Walter Johann Happel, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0052

Walter Johann Happel, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 22, 2019
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-14-3581

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Adam Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing that
the district court erred by dismissing his petition as statutorily time -barred and imposing
an upward durational departure during sentencing. We affirm.
FACTS
In 2014, law enforcement officers investigated appellant Walter Johann Happel for
interfering with the privacy of minors. Following this investigation, the state charged
appellant with multiple sex offenses in eight separate case files, each involving a different
victim. The parties entered into a negotiated plea agreement in March 2015. Appellant
entered a plea of guilty to felony first-degree criminal sexual conduct for sexual penetration
with a child under the age of 13 while appellant was more than 36 years older than the
victim, and amended charges of second -degree intrafamilial sexual abuse and fourth -
degree intrafamilial sexual abuse . Appellant also entered an Alford plea to surreptitious
interference with the privacy of a minor . The remaining charges were dismissed. The
parties agreed that appellant would serve a term of 120 months in prison, which constituted
an upward durational departure from the presumptive guidelines sentence.
Pursuant to the plea agreement, the district court sentenced appellant to 120 months
in prison for first-degree criminal sexual conduct, representing an upward departure. The
district court determined that the departure was justified because appellant was in a position
of authority over the victim, the crime caused the victim severe psychological harm, and

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appellant agreed to the sentence at the plea hearing . The district court also imposed
concurrent sentences on the remaining charges. Appellant did not appeal his convictions.
Nearly two years after his conviction , appellant filed a “place holder” petition for
postconviction relief. Several months later , appellant filed a supp lemental petition for
postconviction relief, abandoning the issues identified in the original petition and raising
new issues. The district court dismissed the petition as untimely, and this appeal follows.
D E C I S I O N
I. Legal Standard
We review a denial of postconviction relief to determine whether the district court
abused its discretion by making a decision that “is based on an erroneous view of the law
or is against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162, 167 (Minn.
2012) (quotation omitted). The district court’s factual determinations are reviewed under
a clearly-erroneous standard and will not be reversed unless they lack factual support in
the record. State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014). Legal issues are reviewed
de novo. Vance v. State, 752 N.W.2d 509, 512 (Minn. 2008). Assessment of the validity
of a guilty plea presents a question of law. State v. Raleigh , 778 N.W.2d 90, 94 (Minn.
2010).
II. Appellant’s Postconviction Petition Is Time-Barred
We first determine that the district court did not err by denying appellant’s
postconviction petition as untimely. The postconviction statute bars petitions “filed more
than two years after . . . the entry of judgment of conviction or sentence if no direct appeal
is filed.” Minn. Stat. § 590.01, subd. 4(a)(1) (2018); see also Lussier v. State, 821 N.W.2d

4
581, 586 n.2 ( Minn. 2012) ( applying the timeliness requirement of section 590.01 to a
postconviction challenge) . Appellant did not file a direct appeal of his convictions .
Appellant was sentenced on May 7, 2015, with the two-year filing period expiring on May
7, 2017.
Appellant filed what can be characterized as a “placeholder” petition on May 4,
2017, within the two-year statutory deadline. The original petition asserted that appellant’s
guilty plea was not knowing, voluntary, or accurate. The petition did not contain a
statement of facts supporting his contention that his guilty plea was invalid. Nearly three
months later, and after the two-year deadline passed, appellant filed a supplemental petition
challenging his sentence.1 The supplemental petition abandoned the claim that his guilty
plea was invalid and argued instead that there w ere not sufficient facts in the record
justifying the upward departure and the district court did not make appropriate factual
findings to support its reasons for ordering the departure. The district court determined
that the supplemental petition was time-barred because it “raised the entirely new issue of
the validity of [appellant’s] sentence” and bore no relationship to the original filed petition.
The district court further determined that even if the petition was timely, the sentence was
valid because appellant admitted “sufficient details to support the court’s findings
regarding aggravating factors.”

1 The petition also challenged the validity of the Alford plea. However, appellant did not
provide any factual support for this argument, and we therefore consider the argument
forfeited. See State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (considering arguments
forfeited when they are unsupported by facts in the record and contain no citation to
relevant legal authority).

