                        This opinion will be unpublished and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
                                   A14-1113

                            Harold David Yaritz, petitioner,
                                     Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                               Filed February 2, 2015
                                      Affirmed
                                    Reyes, Judge

                            Ramsey County District Court
                              File No. 62CR0910885

Harold David Yaritz, Bayport, Minnesota (pro se appellant)

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

John J. Choi, Ramsey County Attorney, Laura S. Rosenthal, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

      Considered and decided by Worke, Presiding Judge; Reyes, Judge; and

Crippen, Judge.




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                          UNPUBLISHED OPINION

REYES, Judge

       Appellant Harold Yaritz, pro se, challenges the district court’s denial of his

petition for postconviction relief. Yaritz seeks to withdraw his guilty plea pursuant to

Minnesota Rules of Criminal Procedure 15.05 on the grounds that recent decisions issued

by this court now violate his plea agreement. We affirm.

                                           FACTS

       On June 6, 2009, Yaritz was arrested after an incident involving L.A., Yaritz’s 17-

year-old step-daughter. Yaritz was charged with one count of criminal sexual conduct in

the first degree and one count of use of a minor in a sexual performance. Pursuant to a

plea agreement, Yaritz pleaded guilty to both charges and waived his right to a Blakely

hearing. See Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004)

(establishing that a criminal defendant has a right to a jury trial on facts used by a district

court to support an upward sentencing departure). On October 30, 2009, Yaritz was

sentenced to 288 months in accordance with an upward sentencing departure. The

sentencing judge noted a number of factors justifying the departure, including the cruelty

with which the incident was conducted, the vulnerability of the victim, the multiple acts

committed, the planning and sophistication required, and the use of a dangerous weapon.

       Yaritz filed a direct appeal of his sentence and this court affirmed. State v. Yaritz,

791 N.W.2d 138 (Minn. App. 2010), review denied (Minn. Feb. 23, 2011). The

Minnesota Supreme Court denied Yartiz’s petition for further review and judgment was

entered on March 31, 2011. Yaritz filed a petition for postconviction relief on January


                                               2
21, 2014 seeking guilty plea withdrawal. The district court denied the petition as time

barred and meritless. This appeal follows.

                                      DECISION

       “[Appellate courts] review the denial of postconviction relief for an abuse of

discretion. In doing so, we review the postconviction court’s legal conclusions de novo,

and its findings of fact for clear error.” Greer v. State, 836 N.W.2d 520, 522 (Minn.

2013) (citations omitted). Yaritz argues that he should be allowed to withdraw his guilty

plea in light of this court’s decisions in State ex rel. Peterson v. Fabian, 784 N.W.2d 843

(Minn. App. 2010) and State ex rel. Cote v. Roy, No. A11-727 (Minn. App. Nov. 15,

2011) (order op.), review denied (Minn. Jan. 25, 2012). Yaritz states that these decisions

place new conditions on his conditional-release period to which he did not originally

agree. But this argument will not be considered if it is barred by (1) the time restrictions

in Minn. Stat. § 590.01, subd. 4(a)(2) (2014) or (2) the restrictions outlined in State v.

Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

I.     Time bar

       Yaritz seeks to withdraw his guilty plea pursuant to Minnesota Rules of Criminal

Procedure 15.05. “When a criminal defendant seeks to withdraw a guilty plea under Rule

15.05, after the defendant has been sentenced, the motion to withdraw the plea must be

raised in a petition for postconviction relief.” James v. State, 699 N.W.2d 723, 727

(Minn. 2005). Minnesota law provides that “[n]o petition for postconviction relief may

be filed more than two years after . . . an appellate court’s disposition of petitioner’s

direct appeal.” Minn. Stat. § 590.01, subd. 4(a)(2). A conviction becomes final when the


                                               3
time for petitioning the United States Supreme Court for review expires. See Moua v.

