STATE OF MINNESOTA IN COURT OF APPEALS A13
- 2317 Harvey Ray Dupey, petitioner,

Appellant,

vs. State of Minnesota, Respondent. Filed October 2 7 , 2014 Affirmed Smith , Judge Ramsey County District Court File No. 62

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- 002520 Erik I. Withall, St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and John A. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul, Minnesota (for r espondent) Considered and decided by Larkin , Presiding Judge; Bjorkman , Judge; and Smith , Judge

. S Y L L A B U S A st ay of adj udication on a felony offense constitutes a sentence under Minn. Stat. § 590.01 , subd. 4 (a)(1) , which triggers the two

- year time limit for postconviction petitions.2 O P I N I O N SMITH , Judge We affirm the district court’s summary denial of appellant ’s petition for postconviction relief because appellant’s filing was untimely

. FACTS On February 27, 2009, the district court stayed adjudication, placing appellant Harvey Ray Dupey on proba tion for five years following a guilty plea to the felony offense of fifth

- degree controlled

- substance crime. On May 24, 2011, the district court revoked the stay of adjudication following Dupey’s guilty pleas to first

- degree aggravated robbery, two misde meanors and his admission to violations of the terms of his probation. The district court imposed and executed a 13

- month prison sentence for the fifth

- degree controlled

- substance conviction. On May 23, 2013, Dupey petitioned the district court for postc onviction relief, requesting that he be allowed to withdraw his guilty plea in light of newly discovered evidence of deficiencies at the laboratory that police had used to test the substance that Dupey possessed in 2008. On October 10, 2013, the district court summarily denied the petition, ruling that it was untimely under Minn. Stat. § 590.01. ISSUE Does a stay of adjudication on a felony offense trigger the two

- year time limit for filing petition for postconviction relief ?3 ANALYSIS Dupey argues that the district court erred by determining that his postconviction petition was untimely because the two

- year time limit as set forth in Minn. Stat. § 590.01 did not begin to run until the district court entered a judgment of conviction in 2011. This presen ts a question of statutory interpretation, which we review de novo. Swenson v. Nickaboine , 793 N.W.2d 738, 741 (Minn. 2011 ). Dupey contends that the district court erroneously measured the time period for his postconviction petition from the date of the district court’s stay of adjudication rather
than from the entry of judgment. Minn. Stat. § 590.01, subd. 4 (2012) mandates that “[n]o petition for postconviction relief may be filed more than two years after the later of: (1) the entry of judgment of con viction or sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s direct appeal.” The Minnesota S upreme C ourt has previously held that this subdivision is “clear and free from all ambiguity” and therefore must be co nstrued “according to its plain language.” Sanchez v. State , 816 N.W.2d 550, 556 (Minn. 2012) (quotation omitted). The plain language of the statute creates two trigger points for the beginning of the
two

- year time limit on postconviction petitions. Whic h trigger point applies depends solely on whether a direct appeal is filed. When a direct appeal is filed, the two

- year time limit for a postconviction petition is triggered when the appellate courts complete the disposition of the direct appeal. Minn. Stat. § 590.01, subd. 4(a)(2). When no direct appeal is filed, the two

- year time limit for a postconviction petition begins upon “entry of judgment of conviction or sentence.” Id. , subd. 4(a)(1). Because Dupey did not file a4

direct appeal, his tim e period for filing a petition for postconviction relief began upon entry of judgment of conviction or sentence. Dupey asserts that, under this statute, “postconviction relief was not available . . . until the revocation of the stay of adjudication.” He a lso asserts that the word “later” in subdivision 4(a) means that “the time limit [is] two years after the later of either the entry of judgment of conviction or sentence.” But the structure of the statute unambiguously indicates that the word “later” appl ies only to determine when the two

- year time limit is triggered, depending on whether a direct appeal is filed; it does not restart the time period if a judgment of conviction is entered after a sentence is imposed or vice

- versa. Although Dupey may be cor rect that no judgment of conviction can be entered until a stay of adjudication is revoked , a stay of adjudication is in itself a “sentence.” See State v. Wright , 699 N.W.2d 782, 786 (Minn. App. 2005); see also State v. Manns , 810 N.W.2d 303, 303 (Minn. 2 005) (mem.) (explicitly endorsing this holding). Because Minn. Stat. § 590.01, subd. 4(a)(1) provides that either a judgment of conviction or a sentence triggers the two

- year time limit for a postconviction peti tion , and because the district court stayed adjudication more than four years before Dupey filed for postconviction relief, the district court correctly determined that Dupey’s petition was untimely. D E C I S I O N Appellant’s postconviction petition was untimely because a stay of adjudication o n his felony offense is a “ sentence ” under Minn. Stat. § 5 90.01, subd. 4 (a) (1) , triggering the two

- year t ime limit for filing a postconviction petition

. Affirmed.