author: PAUL H. ANDERSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Richard Alan HOELZEL, Petitioner, Appellant.
    No. C8-00-851.
    Supreme Court of Minnesota.
    Feb. 14, 2002.

      John M. Stuart, Minnesota State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, for Appellant.
    Michael A. Hatch, State Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

After a bench trial in Hennepin Count District Court, appellant Richard Alan Hoelzel was found guilty of a felony for burglary in the first degree and a gross misdemeanor for interference with an emergency call. The court stayed imposition of sentence on the gross misdemean- or, but refused to take further action on the felony. The state appealed and the Minnesota Court of Appeals held that the district court’s action was the functional equivalent of a stay of adjudication, and as such was improper under the circumstances. The court of appeals reversed and remanded for sentencing on the felony burglary. We reject the court of appeals’ characterization of the district court’s action as a stay of adjudication, construe the state’s appeal to be a petition for a writ of mandamus, and conclude that the state is entitled to a writ compelling the district court to act. We affirm in part, reverse in part, and remand.

Richard Alan Hoelzel and Diana Dioqui-no were married in May 1986. They separated around February 1999, and Dioquino moved in with her brother in Corcoran, Minnesota, while Hoelzel stayed at the family home in Medina, Minnesota. On March 15, 1999, Dioquino obtained an order for harassment hearing and an ex parte temporary restraining order (TRO) ordering Hoelzel to have no contact with Dioquino either in person or by telephone. The TRO was in effect until a hearing which was held on March 29, 1999, at which time both parties appeared and signed a stipulation continuing the hearing to October 4, 1999. The order continuing the hearing provided that the TRO remain in full force and effect. It also provided that “the parties may contact each other through attorneys” and that Dioquino “may contact” Hoelzel.

In June 1999, a default judgment and decree dissolving the marriage was entered. The decree granted Hoelzel temporary occupancy of the Medina home pending its sale. Service of the judgment and decree on Hoelzel could not be effectuated despite multiple attempts and the person attempting service concluded that Hoelzel was avoiding service of the judgment and decree. In July 1999, an ex parte order amending the judgment and decree was issued. The amended decree gave sole and exclusive possession of the Medina home to Dioquino, subject to Dioquino placing the home on the market for sale, with net proceeds being divided evenly between Dioquino and Hoelzel. Service of the order amending the judgment and decree was made on Hoelzel on July 28,1999, along with correspondence demanding Ho-elzel vacate the property by July 30, 1999. Hoelzel continued to remain in the Medina home until sometime in August 1999 when he was evicted by the sheriff. After Hoel-zel’s eviction, Dioquino took possession of the Medina home, but continued to reside with her brother in Corcoran.

On September 18, 1999, Dioquino was in the attached garage of the Medina home when Hoelzel walked up the driveway and into the garage. Dioquino told him that he could not be there, retreated into the home through the garage service door, and attempted to close the door behind her. Ho-elzel prevented Dioquino from closing the door and pushed his way into the home by force.

Once inside the home, Hoelzel seated himself in the kitchen and began speaking about his relationship with Dioquino. Dio-quino told Hoelzel to leave and, holding the portable phone receiver in her hand, said, “You don’t want me to call the police, do you?” Hoelzel responded by unplugging the base unit of the portable phone. Hoelzel then left the home and sat in the backyard. At some point, Dioquino was able to call the police, and when the police arrived they arrested Hoelzel.

Hoelzel was charged with one count of first-degree burglary, a felony under Minn. Stat. § 609.582, subd. 1(a) (2000); one count of interference with an emergency call, a gross misdemeanor under Minn. Stat. § 609.78, subd. 2 (2000); and one count of violation of an order for protection, a misdemeanor under Minn.Stat. § 518B.01, subd. 14(a)(b) (2000). Hoelzel waived his right to a jury trial, and a bench trial was held. Over the course of the two-day trial, the court heard testimony from three witnesses: Dioquino, Hoel-zel, and a former neighbor who was present at the Medina home on the date of the incident. The court found Hoelzel guilty of first-degree burglary and interference with an emergency call, but found him not guilty of violating an order for protection. Specifically, the court stated on the record that “burglary in the first degree has been proven beyond a reasonable doubt” and that Hoelzel “stands convicted of’ burglary.

At sentencing, the judge who presided at the trial explained that he found Hoelzel guilty of first-degree burglary because the state satisfied the technical requirements of the law, but the judge questioned whether Hoelzel should be sentenced as a felon because of the circumstances in this ease. While the judge was addressing these sentencing concerns, Hoelzel interrupted the judge, as he had done throughout the proceedings. This time, however, the judge found Hoelzel in contempt and continued the sentencing to the next day. On the next day, the judge repeated his concerns about sentencing Hoelzel as a burglar, drawing distinctions between the facts of this case and more typical first-degree burglaries. The judge indicated that while he had to find Hoelzel guilty because the state satisfied its burden of proof from a technical perspective, he did not believe Hoelzel was a burglar. The judge also explained that a felony record for first-degree burglary indicated a level of violence or danger that simply was not present in this case.

After making the foregoing statements, the court announced that Hoelzel was going to be sentenced only for the gross misdemeanor — interference with an emergency call. The court then stayed imposition of that sentence and placed Hoelzel on two years’ probation under specific terms and conditions. The court stated that it would not sentence for the burglary because it did not see Hoelzel as a burglar and the conditions of probation for the gross misdemeanor would appropriately restrict his behavior. The court also stated that it was not sentencing for the burglary “until and unless I have to address it by either a revocation or the Court of Appeals tells me I must.” Following the hearing, the court entered a sentencing order on May 1, 2000. The record does not contain an official judgment of conviction or order of conviction.

