Hunter Lee Briscoe, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0388

Hunter Lee Briscoe, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 4, 2017
Reversed and remanded
Peterson, Judge

Clay County District Court
File No. 14-CR-14-1410

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Brian J. Melton, Clay County Attorney, Lori H. Conroy, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from the summary denial of his petition for postconviction relief,
appellant Hunter Lee Briscoe argues that (1) the district court abused its discretion when it

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did not review the merits of the petition, (2) his actions did not constitute the alleged crime,
and (3) the jury instructions materially misstated the law. We reverse and remand.
FACTS
Briscoe was charged with third -degree burglary and misdemeanor theft for
removing his dog from an animal-control facility without permission after the dog was
impounded by an an imal-control officer. A jury found Briscoe guilty as charged, and on
March 12, 2015, the district court adjudicated Briscoe guilty of the third -degree-burglary
offense and imposed a stayed 18-month sentence.
Briscoe did not file a direct appeal. Instead, in December 2016, Briscoe petitioned
the district court for post conviction relief. Briscoe claimed in his petition, as he does on
appeal, that his conviction must be reversed because taking his own dog did not constitute
“stealing” under the burglary statute and because the district court err oneously instructed
the jury.
The postconviction court summarily denied Briscoe’s petition without reaching the
merits. The district court explained that because the issues Briscoe raised were questions
of law and statutory interpretation , they should have been raised in a direct appeal. The
postconviction court determined that b ecause a direct appeal was previously available to
Briscoe, and no evidentiary hearing on disputed facts wa s needed to address the issues,
Briscoe’s petition was a “misuse of a post -conviction petition.” The postconviction court
reasoned that to allow Briscoe to proceed “would essentially make the 90 -day time
requirement for [direct] appeals utterly meaningless, given the fact that all defendants have
two years from their convictions to file petitions for postconviction relief.”

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Briscoe now appeals.
D E C I S I O N
Briscoe argues that the district court abused its discretion when it summarily denied
his postconviction petition without reviewing the merits. We agree.
Appellate courts review the denial of a petition for postconviction relief for an abuse
of discretion. Miles v. State, 840 N.W.2d 195, 200 (Minn. 2013). A postconviction court
abuses its discretion when its “decision is based on an erroneous view of the law or is
against logic and the facts in the record.” Id. (quotation omitted).
In Minnesota, a criminal defendant is guaranteed meaningful access to at least one
right of review of a criminal conviction, whether by direct appeal or a first review by
postconviction proceeding. Deegan v. State, 711 N.W.2d 89, 93 (Minn. 2006); see Minn.
Stat. §§ 590.01-.11 (2016) (“postconviction statute”). Minnesota’s postconviction statute
provides:
Except at a time when direct appellate relief is available, a
person convicted of a crime, who claims that . . . the conviction
obtained or the sentence or other disposition made violated the
person’s rights under the Constitution or laws of the United
States or of the state; . . . may commence a proceeding to secure
relief by filing a petition in the district court in the county in
which the conviction was had.

Minn. Stat. § 590.01, subd. 1.
When a postconviction petitioner does not bring a direct appeal and, instead, seeks
first review by a postconviction proceeding, the petitioner is “entitled to raise nearly the
same breadth of claims that could have been brought in a direct appeal,” so long as the
postconviction petition complies with the procedures set forth under Minnesota Statutes

