Michael Frederick Schmidt, 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This opinion will be unpublished and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
A18-0829

Michael Frederick Schmidt, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 1, 2019
Affirmed
Johnson, Judge

Dakota County District Court
File No. 19HA-CR-10-1575

Rory Patrick Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)

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

James C. Backstrom, Dakota Count y Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 2010, a Dakota County jury found Michael Frederick Schmidt guilty of first -
degree criminal sexual conduct. The conviction was affirmed on direct appeal. In 2018,
Schmidt filed a petition for post-conviction relief, asserting a claim of newly discovered

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evidence. The post-conviction court denied the petition for two reasons: Schmidt could
not satisfy the requirements of a newly-discovered-evidence claim, and his petition was
untimely because it was filed more than two years after his conviction became final. We
conclude that Schmidt’s petition is untimely and that he cannot satisfy an exception to the
two-year statute of limitations. Therefore, we affirm.
FACTS
In May 2010, the state charged Schmidt with first -degree criminal sexual conduct,
in violation of Minn. Stat. § 609.342, subd. 1(a) (2008). The complaint alleged as follows:
On Saturday, April 24, 2010, a nine-month-old girl was
brought to an emergency room in Hastings by her maternal
aunt. The girl had injuries to her vaginal and anal areas. Due
to the severity of the injuries, the girl was tra nsported by
ambulance to St. Paul Children ’s Hospital, where her injuries
were surgically repaired. The aunt ’s husband, fully identified
as Michael Frederick Schmidt, . . . told medical personnel that
he and his wife had been babysitting their niece at th eir home
in Hastings, which is in Dakota County, Minnesota. Schmidt
stated that he had been changing the girl’s diaper on their living
room couch. She had defecated in her diaper. He stated that
he had turned away briefly, and the girl appeared to be ro lling
off the couch, so he grabbed at her to keep her from falling.
The girl’s vaginal and anal areas were slippery, he said, from
diaper wipes, and he thought he had a hangnail on one of his
fingers that perhaps cut her. He told his wife what had
happened, and due to the severity of the bleeding, which did
not lessen, the aunt drove the girl to the emergency room. The
parents of the girl reported that the girl had been with her aunt
and uncle since about 3 p.m. that day. . . . The surgeon
reported that the injuries to the girl included superficial tears in
her anal sphincter, and a tear which gaped widely at the girl ’s
perineum, and extended through the girl ’s hymen, continuing
the length of her vagina to her cervix. Doctors have advised
that the natur e and extent of the injury is highly inconsistent
with Schmidt’s explanation of how it was caused.

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The case was tried to a jury on six days in August and September of 2010. The state
called 12 witnesses, including medical providers and parents and other relatives of the
victim.
As part of its case-in-chief, the state introduced other-acts evidence pursuant to rule
404(b) of the rules of evidence and State v. Spreigl, 139 N.W.2d 167 (Minn. 1965), for the
limited purpose of proving the absence of a mistake or accident. Specifically , the state
introduced evidence of a 1994 incident in which an infant boy sustained injuries to his
genital area while in Schmidt ’s care. The infant in that case was the son of T.S., whom
Schmidt later married . At the time of th e 1994 incident, Schmidt maintained that the
injuries were accidental, but medical personnel reported that the boy’s injuries were caused
by direct blunt-force trauma.
The state’s Spreigl evidence included two photographs depicting the boy’s injuries
and testimony from three witnesses. A physician testified that the injuries depicted in the
photographs were consistent with extensive blunt -force trauma and inconsistent with the
infant being dropped. T.S. testified that Schmidt was drunk at the time of the 1994 incident
and told her then that he did not know how the injury occurred but that it may have resulted
from his bouncing the infant on his knee. T.S. also testified that she told doctors that
Schmidt was drunk and fell on top of the boy as he was getting him out of his crib. Kristin
Johnson, a social worker who investigated the 1994 incident, testified that Schmidt told her
that he had come home after a night of drinking, played with the boy for a few minutes,
and fell as he put the boy back in his crib, causing the boy to hit the side of the crib.