The state appealed the district court’s treatment of the burglary. The court of appeals ordered briefing on whether the court had jurisdiction to hear the appeal. The court of appeals ultimately accepted jurisdiction, concluding that the district court’s action was the functional equivalent of a stay of adjudication, which is appeal-able by the state. State v. Hoelzel, 621 N.W.2d 44, 45-47 (Minn.App.2000). The court of appeals then concluded that the special circumstances required for a stay of adjudication were absent in this case and reversed and remanded for sentencing on the burglary count. Hoelzel appeals from this decision, arguing that the district court’s action was not the functional equivalent of a stay of adjudication, but rather an appropriate exercise of sentencing discretion. '

I.

The court of appeals characterized the district court’s action on the felony burglary count as a stay of adjudication. This characterization is significant because the state may appeal from a stay of adjudication, but may not appeal from a sentence on a gross misdemeanor. See Minn. R.Crim. P. 28.04, subd. 1(2); State v. Thoma, 569 N.W.2d 205 (Minn.App.), aff'd, 571 N.W.2d 773 (Minn.1997). It is undisputed that the court did adjudicate the gross misdemeanor count of interference with an emergency call, but it is not clear what the court did with the felony burglary count. Therefore, the proper characterization of the court’s action is a threshold issue in this appeal.

Even though both the state and court of appeals characterize the district court’s action as the functional equivalent of a stay of adjudication, there is no support in the record for such a characterization. The district court did not state that it was granting a stay of adjudication nor does the term “stay of adjudication” appear anywhere in the record. Rather, the court found Hoelzel guilty of first-degree burglary and stated on the record that “burglary in the first degree has been proven beyond a reasonable doubt” and that Hoelzel “stands convicted of’ first-degree burglary.

Unfortunately, it is not clear what the court meant or intended when it stated that Hoelzel “stands convicted.” While court-accepted guilty pleas, jury verdicts of guilt, and findings of guilt by a court are often referred to as “convictions,” a formal adjudication of conviction requires more. For accepted pleas, verdicts, or findings of guilt to become convictions under Minnesota law, the conviction must be recorded. Minn.Stat. § 609.02, subd. 5 (2000) (requiring acceptance and recording of pleas, verdicts, or findings). The general practice, and a practice to which district courts should adhere, is to have the conviction recorded and appear in a judgment entered in the file. See State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999); State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984). To facilitate appellate review, courts should follow the steps set forth in Minn. R.Crim. P. 27.03, subd. 7 — that the clerk’s record of a judgment of conviction include the plea, the verdict of findings, and the adjudication and sentence. A conviction appearing in the official judgment of conviction or in a conviction order entered by the court has been “formally adjudicated.” Pflepsen, 590 N.W.2d at 767.

We conclude that the record lacks any clear indication that the district court intended to adjudicate Hoelzel’s burglary offense. Although the court stated that Ho-elzel “stands convicted,” the court also stated that it did not intend to impose sentence unless Hoelzel’s probation was revoked or until the court of appeals ordered it. Thus, it appears that the court was attempting to defer the imposition of sentence for the burglary. This action or failure to take action does not amount to a stay of adjudication. In the absence of some indication on the record that the court intended to stay adjudication, we will not presume that it intended to do so. Accordingly, we reject the state’s and court of appeals’ characterization and will not construe the district court’s failure to impose sentence as a stay of adjudication.

II

In the absence of a stay of adjudication or a final judgment on the burglary count, the gross misdemeanor sentence'in this case was not appealable. Minn. R.Crim. P. 28.04, subd. 1(2). However, the state argued that the district court had an obligation to move to the sentencing phase on the felony burglary count and could not indefinitely defer sentencing. In this context, a petition for an extraordinary writ may have been the appropriate means for the state to seek relief. See Minn.Stat. § 586.01 (2000); Minn. R. CivApp. P. 120.

We have previously approved treating an improper appeal as a petition for an extraordinary writ. See Pflepsen, 590 N.W.2d at 764 (concluding that court of appeals had authority to treat improper notice of appeal as petition for writ of prohibition). In this case, a writ may be appropriate because the relief the state seeks is in the form of an order to compel the district court to perform a function the state claims is required. Moreover, the absence of the right of appeal may leave the state with no adequate remedy in the ordinary course of law. See Minn.Stat. § 586.02 (2000). Under these particular circumstances, we will construe the state’s appeal as a petition for a writ of mandamus.

Our authority to issue a writ of mandamus is statutory, and it may be issued to any inferior tribunal to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. Minn.Stat. § 586.01. Before we issue a writ of mandamus to a lower court, we must first conclude that the law specifically requires that court to perform a judicial duty. But even if the court has such a clear judicial duty, if there is some other plain, speedy, and adequate remedy in the ordinary course of law, the writ may not issue. Minn.Stat. § 586.02. A writ may require a lower court to exercise its judgment, but it cannot control judicial discretion. Minn.Stat. § 586.01.

It is important to distinguish situations in which a duty is mandated and a writ may issue and situations in which a writ may not issue because the duty to act is discretionary and it is within the court’s discretion whether to take certain actions. We have denied a petition for writ of mandamus because the requested judicial action was not mandatory but instead discretionary on the part of the lower court. See State v. Davis, 592 N.W.2d 457, 459 (Minn. 1999). We have also explained that a writ of mandamus may issue to compel such a discretionary act only when failure to perform that act “was so arbitrary and capricious as to constitute a clear abuse of discretion.” State v. Pero, 590 N.W.2d 319, 323 (Minn.1999) (citation omitted).

