                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0169

                          Phillip Anthony Roberts, petitioner,
                                      Appellant,

                                           vs.

                                  State of Minnesota,
                                     Respondent.

                               Filed November 17, 2014
                                      Affirmed
                                    Larkin, Judge

                             Ramsey County District Court
                              File No. 62-K9-05-000811


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

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

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


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

Bjorkman, Judge.

                                   SYLLABUS

      The newly-discovered-evidence exception to the statutory time bar to

postconviction relief does not apply to an untimely petition seeking plea withdrawal

based on allegedly deficient controlled-substance testing when the alleged deficiencies

could have been ascertained by the exercise of due diligence within the time for filing a
timely petition and the new evidence does not clearly and convincingly establish that the

petitioner is innocent.

                                     OPINION

LARKIN, Judge

       Appellant pleaded guilty to second-degree sale of a controlled substance in 2005.

In 2013, appellant petitioned for postconviction relief, seeking to withdraw his guilty

plea. He based his request on information regarding testing deficiencies at the crime

laboratory that tested the controlled substance in his case. The postconviction court

concluded that appellant’s petition was time-barred under Minn. Stat. § 590.01, subd.

4(a) (2012), and summarily denied the petition. Appellant challenges the postconviction

court’s ruling, arguing that his petition should have been considered under the newly-

discovered-evidence and interests-of-justice exceptions to the statutory time bar.

Because neither exception applies, we affirm the summary denial of postconviction relief.

                                        FACTS

       In March 2005, respondent State of Minnesota charged appellant Phillip Anthony

Roberts with second-degree sale of a controlled substance under Minn. Stat. § 152.022,

subd. 1(1) (2004) (three grams or more of a mixture containing cocaine). According to

the complaint, a police officer conducted a routine traffic stop of a vehicle that Roberts

was driving in November 2004. The officer detected a strong odor of marijuana coming

from the vehicle, and he removed Roberts from the vehicle. As the officer escorted

Roberts to his squad car, a small plastic bag fell out of Roberts’s pant leg. When the

officer attempted to place Roberts in the squad car, he ran from the officer. Immediate


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attempts to locate Roberts were unsuccessful. An officer retrieved the plastic bag, which

contained 49 individually wrapped “rocks” of suspected crack cocaine. The substance

was submitted to the St. Paul Police Department Crime Laboratory (crime lab), which

unwrapped, weighed, and tested 21 of the rocks. The 21 rocks weighed 4.16 grams, and

each rock tested positive for cocaine.

       In October 2005, Roberts appeared before the district court on the controlled-

substance charge. He was represented by court-appointed counsel. Roberts did not

challenge the state’s evidence. Nor did he dispute that the substance was cocaine.

Instead, he pleaded guilty.1 The record contains Roberts’s petition to plead guilty, which

indicates that he pleaded guilty in exchange for the state’s agreement to request a

sentence 12 months less than the presumptive sentence under the Minnesota Sentencing

Guidelines. In December 2005, the district court sentenced Roberts to serve 36 months in

prison, noting that the sentence was a durational departure. Roberts did not appeal.

       Nearly eight years later, in November 2013, Roberts petitioned for postconviction

relief, seeking to withdraw his guilty plea. In his petition, Roberts outlined a number of

problems at the crime lab that were revealed in a 2012 Dakota County controlled-

substance case involving another defendant and in two subsequent audits of the crime lab.

Specifically, Roberts alleged that the crime lab did not have a formal employee training

program and that its testing protocols were inadequate to prevent contamination.




1
  We do not know the factual basis for Roberts’s guilty plea because he did not provide
this court a transcript of his plea hearing.

                                            3
       Although Roberts presented detailed information from the Dakota County case

and the subsequent audits of the crime lab in his postconviction submissions, he did not

specifically address the test results in his case. In fact, he did not claim that the substance

was not cocaine. Instead, he asserted that “[t]here is no reason to believe the training

methods or procedures followed by criminalists have changed between former laboratory

employees and those most recently employed.” He also asserted:

              The suspected controlled substances in [this] case were tested
              by the [crime lab] using GC/MS with the Drugs A program.
              . . . Drugs A is believed to be the precursor for the Drugs B
              Program . . . which “is not generally accepted in the scientific
              community . . . .” . . . If the Drugs A program operates
              functionally the same as the Drugs B program and this fact
              can be proved, it follows that the Drugs A program is not
              generally accepted in the scientific community.

