author: PER CURIAM.

text:
    2002 SD 157
    STATE of South Dakota, Plaintiff and Appellee, v. Jose F. ARGUELLO, Defendant and Appellant.
    No. 22337.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided Dec. 18, 2002.

      Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bryan T. Andersen, Office of Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Jose Arguello appeals a habitual offender conviction following his guilty plea to driving under the influence (DUI) contending his prior convictions are void for sentence enhancement purposes and application of the prior convictions to enhance the penalty violates the constitutional prohibition against ex post facto laws.

FACTS AND PROCEDURE

[¶ 2.] The facts of this case are undisputed. Arguello pled guilty to driving or controlling a vehicle while having .10 percent or more of alcohol in his blood on August 16, 2001. However, Arguello pled not guilty to the part II information which alleged that this was his third offense DUI. Following a court trial, Arguello was found guilty of the part II information and sentenced for a third offense DUI.

[¶ 3.] Arguello does not dispute that he was previously convicted for DUI on April 26, 1993 and January 9, 1995. At the time of those convictions, SDCL 32-23-4.1 provided for sentence enhancement if prior DUI convictions occurred within the previous five years. SDCL 32-23^.1 was subsequently amended on July 1, 2001 to extend the timeframe for enhancement purposes to the previous ten years. SDCL 32-23-4.1 (2002). Arguello concedes that he was advised of his Boykin rights prior to his entering guilty pleas for the two prior DUI offenses, as mandated by the decisions of the United States Supreme Court and the precedent of this Court. Despite this concession, Arguello claims that because he was not informed that those convictions could subsequently be used to enhance his sentence they are void for enhancement purposes. Additionally, Arguello claims that the trial court’s application of amended SDCL 32-23-4.1 is void as an unconstitutional ex post facto application of that law.

ANALYSIS AND DECISION ISSUE ONE

[¶ 4.] Whether the two previous convictions are valid for enhancement purposes.

[¶ 5.] Arguello claims that the use of the two prior DUI convictions for enhancement purposes violates his right to due process and to know the nature and cause of the accusations against him. As previously mentioned, Arguello concedes he was properly advised of his Boykin rights prior to the guilty pleas which represent the previous convictions. Therefore, Arguello does not attempt to collaterally attack those convictions but, instead, asserts they should be ignored for enhancement purposes because he was not advised when he entered the prior guilty pleas that the conviction(s) could subsequently be used to enhance a sentence for a future conviction. This argument is without merit.

[¶ 6.] In a different context, this Court has held that “we follow those decisions which have held that it is not necessary for a court to inform a defendant of the collateral consequences of a guilty plea, such as eligibility for parole, in order for a plea to be intelligently and voluntarily entered.” Gregory v. State, 353 N.W.2d 777, 781 (S.D.1984). Additionally, in State v. Olesen, 331 N.W.2d 75, 77 (S.D.1983), the Court determined that “a defendant need not be advised of any enhanced punishment that may result from the conviction should the defendant subsequently be convicted of a crime.” The United States Supreme Court has also recognized “[t]he rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering his decision.” Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747, 761 (1970).

[¶ 7.] In rejecting a defendant’s contention that a single conviction could not be used more than once for enhancement purposes unless defendant was so informed by the trial court, this Court stated:

We are not convinced that Boykin requires the advice that defendant now claims he was entitled to. Rather, we agree with the Supreme Court of Iowa that a defendant need not be advised of any enhanced punishment that may result from the conviction should the defendant subsequently be convicted of a crime.

Olesen, 331 N.W.2d at 77. In addressing a similar issue another court has recognized that “the trial judge who accepted the plea was not required to advise defendant of his continuing duty to act as a law-abiding citizen.” People v. Heinz, 197 Colo. 102, 589 P.2d 931, 934 (1979). “The judge who accepts a plea of guilty is required to inform the defendant only of those consequences which have a definite, immediate and largely automatic effect on the range of a defendant’s punishment.” Id. at 933.

[¶ 8.] When a defendant is not properly informed of the consequences of his plea of guilty and the resulting waiver of his constitutional rights, that plea cannot be used to enhance or support guilt. See State v. King, 383 N.W.2d 854, 857 (S.D.1986). Significantly, Arguello does not allege that he was not informed of his rights as they are mandated by the previous decisions of this Court. See Application of Garritsen, 376 N.W.2d 575, 577 (S.D.1985) (requiring the record to demonstrate that defendant waived his right to cross-examine the witnesses against him, proceed to trial by jury, and waive the privilege against self-incrimination).

[¶ 9.] A “defendant is not entitled, as a constitutional right, ... to information regarding the future use of his conviction for purposes of enhancement.” Presley v. State, 498 So.2d 832, 833 (Miss.1986). See also People v. Crosby, 3 Cal.App.4th 1352, 5 Cal.Rptr.2d 159, 160 (1992) (holding that an enhanced sentence is not part of the pending case or a direct consequence of the defendant’s underlying conviction entitling defendant to set aside a guilty plea). As such, there is no support for defendant’s assertions that failing to advise him of a sentence enhancement possibility when the pleas were entered would render them void for enhancement purposes. The record unequivocally establishes that Arguello received two previous convictions for sentence enhancement purposes as determined by the trial court.

ISSUE TWO

[¶ 10.] Whether use of the two prior convictions to enhance the penalty violates the ex post facto clause of the state and federal constitution.

[¶ 11.] Arguello contends that because at the time of his prior convictions the penalty enhancement statute only reached back five years application of amended SDCL 32-23-4.1, reaching back ten years at the time of his most recent conviction, unconstitutionally enhances the punishment for the prior crimes retroactively.

[¶ 12.] Article I, Section 10 of the United States Constitution and Article VI, Section 12 of the South Dakota Constitution prohibit the adoption of ex post facto laws. In a case closely analogous to this, the Court in State v. Nilson, 364 N.W.2d 532 (S.D.1985), rejected defendant’s contention that application of the habitual offender statute violated the ex post facto prohibitions when the statute was amended to allow prior convictions to be used for a period of five years, rather than four. In determining the trial court appropriately relied upon the amended version of SDCL 32-2-4.1 to find defendant Nilson guilty of third offense DUI, the Court stated:

The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.

Id. at 533 (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948)). Therefore, Nilson’s argument was rejected because the habitual offender statute did not retroactively operate to punish the pre-existing crime. Rather, “[t]he ground upon which these statutory provisions is bottomed is that punishment is imposed for the current offense only, and that in determining the amount and nature of the penalty to be inflicted the Legislature may require the court to take into consideration the recidi-vous nature of defendant’s conduct.” Id.

[¶ 13.] In Delano v. Petteys, 520 N.W.2d 606 (S.D.1994), this Court determined that application of an amended statute relating to revocation of good time conduct violated the prohibition against ex post facto application of the law. That case demonstrates Arguello’s erroneous interpretation of our ex post facto jurisprudence; the ex post facto prohibition is intended to prevent punishment from occurring retrospectively. Here, SDCL 32-23-4.1 operates prospectively, applying past convictions to determine punishment for a conviction that occurs down the road. At all times, the punishment is for the then existing conviction and not the prior convictions.

[¶ 14.] In addition, “it is settled that criminal or penal legislation amending existing law may not change the legal consequences of acts completed before its effective date, a statute, however, is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective.” Lewis v. Class, 1997 SD 67, ¶ 23, 565 N.W.2d 61, 65. Arguello’s sentence was for his third DUI conviction, a conviction that occurred after SDCL 32-23-4.1 was amended.

