This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0386
Francisco Vincent Vargas, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed November 23, 2015
Affirmed
Rodenberg, Judge
Redwood County District Court
File No. 64-CR-09-142
Cathryn Middlebrook, Chief Appellate Public Defender, Katie Conners, Special Assistant
Public Defender, Carol Comp, Special Assistant Public Defender, St. Paul, Minnesota
(for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Steven S. Collins, Redwood County Attorney, Redwood Falls, Minnesota (for
respondent)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Stoneburner, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
RODENBERG, Judge
In this appeal from the district court’s denial of his petition for postconviction
relief without an evidentiary hearing, appellant challenges the district court’s conclusion
that the state had no obligation to prove that appellant possessed a controlled substance in
order to convict him of conspiracy and that his claims therefore fail as a matter of law.
We affirm.
FACTS
Appellant was arrested in July 2008 and charged with first-degree possession of a
controlled substance. The state later amended the complaint, adding a charge of
conspiracy to commit first-degree possession of a controlled substance. The state
dismissed the first-degree possession charge on the first day of appellant’s March 2010
jury trial. The jury convicted appellant of the first-degree conspiracy charge.
This appeal is from the denial of appellant’s second petition for postconviction
relief. In April 2011, appellant filed his first postconviction petition, alleging that he
received ineffective assistance of counsel and challenging the sufficiency of the evidence.
Following an evidentiary hearing, the postconviction court denied appellant’s petition.
On October 1, 2012, we affirmed the denial of that petition for postconviction relief.
State v. Vargas, No. A10-1233, 2012 WL 4475682, at *5 (Minn. App. Oct. 1, 2012). The
facts of this case are set forth in our earlier opinion, and we do not recite them again here.
As relevant to this appeal, a criminalist from the St. Paul Police Department Crime
Lab (SPPDCL) testified at trial that a substance seized from a vehicle that appellant was
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driving was cocaine, and that it weighed 52.6 grams. Appellant’s trial counsel cross-
examined the criminalist’s testimony concerning, among other things, the SPPDCL’s
testing procedures, but appellant did not dispute at trial that the substance found in the
vehicle was cocaine. Independent testing of the substance was neither requested nor
performed. After the state rested, appellant moved to dismiss, arguing that he had been
“framed” and that there was no evidence of a conspiracy. The district court denied the
motion, finding that there was sufficient evidence to submit the case to the jury, and the
jury found appellant guilty of conspiracy to commit first-degree possession.
Appellant now argues that evidence of “massive reliability failures” at the
SPPDCL requires a new trial. The postconviction court denied appellant’s petition
without conducting an evidentiary hearing because it determined that the state was not
required to prove that the substance received in evidence at trial was actually cocaine and
that appellant’s legal claims therefore failed as a matter of law.
DECISION
We review the denial of postconviction relief for an abuse of discretion. Reed v.
State, 793 N.W.2d 725, 729 (Minn. 2010). “In doing so, we review the postconviction
court’s legal conclusions de novo, see Davis v. State, 784 N.W.2d 387, 390 (Minn. 2010),
and its findings of fact for clear error, see Doppler v. State, 771 N.W.2d 867, 875 (Minn.
2009).” Greer v. State, 836 N.W.2d 520, 522 (Minn. 2013).
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I. Appellant’s conspiracy conviction did not require the state to prove the
identity of the substance seized when appellant was arrested
Central to this appeal is whether appellant’s conviction required proof that the
substance seized by police was actually cocaine. The postconviction court held that the
state was not required to so prove, and that the laboratory deficiencies to which appellant
points as entitling him to relief are therefore not materially important to his conviction.
To prove the crime of conspiracy to possess a controlled substance, the state must
prove that (1) there was an agreement to commit a controlled-substance crime and (2) one
of the parties to that agreement committed an overt act in furtherance of that conspiracy.
See Minn. Stat. §§ 152.096, subd. 1 (2008) (prohibiting conspiracy to commit controlled-
substance crimes), 609.175, subd. 2 (2008) (identifying elements of conspiracy crime);
State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). “[A] conspiracy to commit a crime
is a separate, substantive offense from the crime which is the object of the conspiracy
. . . .” State v. Burns, 215 Minn. 182, 186, 9 N.W.2d 518, 520 (1943). Because
conspiracy is an anticipatory crime, the crime that is the object of the conspiracy need not
be completed. See Minn. Stat. § 609.175, subd. 2.
Appellant cites Kuhnau for the proposition that the state is required to prove all of
the elements of the underlying drug offense in addition to the elements of conspiracy,
including possession of a controlled substance. See 622 N.W.2d at 556 (stating that “[a]
conscious and intentional purpose to break the law is an essential element of the crime of
conspiracy and consists of two distinct crimes: the conspiracy and the substantive crime,
which is the object of the conspiracy”). In Kuhnau, the Minnesota Supreme Court held
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that the district court erred by failing to include the language “whether Kuhnau knew or
believed that the substance sold was methamphetamine under the facts presented” in the
otherwise appropriate jury instructions. Id. at 557. Nothing in Kuhnau required the
actual sale of a controlled substance. Rather, the state must prove that the accused
conspired to commit the crime and intended to sell a controlled substance. Id.
