Roby v. State Of Minn.

• Decision Date: 19 August 2010
• Docket Number: No. A10-399.,A10-399.
• Citation: 787 N.W.2d 186
• Parties: Gary L. ROBY, petitioner, Appellant,v.STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

787 N.W.2d 186

Gary L. ROBY, petitioner, Appellant,v.STATE of Minnesota, Respondent.

No. A10-399.

Supreme Court of Minnesota.

Aug. 19, 2010.

Syllabus by the Court

1. To determine whether a petition for postconviction relief invokes an exception to the two-year statutory time limitation under Minn.Stat. § 590.01, subd. 4 (2008), a court must look at the statement of the facts and grounds on which the petition is based, waiving any irregularities or defects in form and liberally construing the petition, to ascertain whether the petitioner raised an exception.

2. A petition for postconviction relief containing claims of newly discovered evidence and requesting that the petition be considered in the interests of justice sufficiently invoked the exceptions listed in Minn.Stat. § 590.01, subd. 4(b)(2) and (b)(5), such that the postconviction court erred in not considering whether the exceptions were established.

Gary L. Roby, Bayport, Minnesota, pro se.

Lori Swanson, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, MN, for respondent.

Considered and decided by the court without oral argument.

OPINION

MEYER, Justice.

Gary Roby was found guilty in 1989 of first-degree premeditated murder, first-degree felony murder, and second-degree murder for the shooting death of Marlizza McIntyre. Roby was convicted of the first-degree premeditated murder charge and sentenced to mandatory life in prison. Roby filed a direct appeal of his conviction, which we affirmed. Roby has since filed three petitions for postconviction relief. The first two were denied by the postconviction court, which we affirmed on appeal. In 2009, Roby filed his third petition for postconviction relief, which the postconviction court denied. This appeal followed. The primary issue on appeal is whether the postconviction court erred when it concluded that Roby had not properly invoked any of the exceptions set forth in Minn.Stat. § 590.01, subd. 4(b) (2008).

On August 31, 1989, Roby was convicted of first-degree premeditated murder after a Ramsey County jury trial and received a life sentence. The facts of Roby's case and the procedural history are set forth in more detail in State v. Roby ( Roby I ), 463 N.W.2d 506, 507-09 (Minn.1990). In short, the evidence at trial showed that Marlizza McIntyre was killed by one gunshot to her head while she was being held face down on the kitchen floor of a St. Paul apartment. According to a State's witness, Roby fired the fatal shot while several of his co-conspirators-James Roby, John Roby, and Lillian Dunn Simmons-held onto McIntyre's limbs and prevented her from standing up. The State's witness further testified that Roby then removed a necklace from around McIntyre's neck and some cash from inside her bra. A second witness, C.T., testified that Roby gave him the gun after the murder. A third witness, L.Y., testified that a week before the murder, Dunn Simmons asked for bullets for a revolver, said someone had been bothering her and “it had to be done.” L.Y. also testified that no one discussed the murder after it happened. L.Y. further testified that about 5 minutes after the gunshots she observed Roby, James Roby, John Roby, Katie Bell, and Dunn Simmons standing near the body in the kitchen. Neither Roby nor Dunn Simmons testified at trial.

Roby's defense was that Dunn Simmons shot McIntyre and determined by herself to rob and kill the victim. A.J. and S.L both testified that Dunn Simmons, not Roby, fired the fatal shot, which was consistent with Roby's defense.

Roby filed a direct appeal in 1990 through a state public defender accompanied by a pro se brief, and also filed two postconviction petitions, one in 1994 and the other in 1995. We affirmed both the conviction and the denial of Roby's first two postconviction petitions in Roby I, 463 N.W.2d at 510 Roby v. State ( Roby II ), 531 N.W.2d 482, 484 (Minn.1995), and Roby v. State ( Roby III ), 547 N.W.2d 354, 357 (Minn.1996), respectively.

