                        This opinion will be unpublished and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
                                   A14-0822

                         Phillip Anthony Roberts, petitioner,
                                     Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                                Filed March 9, 2015
                                      Affirmed
                                   Stauber, Judge

                            Ramsey County District Court
                               File No. 62CR087663

Cathryn Middlebrook, Chief Appellate State Public Defender, Carol Comp, Special
Assistant State Public Defender, St. Paul, Minnesota (for appellant)

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

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Hooten, Judge.
                          UNPUBLISHED OPINION

STAUBER, Judge

       On appeal from the denial of his postconviction petition, appellant argues that the

district court abused its discretion by concluding that the petition was time-barred and by

denying his request for an evidentiary hearing. We affirm.

                                           FACTS

       In July 2008, appellant Phillip Anthony Roberts was charged with one count of

violation of the controlled-substance law in the third-degree: sale of cocaine. The complaint

alleged that on May 20, 2008, appellant sold to an undercover police officer for $100 six

bags of a suspected controlled substance. Testing of one of the bags showed that it

contained .27 grams of cocaine.

       Appellant did not challenge the state’s evidence and did not dispute that the

substance was cocaine. Instead, he pleaded guilty to the charged offense in June 2009, and

was sentenced to 49 months in prison. He did not file a direct appeal.

       In 2012, the St. Paul Police Department Crime Laboratory (SPPDCL) lost its

certification after an investigation revealed serious systemic errors in laboratory protocols

and testing processes. Appellant petitioned for postconviction relief on December 17,

2013, seeking to withdraw his guilty plea because the problems “involving deficient

controlled substance testing” by the SPPDCL constituted newly discovered evidence.

Appellant also argued that in light of the reported deficiencies in the controlled-substance

testing protocols at the SPPDCL, his plea was invalid and withdrawal should be

permitted in the interests of justice. Finally, appellant argued that “[a]t the very least,” an


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evidentiary hearing was necessary “to resolve the material facts and issues presented” in

his petition.

       The postconviction court determined that appellant “has not sufficiently

demonstrated that evidence of the [SPPDCL’s] deficiencies falls under an exception to

Minn. Stat. § 590.01 in this case or that his guilty plea was invalid.” The court then

concluded that because appellant did not meet any exceptions to the two-year time limit

for postconviction relief set forth in section 590.01, “his petition is time barred.” Thus,

the postconviction court denied appellant’s petition without an evidentiary hearing. This

appeal followed.

                                      DECISION

       We review a summary denial of postconviction relief for an abuse of discretion.

Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). “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.” State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013)

(quotation omitted).

       A petition for postconviction relief must be filed within two years of 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). But, a petition filed after the two-year time limit may be considered if it

satisfies one of several statutory exceptions. Minn. Stat. § 590.01, subd. 4(b) (2014)

(listing five exceptions). A postconviction petitioner is not entitled to relief or an

evidentiary hearing on an untimely petition unless he can demonstrate that “he satisfies


                                              3
one of the [statutory] exceptions . . . and that application of the exception is not time-

barred.” Riley v. State, 819 N.W.2d 162, 168 (Minn. 2012). If the petitioner does not

demonstrate that an exception applies and that application of the exception is timely, the

postconviction court may summarily deny the petition. Id.

       Appellant acknowledges that his petition was untimely under Minn. Stat. § 590.01,

subd. 4(a). But he claims that the postconviction court should have considered his

petition under the newly discovered-evidence and interests-of-justice exceptions.

Appellant further claims that “[a]t a minimum, the postconviction court should have held

an evidentiary hearing on these issues.”

I.     Newly discovered evidence

       Under the newly discovered-evidence exception, a court may hear an untimely

petition for postconviction relief if (1) “the petitioner alleges the existence of newly

discovered evidence”; (2) the evidence “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”; (3) “the evidence is not cumulative to evidence

presented at trial”; (4) the evidence “is not for impeachment purposes”; and (5) the

evidence “establishes by a clear and convincing standard that the petitioner is innocent of

the offense or offenses for which the petitioner was convicted.” Minn. Stat. § 590.01,

subd. 4(b)(2). “All five criteria must be satisfied to obtain relief.” Riley, 819 N.W.2d at

168.

