In the Matter of the Civil Commitment of: Edward Everett Urbanek.

This opinion will be unpublished and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
A19-0340

In the Matter of the Civil Commitment of: Edward Everett Urbanek.

Filed November 12, 2019
Affirmed
Larkin, Judge
Concurring specially, Rodenberg, Judge

Otter Tail County District Court
File No. 56-P7-04-001142

Jill Avery, Templeman Law PLLC, Plymouth, Minnesota (for appellant Urbanek)

Keith Ellison, Attorney General, Angela Helseth Kiese, Assistant Attorn ey General,
St. Paul, Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent Otter
Tail County)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Larkin, Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s denial of his motion for relief from his
indeterminate commitment as a sexually dangerous person ( SDP) and a sexual
psychopathic personality (SPP). He argues that the underlying judgment for commitment

2

is void and that he received ineffective assistance of counsel in the underlying civil -
commitment proceeding. We affirm.
FACTS
In June 2004, respondent Otter Tail County (the county) petitioned to civilly commit
appellant Edward Everett Urbanek as an SDP and an SPP. The district court appointed
counsel to represent Urbanek in the commitment proceeding and held a three-day trial on
the county’s petition in September 2004.1 In November 2004, the district court committed
Urbanek as an SDP and an SPP under Minn. Stat. § 253B.02, subds. 18b, 18c (2004). 2 In
April 2005, the district court held a 60 -day review hearing under Minn. Stat. § 253B.18,
subd. 2 (2004). In June 2005, the district court indeterminately committed Urbanek as an
SDP and an SPP. Urba nek appealed, represented by the same court -appointed attorney
who represented him at the commitment trial . In re Civil Commitment of Urbanek , No.
A05-1633, 2006 WL 44358, at *1 (Minn. App. Jan. 10, 2006), review denied (Minn.
Mar. 28, 2006). This court affirmed, and the supreme court denied review. Id. at *1, *4.

1 Although the relevant commitment statute refers to a “hearing on the commitment
petition,” and not a “trial,” we refer to the three-day hearing as a trial, consistent with the
parties’ briefs, as well as the rules and caselaw discussed below. See, e.g., Minn. Stat.
§ 253B.08, subd. 1 (2004) (providing time limits for holding a “hearing on the commitment
petition”).
2 In 2013, the legislature amended the M innesota Commitment and Treatment Act by
removing provisions regarding SDP and SPP commitments from chapter 253B and moving
them to a new chapter 253D, entitled the “Minnesota Commitment and Treatment Act:
Sexually Dangerous Persons and Sexual Psychopathic Personalitie s.” 2013 Minn. Laws
ch. 49, §§ 1-22, at 210-31.

3

In April 2018, 12 years after his appeal, Urbanek moved the district court, pro se,
for a new trial under rules 59.03 3 and 60.02 of the Minnesota Rules of Civil Procedure,
claiming that he received ineffective assistance of counsel in the commitment proceeding.
Urbanek noted that in 2018, his court -appointed attorney in the commitment p roceeding
was charged with several f elonies, “including but not limited to the sale of
methamphetamine, marijuana and other drugs.” He argued that those circumstances were
“relevant, admissible, and likely to have [had] an effect on the result of [his] ci vil
commitment proceedings.” Specifically, Urbanek asserted that his “attorney was under the
influence of a mood altering substance, and therefore could not . . . do his duty as an
attorney.” (Emphasis omitted.)
In June 2018, the district court appoin ted counsel to represent Urbanek in the
proceeding on his new-trial motion, reasoning that “the balance of interests in this matter
favors appointment of an attorney on [his] behalf.” In doing so, the district court noted that
Urbanek’s claim was “for ine ffective assistance of counsel, which is a claim legitimately
brought before the [district] court” and that “the claim cites new evidence in the form of a
criminal complaint brought against the trial attorney.”
In July 2018, Urbanek filed an “Amended No tice of Motion and Motion for New
Trial Pursuant to Rule 60.02(f).” Urbanek again asserted that his commitment attorney
ineffectively represented him in his civil-commitment proceeding and that counsel’s errors
were “highly likely . . . a result of his drug and alcohol addiction.”

