                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-0456

                              Amanda Jean Lunzer, petitioner,
                                       Appellant,

                                              vs.

                                     State of Minnesota,
                                        Respondent.

                                   Filed February 1, 2016
                                          Affirmed
                                         Kirk, Judge

                                Dakota County District Court
                                 File No. 19-KX-07-002696

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

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

         Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.

                                      SYLLABUS

         A stay of adjudication entered pursuant to Minn. Stat. § 152.18, subd. 1 (2006),1 is

not a conviction for purposes of seeking postconviction relief.




1
 Minn. Stat. § 152.18 is essentially unchanged. It was amended in 2012 to add an eligible
crime. See 2012 Minn. Laws ch. 240, § 2, at 788.
                                       OPINION

KIRK, Judge

       Appellant Amanda Jean Lunzer challenges the denial of her petition for

postconviction relief without an evidentiary hearing, arguing that she is entitled to

withdraw her guilty plea to fifth-degree possession of a controlled substance due to testing

deficiencies at the St. Paul Police Department Crime Lab (SPPDCL). On the question of

subject-matter jurisdiction, she argues that her stay of adjudication should be considered a

conviction for purposes of postconviction relief, and, if not, that this court should exercise

discretionary review due to the collateral consequences of the stay under Minn. Stat.

§ 152.18, subd. 1, related to subsequent controlled substance offenses. We affirm, because

we conclude that the district court lacked jurisdiction to consider the petition.

                                          FACTS

       In December 2007, appellant pleaded guilty to fifth-degree controlled-substance

crime pursuant to a plea agreement pursuant to Minn. Stat. § 152.18, subd. 1, which

functions as a stay of adjudication. The district court found that there was a sufficient

factual basis for the plea, did not formally accept it, and stayed adjudication.

       In October 2010, the district court discharged appellant from probation and

dismissed the charge. In July 2014, appellant filed a petition for postconviction relief,

seeking to withdraw her plea based upon testing deficiencies discovered at the SPPDCL.

The district court denied postconviction relief without a hearing, concluding that the

petition was time-barred and that no exception applied.




                                              2
         This appeal followed. We raised the issue of the postconviction court’s jurisdiction

sua sponte, via an order for further briefing. See State v. Hannuksela, 452 N.W.2d 668,

673 n.7 (Minn. 1990); In re Welfare of M.J.M., 766 N.W.2d 360, 364 (Minn. App. 2009)

(“[L]ack of subject-matter jurisdiction may be raised at any time by the parties or sua

sponte by the court, and cannot be waived by the parties.”), review denied (Minn. Aug. 26,

2009).

                                            ISSUE

         Having received a stay of adjudication and dismissal, was appellant “convicted”

such that she may seek postconviction relief?

                                         ANALYSIS

         Postconviction relief is available to “a person convicted of a crime.” Minn. Stat.

§ 590.01, subd. 1 (2012). Statutory interpretation is a question of law subject to de novo

review. See State v. Riggs, 865 N.W.2d 679, 682 (Minn. 2015). We also review questions

regarding the jurisdiction of state courts de novo. State v. Barrett, 694 N.W.2d 783, 785

(Minn. 2005).

         Minn. Stat. § 152.18, subd. 1, permits a district court to stay adjudication of guilt

for first-time offenders who are found guilty of or plead guilty to certain controlled-

substance offenses. If the defendant and the offense meet the specified criteria, the statute

authorizes the court to,

                without entering a judgment of guilty and with the consent of
                the person, defer further proceedings and place the person on
                probation upon such reasonable conditions as it may require
                and for a period, not to exceed the maximum sentence provided
                for the violation. . . . Upon violation of a condition of the


                                               3
                probation, the court may enter an adjudication of guilt and
                proceed as otherwise provided.