       Appellant argues that because no one was aware of the deficiencies at the

SPPDCL until 2012, the information regarding these problems is newly discovered


                                              4
evidence. We disagree. This court recently affirmed the denial of another postconviction

petition brought by appellant arising out of his separate 2005 drug conviction, in which

he similarly alleged that the SPPDCL problems constituted newly discovered evidence

that operate as an exception to the time-bar of section 590.01, subdivision 4(b). Roberts

v. State, 856 N.W.2d 287, 290-91 (Minn. App. 2014), review denied (Minn. Jan. 28,

2015) (Roberts I).1 In Roberts I, this court concluded that appellant failed to demonstrate

that he could not have discovered the deficiencies in the SPPDCL testing processes with

due diligence.2 Id. at 291. This court reasoned:

                     [Appellant] does not claim that he made any effort to
              investigate the validity of the test results. Nor does he claim
              that anyone prevented him from doing so. Instead, he merely
              asserts that the deficiencies in the crime lab’s procedures
              could not have been discovered with due diligence because no
              one had reason to suspect problems at the crime lab. That
              assertion is belied by [appellant’s] postconviction
              submissions, which show that the defendant in the 2012
              Dakota County case discovered the deficiencies.

Id.

       In this case, the record reflects that appellant made no effort to investigate the

validity of the test results. In fact, the record reflects that although he had the right to


1
  This court also recently released an unpublished opinion affirming the denial of a third
postconviction petition brought by appellant arising out of his 2002 conviction of second-
degree controlled-substance crime in which he raised the same challenges presented here
and in Roberts I. Roberts v. State, A14-0598, 2015 WL 134050, *2-4 (Minn. App. Jan.
12, 2015) (Roberts II).
2
  In a footnote, this court stated that it “assume[d] without deciding that the newly-
discovered-evidence exception is applicable to a request for postconviction relief in the
form of a plea withdrawal, even though the plain language of [section 590.01, subdivision
4(b)(2)] suggests that it only applies to convictions resulting from a trial.” Roberts I, 856
N.W.2d at 291 n.2.

                                               5
discover the results, to cross-examine the testing chemist, and to have the sample

retested, appellant never questioned the lab results. As this court concluded in Roberts I,

appellant simply failed to exercise any diligence. See Roberts I, 856 N.W.2d at 291.

       The newly discovered-evidence exception also requires the defendant to establish

by clear and convincing evidence that he is innocent of the charges. Minn. Stat.

§ 590.01, subd. 4(b)(2). “[T]o prove a claim by clear and convincing evidence, a party’s

evidence should be unequivocal, intrinsically probable and credible, and free from

frailties.” Riley, 819 N.W.2d at 170 (quotation omitted).

       Here, as in Roberts I, appellant’s new evidence consists of “deficiencies at the

SPPDCL.” But also like Roberts I, appellant failed to offer any evidence regarding the

chemical composition of the particular substance he was convicted of selling. See 856

N.W.2d at 291. Instead, he simply claims that the evidence “would probably result in an

acquittal or more favorable result at trial” because “[w]ithout the completely unreliable

results from the SPPDCL, the state cannot prove its case against appellant.” Appellant’s

speculative claim regarding whether the state could prove its case is not a demonstration

by clear and convincing evidence that appellant is innocent of the charges.

       Appellant has failed to meet his burden to establish that the new evidence

pertaining to the SPPDCL could not have been discovered with due diligence or that the

new evidence clearly and convincingly establishes his innocence. Therefore, the

postconviction court did not err by concluding that the newly discovered evidence

exception is not applicable.




                                             6
II.    Interests of justice

       Appellant next contends that the interests-of-justice exception to the time bar

applies to his case. Under this exception, a court may hear an untimely 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). To consider a petition in the interests of justice, “the defendant must not have

deliberately and inexcusably failed to raise the issue on direct appeal.” Gassler v. State,

787 N.W. 575, 586 (Minn. 2010). The interests-of-justice exception is reserved for

exceptional cases. Id.

