                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0032

                           Ky Antoinette Word, petitioner,
                                    Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                               Filed October 13, 2015
                                      Affirmed
                                   Peterson, Judge

                            Dakota County District Court
                            File No. 19HA-CR-08-2857

Cathryn Middlebrook, Chief Appellate Public Defender, Katie Conners, Carol Ann
Comp, Assistant Public Defenders, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

      Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and

Stoneburner, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

PETERSON, Judge

       Appellant argues that the district court abused its discretion when it denied her

postconviction petition seeking relief from her 2009 controlled-substance conviction and

refused her request for an evidentiary hearing. We affirm.

                                        FACTS

       On August 2, 2008, a Burnsville police officer stopped appellant Ky Antoinette

Word’s car after checking the registration and discovering that the car’s owner had an

outstanding warrant. The police arrested Word and searched her car. During the search,

they discovered the type of pipe commonly used to smoke cocaine, and there was a white

residue on the pipe. A preliminary test revealed that the white residue showed a trace of

cocaine. A later test by the St. Paul Police Department Crime Lab (SPPDCL) confirmed

that the residue was cocaine.

       Word was charged with fifth-degree controlled-substance crime and possession of

drug paraphernalia. On September 1, 2009, while represented by counsel, she pleaded

guilty to fifth-degree controlled-substance crime, and the paraphernalia charge was

dismissed. The district court stayed adjudication of the conviction under Minn. Stat.

§ 152.18, subd. 1 (2008), and placed Word on probation for three years. After Word

violated probation in 2010, the district court revoked the stay of adjudication, and, on

October 19, 2010, entered a judgment of conviction and stayed imposition of sentence on

the condition that Word serve 30 days in jail. Word admitted to another probation

violation in 2012; the district court again stayed imposition of sentence on the condition


                                            2
that Word serve 45 days in jail. Word’s sentence was executed and she was discharged

from probation on February 13, 2013.

       On July 18, 2014, Word petitioned the district court for postconviction relief,

asking that she be permitted to withdraw her guilty plea. Word argued that systemic

problems at the SPPDCL that led to the loss of its accreditation in 2012 provided a basis

for postconviction relief.     The district court concluded that Word’s postconviction

petition was untimely and denied the petition without holding an evidentiary hearing.

This appeal followed.

                                       DECISION

       Under the postconviction-relief statute,

              a person convicted of a crime, who claims that . . . the
              conviction obtained or the sentence or other disposition made
              violated the person’s rights under the Constitution or laws of
              the United States or of the state . . . may commence a
              proceeding to secure relief by filing a petition in the district
              court in the county in which the conviction was had to vacate
              and set aside the judgment and to discharge the petitioner or
              to resentence the petitioner or grant a new trial or correct the
              sentence or make other disposition as may be appropriate.

Minn. Stat. § 590.01, subd. 1(1) (2014). The petitioner has the burden to prove the facts

alleged in the postconviction petition by a fair preponderance of the evidence. Minn.

Stat. § 590.04, subd. 3 (2014). “To meet that burden, a petitioner’s allegations must be

supported by more than mere argumentative assertions that lack factual support.” Powers

v. State, 695 N.W.2d 371, 374 (Minn. 2005).

       The postconviction court denied Word’s petition because it concluded that the

petition is barred by the statute of limitations.


                                               3
                        We review a denial of a petition for postconviction
                relief, as well as a request for an evidentiary hearing, for an
                abuse of discretion. A postconviction court abuses its
                discretion when its decision is based on an erroneous view of
                the law or is against logic and the facts in the record.

Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation and citations omitted). We

review issues of law de novo and we examine “whether the postconviction court’s

findings are supported by sufficient evidence.” Leake v. State, 737 N.W.2d 531, 535

(Minn. 2007); see also Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (noting that

appellate courts “extend a broad review of both questions of law and fact” when

reviewing postconviction proceedings (quotation omitted)).

         Under the postconviction statute, “[n]o petition for postconviction relief may be

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) (2014).1 Word does not claim that she

filed her petition within the two-year limitations period. Instead, she argues that two

exceptions to the two-year limit apply to her petition.

