Daniel Ford, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-95-2658

Daniel Ford,
Appellant,

vs.

State of Minnesota,
Respondent.

  Filed August 27, 1996
Affirmed
Klaphake, Judge

Hennepin County District Court
File No. 81-901027

Mark D. Nyvold, 386 North Wabasha, Suite 654, St. Paul, MN 55102 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Assistant Attorney General,1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N

KLAPHAKE , Judge
Appellant Daniel Ford challenges by postconviction appeal his 1981 aggravated robbery conviction, claiming that he was denied his constitutional right to direct appeal of the conviction even though there was a 14-year delay between the conviction and the filing for postconviction relief. Because of appellant's delay in asserting his rights and the state's demonstration of undue prejudice if a new trial were ordered, we affirm.
D E C I S I O N

In a postconviction appeal, the scope of review is narrow. The appellate court considers whether the evidence is sufficient to support the postconviction court's findings. State v. Bliss , 457 N.W.2d 385, 391 (Minn. 1990). The postconviction court's decision is subject to an abuse of discretion standard. Id.
"[A] convicted defendant is entitled to at least one right of review by an appellate or postconviction court." State v. Knaffla , 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn. 1976); see also Case v. Nebraska , 381 U.S. 336, 85 S. Ct. 1486 (1965) (14th amendment requires postconviction procedure to determine claimed violations of federal constitution). Here, appellant's counsel filed a timely postconviction appeal. It was dismissed, however, after appellant failed to respond to a letter written to him by an assistant state public defender who had reviewed his case, stating her conclusion that there was little likelihood of a reversal and that she would not "proceed further" unless appellant responded by a certain date. Appellant claims that he did not receive the letter. He admits receiving the subsequent order dismissing the appeal, which he claims he thought to be a ruling on the merits of his appeal. Ten years posttrial, consistent with standard policy, the court reporter's untranscribed stenographic notes of the trial were destroyed. See Records Retention Schedule for District Courts (1990). Appellant now petitions for postconviction relief, claiming that he was denied effective assistance of counsel and that he was improperly removed from the courtroom during trial. He seeks a new trial because meaningful review of his claims depends on the trial record.
Both parties rely primarily on Hoagland v. State , 518 N.W.2d 531 (Minn. 1994), aff'd after remand , 539 N.W.2d 392 (Minn. 1995). Hoagland, the defendant, failed to file a direct appeal after the trial court made misleading statements about an "automatic appeal" and defense counsel failed to inform Hoagland of his appeal rights. Id. at 534. Eight years later, Hoagland sought postconviction relief for the first time, but the court reporter had prematurely destroyed the untranscribed stenographic notes of the trial. Id. at 533. The supreme court held:
[W]hen both the trial judge and defense counsel make statements which could mislead a defendant about the appeal process; when an employee of the judicial system fails to follow clearly stated judicial policies and consequently a defendant is deprived of a transcript to his trial for appeal; and when it is impossible to reconstruct the trial because of the trial judge's death, that defendant is entitled to a new trial unless he has abused the judicial process or the state can establish that it would be unduly prejudiced by a new trial.

Id. at 535.
Applying the Hoagland factors, we conclude that the trial court did not abuse its discretion in denying appellant's request for postconviction relief. Here, the public defender's method of communicating with appellant, while not desirable, did not actively mislead him. Unlike Hoagland , no judicial employee failed to follow judicial policy. To the extent that the public defender was a judicial employee, trial testimony established that she followed the existing policy for corresponding with appellant. The court reporter also followed existing (and current) policy by destroying the stenographic notes ten years posttrial. Thus, appellant has not met two factors that under Hoagland would entitle him to a new trial.
We view the final factors, abuse of process and undue prejudice to the state, as dispositive in this case. Abuse of process here, as in Hoagland , refers to the delay in seeking postconviction relief. Id. at 536. 1 Here, the 14-year delay 2 was significantly longer than the delay in Hoagland . See also Houghton v. State , 296 Minn. 494, 207 N.W.2d 63 (1973) (46-year delay); Gaulke v. State , 296 Minn. 487, 206 N.W.2d 652 (1973) (25-year delay); Jones v. State , 288 Minn. 527, 179 N.W.2d 315 (1970) (16-year delay); State v. Larson , 409 N.W.2d 63 (Minn. App. 1987) (16-year delay), review denied (Minn. Sept. 23, 1987). But see Wensman v. State , 342 N.W.2d 150, 151 (Minn 1984) (2-year delay held not to prejudice state when sole appeal issue was legality of search and seizure). Additionally, appellant's explanation for the delay, his failure to receive the public defender's letter, was undermined by his admitted receipt of the dismissal order. At the postconviction hearing, appellant admitted to understanding the operative language of the dismissal order and realizing that the order was inaccurate because it stated that he agreed to the dismissal. Nevertheless, appellant failed to request that his attorney clarify the status of his appeal, as he had done at other times. Therefore, we conclude that appellant's delay in filing his postconviction petition amounted to abuse of judicial process.
We also conclude that the state met its burden of demonstrating undue prejudice were a new trial ordered. The state established that it had unsuccessfully attempted to locate the victim, and that the only other prosecution witness, a former police officer, did not remember the case. The postconviction court found that "all police records, county attorney records, and court reporter notes" had been destroyed. The state thus met its burden of establishing that it would be unduly prejudiced by a retrial.
  Affirmed.