Steven M. Thul, petitioner, Respondent, vs. State of Minnesota, Appellant.

Steven M. Thul, petitioner, Respondent, vs. State of Minnesota, Appellant. A04-1811, Court of Appeals Unpublished, May 31, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1811

 

Steven M. Thul, petitioner,

Respondent,

 

vs.

 

State of Minnesota,

Appellant.

 

Filed May 31, 2005

Affirmed Willis, Judge

 

Anoka County District Court

File No. TX-00-21308

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for respondent)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Wilbur F. Dorn, Jr., Ham Lake City Attorney, Dorn Law Firm, Ltd., 9380 Central Avenue NE, #200,  Blaine, MN  55434 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            The state appeals from the district court's decision granting postconviction relief to respondent Steven Thul.  Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

In June 2000, a complaint filed in Anoka County district court charged respondent Steven Thul with misdemeanor offenses for failing to register his aircraft and for operating a helicopter in a restricted zoning area.  At an omnibus hearing in March 2001, Thul and the state stipulated to the following facts:  (1) that prior to March 1, 2000, Thul used his property for helicopter landings and takeoffs on numerous occasions; (2) that on February 29, 2000, the FAA issued Thul a favorable determination letter, written by airports-program analyst Michael Pinkley, but that this determination was contingent on Thul meeting four specified conditions; and (3) that three of the conditions were met before March 1, 2000.  At issue was whether the fourth condition, which required that warning signs be erected at the heliport site, was met before March 1, 2000.  Both Thul and the state agreed that if the required warning signs were erected before March 1, the ordinance violation should be dismissed. 

            At the hearing, Thul testified that by March 1, 2000, he had erected a hand-made, white tag-board sign that warned in black marker, "Caution, Heliport."  Thul testified that he stuck the sign in a small snowbank and that while his yard could be approached from more than one direction, the sign could be read from all approaches.  After the omnibus hearing, the district court determined that Thul had not complied with the FAA's requirements because he erected only one sign before March 1, 2000, and the letter from Pinkley required "signs."  

At trial in February 2002, Pinkley appeared as a witness, but neither the state nor Thul called him to testify.  Another judge of the district court found Thul guilty of operating a helicopter in a restricted zoning area and sentenced him to 30 days in jail, stayed; to a stayed $700 fine; and to one year of probation.  The district court relied on the determinations from the omnibus hearing as the law of the case. 

Thul appealed from this decision, but he then requested to stay his appeal.  This court filed an order to stay Thul's appeal and remanded his case to the district court for postconviction proceedings.  In July 2002, the district court denied Thul's request for postconviction relief.  This court affirmed the denial of postconviction relief in a published opinion.  Thul v. State, 657 N.W.2d 611 (Minn. App. 2003), review denied (Minn. May 28, 2003). 

In July 2003, Pinkley responded to a letter from Thul and wrote that the FAA did not mean for the term "warning signs" to be so literally applied and that "a single sign, if appropriately located, can suffice."  After receiving Pinkley's letter, Thul filed a petition for postconviction relief under Minn. Stat. § 590.01, requesting relief based on newly discovered evidence in the form of Pinkley's July 2003 letter. 

Pinkley testified at a postconviction hearing in May 2004.  He would not comment on the sufficiency for FAA compliance purposes of Thul's lone cardboard warning sign.  He testified that one sign may be sufficient when only one access to the landing/takeoff area exists but that at least two signs are necessary when there is more than one access or ingress/egress route.  He stated that the signs have to be visible from all approaches. 

The postconviction court determined that the sign Thul erected "was visible from every direction the yard could be approached from and was sufficient as a temporary sign," that the sign was posted by the March 1, 2000 deadline, and that the sign was "near the only access that is used by the general public." 

The postconviction court also determined that the intended meaning of "warning signs" described in Pinkley's 2003 letter was not newly discovered evidence because with due diligence it could have been discovered by the time of the March 2001 omnibus hearing.  But the postconviction court determined that the interests of justice and fairness warranted substantive review and that based on its interpretation of the letter, the charges against Thul could no longer be substantiated.  The postconviction court vacated the guilty verdict.  This appeal by the state follows.

