                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1186

                              Lane Francis Weitzel, petitioner,
                                        Appellant,

                                             vs.

                                     State of Minnesota,
                                        Respondent.

                                    Filed July 20, 2015
                                         Affirmed
                                     Johnson, Judge

                                Anoka County District Court
                                 File No. 02-K5-06-009676

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Anthony C. Palumbo, Anoka County Attorney, Debra J. Hilstrom, Assistant County
Attorney, Anoka, Minnesota (for respondent)

         Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and Ross,

Judge.

                                      SYLLABUS

         A postconviction court may deny a petition for postconviction relief on the ground

that the petition is untimely, even if the state did not assert the defense of untimeliness, so

long as the district court gives the parties notice of its intention to consider the issue of

untimeliness and an opportunity to present their respective positions on the issue.
                                       OPINION

JOHNSON, Judge

       In 2007, Lane Francis Weitzel pleaded guilty to one count of failure to register as

a predatory offender. In 2014, he filed a petition for postconviction relief in which he

seeks to withdraw his guilty plea on the ground that it is inaccurate because it lacks an

adequate factual basis. In its answer to the petition, the state opposed postconviction

relief on the merits, without addressing whether the petition is timely.                 The

postconviction court nonetheless denied the petition on the grounds that it is untimely and

that Weitzel did not satisfy the interests-of-justice exception to the statute of limitations.

On appeal, Weitzel argues that the district court erred by denying the petition for

untimeliness because the state waived the defense of untimeliness by failing to raise it in

its answer to the petition. We conclude that the district court did not abuse its discretion

by denying the petition as untimely because Weitzel had an opportunity to present

argument concerning the applicability of the interests-of-justice exception to the two-year

statute of limitations and actually presented such an argument. Therefore, we affirm.

                                          FACTS

       In May 2006, police in the city of Ramsey received a report that Weitzel was

residing in the city without complying with his duty to register as a predatory offender.

In September 2006, the state charged Weitzel with one count of failure to register as a

predatory offender. See Minn. Stat. § 243.166, subd. 5 (2006). In June 2007, Weitzel

pleaded guilty. The district court imposed a sentence of 17 months of imprisonment but




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stayed execution of the sentence and placed him on probation for five years. Weitzel did

not pursue a direct appeal.

       In March 2014, Weitzel petitioned for postconviction relief.         See Minn. Stat.

§ 590.01, subd. 1(1) (2012). In his petition, he seeks to withdraw his guilty plea on the

ground that the plea is invalid because it lacks an adequate factual basis. See Munger v.

State, 749 N.W.2d 335, 337-38 (Minn. 2008); State v. Theis, 742 N.W.2d 643, 646

(Minn. 2007); State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). At his plea hearing in

2007, Weitzel stated that he did not inform his local law-enforcement agency or the

Bureau of Criminal Apprehension of his new residence in Ramsey, though he did inform

his corrections officer. In a 17-page memorandum in support of the postconviction

petition, Weitzel argued that he satisfied the applicable registration requirements by

informing his corrections officer of his new residence and, thus, did not commit a crime.

See Minn. Stat. § 243.166, subd. 3(b). In his memorandum, he also argued that his guilty

plea is invalid because he received ineffective assistance of counsel.                In his

postconviction petition, Weitzel asked the postconviction court to consider his request for

relief in the interests of justice despite the general two-year statute of limitations, citing

section 590.01, subdivision 4(b)(5), of the Minnesota Statutes, and he presented argument

in support of that request in his accompanying memorandum of law.

       The state promptly filed an answer to the petition in which it contended generally

that Weitzel’s “convictions and sentences are lawful and proper and should not be

vacated and set aside.”       The state did not mention the general two-year statute of

limitations for filing a postconviction petition, see Minn. Stat. § 590.01, subd. 4(a), the


                                              3
exceptions to the two-year limitations period, see Minn. Stat. § 590.01, subd. 4(b), or the

additional two-year limitations period that applies to petitions that invoke one of the

exceptions, see Minn. Stat. § 590.01, subd. 4(c).

