McIntosh v. State

1

Albert George McIntosh, petitioner, Appellant, v. State of Minnesota, Respondent.

No. A24-0589

Court of Appeals of Minnesota

November 25, 2024

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Harris, Judge Hennepin County District Court File No 27-CR-15-34803.

Albert G. McIntosh, Rush City, Minnesota (pro se appellant).

Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County Attorney, Minneapolis, Minnesota (for respondent).

Considered and decided by Harris, Presiding Judge; Larkin, Judge; and Smith, Tracy M., Judge.

HARRIS, Judge.

In this appeal from an order denying postconviction relief, appellant argues that the postconviction court abused its discretion by denying his claims as statutorily time- and Knaffla-barred without an evidentiary hearing. We affirm.

FACTS

In 2017, a jury found appellant Albert George McIntosh guilty of five counts of aiding and abetting robbery, burglary, and murder. The district court denied McIntosh's motion for a downward durational departure and imposed consecutive sentences on three of the counts, for a total sentence of 462 months' imprisonment. McIntosh filed a direct appeal, arguing that (1) there was insufficient evidence to corroborate the accomplices' testimony; (2) the district court provided inadequate jury instructions; and (3) McIntosh did not knowingly, intelligently, and voluntarily waive his right to testify. State v. McIntosh, No. A17-0920, 2018 WL 3014656, at *1 (Minn.App. June 18, 2018), rev. denied (Minn. Sept. 18, 2018). McIntosh also filed a pro se supplemental brief arguing in part that the district court erred by admitting various videos and text messages because they were unrelated to the crimes committed in Minneapolis but were related to a case in St. Paul where he was acquitted. Id. at *5. In June 2018, we affirmed McIntosh's convictions and concluded that the state produced sufficient evidence corroborating the testimony of his two accomplices and that McIntosh did not make any argument about how the admitted video and text message evidence from the St. Paul case prejudiced him. Id. In September 2018, the Minnesota Supreme Court denied review, and McIntosh did not file a petition for a writ of certiorari with the United States Supreme Court.

In January 2024, McIntosh filed a petition for postconviction relief. McIntosh argued that his appellate counsel was ineffective because under theories of double jeopardy and collateral estoppel the district court erred by admitting video evidence and text messages from the St. Paul case where he was acquitted. The postconviction court determined that McIntosh's claims were statutorily and procedurally barred and summarily denied relief. McIntosh appeals.

DECISION

I. The district court did not abuse its discretion by summarily denying McIntosh's petition for postconviction relief.

Under Minnesota's postconviction statutes, a person convicted of a crime may seek relief by filing a petition claiming that the conviction "violated the person's rights under the Constitution or laws of the United States or of the state." Minn. Stat. § 590.01, subd. 1(1) (2022). "The person seeking postconviction relief bears the burden of establishing by a preponderance of the evidence that his claims merit relief." Crow v. State 923 N.W.2d 2, 10 (Minn. 2019). And although the postconviction statute has been interpreted as providing broad review of criminal convictions, the petitioner must comply with the statutory and procedural requirements that limit our review. See Deegan v. State, 711 N.W.2d 89, 94 (Minn. 2006) (stating that the first review of a conviction by a postconviction court is similar in scope to a direct appeal); Carlton v. State, 816 N.W.2d 590, 601 (Minn. 2012) (concluding that the statutory two-year time limit for filing a petition for postconviction relief was intended to act as a statute of limitations).

We review the denial of a postconviction petition for an abuse of discretion. Williams v. State, 5 N.W.3d 399, 405 (Minn. 2024). "A postconviction court abuses its discretion when it has exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual findings." Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017) (quotation omitted). "Legal issues are reviewed de novo" and "we do not reverse the postconviction court's findings unless they are clearly erroneous." Id. (quotation omitted).

A. McIntosh's postconviction petition was untimely and McIntosh did not establish that an exception to the statutory two-year time limit applied.