       Roberts argued that he was “entitled to withdraw his guilty plea, or at the very

least [have] an evidentiary hearing, because of the newly discovered evidence involving

the controlled substance testing performed by the [crime lab].” Roberts also argued that

his “defense counsel provided ineffective assistance of counsel by failing to request the

complete laboratory file.” Lastly, Roberts argued that the newly-discovered-evidence

and interests-of-justice exceptions to the two-year statutory time limit on the filing of

post-conviction petitions applied.

       The postconviction court denied Roberts’s petition for relief without a hearing. It

concluded that the petition was time-barred under Minn. Stat. § 590.01, subd. 4(a), and

that neither of the relied-upon exceptions to the statutory time bar applied.             The




                                              4
postconviction court noted that Roberts “has never claimed (pre- or post-plea) that the

rock cocaine was not in fact rock cocaine.” Roberts appeals.

                                          ISSUE

       Did the postconviction court abuse its discretion by summarily denying Roberts’s

petition for relief because it was untimely under Minn. Stat. § 590.01, subd. 4(a)?

                                        ANALYSIS

       A person convicted of a crime who claims that the conviction violates his rights

under the constitution or laws of the United States or Minnesota may petition for

postconviction relief unless direct appellate relief is available. Minn. Stat. § 590.01,

subd. 1 (2012). The petition must include “a statement of the facts and the grounds upon

which the petition is based and the relief desired.” Minn. Stat. § 590.02, subd. 1(1)

(2012). A petitioner is entitled to a hearing “[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 (2012).

       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). However, a petition filed after the two-year limit may be considered if it satisfies

one of several statutory exceptions. See id., subd. 4(b) (2012) (listing five exceptions). If

an exception applies, the petition must be filed within two years of the date the claim

arises. Id., subd. 4(c) (2012). A claim arises when the petitioner “knew or should have

known that the claim existed.” Sanchez v. State, 816 N.W.2d 550, 552 (Minn. 2012).


                                             5
       A postconviction petitioner is not entitled to relief or an evidentiary hearing on an

untimely petition unless he can demonstrate that “he satisfies 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 as untimely. Id. We review a summary denial of a

postconviction petition for an abuse of discretion. Id. at 167. 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.” Id. (quotation omitted).

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

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

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

time bar. We address each exception in turn.

                                             I.

       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,


                                              6
subd. 4(b)(2). “All five criteria must be satisfied to obtain relief.” Riley, 819 N.W.2d at

168. We focus on the second and fifth criteria.2

       The complaint against Roberts alleged that the crime lab analyzed the substance in

this case and identified it as cocaine. Roberts therefore knew that the charge against him

was based on the crime lab’s test results. He had access to the test results under the

discovery rules. See Minn. R. Crim. P. 9.01 subd. 1(4) (2004) (requiring the prosecutor

to disclose scientific tests and permit defense counsel to inspect and reproduce any

scientific test results). He could have challenged the foundational reliability of the test

results. See Minn. R. Crim. P. 11.02, .04 (2004) (allowing the defendant to demand an

omnibus hearing on evidentiary issues); Goeb v. Tharaldson, 615 N.W.2d 800, 814

(Minn. 2000) (stating that “the particular scientific evidence in each case must be shown

to have foundational reliability” and that the proponent of a scientific test must “establish

that the test itself is reliable and that its administration in the particular instance

conformed to the procedure necessary to ensure reliability” (quotation omitted)). If

Roberts was financially unable to obtain expert review of the test results, he could have

requested public funds for that purpose. See Minn. Stat. § 611.21(a) (2004) (authorizing

court-appointed counsel to file an application for expert services and the court to direct

payment for such services by the county in which the prosecution originates).