         The postconviction statute contains five exceptions to the two-year limitations

period. Minn. Stat. § 590.01, subd. 4(b) (2014). The question whether an exception

permits Word’s postconviction petition to be heard is a separate question from whether

the substantive claims in Word’s petition entitle her to relief. Gassler v. State, 787

N.W.2d 575, 582 (Minn. 2010).



1
    Because Word did not file a direct appeal, clause (2) does not apply to her case.

                                               4
       Under the statute, a petition may be filed after the two-year limitations period if

                       (2) the petitioner alleges the existence of newly
              discovered evidence, including scientific evidence, that could
              not have been ascertained by the exercise of due diligence by
              the petitioner or petitioner’s attorney within the two-year time
              period for filing a postconviction petition, and the evidence is
              not cumulative to evidence presented at trial, is not for
              impeachment purposes, and establishes by a clear and
              convincing standard that the petitioner is innocent of the
              offense or offenses for which the petitioner was convicted;
              . . . or

                      (5) 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).

       Newly Discovered Evidence

       Based on the premise that the two-year limitations period began running on

September 1, 2009, when she received a stay of adjudication, Word argues that “[t]he

evidence about the [SPPDCL] is newly discovered evidence that did not come to light

until July 2012, after the two year time bar had passed.” But, after briefs were submitted

and oral arguments were presented to this court in this case, the supreme court held that

“when an offender receives a stay of adjudication under Minn. Stat. § 152.18, subd. 1,

there is no judgment of conviction or sentence under Minn. Stat. § 590.01, subd.

4(a)(1),” and the two-year statute of limitations for filing a petition for postconviction

relief began to run “only after the stay was revoked, [the offender] was sentenced, and the




                                              5
district court entered a judgment of conviction.” Dupey v. State, 868 N.W.2d 36, 41

(Minn. 2015).2

       When Word pleaded guilty on September 1, 2009, she received a stay of

adjudication. On October 19, 2010, the stay was revoked, judgment of conviction was

entered, and Word was sentenced. Consequently, under Dupey, the two-year period for

filing a petition for postconviction relief began running in October 2010 and ended in

October 2012. Thus, when the evidence about the SPPDCL came to light in July 2012,

there were still three months remaining in the two-year limitations period, and, by the

exercise of due diligence, the evidence could have been ascertained by Word or her

attorney during the two-year limitations period.

       Furthermore, even if the two-year period for filing a postconviction petition had

begun to run on September 1, 2009, when Word received a stay of adjudication, we are

not persuaded that the exception for newly discovered evidence would apply. Under

Minn. R. Crim. P. 9.01, subd. 1(4)(a), the prosecutor must, at the defense’s request,

disclose the results of scientific tests. And, under Minn. R. Crim. P. 9.01, subd. 1(4)(b),

the prosecutor must allow a defendant to conduct reasonable tests, or, if an initial test


2
   The postconviction court’s decision was based on the premise that the two-year
limitations period began running on September 1, 2009, when Word pleaded guilty and
received a stay of adjudication. We will not reverse a correct decision simply because it
is based on incorrect reasons. See Kahn v. State, 289 N.W.2d 737, 745 (Minn. 1980)
(civil case). In an opinion released on October 27, 2014, this court held that a stay of
adjudication triggers the two-year limitations period under Minn. Stat. § 590.01, subd.
4(a)(1), for filing a postconviction petition. Dupey v. State, 855 N.W.2d 544, 546 (Minn.
App. 2014) rev’d, 868 N.W.2d 36 (Minn. 2015). This court’s opinion, which was
reversed by the supreme court, could not have affected Word’s decision to file her
petition because the opinion was released after Word filed her petition.

                                            6
might preclude any further tests, the prosecutor must give the defendant notice and

opportunity so that a qualified expert may observe the initial test. Finally, under Minn.

R. Crim. P. 9.01, subd. 2(1), a defendant may bring a motion asking the district court to

require the prosecutor “to assist the defendant in seeking access to specified matters

relating to the case that are within the possession or control of an official or employee of

any governmental agency.”       Matters relating to Word’s case include the laboratory

procedures at the SPPDCL.

