State of Minnesota, Respondent, vs. Dennis William Denne, Appellant.

State of Minnesota, Respondent, vs. Dennis William Denne, Appellant. A04-918, Court of Appeals Unpublished, August 16, 2005.

This opinion will be unpublished and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

A04-918

 

State of Minnesota,

Respondent,

 

vs.

 

Dennis William Denne,

Appellant.

 

 

Filed August 16, 2005

Affirmed

Randall, Judge

 

St. Louis County District Court

File No. K8-03-300686

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Alan Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

 

John Stuart, State Public Defender, Sara Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the postconviction court's denial of his motion challenging the validity of his Lothenbach submission.  We affirm.

FACTS

             On May 29, 2003, based on information provided by a confidential informant, police officers executed a search warrant at appellant Dennis Denne's residence.  As a result of the search, officers seized $329 in cash, approximately 10 and one-half ounces of marijuana, and other drug paraphernalia.  Appellant was charged with one count of fifth-degree possession of marijuana with intent to sell in violation of Minn. Stat. § 152.025, subd. 1(1) (2002) and one count of fifth-degree possession of marijuana in violation of Minn. Stat. § 152.025, subd. 2(1) (2002).

            On August 15, 2003, appellant filed a motion to compel the state to disclose the identity of the informant.  At the motion hearing on October 8, 2003, the district court denied appellant's motion to compel.  Subsequently, on January 9, 2004, at a pre-sentencing hearing and pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), appellant waived his right to a jury trial and agreed to submit to the court for its determination the charge of possession of marijuana with intent to sell, with the understanding that the state would dismiss the second charge in the event that the court found defendant guilty.  At the
same pre-sentencing hearing, appellant made an oral waiver of his rights after appellant's attorney informed him of the consequences of the Lothenbach proceeding. 

            The district court found appellant guilty of the charge of possession of marijuana with intent to sell, and on February 20, 2004, the district court sentenced appellant to one year and a day in prison, but stayed execution of the sentence on the condition that appellant remain on probation for three years, serve 30 days in jail, pay a fine of $1,062, and comply with other probationary conditions. 

            On May 25, 2004, appellant filed a notice of appeal with this court.  On September 16, 2004, this court granted appellant's motion to stay the direct appeal and remand to the district court for post-conviction proceedings. 

            On October 13, 2004, appellant filed a post-conviction petition, arguing that the Lothenbach proceeding was invalid because the issue purportedly preserved, disclosing the identity of the informant, was not appropriate for appellate review.  On December 27, 2004, the district court denied appellant's post-conviction motion without an evidentiary hearing.  This appeal followed. 

D E C I S I O N

            Appellant argues that the district court erred in denying him postconviction relief without an evidentiary hearing because his Lothenbach submission was not valid.  We review a postconviction court's decision to deny relief using an abuse of discretion standard.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  On review of a postconviction court's denial of a petition for postconviction relief, without an evidentiary hearing, any doubts about whether a hearing is required are resolved in favor of the petitioner unless the files and record conclusively show that the petitioner is entitled to no relief.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003). 

            A postconviction court is not required to hold an evidentiary hearing unless there are material facts in dispute that must be resolved in order to determine the postconviction claim on the merits.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  An evidentiary hearing is "not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief."  Id.  (quoting Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990)).  The petitioner's allegations must be "more than argumentative assertions without factual support."  Id.  (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).

            Relying solely on the contention that his motion is unappealable, appellant does not fully address the merits of the informant identity issue.  The identity issue is not unimportant.  It is not impossible that the disclosure of an informant's identity could be so crucial to a well-informed defense that a denial of that identity could be part of a defendant's appeal.  Appellant relies on cases from other jurisdictions, but cites no Minnesota case that conclusively holds that dispositive issues only are appealable following a Lothenbach proceeding.  See generally State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  We find instructive a recent unpublished case from this court specifically addressing the merits of a denial of a motion to disclose the identity of an informant that was made prior to a Lothenbach proceeding.  See State v. New, No. A03-128, 2004 WL 614521, at *1 (Minn. App. Mar. 26, 2004), review denied (Minn. May 26, 2004).[1]  From New, we can infer appealability since this court addressed that case on the merits.  However, appellant chose not to argue the merits of the issue, but rather rely on his unique claim that he should not have been allowed to go Lothenbach because the appealability of an informant's identity is a question.  We find nothing in the record to support the contention that appellant's Lothenbach procedure was impermissibly tainted.  The record shows the Lothenbach procedure was understood by appellant, his attorney, and the state and appellant got what he bargained for.

            Affirmed.

[1] See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished opinions have persuasive value but are not precedential).