Opinion
A21-0588
12-21-2021
Michael Carlton Lowe Sr., petitioner, Appellant, v. State of Minnesota, Respondent.
Hennepin County District Court File No. 27-CR-07-022594
Considered and decided by Johnson, Presiding Judge; Reilly, Judge; and Jesson, Judge.
ORDER OPINION
Lucinda E. Jesson Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Michael Carlton Lowe Sr., challenges the postconviction court's denial of his ninth petition for postconviction relief on the grounds that his petition was untimely and barred by the rule announced in State v. Knaffla, 243 N.W.2d 737 (Minn. 1976).
2. In February 2009, we affirmed Lowe's convictions of first-degree criminal sexual conduct, third-degree assault, and terroristic threats. State v. Lowe, No. A07-2321, 2009 WL 437493, at *1 (Minn.App. Feb. 24, 2009), rev. denied (Minn. May 27, 2009). In this direct appeal, Lowe had challenged the admission of evidence, the sufficiency of the evidence underlying his convictions, his sentence, the legality of his arrest, the failure to charge a lesser-included offense, violation of his due-process rights, prosecutorial misconduct, and the denial of his right to a speedy trial. Id. at * 1-7.
3. In May 2009, Lowe moved the district court to dismiss his convictions because he alleged that the court lacked subject-matter jurisdiction over his trial, and, one month later, he filed his first petition for postconviction relief, again challenging the sufficiency of the evidence. After the postconviction court denied relief because it determined that it had subject-matter jurisdiction over his case and because he already challenged the sufficiency of the evidence, he chose not to appeal.
4. Later in 2009, Lowe filed his second and third petitions for postconviction relief, in which he challenged his sentence and argued for plea withdrawal despite the fact that he went to trial instead of pleading guilty. In 2010, we affirmed the postconviction court's denial of Lowe's second and third petitions for postconviction relief because we concluded that his claims were procedurally barred and lacked merit. Lowe v. State, No. A09-1449, 2010 WL 1658006, at *4 (Minn.App. Apr. 27, 2010), rev. denied (Minn. July 20, 2010).
5. In June and July 2010, Lowe filed his fourth and fifth petitions for postconviction relief and challenged the constitutionality of the statutes under which he was convicted and the district court's jurisdiction over his person. After the postconviction court denied Lowe's petitions as procedurally barred, he did not appeal.
6. In August 2011, Lowe brought his sixth petition for postconviction relief and moved to correct his sentence, challenging the district court's calculation of his criminal-history score. We affirmed the postconviction court's denial of his claims as procedurally barred in an order opinion. Lowe v. State, No. A12-0392 (Minn.App. Nov. 8, 2012), rev. denied (Minn. Feb. 19, 2013).
7. In June 2013, Lowe filed his seventh petition for postconviction relief, styled as a motion to correct his sentence, challenging the district court's imposition of an aggravated sentence. The postconviction court denied Lowe's motion as procedurally barred, and we affirmed in another order opinion. Lowe v. State, No. A13-1882 (Minn.App. June 30, 2014), rev. granted (Minn. Sept. 16, 2014), ord. granting rev. vacated (Minn. May 27, 2015).
8. In September 2016, Lowe filed his eighth petition for postconviction relief, also presented in the form of a motion to correct his sentence, in which he argued that the district court violated his Sixth Amendment rights by not having the jury determine whether aggravating factors were present in his offense. Lowe did not appeal the postconviction court's denial of his seventh petition within the required timeframe.
9. In December 2020, Lowe brought the current petition for postconviction relief-his ninth-and a motion to correct his sentence. In these filings, he challenged the jury instructions at trial, his sentence, and the district court's restitution award. In March 2021, the postconviction court denied Lowe's motions because it concluded that Lowe's claims were time-barred, Knqffla-barred, and meritless.
10. We review a postconviction court's dismissal of a petition for postconviction relief for an abuse of discretion. Chavez-Nelson v. State, 948 N.W.2d 665, 671 (Minn. 2020). A postconviction court "may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case." Minn. Stat. § 590.04, subd. 3 (2020). A postconviction court does not abuse its discretion by summarily denying a procedurally-barred petition for postconviction relief. Chavez-Nelson, 948 N.W.2d at 671.
11. When a petitioner seeking postconviction relief has already appealed their conviction, appellate courts will not reconsider claims already raised on direct appeal. Knaffla, 243 N.W.2d at 741. The Knaffla rule also bars claims that the petitioner knew about, or should have known about, at the time of direct appeal. Onyelobi v. State, 932 N.W.2d 272, 278 (Minn. 2019).
12. Additionally, a petition for postconviction relief must be filed within two years of an appellate court's disposition of the petitioner's direct appeal to be timely. Minn. Stat. § 590.01, subd. 4(a)(2) (2020). Some exceptions to this rule exist, such as when the petitioner asserts that a new legal interpretation of a law is retroactively applicable to their case. Id., subd. 4(b)(3) (2020).
13. On appeal from the denial of his ninth petition for postconviction relief, Lowe argues that the district court (1) violated his constitutional rights by its instructions to the jury, (2) incorrectly calculated his criminal-history score, and (3) exceeded its legal authority by ordering him to pay restitution. The postconviction court concluded that all of Lowe's claims were time-barred and Knaffla-b&rred. Lowe argues that the postconviction court erred by dismissing his jury-instruction argument as time-barred because he asserts that, due to a new interpretation of the law by the Minnesota Supreme Court, he is entitled to challenge the jury instructions.
14. But the case that Lowe relies on to support his argument that his jury-instruction claim is not time-barred, State v. Ortega-Rodriguez, 920 N.W.2d 642 (Minn. 2018), does not entitle Lowe to challenge the jury instructions more than a decade after his trial. In Ortega-Rodriguez, the supreme court concluded that the state must prove sexual penetration to convict a defendant of first-degree criminal sexual conduct. 920 N.W.2d at 646. But this is not a "new legal interpretation" that is "retroactively applicable" to Lowe's case because here the state proved that he penetrated the victim. Minn. Stat. § 590.01, subd. 4(b)(3). Because Lowe has not met any exception to the rule requiring petitions for postconviction relief to be filed within two years of the direct appeal, the postconviction court did not abuse its discretion by denying Lowe's jury-instruction claim as time-barred.
15. In addition to his jury-instruction claim, Lowe argues that the district court erred in its calculation of his criminal-history score. Because Lowe already challenged the calculation of his criminal-history score alongside his sixth petition for postconviction relief, the claim is barred by the "law of the case" doctrine. State v. Lynch, 749 N.W.2d 318, 321 (Minn. 2008). The postconviction court correctly denied Lowe relief on this argument.
16. Finally, Lowe argues that the district court exceeded its authority by ordering that he pay restitution when the victim did not request a specific amount. But a restitution order must be challenged within 30 days of receipt of written notice of the amount of restitution. Minn. Stat. § 611A.045, subd. 3(b) (2020). Because Lowe received written notice of the amended restitution order in January 2009, his challenge to that order is untimely. Thus, the postconviction court properly denied Lowe's ninth petition.
IT IS HEREBY ORDERED:
1. The postconviction court's judgment is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.