       In May 2014, the postconviction court denied Weitzel’s petition for postconviction

relief. The postconviction court noted that the petition was filed more than two years

after Weitzel’s conviction became final and denied the petition on the ground that it is

untimely.   The postconviction court based that determination on two independent

reasons: first, that Weitzel did not file the petition within two years of the accrual of his

claim, as required by subdivision 4(c), and, second, that Weitzel did not satisfy the

requirements of the interests-of-justice exception in subdivision 4(b)(5). Weitzel appeals.

                                          ISSUE

       Did the postconviction court err by denying Weitzel’s petition on the ground that

it is untimely even though the state did not assert the defense of untimeliness in its

answer to the petition?

                                       ANALYSIS

       Weitzel makes three arguments on appeal. First, he argues that the postconviction

court erred by denying his petition on the ground that it is untimely because the state

waived the issue of untimeliness by failing to assert it in its answer to the petition.

Second, he argues that his guilty plea is invalid on the ground that it is inaccurate because

he did not fail to comply with his registration requirement. Third, he argues that his

guilty plea is invalid on the ground that it was not intelligently entered due to ineffective

assistance of counsel.


                                             4
       The Postconviction Relief Act governs the timeliness of postconviction

petitions. Section 590.01, subdivision 4(a), sets forth a general two-year limitations

period in which to file a petition for postconviction relief. Minn. Stat. § 590.01,

subd. 4(a). The limitations period begins upon the latter 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.” Id. If the limitations period in subdivision 4(a) has

expired, subdivision 4(b) provides that the postconviction court may consider the

untimely petition if any of five exceptions applies. Id., subd. 4(b). For example, an

exception applies if “the petitioner establishes to the satisfaction of the court that the

petition is not frivolous and is in the interests of justice.” Id., subd. 4(b)(5). But

petitioners do not have an unlimited amount of time in which to file a petition because

subdivision 4(c) provides that any petition relying on subdivision 4(b) “must be filed

within two years of the date the claim arises.” Id., subd. 4(c).

                                             A.

       For his first argument, Weitzel contends that the state waived the defense of

untimeliness by not asserting the defense in its answer and that the state’s waiver should

have prevented the postconviction court from considering the issue of untimeliness and

denying his petition on that ground.          In response, the state contends that the

postconviction court had discretion to consider the timeliness of Weitzel’s petition even

though the state did not assert the defense of untimeliness in its answer. Weitzel relies on

two opinions in which the supreme court concluded that the state waived the defense of




                                              5
untimeliness. See Hooper v. State, 838 N.W.2d 775, 780-82 (Minn. 2013); Carlton v.

State, 816 N.W.2d 590, 606 (Minn. 2012).

       In Carlton, the supreme court held that “the time limitation in subdivision 4(c)

does not operate as a jurisdictional bar, and that it therefore is subject to waiver.” 816

N.W.2d at 606.     The supreme court declined to consider whether a postconviction

petition was barred by the two-year limitations period in subdivision 4(c) because the

state had waived the defense by not raising it, either in postconviction proceedings in the

district court or in its appellate briefs. Id.. In Hooper, the supreme court declined to

consider whether a postconviction petition was barred by the two-year limitations period

in subdivision 4(a) because the state had waived the defense by not raising it in its

appellate brief, even though the state had asserted it in postconviction proceedings in the

district court. 838 N.W.2d at 780-82. Collectively, Carlton and Hooper speak to the

question whether an appellate court may consider the timeliness of a postconviction

petition if the state has not argued untimeliness on appeal. But Carlton and Hooper do

not answer the question whether a district court may consider the timeliness of a

postconviction petition if the state has not asserted untimeliness in response to the

petition. Thus, we reject Weitzel’s argument that the postconviction court’s denial of his

petition conflicts with Carlton and Hooper.

                                              B.

       Neither party contends that Weitzel’s first argument is governed by any other

supreme court opinion or by a precedential opinion of this court. In the absence of

binding precedent within Minnesota, we may look to federal law for guidance. See id.


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(applying opinions of United States Supreme Court); Carlton, 816 N.W.2d at 601, 603-04

(same). The United States Supreme Court considered a very similar issue in Day v.