Minn. Stat. § 152.18, subd. 1. If a defendant completes the probationary period without

violating any of the conditions, “the court shall discharge the person and dismiss the

proceedings against that person.” Id. The statute further specifies that “[d]ischarge and

dismissal under this subdivision shall be without court adjudication of guilt.” Id.

         Appellant argues that postconviction relief should be available in this matter even

though she received a stay of adjudication, she was discharged from probation, and her

case was dismissed, because she is currently charged with a controlled-substance crime,

the potential consequences of which are increased as if she were convicted in this matter.2

See Minn. Stat. § 152.01, subd. 16(a) (2014) (treating receipt of a disposition for a felony-

level offense under section 152.18, subdivision 1, the same as a conviction for purposes of

determining whether a person has committed a “subsequent controlled substance

conviction”).     The state asserts that we have “jurisdiction to consider the stay of

adjudication as a sentencing appeal under the rules of criminal procedure,” citing State v.

Manns, 810 N.W.2d 303, 303 (Minn. 2006). Neither of these arguments is availing.

         In Smith v. State, 615 N.W.2d 849, 851-52 (Minn. App. 2000), review denied (Minn.

Sept. 26, 2000), we held that a stay of adjudication entered pursuant to Minn. Stat. § 152.18,

subd. 1, could not be considered a conviction for purposes of seeking postconviction relief,

and therefore Smith was not entitled to do so. Smith relied upon the Minnesota Supreme

Court’s decision in State v. Verschelde, 595 N.W.2d 192, 195-96 (Minn. 1999), which held


2
    We note that the record does not contain evidence of a subsequent charge.

                                              4
that, because a stay of adjudication is not an “adverse final judgment,” the defendant had

no appeal of right under Minn. R. Crim. P. 28.02, subd. 2. See Minn. R. Crim. P. 28.02,

subd. 2(1) (defining a “final judgment” as “when the district court enters a judgment of

conviction and imposes or stays a sentence”). In Verschelde, the supreme court also

declined to hear the case as a discretionary appeal under Minn. R. Crim. P. 28.02, subd. 3,

noting that a defendant must consent to a stay of adjudication and that “piecemeal

litigation” may result if a defendant has a right of appeal both after a stay of adjudication

and if a conviction is later entered in the same matter. 595 N.W.2d at 196-97.

       The law regarding appeals following stays of adjudication has evolved since

Verschelde and Smith, but we have not yet revisited the question of a district court’s ability

to consider a petition for postconviction relief after it has stayed adjudication. Both the

supreme court and this court have clarified that stays of adjudication in felony cases are

directly appealable as sentences. See Manns, 810 N.W.2d at 303 (“[a]ppeals from stays of

adjudication in felony cases are to be treated as appeals from sentencings, from which an

appeal [of right] may be taken as provided in Minn. R. Crim. P. 28.02, subd. 2, and 28.04,

subd. 1”); State v. Allinder, 746 N.W.2d 923, 924-25 (Minn. App. 2008) (same, in a case

involving a defendant’s right to appeal, relying on Manns); see also State v. Lee, 706

N.W.2d 491, 493-95 (Minn. 2005) (holding that stay of adjudication in nonfelony case was

a pretrial order that was appealable by state, despite imposition of jail time, relying on

Verschelde). Because these cases did not involve petitions for postconviction relief, they

do not affect the holding in Smith.




                                              5
       More recently, and importantly here, the Minnesota Supreme Court ruled in Dupey

v. State, 868 N.W.2d 36, 39-41 (Minn. 2015), that, when the court grants a stay of

adjudication under Minn. Stat. § 152.18, subd. 1, there is no “judgment of conviction or

sentence” triggering the statute of limitations for filing a petition for postconviction relief.

See Minn. Stat. § 590.01, subd. 4(a) (2012) (“No 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.”). The supreme court explained that, because there is no adjudication of

guilt when the district court stays adjudication under Minn. Stat. § 152.18, subd. 1, there

is, by definition, no “judgment of conviction.” Dupey, 868 N.W.2d at 39 (citing Minn. R.

