracting the credit from the specified minimum term of
9
imprisonment of the imposed sentence. Minn. Sent. Guidelines 3.C.2.a. Here, the
presentence investigation shows that Green was incarcerated on this file from October 3,
2008 until July 12, 2010, and from August 24, 2010 until March 12, 2015. This amounts
to 2,310 days spent in custody. At sentencing, the court awarded Green credit for these
days, plus credit for the time spent in custody from March 13, 2015 until the sentencing on
April 15, 2015, for a total of 2,344 days of jail credit. Green asserts that on top of the 791
days actually served in custody from October 3, 2008 to July 12, 2010 1 and August 24,
2010 to January 13, 2011, he is entitled to an additional 264 days (one-third of 791) of
good time earned. But if Green received good time credit for one-third of the time spent
in custody in addition to one-third of the total executed prison sentence, he would
improperly receive double credit. Therefore, Green is not entitled to the additional 264
days of credit he requests. We conclude that the district court did not miscalculate his jail
credit.
Downward Departure
Green also alludes to challenging the denial of a downward departure, but fails to
adequately brief this argument. This issue is therefore waived. State v. Butcher, 563
N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). We also note
that the district court properly refused to consider this argument because Green’s
postconviction petition was filed on July 8, 2015, during a time when direct appellate
1
Green’s brief uses the date of July 4, 3010, which appears to be a typographical error. In
his postconviction petition he uses the date July 12, 2010, which is consistent with the date
in the presentence investigation.
10
review was available. See Minn. Stat. § 590.01, subd. 1 (stating that a person may petition
for postconviction relief except when direct appellate review is available). Additionally, it
would now be improper for this court to consider this argument because Green filed his
notice of appeal on August 21, 2015, more than 90 days after the sentencing order was
issued on April 15, 2015. See Minn. R. Crim. P. 28.02, subd. 4(3)(a) (“[A]n appeal by the
defendant must be filed within 90 days after final judgment or entry of the order being
appealed.”); State v. Hughes, 758 N.W.2d 577, 580 (Minn. 2008) (“The 90-day appeal
period for direct appeals begins to run upon entry of a final judgment, which occurs when
there is a judgment of conviction . . . and [a] sentence is imposed . . . .” (alterations in
original) (quotations omitted)). But because the time frame for appeal on this issue has
now concluded, Green could now raise this issue in a separate postconviction petition.
We conclude that the district court did not err when resentencing Green because the
jail credit was properly calculated and his challenge to the denial of a downward departure
was untimely.
Affirmed.
11