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Schmidt testified that he caused his niece’s injuries but that he did so accidentally.
Schmidt did not testify about the 1994 incident involving T.S.’s son. Schmidt did not call
any other witnesses.
The jury found Schmidt guilty of committing first-degree criminal sexual conduct
against his nine-month-old niece. The district court imposed a sentence of 324 months of
imprisonment, which is an upward departure from the presumptive guidelines sentence.
Schmidt pursued a direct appeal. He argued, in part, that the district court erred by
admitting the state’s Spreigl evidence. This court affirmed the conviction and the sentence.
We declined to determine whether the Spreigl evidence was erroneously admitted. Rather,
we reasoned that “even if the district court erred by admitting the Spreigl evidence, any
error was harmless in light of the strong evidence of guilt.” See State v. Schmidt, No. A11-
453, 2012 WL 1149327, at *1 (Minn. App. Apr. 9, 2012) (Schmidt I), review denied (Minn.
June 27, 2012).
In July 2013, Schmidt filed a petition for post-conviction relief. He asserted a claim
of ineffective assistance of counsel, alleging that his trial attorney did not consult with or
retain an expert and did not otherwise attempt to refute the testimony of the state’s medical
providers who stated that his niece’s injuries were not the result of an accident. The post-
conviction court denied the petition on the ground that the decision to not retain an expert
was a matter of trial strategy and that, even if Schmidt’s trial attorney was deficient in her
representation, Schmidt was not prejudiced in light of his failure to prove that there was a
reasonable probability that the outcome of the trial would have been different if his attorney
had consulted with an expert. Schmidt appealed, and this court affirmed. See Schmidt v.

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State, No. A13-2253, 2014 WL 3801011, at *1 (Minn. App. Aug. 4, 201 4) (Schmidt II),
review denied (Minn. Oct. 14, 2014).
In February 2018, Schmidt commenced this case by filing a second petition for post-
conviction relief. He asserts a claim of newly discovered evidence. Specifically, he alleges
that, in 1994, he did not engage in the conduct that was described by the state’s Spreigl
evidence. In support of his petition, Schmidt submitted an affidavit executed by a private
investigator, who conducted interviews in early 2017 of T.S.; her mother, S.B.; and
Schmidt’s adult daughter , A.S. The investigator’s affidavit and accompany ing exhibits
state as follows: T.S. believes that she, not Schmidt, injured her son in 1994, but she is not
sure. T.S. said that she was examined after the incident by a hypnotist, who told her that
she had caused the injuries. T.S. believes that Schmidt took responsibility for the incident
because she was in nursing school at the time and would have been expelled if she had
injured her son. S.B. stated that T.S. told her within a year of the 1994 incident that
Schmidt took the blame for the incident even though he was not responsible . S.B. also
stated that other members of the extended family believe that T.S. was responsible for the
boy’s injuries. S.B. stated that she tape -recorded T.S. admi tting to injuring her son and
gave the recording to the Hastings Police Department, although S.B. did not state when she
did this. A.S. told the investigator that she overhead T.S. telling a friend in 2010 that
Schmidt did not hurt her son but that he took the blame because she was in nursing school.
A.S. also heard T.S. say that she was intoxicated and injured her son while putting him in
his crib.

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Schmidt also submitted a second affidavit exec uted by the same investigator, who
conducted interviews in 2017 of nine of the 14 jurors in Schmidt’s 2010 trial. The
investigator asked each juror whether the “admission of the prior offense affected their
decision to convict” Schmidt . Three jurors (one of whom was an alternate juror who did
not deliberate) responded that the Spreigl evidence affected their decisions to find Schmidt
guilty. Four jurors stated that the Spreigl evidence did not affect the ir decisions. Two
jurors stated that they could not remember.
In March 2018, the post-conviction court denied Schmidt ’s petition without an
evidentiary hearing. The post-conviction court reasoned that Schmidt had not presented
newly discovered evidence that would entitle him to relief because the evide nce he
presented merely created doubts and would not have produced an acquittal or a more
favorable result at trial. The post-conviction court also reasoned that Schmidt ’s petition
was untimely because it was filed after the two -year statute of limitation s had lapsed .
Schmidt appeals.
D E C I S I O N
Schmidt argues that the district court erred by denying his petition for post-
conviction relief. He challenges both bases of the post-conviction court’s decision. In
response, the state makes three arguments: Schmidt’s petition is untimely, the petition is
procedurally barred by his previous post-conviction petition, and Schmidt cannot establish
the requirements of the newly-discovered-evidence test.
We begin by considering whether Schmidt’s petition is untimely and, if so, whether
an exception to the statute of limitations applies . A person seeking post-conviction relief