[¶ 15.] We affirm.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, participating.

[¶ 17.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

       Arguello cites no authority indicating that any other jurisdiction requires a defendant to be informed of the possibility of an enhanced sentence for a future conviction as a result of a guilty plea in order to utilize the conviction for enhancement purposes.


source: Caselaw Access Project

author: SACKETT, C.J.

license: Public Domain

text:
    STATE of Iowa, Plaintiff-Appellee, v. Karl Everett VOLL, Defendant-Appellant.
    No. 01-1577.
    Court of Appeals of Iowa.
    Oct. 16, 2002.
    Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and C. Kenneth Whitacre, County Attorney, for appellee.
    Heard by SACKETT, C.J., and VOGEL and MAHAN, JJ.
   SACKETT, C.J.

Defendant-appellant Karl Voll appeals his conviction, following a jury trial and verdict of guilt, for attempted murder, in violation of Iowa Code section 707.11 (2001), assault causing bodily injury, in violation of sections 708.1 and 708.2, and going armed with intent, in violation of section 708.8. Defendant claims the district court erred in denying his motion for a mistrial following the discovery that one exhibit mistakenly had not been sent to the jury room. Defendant further argues his counsel was ineffective for failing to ensure all exhibits were sent to the jury room. We affirm.

Defendant and his wife, Maria Voll, were notified on April 5, 2001 that Maria’s daughter, Jessica Whetsel, had drugs in her possession at school. In order to help Jessica avoid a lengthy sentence for possessing drugs on school property, defendant and his wife made an agreement with authorities to assist in a sting operation designed to catch the individuals who supplied Jessica with the drugs. Jessica told the defendant she still owed “the Vasquez brothers” fifty dollars for the drugs. Defendant and his wife told this to the authorities, who then arranged for Maria Voll to wear a wire and to visit Mike and Nick Vasquez and attempt to pay her daughter’s fifty dollar debt. During the sting, Maria got nervous, so defendant came to her aid. The tape of the conversation of the sting was transcribed and admitted at trial as the State’s Exhibit 1. This exhibit did not go with the jury to the jury room but remained in the prosecuting attorney’s file during jury deliberations. The fact the jury did not have the transcript during deliberations is the focus of defendant’s challenge. The transcript revealed that defendant said to “tell everybody” that he would kill any person giving Jessica a large amount of drugs in the future.

Following the sting, both Vasquez men were arrested but were not in custody long. Rumors circulated that Jessica and the Volls would be hurt because they helped set up the Vasquez men.

On May 11, 2001 defendant went back to the Vasquez apartment. There were several people in the apartment, a number of whom testified at trial. Defendant engaged Nick Vasquez in a short exchange which quickly became contentious, Nick Vasquez was shot in the face, and defendant ran from the apartment. Testimony at trial was that defendant shot Vasquez. Defendant claimed Vasquez had the gun in his possession and accidentally shot himself. Defendant’s green truck was seen speeding from the scene, and defendant was apprehended by police officers a short time later. Testimony at trial indicated bullets owned by Estil Richmond, the owner of the house where defendant was living, matched the bullet fragments found in Nick Vasquez’s head. Additionally, these bullet fragments were consistent with a .38 special or a .357 magnum bullet. Estil Richmond owned a .357 Colt, which he discovered missing the day after the shooting.

Defendant claims the inadvertent omission of State’s Exhibit 1 from the jury’s exhibits warrants a new trial.

Iowa Rule of Criminal Procedure 2.19(5)(e) provides, in relevant part,

Upon retiring for deliberations the jury may take with it all papers and exhibits which have been received in evidence, and the court’s instructions; provided, however, the jury shall not take with it depositions, nor shall it take original public records and private documents as ought not, in the opinion of the court, to be taken from the person possessing them.

At the close of trial, prior to submitting this case to the jury, the court requested counsel review the exhibits which were to be submitted. Counsel for the State and for the defendant did so. Neither one noted the absence of the State’s Exhibit 1.

As a general rule submission of exhibits to the jury is a matter resting in the trial court’s sound discretion. State v. Shea, 218 N.W.2d 610, 615 (Iowa 1974); see also Heth v. Iowa City, 206 N.W.2d 299, 303 (Iowa 1973). The basic responsibility for assuring the jury has the exhibits should lie with the district court. Here the district court delegated that responsibility to the prosecutor and to defendant’s attorney, and there is nothing to suggest that either attorney objected to the delegation of this responsibility. Exhibit 1 did not go to the jury room. Defendant’s attorney did not note the absence of the exhibit and attempt to locate it prior to jury deliberations. The prosecuting attorney found the exhibit in his papers after the verdict was returned.

We review the district court’s denial of defendant’s motion for a mistrial and new trial for abuse of discretion. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999).

Further, to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate both ineffective assistance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Both elements must be proven by a preponderance of the evidence. Ledezma, 626 N.W.2d at 142. If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; see Ledezma, 626 N.W.2d at 142.

Ineffective assistance is more likely to be established when the alleged actions or inactions of counsel are attributed to a lack of diligence as opposed to the exercise of judgment. Ledezma, 626 N.W.2d at 142. Mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel. Id. at 143. Even if defendant proves his attorney rendered ineffective assistance, he must also show the error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. To sustain this burden, defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; see Ledezma, 626 N.W.2d at 143. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; see Ledezma, 626 N.W.2d at 143. The question is “whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. To satisfy this requirement, an applicant must meet “the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Id. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; see Ledezma, 626 N.W.2d at 143-44. The reasonable probability of a different result is our governing inquiry. Ledezma, 626 N.W.2d at 144. In making the decision whether there is a reasonable probability that the result of the trial would have been different, the burden of proof is on the defendant to establish this standard by a preponderance of the evidence. Id. at 145.

Insomuch as both the claim for a new trial and the claim of ineffective assistance of counsel are constitutional challenges, we review them de novo. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). Most constitutional errors do not automatically require the reversal of a conviction if the error is harmless. State v. Hensley, 534 N.W.2d 379, 382 (Iowa 1995) (citations omitted). In order for a constitutional error to be harmless, the court must be able to declare it harmless beyond a reasonable doubt. State v. Deases, 518 N.W.2d 784, 791 (Iowa 1994) (citation omitted).

Defendant’s trial attorney clearly was in error not to assure an exhibit go to the jury for deliberations. The marked exhibit should have gone to the jury room absent a decision by the judge to the contrary. See Iowa R.Crim. P. 2.19(5)(e).

However, given the record, the only conclusion we can reach is that defendant’s attorney’s error was harmless beyond a reasonable doubt. See Hensley, 534 N.W.2d at 383. Exhibit 1 was a State’s exhibit. It was largely unintelligible. What was intelligible from Exhibit 1 was that the defendant was threatening to kill anyone who might further provide Jessica with drugs. Defendant argues that Exhibit 1 demonstrates the “truce” he had arrived at with the Vasquez brothers and that further violence on his part would be inconsistent with that truce. Given defendant’s harsh language and overt threats as revealed by the transcript, we find no basis to accept defendant’s argument that any agreement had been reached between defendant and the Vasquez brothers which would make defendant’s later act of violence inconceivable.