McDonough, 547 U.S. 198, 126 S. Ct. 1675 (2006), which concerned a federal statute

that provides for a one-year limitations period in which a state-court criminal offender

may file a petition for a writ of habeas corpus in a federal district court. 28 U.S.C.

§ 2244(d)(1)(A) (2012). In Day, the State of Florida filed an answer in which it asserted

that, after considering the days when the limitations period was tolled, the habeas petition

was timely. 547 U.S. at 201, 126 S. Ct. at 1679. The magistrate judge, however,

determined that the state had miscalculated the number of tolled days and that the petition

actually was filed after the one-year limitations period. Id. at 201-02, 126 S. Ct. at 1679.

The magistrate judge gave Day an opportunity to show cause why the petition should not

be dismissed as untimely. Id. at 202, 126 S. Ct. at 1679. The magistrate judge rejected

Day’s reasons and recommended that the petition be dismissed as untimely. Id. The

district court adopted the recommendation and dismissed the petition. Id. The United

States Court of Appeals for the Eleventh Circuit affirmed. Id.

       The Supreme Court in Day initially noted that the applicable statute of limitations

is not a jurisdictional bar and, thus, a federal district court is not obligated to consider

untimeliness if a state has not asserted it. Id. at 205, 126 S. Ct. at 1681. But the Court

also noted that a federal district court may consider the timeliness of a habeas petition

because the untimeliness defense is among a group of defenses that “implicat[e] values

beyond the concerns of the parties,” such as judicial efficiency, conservation of judicial

resources, accuracy of judgments, and finality. Id. at 205-06, 126 S. Ct. at 1681-82


                                             7
(alteration in original) (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000)).

Accordingly, the Court set forth the following rule of law:

              [W]e hold that district courts are permitted, but not obliged,
              to consider, sua sponte, the timeliness of a state prisoner’s
              habeas petition. . . .

                     Of course, before acting on its own initiative, a court
              must accord the parties fair notice and an opportunity to
              present their positions. Further, the court must assure itself
              that the petitioner is not significantly prejudiced by the
              delayed focus on the limitation issue, and determine whether
              the interests of justice would be better served by addressing
              the merits or by dismissing the petition as time barred.

Id. at 209-10, 126 S. Ct. at 1684 (quotations and citations omitted). The Court affirmed

the decisions of the lower courts, concluding that the federal district court did not abuse

its discretion by considering the issue of untimeliness because, among other things, the

magistrate judge “gave Day due notice and a fair opportunity to show why the limitation

period should not yield dismissal of the petition” and “nothing in the record suggests that

the State ‘strategically’ withheld the defense or chose to relinquish it.” Id. at 210-11, 126

S. Ct. at 1684.

       In a subsequent case, the Supreme Court clarified and limited Day by holding that

a federal court may not consider the timeliness of a habeas petition and dismiss it on that

basis if the state has not merely forfeited the statute-of-limitations defense but, rather, has

intentionally, knowingly, and expressly waived it. Wood v. Milyard, 132 S. Ct. 1826,

1834-35 (2012).1 Our supreme court cited and relied on Day in Carlton. See 816


       1
       The Supreme Court in Wood emphasized the difference between forfeiture and
waiver: “We note here the distinction between defenses that are ‘waived’ and those that

                                              8
N.W.2d at 603 (citing Day for proposition that statute of limitations is not jurisdictional

bar); see also Matakis v. State, 862 N.W.2d 33, 39 (Minn. 2015) (distinguishing Day);

Reed v. State, 793 N.W.2d 725, 731 (Minn. 2010) (citing Day for proposition that statute

of limitations is not jurisdictional). Furthermore, the Supreme Court’s opinions in Day

and Wood provide a useful means of resolving Weitzel’s first argument.

                                            C.

       In applying Day and Wood to the facts of this case, we first note that the state’s

answer to Weitzel’s petition does not give any indication that the state intentionally,

knowingly, and expressly waived the defense of untimeliness. Cf. Wood, 132 S. Ct. at

1834-35. Accordingly, the postconviction court was “permitted, but not obliged, to

consider, sua sponte, the timeliness of [the postconviction] petition.” See Day, 547 U.S.

at 209, 126 S. Ct. at 1684. Before doing so, however, the postconviction court was

obligated to “accord the parties fair notice and an opportunity to present their positions”

on the particular issues that the postconviction court was inclined to consider and resolve.

