Carl Adam Mulvihill, 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This opinion will be unpublished and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
A19-0182

Carl Adam Mulvihill, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 28, 2019
Affirmed
Johnson, Judge

Dakota County District Court
File No. 19HA-CR-10-1236

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

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

James C. Backstrom, Dakota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Connolly, Judg e; and
Peterson, Judge.

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

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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 2010, Carl Adam Mulvihill pleaded guilty to three counts of first-degree criminal
sexual conduct. In 2018, he petitioned for post-conviction relief, arguing that the district
court lacked subject -matter jurisdiction over one of the three charges on the ground that
the factual record of the plea hearing did not establish that he committed the offense in
Minnesota. The post-conviction court denied the petition on the ground that it is untimely.
We conclude that the two-year statute of limitations for post-conviction petitions applies
to a claim based on a lack of subject-matter jurisdiction and, accordingly, that Mulvihill’s
petition is untimely. Therefore, we affirm.
FACTS
In June 2010, the state charged Mulvihill in an amended complaint with three counts
of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(a),
1(h)(iii) (2008). With respect to the first count, the state alleged that, in August 2009 ,
Mulvihill traveled from Minnesota to Oregon and back with a youn g boy and, on more
than one occasion, at unknown locations, inserted his penis into the boy’s anus or mouth.
With respect to the second count, the state alleged that, in August 2009, Mulvihill traveled
from Minnesota to California and back with a different young boy and, on more than one
occasion, in Minnesota and elsewhere, inserted his penis into the boy’s anus or mouth.
With respect to the third count, the state alleged that, in August or September of 2009,
Mulvihill engaged in criminal sexual conduct toward a third young boy in Minnesota.

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The state and Mulvihill entered into a plea agreement . Mulvihill agreed to plead
guilty to all three counts; the state agreed to not charge Mulvihill with possession of child
pornography and to obtain the agreement of federal prosecutors to not charge Mulvihill
with any crimes in federal court . The parties also agreed on Mulvihill’s sentences. The
plea agreement was reflected in a plea petition, which Mulvihill signed.
At the plea hearing, Mulvihill’s attorney and the prosecutor sought to establish a
factual basis for Mulvihill’s plea. The prosecutor noted that the first young boy does not
know the state in which Mulvihill engaged in criminal sexual conduct. Mulvihill stated
that he was unclear where it occurred and that he believed that it did not occur in Minnesota.
The prosecutor asked Mulvihill to acknowledge that he could be prosecuted in federal court
if he committed the offense charged in count 1 outside Minnesota but that he preferred to
be prosecuted in the Minnesota state courts. Mulvihill agreed. Mulvihill also
acknowledged that there is sufficient evidence to allow a jury to find that he committed the
offense charged in count 1 in Minnesota. The district court accepted Mulvihill’s guilty
plea on each count.
At a sentencing hearing in September 2010, the district court imposed the agreed-
upon sentences of 180 months of imprisonment on count 3, a consecutive sentence of 180
months of imprisonment on count 2 , and a concurrent sen tence of 360 months of
imprisonment on count 1. Mulvihill did not pursue a direct appeal.
Nearly eight years later, i n July 2018, Mulvihill filed a pro se motion in which he
argued that the district court did not have jurisdiction at the time of his guilt y plea and
sentencing. In August 2018, the state filed a response in which it argued that Mulvihill’s

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motion should be treated as a post-conviction petition, that the petition is untimely because
it was filed more than two years after final judgment, and that no exception to the two-year
limitations period applies. In October 2018, an assistant state public defender filed a letter
brief on Mulvihill’s behalf, arguing alternatively that the district court lacked jurisdiction
over count 1, that a jurisdictional defect cannot be remedied by an Alford plea, and that
Mulvihill’s plea did not satisfy the requirements of an Alford plea.
In November 2018, the post -conviction court filed an order in which it construed
Mulvihill’s motion to be a petition for post-conviction relief and denied the petition on the
ground that it is untimely. Mulvihill later filed a pro se request for a hearing on the petition.
The post-conviction court filed an amended order that denied the request for a hearing .
Mulvihill appeals.
D E C I S I O N
Mulvihill argues that the post -conviction court erred by denying his petition for
post-conviction relief. He contends that the district court lacked subject-matter jurisdiction
with respect to the offense charged in count 1 on the ground that it was not committed in
Minnesota. See Minn. Stat. § 609.025(1) (2008); State v. Smith, 421 N.W.2d 315, 318-21
(Minn. 1988). He further contends that the two-year statute of limitations does not apply
to post-conviction claims that challenge subject-matter jurisdiction.
A person seeking post -conviction relief 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 en try of judgment of conviction or
sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s

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direct appeal.” Id. If the two-year limitations period has expired, the post-conviction court
nonetheless may consider the petition if any one of five exceptions applies. Id., subd. 4(b)
(2016). 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) (2016); 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 petiti on 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 timely, the postconviction court may
summarily deny the petition as untime ly.” Id.; see also Andersen v. State , 913 N.W.2d
417, 424 (Minn. 2018). This court applies an abuse-of-discretion standard of review to the
denial of a post-conviction petition for untimeliness. Riley, 819 N.W.2d at 167.
Mulvihill contends that the two-year limitations period does not apply to arguments
based on a lack of jurisdiction because such an argument cannot be waived or forfeited. In
response, the state cites an opinion of the supreme court that, it contends, is contrary to
Mulvihill’s argumen t. In Stewart v. State , 764 N.W.2d 32 (Minn. 2009), the offender
petitioned for post -conviction relief more than seven years after his convictions were
affirmed on direct appeal. Id. at 33. He argued in his petition that the district court lacked
subject-matter jurisdiction at the time of his convictions on the ground that “the offenses

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of which he was convicted do not have all constitutionally -required components, as
published in the Minnesota Statutes, and are there fore invalid laws.” Id. The post -
conviction court summarily denied the petition on the ground that it was untimely and, in
addition, lacked merit. Id. The supreme court affirmed with respect to the issue of
untimeliness, reasoning that the offender “did not assert or establish any of the [post -
conviction] statute’s exceptions.” Id. at 34. The supreme court did not consider the merits
of the petition. Id. at 33-34.
The state contends that the Stewart opinion illustrates that the two-year statute of
limitations applies to an untimely post-conviction petition even if the petition challenges
the subject-matter jurisdiction of the district court. See id. at 33-34. Mulvihill did not file
a reply brief. We agree with the state that, in light of Stewart, Mulvihill’s post-conviction
petition is subject to the two -year statute of limitations that applies generally to post -
conviction petitions, notwithstanding the fact that his petition challenges the district court’s
subject-matter jurisdiction. That princip le is dispositive of the appeal inasmuch as
Mulvihill filed his post-conviction petition almost eight years after final judgment and has
not sought to invoke any of the exceptions to the two-year statute of limitations.
Thus, the post-conviction court did not err by denying Mulvihill’s post-conviction
petition on the ground that it is untimely.
Affirmed.