Rickert v. State

STRAS, Justice

(concurring).

I concur only in the result reached by the court. Unlike the majority, I would not rely on the interests-of-justice exception in Minn.Stat. § 590.01, subd. 4(b) (2010), because Rickert has waived that argument. At every stage of this appeal, Rickert has explicitly disclaimed any reliance on the interests-of-justice exception to the two-year filing deadline for petitions for postconvietion relief under subdivision 4(b) of section 590.01. The question actually briefed by the parties and preserved for appeal — whether Rickert has a right to one full substantive review of his conviction under either the United States or Minnesota Constitutions — has been left unanswered by the majority. I would answer that question and hold that Rickert’s due process rights under the United States and Minnesota Constitutions are not violated by enforcing the two-year filing deadline. Accordingly, I would reverse the court of appeals and hold that the district court did not err in denying Ric-kert’s petition for postconvietion relief as untimely.

I.

It is our longstanding rule that issues that are not argued or briefed on appeal are deemed waived, “unless prejudicial errors are obvious from the record.” Barnes v. State, 768 N.W.2d 359, 363 n. 2 (Minn.2009); see also Brocks v. State, 753 N.W.2d 672, 675 n. 3 (Minn.2008) (holding the State waived its untimeliness objection to the appellant’s petition for postconviction relief because the State neither briefed nor argued its justification for the objection on appeal); McKenzie v. State, 583 N.W.2d 744, 746 n. 1 (Minn.1998) (concluding the appellant waived an issue that he only alluded to, rather than fully argued, in his brief to this court). In both the court of appeals and this court, Rickert elected not to argue that the interests-of-justice exception applies to his untimely petition for postconvietion relief. Indeed, Rickert conceded in his brief to the court of appeals that his petition was “arguably untimely,” but stated that the lack of timeliness was irrelevant because the two-year filing deadline in Minn.Stat. § 590.01, subd. 4 (2010), violates his constitutional right to one full substantive review of his conviction. Rickert reiterated in his brief to this court that “none of [the subdivision 4(b) exceptions] were raised or considered in Rickert’s postconvietion proceeding.” Finally, Rickert’s attorney admitted at oral argument before this court that Rickert did not argue for the application of the interests-of-justice exception because Ric-kert’s ineffective assistance of counsel claim independently warrants review even if the filing deadline in section 590.01 is *245constitutional.1 Under these circumstances, Rickert has waived consideration of the interests-of-justice exception on appeal.

Nonetheless the court insists on answering a question under section 590.01 that the parties do not ask us to address.2 In doing so, the court makes the following conclusions — without briefing by the parties — in order to apply the interests-of-justice exception to Rickert’s untimely petition for postconviction relief: (1) Rickert properly invoked the interests-of-justice exception by referencing it in his motion for an extension of time to file a postcon-viction petition, even though the exception is not mentioned at all in Rickert’s petition; (2) Rickert’s petition is not frivolous; and (3) Rickert’s petition satisfies a nonexclusive list of factors from Gassier v. State, 787 N.W.2d 575 (Minn.2010) — in particular that Rickert was minimally at fault for the delay in filing his postconviction petition. None of these conclusions arise from “prejudicial errors [that] are obvious from the record,” Barnes, 768 N.W.2d at 363 n. 2, which is the only exception to the waiver rule that we have consistently applied in our case law. In accordance with the court’s usual practice, therefore, I would decline to decide the applicability of the interests-of-justice exception in section 590.01, an issue that was neither raised in Rickert’s petition for postconviction relief nor in his briefs to the court of appeals or this court.

II.