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We agree. We acknowledge that postconviction petitions should be “liberally
construe[d]” and courts must “look to the substance thereof and waive any irregularities or
defects in form.” Minn. Stat. § 590.03 (2018); see also Wallace v. State, 820 N.W.2d 843,
849 (Minn. 2012) ( noting that court s must liberally construe postconviction petition s).
However, the postconviction statute should not be interprete d so liberally that it permits a
petitioner to
simply file a petition devoid of substance right before the time
deadline and wait for the postconviction court to provide a new
deadline to fill in the blanks. Such a process is contrary to the
statute, encourages delay, and curtails the ability of
postconviction courts to dispose of meritless claims.
Matakis v. State, 862 N.W.2d 33, 41 n.8 (Minn. 2015).
Here, appellant’s original petition was so “devoid of substance” that it failed to
satisfy the requ irements of the postconviction statute. Id. A petition for postconviction
relief must contain a statement of the facts, the grounds on which the petition is based, and
the relief sought. Minn. Stat. § 590.02, subd. 1(1) (2018). The petitioner bears the burden
of alleging facts entitl ing him to relief. Carridine v. State, 867 N.W.2d 488, 492 (Minn.
2015). “ Although a petition for postconviction relief is ‘liberally construe[d],’ when no
facts are alleged in the petition, the postco nviction court can only conclude that the facts
are undisputed.” Rossberg v. State, 874 N.W.2d 786, 791 (Minn. 2016) (citing Matakis,
862 N.W.2d at 37). Unsupported claims are forfeited , and “when a petition simply lists
legal claims without alleging sup porting facts, a postconviction court does not abuse its
discretion by denying the petition.” Id.

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Appellant failed to include factual support for the requested relief in his original
petition. Because the petition “ consisted of conclusory allegations wi thout factual
support,” it failed to satisfy the requirements of the statute. Id. With the district court’s
permission, appellant filed a supplemental petition for postconviction relief in July 2017,
nearly three months later. 2 But the supplemental petition did not correct the deficiencies
in the initial petition. Instead, it raised entirely new issues that, if permitted, would have
the effect of “encourag[ing] delay” and “curtail[ing] the ability of postconviction courts to
dispose of meritless claims.” Matakis, 862 N.W.2d at 41 n.8. The district court did not err
by rejecting it.
Appellant argues that his supplemental petition was within the scope of the initial
petition because a challenge to the validity of the sentence is related to the plea agreement
itself. Appellant relies on State v. Coles, which recognizes that an appellant’s request for
relief from a prison sentence implicates the underlying plea agreement. 862 N.W.2d 477,
481 (Minn. 2015). But appellant’s reliance on Coles is misplaced. Coles involved a motion
under Minnesota Rule of Criminal Procedure 27.03 to correct his sentence. Id. at 47 9.
Rule 27 motions, if properly filed, are not subject to the two-year procedural bar in Minn.
Stat. § 590.01, subd. 4 . Reynolds v. State , 888 N.W.2d 125, 1 33 (Minn. 2016). Here,

2 Appellant argues that his supplemental petition is proper under Minn. Stat. § 509.03,
which provides that a district court “may permit amendments” to a petition. Appellant
argues that he filed a supplemental petition before the district court reached a decision on
the merits, as permitted under the postconviction statute. However, we note that whil e
section 509.03 permits the district court to allow an amendment, it does not require the
court to do so. See Minn. Stat. § 645.44, subd. 15 (2018) (noting that “may” is permissive).
Here, the district court found that the supplemental petition was time-barred because it was
unrelated to the original petition. We discern no error in the district court’s decision.

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however, appellant never argued the issues involving the upward departure as a rule 27.03,
subdivision 9 motion to correct his sentence. As such, Coles does not bear on the distinct
issue raised here—whether, and how, a supplemental petition under Minn. Stat. § 590.01,
subd. 4, relates back to a flawed “placeholder” petition—and is not persuasive.
Because the initial petition did not satisfy the requirements of the postconviction
statute and the supplemental petition raised entirely new issues, we agree with the district
court that appellant’s supplemental petition was statutorily time-barred.
III. Sufficient Evidence in the Record Supports an Upward Departure
Having determined that appellant’s supplemental petition is not timely, we need not
reach the merits of his appeal. Nevertheless we consider the merits of the argument in the
interests of justice and judicial economy because the district court considered them . The
district court considered the merits of appellant’s arguments related to the sentencing
issues, despite its determination that the supplemental petition was time -barred. We
likewise address the merits of the petition and review the district court’s analysis.
Appellant argues that the district court abused its discretion by imposing an upward
durational departure. This case arises from the investigation of allegations that appellant
interfered with the privacy of students at a school where he worked a s a janitor. In 2014,
officers received a report that appellant watched a student through the bathroom stall while
the student was using the toilet. After the initial report, more students came forward
describing similar incidents. One student reported that appellant watched him through the
cracks in the bathroom stall and watched him while he was urinating. A second student
reported that appellant followed him and his friends into the bathroom and “just stared at

