AC FORD v. State

• Decision Date: 13 January 2005
• Docket Number: No. A04-282.,A04-282.
• Citation: 690 N.W.2d 706
• Parties: A.C. FORD, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

690 N.W.2d 706

A.C. FORD, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A04-282.

Supreme Court of Minnesota.

January 13, 2005.

Considered and decided by the court en banc without oral argument.

OPINION

BLATZ, Chief Justice.

A.C. Ford appeals from the postconviction court's denials of his third and fourth petitions for postconviction relief. On May 28, 1993, a jury found Ford guilty of first-degree premeditated murder and first-degree murder of a peace officer in connection with the shooting death of Minneapolis Police Officer Jerome Haaf. State v. Ford, 539 N.W.2d 214, 217 (Minn.1995), cert. denied, 517 U.S. 1125, 116 S.Ct. 1362, 134 L.Ed.2d 529 (1996). Ford was also found guilty of attempted first-degree murder of Gerald Lubarksi, a citizen bystander to the Haaf shooting. Id. On direct appeal, we affirmed Ford's convictions but reversed and remanded on a sentencing issue.¹ Id. Subsequently, Ford filed four petitions for postconviction relief, all of which were denied by the postconviction court. Ford began to appeal the denials of his first and second petitions for postconviction relief, but did not perfect the appeals. The postconviction court denied Ford's third petition on March 27, 2003, but Ford did not file a motion to amend the petition until November 20, 2003. Because there was no pending petition at the time, the postconviction court treated the November 20 motion as a fourth petition for postconviction relief (hereinafter "fourth petition"). In the fourth petition, Ford claimed that two communications between the judge and the jury during jury deliberations violated his right to be present at trial. The postconviction court denied relief without holding an evidentiary hearing. Ford filed a notice of appeal from the denials of his third and fourth petitions on February 25, 2004. We hold that we lack jurisdiction over the untimely appeal from Ford's third petition for postconviction relief and affirm the denial of Ford's fourth petition for postconviction relief without an evidentiary hearing.

I.

Before we address the substance of Ford's claims, we must first address whether we have jurisdiction over Ford's appeal from the March 27, 2003 denial of his third petition for postconviction relief. Ford did not file his notice of appeal until February 25, 2004, almost eleven months after the postconviction court denied relief. Under Minn. R.Crim. P. 29.03, subd. 3, a petitioner must appeal a final order in a postconviction proceeding within 60 days after entry of that order. For good cause, one extension of 30 days may be granted. Id.

Ford argues that we should consider his untimely appeal because he alleges that he did not receive notice of the entry of the postconviction court's order denying his third petition. We have held, however, that the time requirements for the filing of an appeal are jurisdictional. See, e.g., State v. Parker, 278 Minn. 53, 55, 153 N.W.2d 264, 266 (1967)

. Even when a party has not received notice of the entry of an order, the court has not extended the time for appeal. See Tombs v. Ashworth, 255 Minn. 55, 62, 95 N.W.2d 423, 428 (1959) (holding that failure of the clerk to comply with Rule 77.04 requiring service of notice of entry of judgment does not extend the time for appeal); State v. Scott, 529 N.W.2d 11, 12 (Minn.App.) (stating that the court cannot extend the time to appeal even when defendant did not have notice of entry of the order), rev. denied (Minn. March 14, 1995); accord United States v. Robinson, 361 U.S. 220, 229-30, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960) (filing of notice of appeal in criminal case after expiration of time prescribed did not confer jurisdiction of the appeal even though the later filing was the result of excusable neglect). Accordingly, we hold that we lack jurisdiction over Ford's untimely appeal from the denial of his third postconviction petition.

II.

Recognizing that we lack jurisdiction over Ford's appeal of his third petition for postconviction relief, the remaining issue is whether the postconviction court erred when it denied, without an evidentiary hearing, Ford's fourth petition for postconviction relief. Specifically, the fourth petition sets forth his claims that two separate instances of communication between the judge and the jury occurred outside of open court and without Ford's knowledge, consent, or presence and therefore violated his right to be present at trial. The postconviction court denied relief as to both claims.

