Opinion
A23-0787
12-13-2023
Mario Pedro Moreno, petitioner, Appellant, v. State of Minnesota, Respondent.
Faribault County District Court File No. 22-CR-16-499
Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and Reyes, Judge.
ORDER OPINION
FRANCIS J. CONNOLLY JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In 2010, appellant Mario Moreno, now 53, moved into a home with L.C. and her seven-year-old daughter, A.P. He moved out in 2014. In 2016, A.P., then 13, told L.C. that appellant had "hurt her" and answered in the affirmative when L.C. asked if appellant had touched her and raped her.
2. L.C. reported the abuse to the police.
3. During an interview with a child-protection specialist, A.P.: (1) disclosed sexual abuse, vaginal penetration, and anal penetration; (2) identified appellant by name as the perpetrator; (3) said the abuse occurred from when she was seven until she was twelve, about every other day, at her home; and (4) used anatomical drawings to describe the nature of the abuse.
4. Appellant was charged with three counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2014).
5. A.P. testified at appellant's trial. Her testimony was consistent with her prior interview, and the district court found her testimony more credible than appellant's testimony denying the sexual conduct.
6. Appellant was convicted of three counts of first-degree criminal sexual conduct and sentenced to 234 months in prison on the first count, 360 months in prison on the second count, and 360 months in prison on the third count, all concurrent.
7. On direct appeal, this court affirmed appellant's conviction, the denial of his motion for a new trial, and his sentence in State v. Moreno, A18-1534, 2019 WL 3410036 (Minn.App. July 29, 2019), rev. denied (Minn. Oct. 15, 2019) (Moreno I).
8. The district court denied appellant's subsequent petition motion for postconviction relief and this court affirmed, rejecting appellant's claims of ineffective assistance of trial and appellate counsel as Knaffla-barred and lacking in merit, in Moreno v. State, A21-1157, 2022 WL 997855 (Minn.App. Apr. 4, 2022) (Moreno II).
9. In 2023, appellant filed a "Plea to the Jurisdiction," which the district court construed as a second petition for postconviction relief. The district court and denied relief in an order that rejected appellant's arguments that the prosecution improperly amended the complaint.
10. Appellant challenges the district court's denial of relief. Respondent State of Minnesota takes no part in this appeal; and we proceed under Minn. R. Civ. App. P. 142.03.
11. Appellant argues first that the district court lacked jurisdiction, but does not explain why a Minnesota court lacks jurisdiction over a crime prosecuted under Minnesota law and committed in Minnesota. Having failed to brief this argument, appellant has waived it. See Clark v. Peterson, 741 N.W.2d 136, 139 n.1 (Minn.App. 2007) ("Failure to brief an issue for this court waives the issue.")
12. Appellant also argues that he was not properly convicted under Minn. Stat. § 609.342, subd. 1(a), because Minn. Stat. § 609.342, subd. 1(a), under which he was charged, contains the word "act," so the state was "limited to proof of a single act" but provided proof of multiple acts to obtain his conviction, and the Conclusions of Law refer to his acts, not his act. Appellant provides no legal support for his view that the Conclusions of Law must exactly reproduce the language of the statute of conviction.
13. Moreover, this court has already held that "the district court properly convicted and sentenced [appellant] on all three counts of first-degree criminal sexual conduct," Moreno I, 2019 WL 3410036 at *7, and that holding is now law of the case and bars any further challenge to appellant's conviction. See Lynch v. State, 749 N.W.2d 318, 321 (Minn. 2008) ("Because on direct appeal we explicitly considered, addressed, and made a holding regarding [the defendant's] current postconviction claim, we conclude that . . . the claim is barred by the doctrine of law of the case.") (quotation omitted).
14. Finally, appellant argues that "[he] was deprived of his statutory right to appeal because his appellate counsel provided ineffective assistance," but this court already rejected that argument in Moreno II, 2022 WL 997855 at *3. Again, law of the case bars appellant's argument. See Lynch, 749 N.W.2d at 321.
IT IS HEREBY ORDERED:
1. The district court's order 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.