3 Urbanek later withdrew his request for relief under rule 59.03, and it is not an issue in
this appeal.

4

In September 2018, Urbanek filed a “Second Amended Notice of Motion and
Motion for New Trial Pursuant to Rule 60.02(d) and (f).” Urbanek argued that his
“indeterminate civil commitment is void” under Minn. R. Civ. P. 60.02(d ). Urbanek also
reasserted his ineffective -assistance-of-counsel claim as an alternate gro und for relief
under Minn. R. Civ. P. 60.02(f) . The county responded, in part, that the district court
should reject Urbanek’s motion as untimely.
After a hearing on Urbanek’s motion, the district court made the following findings
regarding the circumstances that led to the county’s petition for commitment. Urbanek
was born in 1957. In 1985, he was convicted in Wyoming of four sexual offenses against
children and sent to prison. He was released from custody in 1989 and later moved to
Minnesota. In 1993, he pleaded guilty to a sexual offense against a child in Hubbard
County. Urbanek began a sex-offender treatment program, but he was discharged from the
program and sent to prison in 1995. In 1998, he was released from prison with a ten-year
period of conditional release. In 2004, he was taken into custody on an alleged conditional-
release violation, but it was determined that his ten-year conditional release pe riod was
unlawful and that he should have received a five-year conditional release period. Because
the five-year conditional release period had expired, Urbanek was immediately released
from prison without ordinary end-of-confinement procedures.
The Department of Corrections (DOC) notified the Hubbard County Attorney that
Urbanek had been released without review for possible civil commitment as an SDP or an
SPP. It appears that the Hubbard County Attorney obtained Urbanek’s confidential data
and records by court order. The Hubbard County Attorney hired two experts to review

5

those records and make a recommendation concerning the possibility of committing
Urbanek as an SDP or SPP. Based on the experts’ recommendations and Urbanek’s then
residence in Otter Tail County, the Hubbard County Attorney forwarded Urbanek’s records
to the Otter Tail County Attorney, who commenced commitment proceedings in 2004.
The district court denied Urbanek’s motion s for relief from judgment under rule
60.02 on the merits, assuming without deciding that the motion was timely. This appeal
followed.
D E C I S I O N
I.
Minn. R. Civ. P. 60.02 provides that “[o]n motion and upon such terms as are just,
the court may relieve a party . . . from a final judgment . . . , order, or proceeding and may
order a new trial or grant such other relief as may be just” and lists various grounds for
relief in paragraphs (a) through (f). Rule 60.02 provides that a “motion shall be made
within a reasonable time, and for reasons ( a), (b), and (c) not more than one year after the
judgment, order, or proceeding was entered or taken.” A district court’s denial of a rule
60.02 motion is reviewed for an abuse of discretion. In re Civil Commitment of Johnson ,
931 N.W.2d 649, 655 (Minn. App. 2019), review denied (Minn. Sept. 17, 2019).
The county contends that “Urbanek’s motions were grossly untimely” because “[a]ll
of [his] claims were based on circumstances occurring before or at his trial in 2004.”
Urbanek counters that “[a]lthough [his] motion came thirteen years after [his]
indeterminate commitment, the compelling nature of commitment proceedings provided
the basis for the court to consider [his] arguments in the interests of justice, rather than

