Rhonda Renee Jones, 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This opinion will be unpublished and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
A19-0976

Rhonda Renee Jones, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 13, 2020
Affirmed
Florey, Judge

St. Louis County District Court
File No. 69DU-CR-14-3177

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

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

Mark S. Rubin, St. Louis County Attorney, Jonathan D. Holets, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Considered and decided by Cleary, Presiding Chief Judge; Larkin, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
This is an appeal from the district court’s summary denial of appellant’s petition for
postconviction relief. Appellant sought resentencing on a theory of ineffective assistance
of counsel. The district court summarily denied appellant’s petition as both untimely and

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substantively insuffi cient to support an ineffective -assistance-of-counsel claim. We
affirm.
FACTS
In 2014, appellant Rhonda Jones was charged with a controlled-substance crime in
the first degree. Jones pleaded guilty pursuant to a plea agreement and, in July 2015, was
sentenced to the presumptive 158 months imprisonment. Three months later, Jones filed a
direct appeal with this court. Thereafter, Jones was appointed appellate counsel , who
advised her to voluntarily withdraw the pending appeal because she did not seem to have
a viable claim to appeal . In February 20 16, Jones filed a signed notice of voluntary
dismissal, and this court dismissed her appeal. Over three years later, in April 2019, Jones
filed the petition for postconviction relief at issue in the instant appeal.
Jones’s petition asserted ineffective a ssistance of counsel, pointing exclusively to
her appellate counsel’s advice to withdra w her direct appeal. She argued that this was
ineffective assistance because she filed the not ice to dismiss approximately three months
prior to the effective date of the Drug Sentencing Reform Act (DSRA). Jones asserted in
her petition that her presumptive sentence under the DSRA would have been less than that
which she received, and that she would have been eligible for re -sentencing had she not
dismissed her appeal. Her petition cites the Minnesota Supreme Court’s holding in Kirby
that criminal defendants may be resentenced under the DSRA if their cases were pending
when it went into effect. Therefore, she argued, she was prejudiced by her attorney’s
advice to dismiss her appeal—thereby effectively finalizing her case —shortly before the
DSRA’s effective date. The district court denied Jones’ postconviction petition without an

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evidentiary hearing, finding it both untimely filed and substantively deficient. This appeal
followed.
D E C I S I O N
This court reviews the denial of a postconviction petition for an abuse of discretion.
Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015). “We review legal issues de novo, but
on factual issues our review is limited to whether there is sufficient evidence in the record
to sustain the postconviction court’s findings.” Id. (quotation omitted). Claims of
ineffective assistance of counsel present mixed questions of law and fact and therefore are
reviewed de novo. State v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012).
The district court denied Jones’s petition, in part, on the basis that it was untimely.
The deadlines applicable to postconviction petitions are provided for in Minn. Stat.
§ 590.01, subd. 4 (2018). Subdivision 4(a) requires that petitions for postconviction relief
be filed within two years of the dismissal of direct appeal or, if no appeal is filed, the entry
of judgment or sentence. Id., subd. 4(a). Subdivision 4(b) enumerates five exceptions to
the two-year deadline in 4(a) . Id., subd. 4(b); Hannon v. State, 889 N.W.2d 789, 792-93
(Minn. 2017). These exceptions, however, are subject to their own statute of limitations:
subdivision 4(c) requires that the petition invoking a subdivision 4(b) exception must be
brought “within two years of the date the claim arises.” Minn. Stat. § 590.01, subd. 4(c).
A claim arises, for the purposes of the subdivision 4(c) statute of limitations , “when the
petitioner knew or should have known that he had a claim.” Hannon, 889 N.W.2d at 793
(quotation omitted) . We turn first to the issues concerning the timeliness of Jones’s
petition.