District courts are generally required to exercise their duty at the conclusion of a bench trial in a criminal case by making a final disposition. Specifically, if there is a finding of not guilty or some other reason that the defendant is entitled to be discharged, judgment must be entered accordingly. Minn. R.Crim. P. 27.03, subd. 7. Likewise, if there has been a finding of guilt, a judgment of conviction should be entered such that the conviction is formally adjudicated. See Minn. R.Crim. P. 27.03, subd. 7 (regarding proper judgment of conviction); Pflepsen, 590 N.W.2d at 767 (explaining that a conviction appearing in the official judgment of conviction or conviction order entered by the court has been formally adjudicated). A judgment on the record makes clear to the defendant the exact nature of the adjudication. Further, a properly entered conviction provides the basis for criminal history points that may become significant to the defendant later in life. Such a record provides the groundwork for the parties to appeal and for the appellate courts to understand what happened at the district court level and conduct a proper review.

There are, however, some circumstances in which the usual procedure of entering judgment is not followed. For example, under certain circumstances, Minn.Stat. § 609.04 (2000) prohibits the formal adjudication of conviction such that no entry of judgment or order of conviction may appear in the record. Specifically, section 609.04 prohibits conviction on lesser-included offenses. Pflepsen, 590 N.W.2d at 767 (prohibiting “formal adjudication of guilt” of included offenses under section 609.04); LaTourelle, 343 N.W.2d at 284 (requiring district court to vacate the formally adjudicated convictions for lesser-included offenses; explaining that the proper procedure is for the court to retain the unadjudicated convictions). Nevertheless, when formal adjudication and entry of judgment are prohibited, a final disposition must still be made and entered on the record reflecting what action was taken by the court. Thus, even when there is a stay of adjudication, a final disposition must be made and the stay of adjudication must be entered on the record.

In summary, a final disposition must be entered reflecting what action the court performed. Among the several options available to a court at the end of a criminal trial are: (1) finding of not guilty with judgment of acquittal entered accordingly; (2) finding the defendant otherwise entitled to discharge with judgment entered accordingly; (3) finding of guilty with judgment of conviction entered accordingly; (4) retaining of unadjudicated convictions under section 609.04; or (5) issuing a stay of adjudication by statute or under State v. Krotzer, 548 N.W.2d 252 (Minn.1996), with final disposition entered on the record accordingly.

Here, the district court did not enter judgment on the burglary count after making a finding of guilt nor did it make a final disposition by entering a stay of adjudication or other action on the record. Apparently, because the court did not want to sentence Hoelzel as a burglar, it stopped the ordinary criminal procedure before completion and, by doing so, indefinitely deferred a duty it was required to perform. Moreover, the court essentially invited the state to take an appeal to have the appellate courts tell it what more, if anything, needed to be done. Therefore, the mandamus remedy is available to the state because under these circumstances the court was required to take some action and it did not do so.

We conclude that the district court has failed to make a final disposition — an action it was required to take under the law. Therefore, we remand to the district court with the instruction that it make a final disposition with respect to the burglary count and enter its disposition on the record. Because the relief sought was a writ of mandamus, we cannot and do not dictate to the court how to exercise its judgment. Rather, we only order it to take appropriate action under the law and properly exercise its discretion in so doing.

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

      . The order is somewhat confusing and states that "Count I, Lesser charge of Interference with an Emergency ■ Call (Misdemeanor), merged under 609.035.” The original complaint and subsequent documentation all refer to Count I as the burglary count. There is also no reference in the record to the burglary count merging or being considered a lesser-included offense.

      . See, e.g., Black’s Law Dictionary 335 (7th ed.1999) (defining conviction as "[t]he judgment (as by a jury verdict) that a person is guilty of a crime”).

      . Given the procedural status of this case, we do not address the question of whether a stay of adjudication is a disposition available at this stage in the proceedings.


source: Caselaw Access Project

author: /s/ James H. Gilbert Associate Justice.

license: Public Domain

text:
    Tammy L. ROTH (MILES), Respondent, v. CIRRUS INDUSTRIES and American International/AIG Claim Services, Relators, and Cloquet Community Memorial Hospital, Center for Diagnostic Imaging, Blue Cross and Blue Shield of Minnesota, Suburban Radiologic Consultants, Fortis Benefits Insurance Company, Minnesota Department of Labor and Industry/VRU, Northland Neurology & Myology, P.A. and St. Luke’s Hospital, Intervenors.
    No. C3-01-2095.
    Supreme Court of Minnesota.
    Feb. 19, 2002.

