This opinion will be unpublished and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

A15-0032

Ky Antoinette Word, petitioner, 

Appellant, 

vs. 

State of Minnesota, 

Respondent.

Filed October 13, 2015

Affirmed

Peterson, Judge

Dakota County District Court

File No. 19HA-CR-08-2857

Cathryn Middlebrook, Chief Appellate Public Defender, Katie Conners, Carol Ann 

Comp, Assistant Public Defenders, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney, 

Hastings, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Stauber, Judge; and 

Stoneburner, Judge.

*

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10. 
2

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant argues that the district court abused its discretion when it denied her 

postconviction petition seeking relief from her 2009 controlled-substance conviction and 

refused her request for an evidentiary hearing. We affirm.

FACTS

On August 2, 2008, a Burnsville police officer stopped appellant Ky Antoinette 

Word’s car after checking the registration and discovering that the car’s owner had an 

outstanding warrant. The police arrested Word and searched her car. During the search, 

they discovered the type of pipe commonly used to smoke cocaine, and there was a white 

residue on the pipe. A preliminary test revealed that the white residue showed a trace of 

cocaine. A later test by the St. Paul Police Department Crime Lab (SPPDCL) confirmed 

that the residue was cocaine. 

Word was charged with fifth-degree controlled-substance crime and possession of 

drug paraphernalia. On September 1, 2009, while represented by counsel, she pleaded 

guilty to fifth-degree controlled-substance crime, and the paraphernalia charge was 

dismissed. The district court stayed adjudication of the conviction under Minn. Stat. 

§ 152.18, subd. 1 (2008), and placed Word on probation for three years. After Word 

violated probation in 2010, the district court revoked the stay of adjudication, and, on 

October 19, 2010, entered a judgment of conviction and stayed imposition of sentence on 

the condition that Word serve 30 days in jail. Word admitted to another probation 

violation in 2012; the district court again stayed imposition of sentence on the condition 
3

that Word serve 45 days in jail. Word’s sentence was executed and she was discharged 

from probation on February 13, 2013. 

On July 18, 2014, Word petitioned the district court for postconviction relief, 

asking that she be permitted to withdraw her guilty plea. Word argued that systemic 

problems at the SPPDCL that led to the loss of its accreditation in 2012 provided a basis 

for postconviction relief. The district court concluded that Word’s postconviction 

petition was untimely and denied the petition without holding an evidentiary hearing. 

This appeal followed.

D E C I S I O N

Under the postconviction-relief statute,

a person convicted of a crime, who claims that . . . the 

conviction obtained or the sentence or other disposition made 

violated the person’s rights under the Constitution or laws of 

the United States or of the state . . . may commence a 

proceeding to secure relief by filing a petition in the district 

court in the county in which the conviction was had to vacate 

and set aside the judgment and to discharge the petitioner or 

to resentence the petitioner or grant a new trial or correct the 

sentence or make other disposition as may be appropriate.

Minn. Stat. § 590.01, subd. 1(1) (2014). The petitioner has the burden to prove the facts 

alleged in the postconviction petition 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).

The postconviction court denied Word’s petition because it concluded that the 

petition is barred by the statute of limitations. 
4

We review a denial of a petition for postconviction 

relief, as well as a request for an evidentiary hearing, for an 

abuse of discretion. A postconviction court abuses its 

discretion when its decision is based on an erroneous view of 

the law or is against logic and the facts in the record.

Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation and citations omitted). We 

review issues of law de novo and we examine “whether the postconviction court’s 

findings are supported by sufficient evidence.” Leake v. State, 737 N.W.2d 531, 535 

(Minn. 2007); see also Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (noting that 

appellate courts “extend a broad review of both questions of law and fact” when 

reviewing postconviction proceedings (quotation omitted)).

Under the postconviction statute, “[n]o petition for postconviction relief may be 

filed more than two years after the later of: (1) the entry of judgment of conviction or 

sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s 

direct appeal.” Minn. Stat. § 590.01, subd. 4(a) (2014).1 Word does not claim that she 

filed her petition within the two-year limitations period. Instead, she argues that two 

exceptions to the two-year limit apply to her petition.