2
   We assume without deciding that the newly-discovered-evidence exception is
applicable to a request for postconviction relief in the form of plea withdrawal, even
though the plain language of the statutory exception suggests that it only applies to
convictions resulting from a trial. See Minn. Stat. § 590.01, subd. 4(b)(2) (stating that the
exception applies only if “the evidence is not cumulative to evidence presented at trial”
(emphasis added)).

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      Roberts 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 Roberts’s postconviction submissions, which show

that the defendant in the 2012 Dakota County case discovered the deficiencies. Thus,

Roberts has not demonstrated that the information regarding the crime lab could not have

been discovered through the exercise of due diligence. See Saiki v. State, 375 N.W.2d

547, 549 (Minn. App. 1985) (“[Petitioner] has not demonstrated the newly discovered

witness could not have been discovered earlier through the exercise of due diligence.

The record does not show what efforts were made to locate the witness and merely

contains a conclusory statement . . . in [the] petition for postconviction relief that

‘Petitioner, after completing a search with due diligence, was unable to establish the

identity and location of his missing witness prior to sentencing.’”), review denied (Minn.

Dec. 19, 1985).

      In addition, the evidence regarding the crime lab does not establish, under the

clear-and-convincing standard, that Roberts is innocent. “[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).

Roberts’s new evidence regards the “sufficiency of the training, knowledge, and practices

of laboratory employees” at the crime lab. But Roberts does not offer evidence regarding

the chemical composition of the particular substance in his case. In fact, Roberts has


                                            8
never claimed—in district court, during postconviction proceedings, or on appeal—that

the substance was not cocaine.

       Moreover, to satisfy the newly-discovered-evidence exception, the newly

discovered evidence must establish “actual innocence.” Id. “Actual innocence is more

than an uncertainty about guilt. Instead, establishing actual innocence requires evidence

that renders it more likely than not that no reasonable jury would convict.” Id. The

identity and weight of a suspected controlled substance may be proved directly with

scientific evidence or, in certain situations, circumstantially with scientific or

nonscientific evidence. See State v. Olhausen, 681 N.W.2d 21, 22, 28 (Minn. 2004)

(holding that “non-scientific evidence presented at trial relating to the identity and weight

of a controlled substance”—including defendant’s and co-conspirator’s statements

regarding the identity and weight of the substance, along with a police officer’s opinion

as to the drug’s authenticity, size, and weight—“was sufficient to sustain respondent’s

first-degree controlled substance crime conviction”).

       Here, there was nonscientific evidence of guilt. The complaint suggested that the

arresting officer suspected that the substance was crack cocaine based on its appearance.

The complaint also indicated that Roberts ran from the officer after the substance fell out

of his pant leg, and flight is evidence of “consciousness of guilt.” Id. at 29. These

circumstances are fatal to Roberts’s attempt to establish actual innocence based on

speculation regarding the validity of the test results in his case.

       In sum, Roberts has not met his burden to establish that the new evidence

regarding the crime lab could not have been discovered with due diligence or that the


                                               9
new evidence clearly and convincingly establishes his innocence. See Scott v. State, 788

N.W.2d 497, 502 (Minn. 2010) (“Under Minn. Stat. § 590.01, subd. 4(b)(2), the burden

of presenting clear and convincing evidence of innocence is on the petitioner.”). Thus,

the postconviction court did not err by refusing to consider Roberts’s untimely petition

under the newly-discovered-evidence exception to the statutory time bar to

postconviction relief.

                                             II.

       Under the interests-of-justice 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). “[Appellate courts] have only applied the interests of justice in exceptional

situations.” Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010). The supreme court has

identified a “non-exclusive list of factors to be considered” to determine whether the

interests-of-justice exception applies:

              [T]o satisfy that exception, a claim must have substantive
              merit and the defendant must not have deliberately and
              inexcusably failed to raise the issue on direct appeal. . . .
              [W]e [have] noted that in deciding whether to grant relief in
              the interests of justice, courts should weigh the degree to
              which the party alleging error is at fault for that error, the
              degree of fault assigned to the party defending the alleged
              error, and whether some fundamental unfairness to the
              defendant needs to be addressed. We have also acted in the
              interests of justice when necessary to protect the integrity of
              judicial proceedings. We have recognized, however, that
              under certain circumstances the reversal of a conviction may
              seriously affect the fairness, integrity, or public reputation of
              judicial proceedings.