The postconviction court determined that McIntosh's claims were statutorily barred because McIntosh filed his petition more than two years after the disposition of his direct appeal and McIntosh did not invoke the interests-of-justice exception within two years of the date the claim arose.^[1] We conclude that the postconviction court did not abuse its discretion.

A postconviction petition is statutorily time-barred if it is filed "more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court's disposition of petitioner's direct appeal." Minn. Stat. § 590.01, subd. 4(a)(1)-(2) (2022). Here, McIntosh's postconviction petition was untimely because it was filed more than five years after his direct appeal was finalized in 2018.^[2]

There are five exceptions to the two-year statutory time limit.^[3] Id., subd. 4(b) (2022). A petitioner bears the burden of establishing that an exception applies. Brocks v. State, 883 N.W.2d 602, 604 (Minn. 2016). McIntosh claims that his appeal satisfies the interests-of-justice exception, which allows the court to hear a petition for postconviction relief if the "petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice." Minn. Stat. § 590.01, subd. 4(b)(5) (2022). The interests-of-justice exception is "implicated only in exceptional and extraordinary situations." Caldwell v. State, 976 N.W.2d 131, 141 (Minn. 2022). And "the interests-of-justice referred to in subdivision 4(b)(5) relate to the reason the petition was filed after the 2 year time limit in subdivision 4(a), not the substantive claims in the petition." Id. (quoting Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012)).

McIntosh argues that the postconviction court failed to apply the correct interests-of-justice test, citing Gassler v. State, 787 N.W.2d 575 (Minn. 2010).^[4] Specifically, McIntosh argues that the postconviction court erred by not determining whether his petition was frivolous and without merit or if it was permitted to be heard even though time-barred because he raised "sub-claims," including constitutional errors and ineffective assistance of appellate counsel.^[5] We are unpersuaded.

Under the interests-of-justice exception, a claim must be brought within two years from "the date the claim arises." Minn. Stat. § 590.01, subd. 4(c) (2022). The date a "claim arises" is interpreted under an objective "knew or should have known" standard, not when a defendant subjectively realizes that they have a claim. Sanchez, 816 N.W.2d at 558-60. "'Claim' refers to an event that supports a right to relief under the asserted exception." Bee Yang v. State, 805 N.W.2d 921, 925 (Minn.App. 2011), rev. denied (Minn. Aug. 7, 2012). The determination of when an interests-of-justice claim arose to trigger the two-year time limit is a question of fact that this court reviews for clear error. Sanchez, 816 N.W.2d at 560.

Here, the postconviction court determined that McIntosh's petition was not brought within two years of the date the claim arose because his claim regarding ineffective assistance of appellate counsel would have been known at the time of his direct appeal in 2018 and noted that McIntosh raised a similar issue in his pro se supplemental brief. This finding was not clearly erroneous. At the time his direct appeal was filed, McIntosh knew or should have known what arguments his appellate counsel did and did not raise, including arguments related to collateral estoppel and double jeopardy. See Minn. R. Crim. P. 28.02, subd. 5(13) (providing that the state public defender's office must file and provide a copy of a brief to a defendant proceeding pro se or filing a supplemental brief.) McIntosh could have brought a postconviction petition alleging ineffective assistance of appellate counsel. See Sanchez, 816 N.W.2d at 560 (concluding that interests-of-justice claim based on ineffective assistance of counsel arose when the trial court informed the defendant that his appeal had not been filed because at that time the defendant knew or should have known that his attorney was ineffective for not filing an appeal). On this record, it appears McIntosh was aware that his appellate counsel did not challenge the admission of the evidence from the St. Paul case because McIntosh raised the issue in a pro se supplemental brief during his direct appeal.

McIntosh also argues that the interests-of-justice exception still applies, even though the postconviction petition was not brought within two years from the date the claim arose. This argument is also unpersuasive. McIntosh does not allege any reason why he could not discover the basis for the interests-of-justice claim earlier or could not otherwise diligently pursue his claim. See id. at 562 (concluding that, even if the two-year time limit for filing a postconviction petition under the interests-of-justice exception is subject to equitable tolling, a petitioner is not entitled...