A18-1615

This opinion will be unpublished and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
A18-1449
A18-1615

Gene Rechtzigel, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent,

AND

State of Minnesota,
Respondent,

vs.

Gene Rechtzigel,
Appellant.

Filed August 12, 2019
Affirmed; motion denied
Cochran, Judge

Dakota County District Court
File No. 19AV-CR-15-10738

Gene A. Rechtzigel, Apple Valley, Minnesota (pro se appellant)

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

Christine J. Casellius, Apple Valley City Prosecutor, Ryan J. Bies, Assistant City Attorney,
Dougherty, Molenda, Solfest, Hills & Bauer P.A., Apple Valley, Minnesota (for
respondent)

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Considered and decided by Florey, Presiding Judge; Worke, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Gene Rechtzigel challenges two district court orders addressing probation
violations and requests for postconviction relief arising out of his convictions for violating
the Minnesota State Building Code (MSBC). Because the district court did not abuse its
discretion in dismissing Rechtzig el’s postconviction petitions, and Rechtzigel’s other
claims are moot or not properly before this court, we affirm.
FACTS
In June 2015, an Apple Valley building official issued Rechtzigel a citation related
to a fence Rechtzigel constructed on his property. The citatio n included a total of four
violations: two misdemeanor violations of the MSBC and two misd emeanor violations of
the Minnesota State Fire Code (the fire code). The MSBC violat ions included one count
of violating a stop work order and one count of failing to secu re a building permit. The
fire code violations related to a fire hydrant near the fence. Rechtzigel moved to dismiss
the charges. The City of Apple Valley (the city) agreed to dis miss the charges related to
the fire code. After a hearing, the district court denied Rechtzigel’s motion to dismiss the
remaining two counts, relating to the MSBC. Rechtzigel sought appellate review of the
pretrial order, and this court denied his request, noting that Rechtzigel could appeal from
final judgment on the case.

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The case was scheduled for jury trial on April 4, 2016. On tha t date, Rechtzigel
entered into a plea agreement an d pleaded guilty to two counts of violating the MSBC
pursuant to an Alford plea.1 In discussing the potential plea agreement, the prosecutor
informed Rechtzigel that he would be required to apply for a pe rmit and take any steps
necessary to ensure that the fence complied with the MSBC. The prosecutor noted that she
did not know what, if anything, Rechtzigel would need to do to comply with the MSBC,
but defense counsel represented that the fence was built to code. The district court accepted
Rechtzigel’s Alford plea and proceeded to sentencing. The district court sentenced
Rechtzigel to a stay of imposition on each count and to one year of probation. The district
court also included the following condition:
Defendant must apply to the [C]ity of Apple Valley for the
required [f]ence permit & pay applicable fees within 10 days
from today. Defendant shall include a land survey/drawing or
whatever is required by the City of Apple Valley within 60
days. Defendant must allow city inspection of the fence and
defendant shall comply with all applicable city codes regarding
the fence. Upon compliance w ith the applicable city codes
with regard to the fencing defendant is to be discharged from
probation.

Rechtzigel did not file a direct appeal of his convictions.

1 Under Minnesota law, a defendant may plead guilty pursuant to an Alford plea without
admitting guilt if the defendant “agrees that evidence the Stat e is likely to offer at trial is
sufficient to convict” and if the district court independently determines that there is a strong
factual basis for a finding of guilt and a strong probability t hat a jury would find the
defendant guilty. State v. Theis , 742 N.W.2d 643, 649 (Minn. 2007); see also North
Carolina v. Alford , 400 U.S. 25, 38, 91 S. Ct. 160, 168 (1970) (holding that in s ome
circumstances, a court may cons titutionally accept a defendant’ s guilty plea even though
the defendant maintained his innocence).

