In the Matter of the Civil Commitment of: Matthew Alan Radke.

This opinion will be unpublished and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
A18-1705

In the Matter of the Civil Commitment of:
Matthew Alan Radke.

Filed July 8, 2019
Affirmed
Halbrooks, Judge

Freeborn County District Court
File No. 24-PR-12-625

Matthew Radke, Moose Lake, Minnesota (pro se appellant)

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

David J. Walker, Freeborn County Attorney, Erin M. O’Brien, Assistant County Attorney,
Albert Lea, Minnesota (for respondent Freeborn County Human Services)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and
Peterson, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the denial of his motion for a new trial, arguing that he is
entitled to a new trial based on ineffective assistance of counsel. We affirm.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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FACTS
In April 2012 , respondent Freeborn County petitioned for indeterminate
commitment of appellant Matthew Alan Radke as a sexually dangerous person (SDP). The
district court appoin ted counsel to represent Radke in the commitment proce edings and
held a trial regarding the commitment petition on three days in September and October of
2012. In March 2013 , the district court determined that Radke met the criteria for
commitment as an SDP and ordered that he be indeterminately committed. Radke appealed
the commitment order, and this court affirmed. In re Civil Commitment of Radke, No. A13-
0795 (Minn. App. Sept. 15, 2014).
On February 2, 2018, Radke’s court-appointed trial attorney was charged with first-
degree controlled -substance sale and first -degree controlled-substance possession after
police discovered drugs in his home while executing a search warrant. On May 16, 2018,
Radke moved for a new trial under Minn. R. Civ. P. 59 and 60.02 on the ground that his
counsel was ineffective during the civil -commitment trial. He argued that the attorney’s
criminal charges were newly discovered evi dence that likely had an effect on his civil -
commitment proceedings.
The district court held a motion hearing. Radke requested a court -appointed
attorney, but the district court did not appoint one. Following the hearing, the district court
denied Radke’s motion. The district court determined that the motion was both untimely
and failed on the merits. As to the merits, the district court determined that Radke did not
submit any evidence to support his assertion that his trial attorney was under the influence
of drugs at the time of the commitment hearing and that Radke had not established that his

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counsel’s claim fell below an objective standard of reasonableness or that the alleged errors
affected the outcome of the proceeding. This appeal follows.
D E C I S I O N
I.
Radke argues that the district court erred in not appointing counsel to represent him
in the proceedings on his new -trial motion. At the motion hearing, Radke requested that
he be appointed counsel. The district court took the matter under advisement, but did not
appoint him counsel. Radke now argues that “courts have recognized the constitutional
necessity of providing court -appointed counsel to committed pe rsons” under the Due
Process Clause “even during various ancillary points in the proceedings” and that “[j]ust
as the assistance of counsel is beneficial at trial, so too is the assistance of counsel
beneficial in a motion claiming ineffective assistance of counsel.”
This court recently addressed this issue in In re Civil Commitment of Johnson, ___
N.W.2d ___, ___, 2019 WL 2495668, at *3 (Minn. App. June 17, 2019 ). Johnson was
represented by the same attorney as Radke during his initial civil-commitment proceedings,
and, like Radke, Johnson moved for a new trial under Minn. R. Civ. P. 59 and 60.02 after
learning of the attorney’s criminal charges. Johnson, 2019 WL 2495668, at *2 . At the
hearing on his new-trial motion, Johnson asked the district court to appoint an attorney to
represent him in the proceedings. Id. The district court denied Johnson’s request for court-
appointed counsel and ultimately denied his new-trial motion because it was untimely and
failed on the merits. Id. Johnson appealed, challenging both the denial of his request for
court-appointed counsel and the denial of his new-trial motion. Id.

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We determined that Johnson did not have a constitutional right to court-appointed
counsel. Id. at *3. We noted that this court has previously held that the due-process clause
does not confer a constitutional right to court -appointed counsel on a person who is the
subject of a civil-commitment proceeding.1 Id. (citing Beaulieu v. Minn. Dep’t of Human
Servs., 798 N.W.2d 542, 543 (Minn. App. 2011), aff’d on other grounds, 825 N.W.2d 716
(Minn. 2013)). Based on the reasoning in Beaulieu, we declined to recognize a
constitutional right to counsel in a collateral proceeding attacking the validity of the civil -
commitment order. Id Accordingly, Radke was not entitled to counsel at the motion
hearing, and the district court did not err by not appointing counsel to represent him.
II.
Radke argues that the district court erred by denying his motion for a new trial as
untimely. Radke requested rel ief under rules 59 and 60.02, and the district court
determined that the motion was untimely under both. We shall address each in turn.
Rule 59.03 provides:
A notice of motion for a new trial shall be served within
30 days after a general verdict or service of notice by a party
of the filing of the decision or order; and the motion shall be
heard within 60 days after such general verdict or notice of
filing, unless the time for hearing be extended by the court
within the 60-day period for good cause shown.