D E C I S I O N

            "A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside."  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  Appellate courts "review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts "afford great deference to a district court's findings of fact and will not reverse the findings unless they are clearly erroneous."  Id.   We will not disturb the decision of a postconviction court unless the court abused its discretion.  Id.  

            The state argues that the postconviction court abused its discretion (1) by considering Thul's petition for postconviction relief in the interests of justice after it had determined that review of Thul's claim was not appropriate based on a claim of newly discovered evidence and (2) by granting Thul relief.   

            "Once a defendant directly appeals a conviction, all matters raised in that appeal or known at the time of appeal will not be considered by a postconviction court in a subsequent petition for relief."  King v. State, 649 N.W.2d 149, 156 (Minn. 2002) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).  This rule applies if the defendant should have known about the issue at the time of appeal.  Id.  Here, the postconviction court determined that Thul failed to learn of the intended meaning of the FAA determination letter because of a lack of due diligence.  Had Thul exercised due diligence, he should have known at the time of his appeal that it was a significant issue whether one sign could be sufficient.

            But this court may "allow for postconviction relief despite the fact that the claim[] could have been raised on direct appeal:  (1) where a novel legal issue that was not reasonably available to petitioner at the time of the direct appeal is presented; or (2) where the interests of fairness and justice require relief."  Thompson v. State, 691 N.W.2d 841, 843 (Minn. 2005).

            Here, the postconviction court determined that the interests of fairness and justice required review of Thul's postconviction claim.  The postconviction court explained that the omnibus court's order was based on the specific language of the FAA letter and that the omnibus court determined that Thul did not meet the FAA requirements because he had only erected one sign and the letter said "signs."  The postconviction court explained that the omnibus court did not have sufficient evidence to determine whether the one sign was appropriately located, that there was no discussion at the omnibus hearing or at trial of whether the one sign was appropriately located, and that

the trial court was not armed with the proper facts to make an informed decision on the Petitioner's guilt.  Certainly, if the trial court had been aware that the one sign that Petitioner erected could have been sufficient, the trial court would have listened to testimony regarding the issue of sufficiency.

 

Because the issue of whether one sign could satisfy the FAA requirements was essential to the determination of Thul's guilt and because Pinkley's 2003 letter states that one sign can be sufficient if it is appropriately placed, we conclude that the postconviction court did not abuse its discretion by granting review of Thul's claim.

            The state also argues that the interests of justice did not require granting Thul postconviction relief or the entry of a judgment of acquittal.  The postconviction court determined that Thul had erected one sign by March 1, 2000, and that the sign was sufficient to satisfy FAA requirements.  The postconviction court found (1) that the temporary sign erected by Thul was visible from every direction from which the yard could be approached and (2) that the sign was posted near the only access that is used by the general public. 

            At the omnibus hearing, Thul testified that he received the FAA determination letter on February 29, 2000.  He put up a warning sign by March 1, 2000, so that he would comply with the regulations and could make a test flight.  Thul testified that his yard could be approached from more than one direction.  But Thul also testified that his sign could be seen from people who might be approaching from both directions because his sign "faced northeast and northwest."  A friend of Thul's testified that he saw the sign on February 29, 2000, and that the sign faced the road on one side of Thul's house. 

            As noted above, the postconviction court acknowledged that evidence regarding the sign's sufficiency was not addressed at the March 2000 evidentiary hearing or at the trial.  At the May 2004 evidentiary hearing, little substantive evidence regarding the sign's sufficiency was introduced.  The postconviction court concluded that "the charges against [Thul] can no longer be substantiated" because of Pinkley's 2003 clarification of his 2001 letter.  We determine that the postconviction court did not abuse its discretion by vacating the guilty verdict.

            Because the district court did not abuse its discretion by granting review of Thul's conviction and by granting Thul relief, we need not determine whether the district court erred by determining that the June 2003 letter was not newly discovered evidence. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.