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In September 2016, the city requested that the stays of imposit ion be vacated
because Rechtzigel failed to pr ovide an engineer-certified plan for the fence, a required
submission with the application fo r a permit. The district cou rt set a probation-violation
hearing for October 2016. Rechtzigel did not appear for the pr obation-violation hearing,
and the district court issued a warrant for Rechtzigel’s arrest . Rechtzigel alleges that he
never received notice of the hearing.
In September 2017, Rechtzigel filed an “ex parte” motion to “dismiss” the charges
to which he pleaded guilty. 2 The district court denied Rechtzigel’s ex parte motion and
scheduled another probation-viola tion hearing. Rechtzigel then filed a petition for
postconviction relief in October 2017. Rechtzigel requested that the criminal charges and
fines be “dismissed” or, in the alternative, that the issue be set for jury trial. In December
2017, the district court denied Rechtzigel’s petition and set t he matter on for a contested
probation-violation hearing.
In January 2018, the district court found that Rechtzigel viola ted the terms of his
probation. The district court or dered Rechtzigel to cooperate with the requirements of
obtaining a permit for his fence and ordered the parties to ret urn for a review and
disposition hearing in three mont hs. Following that review hea ring, the district court
extended Rechtzigel’s probation to July 26, 2018, required Rech tzigel to appear for a

2 In his filings at both district court and the court of appeals , Rechtzigel appears to use
language about “dismissing” his c harges interchangeably to mean either that his
convictions should be reversed or that he should be discharged from probation.

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review hearing on June 5, 2018, and required Rechtzigel to subm it an engineer’s report
regarding the fence to the city.
In March 2018, Rechtzigel filed an engineer’s report with the d istrict court. The
report indicated that the fence was not adequate to resist wind l o a d s a n d s u g g e s t e d
additions were needed to repair t he fence. Rechtzigel disagree d with the conclusions of
his own engineer’s report. At the June 5, 2018 review hearing, the district court scheduled
another contested probation-violation hearing based on Rechtzig el’s continued failure to
bring his fence up to code. On June 7, 2018, Rechtzigel filed another motion to “dismiss”
the charges. On July 6, 2018, Rechtzigel filed a motion to “dismiss” the charges or in the
alternative to withdraw his guilty pleas. In August 2018, the district court issued an order
finding that Rechtzigel violated the conditions of his probation and scheduled a disposition
hearing. In that same order, the district court denied Rechtzigel’s motions to “dismiss” the
charges or withdraw his guilty pleas. This order is the first of two district court orders that
Rechtzigel is currently appealing.
I n S e p t e m b e r 2 0 1 8 , f o l l o w i n g t h e disposition hearing, the distr ict court ordered
Rechtzigel to serve 20 days in jail starting on November 15, 20 18. But the order stated
that the jail sentence would be vacated if Rechtzigel brought t he fence into compliance
with the MSBC and received approval from a city inspector by No vember 1, 2018. This
is the second order that Rechtzigel is appealing.
After Rechtzigel filed an appeal o f the September order, he bro ught the fence into
compliance with the MSBC by reducing its height so that the MSB C’s requirements no

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longer apply to the fence. As a result, the district court vacated Rechtzigel’s jail sentence
and discharged him from probation. This court consolidated Rechtzigel’s appeals.
D E C I S I O N
Rechtzigel is self-represented i n these consolidated appeals. Rechtzigel alleges a
number of claims and constitutional violations. Although only the August 2018 order and
the September 2018 order are at issue in this appeal, Rechtzige l’s jumbled brief blends
various issues from throughout the district court proceedings. It is difficult to follow all of
Rechtzigel’s arguments, and much of his brief is without citation to legal authorities. While
a self-represented appellant “is usually accorded some leeway in attempting to comply with
court rules, he is still not relieved of the burden of, at leas t, adequately communicating to
the court what it is he wants accomplished and by whom.” Carpenter v. Woodvale, Inc.,
400 N.W.2d 727, 729 (Minn. 1987); see also State v. Seifert , 423 N.W.2d 368, 372
(Minn. 1988) (noting that Minnesota courts require self-represented criminal defendants to
comply with standard rules of court procedure and that “[n]o ex tra benefits will be given
to [self-represented] litigants”). Because Rechtzigel is self- represented, we will consider
his claims to the extent that we can understand them.
I. T h e d i s t r i c t c o u r t d i d n o t a b u s e i t s d i s c r e t i o n i n d i s m i s s i n g Rechtzigel’s
postconviction petitions.

