In Re the Welfare of: S.K.M., minor child, and Glen William Mosher, Respondent, and Tiffany Marie Vacura, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-277

State of Minnesota,
Respondent,
 
 
vs.
 
Jesse L. Lee, a/k/a Dennis L. Wiesinger,
Appellant.

 

Filed October 12, 1999

Affirmed

Crippen, Judge

Ramsey County District Court

File No. 27854

 

Mike Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN,

Judge

When determining appellant's postconviction petition for resentencing under the Minnesota Sentencing Guidelines, the district court refused to grant appellant an evidentiary hearing. Appellant contends there were material issues of fact warranting a hearing. Because the record conclusively demonstrates that appellant is not entitled to relief, we affirm.

 

FACTS

In 1976, appellant Jesse Lee (a/k/a Dennis Wiesinger) pleaded guilty to aggravated sodomy and kidnapping as a result of a 1975 incident in which appellant raped a woman and stabbed her numerous times with a file. At the time of the incident, appellant was on parole, having served two years for a 1972 rape conviction. The court imposed and ordered execution of concurrent indeterminate sentences of 0-30 years for aggravated sodomy and 0-40 years for kidnapping. Appellant was also committed as a psychopathic personality as a condition of the plea agreement, but was to receive prison credit for time spent in the St. Peter Security Hospital.

Following the 1976 convictions, appellant was transported to St. Peter; he escaped six months later. When he was apprehended a week after the escape, appellant was placed in the custody of the Commissioner of Corrections so that his prison sentence could begin. Appellant is expected to be in custody on his psychopathic personality commitment after he is released from prison, which is expected to occur in January 2003.

In June 1998, appellant filed a pro se petition for postconviction relief, requesting that he be resentenced under the Minnesota Sentencing Guidelines. After the state filed an answer to the petition, appellant filed a responsive memorandum pointing out allegedly material factual differences between his position and that of the state. Specifically, appellant disputed the state's assertion that he did not cooperate with sex-offender treatment and the state's portrayal of his discipline record while in prison. The district court denied appellant's request for resentencing without granting him an evidentiary hearing.

 

D E C I S I O N

1. Standard of Review

Generally, this court's only role when reviewing postconviction proceedings is to determine whether sufficient evidence exists to support the postconviction court's findings. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998). We are not to disturb the court's decision absent an abuse of its exercise of discretion. Id. But in this case, the district court acted without an evidentiary hearing, considering only whether the memoranda and supporting materials submitted by the parties permitted immediate denial of appellant's petition; this decision is largely analogous to a summary judgment in civil proceedings, which we review de novo. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) ("A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law."); see also Minn. R. Civ. P. 56.03 (same); Zip Sort, Inc. v. Commissioner of Revenue, 567 N.W.2d 34, 37 (Minn. 1997) (on appeal from a summary judgment, the reviewing court determines de novo whether there is a disputed issue of material fact). The evidence presented to the court is available to us in the same form. See Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 155 (Minn. App. 1990) (de novo review of trial court's refusal to amend complaint to add a claim for punitive damages), review denied (Minn. Oct. 5, 1990).

2. Legal Standards

A person who has been convicted and sentenced for a crime committed before May 1, 1980, may petition for resentencing under the Minnesota Sentencing Guidelines. Minn. Stat. § 590.01, subd. 3 (1998). Resentencing is not available unless the trial court specifically finds that early release of the petitioner "does not present a danger to the public and is not incompatible with the welfare of society." Id. The court must grant a hearing on the petition "[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 (1998); see Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (noting that an evidentiary hearing is not required unless facts are alleged that, if proved, would entitle a petitioner to the requested relief). The petitioner must establish the facts alleged in the petition "by a fair preponderance of the evidence." Minn. Stat. § 590.04, subd. 3 (1998).

3. Denial of Petition

Appellant's initial pro se petition for resentencing was based singularly on the premise that he is not a danger to the public because his psychopathic personality commitment requires that he remain confined after completion of his prison sentence. But appellant continues to challenge his civil commitment.[1] And "use of the civil commitment process is not to be anticipated or invited as a substitute for criminal incarceration to incapacitate chronic sex offenders." State v. Danforth, 573 N.W.2d 369, 378 (Minn. App. 1997) (criticizing the trial court for relying upon potential future civil commitment when sentencing a defendant), review denied (Minn. Feb. 19, 1998).