I would instead answer the question actually briefed by the parties and preserved for appeal: whether the United States or Minnesota Constitution requires one full substantive review of a criminal conviction, even if review is otherwise barred by a statutory filing deadline or another procedural requirement imposed by statute. The State argues that Rickert’s due process rights are adequately protected by the two mechanisms offered in this state for substantive review of Rickert’s conviction — direct appeal and postconviction relief — even though Rickert is required to comply with certain procedural requirements for obtaining either type of review. Rickert disagrees, urging us to fashion a new right under the Minnesota Constitution requiring one full substantive review of his criminal conviction regardless of whether he has complied with the procedural requirements imposed by statute. I decline Rickert’s invitation to recognize a new right under the Minnesota Constitution, and instead would hold that application of the two-year filing deadline for petitions for postconviction relief in section 590.01 is not an unconstitutional limitation on Rickert’s due process rights under ei*246ther the United States or Minnesota Constitution.

A.

After pleading guilty to first-degree criminal sexual conduct in 2006, Rickert had two opportunities to obtain one full substantive review of his conviction. Except for cases involving first-degree murder,3 every person convicted of a crime has one direct appeal as of right to the Minnesota Court of Appeals. If a person still wishes to obtain further review of a conviction on direct appeal, then a petition for further review can be filed in this court to invoke our discretionary jurisdiction. If a person elects not to file a direct appeal, then a postconviction petition can be filed in the district court no more than two years after “the entry of judgment of conviction or sentence,” unless one of five statutory exceptions applies. Minn.Stat. § 590.01, subd. 4(a). “[A] postconviction petitioner is entitled to raise nearly the same breadth of claims that could have been brought in a direct appeal, so long as the postconviction claims are in compliance with the procedural requirements of the Postconviction Remedy Act.” Deegan v. State, 711 N.W.2d 89, 94 (Minn.2006). A petitioner is entitled to appeal the denial of a postconviction petition so long as the appeal is taken within 60 days after entry of the district court’s order denying the postconviction petition. Minn. R.Crim. P. 28.02, subd. 4(3)(c).

Despite the procedural requirements imposed by the Postconviction Remedy Act, our postconviction process is broader than in many other jurisdictions, including federal court, where “the failure to pursue a direct appeal bars all claims that were known and should have been raised on direct appeal, absent cause for failing to raise the issue previously and resulting prejudice.” Deegan, 711 N.W.2d at 94. In Minnesota, therefore, a criminal defendant can forego direct appeal of a conviction and still obtain one full substantive review of a conviction in the postconviction process.

But to invoke the comprehensive processes for review available in Minnesota, Rickert was required to file either a direct appeal of his conviction within 90 days after entry of final judgment, Minn. R.Crim. P. 28.02, subd. 4(3)(a), or a post-conviction petition no later than two years after “the entry of judgment of conviction or sentence” if he did not file a direct appeal, Minn.Stat. § 590.01, subd. 4. Ric-kert did not avail himself of either opportunity to obtain one full substantive review of his conviction.

B.

In lieu of following the procedural requirements imposed by statute and court rule, Rickert argues that his conviction must now be reviewed because otherwise he will be deprived of the one full substantive review of his conviction required by the United States and Minnesota Constitutions. The Supreme Court of the United States, however, rejected Rickert’s argument under the Due Process Clause of the Fourteenth Amendment as early as 1894:

An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is *247not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review.

McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894); see also Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (plurality opinion) (“It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.”); Spann v. State, 704 N.W.2d 486, 491 (Minn.2005) (stating that a “convicted defendant does not have a constitutional right to appeal under either the United States Constitution or the Minnesota Constitution”). The Supreme Court has stated in equally clear terms that the Due Process Clause of the Fourteenth Amendment does not require states to adopt a system for postconviction relief either. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“States have no obligation to provide [postconviction] relief....”); United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (plurality opinion) (“The Due Process Clause ... does not establish any right to collaterally attack a final judgment of conviction”). As a result, Rickert urges this court to recognize a novel right under the Minnesota Constitution that is at odds with the Supreme Court’s interpretation of the Due Process Clause of the Fourteenth Amendment.

C.