Furthermore, there was overwhelming evidence at trial supporting a finding of defendant’s guilt. Four eyewitnesses, including Emily O’Tool, Ashley Fink, Johnathan Avalos and Jade Avalos, saw the shooting and testified that defendant shot Vasquez. Andrea Leonard testified she saw defendant acting strangely in the parking lot before confronting Nick Vasquez. Alison Render, Joshua Leonard and Donald Oswald testified they saw defendant fleeing the scene following the shooting. The gun used in the shooting matched one that was suddenly missing from the home in which defendant was living. Bullets found in that home matched the bullet fragments found in Nick Vasquez’s head. Defendant was the only real advocate of his own alibi, and his various accounts of the events that night contain several inconsistencies. The evidence overwhelmingly established his guilt. If anything, Exhibit 1 buttressed that evidence. We find no reversible error.

Having found error in Exhibit l’s not being sent to the jury for deliberations, we nevertheless affirm defendant’s conviction and dismiss defendant’s arguments that the district court should have granted his motion for a new trial and that he should have a new trial due to ineffective assistance of counsel.

AFFIRMED.


author: MEYER, Justice.

text:
    Jason Michael IVES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C7-02-1316.
    Supreme Court of Minnesota.
    Jan. 23, 2003.

      Jason M. Ives, Pro se Appellant, MCF-OPH, Stillwater, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

Jason Michael Ives appeals from a summary denial of his petition for postconviction relief. The postconviction court denied Ives relief on the basis that his claims, while technically different from those submitted during his direct appeal, did not constitute a claim upon which relief could be granted. We affirm.

We briefly summarize the case to provide context for the issues raised in this appeal. (The facts are more fully detailed in Ives’ direct appeal to this court, State v. Ives, 568 N.W.2d 710 (Minn.1997)). Ives was convicted for the November 1995 shooting death of James Magnus, Jr., a night clerk at an Amoco station. Ives, 568 N.W.2d at 712. The only evidence recovered from the scene was several latent fingerprints found on the entrance and exit doors to the station. Id. An anonymous tip led the authorities to several witnesses who said that Ives had admitted his involvement in the shooting. Id. According to these witnesses, Ives and Brian Crooks went into the Amoco store and attempted to rob Magnus. Id. Fearing that Magnus had given a code to alert the police, Ives cocked his gun and released the hammer, allegedly forgetting that there was a bullet in the next chamber. Id.

At trial, the state argued that Ives shot Magnus after Crooks fled the scene. Id. The state presented several witnesses who testified either that Ives had told them directly about his involvement in the incident or they had overhead him speaking about his involvement. Id. In Ives’ defense, his attorney argued that it was a different man, Aaron Hanson, who committed the robbery, or in the alternative that the shooting was an accident. The jury convicted Ives of two counts of murder in the first' degree (premeditated murder and intentional murder in the commission of a felony) and two counts of murder in the second degree (intentional murder and felony murder in the commission of an aggravated robbery). Id. at 712-13. Ives was sentenced to life in prison. Id. at 718.

On direct appeal, Ives challenged his conviction on two grounds: prosecutorial misconduct and ineffective assistance of counsel. Id. at 712. Specifically, he argued that during the prosecutor’s final argument she improperly: (1) interjected her opinion on the credibility of evidence; (2) appealed to the passions of the jury; (3) disparaged Ives’ defense by leading the jury to believe that a defendant cannot assert alternative defense theories; (4) attacked Ives’ character; and (5) made an indirect reference to Ives’ pre-arrest silence in violation of his Fifth Amendment rights. Id. at 713. Ives also argued that he was denied effective assistance of counsel because his attorney did not adequately prepare for trial, failed to call witnesses who would have raised credibility questions about the state’s witnesses, and failed to object to the prosecutor’s comments regarding Ives’ character. Id. at 714. We held that although the prosecutor’s remarks regarding Ives’ character were improper, this misconduct was not so prejudicial that it denied Ives a fair trial. Id. at 715. We also concluded that Ives’ claims of ineffective assistance of counsel failed because most of his claims were based on criticism of trial counsel tactics, which we will not review, and he had not established that the outcome of the trial would have been different had the alleged errors not occurred. Id.

On April 12, 2002, Ives filed a petition for postconviction relief in which he alleged ineffective assistance of both trial and appellate counsel. Ives argued that he was denied effective assistance of trial counsel because his counsel failed to properly investigate several defense theories that could have been raised at trial. Ives also claimed that his appellate counsel failed to tell him that his trial counsel had offered to take the blame for not objecting to the prosecutor’s comments during closing argument. Ives asserted that this prejudiced his claim of ineffective assistance of counsel on direct appeal. The postconviction court reviewed Ives’ claims and summarily denied his petition for post-conviction relief because it found the claims asserted were not new and there was no evidence that Ives had been denied effective assistance of counsel.

The sole issue before this court is whether the postconviction court abused its discretion in summarily denying Ives’ petition for postconviction relief. 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 postcon-viction court abused its discretion. Roby v. State, 547 N.W.2d 354, 356 (Minn.1996).

Under Minn.Stat. § 590.04, the district court is required to grant a hearing for any postconviction petition filed unless the issues raised in the petition conclusively show that the petitioner is not entitled to relief. Minn.Stat. § 590.04, subd. 1 (2002). When a direct appeal has been taken and litigated before this court, all matters raised during the appeal and all claims known by the defendant, but not raised, are barred and will not be considered upon a subsequent postconviction petition for relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn. 1976); see also Minn.Stat. § 590.04, subd. 3 (2002) (stating that a postconviction petition may be summarily dismissed when it raises issues that have been previously decided in the same case by an appellate court). In general, Knaffla, bars claims of ineffective assistance of counsel when such claims are known at the time of appeal, except where the claim requires additional fact-finding by the court. See Dukes v. State, 621 N.W.2d 246, 255 (Minn.2001) (noting additional fact-finding is required when the claim requires evidence of attorney-client communications). Additionally, this court has granted postconviction relief when the issue raised is “so novel that it can be said that its legal basis was not reasonably available at the time the direct appeal was taken and decided” or where the interests of justice require relief. Fox v. State, 474 N.W.2d 821, 824 (Minn.1991); Boitnott v. State, 631 N.W.2d 362, 370 (Minn.2001).

Ives argues that he was denied a fair trial by ineffective assistance of trial counsel because his counsel failed to conduct a thorough investigation of the facts surrounding the charge, failed to obtain an independent investigation of the forensic and ballistic evidence, failed to investigate Ives’ mental and emotional status, and failed to investigate the extent of Ives’ gross intoxication. The state maintains that these claims are procedurally barred because they are similar to issues raised during Ives’ direct appeal, or are issues that could have been raised on direct appeal but were not and therefore are barred by our ruling in Knaffla.

We agree. Although none of these precise claims were directly raised during Ives’ direct appeal, his claims are still procedurally barred. Each of the claims relies on evidence that Ives had in his possession during his direct appeal and therefore are barred by Knaffla; Ives knew or should have known the claims existed at the time of his direct appeal because his current claims against his trial counsel are based on similar grounds to those he asserted during his direct appeal. Unlike Dukes, these claims do not require additional fact-finding by the court because all the evidence needed to evaluate his claims was present in the record before this court on direct appeal. Further, the exception to Knaffla enunciated in Fox does not apply because none of these issues are so novel that it can be said their legal basis was not reasonably available the last time we examined this case. Finally, the interests of justice do not establish the basis for relief because, as we have noted many times before, matters of trial strategy, including which witnesses to call, what defenses to raise at trial, and specifically how to proceed at trial, will not be reviewed later by an appellate court as long as the trial strategy was reasonable. See, e.g., Boitnott, 631 N.W.2d at 370-71 (failure to investigate, prepare for trial, and raise timely objections); State v. Voorhees, 596 N.W.2d 241, 255 (Minn.1999) (defenses raised at trial); State v. Rainer, 502 N.W.2d 784, 788 (Minn.1993) (which witnesses are called and what information is presented to the jury).