6

dismiss on technical grounds.” Although the issue was raised, the district court did not
decide whether Urbanek’s rule 60.02 motion was timely.
Generally, this court only reviews issues that were “presented to and considered by
the [district] court in deciding the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). However, “this court may consider issues that have been presented to but
not decided by the district court when the facts are undisputed and both parties have briefed
the issue.” Gallaher v. Titler , 812 N.W.2d 897, 901 (Minn. App. 2012), review denied
(Minn. July 17, 2012). Because the timing issue was presented to the district court, the
facts are undisputed, and the parties have briefed the issue, we address it.
In district court, Urbanek cited paragraphs (d) and (f) of rule 60.02 as grounds for
relief.4 Under rule 60.02(d), a court may grant relief because “[t]he judgment is void.” “A
void judgment is one where the court lacks jurisdiction over the subject matter or over the
parties.” Zions First Nat’l Bank v. World of Fitness, Inc., 280 N.W.2d 22, 25 (Minn. 1979)
(quotation omitted). Under rule 60.02(f), a court may grant relief based on “[a]ny other
reason justifying relief from the operation of the judgment.” “Clause (f) of Rule 60.02 is
a re sidual clause, designed to afford relief only under exceptional circumstances not
addressed by clauses (a) through (e).” Johnson, 931 N.W.2d at 655 (quotation omitted).
Again, under rule 60.02 the “motion shall be made within a reasonable time, and for reasons
(a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered

4 Although Urbanek cited rule 60.02(b) in his initial motion for new trial, he did not rely
on that ground in his am ended and second amended motion in the district court and does
not rely on it on appeal.

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or taken.” “The residual clause is not intended to extend the time limit for granting relief
under the other clauses of Rule 60.02.” Id. (quotation omitted).
Urbanek relied on rule 60.02(d) for his claim that the civil -commitment judgment
is void. What constitutes a reasonable time for bringing a motion under rule 60.02(d) must
be determined by “considering all attendant circumstances such as: intervening rights, loss
of proof by or prejudice to the adverse party, the commanding equities of the case, the
general desirability that judgments be fina l and other relevant factors.” Bode v. Minn.
Dep’t of Nat. Res., 612 N.W.2d 862, 870 (Minn. 2000) (quotation omitted).
Urbanek’s claim under rule 60.02 (d) is based on allegations that the Hubbard
County Attorney had no authority to move for the production of records prior to filing a
commitment petition, that the DOC end -of-confinement review committe e illegally
disclosed Urbanek’s private data and records to the Hubbard County Attorney, that
Urbanek either did not have a mandatory prepetition screening or his prepetition screening
did not comply with statutory requirements, and that Urbanek did not receive notice of the
civil-commitment proceeding until he was forcibly apprehended at his home. All of those
allegations are based on conduct that occurred before Urbanek’s civil-commitment trial in
2004. Yet Urbanek has not offered a satisfactory reason why his motion challenging the
judgment as void was not brought until 12 years after his direct appeal. Thus, the “general
desirability that judgments be final” strongly favors denial of Urbanek’s rule 60.02(d)
motion as untimely.

8

Urbanek relied on rule 60.02(f) for his claim that his counsel in the civil -
commitment proceeding was ineffective.5 “Whether a motion is made within a reasonable
time [under rule 60.02(f)] depends upon all of the fa cts and circumstances involved, and
the district court may consider whether any prejudice will result to the other party if the
motion is granted.” Buck Blacktop, Inc. v. Gary Contracting & Trucking Co., 929 N.W.2d
12, 20 (Minn. App. 2019) (quotation omitted).
Urbanek’s main justification for bringing his rule 60.02(f) motion 12 years after his
direct appeal is his recent discovery of his commitment attorney’s criminal charges.
Urbanek argues that he “ was not previously aware of [his commitment attorney’s] drug
addiction” and argues that his “delay resulted from [his] confinement, his negligible access
to resources, and legal representation by [his commitment attorney], who had a conflict of
interest in disclosing [his commitment attorney’s] errors to [him].” But Urbanek does not
assert that his commitment attorney’s alleged ineffective performance was caused by drug
use. Indeed, he concedes that such an argument would be speculative “because [he] never
saw [his commitment attorney] take drugs.” And, as Urbanek points out, a claimant need

