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These opinions were released Feb. 17. They will appear in the Feb. 24 print edition of Minnesota Lawyer.

Court of Appeals Digest: Feb. 17

Unpublished Civil Opinions

Adoption – Placement

In this proceeding to adopt a minor child to whom parental rights had been terminated, appellants argued that the District Court erred by summarily dismissing their adoption petition. In dismissing appellants’ adoption petition, the District Court concluded that “[u]nder the plain language of [section] 260C.607, the adoption petition of [appellants] should not have been filed at all” because “[appellants] have not signed an adoption placement agreement,” “[t]hey are not adopting parents as defined by the statute,” and “Anoka County Social Services did not place the child with [appellants] and objects to their adoption petition.” The Court of Appeals held that the District Court’s conclusion was correct under the plain language of sec. 260C.607, subd. 5(a). Appellants were not authorized to file a petition to adopt the child because the child had not been placed for adoption with appellants by the responsible social services agency. Affirmed.

A13-1005 In re Petition of M.M.L. (Anoka County)

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Arbitration – Arbitrator’s Authority

Appellants challenged the District Court’s confirmation of an arbitration award arguing that the arbitrator exceeded his authority in several respects. Appellants argued that the arbitrator exceeded his authority by (1) requiring them to obtain the city’s approval of the plan, (2) ordering a repair that disproportionately burdens their property without appropriate compensation, (3) denying their request to supplement the record in response to the plan, and (4) declining to award them costs and disbursements and ordering them to pay respondent’s arbitration fees and expenses. The Court of Appeals reviewed each argument and held that appellants did not establish a clear violation of the arbitrator’s authority. Affirmed.

A13-1137 Nassar v. U.S. Home Corp. (Hennepin County)

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Deeds – Ambiguity

In this property dispute, appellants argued that the District Court erred when it interpreted a deed to respondents as conveying property that was later allegedly conveyed to appellants. The Court of Appeals held that the deed is ambiguous and the District Court did not clearly err by resolving the deed’s ambiguity in favor of respondents. Affirmed.

A13-1119 Blomker v. Magedanz (Stearns County)

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Domestic Relations – Child Custody; Modification

Formerly married parties appellant and respondent divorced in 2006 and have been disputing the custody arrangement for their son since 2008. Appellant challenged the District Court’s decision to grant respondent sole legal custody and its decision to restrict his parenting time. He contended that the District Court abused its discretion by not granting him a continuance to conduct an independent evaluation of his son’s allegations of sexual abuse, by not allowing a second deposition of the guardian ad litem during a break in the custody proceeding, by not removing the guardian ad litem, by modifying the custody order to grant sole legal custody to respondent, and by restricting his parenting time. The Court of Appeals held that the District Court did not exceed its discretion by denying appellant’s motions or by modifying the custody order. But it remanded because the District Court did not specify its restrictions on parenting time, preventing the Court from assessing whether it abused its discretion in setting the restrictions. Affirmed in part and remanded.

A13-1139 Dressendorfer v. Dressendorfer (Crow Wing County)

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Hearsay – Prejudicial Error

In this appeal from an order appointing respondent as appellant’s limited guardian and limited conservator, appellant argued that the District Court abused its discretion by admitting an emergency-room report into evidence and by appointing respondent as his limited guardian and limited conservator. The Court of Appeals noted that even if the emergency-room report was inadmissible, appellant did not demonstrate any prejudicial error because other evidence in the record supported the District Court’s ultimate findings that appellant meets the criteria for appointment of a limited guardian and a limited conservator. Affirmed.

A13-0585 In re Guardianship/Conservatorship of Berge (Chippewa County)

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Personal Jurisdiction – Service

In these consolidated appeals, the appellant entities and one individual argued that the District Court erred by denying their motions to dismiss for lack of personal jurisdiction and for failure to state a claim. Respondent moved to join appellant entities and one individual to this dissolution action as third-party respondents. Respondent alleged that the entities failed to transfer half of husband’s interest to her as required by the judgment and decree and requested that the District Court join them and another to the action so that she could obtain complete relief pursuant to Minn. R. Civ. P. 19.01. Respondent did not serve any of the potential third-party respondents with a summons or complaint. The District Court concluded that service of a summons was not necessary to invoke its jurisdiction because respondent was not seeking to commence a civil action against them. The Court of Appeals held that respondent’s failure to comply with the Minnesota Rules of Civil Procedure by not serving the entities with a summons and complaint resulted in a lack of personal jurisdiction. Reversed.