In his discussion of each claim, Ives asserts that his trial counsel’s failure to obtain experts to investigate the evidence, or to substantiate a defense of gross intoxication or mental illness, constituted ineffective assistance of counsel. Because each of Ives’ claims involves a complaint against his counsel’s trial tactics, and since there is no evidence on the record to show that Ives’ counsel’s actions were not reasonable, these claims are not reviewable by this court. Because Ives’ claims are procedurally barred, we hold that the postcon-viction court did not abuse its discretion and affirm the postconviction court’s summary denial of Ives’ claim of ineffective assistance of trial counsel.

We now address Ives’ claim of ineffective assistance of appellate counsel. To establish ineffective assistance of appellate counsel, an appellant must show that counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result. Sanders v. State, 628 N.W.2d 597, 603 (Minn.2001). To establish prejudice, a defendant “must demonstrate that there is a reasonable probability that absent his appellate counsel’s error, the outcome of his direct appeal would have been different.” Id.

Ives argues that he was denied effective assistance of appellate counsel because appellate counsel failed to raise and preserve issues in his direct appeal and withheld information from Ives at the time of his appeal. Specifically, Ives states that his trial counsel told his appellate counsel that he, the trial counsel, was at fault for failing to object and control the prosecutor during her closing arguments, but that his appellate counsel never told Ives this information. Ives provides copies of two letters he received, one from his trial counsel offering to testify regarding his conduct, and one from his appellate counsel discussing why this offer was never shared with Ives. Ives argues that his appellate counsel’s lack of communication prejudiced him during the direct appeal process because almost all of his claims regarding prosecutorial misconduct were dismissed by this court because defense counsel did not object at trial to the prosecutor’s comments.

However, during his direct appeal, Ives stated that he was denied effective assistance of trial counsel because his counsel failed to object to the prosecutor’s inappropriate statements during her closing argument. We reviewed Ives’ claim and the entire record to determine whether Ives’ trial counsel’s failure to object was prejudicial to the outcome of the trial. We concluded that Ives’ trial counsel’s failure to object did not deprive Ives of a fair trial because “[gjiven the weight of the evidence against [him], it [was] doubtful that an objection by his attorney- would have changed the outcome of the trial.” Ives, 568 N.W.2d at 715. Therefore, while Ives’ appellate counsel may have had a responsibility to tell Ives that his trial counsel had offered to take the blame for not objecting, Ives has failed to show how this failure would have changed the outcome of the direct appeal. We conclude that the post-conviction court did not abuse its discretion when it summarily denied Ives’ claim of ineffective assistance of appellate counsel.

Affirmed.

      . In his brief Ives included copies of two letters he received. The first letter is from Ives' trial counsel and states that he was willing to testify at a postconviction hearing that were he to try the case again, he "would be more vigorous in controlling the prosecutor[’]s unprofessional conduct.” The second letter is from Ives' appellate counsel, stating that he could not remember why he did not provide trial counsel's letter to Ives at the time of the direct appeal, but that it was likely because this information was not “new” and would not have assisted Ives' claim of ineffective assistance of counsel.


author: Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Barrie S. SCHUMACK, an Attorney at Law of the State of Minnesota.
    No. C6-99-1781.
    Supreme Court of Minnesota.
    Jan. 23, 2003.
   ORDER

Respondent Barrie S. Schumack was placed on supervised probation for misconduct that included engaging in a pattern of neglect and noncommunication, failing to pay a law-related debt, and failing to cooperate with an ethics investigation conducted by the Director of the Office of Lawyers Professional Responsibility. In re Disciplinary Action Against Schumack, 615 N.W.2d 830 (Minn.2000). The Director has filed a petition for revocation of probation and for further disciplinary action alleging that respondent has committed professional misconduct warranting public discipline while on probation, namely, that respondent neglected a client matter, failed to adequately communicate with that client, failed to pay a law-related debt, and failed to cooperate with his probation supervisor and the Director in violation of the terms of probation and Minn. R. Prof. Conduct 1.3, 1.4, 3.4(c), 8.1(a)(3), and 8.4(d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

The parties have entered into a stipulation in which respondent unconditionally admits the misconduct and the parties jointly recommend that the appropriate discipline is a six-month suspension. The parties further recommend that, in light of respondent’s renewed psychological treatment, the suspension be stayed and re-

spondent be placed on supervised probation subject to the following conditions:

a. Respondent shall abide by each of the conditions set out in the court’s order in In re Disciplinary Action Against Schumack, 615 N.W.2d 830 (Minn.2000).

b. Respondent shall limit his practice to criminal defense, implied consent matters, license plate impound-ments, and any property forfeiture cases based on alleged illegal activity of the client. The respondent may complete all civil matters currently pending and cited in his November 2002 case inventory supplied to the Director’s Office. In addition, the respondent may represent himself in any civil action and, with the prior consent of the Director’s Office and his supervisor, any other civil matter. Nothing in this restriction shall prevent the respondent from acting as a qualified neutral or arbitrator.

c. Respondent shall respond to communications from the Director’s Office and his supervisor within three business days of receipt of the communication. Respondent shall file his client inventories timely during the first week of each month without a reminder from his supervisor. Respondent’s supervisor shall call the Director’s Office in the second week of each month if the inventory has not been received.

d. Respondent shall continue to treat with Dr. Dan Barron on behavior modification techniques and shall authorize Dr. Barron to communicate with his supervisor and the Director’s Office regarding his treatment. Respondent shall attend all appointments recommended by Dr. Barron. Respondent shall not discontinue treatment with Dr. Barron until he has found another counselor approved by the Director’s Office. Respondent shall authorize Dr. Barron to notify the Director’s Office immediately by telephone regarding any failed appointment or failure to cooperate with his treatment plan.

e. Respondent shall remain compliant with medication and treatment regimens prescribed by his physicians.

f. Respondent’s public probation shall continue until the later of two years from the date of this order or until respondent has completely satisfied the Weller and U.S. West Dex judgments against him and his treating psychologist certifies that probation is no longer necessary or helpful.

g. Failure to comply with any of the terms of this stayed suspension shall result in automatic suspension upon the motion of the Director’s Office.

h. Respondent shall pay $900 in costs under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Barrie S. Schumack is suspended from the practice of law for six months, stayed, and respondent is placed on supervised probation subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

Paul H. Anderson Associate Justice


author: PETERSON, Judge.

text:
    Robert O’LEARY, as trustee of Lakeland Printing Co., Inc., et al., Respondents, v. CAREFREE LIVING OF AMERICA (MINNETONKA), INC., Appellant.
    No. C6-02-769.
    Court of Appeals of Minnesota.
    Jan. 8, 2003.

      Paul R. Haik, Krebsbaeh & Haik, Ltd., Minneapolis, MN, for respondents.
    Michael C. Mahoney, Julianne L. Emerson, Mahoney, Hagberg & Davisson, P.A., Minneapolis, MN, for appellant.
    Considered and decided by WILLIS," Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

PETERSON, Judge.

This appeal is from a judgment awarding respondents compensatory damages for the lost value of the use and occupation of real property during the pendency of an appeal from a judgment that directed the recovery and sale of the real property. Appellant argues that the district court erred by awarding respondents damages in an amount that exceeds the supersedeas bond posted to stay enforcement of the judgment during the pendency of the previous appeal and by determining that payments appellant made constituted waste. We conclude that appellant’s liability for damages is not limited by the amount of the supersedeas bond, but because the district court did not explain how the amount of damages it awarded reflects the lost value of the use and occupation of the real property during the previous appeal, we affirm in part and remand in part with instructions.