The postconviction statute contains five exceptions to the two-year limitations 

period. Minn. Stat. § 590.01, subd. 4(b) (2014). The question whether an exception 

permits Word’s postconviction petition to be heard is a separate question from whether 

the substantive claims in Word’s petition entitle her to relief. Gassler v. State, 787 

N.W.2d 575, 582 (Minn. 2010).

 

1 Because Word did not file a direct appeal, clause (2) does not apply to her case.
5

Under the statute, a petition may be filed after the two-year limitations period if

(2) the petitioner alleges the existence of newly 

discovered evidence, including scientific evidence, that could 

not have been ascertained by the exercise of due diligence by 

the petitioner or petitioner’s attorney within the two-year time 

period for filing a postconviction petition, and the evidence is 

not cumulative to evidence presented at trial, is not for 

impeachment purposes, and establishes by a clear and 

convincing standard that the petitioner is innocent of the 

offense or offenses for which the petitioner was convicted;

. . . or

(5) the petitioner establishes to the satisfaction of the 

court that the petition is not frivolous and is in the interests of 

justice.

Minn. Stat. § 590.01, subd. 4(b). 

Newly Discovered Evidence

Based on the premise that the two-year limitations period began running on 

September 1, 2009, when she received a stay of adjudication, Word argues that “[t]he 

evidence about the [SPPDCL] is newly discovered evidence that did not come to light 

until July 2012, after the two year time bar had passed.” But, after briefs were submitted 

and oral arguments were presented to this court in this case, the supreme court held that 

“when an offender receives a stay of adjudication under Minn. Stat. § 152.18, subd. 1,

there is no judgment of conviction or sentence under Minn. Stat. § 590.01, subd. 

4(a)(1),” and the two-year statute of limitations for filing a petition for postconviction 

relief began to run “only after the stay was revoked, [the offender] was sentenced, and the 
6

district court entered a judgment of conviction.” Dupey v. State, 868 N.W.2d 36, 41

(Minn. 2015).

2

 

When Word pleaded guilty on September 1, 2009, she received a stay of 

adjudication. On October 19, 2010, the stay was revoked, judgment of conviction was 

entered, and Word was sentenced. Consequently, under Dupey, the two-year period for 

filing a petition for postconviction relief began running in October 2010 and ended in 

October 2012. Thus, when the evidence about the SPPDCL came to light in July 2012, 

there were still three months remaining in the two-year limitations period, and, by the 

exercise of due diligence, the evidence could have been ascertained by Word or her 

attorney during the two-year limitations period.

Furthermore, even if the two-year period for filing a postconviction petition had 

begun to run on September 1, 2009, when Word received a stay of adjudication, we are 

not persuaded that the exception for newly discovered evidence would apply. Under 

Minn. R. Crim. P. 9.01, subd. 1(4)(a), the prosecutor must, at the defense’s request, 

disclose the results of scientific tests. And, under Minn. R. Crim. P. 9.01, subd. 1(4)(b), 

the prosecutor must allow a defendant to conduct reasonable tests, or, if an initial test 

 

2

The postconviction court’s decision was based on the premise that the two-year 

limitations period began running on September 1, 2009, when Word pleaded guilty and 

received a stay of adjudication. We will not reverse a correct decision simply because it 

is based on incorrect reasons. See Kahn v. State, 289 N.W.2d 737, 745 (Minn. 1980)

(civil case). In an opinion released on October 27, 2014, this court held that a stay of 

adjudication triggers the two-year limitations period under Minn. Stat. § 590.01, subd. 

4(a)(1), for filing a postconviction petition. Dupey v. State, 855 N.W.2d 544, 546 (Minn. 

App. 2014) rev’d, 868 N.W.2d 36 (Minn. 2015). This court’s opinion, which was 

reversed by the supreme court, could not have affected Word’s decision to file her 

petition because the opinion was released after Word filed her petition. 
7

might preclude any further tests, the prosecutor must give the defendant notice and 

opportunity so that a qualified expert may observe the initial test. Finally, under Minn. 

R. Crim. P. 9.01, subd. 2(1), a defendant may bring a motion asking the district court to 

require the prosecutor “to assist the defendant in seeking access to specified matters 

relating to the case that are within the possession or control of an official or employee of 

any governmental agency.” Matters relating to Word’s case include the laboratory 

procedures at the SPPDCL. 