Rechtzigel argues that the distr ict court erred in denying his postconviction
petitions. He argues that the MSBC does not apply to his fence and that he should be
allowed to withdraw his guilty plea and have a jury trial. Rechtzigel also makes a number
of constitutional claims, including that the state violated his rights to due process under the

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Minnesota Constitution and his ri ghts to equal protection under the United States and
Minnesota Constitutions. Rechtzigel also alleges violations of article I, sections 1, 2, 4, 5,
6, 7, 8, 10, and 13 of the Minnesota Constitution. To the extent that Rechtzigel argues that
his convictions should be reversed or that he should be allowed to withdraw his guilty plea,
we address those arguments here. To the extent that Rechtzigel argues that he should be
compensated based on any allege d constitutional violations, we address those arguments
in section III.
Minnesota law allows criminal defendants to bring a variety of requests before a
district court in the form of a postconviction petition. Minn. Stat. § 590.01, subd. 1 (2016)
(allowing individuals convicted of crimes to bring claims that “the conviction obtained or
the sentence or other disposition made violated the person’s ri ghts under the Constitution
or laws of the United States or of the state”); see also Sanchez v. State, 816 N.W.2d 550,
554-56 (Minn. 2012) (addressing a postconviction petition alleging violations of the Fourth
and Sixth Amendments); Stewart v. State , 764 N.W.2d 32, 33-34 (Minn. 2009)
(considering a postconviction petition alleging a lack of subje ct-matter jurisdiction based
on an argument that the laws were invalid). “A motion to withd raw a guilty plea made
after sentencing must be raised in a petition for postconviction relief . . . .” Lussier v. State,
821 N.W.2d 581, 583 (Minn. 2012); see also Sanchez v. State, 868 N.W.2d 282, 286 (Minn.
App. 2015) (“A motion to withdraw a plea after sentencing must be raised in a
postconviction petition.”), aff’d, 890 N.W.2d 716 (Minn. 2017).
But “[t]he court may summarily deny a second or successive peti tion for similar
relief on behalf of the same petitioner.” Minn. Stat. § 590.04, subd. 3 (2016). “Review of

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a postconviction proceeding is limited to determining whether there is sufficient evidence
to sustain the postconviction court’s findings, and a postconvi ction court’s decision will
not be disturbed absent an abuse of discretion.” Dukes v. State , 718 N.W.2d 920, 921
(Minn. 2006) (quotations omitted). “When making this determination, we are not limited
to the reasoning of the postconviction court, and we can affirm the denial of postconviction
relief on grounds other than those on which the postconviction court relied.” Id. at 921-22.
Rechtzigel filed his first petition for postconviction relief i n October 2017. In that
petition, he argued that the case should be “dismissed” on a number of grounds, including
that he fulfilled the requirements of the plea agreement, that the MSBC did not apply to his
fence, and that the city violated numerous provisions of the Un ited States and Minnesota
Constitutions. The district court denied Rechtzigel’s petition, and Rechtzigel chose not to
appeal the district court’s decision. See Minn. R. Crim. P. 28.02, subd. 4(3)(c) (stating that
a defendant must appeal an order denying postconviction relief within 60 days after entry
of the order).
On June 7, 2018, roughly six mont hs after the district court de nied his petition for
postconviction relief, Rechtzigel filed a motion to “dismiss” h is charges under Minn. R.
Crim. P. 17.06. Rechtzigel filed another motion to “dismiss” h is charges under Minn. R.
Crim. P. 17.06 or withdraw his guilty pleas under Minn. R. Crim. P. 15.05 on July 6, 2018.
Although Rechtzigel did not title his filings as postconviction petitions, his arguments
amounted to requests for postconviction relief because he sought to collaterally attack the
validity of his convictions and withdraw his Alford pleas. The supreme court addressed a
similar situation in Johnson v. State, 801 N.W.2d 173 (Minn. 2011). In that case, Johnson