FACTS

The respondents in this appeal were limited partners in Leisure Living of Minne-tonka Limited Partnership, a Minnesota limited partnership that owned an option to purchase real estate. The option was wrongfully transferred to appellant Carefree Living of America (Minnetonka), Inc., which exercised the option, acquired the real estate, and built a building on it. Following a trial in an action brought by respondents to recover the real estate from appellant, the district court ordered that the partnership should recover the property, that the property should be sold, and that the proceeds of the sale should be distributed as provided by the Uniform Limited Partnership Act. Judgment was entered, and Carefree Living appealed. The district court conditioned a stay of enforcement of the judgment on the posting of a $90,000 supersedeas bond, and appellant posted the bond. The amount of the bond was based on an assumption that the appeal would take six months.

This court affirmed the judgment, and the supreme court denied further review. O’Leary v. Carefree Living of Am., Inc., 2001 WL 1083757 (Minn.App. Sept.18, 2001), revieto denied (Minn. Dec. 11, 2001). Respondents then brought a motion in the district court seeking damages for the use and occupancy of the property during the earlier appeal, which actually took 14 months, and to apply the supersedeas bond against the total amount of damages. The district court initially awarded respondents $210,000 for the value of the use and occupation of the property. This amount was determined by applying the $15,000 monthly value used to determine the bond amount to the 14-month appeal period. In an amended judgment, the district court increased the damages award to $448,517.07, which was the sum of (1) several payments appellant made to third parties while the appeal was pending using rents received from the property and (2) the increase in the mortgage debt on the property due to appellant’s failure to make mortgage payments.

ISSUES

1. When a supersedeas bond is posted to stay enforcement of a judgment during the pendency of an appeal, may the court that approved the supersedeas bond later assess actual damages incurred as a result of the stay on the motion of a party?

2. When an appellant posts a superse-deas bond to stay enforcement of a judgment during the pendency of an appeal, is the appellant’s liability for damages incurred as a result of the stay limited to the amount of the supersedeas bond?

3. Did the damages awarded to respondents reflect the lost value of the use and occupation of the real property awarded to respondents in the judgment that was stayed during the previous appeal?

ANALYSIS

1. Minn. R. Civ.App. P. 108.01, subd. 1, states:

Except in appeals under Rule 103.03(b), or as otherwise provided by law, the filing of a proper and timely appeal suspends the authority of the trial court to make any order necessarily affecting the order or judgment appealed from. The trial court retains jurisdiction as to matters independent of, supplemental to, or collateral to the order or judgment appealed from, and to enforce its order or judgment.
Unless otherwise provided by law, a proper and timely appeal does not stay an order or judgment or enforcement proceedings in the trial court but the appellant may obtain a stay by providing a supersedeas bond or other security in the amount and form which the trial court shall order and approve, in the cases provided in this rule, or as otherwise provided by rule or statute.
An application to approve a superse-deas bond, or for a stay on other terms, shall be made in the first instance to the trial court. Upon motion, the appellate court may review the trial court’s determination as to whether a stay is appropriate and the terms of any stay.
A supersedeas bond, whether approved by the trial court or appellate court, shall be filed in the trial court.

After the appeal from the judgment that gave respondents possession of the property was completed, respondents brought a motion in the district court for damages arising from appellant’s use and occupancy of the property during the pendency of the appeal and to apply the supersedeas bond posted with the trial court against the total amount of damages. Appellant does not challenge respondents’ decision to seek enforcement by motion. But because rule 108.01 does not identify a procedure for enforcing a claim against a supersedeas bond, and we are not aware of any Minnesota appellate court decision that recognizes an enforcement procedure, we will briefly address the propriety of seeking enforcement by motion.

More than 100 years ago, in Russell v. Farley, 105 U.S. (15 Otto) 433, 26 L.Ed. 1060 (1881), a case that originated in Minnesota, the United States Supreme Court addressed the question whether, in the absence of any statute or court rule authorizing a damages award, courts have any power to make a decree on the subject of damages arising from an injunction when a bond has been given as security for damages sustained as a result of the injunction. The Supreme Court determined that when there is no statute or rule, courts “must still be governed in the matter by the general principles and usages of equity.” Id. at 441. After analyzing opinions that addressed principles of equity in the context of enforcing and carrying out conditions imposed as security before granting an injunction, the Supreme Court stated:

The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the case; and having possession of the principal case, it is fitting that it should have power to dispose of the incidents arising therein, and thus do complete justice, and put an end to further litigation. We are inclined to think that the court has this power; and that it is an inherent power, which does not depend on any provision in the bond that the party shall abide by such order as the court may make as to damages (which is the usual formula in England); nor on the existence of an express law or rule of court (as adopted in some of the States) that the damages may be ascertained by reference or otherwise, as the court may direct; this being a mere appendage to the principal provision requiring a bond to be taken, and not conferring the power to take one, or to deal with it after it has been taken. But whilst the court may have (we do not now undertake to decide that it has) the power to assess the damages, yet if it has that power, it is in its discretion to exercise it, or to leave the parties to an action at law.

Id. at 445-46. Because the lower court in Russell did not attempt to assess any damages, the Supreme Court did not ultimately decide that courts have the inherent power to assess damages. But we find persuasive the explanation that the power to assess damages is an incident of the power to require that a bond be posted. Therefore, because the purpose served by a bond required as security before granting an injunction is comparable to the purpose served by a supersede-as bond obtained to stay a judgment during an appeal, we conclude that a court that approves a supersedeas bond to stay enforcement of a judgment during an appeal has the inherent power to later assess actual damages incurred as a result of the stay and may assess those damages on the motion of a party.

Our conclusion is consistent with the practice in the federal courts, where enforcement of a bond by motion is expressly allowed under Fed.R.Civ.P. 65.1, which states:

Whenever these rules * * * require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety’s agent upon whom any papers affecting the surety’s liability on the bond or undertaking may be served. The surety’s liability may be enforced on motion without the necessity of an independent action.

(Emphasis added.)

2. Carefree Living argues that the district court erred by awarding appellants damages for waste in an amount that exceeds the $90,000 supersedeas bond. Minn. R. Civ.App. P. 108.01, subd. 5, states:

If the appeal is from a judgment directing the sale or delivery of possession of real property, the condition of the bond shall be the payment of the value of the use and occupation of the property from the time of the appeal until the delivery of possession of the property if the judgment is affirmed and the undertaking that the appellant shall not commit or suffer the commission of any waste on the property while it remains in the appellant’s possession during the pendency of the appeal.

The supersedeas bond that appellant provided binds appellant and its surety to pay $90,000 to respondents. The bond describes the conditions of this obligation as follows:

If said Carefree Living of America (Minnetonka), Inc. shall pay all costs and charges which may be awarded against it on said appeal; and shall pay up to $90,000.00 as the value of the use and occupation of the property from the time of the appeal until the delivery of possession of the property if the judgment or any part is affirmed or the appeal is dismissed and the [appellant] shall not commit or suffer the commission of any waste on the property while it remains in the [appellant’s] possession during the pendency of the appeal, then this obligation shall become void: otherwise to be and remain in full force and effect.