                                             10
Id. at 586-87 (citations omitted). “[T]he factors identified in Gassler do not form a rigid

test,” and “[d]ifferent factors may be dispositive in the unique circumstances of each

case.” Carlton v. State, 816 N.W.2d 590, 608 (Minn. 2012). In Rickert v. State, the

supreme court considered “the degree of fault assigned to the party asserting the interests-

of-justice claim.” 795 N.W.2d 236, 242 (Minn. 2011).

       The alleged “error” in this case is the post-plea discovery of deficient testing at the

crime lab. As we discussed in section I, Roberts had the opportunity to investigate the

validity of the test results in his case, and he declined to do so. Although Roberts claims

that his attorney was ineffective for failing to investigate and discover the deficiencies, he

does not allege that his attorney failed to discuss that option with him, refused his request

to challenge the test results, or advised him not to challenge the results. Moreover,

Roberts does not assert that the state knew of problems at the crime lab and failed to

disclose them. Nor does Roberts assert that the state hindered or refused to cooperate

with an attempt to investigate the test results. On this record, Roberts is at fault for his

failure to discover the problems at the crime lab before he pleaded guilty.

       Moreover, we discern no fundamental unfairness that needs to be addressed. We

recognize that the information regarding the crime lab could have influenced Roberts’s

decision to waive his right to a trial and plead guilty. But it is not fundamentally unfair to

hold Roberts 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.

       Nor is it necessary to act in the interests of justice to protect the integrity of the

judicial proceedings. The post-plea discovery of problems at that crime lab does not stem


                                             11
from a flaw in the judicial process. It stems from Roberts’s decision to waive his right to

challenge the state’s evidence against him. In hindsight, Roberts may regret his decision

to plead guilty. But that is not a just reason to allow Roberts to pursue an untimely

request for plea withdrawal. Indeed, allowing Roberts to pursue his request to withdraw

a guilty plea that is nine years old could negatively affect the integrity or public

reputation of the judicial proceeding. See Beltowski v. State, 289 Minn. 215, 219, 183

N.W.2d 563, 566 (1971) (“A failure to require petitioner to adhere to a plea agreement

properly negotiated and approved by the court would obviously have an adverse effect on

the prosecution’s employment of plea negotiations and plea agreements as an effective

aid in the administration of criminal justice.”).

       Lastly, we are not satisfied that Roberts’s petition is not frivolous. We are guided

by the supreme court’s decision in Shorter v. State, 511 N.W.2d 743 (Minn. 1994). In

Shorter, the supreme court exercised its supervisory powers and reversed the denial of a

postconviction request for plea withdrawal based on newly discovered evidence. Id. at

747. In granting relief, the supreme court found persuasive “the unusual fact that the

Minneapolis police department reopened its investigation and was prepared to testify

before the trial court that the original police investigation into Shorter’s case was

incomplete.” Id. at 746. The supreme court noted that “the highly unusual facts of th[e]

case render[ed] [Shorter’s] plea suspect.” Id. Unlike the circumstances in Shorter, the

new information regarding the crime lab in this case does not specifically address the

investigation into Roberts’s case, and it does not render his guilty plea suspect.




                                              12
       For those reasons, the postconviction court did not err by refusing to consider

Roberts’s untimely petition under the interests-of-justice exception to the statutory time

bar to postconviction relief.

                                     DECISION

       Because Roberts’s petition for postconviction relief was untimely under Minn.

Stat. § 590.01, subd. 4(a), and neither the newly-discovered-evidence nor the interests-of-

justice exception to the statutory time bar applies, the postconviction court did not abuse

its discretion by summarily denying Roberts’s petition for relief.

       Affirmed.




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