This court will interpret a provision in the Minnesota Constitution differently from the Supreme Court’s interpretation of a similar provision of the United States Constitution in only limited instances. Kahn v. Griffin, 701 N.W.2d 815, 824-25 (Minn.2005). A “principled basis” must be identified for the differing interpretation, not simply a desire “to bring about a different result.” Id. at 824. This court favors uniformity with the Supreme Court’s interpretation of the U.S. Constitution because it results in “consistency of practice in state and federal courts.” Id. In Kahn, we articulated the analytical framework for determining whether to follow the interpretation given to the U.S. Constitution in interpreting a parallel provision of the Minnesota Constitution. Id. at 824-25.

The inquiry begins with whether the language of the Minnesota Constitution is “identical or substantially similar” to the language in the U.S. Constitution. Id. at 828. When the language is different, or if the “state constitutional language guarantees a fundamental right that is not enumerated in the U.S. Constitution,” then this court is “most inclined” in those circumstances to depart from Supreme Court precedent. Id. If, on the other hand, the language of the two constitutional provisions is identical or substantially similar, then this court will depart from Supreme Court precedent only if (1) “the United States Supreme Court has made a sharp or radical departure from its previous decisions or approach to the law and when we discern no persuasive reason to follow such a departure,” (2) “the Supreme Court has retrenched on Bill of Rights issues,” or (3) “federal precedent does not adequately protect our citizens’ basic rights and liberties.” Id.

The language of the Due Process Clauses of the United States and Minnesota Constitutions are substantially similar. The U.S. Constitution states that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1; see also U.S. Const, amend. V (“No person shall be ... deprived of life, liberty, or property, without due process of law....”). The Minnesota Constitution *248states that “[n]o person shall be held to answer for a criminal offense without due process of law ... nor be deprived of life, liberty or property without due process of law.” Minn. Const, art. I, § 7. The only difference between the two is that the Minnesota Constitution clearly and unambiguously requires that due process be accorded to defendants in criminal prosecutions, whereas the Supreme Court has adopted that interpretation in its case law as the proper reading of the Fifth and Fourteenth Amendments to the U.S. Constitution. Despite that minor difference, we have previously stated that the language of the two constitutional provisions is similar, State v. LeDoux, 770 N.W.2d 504, 512 (Minn.2009), and that the scope of protection under both is “identical,” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988).

In analyzing the exceptions to the rule that the Minnesota Constitution is generally read in accordance with the Supreme Court’s interpretation of identical or substantially similar provisions of the U.S. Constitution, no serious argument can be made that the Supreme Court has made a “sharp or radical departure from its previous decisions” or that it has “retrenched on Bill of Rights issues” in interpreting the Fourteenth Amendment’s Due Process Clause. See Kahn, 701 N.W.2d at 828. Since 1894, the Supreme Court has repeatedly and consistently held that “[d]ue process does not comprehend the right to appeal” a criminal conviction. District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 81 L.Ed. 843 (1937); accord McKane, 153 U.S. at 687, 14 S.Ct. 913 (“A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law.”); Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (“[I]f a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review. ...”). And although the cases are of more recent vintage,4 the Supreme Court has also unwaveringly held that states do not have an obligation under the Fourteenth Amendment’s Due Process Clause to provide postconviction review of criminal convictions. Indeed, the Supreme Court’s precedent rejecting a due process right to direct appellate review has even stronger application with respect to post-conviction review because the latter involves a collateral attack on a final judgment of conviction and “is even further removed from the criminal trial than is discretionary direct review.” Finley, 481 U.S. at 556-57, 107 S.Ct. 1990 (1987); see also Murray v. Giarratano, 492 U.S. 1, 7, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (confirming that states are not required to provide an avenue for postconviction relief).