(Emphasis added.) Appellant contends that under the emphasized language in the bond, its obligation to pay is limited to $90,000, and the district court erred by awarding compensatory damages over and above $90,000. But it has been held in the context of an injunction bond that the amount of the bond limits the liability of the surety but not the liability of the principal.

In Mitchell v. Riegel Textile, Inc., 104 U.S.App.D.C. 139, 259 F.2d 954, 954 (1958), several textile mills asked a United States district court to set aside and enjoin as illegal a minimum-wage determination of the Secretary of Labor. The district court stayed the determination and temporarily enjoined the secretary from enforcing it. Id. The court also ordered any plaintiff who entered into a contract otherwise covered by the determination to post a bond to make good underpayments of wages, up to the amount of the bond, if the minimum-wage determination was ultimately upheld. Id. at 954-55. After the minimum-wage determination was upheld on appeal, and it was finally decided that the stay and preliminary injunction should not have been granted, the Secretary of Labor moved in the district court for an order requiring the plaintiffs to make good their underpayments of wages, with interest, and enforcing the liability of the sureties on the bonds. Id. at 955. The district court held that the liability of both the sureties and the plaintiffs was limited to the amount of the bonds that had been posted. Id.

The court of appeals agreed that the liability of the sureties was limited to the amount of the bonds, but it reversed as to the plaintiffs and held that they were liable for the entire amount of the difference between the wages they paid while the injunction was in effect and the minimum wage that the Secretary of Labor had set. Id. The court of appeals explained:

This difference was the amount the plaintiffs saved, and the employees lost, by reason of the erroneous injunction. It was therefore the amount by which the plaintiffs were unjustly enriched at the employees’ expense.

Id.

The court’s decision was based on the equitable principle of unjust enrichment, and the court reasoned that when the employers made the underpayment, unjust enrichment was complete. We conclude that the equitable principle of unjust enrichment applies with equal force in the present case. To the extent that appellant saved money by not paying for the value of the use and occupation of the property while the property was in appellant’s possession, appellant was enriched at respondents’ expense. Therefore, the district court could properly award compensatory damages over and above the $90,000 bond amount.

3. Carefree Living argues that the district court erred by determining that payments it made using rent proceeds received during the pendency of the appeal constituted waste. But the district court did not determine that these payments constituted waste. Instead, in its amended order, the court stated:

[Respondents] are awarded for compensatory damages suffered during the pendency of [appellant’s] appeal, as and for the lost value of use and occupation of the property, the sum of $448,517.07.

This amount represents the sum of the payments appellant made to third parties while the appeal was pending and the increase in the mortgage debt on the property due to appellant’s failure to make mortgage payments.

The district court did not specifically address each of the payments included in the total amount, but it is apparent that the court concluded that the payments diverted money received from operating the property to purposes that were not essential to operating the property. It is not apparent, however, why the court concluded that the sum of these payments and the increase in the mortgage debt constituted the lost value of the use and occupation of the property. Even if the payments were an improper means of diverting money from the property, it does not necessarily follow that the sum of the payments and the increase in the mortgage debt constitutes the value of the use and occupation of the property.

Appellant’s claim that the court determined that the payments constituted waste might explain the court’s intent, particularly in light of the fact that the court included in the total the increase in the mortgage debt due to appellant’s failure to make mortgage payments. The failure to pay interest on a mortgage is a form of waste. See 8 Richard R. Powell, Powell on Real Property § 56.05[2], at 56-19 (2000) (failure to make certain carrying charge payments such as property taxes, interest on mortgages, and special public assessments is classified as permissive waste). But because the court’s amended order states that the damages awarded are “for the lost value of the use and occupation of the property,” we cannot simply infer that the court intended the award to be an award for waste. Instead, we remand with instructions for the district court to explain how the damages awarded reflect the value of the use and occupation of the property during the previous appeal or to make a new determination of damages that includes the value of the use and occupation of the property and the specific value of waste, if any, that occurred during the previous appeal.

DECISION

After approving the supersedeas bond that stayed enforcement of the judgment during the earlier appeal, the district court had inherent power to later assess damages actually incurred as a result of the stay, and this power was properly invoked by respondents’ motion. Appellant’s liability for damages incurred as a result of the stay is not limited to the amount of the supersedeas bond. Because the district court’s order awarding damages does not adequately explain how the amount was calculated, we remand so that the district court may make findings to explain how the amount awarded reflects the value of the use and occupation of the property during the previous appeal or make a new determination of damages that reflects the value of the use and occupation of the property and any waste that occurred during the previous appeal.

Affirmed in part and remanded in part.


author: LANSING, Judge.

text:
    Joseph PODVIN, et al., Respondents, v. The JAMAR COMPANY, et al., Appellants, A.H. Bennett Company, et al., Defendants.
    Nos. C0-02-1075, C1-02-1182, C3-02-1183, C5-02-1184 and C7-02-1185.
    Court of Appeals of Minnesota.
    Jan. 14, 2003.

      Michael R. Strom, Sieben, Polk, LaVer-diere, Jones & Hawn, P.A., Hastings, MN, for respondents.
    Richard J. Leighton, Downs Reyelts Leighton Bateman & Hylden, Ltd., Duluth, MN, for appellants.
    Considered and decided by SHUMAKER, Presiding Judge, LANSING, Judge, and MINGE, Judge.
   OPINION

LANSING, Judge.

This appeal involves personal-injury litigation against two related corporations that voluntarily dissolved in 1985. The corporations moved to dismiss for insufficiency of process, arguing that service of process under Minn.Stat. § 5.25, subd. 5 (2000), could not be accomplished because the claims against the dissolved corporations were barred by Minn.Stat. §§ 302A.729, .781 (1984). The district court denied the motion to dismiss, holding that the personal-injury claims came within the exception created by MinmStat. § 302A.781 for liabilities incurred during dissolution proceedings. Because we conclude that the plain meaning of “liabilities incurred during dissolution proceedings” constrains its application to debts or obligations that a corporation is legally obligated to pay at the time of the dissolution proceedings, rather than unmatured tort or contract claims, we reverse.

FACTS

Walker Jamar Company (Walker Jamar), a closely held Minnesota corporation established in 1913, sold and installed ventilation systems, industrial roofing, and insulation. Some of these products contained asbestos. Joseph Podvin and the other respondents whose cases are consolidated in this appeal (collectively referred to as Podvin) are individuals who were exposed to asbestos in their work at refineries, power plants, processing plants, and other facilities that used asbestos-containing products. They have contracted asbestos-related diseases and have sued, among others, Walker Jamar and the Jamar Company (the companies) for installing or distributing asbestos-containing products at their worksites.

Walker Jamar reorganized in 1981 following a favorable letter ruling from the Internal Revenue Service on the tax consequences of its proposed restructuring. Although the record is not fully developed on this point, the companies maintain that the purpose for the reorganization was to insulate the construction activities of the company from potential liabilities stemming from the distribution of Walker Pug Mill, a product unrelated to this litigation. The restructuring included the formation of a different company, the Jamar Company (Jamar I), to take over most of the business of Walker Jamar and a holding company, Norwalk, Inc., to hold the stock of both Walker Jamar and Jamar I.

Jamar I and Norwalk, Inc., filed their articles of incorporation with the Minnesota Secretary of State in February 1982. In May 1982, Jamar I assumed all assets and liabilities of Walker Jamar except those associated with the Walker Pug Mill product. Jamar I continued all other aspects of the original business, including ventilation, air conditioning, and insulation work.