5 The county argues that “[i]neffective assistance of counsel claims brought under Rule
60.02 are motions under clause (a) and must be brought within a year of the judgment or
order in question.” See Chapman v. Special Sch. Dist. No. 1, 454 N.W.2d 921, 923 (Minn.
1990) (noting that “[a]ttorney misconduct has been characterized as ‘excusable neglect’
under clause (a)”). Urbanek counters that because “his claim of ineffective counsel was
not based on ‘inadvertence,’ but on gross errors by his attorney” and because he “lost all
of his possessions and was deprived of his constitutional right to virtually every liberty a
person has,” his claim “falls under the exceptional circumstances which require the use of
Rule 60.02(f),” which allows a motion to be brought within a reasonable time. We need
not decide whether Urbanek’s ineffective -assistance-of-counsel claim should have been
brought under paragraph (a), and not (f), because Urbanek’s ineffective -assistance-of-
counsel claim was untimely under paragraph (f).

9

not provid e an explanation of why counsel was ineffective to establish such a claim.
Johnson, 931 N.W.2d at 656 n.6.
The alleged ineffective performance on which Urbanek relies occurred d uring the
commitment proceeding in 2004. Indeed, he argues that “there was evidence that
something was amiss” and that his commitment attorney’s proposed findings of fact “alone
should have been a red flag of such to the court and opposing counsel .” Because, as
Urbanek argues, the alleged ineffective repr esentation was known at the time of the
commitment proceeding, it should have been raised closer to that time.
We note that this court has rejected as untimely requests for relief under rule 60.02
based on similar claims of ineffective assistance of cou nsel against the same commitment
attorney involving the same circumstances . See, e.g., id. at 656 & n.6 (holding that six -
year delay in bringing ineffective -assistance-of-counsel claim based on attorney’s recent
criminal charges made that claim untimely); In re Civil Commitment of Radke , No. A18-
1705, 2019 WL 3000733, at *2-3 (Minn. App. July 8, 2019) ( holding that five-year delay
in bringing ineffective -assistance-of-counsel claim based on attorney’s recent criminal
charges made that claim untimely), review denied (Minn. Sept. 25, 2019). Moreover, the
county would be significantly prejudiced if it had to retry this case more than 13 years after
the original commitment trial because memories fade and witnesses who testified at the
original trial may no longer be available.
In sum, Urbanek’s motion for relief under rule 60.02(d) and 60.02(f) was not made
within a reasonable time, and the district court would have been justified in denying th e

10

motion as untimely. However, because the district court addressed the merits of Urbanek’s
motion, we do so as well.
II.
Urbanek contends that the underlying judgment of commitment is void and that the
district court therefore erred by denying his motion for relief under rule 60.02(d). He
argues that his commitment is void because “[n]either the Hubbard County nor the Otter
Tail County district courts had subject matter jurisdiction over [his] commitment,”
“[n]either [the] Hubbard County nor Otter Tail Co unty district courts had personal
jurisdiction over [his] commitment,” and he “did not receive due process or equal
protection.” We address each argument in turn.
Subject-Matter Jurisdiction
Urbanek argues that the district court lacked subject -matter jurisdiction over his
commitment because “[a] county attorney’s right to proceed under Minn. Stat. § 253B.185
was never invoked because facts were not submitted to a county attorney, only illegally
disclosed data and records”; “Minn. Stat. § 253B.185 did n ot confer authority for the
Hubbard County attorney to act, including making a motion for production of records”;
and “[he] either did not have a mandatory prepetition screening, or his prepetition screening
did not comply with statutory requirements.” This court reviews issues involving subject-
matter jurisdiction de novo. Bode, 612 N.W.2d at 866.
“Subject-matter jurisdiction is the court’s authority to hear the type of dispute at
issue and to grant the type of relief sought.” Seehus v. Bor-Son Constr., Inc., 783 N.W.2d
144, 147 (Minn. 2010 ). “As a general rule, state courts have subject -matter jurisdiction

