Kеvin Terrance Hannon, Appellant, vs. State of Minnesota, Respondent
A20-0396
STATE OF MINNESOTA IN SUPREME COURT
April 7, 2021
Moore, III, J.
Stearns County
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant Stearns County Attorney, Saint Cloud, Minnesota, for respondent.
S Y L L A B U S
The district court did not abuse its discretion when it denied appellant’s fourth petition for postconviction relief without a hearing because his sentence was lawful, his restitution claim is untimely under the restitution statute, his remaining claims are untimely under the postconviction statute, and no exception to the statute of limitations applies.
Affirmed.
Considered and decided by the court without oral argument.
MOORE, III, Justice.
This case is an appeal from the denial of Kevin Terrance Hannon’s fourth petition for postconviction relief. After we reversed Hannon’s first conviction on direct appeal, he was tried a second time and convicted of first-degree murder while committing or attempting to commit a kidnapping, under
On the evening of September 21, 1999, Deborah Tolhurst was found dead in the apartment she shared with Hannon when the Saint Cloud Fire Department responded to a fire originating in their unit.2 Officers found Hannon the next day, hiding in the closet of a back bedroom of an acquaintance’s apartment. Hannon was interrogated at the police station and he made several statements pointing to his guilt. Among the evidence collected by law enforcement was a bloodstained shirt identified as the one Hannon had been wearing on September 21. A scientist at the Bureau of Criminal Apprehension (BCA) tested the blood on the shirt and reported that Tolhurst’s DNA profilе matched the DNA profile from the blood on the shirt. Hannon was indicted on five counts of murder.
After a jury trial, Hannon was convicted of first-degree murder while committing or attempting to commit a kidnapping, under
During Hannon’s second trial, Hannon called only one witness, who was removed from the stand during testimony after twice disobeying the district court’s instruction not to reference Hannon’s first trial; the court prepared and read a summary of the witness’s testimony instead. Id. at 504. The district court also refused Hannon’s request to instruct the jury on first-degree heat-of-passion manslaughter and second-degree unintentional felony murder.4 Id. The jury found Hannon guilty as charged.
A presentence investigation report was prepared following the first jury verdict, which included restitution affidavits from four different viсtims. The total restitution ordered at that time was $59,516.64. Over 90 percent of the restitution was claimed by the
An updated presentence investigation report was ordered following the 2003 trial. There was no change in the amount of restitution claimed by the victims. The updated pre-sentencing report reflected that $170.96 оf restitution had been paid and the remaining restitution amount owed at that time was $59,345.68.
At the sentencing hearing, the district court entered Hannon’s conviction for first-degree murder while committing or attempting to commit kidnapping, under
In December 2006, Hannon filed his first petition for postconviction relief. The district court held an evidentiary hearing limited to Hannon’s claim that he was denied the right to testify at his second trial. After the hearing, the district court denied Hannon’s petition in its entirety in an exhaustive, 65-page order addressing each of Hannon’s claims.
In January 2009, Hannon filed a second petition for postconviction relief. The district court denied this petition without a hearing, concluding that all of Hannon’s claims were untimely filed under
In September 2015, Hannon filed his third petition for postconviction relief. The district court summarily denied the petition. The court concluded that Hannon’s sentence was authorized under
This appeal involves Hannon’s fourth petition for postconviction relief, whiсh he filed in January 2020. The petition claimed that Hannon was sentenced for two offenses, in violation of
Hannon made an additional claim challenging his conviction, the only one that was not clearly raised in any of his previous petitions, arguing that the jury received improper instructions during his 2003 trial because the instructions given referenced assault in the third degrеe, an offense with which Hannon was never charged. Hannon attached several documents to the petition, all but one of which were documents that he submitted with his prior petitions. The new document was Hannon’s own affidavit, dated November 25, 2019, which detailed his efforts to obtain trial documents from his trial counsel.
Without holding a hearing, the district court concluded that Hannon’s sentence was lawful and that his request to challenge his restitution obligation was untimely under the restitution statute. The court also determined that Hannon’s remaining claims were untimely under the postconviction statute of limitations and that the interests of justice exception was not applicable. The court further noted that claims known or that should have been known on direct appeal or in previous petitions are barred by the rule announced in State v. Knaffla, that all claims raised on direct appeal and all claims known but not
On appeal, Hannon continues to challenge both his sentence, asserting that he was unlawfully sentenced for two offenses, and his restitution order, demanding that it be suspended until he receives an itemization of it. He also challenges his conviction, alleging that: (1) the prosecutor engaged in misconduct by failing to disclose deals that were made with witnesses, coercing witnesses into falsely testifying, and making improper statements during closing arguments; (2) the trial judge was biased and engaged in misconduct; (3) he was improperly charged bеcause there was no kidnapping; (4) he was not competent to stand trial; (5) the jury was given improper instructions; and (6) the conviction was based on false evidence, including the DNA evidence and related testimony.
