                            This opinion will be unpublished and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
                                       A15-1218

                                 Mark Oran Schorn, petitioner,
                                         Appellant,

                                               vs.

                                      State of Minnesota,
                                         Respondent.

                                      Filed May 16, 2016
                                           Affirmed
                                         Reilly, Judge

                                Ramsey County District Court
                                 File No. 62-K2-05-003338

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 Reilly, Presiding Judge; Connolly, Judge; and Stauber,

Judge.

                           UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges the denial of his petition for postconviction relief, arguing that

deficiencies uncovered at the St. Paul Police Department Crime Lab meet the requirements
of (1) the newly-discovered-evidence and (2) the interests-of-justice exceptions to the two-

year time-bar. Because the district court did not abuse its discretion, we affirm.

                                          FACTS

       In August 2005, Ramsey County deputies encountered appellant outside of a

residence carrying a knife and a night vision scope. Upon a search of appellant, a deputy

discovered a plastic baggie containing a substance suspected to be methamphetamine. The

St. Paul Police Department Crime Lab (SPPDCL) determined the substance tested positive

for methamphetamine. Appellant pleaded guilty to an amended charge of controlled

substance crime in the fifth degree in January 2006.

       In 2012, the SPPDCL was the subject of a Frye-Mack hearing in Dakota County

that revealed serious systematic errors in laboratory protocols and testing procedures at the

SPPDCL. In July 2014, more than eight years after pleading guilty, appellant filed a

petition for postconviction relief. The postconviction court denied his petition for relief

because it was untimely and no statutory exception to the time-bar applied. This appeal

follows.

                                     DECISION

       Appellant argues that the district court erred in summarily denying his petition for

postconviction relief because (1) his petition alleges the existence of newly discovered

evidence and (2) the petition is not frivolous and is in the interests of justice. “We review

a denial of a petition for postconviction relief, as well as a request for an evidentiary

hearing, for an 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


                                             2
view of the law or is against logic and the facts in the record.” Id. (internal citations

omitted). The postconviction court’s legal conclusions are reviewed de novo. Id.

       Minnesota’s postconviction relief statute provides that no petition 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”

unless it satisfies one of five statutory exceptions. Minn. Stat. § 590.01, subd. 4(a)-(b)

(2014). Appellant was sentenced in June 2006, and he did not appeal. His petition was

not filed until July 2014, more than eight years after his sentencing. Thus, if appellant is

unable to “demonstrate that an exception applies and that application of the exception is

timely, the postconviction court may summarily deny the petition as untimely.” Roberts v.

State, 856 N.W.2d 287, 290 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015).

Appellant argues two exceptions apply in this case. First, he argues that discovery of the

deficiencies at SPPDCL constitutes “newly-discovered-evidence” within the meaning of

Minn. Stat. § 590.01, subd. 4(b)(2). Second, he invokes the “interests-of-justice” exception

under Minn. Stat. § 590.01, subd. 4(b)(5).

                                              I.

       Appellant argues that the deficiencies at SPPDCL, which first came to light in 2012,

constitute newly discovered evidence such that the newly-discovered-evidence exception

applies.   See Minn. Stat. § 590.01, subd. 4(b)(2).        The newly-discovered-evidence

exception requires that the petitioner show that the evidence

              (1) is newly discovered; (2) could not have been ascertained by
              the exercise of due diligence by the petitioner or the
              petitioner’s attorney within the 2-year time-bar for filing a


                                              3
              petition; (3) is not cumulative to evidence presented at trial;
              (4) is not for impeachment purposes; and (5) establishes by the
              clear and convincing standard that petitioner is innocent of the
              offenses for which he was convicted.

Riley, 819 N.W.2d at 168.

       We recently considered whether the deficiencies at the SPPDCL met the newly-

discovered-evidence exception requirements in Roberts. 856 N.W.2d at 291. Roberts

guides the analysis of appellant’s newly-discovered-evidence exception. Here, as in

Roberts, the complaint informed appellant that the substance was submitted to the crime

lab for testing. Appellant had access to the test results under Rule 9.01 of the Minnesota

Rules of Criminal Procedure. Like Roberts, appellant does not contend that he made an

effort to investigate the test results, or claim that he was somehow prevented from doing

so. His only contention is that the deficiencies could not have been discovered through

ordinary due diligence. In Roberts, we determined that the SPPDCL deficiencies could in

fact be discovered through the exercise of due diligence, because those same deficiencies

were eventually discovered by a defendant in a criminal controlled substance case. Id.