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chapter 590. Deegan, 711 N.W.2d at 94. A first review by postconviction proceeding “is
substantially similar in scope to a direct appeal.” Id.
In summarily denying Briscoe’s petition, the postconviction court relied on Gaulke
v. State, 289 Minn. 354, 359, 184 N.W.2d 599, 602 (1971), where the Minnesota Supreme
Court ruled that a n issue of statutory right, as opposed to a n issue of constitutional right,
“may be asserted only by a direct appeal rather than by a petition for postconviction relief.”
The postconviction court also relied on Kelsey v. State, 298 Minn. 531, 531, 214 N.W.2d
236, 237 (1974), in which the supreme court stated that issues that did not involve a factual
dispute should have been raised on direct appeal. Both Gaulke and Kelsey are
distinguishable and inapposite. In Gaulke, unlike here, the appellant had already received
a review of his conviction by the supreme court and raised new iss ues at a postconviction
proceeding.1 289 Minn. at 355, 184 N.W.2d at 600. In Kelsey, the supreme court had
already reviewed and affirmed the petitioner’s conviction when the petitioner filed a
petition for postconviction relief raising new legal issues. 298 Minn. at 531 -32, 214
N.W.2d at 237.
Despite the statement in Gaulke that statutory issues must be asserted in a direct
appeal, the supreme court in State v. Knaffla clarified that when the time for direct appeal
has expired, “a petition for postconviction relief is proper to provide [the] defendant with

1 In Gaulke, the appellant first petitioned the district court for a writ of error curam nobis
in 1960 to challenge his conviction. State ex rel. Gaulke v. Winona Cty. , 259 Minn. 183,
183, 106 N.W.2d 560, 561 (1960). The writ of curam nobis was a common -law writ
available to a convicted defendant to correct errors of fact that were unknown to a court at
the time of trial, and it was used before the modern rules of criminal procedure were
adopted. State v. Kubus, 243 Minn. 379, 381, 68 N.W.2d 217, 219 (1955).

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a review of statutory assertions.” 309 Minn. 246, 252 n.6, 243 N.W.2d 737, 741 n.6 (1976).
The Knaffla court approved bringing sufficiency-of-the-evidence claims and challenges to
evidentiary rulings in a petition for postconviction relief, regardless of whether the petition
raised issues of constitutional magnitude. Id. at 252, 243 N .W.2d at 741. The Knaffla
court concluded that, in a postconviction proceeding, re lief is not to be predicated upon a
determination as to whether direct appeal from the conviction was taken within the
prescribed time limit. Id.
Confusingly, soon after the Knaffla decision, the supreme court in Hirt v. State, 309
Minn. 574, 575, 244 N .W.2d 162, 163 (1976), stated that because an issue was “purely
statutory,” it was “not properly raised in a postconviction proceeding. ” But Hirt does not
change our analysis for two reasons. First, in Hirt, the supreme court’s primary reason for
not considering the “purely statutory” issue was that the issue had been raised on appeal
but had not been litigated in district court . Id. at 575, 244 N.W.2d at 162. Second, any
confusion created by Hirt concerning the scope of postconviction relief under Minnesota
Statutes chapter 590 was more recently resolved in Deegan, which cited Knaffla for the
principle that a postconviction petitioner may raise nearly the same brea dth of claims that
could have been brought in a direct appeal, so long as the procedura l requirements of the
postconviction-relief statute are met. 711 N.W.2d at 94. Consequently, the law in Deegan
and Knaffla controls.
Briscoe complied with the procedural req uirements of the postconviction -relief
statute. Briscoe’s petition alleged statutory issues, as allowed under Knaffla, in accordance
with Minn. Stat. § 590.01, subd. 1. And the petition was filed within two years after the

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entry of judgment of conviction, in accordance with Minn. Stat. § 590.01, subd. 4. Because
the procedural requirements were met, Briscoe was entitled to bring the same claims that
he could have brought on direct appeal. Deegan, 711 N.W.2d at 94. The district court’s
decision to deny Briscoe’s petition because it raised only statutory issues that should have
been raised in a direct appeal was based on an erroneous view of the law and , therefore,
was an abuse of discretion. Accordingly, we reverse the district court’s order summarily
denying Briscoe’s petition for postconviction relief.
Additionally, Brisco e a ddresses the merits of his postconviction claims that his
conviction for third -degree burglary must be reversed because (1) his actions did not
constitute “stealing” as a matter of law under the burglary statute and (2) the district court
materially misstated the law in its instructions to the jury on the intent -to-steal element of
burglary. In general, appellate courts will not decide issues that were not first addressed
by the district court. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Accordingly,
we remand for the district court to address the merits of Briscoe’s petition.
Reversed and remanded.