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filed an initial postconviction petition, which was denied, arguing that his plea agreement
was invalid for a number of reasons. Johnson, 801 N.W.2d at 175. After the time limit to
file postconviction petitions lap sed, Johnson filed a motion to correct his sentence under
Minn. R. Crim. P. 27.03, subd. 9, arguing that his guilty plea was invalid. Id. The supreme
court concluded that, despite the motion’s title, it was in effect a petition for postconviction
relief and that the “petition [w as] untimely and should not be considered on the merits.”
Id. at 177. Similarly, Rechtzigel’s June 2018 and July 2018 motions amounted to petitions
for postconviction relief.
Thus, Rechtzigel’s motions to dismiss and withdraw his guilty plea were successive
postconviction petitions. Rechtzigel based those petitions on the same grounds as his initial
petition for postconvction relief: that he fulfilled the requir ements of the plea agreement,
that the MSBC did not apply to his fence, and that the city was violating numerous
provisions of the United States and Minnesota Constitutions. The district court summarily
denied Rechtzigel’s petitions, noting that the court had “previ ously denied [Rechtzigel’s]
motions to dismiss in an Order dated December 8, 2017.” Because Rechtzigel’s June 2018
and July 2018 postconviction petitions constituted successive petitions requesting similar
relief, the district court was entitled to summarily deny the p etitions. See Minn.
Stat. § 590.04, subd. 3. Furthermore, we note that Rechtzigel’ s successive petitions were
procedurally barred under the Knaffla rule. See Jackson v. State , 919 N.W.2d 470, 473
(Minn. 2018) (“Under the Knaffla rule, any claim raised on direct appeal, or in a previous
postconviction petition, will not be considered upon a subseque nt petition for
postconviction relief.” (quotation omitted)). On this record, w e d i s c e r n n o a b u s e o f

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discretion in the postconviction court’s summary denial of Rech tzigel’s successive
postconviction petition.
II. Rechtzigel’s request to reverse the sentencing order is moot.
Rechtzigel also challenges the district court’s conclusion that he violated his
probation and the district court’s subsequent sentence for the probation violation,
requesting that the district court’s “sentencing orders be reversed.” Rechtzigel’s challenges
to the probation violation and s ubsequent sentence are moot. “ Mootness has been
described as the doctrine of standing set in a time frame: The requisite personal interest
that must exist at the commencement of the litigation (standing) must continue throughout
its existence (mootness).” Dean v. City of Winona , 868 N.W.2d 1, 4-5 (Minn. 2015)
(quotation omitted). The doctrine requires this court to decid e only actual controversies,
and to refrain from issuing advisory opinions. In re Schmidt , 443 N.W.2d 824, 826
(Minn. 1989). If there is “no injury that a court can redress,” the case becomes moot except
in limited circumstances. State ex rel. Sviggum v. Hanson , 732 N.W.2d 312, 321 (Minn.
App. 2007). “An appeal is not moot, however, where the issue r aised is capable of
repetition yet evades review or where collateral consequences attach to the judgment.” In
re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999).
W e m a y c o n s i d e r p o s t - a p p e a l f a c t ual developments in determining w h e t h e r a n
appeal is moot. See Dean, 868 N.W.2d at 5-6 (determining that appeal was moot based on
factual developments occurring after grant of appellate review) . Lack of mootness is “a
constitutional prerequisite to th e exercise of jurisdiction,” a nd appellate courts “must
consider the mootness question even if ignored by the parties.” Schmidt, 443 N.W.2d at

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826. “We review the issue of mootness de novo.” Wayzata Nissan, LLC v. Nissan N. Am.,
Inc., 875 N.W.2d 279, 283 (Minn. 2016).
“The expiration of a sentence operates as a discharge that bars further sanctions for
a criminal conviction.” State v. Purdy, 589 N.W.2d 496, 498 (Minn. App. 1999). Once
the sentence has been served, any issues involving the sentence are moot because the court
of appeals cannot grant effective relief. See State v. Eller , 780 N.W.2d 375, 384 (Minn.
App. 2010) (noting that an appeal from a sentence was moot where the sentence had already
been served).
In this case, the district court ordered Rechtzigel to serve 20 days in jail unless he
brought his fence into compliance with the MSBC. After Rechtzigel reduced the height of
his fence to bring it into compliance with the MSBC, the district court vacated the sentence
and discharged Rechtzigel from probation. Because the district court vacated the sentence
and discharged Rechtzigel from probation, we cannot grant effective relief. Rechtzigel has
also not demonstrated that the issues raised in this case are c apable of repetition because
the issues are confined to the specific circumstances of his ca se. We conclude that under
these facts, Rechtzigel’s challenges to the probation violation and subsequent sentence are
moot.3

3 To the extent that Rechtzigel’s arguments in his petitions for postconviction relief that his
charges should be “dismissed” referred to discharging him from probation, we note that
those claims are also moot. R echtzigel has been discharged fro m probation and thus, he
has already received his requested relief in regard to those claims.