The only remaining question is whether the Supreme Court’s interpretation of the Due Process Clause of the Fourteenth Amendment “adequately protect[s] our eit-*249izens’ basic rights and liberties.” See Kahn, 701 N.W.2d at 828. Although the Supreme Court has resolved the broader questions under the Fourteenth Amendment to the United States Constitution, this case requires us to decide only whether a convicted defendant has an unlimited and absolute right to one full substantive review under the Minnesota Constitution, not the hypothetical and more difficult question of whether the State could limit substantive review of criminal convictions altogether by providing no means of direct appeal or postconviction review. Rickert concedes that he could have directly appealed his criminal conviction of first-degree sexual conduct in 2006 or filed a petition for postconviction review within two years of the entry of the final judgment of conviction in his criminal case. He availed himself of neither option.

Although a limitless right to one substantive review may be desirable to criminal defendants, and might even be attractive as a policy matter, desirability and attractiveness are not the tests for the recognition of a new right under the Minnesota Constitution. Cf. Deegan, 711 N.W.2d at 100 (Anderson, G.Barry, J., dissenting) (“[NJeither traditions based in statute nor poor policy choices by the legislature are sufficient” to extend the right to counsel under the Minnesota Constitution). Rather, it is our responsibility to apply the law, and a holding that permits an unlimited right to one substantive review of a criminal conviction would not only be at odds with Supreme Court precedent, but it would be inconsistent with the text of the Minnesota Constitution, its history, and our case law.

As relevant here, Article I, Section 7 of the Minnesota Constitution states that “[n]o person shall be held to answer for a criminal offense without due process of law ... nor be deprived of life, liberty or property without due process of law.” As traditionally understood, “due process” requires notice and a meaningful opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); LeDoux, 770 N.W.2d at 513. This court has held that, in the context of a criminal prosecution, “[d]ue process requires that every defendant be afforded a meaningful opportunity to present a complete defense,” State v. Richardson, 670 N.W.2d 267, 277 (Minn.2003) (internal quotation marks omitted), not that a criminal defendant has an unlimited right to present any and all defenses and witnesses on his own behalf, State v. Quick, 659 N.W.2d 701, 713-14 (Minn.2003). Rickert cannot cite any precedent, nor am I aware of any, that interprets the words “due process” to require unlimited process for a criminal defendant, either during a criminal prosecution or an appeal. In this case, Rickert received a “meaningful opportunity” to challenge his conviction through either direct appeal or postconviction review, the latter of which was available for two years after the entry of judgment of conviction against him.

Accordingly, whatever the merits of the argument that the Minnesota Constitution bars the suspension or elimination of all appellate and postconviction review, a question that need not be decided today, I can find no “principled basis” in the Minnesota Constitution for an unlimited right to one full substantive review of a criminal conviction.

D.

Our case law, to the extent it is helpful on this question, is not to the contrary. As recently as 2005 this court recognized that a “convicted defendant does not have a constitutional right to appeal under either the United States Constitution or the Minnesota Constitution.” Spann, 704 *250N.W.2d at 491. In Spann, the defendant agreed to waive the right to appeal his conviction in exchange for a reduced sentence. We held that such an agreement violates due process because the convicted defendant, who had already been convicted and sentenced, cannot agree to a “waiver of the right to appeal” in exchange for a benefit conferred by the State. See id. at 493. Although Rickert relies on Spann to advance his argument in favor of an unbounded right to one substantive review under the Minnesota Constitution, Spann dealt with a defendant who reached an agreement with the State to forego an appeal, not a defendant who failed to appeal or did not follow the proper procedures to submit a postconviction petition. Indeed, we recognized in Spann that a waiver through an agreement with the State is “fundamentally different from the defendant’s waiver of personal rights or waiver by default.” Id. (emphasis added).