      Timothy M. O’Keefe, Erstad <& Riemer, P.A., Minneapolis, for Employer-Relator.
    Michael F: Scully, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, for Employee-Respondent.
    David M. Jaffe, Leonard, Street & Dei-nard, Minneapolis, for Fortis Benefits Ins. Co.
    Jane McMahon, Blue Cross and Blue Shield of Minnesota, St. Paul, Suburban Radiologic Consultants, Bloomington, Clo-quet Community Memorial Hospital, Clo-quet, Center for Diagnostic Imaging, Minneapolis, Ed Adams, Minnesota Department of Labor and Industry/VRU, St. Paul, Northland Neurology & Myology, P.A., Duluth and St. Luke’s Hospital, Duluth, other participants, Intervenors.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 7, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

/s/ James H. Gilbert Associate Justice.


author: /s/ Kathleen A. Blatz Chief Justice.

text:
    Richard SOVELL, Respondent, v. Swift-ECKRICH, INC., Self-Insured/Gallagher Bassett Services, Relators, and Blue Cross/Blue Shield of Minnesota, Intervenor.
    No. C9-01-2098.
    Supreme Court of Minnesota.
    Feb. 19, 2002.
    Linda Schoep, Schoep & McCashin, Chtd., Alexandria, for Respondent.
    James R. Waldhauser, David Matthew Bialke, Cousineau, McGuire & Anderson, Chartered, Minneapolis, for Relators.
    Blue Cross/Blue Shield of Minnesota, St. Paul, for Intervenor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 6, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

/s/ Kathleen A. Blatz Chief Justice.


author: /s/J.E. Lancaster Associate Justice.

text:
    John DUDER, Respondent, v. McGLYNN BAKERIES, INC. and General Insurance Company/Safeco, Relators, and Blue Cross and Blue Shield of Minnesota and Blue Plus, Intervenor, and Primary Behavioral Health Clinics, Inc., Intervenor, and Minnesota Department of Economic Security, Intervenor, and Special Compensation Fund, Intervenor.
    No. C9-01-1999.
    Supreme Court of Minnesota.
    Feb. 19, 2002.
    Richard C. Nelson, Joseph M. Nemo III, Arthur, Chapman, Kettering, Smetak <& Pikkala, P.A., Minneapolis, for Relators.
    David H. Bailly, Ltd., Minneapolis, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 17, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/J.E. Lancaster Associate Justice.

GILBERT, J., took no part in the consideration or decision of this case.


author: WILLIS, Judge.

text:
    Daniel John LUETH, Respondent, v. CITY OF GLENCOE, Appellant.
    No. C1-01-913.
    Court of Appeals of Minnesota.
    Feb. 6, 2002.
    Review Denied April 16, 2002.

      James M. Ventura, Keith E. Ekstrom, Wayzata, MN, for respondent.
    Julie Fleming Wolfe, St. Paul, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WILLIS, Judge.

Appellant City of Glencoe (the city) challenges the district court’s denial of its motion to dismiss for lack of subject-matter jurisdiction over respondent Daniel John Lueth’s motion to compel arbitration, which he brought after the city terminated his employment. We conclude that the district court had subject-matter jurisdiction to decide whether there existed an agreement between the parties to submit to arbitration, and we affirm the denial of the city’s motion. But we conclude that the district court exceeded its subject-matter jurisdiction when it decided that the city is required to submit to arbitration as a matter of law, and we vacate the district court’s order requiring arbitration.

FACTS

The city terminated Lueth’s employment as a police officer. As required by a collective-bargaining agreement (CBA) between the city and Lueth’s union, the city’s termination decision was submitted to arbitration. On February 5, 2000, an arbitrator ordered Lueth reinstated with back pay. The CBA was annulled two months later when the city’s police officers voted to decertify the union.

Before returning to active duty, Lueth was required to pass a firearm-proficiency examination. On July 10, 2000, the city terminated Lueth on the ground that he failed to pass the examination.

Lueth filed a grievance under the city’s personnel policy, alleging that the city failed to follow required procedures in the proficiency examination. The “city administrator responded that Lueth’s termination was not grievable because the grievance procedures in the personnel policy applied to disciplinary actions, and the termination resulting from his failure to pass the examination was not a disciplinary action.

Lueth moved the district court to compel arbitration, contending that (1) the personnel policy is an employment contract and (2) the final grievance procedure in the personnel policy is an arbitration agreement or, alternatively, that an arbitration agreement must be implied as a matter of law. See Minn.Stat. § 572.09 (2000) (providing procedure to compel arbitration). The city opposed the motion, claiming that that the personnel policy is not a contract and that an arbitration agreement did not exist. The city also moved to dismiss Lueth’s motion for lack of subject-matter jurisdiction, arguing that, because Lueth was an at-will employee, his exclusive means of judicial review of the city’s termination decision is by writ of certiorari to this court.

The district court denied the city’s motion and granted Lueth’s motion. The district court, ruled that it had limited subject-matter jurisdiction to determine whether an arbitration agreement exists and whether it is reasonably arguable that the dispute over Lueth’s termination fit within the agreement. See Minn. Teamsters Pub. & Law Enforcement Employees’ Union, Local No. 320 v. County of St. Louis, 611 N.W.2d 355, 359 (Minn.App. 2000) (stating that when scope of arbitration clause is at least reasonably debatable, issue of arbitrability is to be initially determined by arbitrator). The district court found that the grievance procedure in the personnel policy is not an arbitration agreement but concluded that the city was required by the Public Employment Labor Relations Act (PELRA), Minn.Stat. §§ 179A.01-.25 (2000), to provide arbitration as part of its grievance procedures. See Minn.Stat. § 179A.20 (providing contract requirements). The district court implied an arbitration provision to “vindicate Lueth’s right to arbitration.”

The city appeals from the district court’s order denying its motion to dismiss for lack of subject-matter jurisdiction.

ISSUES

1. Did the district court have subject-matter jurisdiction to decide whether the city’s personnel policy has a provision requiring arbitration?

2. Did the district court have subject-matter jurisdiction to decide whether PELRA requires the city to submit to arbitration?

ANALYSIS

An appeal may be taken from an order denying a motion to dismiss for lack of subject-matter jurisdiction. Engvall v. Soo Line R.R. Co., 605 N.W.2d 738, 743-44 (Minn.2000). The existence of subject-matter jurisdiction is a question of law, which this court reviews de novo. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn.2001).