State, 778 N.W.2d 286, 288 (Minn. 2010). The Minnesota Supreme Court denied

Yaritz’s petition for review on his direct appeal on February 23, 2011. The time period

for Yaritz to petition the United States Supreme Court for review expired 90 days after

his denial. See Sup. Ct. R. 13.1 (requiring petitions for writ of certiorari to be filed within

90 days after entry of the state court order denying discretionary review); see also

Berkovitz v. State, 826 N.W.2d 203, 207 (Minn. 2013) (concluding that, for purposes of

applying the two-year limitation, the petitioner’s conviction became final 90 days after

the Minnesota Supreme Court decided the petitioner’s direct appeal). Yaritz’s

convictions became final on May 24, 2011, 90 days after the Minnesota Supreme Court

denied review on February 23, 2011. The two-year filing period therefore ended on May

24, 2013.

       Because Yaritz did not file his petition until January 21, 2014, Yaritz is statutorily

barred from bringing his petition unless he can establish that an exception to the statute

applies. See Minn. Stat. § 590.01, subd. 4(b) (2014). Subdivision 4(b) recognizes several

exceptions to the two-year limitation period, including: (1) a physical disability or mental

disease precluding timely assertion of the claim; (2) allegations of the existence of newly

discovered evidence; (3) a new interpretation of federal or state law; (4) an application

for relief for a conviction arising prior to May 1980; or (5) a petition that is not frivolous

and is brought in the interests of justice. Id. Yaritz argues that the third and fifth

exceptions are applicable.




                                               4
       Yaritz first argues that his petition is timely because this court’s decisions in

Peterson and Cote signaled a new interpretation of law which retroactively affected the

conditional-release provisions of his plea agreement. “Any petition invoking an

exception provided in paragraph (b) must be filed within two years of the date the claim

arises.” Minn. Stat. § 590.01, subd. 4(c) (2014). The date a “claim arises” is interpreted

under an objective standard and not when a defendant subjectively realizes that there is a

claim. Sanchez v. State, 816 N.W.2d 550, 558-60 (Minn. 2012). “Claim refers to an

event that supports a right to relief under the asserted exception.” Yang v. State, 805

N.W.2d 921, 925 (Minn. App. 2011) (quotation omitted), review denied (Minn. Aug. 7,

2012). Here, the “event” supporting Yaritz’s claim under this exception is the issuance of

the Cote opinion, which occurred on November 15, 2011. State ex rel. Cote v. Roy, No.

A11-727 (Minn. App. Nov. 15, 2011) (order op.) review denied (Minn. Jan. 25, 2012).

Thus, even if we assume Yaritz’s assessment of Cote is correct, the two-year deadline

would require him to file his petition by November 15, 2013. Because he did not file

until January 21, 2014, this exception does not apply.

       Yaritz next argues that his petition falls under the interest-of-justice exception.

The two-year limit does not bar consideration of a postconviction claim 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) (2014). “A petition is frivolous

if it is perfectly apparent, without argument, that the petition is without merit.” Gassler

v. State, 787 N.W.2d 575, 586 (Minn. 2010). The “interests of justice” referred to in

section 590.01, subdivision 4(b)(5) “relate to the reason the [postconviction] petition was


                                               5
filed after the 2-year time limit . . . not the substantive claims in the petition.” Sanchez,

816 N.W.2d at 557.

       Here, Yaritz states that the issues in his petition were “raised as learned.” But

when Yaritz actually learned he had a claim is irrelevant because an objective standard

determines when a claim arises, not the subjective standard of when the person actually

heard of it. Id. at 558-60. Moreover, Yaritz has not presented anything suggesting that

he suffered a “fundamental unfairness” that needs to be addressed or that this court needs

to act “to protect the integrity of judicial proceedings.” Gassler, 787 N.W.2d at 587.