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must file a post-conviction petition within a two -year limitations period. Minn. Stat.
§ 590.01, subd. 4(a) (2016). The two-year limitations period begins upon the later of “(1)
the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an
appellate court’s disposition of petitioner ’s direct appeal. ” Id., subd. 4(a)(1) -(2). If the
two-year limitatio ns period has expired, the post-conviction court nonetheless may
consider the petition if any one of five exceptions applies. Id., subd. 4(b). But a petition
relying on an exception to the two -year statute of limitations is subject to another
limitations period, which provides that the petition “must be filed within two years of the
date the claim [for the exception] arises.” Id., subd. 4(c); see also Sanchez v. State , 816
N.W.2d 550, 556 -58 (Minn. 2012). Accordingly, “A postconviction petitioner is not
entitled to relief or an evidentiary hearing on an untimely petition unless he can
demonstrate that ‘he satisfies one of the [statutory] exceptions . . . and that application of
the exception is not time -barred.’” Roberts v. State , 856 N.W.2d 287, 290 (Minn. App.
2014) (quoting Riley v. State, 819 N.W.2d 162, 168 (Minn. 2012)), review denied (Minn.
Jan. 28, 2015). “If the petitioner does not demonstrate that an exception applies and that
application of the exception is t imely, the postconviction court may summarily deny the
petition as untimely.” Id.; see also Andersen v. State, 913 N.W.2d 417, 423 (Minn. 2018).
This court applies an abuse -of-discretion standard of review to a post-conviction court’s
denial of a post-conviction petition. Roberts, 856 N.W.2d at 290.
In this case, the post-conviction court noted that Schmidt’s second petition was filed
more than two years after his conviction became final . That is not disputed on appeal.
Schmidt’s conviction became final in September 2012, 90 days after the supreme court

8
denied his petition for further review of this court ’s decision to affirm his conviction and
sentence. See Moua v. State , 778 N.W.2d 286, 288 (Minn. 2010) ; see also 28 U.S.C.
§ 2101(c); Sup. Ct. R. 13(1). He did not file his second petition until February 2018, more
than five years after his conviction became final. Thus, the second petition is untimely.
Accordingly, Schmidt may obtain review of his post-conviction claim only if he can
establish one of the exceptions to the two -year statute of limitations.1 See Andersen, 913
N.W.2d at 424.
Schmidt contends that only one exception to the two -year statute of limitations
applies—the newly -discovered-evidence exception . See Minn. Stat. § 590.01,
subd. 4(b)(2). Under that exception, a n untimely post-conviction petition may be
considered if five requirements are satisfied:
(1) “the petitioner alleges the existence of newly discovered
evidence”; (2) the evidence “could not have been ascertained
by the exercise of due diligence by the petitioner or petitioner’s
attorney within the two -year time period for filing a
postconviction petition”; (3) “the evidence is not cumulative to
evidence presented at trial ”; (4) the evidence “is not for
impeachment purposes”; and (5) the evidence “establishes by
a clear and convincing standard that the petitioner is innocent
of the offense or offenses for which the petitioner was
convicted.”

Roberts, 856 N.W.2d at 290 (quoting Minn. Stat. § 590.01, subd. 4(b)(2)); see also Riley,
819 N.W.2d at 168 .2 The state contends that Schmidt’s evidence concerning the 1994

1We need not consider whether Schmidt timely asserted his claim for an exception
to the statute of limitations because the state does not argue that he did not do so.
2The post -conviction court did not expressly consider the statutory newly -
discovered-evidence exception to the statute of limitations. The post-conviction court did
analyze Schmidt’s common -law newly -discovered-evidence claim. The common -law

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incident is not newly discovered because it was known by him before the 2010 incident
and because the evidence does not establish by a clear and convincing standard that
Schmidt is innocent of the 2010 offense.
The second requirement of the newly-discovered-evidence exception to the statute
of limitations asks whether the evidence that a petitioner has put forward as newly
discovered evidence “could . . . have been ascertained by the exercise of due diligence by
the petitioner or petitioner ’s attorney within the two -year time period for filing a
postconviction petition.” Minn. Stat. § 590.01, subd. 4(b)(2). The record indicates that the
evidence that Schmidt’s investigator elicited from T.S., S.B., and A.S. was known by those
persons at the time of Schmidt’s trial and sentencing in 2010. More importantly, Schmidt
and his trial attorney knew or should have known about the evidence before Schmidt was
sentenced. S.B. wrote a letter to the district court in November 2010, after the jury’s verdict
and before the sentencing hearing, stating that she and other family members were aware
that T.S., not Schmidt, had committed the acts that were the subject of the state’s Spreigl
evidence. In addition, Schmidt himself told the author of the pre-sentence investigation
report in December 2010 that S.B. had obtained an audio-recording of T.S. admitting that

definition of newly discovered evidence for purposes of a claim fo r post-conviction relief
is similar to, but less stringent than, the statutory definition of newly discovered evidence
for purposes of the exception to the statute of limitations. Andersen, 913 N.W.2d at 425.
To establish a claim of newly discovered evid ence under the common -law standard, a
petitioner must prove “(1) that the evidence was not known to the defendant or his/her
counsel at the time of the trial; (2) that the evidence could not have been discovered through
due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful;
and (4) that the evidence would probably produce an acquittal or a more favorable result.”
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). The Rainer criteria apply only to
timely-filed post-conviction claims. Andersen, 913 N.W.2d at 425.