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Jones concedes that h er petition was filed after the standard two-year deadline
provided in subdivision 4(a) . She argues, however, that one of the exceptions should
apply—namely, that which permits a postconviction petition where “the petitioner
established to the satisfaction of the court that the petition is not frivolous and is in the
interest of justice.” Minn. Stat. § 590.01, subd. 4(b)(5). As for the two-year limitation on
the availability of this exception, Jones argues that her claim did not arise until July 26 ,
2017—when the Minnesota Supreme Court released its decisions in State v. Kirby , 899
N.W.2d 485 ( Minn. 2017) and State v. O tto, 899 N.W.2d 501 ( Minn. 2017). Her claim
arose from these decisions, she argues, because the court held that , per the amelioration
doctrine, criminal defendants may avail themselves of the new sentencing rules in the
DSRA if their cases were not finalized at the time it was put into effect. Jones asserts that
her ability to be resentenced under the DSRA—an ability that went unrealized due to her
attorney’s ineffective assistance —was confirmed only after the Kirby amelioration rule
was announced. She argues that since her claim arose with the Kirby decision in July 2017,
her petition—filed April 2019—is within the exception-specific two-year limitation under
subdivision 4(c). The state challenges the applicability of any exception, arguing that Jones
failed to assert any basis for a time exception
We first note that Jones did not raise this, or any, arg ument with the district court
regarding the exceptions to the standard two-year limitation. Because the state also failed
to raise the time limits in s ection 590.01, the district court briefly considered the
subdivision 4(b) exceptions on its own initiative and concluded that Jones’s petition was
untimely. Weitzel v. State, 883 N.W.2d 553, 560 (Minn. 2016) (“[W]hen the State fails to

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raise the time limits set forth in section 590.01, subdivision 4(a) and (c), the postconviction
court has the discretion to consider the time limits on its own motion in order to control its
docket.”). Because Jones argues that an exception to the deadline applies for the first time
on this appeal, she has forfeited this issue. State v. Bakken, 871 N.W.2d 418, 422 (Minn.
App. 2015) (“Generally, litigants are bound on appeal by the theory or theories upon which
the action was actually tried below, and an appellate court will not consider matters not
argued to and considered by the district court.” (citation omitted)), aff’d, 883 N.W.2d 264
(Minn. 2016). Even if Jones had not forfeited this argument , her petition would still be
untimely.
The Minnesota Supreme Court has said that the interest-of-justice exception is to be
applied in exceptional cases only. Odell v. State, 931 N.W.2d 103, 106 (Minn. 2019) (“A
claim under this exception . . . applies only in exceptional and extraordinary situations.”).
Jones identifie s a variety of factors that prior Minnesota cases have considered when
deciding whether the interest -of-justice exception applies. However, a requirement to
which she does not refer is that “[a] claim under this exception must relate to an injustice
that delayed the filing of the petition , not to the substantive merit of the petition.” Id.
(emphasis added). The only injustice Jones alleges concerns her appellate counsel’s advice
to withdraw her appeal shortly before the DSRA went into effect. Even if th is were an
injustice, it does not relate to, much less justify, Jones’s untimely filing.
Moreover, Jones agrees that the standard time limit began running with the dismissal
of her appeal on February 25, 2016, and that it therefore expired two years later—February
25, 2018. Even if her claims did arise from the Kirby and Otto decisions, those opinions

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were released on July 26, 2017, and Jones offers no reason for her failure to file during the
nearly seven -month period between then and the expira tion of the standard two-year
deadline—much less allege an injustice that could potentially qualify her petition for the
extraordinary exception to that statute of limitations. That her claims may have arisen from
Kirby and Otto is immaterial, as this is only relevant to the time-bar in subdivision 4(c)—
that which applies to petitions accepted under one of the enumerated exceptions —not to
the standard 4(a) deadline to which those exceptions apply in the first place.
Even if we were to assume that Jones has a meritorious ineffective-assistance claim,
that her appellate counsel’s conduct amounts to an injustice, that her claim did in fact arise
from the Kirby and Otto decisions, and that this is otherwise an “exceptional and
extraordinary situation,” the fact remains that she had over six months to file her petition
under the standard timeframe in subdivision 4(a) , failed to do so, and has not alleged an
injustice that might justify that failure and qualify her petition for the interest -of-justice
exception. Therefore, had Jones argued this issue below and preserved it for appeal, we
still would affirm the district court’s dismissal of her petition as untimely.
Because we agree with the district court that Jones’s petition was untimely, we need
not consider the merits of Jones’s ineffective-assistance-of-counsel claim.
Affirmed.