       In Roberts I, this court also concluded that the interests-of-justice exception did

not apply, stating that appellant was “at fault for this failure to discover the problems at

the crime lab before he pleaded guilty.” 856 N.W.2d at 293. The court also determined

that it “is not fundamentally unfair to hold appellant accountable for his choice to accept

the state’s scientific evidence at face value and resolve his case with a guilty plea in

exchange for a reduced sentence.” Id. Finally, the court stated that although “[i]n

hindsight,” appellant “may regret his decision to plead guilty,” that “is not a just reason to

allow [appellant] to pursue an untimely request for plea withdrawal.” Id.

       Here, like Roberts I, the record shows that the lab results played no part in

appellant’s decision to plead guilty. Instead, appellant admittedly decided to plead guilty

to the offense “because [he is] guilty,” and to take advantage of a favorable plea

agreement. Moreover, as addressed above, appellant bore the duty to discover the

problems at the SPPDCL. And it is not fundamentally unfair to hold appellant


                                               7
accountable for his decision to accept the state’s scientific evidence against him and

resolve his case with a guilty plea in exchange for a reduced sentence even though, in

retrospect, the information regarding the SPPDCL could have influenced appellant’s

decision. Finally, as this court recognized in Roberts I, the post-plea discovery of the

problems at the SPPDCL does not stem from a flaw in the judicial process. Rather it

stems from appellant’s decision to waive his right to challenge the state’s evidence

against him. See 856 N.W.2d at 293. This court in Roberts I rejected identical arguments

raised by appellant herein, and appellant offers no material facts to distinguish this case

from Roberts I. See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (stating

that court of appeals and district courts are “bound by supreme court precedent and the

published opinions of the court of appeals” and must apply precedent to factually similar

cases), review denied (Minn. Sept. 21, 2010). Therefore, the postconviction court did not

err by refusing to consider appellant’s untimely petition under the interests-of-justice

exception to the statutory time bar to postconviction relief.3

III.   Evidentiary hearing

       When a petition for postconviction relief is filed, “the court shall promptly set an

early hearing on the petition and response thereto, and promptly determine the issues”

3
  Appellant also argues at length that the state should follow the lead of Massachusetts
and Texas, where “lab scandals” also occurred. In Massachusetts, one lab assistant was
indicted on charges of evidence tampering, perjury, obstruction of justice, and false
claims of a graduate degree. See, e.g., Commonwealth v. Scott, 5 N.E.3d 530, 337 (S. Ct.
2014). In Texas, one lab technician used results from one case as evidence in other cases
and fraudulently misrepresented results. Ex Parte Coty, 418 S.W.3d 597, 598-99 (Tex.
Crim. App. 2014). The SPPDCL investigation does not allege similar intentional
conduct, but rather sloppy procedures. As a result, the “lab scandal” in Minnesota is
distinguishable from the “lab scandals” that occurred in Massachusetts and Texas.

                                              8
“[u]nless the petition and the files and records of the proceeding conclusively show that

the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2014); see Erickson

v. State, 842 N.W.2d 314, 318 (Minn. 2014). The threshold standard for an evidentiary

hearing is lower than that for a new trial; “[a]ny doubts about whether to conduct an

evidentiary hearing should be resolved in favor of the defendant seeking relief.” State v.

Nicks, 831 N.W.2d 493, 504 (Minn. 2013). We review the district court’s decision on

whether to hold an evidentiary hearing for an abuse of discretion. Riley, 819 N.W.2d at

167.

       Appellant never challenged the lab results or claimed that the substance he sold

was not cocaine. Instead, he pleaded guilty to the charged offense, admitting that the

substance he sold was cocaine. Appellant has also failed to make any connection

between the problems at the SPPDCL in 2012 and the testing of the evidence in his case

from 2008. Accordingly, appellant cannot demonstrate that the postconviction court

abused its discretion by denying appellant’s request for an evidentiary hearing.

       Affirmed.




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