I.

The city argues that Lueth, through his motion to compel arbitration, essentially seeks judicial review of its termination decision and the process by which it was reached. Citing Willis v. County of Sherburne, 555 N.W.2d 277 (Minn.1996), and Dietz v. Dodge County, 487 N.W.2d 237 (Minn.1992), the city asserts that Lueth’s only means of review is by writ of certiorari to this court.

In Dietz, a nursing-home administrator sued her employer, Dodge County, for wrongful discharge. 487 N.W.2d at 237. The supreme court held that in the absence of “adequate method of review or legal remedy,” a writ of certiorari was the only method by which the administrator could obtain judicial review of the county’s decision to terminate her employment. Id. at 239. The court provided four reasons for its holding: (1) no statute provided for appeal to the courts from an administrative decision to terminate a county nursing-home administrator; (2) the wrongful-discharge action “would require the rights and liabilities of the parties to be fixed not by the terms of a contract, but by the propriety of the county’s exercise of discretion in [its] termination decision”; (3) whether the administrator entered into an “at-will” or a “for-cause” employment contract was a question of law appropriate for certiorari review; and (4) a writ of certio-rari must issue within 60 days after notice of the termination decision and thus ensures “expedient review of a fresh record.” Id. at 239-40.

In Willis, an employee sued his employer, Sherburne County, for breach of contract on the ground that he was terminated without just cause. 555 N.W.2d at 279. The district court granted summary judgment to the county but allowed the employee to amend his claim to what he characterized as a “pure breach of contract claim.” Id. The supreme court concluded:

Regardless that the claim is cloaked in the mantle of breach of contract, when the alleged breach of the employment contract of a governmental employee results in termination of the claimant’s employment by an executive body which does not have statewide jurisdiction — for example, a county — the claimant may contest the employer’s action by certio-rari alone, absent statutory authority for a different process. * * *
[The employee] would have us believe that his breach of employment contract [claim] does not implicate the county’s decision to discharge him. Just how a discharged employee can demonstrate the county’s breach of termination and layoff procedures without implicating the county’s decision to discharge escapes us.

Id. at 282. Willis makes clear that the manner in which a cause of action is characterized does not change the analysis of whether the district court has subject-matter jurisdiction. In the absence of a statute providing for a different process, the dispositive question is whether the claim implicates an executive body’s decision to terminate an employee. Id.

But, unlike the employees in Willis and Dietz, Lueth did not bring a cause of action against his employer. Rather, he filed a motion to compel arbitration under the Uniform Arbitration Act (UAA), Minn. Stat. §§ 572.08-.30 (2000). The act states, in part:

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law in equity for the revocation of any contract. ⅜ * * [The act applies] to arbitration agreements between employers and employees * * * unless otherwise provided in the agreement.
On application of a party showing an agreement * * * and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

Minn.Stat. §§ 572.08-.09(a). Although we find no published Minnesota case that addresses whether Willis and Dietz divest the district court of subject-matter jurisdiction over a public employee’s motion to compel arbitration when no cause of action has been brought against the employer, we conclude that they do not.

When a party brings a motion to compel arbitration, the district court asks (1) whether a valid arbitration agreement exists and (2) whether the dispute is within the scope of the arbitration agreement. Minn. Teamsters, 611 N.W.2d at 358. The district court may not examine the merits of the dispute when considering the motion. Local No. 1119, Am. Fed’n State, County, and Mun. Employees v. Mesabi Reg’l Med. Ctr., 463 N.W.2d 290, 296-97 (Minn.App.1990). Thus, when there is a dispute between a public employee and the employer, the district court’s consideration of a motion to compel arbitration does not involve judicial review of any termination decision by the employer. There is, therefore, no conflict between Willis and Dietz and the district court’s consideration of the motion.

We note, however, that the UAA permits the district court to review an arbitration award. On application of a party, the district court will confirm an arbitration award unless “grounds are urged for vacating or modifying or correcting the award.” Minn.Stat. § 572.18. The UAA, therefore, permits the district court to review the arbitration award, which is a resolution of the dispute between the employee and the employer.

But the district court’s review of an arbitration award is limited and does not involve the direct judicial review of an administrative body’s decision contemplated by Willis and Dietz. See Minn.Stat. §§ 572.19-.20 (providing limited permissible grounds of vacation, modification, and correction of award). Further, just as the supreme court was concerned about “the maintenance of fundamental separation of powers principles” in Dietz, we are concerned about infringing on the right of a public employer to enter into arbitration agreements with its employees as it sees fit. Dietz, 487 N.W.2d at 239. The public employer may well decide to enter into an arbitration agreement with full knowledge of and reliance on the UAA’s procedures for bringing a motion to compel if an employee refuses to arbitrate. If we were to hold that the district court lacks subject-matter jurisdiction to decide whether an arbitration agreement exists, we would, in essence, deprive any public employer of the right to seek enforcement of an arbitration agreement by bringing a motion to compel. And we cannot attempt to remove the district court from the arbitration-review process provided by the UAA. There is no provision in the act that permits a public employer to bypass the district court and seek initial review of an arbitration award in this court by writ of certiorari, and it is not our function to create such a bypass. See Lake George Park, L.L.C. v. IBM Mid-Am. Employees Fed. Credit Union, 576 N.W.2d 463, 466 (Minn.App.1998) (“This court, as an error correcting court, is without authority to change the law.”), review denied (Minn. June 17, 1998). We leave that task, if it is warranted, to the legislature or the supreme court.