A full statement of the underlying facts in this case is set forth in our decision on Ford's direct appeal. Ford, 539 N.W.2d at 217. To provide a context for the present appeal, however, the following additional facts are necessary. On May 28, 1993, during jury deliberations, the jury sent two written notes to the substitute trial judge.² The first note, sent at 4:22 p.m. and written directly on a copy of the jury instructions, concerned the transferred intent instruction relating to the attempted murder of Lubarski. The court's instruction to the jury on the "intent element" of attempt to commit first-degree murder was as follows:

[The] defendant or another aided and abetted by the defendant intended to commit the crime of murder in the first degree. The statutes of Minnesota define that crime as follows: whoever causes the death of a human being with premeditation and with the intent to effect the death of the person or another is guilty of murder in the first degree.

With respect to the instruction's use of the term "human being," a juror wrote: "Who is this in reference to? Haaf or Lubarski?" Referring to the term "person or another," a juror wrote: "Does this mean Haaf or Lubarski?"

Further, on the jury instruction defining "attempt to commit a crime," a juror circled the sentence which stated: "An act by a person who intends to commit a crime is an attempt if the act itself clearly indicates the intent to commit that specific crime and if [it] tends directly to accomplish the crime." Within the circled sentence, the juror underlined the word "specific" and wrote below it: "Does the intent have to be specifically against Lubarski?"

Upon receipt of the jury questions and in Ford's absence, the substitute judge contacted the attorneys for both parties. The judge conferred with the attorneys via a telephone conference that was recorded by a stenographic court reporter. After consensus was reached, the judge sent a reply note to the jury stating: "You must rely on all the instructions as given to you by [the trial judge] in answering the questions you have posed. The answer to your question is contained in the instructions."

Later, at approximately 4:54 p.m., the jury sent the trial judge a second note: "We, the jury for case no. 92095955, request that our deliberation materials as well as a copy of each of the charges and instructions to the jury be returned to us by contacting juror # 7 at [telephone number redacted]."³ Without contacting counsel, the substitute judge responded in writing at 5:00 p.m. that "[a]ll materials in the jury room will be preserved pending resolution by [the trial judge]." After the jury returned its verdict, the substitute judge referred to the second note on the record stating: "a request was sent out about the various materials that apparently you have in the jury room. I am not sure what it is, notes or whatever. And the request made came out that those be preserved."

Ford's claims of error arise out of the fact that he was not present when the trial court received and responded to these two communications from the jury. When reviewing a postconviction decision, we must determine "whether there is sufficient evidence to sustain the postconviction court's findings," and we will not disturb a postconviction court's decision absent an abuse of discretion. Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001) (citing Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)). A petitioner seeking postconviction relief has the burden of establishing by "a fair preponderance of the evidence" the facts alleged in the particular petition. Minn.Stat. § 590.04, subd. 3 (2002); see also Sanders, 628 N.W.2d at 600

. A petitioner's allegations must be "more than argumentative assertions without factual support." Hodgson, 540 N.W.2d at 517 (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).

As to the first communication from the jury, regarding the jury instructions and the definitions of words contained therein, Ford claims that the trial court erred by failing to have him present and by failing to make a contemporaneous record of his waiver of the right to be present. The state concedes it was error not to secure Ford's presence or, in the alternative, his waiver of his right to be present. However, the state argues that Ford should have raised the issue on direct appeal and that the claim is precluded under our decision in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The postconviction court agreed with the state's position and found that Ford's claim was barred.

In Knaffla, we held that once a direct appeal has been taken, "all matters raised therein and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief." 309 Minn. at 252, 243 N.W.2d at 741 (Knaffla rule). There are two exceptions to this rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require relief. Ives v. State, 655 N.W.2d 633, 636 (Minn.2003). The second exception may be applied when fairness so requires and the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

Ford did not raise this first jury communication on direct appeal or in any of his previous three petitions for postconviction relief. Nevertheless, Ford argues that the Knaffla exception allowing review in the "interests of justice"...