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III. Rechtzigel’s requests for damages and declaratory judgment are not properly
before the court.

Rechtzigel also requests just compensation for his fence, a rul ing that the MSBC
does not apply to his fence, and a ruling that he should be all owed to rebuild his fence
without a permit. Rechtzigel’s request for compensation appear s to be based on claims
that his fence was unconstitutiona lly taken without just compen sation and that he was
unconstitutionally forced to cut the fence in order to avoid cruel and unusual punishment.
Parties injured by constitutional abuses may be entitled to rec overy of monetary damages
under 42 U.S.C. § 1983 (2012). Maras v. City of Brainerd , 502 N.W.2d 69, 75 (Minn.
App. 1993), review denied (Minn. Aug. 16, 1993). But such claims should be brought as
a civil action, not as a part of a criminal appeal. See State v. Fox , 868 N.W.2d 206, 226
(Minn. 2015) (declining to address claims related to an appella nt’s conditions of
confinement because such claims a re more appropriately raised i n a petition for habeas
corpus relief or in a civil action under 42 U.S.C. § 1983). Because Rechtzigel’s claims for
monetary damages should be brought as part of a civil suit, we decline to address them
here.
Rechtzigel also requests that this court provide an opinion stating that he should be
allowed to rebuild his fence without a permit. Rechtzigel’s re quest amounts to a request
for declaratory relief. See Minn. Stat. § 555.02 (2018) (allowing any person whose rights
are affected by a statute or municipal ordinance to have any qu estion of construction or
validity arising under the statute or ordinance to seek a decla ration of rights under that
statute or ordinance); see also McCaughtry v. City of Red Wing , 808 N.W.2d 331, 337

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(Minn. 2011) (noting that a declaratory-judgment action is prop er to test the validity of a
municipal ordinance). A request for declaratory relief may be brought in district court.
But, because Rechtzigel did not bring a declaratory-judgment ac tion in district court
addressing his rights regarding a possible future fence, there is no district court order
regarding Rechtzigel’s rights in regards to a possible future f e n c e . “ [ A ] n u n d e c i d e d
question is not usually amenable to appellate review.” Hoyt Inv. Co. v. Bloomington
Commerce & Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn. 1988). In the absence of a
district court order addressing Rechtzigel’s rights regarding a theoretical future fence, we
decline to address that issue.
IV. We deny as unnecessary the state’s motion to strike portions of Rechtzigel’s
reply brief.

Finally, the state moved to str ike portions of Rechtzigel’s rep ly brief, arguing that
it raises new issues that were not raised in Rechtzigel’s princ ipal brief. Issues that are
r a i s e d f o r t h e f i r s t t i m e i n a n a p p e l l a n t ’ s r e p l y b r i e f a r e “ n ot proper subject matter for
appellant’s reply brief and, therefore, [are] waived and strick en.” See State v. Yang , 774
N.W.2d 539, 558 (Minn. 2009) (striking an argument in appellant ’s reply brief because it
raised a new issue).
The state argues that Rechtzigel’s r e p l y b r i e f i n t r o d u c e s n e w issues beyond his
principal brief because the reply brief’s statement of the issues differs from the statement
of the issues in his principal brief. Like Rechtzigel’s princi pal brief, his reply brief is
difficult to follow at times, but it appears to center on the same issues raised in his principal
brief. To the extent that we can understand Rechtzigel’s reply brief, and it addresses the

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issues raised in his principal brief and discussed above, we have considered his reply brief.
We have not considered any new ar guments raised in the reply br ief. We therefore deny
the motion to strike the reply as unnecessary.
Affirmed; motion denied.