We conclude that the district court did not err by denying the city’s motion to dismiss for lack of subject-matter jurisdiction.

II.

The city also argues that PELRA applies only to employment contracts and that the personnel policy was not an employment contract. As a result, the city contends, PELRA does not provide Lueth with “statutory authority” for relief, and therefore his only means of seeking review of the city’s termination decision is by writ of certiorari. See Willis, 555 N.W.2d at 282 (holding that exclusive means of review of public employer’s termination decision is by writ of certiorari “absent statutory authority for a different process”).

We do not reach the city’s PEL-RA argument because we conclude that the district court exceeded the limited subject-matter jurisdiction conferred by the UAA. In a judicial proceeding to compel arbitration, the issue presented is the existence and scope of the arbitration agreement. United States Fidelity & Guar. Co. v. Fruchtman, 263 N.W.2d 66, 71 (Minn. 1978). The UAA limits the district court’s inquiry to a “written agreement” or a “provision in a written contract. Minn. Stat. § 572.08. Here, the district court did not address whether the city’s personnel policy is an employment contract but, evidently assuming that even if it were a contract, did find that there did not exist any arbitration-agreement provision in the policy’s grievance procedures. The court did not find an arbitration agreement elsewhere in the policy. At that point, the inquiry should have ended.

But the district court accepted Lueth’s argument that PELRA required the city to provide a grievance procedure for compulsory binding arbitration, and, in doing so, the district court looked beyond a “written agreement” or a “provision in a written contract.” We note that, in any event, the PELRA provision on which the district court relied, Minn. Stat. § 179A.20 (2000), requires that a grievance procedure providing for compulsory binding arbitration must be included in all collective-bargaining contracts. See Minn.Stat. §§ 179A.03, subds. 6 (defining “[ejmployee organization” as “any union or organization of public employees”), 8 (defining “[ejxclusive representative” as “an employee organization which has been certified * * ⅜ to meet and negotiate with the employer”), .20, subds. 1 (stating that “[t]he exclusive representative and the employer shall execute a written contract or memorandum of contract”), 4(a) (stating that “[a]ll contracts must include a grievance procedure providing for compulsory binding arbitration”). But the CBA between the city and its police officers had been annulled by the time Lueth was terminated on the ground that he failed the firearm-proficiency examination. Further, even if section 179A.20 required a procedure for compulsory binding arbitration to be included not only in a CBA but also in any employment contract between a public employer and an employee, the district court did not make the necessary determination that the city s personnel policy is an employment contract.

We conclude that the district court exceeded its limited subject-matter jurisdiction and therefore vacate its order requiring the city and Lueth to submit the termination dispute to arbitration.

DECISION

The district court properly denied the city’s motion to dismiss for lack of subject-matter jurisdiction but exceeded that jurisdiction by implying an arbitration agreement as a matter of law.

Affirmed in part and vacated in part.


author: HARTEN, Judge.

text:
    Robert THOMAS, Relator, v. INDEPENDENT SCHOOL DISTRICT NO. 2142, St. Louis County, Minnesota, Respondent.
    No. C7-01-1208.
    Court of Appeals of Minnesota.
    Feb. 26, 2002.

      Christina L. Clark, Education Minnesota, St. Paul, MN, for relator.
    John M. Colosimo, Carla J. Lindell, Co-losimo, Patchin, Aronson, Kearney, Lindell & Brunfelt, Ltd., Virginia, MN, for respondent.
    Joseph E. Flynn, Jennifer K. Anderson, Knutson, Flynn <& Deans, P.A., Mendota Heights, MN, amicus curiae for Minnesota School Boards Association.
    Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

Relator, a teacher who was rehired immediately after voluntary retirement, challenges by writ of certiorari the school board’s determination that he did not have continuing contract status. Because relator’s continuing contract status was terminated by his retirement, we affirm.

FACTS

In 1980, respondent Independent School District 2142 hired relator Robert Thomas as a math teacher. In 1983, relator completed his three-year probationary period and became eligible for continuing contract status, which he attained when he was offered and accepted his next contract. In November 2000, relator notified respondent of his intent to retire on December 22, 2000, the last school day before the winter vacation. Respondent posted the vacancy to be created by relator’s retirement, and relator applied to fill the position. Relator began teaching again on January 2, 2001, the first school day after winter vacation.

The following day, relator received a memo from the district superintendent, which said in relevant part:

[T]he position for which you are being hired for [sic] will be made available as a vacancy on Transfer Day in April assuming the position remains on the master schedule — in accord with our contract. Thus your position will be terminated May 31, 2001.
[Y]ou will be considered a probationary teacher in accord with statute and master agreement for the remainder of the current school year. Assuming that a position is available in 01-02 and you are hired for that position, you would be tenured effective 01-02 school year. Your seniority date shall be January 2, 2001.
[Y]ou will access all benefits accorded a new hire probationary teacher effective January 2, 2001.

On January 5, 2001, relator received from the superintendent and signed a document entitled “Notice of Assignment, Long Term Substitute Assignment.” At a meeting on January 8, 2001, respondent approved relator’s employment as a probationary teacher. Relator did not oppose either his own classification as “probationary” or the classification of his teaching assignment as “long term substitute.”

In May 2001, respondent passed a resolution referring to relator as a probationary teacher and indicating that relator’s contract would not be renewed. After relator was notified of this decision, he petitioned this court for a writ of certiorari.

