In the Matter of the Civil Commitment of: Mark Jeffrey Dunker.

This opinion will be unpublished and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
A19-0255

In the Matter of the Civil Commitment of: Mark Jeffrey Dunker.

Filed September 23, 2019
Affirmed
Schellhas, Judge

Otter Tail County District Court
File No. 56-PR-16-3379

Mark Dunker, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Angela H. Kiese, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the district court’s denial of his motion to withdraw a civil -
commitment stipulation under Minn. R. Civ. P. 60.02, arguing that ( 1) he received
ineffective assistance of counsel and (2) the stipulation was invalid. We affirm.

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FACTS
Appellant Mark Dunker has an extensive history of sexually abusing young
children, including his own daughter. In November 2016, respondent Otter Tail County
(county) petitioned the district court to commit Dunker as a sexually dangerous person
(SDP) and a sexual psychopathic personality (SPP). The court appointed legal counsel for
Dunker in the commitment proceedings, and it appointed Dr. Paul Reitman and Dr. Anne
Pascucci as court examiners. Follo wing their examinations, both Dr. Reitman and Dr.
Pascucci opined in written reports that Dunker satisfied the criteria for commitment as an
SDP.
On March 21, 2017, Dunker stipulated that he met the criteria for commitment as
an SDP. At the time of the st ipulation, the parties agreed to litigate the less -restrictive-
alternative portion of the statute at a later date, and the county agreed not to seek Dunker’s
commitment as an SPP. Dunker also agreed on the record and under oath that he met the
criteria to be committed as an SDP, and that he was “satisfied” with the representation of
his attorney. Based upon the exhibits and Dunker’s stipulation, t he district court then
concluded in a written order that “Dunker meets the criteria for commitment as a [SDP]
under Minn. Stat. § 253D.02, subd. 16 (2016).” The court also scheduled a hearing related
to Dunker’s “possible proposed less restrictive alternative.”
After a continuance of the hearing related to a less-restrictive alternative, Dunker
filed a written waiv er, in which he stated that “[a]fter speaking with my attorney, . . . we
determined that circumstances have changed and it [is] no longer necessary to present my
less restrictive alternative argument to the Court.” Dunker therefore agreed to waive his

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appearance at the hearing on a less-restrictive alternative, and the district court entered its
stipulated findings of fact, conclusions of law, and order, indeterminately committing
Dunker as an SDP to the Minnesota Sex Offender Program (MSOP).
On February 2 , 2018, Dunker’s court -appointed attorney was charged with first -
degree controlled -substance sale and first -degree controlled-substance possession after
police executed a search warrant at his home and discovered drugs. Dunker subsequently
moved to withdraw his stipulation, claiming that his “stipulation was not made voluntarily,
knowingly, or intelligently,” and that he received ineffective assistance of counsel. The
district court determined that Dunker’s attorney’s “conduct —based on the evidence
submitted by [Dunker]—fails to support a claim of improper conduct” and concluded that
Dunker “does not establish a record to support his claims the stipulation must be withdrawn
under the applicable civil standard in this matter.” The court therefore denied Dunke r’s
motion to withdraw his stipulation.
This appeal follows.
D E C I S I O N
A district court has discretionary power to grant relief from a final judgment. Minn.
R. Civ. P. 60.02. Under rule 60.02, 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) . . . it is no longer
equitable that the judgment should have prospective application; or (f) Any other reason
justifying relief from the operation of the judgment.” A district court’s denial of such relief

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is reviewed for an abuse of discretion. Charson v. Temple Israel , 419 N.W.2d 488, 490
(Minn. 1988).
Dunker challenges the district court’s denial of his motion to withdraw his
stipulation as an SDP. He argues tha t he should be allowed to withdraw his stipulation
because ( 1) he received ineffective assistance of counsel, and ( 2) the stipulation was
invalid.
A. Ineffective-assistance-of-counsel claim
This court may consider ineffective -assistance-of-counsel claims of civilly
committed persons raised by motion under rule 60.02. In re Civil Commitment of Lonergan,
811 N.W.2d 635, 642 (Minn. 2012). We analyze an ineffective-assistance-of-counsel claim
in a civil-commitment proceeding under the standard set out in Strickland v. Washington, 466 U.S. 668, 688, 694, 104, S. Ct. 2052, 2064, 2068 (1984), which is applicable to
criminal cases. See In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied
(Minn. Mar. 25, 1987); see also In re Alleged Mental Illness of Cordie, 372 N.W.2d 24,
28–29 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).
To establish ineffective assistance of counsel under the Strickland standard, a party
must demonstrate that counsel’s representation “fell below an objective standard of
reasonableness,” and that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 687 –88, 694, 104 S. Ct. 2064, 2068;
see also State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (applying Strickland standard
to a claim of ineffective assistance of counsel). We review ineffective -assistance-of-
counsel claims de novo. Rhodes, 657 N.W.2d at 842. There is a strong presumption that