       In an August 8, 2008 demand for disclosure, Word demanded disclosure of all

matters set forth in rule 9.01.    The demand for disclosure also requested in-person

testimony of all analysts who performed tests, the results of which the state intended to

introduce as evidence at trial. It is not clear from the record whether the state made the

disclosures that Word demanded, but the transcript for Word’s guilty-plea hearing

demonstrates that, instead of challenging the state’s evidence, which she had a right to

do, Word gave up her right to challenge the evidence when she pleaded guilty. Word has

not shown that the discovery procedures available to her under rule 9.01 could not have

been used to ascertain the deficiencies at the SPPDCL within two years after she received

a stay of adjudication. See Roberts v. State, 856 N.W.2d 287, 291 (Minn. App. 2014) (on

similar facts, denying postconviction petition for failure to exercise due diligence),

review denied (Minn. Jan. 28, 2015).

       Also, the evidence about deficiencies at the SPPDCL did not specifically pertain

to the testing of the residue on the pipe found in Word’s car and could only be used for

impeachment purposes. See Pippitt v. State, 737 N.W.2d 221, 227-28 (Minn. 2007)


                                             7
(stating that evidence that attacks the credibility of trial testimony is impeaching in nature

and does not provide a basis for a new trial). Finally, the SPPDCL evidence does not

clearly and convincingly establish that Word was innocent of the offense for which she

was convicted.     “[T]o satisfy the newly-discovered-evidence exception, the newly

discovered evidence must establish actual innocence. Actual innocence is more than

uncertainty about guilt. Instead, establishing actual innocence requires evidence that

renders it more likely than not that no reasonable jury would convict.” Roberts, 856

N.W.2d at 292 (quotation omitted). The SPPDCL evidence showed that there were

deficiencies in its testing procedures, but it did not establish actual innocence by showing

that the residue on the pipe found in Word’s car was not cocaine. The newly-discovered-

evidence exception does not apply to Word’s petition.

       Interests of Justice

       The supreme court has “made clear” that “the interests-of-justice referred to in

[Minn. Stat. § 490.01,] 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.”

Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012). “In other words, the interests-of-

justice exception is triggered by an injustice that caused the petitioner to miss the primary

deadline in subdivision 4(a), not the substance of the petition.” Id.

       Word argues that the reason she did not file a petition during the two-year

limitations period is that the evidence about the SPPDCL was not available until July

2012. But under Dupey, the end of the limitations period in subdivision 4(a) did not

occur until October 2012, which means that when the evidence came to light in July


                                              8
2012, Word still had until October 2012 to file her petition. Thus, the fact that the

evidence was not available until July 2012 did not cause Word to miss the deadline in

subdivision 4(a).

          Furthermore, even if the two-year period for filing a postconviction petition had

begun to run on September 1, 2009, when Word received a stay of adjudication, we are

not persuaded that the interests-of-justice exception would apply.        In order for the

interests-of-justice exception to apply, Word must establish that her “petition is not

frivolous and is in the interests of justice.” Gassler, 787 N.W.2d at 585-86. “A petition

is frivolous if it is perfectly apparent, without argument, that the petition is without

merit.” Id. at 586. It is perfectly apparent that Word’s argument that the evidence about

the SPPDCL was not available until July 2012 is without merit. As we have already

discussed, the discovery procedures available to Word under Minn. R. Crim. P. 9.01

could have been used to discover the deficiencies at the SPPDCL, but, instead of using

those procedures, Word waived her right to challenge the state’s evidence and pleaded

guilty.     Consequently, the interests-of-justice exception does not apply to Word’s

petition.

          Because Word did not file her petition within the two-year limitations period

under Minn. Stat. § 590.01, subd. 4(a)(1), and none of the exceptions to the two-year

limitation under Minn. Stat. § 590.01, subd. 4(b), applies to Word’s petition, the

postconviction court did not abuse its discretion by denying the petition as untimely

without holding an evidentiary hearing.

          Affirmed.


                                              9