ISSUE

Does a retired teacher have continuing contract rights if he is rehired?

ANALYSIS

Determination of a teacher’s employment status involves interpretation of the applicable statutes, which is a legal issue fully reviewable by the appellate courts. Flaherty v. Ind. Sch. Dist. No. 2144, 577 N.W.2d 229, 233 (Minn.App.1998), review denied (Minn. June 17, 1998).

The issue before us is of particular significance in light of the need for qualified and experienced teachers. The legislature has recognized that retired teachers are a valuable resource for meeting this need.

Resumption of teaching service after retirement. (a) Any person who retired under the provisions of this chapter and has thereafter resumed teaching in any employer unit to which this chapter applies is eligible to continue to receive payments in accordance with the annuity

Minn.Stat. § 354.44, subd. 5 (2000). By providing for the rehiring of retired teachers, the legislature enabled teachers to retire when it is financially advantageous for them to do so and enabled school districts to rehire them when their services are needed.

Relator contends, however, that the legislature required that rehired teachers be rehired only with continuing contract status. We disagree. The relevant statutes do not support this construction. First, although section 354.44, subdivision 5, refers to retired teachers’ continuing payment rights, it says nothing about continuing contract rights. Courts cannot add to a statute “what the legislature purposely omits or inadvertently overlooks.” Ullom v. Ind. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994) (citation and internal quotation omitted). Therefore, we cannot add to section 354.44, subdivision 5, a provision that a retired teacher who resumes teaching has a continuing contract right.

Moreover, such a requirement would deter, if not preclude, school districts from rehiring their retired teachers. Even if retired teachers “started over” at the bottom of the seniority list, they would still be superior to probationary teachers, who are not yet on the list and who would have a reduced chance of becoming listed. School districts would find it more difficult to recruit new teachers, a difficulty that could outweigh the benefits of hiring retired teachers.

Although the case before us is a case of first impression, Emanuel v. Ind. Sch. Dist. No. 273, 615 N.W.2d 415 (Minn.App. 2000), review denied (Minn. Oct. 17, 2000), addressed a similar issue. There, a long-term substitute teacher argued that she had continuing contract status because she had completed the probationary period and Minn.Stat. § 122A.44, subd. 2(b) (1998), provided that substitute teachers were “eligible for continuing contract status * * * after completion of the applicable probationary period.” Id at 418. This court noted that

accepting the interpretation of “eligible” urged by [the teacher] would effectively prohibit school districts from ever hiring as long-term substitutes individuals who have completed their probationary periods; such hiring would automatically confer upon those individuals continuing contract status. * * * We conclude that under the most reasonable interpretation of “eligible,” [a substitute teacher] cannot attain continuing contract status without first being offered and accepting a continuing contract by the school district.

Id. at 420. Analogously, if school districts could not hire retired teachers without thereby immediately returning them to continuing contract status, “retirement” would be illusory: “retired” teachers would be able to bump less-senior “permanent” teachers.

Like the teacher in Emanuel, relator argues that, because he completed his probationary period, he has a right to a continuing contract. He attempts to distinguish Emanuel by arguing that his post-retirement teaching was a continuing contract position, not a long-term substitute position. But two documents in the record refute this argument. First, relator signed the “Notice of Assignment, Long Term Substitute Assignment” given him by the superintendent. Second, the superintendent’s memo clearly advised relator that he did not have continuing contract rights by virtue of his post-retirement teaching from January to May 2001, that his status during that period was “probationary,” and that he would re-attain continuing contract status, if he were hired for a continuing contract position in 2001-2002. This comports with Emanuel’s holding that a long-term substitute who has completed probation attains a continuing contract right only after being offered and accepting a continuing contract position.

Relator attempts to distinguish Emanuel on statutory grounds. He argues that the statute in that case, Minn.Stat. § 122A.44, subd. 2(b) (1998), provided that substitute teachers who had completed the probationary period were “eligible for” continuing contracts, while the statute relevant to him, Minn.Stat. § 122A.40, subd. 7 (2000), provides that teachers who have completed the probationary period “shall have” a continuing contract. But relator’s argument ignores the next sentence in the statute: “Thereafter, the teacher’s contract must remain in full force and effect, * * * until terminated by * * * the written resignation of the teacher * * Relator indisputably terminated his continuing contract right when he resigned, and no statute provides that a teacher who has terminated his continuing contract right by resigning reactivates them by resuming teaching.

Nor does caselaw does support relator’s position. The four cases on which he relies are readily distinguishable. See Washington v. Ind. Sch. Dist. No. 625, 590 N.W.2d 655, 660 (Minn.App.1999) (concerns tenure requirements of school districts in cities of the first class for teachers who are already tenured in another district); Lucio v. Bd. of Ind. Sch. Dist. No. 625, 574 N.W.2d 737, 742 (Minn.App.1998) (concerns the tenure requirements for a principals who had already completed the probationary period as a school counselor); Flaherty, 577 N.W.2d at 236 (concerns whether an employee who did 79 hours of nonsubstitute teaching during a school year could count the year as probationary), review denied (Minn. Apr. 30, 1998); and Mohn v. Ind. Sch. Dist. No. 697, 471 N.W.2d 723, 724 (Minn.App.1991) (concerns a tenured principal who was bumped to a teaching job, resigned to work as a principal in another district, and sought reinstatement as a principal in the first district), review denied (Minn. Aug. 29, 1991).

DECISION

Neither statute nor caselaw supports relator’s view that he resumed his pre-retirement continuing contract right by post-retirement teaching.

Affirmed.