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the boys” while they were urinating, causing them to feel “uncomfortable.” Two additional
boys reported that appellant watched them while they used the urinals and came into the
bathroom “a lot” to watch the boys. A fifth student reported that appellant followed him
into the bathroom and used the urinal next to him on at least five occasions and looked at
his penis. A sixth student stated that appellant watched him through the cracks in the
bathroom stall, causing him to feel uncomfortable going into the bathroom by himself. A
seventh studen t reported that appellant followed him into the bathroom on several
occasions, watched him while he urinated, looked at his penis, and once followed the child
partway down the school hallway after he left the bathroom. Law enforcement officers
also investigated a report that appellant sexually assaulted B .J.S., a friend of appellant’s
son and a student at the school.
The district court sentenced appellant to 120 months in prison, which constitutes an
upward departure from the sentencing guidelines. A tr ial court may depart from the
guidelines “only when substantial and compelling circumstances are present.” Taylor v.
State, 670 N.W.2d 584, 587 (Minn. 2003). “Substantial and compelling circumstances are
present when the defendant’s conduct in the offens e of conviction was significantly more
or less serious than that typically involved in the commission of the crime in question.”
State v. Abrahamson , 758 N.W.2d 332, 337 -38 (Minn. App. 2008) (quotation omitted).
Where the district court states its reason s for departure on the record, we determine if the
reasons justify the departure; if they do, the departure will be affirmed. Id. at 338. We
review a district court’s decision to depart from the presumptive sentence for an abuse of
discretion. Taylor, 670 N.W.2d at 588.

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Appellant argues that an upward durational departure was unjustified because the
district court did not conduct a judicial sentencing trial or find aggravating circumstances
to have been proven beyond a reasonable doubt. Generally, “a ny facts supporting a
departure above the maximum guidelines sentence requires either a jury to find those facts
beyond a reasonable doubt or the defendant to admit to those facts.” State v. Bradley, 906
N.W.2d 856, 858 (Minn. App. 2017), review denied (Minn. Feb. 28, 2018); see also Blakely
v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) . However, a defendant
may waive his right to a jury trial concerning those factors and submit them to the judge
for a decision. Blakely, 542 U.S. at 310, 124 S. Ct. at 2541.
Appellant expressly waived his right to a jury trial on the Blakely sentencing factors.
During the plea petition hearing, defense counsel asked appellant if he understood that
there was “every reason to believe that the prosecutor is going to give notice of his intent
to seek aggravating factors.” Appellant stated that he understood. Appellant also agreed
that he understood that he “could be sentenced without regard or without limitation to the
sentencing guidelines.” Following defense counsel’s questions, the district court judge
turned to appellant and the following exchange occurred:
COURT: If you were found guilty at trial then the jury would
have to determine a second or further issue and that is whether
or not . . . aggravated factors existed for an upward departure
or a longer prison sentence than normal?
APPELLANT: I understand.
COURT: And you want to give up your right to have that
sentencing jury?
APPELLANT: Yeah, right.

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The record explicitly supports the determination that appellant waived his right to a
sentencing jury on aggravating factors and , as discussed below, admitted to facts
supporting an aggravated sentence.
a. Position of Authority
The district court did not abuse its discretion when it sentenced appellant to an
upward departure because sufficient evidence in the record establishes that appellant was
in a position of authority over his victim, B.J.S. Appellant entered a plea of guilty to felony
first-degree criminal sexual conduct for fondling B.J.S.’s penis, performing oral sex on
B.J.S., and forcing B .J.S. to put his penis in appellant’s anus by sitting on B.J.S. In the
order denying postconviction relief, the district court determined that appellant admitted to
the existence of facts supporting this aggravating factor. The court also noted that appellant
was in his mid-thirties at the time, and that “[t]his is clearly the commission of an act while
in a position of authority over the 10 year old neighbor boy. ” The record supports the
district court’s determination that appellant admitted facts supporting the existence of an
aggravating factor.
Appellant argues that this factor was already contemplated by the legislature when
it set the penalty for the criminal-sexual-conduct charge and cannot justify an aggravating-
factor finding now.3 We disagree. We acknowledge caselaw stating that “the fact that the

3 In State v. Jones , the supreme court prescribed a number of limitations on what facts
could be relied upon for an upward departure. 745 N.W.2d 845, 849 (Minn. 2008) (stating
that departures cannot be based on uncharged or dismissed offenses or on offenses of which
the defendant was acquitted). However, current law permits a district court to order an
aggravated sentence based on “any aggravating factor arising from the same course of
conduct.” Minn. Stat. § 244.10, subd. 5a(b) (2018); see also State v. Fleming, 883 N.W.2d