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counsel’s representation was reasonable. State v. Pearson , 775 N.W.2d 155, 165 (Minn.
2009).
Dunker appears to argue that he was denied the effective assistance of counsel
because his court-appointed attorney advised him that he would be a free person,
completely discharged from MSOP, in three to four years, when, in fact, his “attorney knew
that commitment to the MSOP was for the rest of his natural life.” But nothing in the record
supports Dunker’s claim. To the contrary, Dunker testified under oath that nobody “made
any promises” to make him agree to the stipulation. Moreover, Dunker’s signed stipulation
states that he had sufficient time to discuss his case with his attorney and that he understood
that the “Petition seeks [his] indeterminate commitment as a ‘sexually dangerous person.’”
(Emphasis added.) Dunker’s signed stipulation also states that he understood
that by stipulating to this commitment, if ultimately committed
to [MSOP], [he] shall not be discharged unless it appears to the
satisfaction of the Special Review Board that [he is] capable of
making an acceptable adjust ment to open society, that [he is]
no longer dangerous to the public, and that [he is] no longer in
need of in-patient treatment and supervision.

And Dunker also testified under oath that he understood that if the district court “makes a
determination that [he was] to be committed to the [MSOP] secure treatment facility that
[he] would not be discharged until [he was] capable of making an acceptable adjustment
to open society and [was] no longer dangerous to the public” and “no longer in need of
treatment and supervision.” The district court found that, to accept Dunker’s claim that he
understood that his commitment to MSOP was anything less than indeterminate , would

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require the “ Court to functionally reject his statements under oath” and his signed
stipulation. Nothing in the record supports such a rejection.
Dunker also appears to contend that he was denied the effective assistance of
counsel because his attorney “was a meth head and . . . was using and selling meth.” This
argument is unavailing. Dunker’s court-appointed attorney was arrested in February 2018,
several months after Dunker was committed, and Dunker fails to provide any evidence that
his counsel was u nder the influence of drugs or alcohol during the commitment
proceedings. Nor does Dunker provide any evidence that his decision to stipulate to the
commitment was influenced by his court-appointed attorney’s drug use. Instead, Dunker’s
claim that his atto rney provided ineffective assistance due to drug use is based on mere
speculation and therefore is insufficient to establish that he received objectively
unreasonable representation. See Gates v. State , 398 N.W.2d 558, 563 (Minn. 1987)
(stating that reversal under Strickland standard cannot be based on speculation); see also
In re Civil Commitment of Johnson, 931 N.W.2d 649, 658 (Minn. App. 2019) (holding that,
in a civil-commitment proceeding, speculation that attorney was under influence of
controlled substances is not sufficient to establish objectively unreasonable representation),
pet. for review filed (Minn. July 17, 2019).
Moreover, Dunker acknowledged under oath that, in addition to his court-appointed
attorney, “a number of attorneys” from his court-appointed attorney’s office “have worked
with” him on his commitment case. And when Dunker was asked by his court -appointed
attorney if Dunker felt that the attorney’s “office ha[d] a sufficient understanding of
[Dunker’s] particular facts and . . . issu es and have provided [him] with sufficient