Accordingly, this is not one of those “exceptional situations” where the interest-of-justice

exception applies. See id.; see also Deegan v. State, 711 N.W.2d 89, 94 (Minn. 2006)

(stating that the interests-of-justice exception is “quite narrow” and that “the grounds for

postconviction relief are substantially limited once a direct appeal has been taken”).

Because none of the exceptions to the two-year time bar apply, the district court did not

abuse its discretion when it ruled that Yaritz’s claim was untimely.

II.    Knaffla bar

       Although not explicitly stated in the district court’s order, Yaritz’s petition is also

barred pursuant to State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The Knaffla

rule requires that once a direct appeal has been taken, all claims raised in the appeal, and

all claims known or should have been known at the time of appeal, will not be considered

in a subsequent petition for postconviction relief. 309 Minn. at 252, 243 N.W.2d at 741.

The Knaffla rule contains two exceptions. A claim known but not raised on direct appeal

is not barred “if the claim’s novelty was so great that its legal basis was not reasonably


                                               6
available when direct appeal was taken.” Leake v. State, 737 N.W.2d 531, 535 (Minn.

2007). A claim is also not Knaffla barred in limited situations where “fairness so requires

and if the petitioner did not deliberately and inexcusably fail to raise the issue on direct

appeal.” Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (quotation marks omitted).

       The Knaffla bar is implicated here because Yaritz currently raises a claim that

should have been known at the time of his direct appeal. Yaritz began his direct appeal

on January 6, 2010. While the briefing process in Yaritz’s appeal was still ongoing, this

court issued the Peterson opinion in June of 2010. Despite the availability of the

Peterson opinion, Yaritz made no reference to it during any of his briefs to this court.

Because a claim based on the Peterson opinion was available to Yaritz at the time of his

direct appeal, he is barred from bringing any such claim unless he can establish that an

exception applies.1

       Yaritz does not argue that his claims fit within the first Knaffla exception. Instead,

Yaritz once again relies on the interest-of-justice exception. To qualify under this

exception, “a claim must have merit and must be asserted without deliberate or

inexcusable delay.” Wright v. State, 765 N.W.2d 85, 90 (Minn. 2009). But Yaritz—who

was made aware of the conditional-release period during sentencing—now offers no

1
  Yaritz makes additional reference to the Cote opinion, which would not have been
available to him during his direct appeal as it was not issued until 2011. However, Cote
simply restates the position this court took in Peterson, namely that violations which take
place during the supervised-release period cannot extend beyond completion of the
sentence into the conditional-release period. As such, any argument made available by
the Cote opinion would have already been made available by the Peterson opinion, and
thus the Knaffla bar remains. Notably, this analysis means that Yaritz’s claim is even
more tardy because his two-year deadline is not November 15, 2013 (two years after
Cote), but rather June 29, 2012 (two years after Peterson).

                                              7
reason explaining why he failed to bring his claim on direct appeal when the Peterson

opinion was available to him at that time. Because Yaritz’s current claim is asserted with

“inexcusable delay,” the interest-of-justice exception does not apply and is thus Knaffla

barred.

       Because his claim is both time barred and Knaffla barred, the district court did not

abuse its discretion when it dismissed Yaritz’s petition for postconviction relief.2

       Affirmed.




2
  Although we decline to reach the merits of Yaritz’s appeal, we note that Yaritz offers no
explanation as to how the Peterson and Cote opinions invalidate his guilty plea. At issue
in Peterson and Cote was whether a violation during the supervised-release period could
result in sanctions which extend incarceration beyond the sentence’s duration and into the
conditional-release period See Peterson, 784 N.W.2d at 845; State ex rel. Cote v. Roy,
No. A11-727 (Minn. App. Nov. 15, 2011) (order op.), review denied (Minn. Jan. 25,
2012). But that is not the scenario here. Yaritz is still serving his sentence and has not
yet entered into the supervised-release period. As such, the Peterson and Cote opinions
are not relevant to the validity of his guilty plea.

                                              8