11
victim was young and the defendant was in a position of authority over [the victim] are not
grounds for departure because those facts were considered by the legislature in determining
the severity of the offense.” State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983). But here,
appellant was charged with first -degree criminal sexual conduct in violation of section
609.342, subd. 1(a), which criminalizes sexual contact when the complainant is under 13
years of age and the actor is more than 36 months older than the victim. Minn. Stat.
§ 609.342, subd. 1(a) (201 4). Appellant was not charged under subdivision 1(b), which
prohibits sexual contact when a complainant is between 13 and 16 years of age and the
actor is more than 48 months older than the complainant and in a position of authority over
the complainant. Id., subd. 1(b) (2016).
The record supports a determination that appellant was in a position of authority
over B.J.S. “Position of authority includes . . . a person who is charged with any duty or
responsibility for the health, welfare, or supervision of a child, either independently or
through another, no matter how brief, at the time of the act.” Minn. Stat. § 609.341, subd.
10 (2014). Under the statute, position of authority is “broadly defined.” State v. Willette,
421 N.W.2d 342, 345 (Minn. App. 1988), review denied (Minn. May 16, 1988). Appellant
was a janitor at the school B .J.S. attended. On one occasion, B.J.S. stayed overnight at
appellant’s home , a place within appellant’s exclusive control. B .J.S. was under
appellant’s care, and appellant was charged with supervising the child . Minnesota courts

790, 797 (Minn. 2016) (concluding that section 244.10, subd. 5a(b) “allows a court to base
an upward sentencing de parture on any aggravating factor, even if the aggravating factor
relates, or arises in connection with another offense committed du ring the same course of
conduct”).

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have found that a position of authority exists whe n an individual exercises a degree of
protection over a child . See, e.g., State v. Bird , 292 N.W.2d 3 (Minn. 1980) ( care of
relative). The evidence supports a determination that appellant was in a position of
authority over B.J.S.
b. Unusual Psychological Harm
We further determine that the district court did not abuse its discretion when it
concluded that an upward departure was warranted because the victim suffered great
emotional and psychological harm. “Psychological and emotional injury may justify [an]
upward departure.” State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied
(Minn. Apr. 13, 1992).
Sufficient evidence in the record establishes that appellant caused B .J.S. great
psychological harm. An upward durational departure based on psychological harm will be
affirmed where the victim experiences depression, worsening r elationships, trouble
sleeping, lost trust in others, and the need for professional psychological therapy. Id. These
consequences are present here. B.J.S. provided the district court with a victim impact
statement at the sentencing hearing. B.J.S. stated that he has been unable to trust people,
“men in particular,” and noted that “[b]ecause of what [appellant] has done to me it has
affected my relationship with my own father and several others that I should have been
able to look up to and trust.” B .J.S. has worked with social services, group homes, and
psychiatric hospitals to learn “how to deal with [his] emotions and feelings.” B.J.S.
explained that re-living the events of the past in the criminal proceeding “brought back so
much pain,” put his life “into a path of destruction,” and caused him to spend months with

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a psychiatrist. B.J.S. stated that as a victim, “the pain is never over. We [victims] have to
suffer every day. And for some like me it has only gotten worse.”
B.J.S.’s victim impact statement details his worsening relationships with family
members, the loss of trust he experienced with others, and his need for ongoing
professional psychological therapy. This evidence supports a finding that the victim
suffered perman ent psychological harm warranting an upward departure from the
presumptive sentence. See Allen, 482 N.W.2d at 233.
c. Alternative Basis for Departure
Lastly, we conclude that an alternat ive ground supports the court’s sentencing
decision. A reviewing court will uphold a sentence if the record contains other grounds to
justify the departure. Williams v. State , 361 N.W.2d 840, 844 (Minn. 1985). Here, the
predatory nature of the crime further justifies departure. Grooming behaviors, such as
planning, manipu lation, and orchestrating overnight stay -overs, are appropriate
aggravating factors justifying departure. See State v. Yaritz, 791 N.W.2d 138, 146 (Minn.
App. 2010) (recognizing that a high degree of planning is an aggravating factor) , review
denied (Minn. Feb. 23, 2011); State v. Sebasky, 547 N.W.2d 93, 96, 101 (Minn. App. 1996)
(noting that planning and manipulating are valid aggravating factor s in departure case),
review denied (Minn. June 19, 1996); State v. Bates , 507 N.W.2d 847, 854 (Minn. App.
1993) (noting that planning and manipulation are aggravating factors in child sex-abuse
cases), review denied (Minn. Dec. 27, 1993); State v. Kindem, 338 N.W.2d 9, 17-18 (Minn.
1983) (noting that planning is an appropriate aggravating factor justifying departure).
Sufficient evidence in the record supports a determination that appellant targeted and

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manipulated B .J.S. for the purpose of sexually penetrating him . This alternative basis
further justifies a departure from the sentencing guidelines.
In sum, we determine that multiple bases for an upward durational departure exist,
including that appellant was in a position of authority over his victim, his crime caused the
victim unusual psychological harm, and appellant’s crime show ed a pattern of planning
and man ipulation. Therefore, the district court’s imposition of an upward durational
departure at sentencing does not constitute an abuse of discretion, and we affirm.
Affirmed.