In 1988, the president and chairman of the board of Jamar I decided to sell the companies and retire. Initially he was unable to negotiate a successful sale and decided to dissolve the companies at the end of the fiscal year on January 31, 1985. But shortly before the proposed dissolution date, Jamar I instead sold its assets, including its name, to API, Inc., an existing Minnesota company specializing in industrial insulation, piping, sheet metal work, and energy conservation construction and materials distribution. As part of the asset purchase agreement, Jamar I agreed to indemnify and hold harmless API against any known or unknown liability of Jamar I not specifically assumed by API in the asset purchase agreement. Although API purchased the right to use the name “The Jamar Company,” the cash-for-assets transaction involved no sale of stock.

When API purchased the assets of Jamar I, Jamar I merged into the parent company, Norwalk. A few months later, Norwalk merged into Walker Jamar. Walker Jamar’s only remaining operation, the production and marketing of the Walker Pug Mill, had been discontinued for economic reasons in 1983. On July 17, 1985, Walker Jamar filed its notice of intent to dissolve. On August 12, 1985, Walker Jamar filed its articles of dissolution in accordance with Minn.Stat. § 302A.733 (1984); the same day, the secretary of state issued Walker Jamar’s certificate of dissolution. After this date only the new Jamar (Jamar II), operated by API, remained a going concern.

In December 2001, Podvin filed a complaint for negligence, products liability, and breach of warranty against Jamar II and Walker Jamar. The companies moved to dismiss the lawsuit for insufficiency of process, claiming that, as dissolved corporations, they could no longer be served. The trial judge appointed by the Minnesota Supreme Court to hear asbestos-related claims denied the motion to dismiss.

The companies then moved for dismissal in similar cases brought by additional plaintiffs under the “deeming” order provisions of the trial judge’s case management order. That order permitted any party to file an identical motion in a subsequent case and declare that the motion was deemed denied, thus preserving the moving party’s rights to appeal without repetitive rehearings of previously denied motions. The companies appealed in each case, and we consolidated those appeals.

ISSUE

Did the district court err in denying the companies’ motion to dismiss for insufficiency of process on the ground that Pod-vin’s tort and contract claims were barred by Minn.Stat. §§ 302A.729 and .781 (1984)?

ANALYSIS

As a preliminary matter, we address the companies’ motion to strike the entire contents of Podvin’s appendix on the basis that it comprises material not contained in the district court record of this case. Generally, documents may not be included in a party’s brief unless they are part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App. 1992), aff'd, 504 N.W.2d 758 (Minn.1993). Appellate courts may, however, consider cases, statutes, and other publicly available legal resources that were not presented to the district court. Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n. 3 (Minn.1995).

The first challenged document is a district court order from a previous asbestos-related case, and the second is a series of excerpts from a deposition of the president of Jamar I taken in 1988 in a separate asbestos-related lawsuit. The district court order is a public record and is properly included in the appendix. The excerpts from the president’s deposition were cited in Podvin’s response to the companies’ motion for summary judgment, which the companies included in their own appendix. In these limited circumstances the deposition excerpts may also be included in the appendix.

Sufficiency of process is a jurisdictional question that turns in this case on the interpretation of statutory provisions contained in Minn.Stat. § 5.25, subd. 5(b) (2000), and Minn.Stat. §§ 302A.729 and .781 (1984). A party may immediately appeal, as a matter of right, from the denial of a motion to dismiss for lack of jurisdiction. See Hunt v. Nevada State Bank, 285 Minn. 77, 88, 172 N.W.2d 292, 299-300 (1969). Jurisdiction is a legal question that we review de novo. Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn.2000).

Minn.Stat. § 5.25, subd. 5(b), provides that if a business entity has voluntarily dissolved, or if a court has entered a decree of dissolution, service must be made according to the statute, “so long as claims are not barred under the provisions * * * that governed the business entity.” In 1982, Walker Jamar amended its articles of incorporation, electing to be governed by chapter 302A of the Minnesota Statutes. In 1985, when API purchased the assets of Jamar I and took the name of The Jamar Company, Jamar II was incorporated under chapter 302A. Because both companies were governed by chapter 302A, we examine that statute as it existed in 1985 to determine whether the claims are barred, which in turn determines whether the companies may still be served. See MinnStat. § 5.25, subd. 5(b) (providing for service on dissolved business entity by serving secretary of state unless claims are barred under statutory provisions that governed that business entity).

The statute that governed the companies, Minn.Stat. § 302A.729, subd. 2 (1984), provided that claimants without notice of a corporation’s dissolution, who failed to initiate legal proceedings on their claims within two years after the date of filing the notice of intent to dissolve, were subject to the provisions of Minn.Stat. § 302A.781. Jamar I merged into Norwalk in January 1985, and Norwalk merged into Walker Jamar in June 1985. Walker Jamar filed its notice of intent to dissolve with the Minnesota secretary of state on July 17, 1985. Because Podvin did not serve the claim within two years after the companies’ filing of the notice of intent to dissolve, the claim is subject to the provisions of Minn.Stat. § 302A.781.

Section 302A.781, subd. 1, provided that a person who is a creditor or claimant “at any time before, during, or following the conclusion of dissolution proceedings” who “has not initiated a legal ⅞ * * proceeding before the commencement of the dissolution proceedings, ⅜ ⅜ ⅜ [is] forever barred from suing on that claim, * * * except as provided in this section.” Subdivision 2 of section 302A.781 provided that within one year after corporate articles of dissolution had been filed, a corporate creditor or claimant who could show good cause for not having previously filed a claim could apply to the court to allow a claim against the corporation to the extent of undistributed assets. Minn.Stat. § 302A.781, subd. 2. If the undistributed assets were insufficient to satisfy the claims, the claimant could apply to allow a claim against a shareholder in an amount equal to the distributions received by that shareholder. Id. The parties agree, however, that Minn. Stat. § 302A.781, subd. 2, does not control in this case because Podvin did not attempt to serve process to begin this lawsuit until 2001, fifteen years beyond the one-year period for asserting claims pursuant to that section.

Instead, Podvin asserts that subdivision 3 of section 302A.781, governing obligations incurred during dissolution proceedings, allowed service on the dissolved companies. This subdivision requires payment of all debts, obligations, and liabilities that are incurred during the dissolution proceedings before distribution of the assets:

Claims permitted. All debts, obligations, and liabilities incurred during dissolution proceedings shall be paid by the corporation before the distribution of assets to a shareholder. A person to whom this kind of debt, obligation, or liability is owed but not paid may pursue any remedy against the officers, directors, and shareholders of the corporation before the expiration of the applicable statute of limitations.

MinmStat. § 302A.781, subd. 3 (1984) (emphasis added).

Podvin argues that because the claims in negligence, products liability, and breach of warranty constituted “liabilities incurred during dissolution proceedings,” the statute did not bar the assertion of these claims, and the corporations could be served in this resulting lawsuit. The companies maintain, on the other hand, that the claims did not fall within the requisite statutory definition and therefore the statute precluded service of process on the dissolved corporations.

Statutory interpretation is a question of law, subject to de novo review. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). Athough both parties cite state district court cases in support of their positions, the application of subdivision 3 in this context is a case of first impression in Minnesota appellate courts. The Minnesota Supreme Court, however, has strictly construed the time limit for asserting claims against dissolved corporations under subdivision 2 (1992) (not materially different from the earlier version of subdivision 2). Abad v. ISCO, Inc., 537 N.W.2d 620 (Minn.1995) (Abad II) (reversing Abad v. ISCO, Inc., 534 N.W.2d 728, (Minn.App.1995) (Abad D).

