                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-0958

Waseca County                                                                Lillehaug, J.


Michael Wayne, petitioner,

                      Appellant,

vs.

State of Minnesota,                                                Filed: March 11, 2015
                                                                Office of Appellate Courts
                      Respondent.

                              ________________________

Michael Wayne, Moose Lake, Minnesota, pro se.

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul
Minnesota; and

Paul Dressler, Waseca County Attorney, Waseca, Minnesota, for respondent.
                            ________________________

                                      SYLLABUS

       Appellant’s sixth petition for postconviction relief from his 1987 conviction is

barred by the time limit in Minn. Stat. § 590.01, subd. 4(a) (2014).

       Affirmed.

       Considered and decided by the court without oral argument.




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                                        OPINION

LILLEHAUG, Justice.

         In 1987, following a jury trial, the district court convicted Michael Wayne of first-

degree murder for the stabbing death of Mona Armendariz and sentenced him to life in

prison. We affirmed Wayne’s conviction on direct appeal. State v. Fenney (Wayne I),

448 N.W.2d 54, 62 (Minn. 1989) (consolidated direct and postconviction appeals).1

Wayne filed four petitions for postconviction relief, as well as a motion for

postconviction DNA testing under Minn. Stat. § 590.01, subd. 1a (2014). All five prior

postconviction petitions or motions were denied, and this court affirmed each denial.

Wayne I, 448 N.W.2d 54; Wayne v. State (Wayne II), 498 N.W.2d 446 (Minn. 1993);

Wayne v. State (Wayne III), 601 N.W.2d 440 (Minn. 1999); Wayne v. State (Wayne IV),

747 N.W.2d 564 (Minn. 2008); Wayne v. State (Wayne V), 832 N.W.2d 831 (Minn.

2013).

         In his sixth petition, filed in 2013, Wayne primarily argues that he is entitled to

postconviction relief under Minn. Stat. § 590.01 (2014), because he was denied effective

assistance of trial counsel, as guaranteed by the Sixth Amendment to the United States

Constitution and Article I, Section 6 of the Minnesota Constitution. Specifically, Wayne

alleges that he received ineffective assistance of counsel because he was not informed of

a plea offer purportedly discussed during an in-chambers meeting that occurred during

1
       Our opinion in Wayne I contains a detailed factual description of the murder and
evidence presented at trial. We limit our discussion here to facts directly relevant to this
petition and appeal.


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his trial.2 Additionally, Wayne filed a motion for a postconviction evidentiary hearing

pursuant to Minn. Stat. § 590.04 (2014). The postconviction court denied Wayne’s

petition without an evidentiary hearing, concluding that his claim was time-barred under

Minn. Stat. § 590.01 and procedurally barred under State v. Knaffla, 309 Minn. 246, 252,

243 N.W.2d 737, 741 (1976). Wayne appealed.

       We review the denial of postconviction relief for abuse of discretion. Reed v.

State, 793 N.W.2d 725, 729 (Minn. 2010). In other words, “a matter will not be reversed

unless the postconviction court exercised its discretion in an arbitrary or capricious

manner, based its ruling on an erroneous view of the law, or made clearly erroneous

factual findings.” Id. We review questions of law de novo. Sanchez-Diaz v. State, 758

N.W.2d 843, 846 (Minn. 2008).

       A person convicted of a crime may file a petition for postconviction relief under

Minn. Stat. § 590.01, subd. 1. The postconviction court must hold an evidentiary 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. “A postconviction

court may summarily deny a petition for postconviction relief when the petition is time


2
        Wayne also impliedly raises three additional claims in his petition and supporting
memorandum of law: (1) that he received ineffective assistance of trial counsel because
he was represented by a family law attorney who was inexperienced in first-degree
murder cases or criminal law, more generally; (2) that he was not permitted to be present
during an in-chambers discussion regarding jury instructions, in violation of the Sixth
Amendment; and (3) that immediately following trial, certain jurors wished to change
their verdicts to “not guilty.” These claims, if they were in fact intended to be claims, are
forfeited on appeal to this court because they were not addressed in Wayne’s briefs. See
Rainer v. State, 566 N.W.2d 692, 694 n.1 (Minn. 1997).

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barred.” Staunton v. State, 842 N.W.2d 3, 7 (Minn. 2014) (citing Riley v. State, 819

N.W.2d 162, 170-71 (Minn. 2012)).