       Appellant argues the present case is distinguishable from Roberts because he

submitted the affidavit of Lori Traub, the attorney who uncovered the deficiencies in the

SPPDCL in 2012, to support his argument that he could not have discovered the

deficiencies through the exercise of due diligence. In her affidavit, Ms. Traub asserts that

it was only because of her specialized training that she was able to uncover the deficiencies

at the SPPDCL. Ms. Traub’s training consisted of six weekend training sessions over a

period of 18 months. Specifically, Ms. Traub asserts that her training led to her decision



                                             4
to create a disclosure request to send to the SPPDCL. This led to her discovery that the

SPPDCL was not, and has never been, an accredited lab. Her affidavit states that an

attorney without scientific training would not have recognized any of these problems.

       We are not persuaded by appellant’s argument because, although Ms. Traub’s

specialized training may have played a role in her discovery of the deficiencies, that fact

does not mean that other attorneys could not have discovered the deficiencies through due

diligence.

       Further, the “new evidence” presented by appellant shows only that deficiencies

may have existed at the SPPDCL at the time that the suspected methamphetamine was

tested. It does not show that appellant did not possess a controlled substance, especially

when considered in light of the circumstances surrounding appellant’s arrest. To prove

innocence under the clear and convincing standard, “a party’s evidence should be

unequivocal, intrinsically probable and credible, and free from frailties.” Riley, 819

N.W.2d at 170 (quoting Gassler v. State, 787 N.W.2d 575, 583 (Minn. 2010)). “Actual

innocence is more than an uncertainty about guilt . . . [it] requires evidence that renders it

more likely than not that no reasonable jury would convict.” Id. And in this case, appellant

pleaded guilty and admitted he possessed methamphetamine. At no time did he assert he

was innocent of the charge.

       We conclude that appellant has not met his burden in establishing that the new

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

the new evidence clearly and convincingly establishes his innocence.            As such the

postconviction court did not abuse its discretion by refusing to consider appellant’s


                                              5
untimely petition under the newly-discovered-evidence exception to the statutory time-bar

to postconviction relief.

                                                  II.

       Appellant next argues that the “interests-of-justice” exception applies to his petition.

This exception requires a petition to establish “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). The interests-of-justice exception applies only in exceptional situations. Gassler,

787 N.W2d at 586. The supreme court has identified a “non-exclusive list of factors to be

considered” when determining whether this exception applies:

                 [C]ourts 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.

Id. at 586-87.

       We recently considered whether the interests-of-justice exception applies when

“[t]he alleged ‘error’ [was] the post-plea discovery of deficient testing at the crime lab.”

Roberts, 856 N.W.2d at 293. Here, as in Roberts, appellant had the opportunity to

challenge the validity of the test results. We recognized in Roberts that the information

regarding the SPPDCL could have influenced the defendant’s decision to waive his right

to a trial and plead guilty, but determined “it is not fundamentally unfair to hold [appellant]

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.” Id.



                                                  6
       Appellant asserts that his petition has substantive merit based on a Brady violation,

a due process violation, a manifest injustice, and ineffective assistance of counsel.

Appellant was represented by counsel and pleaded guilty, as such, his Brady argument and

due process argument fail because they have been waived. See State v. Ford, 397 N.W.2d

875, 878 (Minn. 1986) (explaining a counseled guilty plea “has traditionally operated, in

Minnesota and in other jurisdictions, as a waiver of all non-jurisdictional defects arising

prior to the entry of the plea”). Thus we need only address appellant’s arguments that he

received ineffective assistance of counsel and is entitled to withdraw his guilty plea based

on manifest injustice.

       Ineffective Assistance of Counsel

       Appellant argues that his attorney was ineffective in this case because he did not

demand and review the underlying SPPDCL file. Claims of ineffective assistance of

counsel require a party to show “(1) that his counsel’s representation ‘fell below an

objective standard of reasonableness’; and (2) ‘there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v.

Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). “The objective

standard of reasonableness is defined as representation by an attorney exercising the

customary skills and diligence that a reasonably competent attorney would perform under

similar circumstances.” State v. Vang, 847 N.W.2d 248, 266-67 (Minn. 2014) (internal

quotations omitted) (noting that counsel’s performance is presumed to be reasonable). We

need not analyze both prongs if one is determinative. Id. at 267.


                                             7
       Appellant cites State v. Nicks for the proposition that if counsel’s conduct or

decision results from inattention, as opposed to a strategic decision, then it may amount to

ineffective assistance of counsel. 831 N.W.2d 493, 507-08 (Minn. 2013). In Nicks, the

defendant’s attorney requested phone records that were relevant to his defense theory, but

then “inexplicably took no further action” when he did not receive the records that were

requested. Id. at 507. Appellant argues that, in his case, his counsel’s advice to accept a

plea was made as the result of counsel’s “unreasonable failure to investigate” the SPPDCL

test results.

       This case is distinguishable from Nicks. Unlike Nicks, there is no indication that

appellant’s counsel ever pursued a strategy of challenging the SPPDCL test results, and

then failed to follow up on that strategy. Instead, his counsel’s strategy involved weighing

the evidence and pursuing a plea agreement for appellant in exchange for a reduced

sentence. While his counsel may have been influenced by the test results, there is no

indication that this decision fell below an objective standard of reasonableness. Therefore,

it was not an abuse of discretion for the postconviction court to find that appellant’s claim

of ineffective assistance of counsel was without merit.

       Manifest Injustice

       Finally, appellant contends that it was an abuse of discretion for the postconviction

court to deny appellant’s motion to withdraw his guilty plea in order to correct a manifest

injustice. A manifest injustice exists when a plea is not valid. State v. Raleigh, 778 N.W.2d

90, 94 (Minn. 2010). A valid plea must be accurate, voluntary, and intelligent. Id.




                                             8
Appellant contends that he should be entitled to withdraw his plea because it was not

accurate, not voluntary, and not made intelligently.

       First, appellant argues that his plea was not accurate because it “could not be

factually accurate unless the [tested] substances actually contained a controlled substance.”

In order for a plea bargain to be accurate, it must contain a proper factual basis. Lussier v.

State, 821 N.W.2d 581, 588 (Minn. 2012). A proper factual basis requires that there be

“sufficient facts on the record to support a conclusion that defendant’s conduct falls within

the charge to which he desires to plead guilty.” Kelsey v. State, 298 Minn. 531, 532, 214

N.W.2d 236, 237 (Minn. 1974). In this case, appellant has not at any point contended that

the substance was not methamphetamine. At best, appellant could have called into question

the reliability of the state’s method for testing the suspected substance in this case. But the

record still contains evidence sufficient to conclude that appellant’s conduct is sufficient

for the crime to which he pleaded guilty. Appellant has not shown that his plea was

inaccurate.

       Second, appellant claims that the plea was not voluntary. He argues that because

the testing at SPPDCL was not credible, the results used against him constituted an

improper pressure that induced him to plead guilty. The voluntariness requirement exists

to ensure that a defendant does not plead guilty due to improper pressure or coercion.

Raleigh, 778 N.W.2d at 96. Voluntariness is determined by considering all relevant

circumstances. Id. At his plea hearing, appellant admitted to carrying the drugs, admitted

that the drugs belonged to him, and agreed that they tested positive for methamphetamine.




                                              9
However, his decision not to confront the state’s evidence and accept it at face value does

not mean that his plea was made under improper pressure or coercion.

       Third, appellant argues that his plea was not made intelligently because he did not

know about the testing deficiencies at SPPDCL. But the intelligence requirement only

requires “that a defendant understands the charges against him, the rights he is waiving,

and the consequences of his plea.” Raleigh, 778 N.W.2d at 96. In this case, the record

indicates that appellant fully understood the charges against him, the rights he waived,

including trial, and the consequences of his plea. Accordingly, it was not an abuse of

discretion for the postconviction court to find that appellant’s plea was made intelligently.

       In sum, appellant has failed to show that either the newly-discovered-evidence

exception or the interests-of-justice exception applies to his petition. “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.” Roberts, 856

N.W.2d at 290. Accordingly, it was not an abuse of discretion for the postconviction court

to deny appellant’s petition for postconviction relief, including the denial of an evidentiary

hearing.

       Affirmed.




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