1 The subject of a civil -commitment proceeding does have a statutory right to counsel at
any proceeding under the Minnesota Commitment and Treatment Act, Minn. Stat.
§§ 253B.01-.24 (2018). Minn. Stat. § 253B.07, subd. 2c. This right does not extend to a
rule 60.02 motion because it is not a proceeding under the treatment act. In re Civil
Commitment of Moen, 837 N.W.2d 40, 51 (Minn. App. 2013), review denied (Minn. Oct.
15, 2013).

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The district court’s entry of judgment constitutes the “general verdict” in rule 59.03. Kluge
v. Benefit Ass’n of Ry. Emps., 149 N.W.2d 681, 688 (Minn. 1967). We review the district
court’s decision to dismiss a n ew-trial motion under rule 59 for an abuse of discretion.
Rubey v. Vannett, 714 N.W.2d 417, 422-24 (Minn. 2006).
The district court filed its order of commitment on March 4, 2013, and judgment
was entered that day. Radke’s motion for a new trial was not brought until May 16, 2018,
more than five years after entry of judgment. The motion is therefore untimely under rule
59.03. Radke argues that the 30-day time limit should not apply because “there is no wa y
he could have filed the current motion within 30 days, because he did not know at the time
of his civil commitment [that] his attorney . . . was using/selling drugs.” But t he 30-day
time limit under rule 59.03 is absolute and may not be extended by the district court. Minn.
R. Civ. P. 6.02.; see also Johnson, 2019 WL 2495668, at *3. Accordingly, the district court
did not abuse its discretion in determining that Radke’s motion was untimely under rule
59.03.
Rule 60.02 states that a party may seek relief from a “final judgment . . . , order, or
proceeding” for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable
neglect;
(b) Newly discovered evidence . . . ;
(c) Fraud . . . , misrepresentation, or other misconduct
of an adverse party;
(d) The judgment is void;
(e) . . . i t is no longer equitable that the judgment
should have prospective application; or
(f) Any other reason justifying relief from the
operation of the judgment.

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Minn. R. Civ. P. 60.02. Motions brought under rule 60.02(a)-(c) must be brought within
one year of the judgment, order, or proceeding being challenged. Id. Motions brought
under rule 60.02(d) -(f) must be brought within a “reasonable time.” Id. We review a
district court’s denial of a request for re lief under rule 60.02 for an abuse of discretion.
Moen, 837 N.W.2d at 44-45.
Radke brought his rule 60.02 motion based on paragraphs (b) and (f). Radke argues
that he is entitled to relief under rule 60.02(b) because his court -appointed attorney’s
criminal charges are newly discovered evidence that support his claim of ineffective
assistance of counsel. He also argues that he is entitled to relief under rule 60.02(f) because
motions brought under that paragraph must be brought within a “reasonable tim e,” and he
brought the motion within a reasonable time of learning of the criminal charges. 2
We recently addressed these arguments in Johnson. As previously stated, Johnson
was represented by the same court -appointed counsel as Radke during his civil -
commitment proceedings, and Johnson’s request for relief was similarly based on the
attorney’s subsequent criminal charges. Like Radke, Johnson sought relief under rule
60.02(b), (f). Johnson, 2019 WL 2495668, at *4 . We determined that the motion was
untimely under both paragraphs because it was not brought within the one -year time limit

2 The state argues that claims based o n ineffective assistance of counsel are properly
addressed under the “excusable neglect” provision of rule 60.02(a), rather than rule
60.02(b). The state further asserts that because such claims are addressed under rule
60.02(a), they cannot be brought under rule 60.02(f), because paragraph (f) only applies to
exceptional circumstances not addressed by paragraphs (a) through (e). The state advanced
the same argument in Johnson, and we determined that we need not decide the issues
because Johnson’s motion was untimely under paragraph (f). Johnson, 2019 WL 2495668,
at *4.