In a supplemental motion to the district court, appellant argued that he is not a danger to the public because his criminal record is relatively slight and he has had only two disciplinary incidents in prison. But after reviewing the materials submitted by both appellant and the state, the court denied appellant's petition for resentencing, finding that appellant "continues to present a danger to the public." The record requires this finding.

The district court acknowledged that appellant completed a behavior modification program prior to 1978, a chemical dependency program in 1988, and an anger management program in 1994. But the court properly considered appellant's prior conduct as evidence suggesting he has recidivistic characteristics. Appellant's past behavior includes a 1965 robbery conviction, a 1972 rape conviction, admitted attempted rapes in 1974, the 1975 offense for which he is presently jailed, and an escape from the St. Peter Security Hospital in 1976.

As the district court also noted, the Minnesota Corrections Board determined in 1977 that appellant presents an extreme danger to society, and appellant failed to complete a 1988 sex offender treatment program. The record includes undisputed evidence of appellant's statement that he only participated in the 1988 program in order to be transferred to a better prison setting. Other undisputed material shows that reasons for appellant's lack of success in the sex offender treatment included: (1) his refusal to accept responsibility for his behavior, (2) his assumption of a "victim role" and use of responsive anger to intimidate and control others, (3) his lack of understanding of the effects of his behavior on others, and (4) his low tolerance for frustration.

The district court also properly considered appellant's difficulties in prison. Appellant's disciplinary problems in prison include a 1992 threat to a corrections officer, for which appellant served 30 days in segregation, and a 1997 possession of a weapon offense, for which appellant served 60 days in segregation. Also in 1997, appellant experienced sleep difficulties, anxiety, and suicidal thoughts; he refused medication and was unable to cope with confinement in a regular cell. In 1998, appellant received the fourth denial of his petition for release from psychopathic personality commitment. Given this record, the district court correctly found that appellant remains a danger to the public.

Appellant contends that the postconviction court erred in not granting him an evidentiary hearing, arguing that his responsive memo to the court, in which he challenged the evidence before the trial court on three incidents, raises material issues of fact. But the alleged material issues of fact raised by appellant, even if true, do not contradict the trial court's finding that appellant remains a danger to society. Appellant first disputed the state's assertion that he did not cooperate with sex offender treatment. But appellant only claimed that his termination and transfer out of sex offender treatment was recommended by the treatment staff as a "time out." He did not deny his failings as a participant in the program nor address evidence that he voiced no desire to participate in the program. See State v. Kunshier, 321 N.W.2d 393, 394-95 (Minn. 1982) (citing petitioner's failure to complete treatment as a reason for denying resentencing).

Secondly, appellant alleged that the state misrepresented his discipline record in prison. He claimed that the 1992 threat to a corrections officer "consisted more of verbal abuse than of threatening," and that the object he possessed in 1997 was only a "screwdriver head," not a weapon. Given the record of appellant's dangerousness, the district court correctly observed that none of these assertions "would lead a court to conclude that his resentencing would not impose a risk to the safety of the public." And although appellant attempts to minimize his prison conduct, he does not challenge the penalties imposed, deny that he was abusive, or deny that he possessed a device that can be used as a weapon.

Finally, appellant presents no evidence minimizing the significance of his past offenses, past admissions of attempted crimes, the significance of his 1977 escape from treatment, or his suffering of severe anxieties in 1997. Even if appellant proved his assertions that he cooperated with treatment, that he only "verbally abused" an officer, and that he only possessed a part of a screwdriver he is still not eligible for resentencing because his assertions do not significantly contradict the trial court's finding that appellant remains a danger to society. See Minn. Stat. § 590.04, subd. 1 (no hearing necessary when the petition, files and records of the proceeding "conclusively show that the petitioner is entitled to no relief").

 

Affirmed.

[1] This court recently rejected a challenge by appellant to the combined effect of his civil commitment and prison sentence. In re the Matters of Lee, Kruger, Nos. CX-99-651, C1-99-652 (Minn. App. June 8, 1999), review denied (Minn. Aug. 25, 1999).