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information to be confident in [their] representation of him,” Dunker replied, “Thoroughly,
yes.” In fact, the record is replete with Dunker’s agreement that he was satisfied with his
court-appointed attorney’s performance. Dunker’s signed stipulation states that he was
“satisfied that [his] attorney [was] fully informed as to the facts of this case,” and that he
was “satisfied that [his] attorney ha [d] represented all of [his] interests and fully advised
[him].” Dunker then echoed these sentiments by testifying under oath that he was “satisfied
with his attorney’s representation.” And when asked by the prosecutor if he was “satisfied
fully with [his] attorney’s representation of [him],” Dunker replied, “Yes, I am.” Again, to
accept Dunker’s claim that he received ineffective assistance of counsel would require the
rejection of Dunker’s sworn statements. Dunker provides no justification for such a
rejection other than mere speculation. Dunker therefore is unable to establish the first prong
of the Strickland standard.
Because Dunker is unable to establish the first prong under Strickland, we need not
analyze the prejudice prong. See Pearson v. State , 891 N.W.2d 590, 600 (Minn. 2017)
(stating that if one prong under Strickland is not satisfied, reviewing court need not analyze
other prong). Accordingly, the district court did not err by concluding that Dunker was not
denied the effective assistance of counsel.
B. Validity of the stipulation
Dunker challenges the validity of the stipulation. A stipulation cannot ordinarily be
repudiated or withdrawn by one party without consent of the other except by leave of the
court for cause shown. Gran v. City of St. Paul , 143 N.W.2d 246, 249 (Minn. 1966). “A
stipulation may be v acated when it was made improvidently and in good conscience and

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equity should not stand. When there is fraud or duress that prejudices the party making the
stipulation, the stipulation was improvidently made.” In re Commitment of Rannow , 749
N.W.2d 393, 396–97 (Minn. App. 2008) (citation omitted), review denied (Minn. Aug. 5,
2008). But a district court acts within its discretion by declining to vacate a stipulation
when the party “had a sound, rational basis for entering into the stipulation” and the
stipulation was made “knowingly and voluntarily.” Id. at 399.
Dunker argues that his stipulation was not made knowingly or voluntarily because
“there is no way in the world that [he] could have known . . . that his counsel was a drug
user/seller and involved i n criminal activity.” He argues that because his stipulation was
“improvidently made,” the district court abused its discretion by denying his motion to
withdraw his stipulation as an SDP. We disagree.
The district court made extensive findings related to Dunker’s decision to stipulate
and determined that Dunker “identified on the record under oath [that] he read through and
understood the contents of the written stipulation.” The court then concluded that
“[c]ontrary to [Dunker’s] assertions, the record b efore this Court does support enforcing
the stipulation entered on March 21, 2017.”
The record supports the district court’s determination. Dunker’s signed stipulation
states that he understood that the county sought his “indeterminate commitment” as an SDP
and that he “fully” understood the nature of the proceedings and the contents of the petition.
Dunker’s signed stipulation also states that he was not making any “claim that I am
innocent of the crimes for which I have been convicted,” and that he belie ved that the
county “ha[d] enough evidence that, if presented to a judge, would most likely result in

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[him] being found to meet the commitment criteria” as an SDP. Moreover, Dunker’s signed
stipulation states that he was fully advised of his rights and that he agreed to waive those
rights. And finally, Dunker’s signed stipulation acknowledged that he had “sufficient time
to discuss [his] case with [his] attorne y,” and that he was “satisfied” with his attorney’s
representation.
Dunker’s testimony at the March 21, 2017 hearing affirmed his signed stipulation.
Dunker testified that he was satisfied with his attorney, that he understood his rights, and
that he was agreeing to waive those rights. Dunker also testified that he understood that he
was agreeing that he met “the criteria for commitment” as an SDP and that he “would not
be discharged until” he is “capable of making an acceptable adjustment to open society and
[is] no longer dangerous to the public” and “no longer in need of treatment and
supervision.” In fact, Dunker testified that he wanted the district court to know that he
understood that the possibility existed that he could reoffend and that he did not want
anybody to get “hurt again,” particularly in light of the hurt and suffering he caused his
daughter. And when asked by the district court if those were the “matters that [he] had in
mind and contemplated as [he] entered the agreement,” Dunker replied , “Yeah.”
Dunker’s sworn testimony and his signed stipulation directly contradict his claim that his
stipulation was not knowing, voluntary, and intelligent. 1 We therefore conclude that t he

1 Dunker also claims that he was not competent to enter into the stipulation according to
Minn. R. Crim. P. 20.01. But this argument is not properly before us because it was raised
for the first time in this appeal. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988)
(stating that an appellate court will generally not address issues that were not presented to
and considered by the district court). And Dunker’s argument is directly contradicted by
his testimony and signed stipulation wherein he stated that he does “not have a mental

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district court did not abuse its discretion by denying Dunker’s r equest to withdraw his
stipulation.
Affirmed.

disorder that interferes with [his] ability to make a fully informed decision with regard to
entering into a stipulation in this case.”