In Abad II, the supreme court reversed this court’s earlier determination that merchant mariners who had been exposed to asbestos during their employment were entitled to a hearing to demonstrate whether they had “good cause” under subdivision 2 to file a late claim against a dissolved corporation. See Abad I, 534 N.W.2d at 731. The corporation, ISCO, formerly a Delaware corporation, had become a Minnesota corporation in 1990 and filed a notice of intent to dissolve the following month. The company had taken advantage of Minnesota’s “no-notice” dissolution provisions, which allowed it to wait two years to file its articles of dissolution with the Minnesota secretary of state, rather than notify its creditors and seek expedited dissolution proceedings. Id. at 730 (citing Minn.Stat. § 302A.727, .7291 (1992)). Within one year after the articles were filed, the plaintiffs filed their complaint, alleging that they had good cause for the delayed filing because they had no previous notice of the dissolution proceedings. Id. The supreme court, in an order opinion, reinstated the district court’s order for summary judgment in favor of the corporation. Abad II, 537 N.W.2d at 620. The court concluded that the plaintiffs had not demonstrated a genuine issue of material fact on whether “good cause” existed for their failure to sue during the two-year period from the filing of a notice of intent to dissolve under Minn.Stat. § 302A.7291 to formal dissolution.

Although subdivision 3, rather than subdivision 2, is at issue in this case, the rationale underlying a strict application of the bar of claims against dissolved corporations applies with equal or greater force to subdivision 2. Statutory construction must, in the first instance, focus on the plain meaning of “liabilities incurred” in subdivision 3. See Minn.Stat. § 645.16 (2002). “According to its plain meaning, the term ‘incurred’ requires an actual expenditure or liability for services rendered.” Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn.1984) (interpreting the Minnesota No Fault Act for replacement service loss benefits); see also Black’s Law Dictionary 771 (7th ed.1999) (defining “incur” as “to suffer or bring on oneself (a liability or expense)”). The definition of “liabilities” as “legal responsibilities] * * * enforceable by civil remedy or criminal punishment” also limits the application of this term. Black’s Law Dictionary at 925. As used in subdivision 3, the language “liabilities incurred” plainly applies to a debt or obligation that the obli-gor was legally obligated to pay at the time of the dissolution proceedings, rather than to an unmatured tort or contract claim.

The companies contend that regardless of the plain meaning of “liabilities incurred during dissolution,” a 1991 legislative amendment that changed the statutory language to “[a]ll known contractual debts, obligations, and liabilities incurred in the course of winding up the corporation’s affairs” clarified the meaning and unquestionably established that the phrase refers only to known liabilities incurred in the course of winding up the corporation’s affairs. See Minn.Stat. § 302A.781, subd. 3 (2002). Although the argument has persuasive force, the 1991 session laws indicate that the relevant chapter includes both clarifying and modifying language. 1991 Minn. Laws Ch. 49, § 27. Thus we cannot definitively determine that this particular change is a clarification rather than a modification. See Rural Am. Bank of Greenwald v. Herickhoff 485 N.W.2d 702, 707 (Minn.1992) (holding that generally a statute is not retroactive unless the legislature specifically so provides).

Even if we were to find the statutory language “liabilities incurred” ambiguous, and thus susceptible to interpretation to discern legislative intent, however, our conclusion that the statute barred the assertion of these claims would remain unchanged. The 1984 provision reflects legislative intent as expressed in the official comments to Minn.Stat. § 302A.781, which state that “[t]he goal of every dissolution * * * is to end the corporate existence as quickly and neatly as possible.” Minn. Stat. Ann. § 302A.781 gen. cmt. (West 1985). Once a dissolving corporation has notice of all claims for which it is or may be held hable, it then “has the opportunity to pay or provide for payment of all legitimate claims. Prompt payment will speed the dissolution process to a timely close.” Id.

We infer that the legislature intended to limit corporate liability under this provision to matured claims that corporations could identify during the dissolution process, so that payment could be made and the winding up of corporate affairs could proceed in an orderly and definite fashion. To hold otherwise would create lingering liability for claims arising after dissolution that could conceivably extend corporate accountability in perpetuity. See Onan Corp. v. Indus. Steel Corp., 770 F.Supp. 490, 493-95 (D.Minn.1989) (holding, in contribution action to recover hazardous cleanup costs, that under Minnesota law, a manufacturer had no capacity to be sued after the expiration of three years following the date of filing its certificate of voluntary dissolution, indicating a need to balance legislative concern for the problem of corporate dissolution to avoid liability against the need to allow corporations to “die a natural death”).

Podvin seeks to rely on this court’s unpublished opinion, Evert v. ACandS, Inc., 1994 WL 654532 (Minn.App. Nov. 22, 1994), in which we upheld a district court’s order denying Jamar I’s motion to dismiss a personal-injury asbestos claim because of insufficiency of service of process. Id. at *1. In considering whether the action had been properly initiated in 1993 by serving Jamar I’s president and chairman, this court noted that the statutes contemplated suit against a dissolved corporation under subdivisions 2 and 3, but did not specify how a claimant could effect service of process. Id. at *2. Although this court in Evert concluded that the president was the most appropriate person to receive service on behalf of the dissolved corporation, it explicitly declined to review the issue of the statute of limitations on asbestos claims. Id. at *3.

Podvin alternatively argues that asbestos-related claims have been recognized as continuing torts, and that the claim did not accrue for purposes of the statute of limitations until Podvin contracted asbestosis in 1998. See DeCosse v. Armstrong Cork Co., 319 N.W.2d 45, 52 (Minn.1982) (noting that because of unique character of asbestos-related deaths, wrongful death actions arising from those deaths do not accrue until either the manifestation of the fatal disease in a way causally linked to asbestos, or the date of death, whichever is earlier). Podvin relies on the final sentence of subdivision 3 (1984), which allowed a person “to whom this kind of debt, obligation, or liability is owed but not paid” to pursue any remedy against corporate officers, directors, or shareholders, “before the expiration of the applicable statute of limitations.” But that provision does not apply in this case because Podvin has attempted to sue only the corporation itself, rather than any associated officers, directors, or shareholders.

Lastly, we observe that neither party has raised the issue of fraud or the issue of whether Jamar II, operated by API under the 1995 asset purchase agreement, may be held liable as a successor corporation to Jamar I. Under Minn.Stat. § 302A.661, subd. 4 (2002), the Lability of a purchaser of assets exists only to the extent provided in the contract between the parties or as otherwise provided under Minnesota law. See J.F. Anderson Lumber Co. v. Myers, 296 Minn. 33, 37-38, 206 N.W.2d 365, 368-69 (1973) (listing factual bases necessary to establish successor liability).

“In the absence of fraud,” a dissolved corporation should “be able to rely on the promise” of the dissolution statute that adhering to the statutorily defined procedures for dissolution and termination will protect against claims that accrue years after the dissolution. Onan Carp., 770 F.Supp. at 495. The gravity of Pod-vin’s circumstances cannot be gainsaid. But we are constrained by the plain meaning of “liabilities incurred” from allowing Podvin’s claims to be considered as obligations incurred during dissolution proceedings.

DECISION

The definition of “liabilities incurred” under Minn.Stat. § 302A.781, subd. 3 (1984), encompassed only debts or claims that a corporation was legally obligated to pay at the time of the dissolution process, rather than unmatured tort and contract claims. We therefore reverse the order of the district court denying the companies’ motion to dismiss for insufficiency of process pursuant to Minn.Stat. § 5.25, subd. 5 (2000).

Reversed; motion denied.