11

over civil commitments.” In re Civil Commitment of Beaulieu , 737 N.W.2d 231, 237
(Minn. App. 2007); In re Ivey , 687 N.W.2d 666, 669 (Minn. App. 20 04), review denied
(Minn. Dec. 22, 2004); see also State ex rel. Anderson v. U.S. Veterans Hosp., 128 N.W.2d
710, 715 (Minn. 1964) (“The fact that the probate court has jurisdiction over commitment
proceedings by virtue of our constitution has long been es tablished.”). Procedural
requirements in a statute, “even if written in mandatory language,” do not necessarily
“operate to divest the district court of subject matter jurisdiction when such statutory
provisions are not satisfied.” See In re Civil Commitment of Giem, 742 N.W.2d 422, 423,
428-29 (Minn. 2007) (holding that although the timing provisions in Minn. Stat. § 253B.08,
subd. 1 (2006) are mandatory, the deadlines do not “operat[e] to limit the subject matter
jurisdiction of the district court”).
Urbanek’s briefing does not cite to authority establishing that the alleged procedural
errors in this case divested the district court of subject -matter jurisdiction or otherwise
explain why such errors prevent ed the district court from exercising subject-matter
jurisdiction. And he failed to provide such authority or explanation when presse d on the
issue at oral argument before this court. Thus, Urbanek provided no legal basis to conclude
that the general rule th at district courts have subject -matter jurisdiction over civil
commitments would not apply to his case. Additionally, we discern no legal basis for
reaching that conclusion. We therefore reject his assertion that the district court lacked
subject-matter jurisdiction to commit him.

12

Personal Jurisdiction
Urbanek argues that the district court lacked personal jurisdiction because he “never
received notice of any kind of any proceeding until he was forcibly apprehended at his
home.” Whether personal jurisdiction exists is a question of law, which this court reviews
de novo. Bandemer v. Ford Motor Co., 931 N.W.2d 744, 749 (Minn. 2019).
Personal jurisdiction has two requirements:
(1) an adequate connection between the state and the party over
whom jurisdiction is sought, or a basis for the exercise of
jurisdiction; and (2) a form of process that satisfies the
requirements of both due process and the Minnesota Rules of
Civil Procedure governing the commencement of civil actions.

Ivey, 687 N.W.2d at 670. “Due process requires that a defe ndant receive notice of a civil
action and an opportunity to be heard. ” Wick v. Wick, 670 N.W.2d 599, 603 (Minn. App.
2003). “[A] defense of lack of personal jurisdiction can be waived, either explicitly or by
implication.” Ivey, 687 N.W.2d at 670. “[I ]rregularities in the establishment of personal
jurisdiction do not negate the assumption of personal jurisdiction.” Id.
Urbanek does not dispute that there is an adequate connection between him and the
State of Minnesota for purposes of personal jurisdiction. Instead, he argues that he received
inadequate process because he “was forcibly apprehended and imprisoned when served
with the [commitment] petition, without any prior notice.” However, a court’s personal
jurisdiction over a party is proper even when the party has “been brought within the court’s
jurisdiction by reason of a forcible abduction” or “is before the court by unlawful force,
duress, or fraud” so long as the basic requirements of notice and an opportunity to be heard
are satisfied. Id. at 670-71 (quotations omitted).

