                           This opinion will be unpublished and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
                                      A15-0385

                             Kim Marie Robberstad, petitioner,
                                       Appellant,

                                             vs.

                                     State of Minnesota,
                                        Respondent.

                                  Filed January 25, 2016
                                         Affirmed
                                       Smith, Judge

                             Washington County District Court
                                File No. 82-CR-09-7341

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

Pete Orput, Washington County Attorney, Peter S. Johnson, Assistant County Attorney,
Stillwater, Minnesota (for respondent)

       Considered and decided by Ross, Presiding Judge; Hooten, Judge; and Smith, Judge.

                         UNPUBLISHED OPINION

SMITH, Judge

       We affirm the postconviction court’s denial of appellant’s petition for

postconviction relief because appellant’s petition was untimely and she fails to satisfy any

exception to the statute of limitations.
                                          FACTS

       On August 14, 2009, drug enforcement agents and police officers executed a search

warrant at a residence in the City of St. Paul Park. Several individuals, including appellant

Kim Marie Robberstad, were present at the residence. During a search of the residence,

agents discovered, among other drug paraphernalia, a plastic container and a small bag,

each containing a crystal substance. The plastic container was found in a zippered case

and the bag was found in a safe. The St. Paul Police Department Crime Lab (SPPDCL)

later tested the crystal substance and identified the substance as methamphetamine.

       During a Mirandized interview, Robberstad stated that she and her mother, husband,

and three children lived at the residence. She admitted to using methamphetamine in the

past, but stated that she had recently stopped. Robberstad also stated that she knew the

contents of the safe and admitted that the zippered case belonged to her. Further, she

admitted that a piece of paper with notes indicating the sale of drugs belonged to her.

During a Mirandized interview, Robberstad’s husband stated that the drug paraphernalia

belonged to Robberstad. He denied that any of the methamphetamine that was found was

his and told officers “it was probably [Robberstad’s].”

       On August 9, 2010, Robberstad pleaded guilty to fifth-degree possession of a

controlled substance. At the plea hearing, Robberstad stated that the methamphetamine

found in the plastic container was hers, that she told law enforcement it was hers, and that

she possessed methamphetamine on that date. On October 29, 2010, the district court

accepted Robberstad’s guilty plea. The district court then stayed execution of a 13-month

sentence and placed her on probation. Robberstad did not pursue a direct appeal.


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       On July 19, 2014, Robberstad filed a petition for postconviction relief, seeking to

withdraw her guilty plea. Her petition was based on revelations that the SPPDCL had

inadequate training and testing protocols. See generally Roberts v. State, 856 N.W.2d 287,

289 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015). Robberstad acknowledged

in her petition that she did not comply with the general two-year statute of limitations, but

she sought to invoke the newly-discovered-evidence and interests-of-justice exceptions to

the two-year statute of limitations.

       In January 2015, the postconviction court denied Robberstad’s petition without an

evidentiary hearing. The postconviction court reasoned that Robberstad could not satisfy

either of the two exceptions to the two-year statute of limitations that she invoked in her

petition.

                                       DECISION

                                              I.

       Robberstad argues that the postconviction court erred by summarily denying her

petition for postconviction relief. We review a summary denial of postconviction relief for

abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “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).

       A person convicted of a crime who claims that her conviction or sentence violated

her constitutional rights may file a petition for postconviction relief. Minn. Stat. § 590.01,

subd. 1 (2014). Petitions 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


                                              3
(2) an appellate court’s disposition of petitioner’s direct appeal.” Id., subd. 4(a) (2014). A

petition filed after the two-year time limit may be considered if it satisfies one of five

statutory exceptions. See id., subd. 4(b) (2014). But any petition relying on an exception

to the two-year statute of limitations is subject to another limitations period, which provides

that the petition “must be filed within two years of the date the claim arises.” Id., subd.

4(c) (2014); see also Sanchez v. State, 816 N.W.2d 550, 552 (Minn. 2012).

       Accordingly, “[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.’”

Roberts, 856 N.W.2d at 290 (quoting Riley, 819 N.W.2d at 168). “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. Here,

Robberstad does not deny that her petition was outside the two-year time limit, but argues

that the newly-discovered-evidence and interests-of-justice exceptions apply.

A.     Newly-Discovered-Evidence Exception

       Under the newly-discovered-evidence exception, a postconviction petition that is

filed after the two-year statute of limitations may be considered if five requirements are

satisfied: (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,” (3) “the evidence is not

cumulative,” (4) the evidence “is not for impeachment purposes,” and (5) the evidence




                                              4
“establishes by a clear and convincing standard that the petitioner is innocent.” Minn. Stat.

§ 590.01, subd. 4(b)(2); see also Riley, 819 N.W.2d at 168.

       The postconviction court reasoned that the newly-discovered-evidence exception

does not apply because Robberstad cannot satisfy the second and fifth requirements.