On March 27, 2009, Roby filed his third petition for postconviction relief. Roby alleged the following newly discovered evidence: a 2002 letter from Dunn Simmons admitting she was the shooter; a 2003 affidavit from Dunn Simmons' brother stating he believes Dunn Simmons was the shooter; a police report from 1989 detailing Dunn Simmons' status as a police informant against her boyfriend, who was also dating the victim; a 2007 affidavit from Tiesha Bell claiming L.Y. recanted part of her testimony to Bell; and a 2008 affidavit from Charlene Hodges stating that C.T. recanted part of his testimony to her. Further, Roby petitioned that his claims be considered in the “interest of justice.” The State responded with a motion to dismiss on the grounds that Roby's claims were procedurally barred by Minn.Stat. § 590.01, subd. 4(c) (2008), failed on the merits, and did not entitle him to an evidentiary hearing.

The postconviction court issued an order ¹ on December 30, 2009, dismissing Roby's petition as untimely because Roby failed to “invoke any of the listed exceptions to the time limit as required by the [postconviction] statute.” The postconviction court did not address whether Roby's claims would have qualified for any of the exceptions to the two-year time limit on filing postconviction petitions, nor did it address any of Roby's claims on the merits. Roby appealed from that order.

Roby argues on appeal that the postconviction court erred in concluding that he failed to invoke any of the exceptions to the general time limit on filing for postconviction relief. Roby further argues that his claims qualify for an exception to the general time limit and should be considered by the court on the merits. The State argues that the postconviction court correctly concluded that Roby failed to invoke any of the exceptions and therefore the postconviction court properly declined to consider Roby's claims. The State further contends that Roby's claims, even if they meet an exception, are untimely because they were not filed within the time limit applicable to the exceptions. Finally, the State contends that Roby's claims are without merit and do not entitle Roby to an evidentiary hearing. The issue on appeal is whether the postconviction court erred when it failed to address Roby's claims based on its conclusion that Roby had not invoked any of the exceptions to the general two-year time limit.

Minnesota Statutes § 590.01, subd. 4 (2008) was added by a 2005 legislative amendment to the Postconviction Remedy Act, Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 1080, 1097-98, and provides two time limitations for postconviction petitions. First, subdivision 4(a) provides the general rule that “[n]o petition for postconviction relief 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.” ² Subdivision 4(b) provides certain exceptions to the general two-year rule. A petition for postconviction relief may be heard notwithstanding the general time limitation if:

(1) the petitioner establishes that a physical disability or mental disease precluded a timely assertion of the claim;

(2) the petitioner alleges the existence of newly discovered evidence, including scientific evidence, that could not have been ascertained by the exercise of due diligence by the petitioner or petitioner's attorney within the two-year time period for filing a postconviction petition, and the evidence is not cumulative to evidence presented at trial, is not for impeachment purposes, and establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted;

(3) the petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States Supreme Court or a Minnesota appellate court and the petitioner establishes that this interpretation is retroactively applicable to the petitioner's case;

(4) the petition is brought pursuant to subdivision 3; or

(5) the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.

Subdivision 4(c) provides a time limit for the exceptions, which is that “[a]ny petition invoking an exception provided in paragraph (b) must be filed within two years of the date the claim arises.”

The postconviction court first found that because Roby was convicted prior to August 1, 2005, when subdivision 4 took effect, he was “effectively required ... to file his petition within two years of that date, which was July 31, 2007.” The court further found that Roby did not file his petition until March 27, 2009, and therefore his petition was not brought within two years. Because Roby was convicted in 1989 and his conviction became final after a direct appeal in 1990, the postconviction court correctly determined that Roby's conviction was final before the effective date of the 2005 amendment, he was required to file his petition before July 31, 2007, and therefore the March 27, 2009, petition was filed after the general time limit had lapsed. See Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 1080, 1097-98.

Roby's petition alleges the existence of newly discovered evidence that he claims demonstrates that he was not the shooter and that several witnesses testified falsely as to the events surrounding the murder. Roby's petition further asks that the court review his claims “in the interest of justice.” Nevertheless, the postconviction court concluded that Roby failed to “invoke any of the listed exceptions to the time limit as required by the statute” and declined to consider the merits of the petition. Roby argues that he did invoke an exception, particularly the interests-of-justice exception in Minn.Stat. § 590.02,...