See id. at 210, 126 S. Ct. at 1684. It was obvious to the postconviction court that

Weitzel’s petition does not comply with the general two-year limitations period in

are ‘forfeited.’ A waived claim or defense is one that a party has knowingly and
intelligently relinquished; a forfeited plea is one that a party has merely failed to
preserve. That distinction is key to our decision in Wood’s case.” 132 S. Ct. at 1832 n.4
(citations omitted). Our supreme court also has observed the same distinction. See State
v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (distinguishing between waiver, “the
intentional relinquishment or abandonment of a known right,” and forfeiture, “the failure
to make the timely assertion of a right”); see also State v. Osborne, 715 N.W.2d 436, 443
(Minn. 2006) (explaining that “forfeiture is nothing more than one form of waiver, that is,
waiver by silence”). In Hooper and Carlton, however, our supreme court used the word
“waiver” in a broad sense to encompass both concepts. See Hooper, 838 N.W.2d at 780-
82; Carlton, 816 N.W.2d at 600-07.

                                             9
subdivision 4(a). The petition conceded the point by invoking the interests-of-justice

exception in subdivision 4(b)(5).      Furthermore, because Weitzel presented a well-

developed argument for the interests-of-justice exception in his memorandum, the

postconviction court had no need to give him an additional opportunity to present his

position with respect to that issue before considering it and deciding that the interests-of-

justice exception does not apply.2 See id.

       The issue whether the petition was barred by the two-year limitations period in

subdivision 4(c), however, is an issue that was not raised in Weitzel’s petition or the

state’s answer.   Under Day, the postconviction court should have given Weitzel an

opportunity to present his position on subdivision 4(c) before considering and disposing

of the petition on that ground. See id.; see also Carlton, 816 N.W.2d at 606 (concluding

that state did not preserve argument concerning subdivision 4(c)). The record indicates

that the postconviction court did not give notice to the parties of its intention to consider

whether Weitzel had satisfied the requirements of subdivision 4(c). The postconviction

court resolved that issue by determining that Weitzel had not satisfied the requirements of

subdivision 4(c), and that determination provided a second reason for denying the

petition.   But the lack of notice and opportunity to present argument concerning

subdivision 4(c) is inconsequential because the postconviction court also determined that

Weitzel’s petition should be denied on the ground that he does not satisfy the interests-of-

       2
        In general, it is also proper and beneficial to give the state an opportunity to
express whether it has intentionally and knowingly waived the defense of untimeliness.
See Wood, 132 S. Ct. at 1834-35. In this case, however, we now know, based on the
appellate briefing, that the state did not intend to waive the defense of untimeliness with
respect to Weitzel’s petition.

                                             10
justice exception of subdivision 4(b)(5), which was the only exception in subdivision 4(b)

that he invoked in his petition and argued in the accompanying memorandum. Weitzel

had an opportunity to present argument concerning the interests-of-justice exception in

subdivision 4(b)(5) before the postconviction court denied his petition on that ground.

Weitzel’s failure to satisfy the interests-of-justice exception is a sufficient basis for the

postconviction court’s denial of the petition. Thus, the postconviction court did not abuse

its discretion by denying Weitzel’s petition on the ground of untimeliness.

       Weitzel’s first argument is limited to a challenge to the district court’s authority to

consider the issue of untimeliness and to dispose of the petition on that ground. He does

not argue that the postconviction court erred in its substantive analysis of the interests-of-

justice exception. Therefore, we have fully resolved Weitzel’s first argument. In light of

that resolution, we need not consider his second and third arguments, which address the

merits of his petition.

                                      DECISION

       The postconviction court did not abuse its discretion by considering whether

Weitzel’s postconviction petition is timely and by denying the petition as untimely

because Weitzel did not satisfy the interest-of-justice exception to the two-year statute of

limitations.

       Affirmed.




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