The strongest support for Rickert’s position comes from Deegan, 711 N.W.2d at 91, 98, in which we held that a statutory provision permitting the state public defender to decline representation of indigent post-conviction petitioners who pled guilty, received the presumptive sentence or less, and did not pursue a direct appeal, violated the right to counsel provision of the Minnesota Constitution. However, Dee-gan involved a right under the Minnesota Constitution — “the assistance of counsel” guarantee in Article I, Section 6 — that we have interpreted “independently of the United States Constitution,” unlike cases involving due process. Id. at 97. Although it is true that the opinion postulated in dicta that “it may well be that the right to one review — through either direct appeal or postconviction proceeding — is a ‘tradition unique to Minnesota’ ” and thus “arguably ... grounded in the Minnesota Constitution,” we expressly deferred a decision on that question “until another day.” Id. at 95.5

But even assuming that the statement in Deegan was not dicta and the Minnesota Constitution guarantees one full substantive review of a criminal conviction, there is no language in Deegan supporting a limitless and absolute right to one review. The right is still subject to any reasonable procedural requirements enacted by the Legislature and imposed by court rule. Therefore, to the extent a right to one review of a criminal conviction is implicit in Article I, Section 7 of the Minnesota Constitution, it is, at most, a guarantee of a process to review criminal convictions, not a sweeping guarantee permitting convicted defendants to seek review any time they wish and regardless of the circumstances.

III.

Accordingly, for the foregoing reasons, I would hold that the district court did not abuse its discretion in denying Rickert’s postconviction petition as untimely. Ric-kert has waived the argument that his postconviction petition should be considered timely under the interests-of-justice exception in Minn.Stat. § 590.01, subd. *2514(b). Furthermore, on the issue actually briefed and preserved for appeal, I would decline to recognize a new right under the Minnesota Constitution to one unlimited and absolute right of review of a criminal conviction. Minnesota’s current system for reviewing criminal convictions through direct appeal and postconviction review is sufficient to satisfy the requirements of Article I, Section 7 of the Minnesota Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution

I therefore respectfully concur in the result.

. However, Rickert explicitly requested in his brief that this court not consider the issue of ineffective assistance of counsel because it was not raised in the State’s petition for further review. In its reply brief, the State agreed with Rickert's argument. Accordingly, I would not address the question of whether Rickert is entitled to a review of his conviction based on ineffective assistance of counsel.

. The majority concludes that Rickert did not waive the application of the interests-of-justice exception of section 590.01 because the State somehow preserved the issue for him. To be sure, the State did argue that none of the exceptions to the two-year filing deadline apply to Rickert's petition. But it would no doubt surprise the State that its abbreviated argument that Rickert’s petition is time-barred is now being used by the majority to hold that Rickert’s petition is not time-barred, even though Rickert fails to make that argument himself. The majority's approach is exactly backwards: an argument waived by one party cannot be revived through an argument by the opposing party urging the opposite result.

. By statute, every person convicted of first-degree murder must appeal directly to this court rather than the Minnesota Court of Ap~ peals. See Minn.Stat. §§ 480A.06, subd. 1, 632.14 (2010).

. It is unsurprising that the Supreme Court did not directly address until the 1980s whether the Fourteenth Amendment’s Due Process Clause requires states to provide post-conviction review because many states, including Minnesota, did not have statutes authorizing postconviction review until well into the twentieth century. See Deegan, 711 N.W.2d at 93 (describing Minnesota’s enactment of the Postconviction Remedy Act in 1967); see also John H. Blume & Emily C. Paavola, A Reintroduction: Survival Skills for Post-Conviction Practice in South Carolina, 4 Charleston L.Rev. 223, 225-30 (2010) (stating that the first modern postconviction statute was passed in 1949, with eleven states following between 1951 and 1963).

. In State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), this court stated that "a convicted defendant is entitled to at least one right of review by an appellate or post-conviction court.” However, Knaffla was referring to the statutory procedures for review of a criminal conviction, particularly under the postconviction review process in Minn. Stat. ch. 590, not to a constitutional guarantee of one review. In fact, Knaffla stated that postconviction relief should be predicated on "compliance with the procedural requirements of” the postconviction statute, indicating that any right to review is subject to statutory limitations. See id. at 252, 243 N.W.2d at 741; see also Deegan, 711 N.W.2d at 95 n. 5 (stating that the Knaffla holding was not based on the Minnesota Constitution).