Robberstad argues that the second and fifth requirements are satisfied because the problems

at the SPPDCL could not have been discovered through due diligence until after they came

to light in 2012 and that “the evidence would probably result in an acquittal or more

favorable result at trial.” However, as the postconviction court noted in its order, we

rejected nearly identical arguments in Roberts. 856 N.W.2d at 292 (holding that appellant

did not meet his burden to establish that the new evidence regarding the SPPDCL could

not have been discovered with due diligence or that the new evidence clearly and

convincingly established his innocence). As in Roberts, in her plea hearing, Robberstad

did not challenge the identity of the substance she possessed. See id. at 291-92. She neither

offered evidence regarding the chemical composition of the substance, nor claimed that the

substance was not methamphetamine. She makes no specific allegations concerning the

testing done in her case, and expressly gave up her right to challenge the state’s evidence

by pleading guilty. Further, like Roberts, Robberstad also faced nonscientific evidence of

guilt, including her admissions that she has previously used methamphetamine, that the

paraphernalia and methamphetamine belonged to her, and that she knew methamphetamine

was in the residence that day. See id. at 292. Robberstad’s husband also told law

enforcement that the paraphernalia was Robberstad’s and that the methamphetamine was

“probably hers.”


                                             5
         Robberstad attempts to distinguish Roberts by pointing out that, even if the SPPDCL

reports had been diligently reviewed, it would have taken an attorney with special

qualifications to uncover the testing deficiencies. But Robberstad, like Roberts, has not

shown that she or her attorney ever made an attempt to investigate the test results or that

anyone prevented her or her attorney from doing so. See id. at 291. Because Robberstad

has failed to establish all of the elements of the newly-discovered-evidence exception, the

postconviction court did not abuse its discretion by concluding that the exception does not

apply.

B.       Interests-of-Justice Exception

         Under the interests-of-justice exception, a postconviction petition that is filed after

the two-year statute of limitations may be considered if “the petition is not frivolous and is

in the interests of justice.” Minn. Stat. § 590.01, subd. 4(b)(5). This exception applies only

in extraordinary circumstances. Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010).

Non-exclusive factors to consider in determining whether to apply the interests-of-justice

exception include whether the claim has “substantive merit,” whether the defendant

“deliberately and inexcusably failed to raise the issue on direct appeal,” the degree to which

each party is at fault for the alleged error, whether “fundamental unfairness to the

defendant” will result, and whether invoking the exception is “necessary to protect the

integrity of judicial proceedings.” Id. at 586-87. The supreme court recently clarified that

the interests-of-justice exception “relate[s] to the reason the petition was filed after the

two-year time limit in subdivision 4(a), not the substantive claims in the petition,” such

that “the interests-of-justice exception is triggered by an injustice that caused the petitioner


                                                6
to miss the primary deadline in subdivision 4(a), not the substance of the petition.”

Sanchez, 816 N.W.2d at 557.

       The postconviction court reasoned that the interests-of-justice exception does not

apply because Robberstad had the opportunity to investigate the validity of her test results

and declined to do so. Robberstad argues that this exception is satisfied for two reasons.

First, she contends that she has meritorious claims. In making this argument she refers to

the substantive claims that she alleged in her postconviction petition and continues to

pursue on appeal. Because the merits of Robberstad’s postconviction petition have no

bearing on the applicability of the interests-of-justice exception to the statute of limitations,

we will not review them for purposes of determining the applicability of the interest-of-

justice exception. See Sanchez, 816 N.W.2d at 557.

       Second, Robberstad contends that the state should be held responsible for the

problems with the SPPDCL and the lack of any disclosure of those problems within the

two-year limitations period. As the postconviction court noted in its order, we rejected the

same argument in Roberts. 856 N.W.2d at 293. Like Roberts, Robberstad had the

“opportunity to investigate the validity of the test results . . . and [she] declined to do so,”

which means that she is “at fault for her failure to discover the problems at the crime lab

before [she] pleaded guilty.” See id. Further, as we reasoned in Roberts, there is “no

fundamental unfairness that needs to be addressed” because “it is not fundamentally unfair

to hold [Robberstad] accountable for [her] choice to accept the state’s scientific evidence

at face value and resolve [her] case with a guilty plea in exchange for a reduced sentence.”

Id. It is also not “necessary to act in the interests of justice to protect the integrity of the


                                               7
judicial proceedings” because the problems at the SPPDCL do “not stem from a flaw in

the judicial process.” Id.

       Because Robberstad has not satisfied all of the requirements of the interests-of-

justice exception, the postconviction court did not abuse its discretion by concluding that

the exception does not apply.

                                                  II.

       Robberstad argues that the postconviction court erred when it denied her request for

an evidentiary hearing.      A postconviction court’s decision on whether to hold an

evidentiary hearing is reviewed for an abuse of discretion. Riley, 819 N.W.2d at 167. A

postconviction petitioner is not entitled to an evidentiary hearing if “the petition and files

and records of the proceeding conclusively show that the petitioner is entitled to no relief.”

Minn. Stat. § 590.04, subd. 1 (2014). An evidentiary hearing is required only if “there are

material facts in dispute that must be resolved to determine the postconviction claim on its

merits.” Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

       The postconviction court’s analysis and our analysis do not depend on the resolution

of disputed facts. Robberstad did not submit an affidavit in support of her petition and

there are no facts that need to be developed to address the question of whether exceptions

to the statute of limitations are established. Therefore, Robberstad has not shown that the

postconviction court abused its discretion by denying her request for an evidentiary

hearing. See id. at 374.

       Affirmed.




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