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that applies to rule 60.02(a) -(c) and was not brought within a reasonable time as required
by rule 60.02(f). Id.
In addressing Jo hnson’s request for relief under paragraph (f), we first noted that
relief is only available under paragraph (f) in “exceptional circumstances.” Id. at *5
(quotation omitted). We then reasoned that the alleged ineffective assistance on which
Johnson based his request for relief occurred during the initial commitment proceedings,
and was therefore known to Johnson at that time. Id. Consequently, we determined that
because Johnson could have raised the claim of ineffective assistance immediately after
the original proceedings, his motion was not brought within a reasonable time. Id. Like
Johnson, Radke argues that he received ineffective assistance of counsel during his original
commitment proceedings in 2012. And like Johnson, Radke was aware of his co unsel’s
performance at that time and therefore could have raised the claim immediately after the
original proceedings, had he thought that there was ineffective assistance . Accordingly,
his motion was not brought within a reasonable time. The district co urt therefore did not
abuse its discretion in determining that Radke’s motion was untimely under rule 60.02.
III.
Radke contends that the district court erred by denying his motion for a new trial on
the merits. An individual who is indeterminately committed as an SDP may bring a claim
of ineffective assistance of counsel under rule 60.02. In re Civil Commitment of Lonergan,
811 N.W.2d 635, 643 (Minn. 2012) . We analyz e an ineffective -assistance-of-counsel
claim in a civil -commitment case under the sta ndard set out in Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984) , applicable to criminal cases.

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In re Dibley , 400 N.W.2d 186, 190 (Minn. App. 1987), review denied (Minn. Mar. 25,
1987). To establish a claim for ineffective assistance of counsel, a party must demonstrate
“that counsel’s representation fell below an objective standard of reasonableness, and that
there is a reasonable probability that, but for counsel’s unprofessional erro rs, the result of
the proceeding would have been different.” Reed v. State, 793 N.W.2d 725, 733 (Minn.
2010) (quotations omitted). Matters of trial strategy, including objections, are generally
not subject to judicial review. State v. Mosley, 895 N.W.2d 585, 592 (Minn. 2017). We
review claims of ineffective assistance of counsel de novo. State v. Rhodes, 657 N.W.2d
823, 842 (Minn. 2003).
Radke argues that his trial counsel’s performance fell below an objective standard
of reasonableness for six reas ons. He argues that his counsel (1) failed to object to or
challenge the commitment petition, (2) failed to object to or challenge the use of a particular
examiner and the use of both examiners’ reports as evidence, (3) failed to object to the
testimony of witnesses, (4) failed to object to inaccurate testimony and evidence, (5) did
not support his arguments and misstated the law, and (6) failed to a provide a less-restrictive
alternative to civil commitment.
The errors assigned to counsel by Radke are id entical to those alleged in Johnson.
Johnson, 2019 WL 2495668, at *6. We determined that Johnson failed to establish that his
counsel’s performance fell below an objective standard of reasonableness. Id. at *7. We
noted that many of his assertions related to matters of trial strategy, which we generally do
not review. Id. at *6. In addition, several of Johnson’s claims were refuted by the record,
and Johnson failed to provide record support for other assertions. Id. We then stated:

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Lastly, and most importantly, Johnson has not provided
factual support for his claim of ineffective assistance of
counsel. Th e crux of Johnson’s claim is that his court -
appointed attorney’s “ineffective counsel was likely caused by
his addiction to drugs and alco hol.” Yet as the district court
reasoned, Johnson has not provide d any evidence that his
attorney was using drugs or alcohol at the time of the 2011
commitment proceedings. Instead, Johnson points to his
attorney’s 2018 criminal charges and speculates th at “if [his
attorney] was high on narcotics during the civil commitment
proceeding . . . , [his attorney] would not have been effective
enough to raise issues in [his] best interest or re but the state’s
allegations.”

Id. (alterations in original). We determined that “Johnson’s speculation that his lawyer was
under the influence of drugs and alcohol during his commitment proceedings is insufficient
to establish objectively unreasonable representation.” Id.
Our analysis in Johnson applies equally to Radke’s claim. Many of Radke’s claims,
such as the objections his counsel should have made, were matters of trial strategy. Radke
failed to provide record support for many of his allegations, and others were refuted by the
record. For example, Radke argues that his counsel was ineffective for failing to reply to
the county’s closing argument and proposed findings, but the record indicates he did so on
two occasions. And contrary to Radke’s assertion, his counsel did argue that there was a
less-restrictive alternative to civil commitment —Radke living with his mother, being
placed on intensive supervised release, and attending treatment at the Safety Center facility.
But both the district court and this court det ermined that the proposed alternative was not
adequate. Finally, and most importantly, Radke similarly failed to provide any factual
support for his assertion that his counsel was under the influence of drugs or alcohol during
the initial commitment proceedings. Like in Johnson, Radke’s assertion is based on mere

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speculation and is insufficient to establish that he received objectively unreasonable
representation.3 Id. Accordingly, the district court did not err in determining that Radke’s
motion for a new trial failed on the merits.
Affirmed.

3 Because Radke has failed to establish that he received objectively unreasonable
representation, we need not address the prejudice requirement of the Strickland standard.
See Mosley , 895 N.W.2d at 591 (stating that “[i]f a claim fails to satisfy one of the
Strickland requirements, we need not consider the other requirement”).