13

Urbanek was apprehended by the county pursuant to a hold order and personally
served with the civil -commitment petition. The district court appointed counsel to
represent Urbanek, and he contested both the hold order and the petition for commitment
at hearings before the commitment court. Because the basic requirements of notice and an
opportunity to be heard were satisfied, we reject Urbanek’s personal-jurisdiction argument.
Due Process and Equal Protection
Urbanek argues that he was denied substantive and procedural due process and that
the district court’s decision that he “was not owed any type of prepetition screening or other
statutory safeguards violated [his] constitutional right to equal protection.” Constitutional
challenges are questions of law, which this court reviews de novo. State v. Holloway, 916
N.W.2d 338, 344, 347 (Minn. 2018).
The fundamental requirements of procedural due process are notice and an
opportunity to be heard. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012).
Urbanek received notice and an opportunity to be heard in the underlying commitment
proceeding.
Urbanek’s substantive-due-process and equal-protection arguments were not raised
in the district court. “A reviewing court must generally consider only those issues that the
record shows were presented and considered by the [district] court in deciding the matter
before it.” Thiele, 425 N.W.2d at 582 (quotation omitted). We do not consider Urbanek’s
substantive-due-process and equal -protection arguments except to note that we do not
discern a reason that warrants departure from the general rule.

14

In sum, Urbanek has not established that any of the alleged procedural irregularities
deprived the district court of subject-matter or personal jurisdiction or that the proceeding
violated his constitutional rights. Because Urbanek’s claim that his civil -commitment
judgment is void fails on the merits, the district court did not abuse its discretion in denying
Urbanek’s motion for relief under rule 60.02(d).
III.
Urbanek contends that the “district court abused its discretion when it denied [his]
rule 60.02(f) motion to vacate his commitment and for a new trial based on [his] ineffective
counsel” in the civil-commitment proceeding.
A person who is indeterminately committed as an SDP or an SPP may bring an
ineffective-assistance-of-counsel claim under Minn. R. Civ. P. 60.02. In re Civil
Commitment of Lonergan , 811 N.W.2d 635, 643 (Minn. 2012). “This court analyzes
ineffective-assistance-of-counsel claims in civil -commitment cases under the Strickland
standard that applies in crimin al cases.” Johnson, 931 N.W.2d at 657. To prevail under
Strickland, a defendant “must show that counsel’s representation fell below an objective
standard of reasonableness” (the performance factor) and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different” (the prejudice factor). Strickland v. Washington, 466 U.S. 668, 687-
88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Johnson, 931 N.W.2d at 657.
This court reviews a claim of ineffective assistance of counsel de novo. Johnson,
931 N.W.2d at 657. Appellate courts apply “a strong presumption that [an attorney’s]
performance falls within the wide range of ‘reasonable professional assistance.’” State v.

15

Jones, 392 N.W.2d 224, 236 (Minn. 1986). “[T]rial tactics should not be reviewed by an
appellate court, which unlike the counsel, has the benefit of hindsight.” State v. Nicks, 831
N.W.2d 493, 516 (Minn. 2013) (quotation omitted); see also State v. Bahtuoh, 840 N.W.2d
804, 817 (Minn. 2013) (stating that the supreme court has “cautioned against relying on
hindsight when reviewing decisions made by trial counsel”).
Urbanek asserts that his commitment attorney “did not challenge the petition”; “did
not challenge the fact that the petition was not accompanied by a prepetition screening
report and examiner’s statement”; “did not challenge the report and testimony of [one of
the state’s witnesses]”; “did not particularize” a court-appointed examiner’s opinions that
were favorable to him; and “did not put forth less restrictive alternatives to commitment.”
Most of Urbanek’s assertions relate to matters of trial strategy and tactics, which
generally are not subject to judicial review. See Nicks, 831 N .W.2d at 516. Moreover,
Urbanek fails to explain why his commitment attorney’s performance was objectively
unreasonable. Instead, he relies on hindsight gained from reviewing the record and trial
transcript more than 13 years after the commitment trial to point out ways that his
commitment attorney could have performed better. For example, Urbanek acknowledges
that “several of the errors in the [commitment] petition were corrected by oral amendment
to the petition in the hold hearing,” but he complains that his commitment attorney “did
not make a motion to correct the hold order, amend the petition, or take any further action
for the parties to stipulate to correct information.”
In sum, Urbanek has failed to show that his commitment attorney’s representation
fell below an objective standard of reasonableness. Because Urbanek’s ineffective -

16

assistance-of-counsel claim fails on the merits, the district court did not abuse its discretion
by denying Urbanek’s motion for relief under rule 60.02(f).
Affirmed.

