Mark Edward Wetsch v. State of Minnesota

This opinion will be unpublished and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
A14-1794

Mark Edward Wetsch, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 20, 2015
Affirmed
Hudson, Judge

Hennepin County District Court
File No. 27-CR-10-52362

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Sarah Becker, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Chutich, Judge; and Hudson,

Judge.

UNPUBLISHED OPINION

HUDSON, Judge

Appellant challenges the district court’s denial of his petition for postconviction

relief. He argues that the district court erroneously concluded that the petition was time-
barred and that trial counsel was constitutionally ineffective because counsel failed to

inform him that she would not call a witness to testify on his behalf until the morning of

trial. Because we conclude that the district court correctly determined that the

postconviction petition was time-barred, we affirm.

FACTS

Appellant Mark Edward Wetsch was charged with one count of misdemeanor

violation of an order for protection in November 2010. Appellant pleaded guilty to the

offense on May 9, 2011. The plea agreement called for a stayed jail sentence of 90 days,

a domestic abuse no-contact order, and other terms of probation. Appellant signed a plea

petition indicating that he understood that he was waiving his trial rights, including the

right to call witnesses to testify on his behalf, and he informed the district court at the

hearing that he understood that he was giving up those rights. The district court accepted

the plea and sentenced appellant in accordance with the terms of the agreement on

May 18, 2011.

On June 10, 2013, appellant filed a pro se petition for postconviction relief,

seeking to withdraw his guilty plea on the basis that he did not receive effective

assistance of counsel before he pleaded guilty. He asserted that trial counsel refused to

secure a witness to testify on his behalf and that trial counsel informed him that, if he did

not plead guilty, a bench trial would be held, and appellant would be sentenced to 90 days

in jail. The district court ordered that an evidentiary hearing be held.

At the evidentiary hearing, appellant testified that he informed trial counsel that he

wanted to call a witness whose testimony he believed would exonerate him, but that trial

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counsel did not inform him until the morning of trial that she did not intend to call that

witness. He stated that he pleaded guilty because he did not believe that he would prevail

at trial without that witness and because trial counsel informed him that if the matter went

to trial, he could be found guilty and sentenced to 90 days in jail. He stated that, had he

known that he had a right to call that witness, he would not have pleaded guilty. He

admitted that he reviewed and signed a plea petition that contained his trial rights,

including the right to call witnesses, but stated that it was filled out quickly, and he did

not fully understand those rights.

Appellant’s trial counsel testified that appellant informed her of a witness that he

wanted to call, but that when she investigated the witness, she determined that the witness

would not testify favorably for appellant. She stated that she decided not to call that

witness as a matter of trial strategy and that she informed appellant on the day of trial that

she would not call the witness because the witness would not be helpful to his case. She

also testified that she told appellant that, if he were convicted, the district court would

have the option to ignore the terms of the state’s plea offer and impose jail time. The

district court concluded that the petition for postconviction relief was time-barred and

denied relief. This appeal follows.

DECISION

Appellant argues that the district court erroneously concluded that the petition for

postconviction relief was time-barred. We review a district court’s decision to deny a

petition for postconviction relief for an abuse of discretion. Riley v. State, 819 N.W.2d

162, 167 (Minn. 2012). We will not reverse findings of fact unless they are clearly

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erroneous, but we will review legal issues de novo. Id. “The interpretation of a

procedural rule is subject to de novo review.” Johnson v. State, 801 N.W.2d 173, 176

(Minn. 2011).

A party may bring a postconviction petition for relief when (1) direct appellate

relief is no longer available, (2) the petitioner argues that his conviction violated his

rights, and (3) the claim is timely. Minn. Stat. § 590.01, subds. 1, 4 (2014). If no direct

appeal is filed, the postconviction claim is timely when it is filed no more than two years

after the entry of judgment of conviction or sentence. Minn. Stat. § 590.01, subd. 4(a)(1)

(2014). In this case, the district court sentenced appellant on May 18, 2011, and he filed

his petition for postconviction relief on June 10, 2013. His petition was therefore

untimely.

The district court may still consider the merits of an untimely postconviction

petition if one of five statutory exceptions applies. Minn. Stat. § 590.01, subd. 4(b). The

petitioner bears the burden to demonstrate that his petition meets one of those exceptions.

Clifton v. State, 830 N.W.2d 434, 438 (Minn. 2013). Here, appellant argues that the

interest-of-justice exception is applicable. To satisfy that exception, “a claim must have

substantive merit and the defendant must not have deliberately and inexcusably failed to

raise the issue on direct appeal.” Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010).

The interests-of-justice exception is generally reserved only for exceptional

circumstances, where some fundamental unfairness must be addressed to protect the

integrity of the judicial system. Carlton v. State, 816 N.W.2d 590, 607 (Minn. 2012).

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 Appellant asserts that we should apply the interests-of-justice exception here

because he was incarcerated for a different offense following his plea; he had limited

access to the law library while incarcerated; and there were delays in processing his

postconviction petition from the prison mail system through the United States Postal

Service. We disagree. We have previously concluded that a postconviction petition is

timely filed only if it is received by the district court before the statute of limitations

expires and that delays that result from the “prison mailbox” have no bearing on the

timeliness of that filing. Chang v. State, 778 N.W.2d 388, 393 (Minn. App. 2010).

Likewise, the remaining circumstances that appellant identifies as relevant to his delay in

filing the postconviction petition are not so exceptional as to warrant relief from the

statutory time bar. Restrictions to the law library and other challenges that result from a

petitioner’s incarceration are, as the district court noted, common to “[e]very incarcerated

pro-se inmate” who is considering whether to file a petition for postconviction relief. We

therefore conclude that the district court properly determined that appellant’s petition was

time-barred.

Affirmed.

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