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she caused her infant son ’s injuries in 1994. These parts of the record show that the
evidence implicating T.S. and exonerating Schmidt in the 1994 incident “could . . . have
been ascertained by the exercise of due diligence by the petitioner or petitioner ’s attorney
within the two-year time period for filing a pos tconviction petition.” See id. The record
makes clear that what Schmidt describes as “newly discovered evidence ” simply is not
newly discovered. Accordingly, Schmidt cannot satisfy the second requirement of the
newly-discovered-evidence exception to the statute of limitations.
The fifth requirement of the newly-discovered-evidence exception to the statute of
limitations asks whether the evidence that a petitioner has put forward as newly discovered
evidence “establishes by a clear and convincing standard that the petitioner is innocent of
the offense or offenses for which the petitioner was convicted. ” Id. The nature of the
evidence Schmidt presented to the post-conviction court precludes him from satisfying this
requirement. His evidence is not determinative or conclusive with respect to whether he
engaged in the acts alleged in the complaint, i.e., whether he engaged in sexual penetration
or sexual contact toward his nine-month-old niece in 2010. See Minn. Stat. § 609.342,
subd. 1(a). H is purportedly new evidence is concerned only with whether he caused
injuries to an infant boy’s genitals in 1994. That factual issue was relevant at trial because
the state sough t to prove that Schmidt penetrated or had sexual contact with his nine -
month-old niece’s genitals in 2010 for reasons other than a mistake or an accident . See
Minn. R. Evid. 404(b). Even if Schmidt could establish that he was not the person who
injured the infant boy in 1994, that fact would not exonerate him, by clear and convincing
evidence, of the crime that he was alleged to have committed in 2010. Such a determination

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would be possible only with new evidence that related directly to Schmidt’s conduct toward
his nine-month-old niece in 2010. This is true regardless of the weight of the evidence
arising from the investigator ’s brief questioning of some of the jurors in Schmidt’s trial.3
Accordingly, Schmidt cannot satisfy the f ifth requirement of the newly -discovered-
evidence exception to the statute of limitations.
Throughout his appellate brief, Schmidt contends that the post-conviction court
erred by denying his petition without conducting an evidentiary hearing. A post-conviction
court must hold an evidentiary hearing “[u]nless the petition and the files and records of
the proceeding conclusively show that the petitioner is entitled to no relief. ” Minn. Stat.
§ 590.04, subd. 1 (2016). “In determining whether an evidentiary hearing is required , a
postconviction court considers the facts alleged in the petition as true and construes them
in the light most favorable to the petitioner. ” Andersen, 913 N.W.2d at 422 -23. In this
case, Schmidt would not be able to establish the five requirements of the newly-discovered-
evidence exception to the statute of limitations e ven if the post-conviction court had held
an evidentiary hearing . Schmidt has not identified any evidence that is capable of
satisfying the second and f ifth requirements of the newly-discovered-evidence exception
to the statute of limitations. See Riley, 819 N.W.2d at 170.

3The state does not argue that Schmidt is precluded from proving that he was
prejudiced by the admission of the state’s Spreigl evidence on the ground that this court
previously determined that any error in the admission of the state’s Spreigl evidence “was
harmless in light of the strong evidence of guilt .” Schmidt I, 2012 WL 1149327 , at *1 .
Thus, we need not consider the issue.

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Thus, the post-conviction court did not err by concluding that Schmidt’s post-
conviction petition is barred by the statute of limitations. That part of the post-conviction
court’s decision is a sufficient basis for denying Schmidt’s petition. Because Schmidt’s
petition is untimely , we nee d not consider whether Schmidt’s petition is procedurally
barred by the Knaffla doctrine or whether the post-conviction court erred by rejecting
Schmidt’s newly-discovered-evidence claim.
In sum, the post-conviction court did not err by denying Schmidt’s petition for post-
conviction relief.
Affirmed.