ANALYSIS
We review the denial of a petition for postconviction relief under an abuse of discretion standard.6 Zumberge v. State, 937 N.W.2d 406, 411 (Minn. 2019). The district court will not be reversed unless it has “exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
In our review of Hannon’s claims, we are required to “liberally construe the [postconviction] petition.”
A.
We first address Hannon’s claim that the sentence imposed by the district court was unlawful. Hannon argues that the district court sentenced him for the offensе of first-degree murder while committing or attempting to commit a kidnapping,
Hannon’s argument focuses on language in the upper right hand corner of the district court’s December 2003 sentencing order, which reads, “Murder 1st°- Kidnapping.” Under that language, two statutes are listed “609.185(3)” and “609.106, subd. 2(2).” In his fourth petition for postconviction relief, Hannon writes, “The order clearly states him being sentenced on two separate charges, Murder 1st Degree 609.185(3); and Kidnapping 609.106 subd. 2.” This argument reflects a misunderstanding regarding the nature of statutes that create substantive offenses and statutes that create mandatory sentencing provisions. Section 609.106 does not create the substantive crime of kidnapping. Instead, the offense of kidnapping is created by
The December 2003 sentencing order shows that the district court convicted Hannon on count two, first-degree murder while committing or attempting to commit kidnapping,
Hannon was sentenced on only one offense,
B.
We next address Hannon’s claim that the restitution order should be suspended until he receives an itemized statement of the restitution requests under
C.
Finally, we turn to Hannon’s remaining claims, which challenge his underlying conviction on various grounds and are, therefore, subject to the procedural requirements of postconviction claims. Munt, 920 N.W.2d at 414‒15. The district court dismissed these claims without a hearing on the grounds that the claims were untimely and procedurally barred.
The availability of postconviction relief and the procedures for seeking it are governed by
All of Hannon’s postconviction claims, except for a claim that we address separately below alleging improper jury instructions during his second trial, have been raised in identiсal or very similar iterations in his previous petitions, the denial of which we upheld in all three instances.10 Hannon III, 752 N.W.2d at 520; Hannon IV, 781 N.W.2d at 892;
Hannon V, 889 N.W.2d at 792‒93. Therefore, the district court did not abuse its discretion when it summarily denied the previously raised claims.
As for Hannon’s jury instruction claim, he argues that the jury received improper instructions during his 2003 trial because the jury instructions contained a reference to assault in the third degree even though Hannon was not charged with this offense. We conclude that this claim is untimely for the following reasons.
In an opinion issued on August 18, 2005, we upheld Hannon’s conviction on direct appeal from his second trial. Hannon did not file a petition for a writ of certiorari with the United States Supreme Court after our decision. Therefore, Hannon’s limitations period began 90 dаys later, on November 13, 2005, and his 2-year time limit for filing a postconviction petition expired in November 2007. Hannon filed this fourth petition for postconviction relief over 12 years later, in January 2020—long after the limitations period ended.
Hannon’s petition asserts that the interests of justice exception should apply to his claims. This exception allows a court to hear an untimely petition for postconviction relief if “the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.”
But a separate limitations period exists for the subdivision 4(b) exceptions, and it requires that a petitioner invoking any of the 4(b) exceptions file their petition “within two years of the date the claim arises.”
Even if Hannon had filed his jury instruction claim in a timely manner or an exception to the statute of limitations wаs warranted, the petition and the files and records of the proceeding conclusively show that he is entitled to no relief. Hannon’s jury instruction claim is based on a misunderstanding of the charges in his case. Count II of the indictment alleged that Hannon intentionally caused the death of Tolhurst “while committing or attempting to commit Kidnapping by confining . . . Tolhurst without her consent for the purpose of facilitating the commission of a felony, [specifically]: Assault in the Third Degree.” See
In sum, it was not an abuse of discretion for the district court to summarily deny Hannon’s fourth petition for postconviction relief.
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.
Notes
Before filing this fourth petition with the district court, Hannon filed documents captioned “Appeal of Illegal Sentence” and a “Motion to Correct Illegal Sentence.” These filings were nearly, if not entirely, identical. Though it is unclear whether the State or the district court addressed these filings directly, the arguments made in each are repeated in Hannon’s fourth postconviction petition and received review as a result.
Soon after he filed his fourth postconviction petition, Hannon filed a notice that his petition should have been captioned as a “Request for Retrial,” rather than a “Motion for Post Conviction Relief.” The substance of the document was otherwise unchanged. Because Hannon’s January 2020 filing includes challenges to his underlying conviction, it is treated as a petition for postconviction relief and the postconviction procedural requirements apply. Munt v. State, 920 N.W.2d 410, 414‒15 (Minn. 2018).