In an August 8, 2008 demand for disclosure, Word demanded disclosure of all 

matters set forth in rule 9.01. The demand for disclosure also requested in-person 

testimony of all analysts who performed tests, the results of which the state intended to 

introduce as evidence at trial. It is not clear from the record whether the state made the 

disclosures that Word demanded, but the transcript for Word’s guilty-plea hearing 

demonstrates that, instead of challenging the state’s evidence, which she had a right to 

do, Word gave up her right to challenge the evidence when she pleaded guilty. Word has 

not shown that the discovery procedures available to her under rule 9.01 could not have 

been used to ascertain the deficiencies at the SPPDCL within two years after she received 

a stay of adjudication. See Roberts v. State, 856 N.W.2d 287, 291 (Minn. App. 2014) (on 

similar facts, denying postconviction petition for failure to exercise due diligence), 

review denied (Minn. Jan. 28, 2015). 

Also, the evidence about deficiencies at the SPPDCL did not specifically pertain 

to the testing of the residue on the pipe found in Word’s car and could only be used for 

impeachment purposes. See Pippitt v. State, 737 N.W.2d 221, 227-28 (Minn. 2007) 
8

(stating that evidence that attacks the credibility of trial testimony is impeaching in nature 

and does not provide a basis for a new trial). Finally, the SPPDCL evidence does not 

clearly and convincingly establish that Word was innocent of the offense for which she 

was convicted. “[T]o satisfy the newly-discovered-evidence exception, the newly 

discovered evidence must establish actual innocence. Actual innocence is more than 

uncertainty about guilt. Instead, establishing actual innocence requires evidence that 

renders it more likely than not that no reasonable jury would convict.” Roberts, 856 

N.W.2d at 292 (quotation omitted). The SPPDCL evidence showed that there were 

deficiencies in its testing procedures, but it did not establish actual innocence by showing

that the residue on the pipe found in Word’s car was not cocaine. The newly-discoveredevidence exception does not apply to Word’s petition. 

Interests of Justice

The supreme court has “made clear” that “the interests-of-justice referred to in 

[Minn. Stat. § 490.01,] subdivision 4(b)(5)[,] relate to the reason the petition was filed 

after the 2–year time limit in subdivision 4(a), not the substantive claims in the petition.” 

Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012). “In other words, the interests-ofjustice exception is triggered by an injustice that caused the petitioner to miss the primary 

deadline in subdivision 4(a), not the substance of the petition.” Id.

Word argues that the reason she did not file a petition during the two-year 

limitations period is that the evidence about the SPPDCL was not available until July 

2012. But under Dupey, the end of the limitations period in subdivision 4(a) did not 

occur until October 2012, which means that when the evidence came to light in July 
9

2012, Word still had until October 2012 to file her petition. Thus, the fact that the 

evidence was not available until July 2012 did not cause Word to miss the deadline in 

subdivision 4(a).

Furthermore, even if the two-year period for filing a postconviction petition had 

begun to run on September 1, 2009, when Word received a stay of adjudication, we are 

not persuaded that the interests-of-justice exception would apply. In order for the 

interests-of-justice exception to apply, Word must establish that her “petition is not 

frivolous and is in the interests of justice.” Gassler, 787 N.W.2d at 585-86. “A petition 

is frivolous if it is perfectly apparent, without argument, that the petition is without 

merit.” Id. at 586. It is perfectly apparent that Word’s argument that the evidence about 

the SPPDCL was not available until July 2012 is without merit. As we have already 

discussed, the discovery procedures available to Word under Minn. R. Crim. P. 9.01 

could have been used to discover the deficiencies at the SPPDCL, but, instead of using 

those procedures, Word waived her right to challenge the state’s evidence and pleaded 

guilty. Consequently, the interests-of-justice exception does not apply to Word’s 

petition.

Because Word did not file her petition within the two-year limitations period 

under Minn. Stat. § 590.01, subd. 4(a)(1), and none of the exceptions to the two-year 

limitation under Minn. Stat. § 590.01, subd. 4(b), applies to Word’s petition, the 

postconviction court did not abuse its discretion by denying the petition as untimely 

without holding an evidentiary hearing.

Affirmed.