Here, the first-degree possession charged was dismissed before trial, and appellant
was tried only on the conspiracy charge. Appellant did not challenge at trial that the
substance at issue was cocaine. Rather, he maintained that he was not part of any
conspiracy concerning it and that he had been “framed.” As required by Kuhnau, the
district court instructed the jury that it was required to find that the state had proven
appellant’s agreement to commit a controlled-substance crime in order to convict.
In State v. Deshay, we noted that “[t]he conspiracy statute does not require that the
state prove DeShay personally sold ten or more grams of cocaine within a 90-day period;
only that he participated in an agreement to sell ten or more grams of cocaine within a
90-day period.” 645 N.W.2d 185, 190-91 (Minn. App. 2002), aff’d, 669 N.W.2d 878
(Minn. 2003). Similarly, the state was not required to prove here that appellant actually
possessed more than 25 grams of cocaine. Rather, the state needed to prove that
appellant participated in an agreement to possess more than 25 grams of cocaine. We
determined in an earlier appeal that the evidence was sufficient to sustain his conviction.
Vargas, 2012 WL 4475682, at *9. Consequently, the postconviction court did not err in
determining that the state was not required to prove that appellant possessed cocaine
under Minn. Stat. § 152.096, subd. 1.
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II. Denial of appellant’s petition for postconviction relief
Appellant, as the petitioner for postconviction relief, has the burden to prove his
entitlement to postconviction relief by a fair preponderance of the evidence. Minn. Stat.
§ 590.04, subd. 3 (2014). “To meet that burden, a petitioner’s allegations must be
supported by more than mere argumentative assertions that lack factual support.” Powers
v. State, 695 N.W.2d 371, 374 (Minn. 2005). A postconviction court may summarily
deny a petition for relief without an evidentiary hearing if the files and records
conclusively show that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd.
1 (2014). We review such a denial for abuse of discretion. Chambers v. State, 831
N.W.2d 311, 318 (Minn. 2013).
A. Newly discovered evidence and false or misleading testimony
Appellant’s first two arguments rely on the premise that his claims concerning
problems at the SPPDCL qualify as newly discovered evidence. To qualify as newly
discovered evidence warranting a new trial, the information must (1) not have been
known to the defendant at the time of trial; (2) not have been discoverable through due
diligence before trial; (3) not be cumulative, impeaching, or doubtful; and (4) be likely to
have produced a more favorable result at trial. Rainer v. State, 566 N.W.2d 692, 695
(Minn. 1997).
Here, even if all of appellant’s allegations concerning SPPDCL problems are true,
the outcome of his trial would not have been any different. There was no argument at
trial concerning whether the substance found in the vehicle was cocaine. Rather,
appellant argued that there was no evidence of his involvement in a conspiracy. As
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discussed above, the state was required to prove that appellant participated in an
agreement to possess more than 25 grams of a controlled substance, but was not obligated
to prove that he possessed cocaine. See Minn. Stat. § 152.021, subd. 2(1) (2008).
Further, appellant asserts that evidence of SPPDCL problems shows that the
criminalist gave false testimony. Appellant cites State v. Caldwell, 322 N.W.2d 574, 585
(1982), to support his claim that he need only show that evidence of SPPDCL problems
might have caused the jury to reach a different conclusion. But Caldwell involves a
situation where false testimony was relied on concerning the issue of identity. Id. at 585-
86. There, the false or misleading testimony was critical to the conviction. Id. Here, the
testimony concerning identification of the substance was not necessary to the conviction.
As such, the SPPDCL irregularities would, at most, have had impeachment value on a
subject not required to be proven as an element of the charged crime. See Sentinel Mgmt.
Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 824-25 (Minn. 2000) (holding that
alleged deficiencies in expert witness’s methodology “went to the weight, rather than to
the admissibility of his testimony”). Even if the jury had known of the claimed SPPDCL
testing problems, its verdict would not have been different. The issue here was whether
appellant was part of a conspiracy to possess cocaine, and not whether he completed that
conspiracy by actually possessing cocaine.
B. Brady violation
Appellant argues that the state’s failure to disclose SPPDCL’s testing deficiencies
before trial was a violation of its obligation to disclose exculpatory or impeaching
evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). To warrant relief
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under Brady, a petitioner must establish that (1) the evidence not disclosed was favorable
to him as exculpatory or impeaching; (2) the evidence was suppressed by the prosecution;
and (3) the evidence was material, resulting in prejudice to the petitioner. Walen v. State,
777 N.W.2d 213, 216 (Minn. 2010). The state’s suppression of evidence results in
prejudice if “there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. (quotation omitted).