Crim. P. 27.03, subd. 8 (providing that a “judgment of conviction must contain the plea,

verdict, adjudication of guilt, and sentence”)).

       In determining that such a stay of adjudication is not a “sentence” for purposes of

Minn. Stat. § 590.01, subd. 4(a)(1), the court reasoned that both the common and technical

definitions of the word “refer to the imposition of punishment following a criminal

conviction or adjudication of guilt,” and a stay of adjudication under Minn. Stat. § 152.18,

subd. 1, “does not result in an adjudication of guilt or a conviction.” Id. at 40. The supreme

court explained that, under Minn. Stat. § 609.02, subd. 5, a conviction requires that the

court accept and record the guilty plea, guilty verdict, or finding of guilt by the court, and

the guilty plea is only recorded when the court “‘adjudicat[es] the defendant guilty on the

record.’” Id. at 40 n.2 (quoting State v. Martinez–Mendoza, 804 N.W.2d 1, 6 (Minn.




                                               6
2011)). Therefore, it concluded, “when adjudication is stayed under section 152.18, there

is no conviction.” Id.

       Because a stay of adjudication under Minn. Stat. § 152.18, subd. 1, is not a

conviction for purposes of the postconviction relief statute of limitations, it clearly follows

that a person who receives such a stay is not “convicted of a crime” for purposes of Minn.

Stat. § 590.01, subd. 1. Hence, such a person cannot seek postconviction relief.

       In the alternative, appellant urges this court to exercise discretionary review, which

allows us to review otherwise unappealable orders “in the interests of justice,” following a

petition within 30 days of the order. See Minn. R. Crim. P. 28.02, subd. 3; Minn. R. Civ.

App. P. 105.01. When deciding whether to grant discretionary review, we consider a

number of factors, including whether the ruling is questionable or involves an unsettled

area of the law, the impact of the ruling on the parties’ ability to proceed, the importance

of the legal issue presented, whether the legal issue would evade review if review is

deferred until the underlying case has been decided, and any special circumstances

presented by the case. See Gordon v. Microsoft Corp., 645 N.W.2d 393, 399-402 (Minn.

2002); Doe 175 ex rel. Doe 175 v. Columbia Heights Sch. Dist., ISD No. 13, 842 N.W.2d

38, 47 (Minn. App. 2014).

       Appellant argues that the collateral consequence of the more serious subsequent

controlled-substance charge is especially troublesome in light of the discovery that

SPPDCL test results may be unreliable. We conclude that she is not entitled to

discretionary review. First, she did not make her request within 30 days after entry of the




                                              7
order denying postconviction relief. See Minn. R. Crim. P. 28.02, subd. 3; Minn. R. Civ.

App. P. 105.01. Second, review is not in the interests of justice. See id.

       Smith considered whether to grant discretionary review due to the same potential

collateral consequence, and declined. See Smith, 615 N.W.2d at 852. There, we reasoned

that a stay of adjudication requires a defendant’s consent. Id. We also noted that Smith

had not sought to withdraw that consent, either before the district court or on appeal. Id.

Although appellant has moved to withdraw her plea in this case, the main reasoning for

declining discretionary review in Smith still applies. Further, in December 2007, when

appellant agreed to the stay of adjudication, the availability of postconviction relief

following a stay of adjudication under Minn. Stat. § 152.18, subd. 1, was at least

questionable, due to Smith. Therefore, appellant was on notice that, should there be a

development such as the discovery of testing deficiencies at the SPPDCL, she may be

unable to shield herself from any collateral consequences through postconviction relief.

                                     DECISION

       Because appellant was not convicted of a crime for purposes of Minn. Stat. § 590.01,

subd. 1, the district court lacked jurisdiction to consider her petition for postconviction

relief and properly denied it without an evidentiary hearing.

       Affirmed.




                                             8