A13-1076, A13-1329 Vlahos v. Vlahos (Hennepin County)

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Securities Sales – Unregistered Securities

Relators challenged the determination by respondent commissioner of commerce that relators offered and sold unregistered securities in violation of Minn. Stat. sec. 80A.49 and that they misled investors in violation of Minn. Stat. sec. 80A.68. The ALJ concluded without discussion that relators “failed to demonstrate that their securities were exempt from registration under Minn. Stat. sec. 80A.45 through 47.” The commissioner likewise concluded without discussion that relators “did not demonstrate that the securities that they offered and sold were exempt from registration under Minn. Stat. sec. 80A.44 through 47.” Relators argued that the commissioner’s conclusion is erroneous because they presented sufficient evidence to meet their burden of establishing an exemption. The Court of Appeals held that, although relators pointed to some evidence in support of their claim, they largely failed to present any evidence on the required factors. Affirmed.

A13-0894 In re Geckler (Office of Admin. Hearings)

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Unemployment Benefits – Timely Appeals

Relator challenged the unemployment law judges’ (ULJs’) decisions to dismiss relator’s administrative appeals because they were not filed within the statutory 20-day appeal period. The Court of Appeals noted that the appeal deadline is absolute and unambiguous, and a ULJ must dismiss an untimely appeal from an eligibility determination for lack of jurisdiction. Affirmed.

A13-0787 Pederson v. Ecumen (Dep’t of Emp’t & Econ. Dev.)

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Published Criminal Opinions

Postconviction Relief – Evidentiary Hearings

Appellant, who was convicted of criminal sexual conduct for sexually abusing his daughter for several years beginning when she was nine, filed a petition seeking to withdraw his guilty plea. He alleged that the plea was not knowing, voluntary, or intelligent. The petition included no facts, ostensibly because appellant’s counsel was unable to meet with him before filing the petition, but it promised to provide them in a forthcoming affidavit. The postconviction court dismissed the petition because it did not allege facts that provide grounds for relief. The Court of Appeals held that a postconviction court does not abuse its discretion by denying a petition for postconviction relief without an evidentiary hearing when the petition does not plead any facts which, if true, would support the relief sought, even when the petition promises that a later affidavit will include the relevant facts. Affirmed.

A13-1040 Matakis v. State (Crow Wing County)

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Unpublished Criminal Opinions

Controlled Substance Sale – Sufficiency of the Evidence

Appellant challenged his conviction of third-degree sale of controlled substance, arguing that the evidence was insufficient to support his conviction. Appellant argued that the evidence was insufficient to prove that he was the man who sold crack cocaine to an officer. Holt argued that the officer’s identifications of him were not reliable because another officer found no drugs when she searched him, the officers gave inconsistent testimony about the clothing appellant wore, and reasonable doubt exists about the officer’s identification of him because the officer interacted with appellant while appellant was with a group of similar men. The Court of Appeals held that appellant’s arguments were unpersuasive. Affirmed.

A13-0334 State v. Holt (Hennepin County)

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Hearsay – Residual Exception

Appellant challenged his convictions of first- and second-degree criminal sexual conduct, raising five separate issues. He asserted that the District Court plainly erred in its response to the jury’s questions during its deliberations and by admitting inadmissible hearsay evidence; the evidence was not sufficient to sustain his first-degree criminal-sexual-conduct conviction; the prosecutor committed prejudicial misconduct; and the District Court abused its discretion by excluding evidence of the victim’s past allegations of sexual abuse. The Court of Appeals concluded that the District Court did not plainly err in communicating with the jury and in admitting hearsay evidence. Further, the state presented sufficient evidence to convict appellant of first-degree criminal sexual conduct and appellant’s other arguments were unavailing. Affirmed.

A13-0181 State v. Horton (Chippewa County)

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Ineffective Assistance of Counsel – ‘Padilla’

Appellant challenged the District Court’s denial of his petition for postconviction relief. Appellant sought to withdraw his guilty plea, claiming that (1) he received ineffective assistance of counsel, and (2) his guilty plea was not intelligent, accurate, or voluntary. Appellant argued that because he pleaded guilty to “criminal sexual conduct in the third degree, an ‘operation predator’ conviction/offense,” he clearly faced mandatory deportation under federal law. Therefore, his counsel could have read the applicable statutes and determined that he was subject to automatic removal. The Court of Appeals disagreed, noting that unlike the controlled substance offense pleaded to in Padilla, the deportation consequences of third-degree criminal sexual conduct are not explicit, and it previously remanded this case to supplement the District Court record regarding the pre-plea conversations between appellant and his attorney. In addition, appellant’s plea attorney sought advice from an immigration attorney, who stated that there was a likelihood that appellant would be deported. Affirmed.