CS-1

RODENBERG, Judge (concurring specially)
I concur with the court’s opinion and agree that appellant’s commitment is
not “void,” that the committing court had both personal and subject -matter jurisdiction,
and that the district court did not err in denying appellant rule 60 relief. Still, there a re
aspects of appellant’s situation that are concerning and might warrant exercise of the
Minnesota Supreme Court’s supervisory powers.
Appellant was convicted of second-degree criminal sexual conduct in 1993. He was
released from prison in 1998 and was erroneously put on a ten -year conditional release
period instead of the proper five -year period. Then, in 2004, appellant was arrested 6 and
incarcerated for a release-period violation (the facts of which he continues to dispute) for
acts that occurred after his release period should have ended. While he was incarcerated,
the mistaken release-period duration was corrected, and appellant was released from prison
and from supervision by the Minnesota Department of Corrections (DOC). Appellant
resided thereafter in Otter Tail County. The DOC communicated to the Hubbard County
Attorney that appellant’s case had not been reviewed for possible civil commitment as is
DOC’s ordinary practice. DOC did determine that appellant remained a risk to reoffend
after rel ease, and it so advised the Hubbard County Attorney. The Hubbard County
Attorney obtained appellant’s documents and records to investigate the possibility of
civilly committing appellant, and commissioned a prepetition screening by two examiners.

6 Some of appellant’s arguments in this appeal rely on facts from his earlier criminal appeal.
The record here is imperfect because, as discussed below, the criminal appeal was resolved
over a decade ago and the record from that case is not now before us.

CS-2

That screening recommended that appellant be civilly committed. The records review and
prepetition screening were irregular in that the proper DOC referral should have been to
the Otter Tail County Attorney under Minn. Stat. § 244.05, subd. 7(c) (2002). Appella nt
contends, and the record supports, that appellant did not receive notice of the records
review and prepetition screening in Hubbard County. And appellant argues, with some
justification, that the absence of notice to him impaired his ability to raise t his irregularity
at that time.
Appellant also argues that his appointed counsel’s performance during the initial
commitment proceeding was ineffective because counsel did not raise any of these issues
either in the commitment trial or on appeal to this co urt. Appellant argues —again with
some justification—that the errors of which he now complains infected this court’s 2006
opinion. It seems true that his conditional release was erroneously extended, the claimed
violations of it and appellant’s incarcerat ion in 2004 were after the release period should
have expired, and the records review and prepetition screening in Hubbard County was
irregular. But it is not for us at this late date to revisit appellant’s initial appeal. Cf. Minn.
R. Civ. App. P. 140.0 1 (stating that there is no rehearing in this court). As the majority
rightly notes, this court affirmed appellant’s commitment nearly 14 years ago, and the
Minnesota Supreme Court denied review. In re Civil Commitment of Urbanek , No. A05-
1633, 2006 WL 4 4358, at *1, *4 (Minn. App. Jan. 10, 2006), review denied (Minn. Mar.
28, 2006).
Appellant’s criminal case is over and done. His commitment is final, and he has not
demonstrated in this appeal that the district court abused its discretion in denying him rule

CS-3

60 relief. If appellant is to have any relief here, it seems to me it can only be obtained from
the Minnesota Supreme Court, exercising its supervisory powers. See Shorter v. State, 511
N.W.2d 743, 747 (Minn. 1994) (reversing and remanding for trial because of “procedural
irregularities” under the supreme court’s supervisory powers as necessary to ensure the
appearance of justice). As an intermediate appellate court, we cannot properly exercise
such supervisory powers, which are reserved for the supr eme court. State v. Gilmartin ,
535 N.W.2d 650, 653 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995).