Here, the postconviction court correctly concluded that appellant was not
prejudiced by the evidence, regardless of the other Brady requirements, because whether
the substance was actually cocaine was not material to the conspiracy charge. Appellant
did not allege facts demonstrating that evidence of the testing deficiencies, if admitted,
would have changed the result of the proceeding given the nature of his conviction.
Appellant is therefore not entitled to relief under Brady.
C. Due process violation
Both the United States and Minnesota constitutions require that an individual
receive “adequate notice and an opportunity to be heard before being deprived of life,
liberty, or property.” Christopher v. Windom Area Sch. Bd., 781 N.W.2d 904, 911
(Minn. App. 2010). “This court reviews the procedural due process afforded a party de
novo.” Staeheli v. City of St. Paul, 732 N.W.2d 298, 304 (Minn. App. 2007). “To
determine whether an individual’s right to procedural due process has been violated, a
reviewing court must first determine whether a protected liberty or property interest is
implicated and then determine what process is due by applying a balancing test.” State v.
Ness, 819 N.W.2d 219, 225 (Minn. App. 2012), aff’d, 834 N.W.2d 177 (Minn. 2013).
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Appellant argues that he is entitled to a new trial because the state violated his due
process right by using unreliable scientific evidence from the SPPDCL. He relies on
State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989), to argue that the use of unreliable
scientific evidence implicates a liberty interest that must be afforded due process.
Schwartz addressed due process concerns regarding the reliability of DNA testing and its
use at trial. 447 N.W.2d at 427. In order to ensure a fair trial, the “test data and
methodology must be available for independent review by the opposing party.” Id. at
423.
Here, appellant was able to review the SPPDCL’s test results and cross-examine
the criminalist regarding the details of the testing procedures. He did not conduct
independent testing and does not allege on appeal that he was deprived of an opportunity
to do so. And because the state was not required to prove that the substance was actually
cocaine, any such independent testing or attach on the SPPDCL’s processes would not
have had any bearing on the conspiracy charge of which appellant was convicted.
Appellant was not denied due process of law under Schwartz.
D. Ineffective assistance of counsel
Appellant argues that the postconviction court erred by denying his petition for
postconviction relief because his trial counsel was ineffective for failing to investigate
SPPDCL’s testing procedures and protocols. To prevail on a claim of ineffective
assistance of counsel, appellant must demonstrate that “(1) . . . his counsel’s
representation ‘fell below an objective standard of reasonableness’; and (2) ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.’” Nissalke v. State, 861 N.W.2d 88, 94 (Minn.
2015) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064,
2068 (1984)). “The extent of counsel’s investigation is considered a part of trial
strategy,” which we generally do not review. Opsahl v. State, 677 N.W.2d 414, 421
(Minn. 2004).
Appellant argues in mercurial fashion both that the evidence concerning the
SPPDCL could not have been discovered through due diligence and that his defense
counsel erred in not properly investigating the lab results, its procedures, or the
criminalist’s credentials, the very things that he claims could not have been discovered
through due diligence. Appellant’s clear trial strategy was that he was not part of any
conspiracy concerning cocaine, but had instead been framed. In that context, and given
that the state was not required to prove that the seized substance was cocaine, counsel’s
performance was not deficient, nor would revelations of the SPPDCL problems have
made any difference at trial. The postconviction court correctly concluded that appellant
failed to satisfy the requirements of Strickland.
III. Denial of appellant’s request for an evidentiary hearing
Finally, appellant argues that the postconviction court erred when it denied his
petition without holding an evidentiary hearing. “On appeal from a summary denial of
postconviction relief, we examine whether sufficient evidence exists to support the
postconviction court’s findings and will reverse those findings only upon proof that the
postconviction court abused its discretion.” Ives v. State, 655 N.W.2d 633, 635 (Minn.
2003); see also Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). When a petition for
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postconviction relief is filed, “the court shall promptly set an early hearing on the petition
and response thereto, and promptly determine the issues” unless 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. (2014). An evidentiary hearing is not required
unless there are material facts in dispute that must be resolved to determine the
postconviction claim on its merits. Powers, 695 N.W.2d at 374.
The record conclusively shows that appellant is not entitled to relief. His
conviction for conspiracy to commit first-degree possession of a controlled substance
does not depend on proof of the identification of the substance seized, but instead on
whether appellant was a participant in a conspiracy to commit the crime coupled with an
overt act in furtherance of that crime. Kuhnau, 622 N.W.2d at 556. The postconviction
court did not err in denying appellant’s petition without an evidentiary hearing.
Affirmed.
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Francisco Vincent Vargas v. State of Minnesota
Combined Opinion