A13-0717 Glushko v. State (Hennepin County)

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Pretrial Identification – Show-Up Procedure

Appellant challenged the admission of evidence stemming from a pretrial-identification procedure, arguing that the evidence violates his right to due process. The Court of Appeals held that the totality of the circumstances showed the witness’ identification had adequate independent origin, and noted that it was not concerned that the techniques employed by the police influenced the witness’s identification. Affirmed.

A13-1306 In re Welfare of M.F. (Hennepin County)

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Sentencing – Criminal History Score

On appeal from his conviction of second-degree aggravated robbery and a 39-month sentence, appellant argued that his criminal history score improperly included a 2008 conviction for fifth-degree assault that had been sentenced as a petty misdemeanor, thereby resulting in a miscalculation of his criminal history score. Appellant also filed a pro se supplemental brief claiming that the evidence was insufficient to sustain his conviction. Appellant contended that because it appeared that the July 2008 fifth-degree assault “was sentenced as a petty misdemeanor, not a misdemeanor …  it should not have been assigned a unit for criminal history purposes.” The Court of Appeals found this argument without merit, noting that the plea petition provided that the offense was a misdemeanor, and that pursuant to a plea agreement appellant would be sentenced to 30 days in jail with credit for 30-days time served. Affirmed.

A13-0465 State v. Wilkes (Hennepin County)

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Sentencing – Criminal History Score

Appellant argued that the District Court abused its discretion by denying his motion to reduce his sentence under Minn. R. Crim. Pro. 27.03. He claimed that he was sentenced using the incorrect criminal history score and thus was deprived of his plea agreement’s bottom-of-the-box sentence. The Court of Appeals held that, because appellant agreed to his current sentence as part of a plea agreement involving five other cases and his sentence, after correcting his criminal history score, was within the presumptive range of the sentencing guidelines. Affirmed.

A13-0956 Urista v. State (Scott County)

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Sentencing – Upward Durational Departure

Following her conviction of second-degree murder, appellant argued that the District Court abused its discretion by imposing a sentence with an upward durational departure on the basis of a violation of the victim’s zone of privacy. She contended that in order to violate another’s privacy, a defendant must deliberately trespass into the victim’s zone of privacy and the victim must be likely to experience future fear in his home. The Court of Appeals could not conclude that the victim gave up all expectation of privacy in his own home when he opened the door and allowed appellant to enter. The victim did not invite appellant to his home, did not know that she was there to confront him, and did not know that she had a loaded handgun. Their interaction before the murder was limited to an argument. Appellant shot the victim in his own home, killing him. On this record, the Court concluded that the District Court acted within its discretion in imposing an upward departure from the presumptive sentence on the basis of a zone-of-privacy violation. Affirmed.

A13-0443 State v. Inselman (Hennepin County)

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‘Spreigl’ Evidence – Common Scheme or Plan

On appeal from his convictions of two counts of first-degree criminal sexual conduct, appellant argued that the District Court erred by (1) improperly admitting Spreigl evidence and (2) entering judgments of conviction on both counts even though they arose from a single behavioral incident. The Court of Appeals held that, because the two incidents were markedly similar, the Spreigl evidence was relevant to the prosecution’s case, and that the fourth procedural safeguard in rule 404(b) was satisfied. However, it reversed in part, and remanded, directing the District Court to vacate one of the two convictions and issue an amended warrant of commitment. Affirmed in part, reversed in part, and remanded.

A13-0575 State v. Welton (Hennepin County)

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Traffic Stops – Traffic Violations

Appellant challenged his convictions of first-degree driving while impaired and driving in violation of a restricted license, arguing that the officer did not have a legitimate basis to stop his vehicle. The District Court based its decision against suppression exclusively on its finding that the deputy initially observed appellant fail to make a complete stop at a stop sign. Appellant challenged the credibility of the deputy’s testimony. The Court of Appeals noted that it defers to the District Court’s credibility determinations and the District Court expressly found the deputy’s testimony on this point credible. This violation supported the stop at issue. Affirmed.

A13-1374 State v. Merges (Wright County)

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Urine Tests – Warrantless Collection

On appeal from her conviction of first-degree driving while impaired (refusal to submit to chemical testing), appellant challenged the District Court’s denial of her motion to dismiss. The issue here was whether the state’s warrantless attempt to collect a urine sample from appellant was unconstitutional and whether the collection process was constitutionally unreasonable. The Court of Appeals concluded that appellant consented to the urine sample, noting that the record did not suggest that appellant was coerced into providing the sample. Affirmed.

A12-2267 State v. Taylor (Hennepin County)

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