       All petitions for postconviction relief must be filed within 2 years of the final

disposition of the petitioner’s direct appeal. Minn. Stat. § 590.01, subd. 4(a). Petitioners

like Wayne whose convictions became final before August 1, 2005, the effective date of

the time limit, were required to file their postconviction petitions on or before July 31,

2007. Sanchez v. State, 816 N.W.2d 550, 555 (Minn. 2012). Wayne’s sixth petition is

untimely under Minn. Stat. § 590.01, subd. 4(a), because Wayne filed it in 2013—well

after the July 31, 2007 deadline.

       Wayne argues, however, that two of the exceptions to the time limit set forth in

Minn. Stat. § 590.01, subd. 4(b), apply to his claim. First, Wayne argues that he “asserts

a new interpretation of federal . . . constitutional . . . law” by the United States Supreme

Court that is retroactively applicable to his case. Minn. Stat. § 590.01, subd. 4(b)(3).

Wayne specifically asserts that Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399 (2012), and

Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376 (2012), established a new interpretation of

Sixth Amendment law regarding ineffective assistance of counsel in the plea negotiation

context. Even were we to assume that Frye and Cooper announced a new rule of federal

constitutional law, such rule would apply to Wayne’s claim of ineffective assistance only

if he established that a plea offer was actually made. See Frye, 132 S. Ct. at 1408

(holding that “as a general rule, defense counsel has the duty to communicate formal

offers from the prosecution to accept a plea” (emphasis added)); Cooper, 132 S. Ct. at

1384, 1387 (noting that the issue addressed by the Court, namely how to establish that a

                                             4
defendant was prejudiced when ineffective advice of counsel resulted in a rejection of a

plea offer, “simply does not arise” if “no plea offer is made”).

       The sole factual support Wayne offers for his claim that a plea offer was made but

not communicated are isolated statements from a portion of the trial transcript

documenting an in-chambers conference about jury instructions. Wayne highlights an

exchange between the prosecutor and Wayne’s defense counsel relating to whether

defense counsel wished to withdraw a prior request “for manslaughter.” Wayne argues

that the exchange refers to a plea offer that would have involved Wayne pleading guilty

to manslaughter. The postconviction court, however, found that the statements cited by

Wayne “evince a discussion of jury instructions—not any sort of plea negotiation, offer,

or withdrawal.”

       On their face, the statements cited by Wayne support the postconviction court’s

finding. The court stated that it was convening in chambers with counsel to discuss jury

instructions. The court and counsel discussed a proposed aiding and abetting instruction.

When the court asked if there was “[a]nything else,” the prosecutor noted that defense

counsel had “asked for manslaughter one time.” Defense counsel responded, and the

court confirmed, that defense counsel withdrew the request. The context shows clearly

that the discussion was about instructions and had nothing to do with any plea offer.

Accordingly, Frye and Cooper are not applicable to Wayne’s claim.                Thus, the

subdivision 4(b)(3) exception to the statutory time limit is inapplicable.

       Wayne also urges that his petition fits within the subdivision 4(b)(5) exception to

the time limit. This exception requires that the petitioner “establish[] to the satisfaction

                                              5
of the court that the petition is not frivolous and is in the interests of justice.” Minn. Stat.

§ 590.01, subd. 4(b)(5). A petition is frivolous when “it is perfectly apparent, without

argument, that the claims in the petition lack an objective, good-faith basis in law or

fact.” Wallace v. State, 820 N.W.2d 843, 850 (Minn. 2012). Because the record offers

no suggestion that there was a plea offer, it is apparent without argument that Wayne’s

claim of ineffective assistance of counsel lacks an objective basis in fact. The exception

is inapplicable.

       Because Wayne’s petition is untimely under Minn. Stat. § 590.01, subd. 4(a), and

because neither of the exceptions on which he relies applies, his petition is time-barred.3

The district court did not abuse its discretion by denying Wayne’s petition for

postconviction relief without an evidentiary hearing.

       Affirmed.




3
       Wayne also argues that his claim is not barred under Knaffla, 309 Minn. at 252,
243 N.W.2d at 741, because the exceptions to the Knaffla rule apply. We need not
address the Knaffla issue because the petition is time-barred under Minn. Stat. § 590.01,
subd. 4. Additionally, we do not address the applicability of Minn. Stat. § 590.01,
subd. 1 (“A petition for postconviction relief after a direct appeal has been completed
may not be based on grounds that could have been raised on direct appeal of the
conviction or sentence.”), because it was not referenced by the postconviction court.

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