      . The school district covers a large geographic area around Virginia, Minnesota, and does not include a city of the first class.

        . We note that, contrary to respondent’s argument, relator properly sought review of the decision in this court. See Dokmo v. Ind. Sch. Dist. No. 11, 459 N.W.2d 671, 673 (Minn. 1990) ("[T]he proper and only method of appealing school board decisions on teacher related matters is by writ of certiorari.”).


author: RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. George Maurel CARROLL, Appellant.
    No. C7-01-771.
    Court of Appeals of Minnesota.
    Feb. 26, 2002.

      Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, MN; and Lisa Nelson Borgen, Clay County Attorney, Moorhead, MN, for respondent.
    John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, RANDALL, Judge, and HANSON, Judge.
   OPINION

RANDALL, Judge.

Appellant challenges his conviction on the ground that the district court abused its discretion in excluding cross-examination, testimony, and closing argument about the victim’s prior inconsistent statements that already been heard by the jury. Because we conclude that the district court abused its discretion in these exclusions, we reverse and remand for a new trial.

FACTS

Appellant George Carroll and his wife Amanda invited Rhoedisha Annis, her husband Brian, and her daughter D.D., then 12, to move into the Carrolls’ apartment temporarily. In March 1999, while the families were living together, Amanda Carroll observed appellant and D.D. lying together on a bed, fully clothed, and reported this to the police as a sexual assault. Immediately after the incident, D.D. made a videotaped statement that no one had ever touched her inappropriately. Based on this statement, no charges were brought against appellant.

Ten months later, in January 2000, during an investigation of neglect, D.D. gave another videotaped statement that she had been inappropriately touched by appellant and by another man. She explained the inconsistency with this statement:

I came here to talk * * * because, um, supposedly [appellant] was touching me in bad spots. And last time I said that no, he wasn’t, but I did lie last time because I was scared to admit it. Because he knows some kids like holding stuff and like that. And then when [the counselor] finally came I finally decided that I should let it out, and I told [her] that I have been touched in the wrong spots by two people. And that’s why I’m here today.

Appellant was charged with one count each of first-degree and second-degree criminal sexual conduct. During trial, the district court admitted both videotapes as evidence. Further, the district court refused the state’s request that D.D.’s explanation of the inconsistency should be redacted, saying, “[I]n fairness to [appellant], I’ll let it in for impeachment purposes.” But, having admitted the inconsistent tapes, the district court then refused to allow appellant’s counsel to cross-examine D.D. on the inconsistency, excluded the testimony of other witnesses on the inconsistency, and prohibited any reference to the inconsistency in closing argument. The jury found appellant guilty on both counts.

ISSUE

Did the district court abuse its discretion in excluding cross-examination of the victim, testimony from other witnesses, and closing argument reference to the inconsistencies in the victim’s statements?

ANALYSIS

If the district court erred either in admitting or in excluding evidence, a reviewing court assesses whether the error was harmless, asking what affect the error had on the jury’s verdict and whether the jury’s verdict was attributable to the error. See State v. King, 622 N.W.2d 800, 811 (Minn.2001).

The district correctly admitted both of D.D.’s videotaped statements and correctly refused to redact her explanation of the inconsistency. The district court was right in saying, “In fairness to [appellant], I’ll let it in for impeachment purposes.” However, the district court then used its admission of both videotapes as the basis for excluding cross-examination of D.D. on the subject. “[Cross-examination is] not necessary because [D.D.] explains * * * on the tape as to why she did that.” Thus, the district court allowed the jury to hear D.D.’s statements that she first denied that anyone had ever touched her inappropriately and later changed her mind and said she had been “touched in the wrong spots by two people. And that’s why I’m here today.” So, although the jury was allowed to hear that D.D. was allegedly touched by two men, appellant was denied any right to cross-examine on this substantial inconsistency. The district court found that, because D.D. explained her inconsistency on the tape, no cross-examination was needed and allowed none. We conclude this disallowance was a substantial error that entitles appellant to a new trial.

In addition to its reasoning that the victim’s explanation of her inconsistencies barred the need for cross-examination, the district court weighed the evidence based on the “rape shield law,” Minn.Stat. § 609.847, subd. 3 (2000), prohibiting evidence of a victim’s prior sexual conduct unless either the victim’s consent is a defense or the prosecution introduces evidence of semen, pregnancy, or disease. See also Minn. R. Evid. 412(1) (stating the same). Appellant contends that prohibiting cross-examination of D.D. as to her inconsistent statements violated his right to due process, to confront his accuser, and to present his defense.

In certain cases the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence otherwise excluded by the rape shield law.

State v. Friend, 493 N.W.2d 540, 545 (Minn.1992) (citation omitted). This is such a case.

Every criminal defendant has a right to fundamental fairness and to be afforded a meaningful opportunity to present a complete defense. The Due Process Clauses of the Federal and Minnesota Constitutions require no less. The right to present a defense includes the opportunity to develop the defendant’s version of the facts, so the jury may decide where the truth lies. The Confrontation Clauses of the Federal and Minnesota Constitutions serve the same purpose, affording a defendant the opportunity to advance his or her theory of the case by revealing an adverse witness’s bias or disposition to lie.
To vindicate these rights, courts must allow defendants to present evidence that is material and favorable to their theory of the case. * * ⅞
In ruling on a defendant’s offer of [evidence of the victim’s previous sexual conduct], the trial court considers the defendant’s constitutional rights, Minn. R. Evid. 403 and 412, and the rape shield statute * * * MinmStat. § 609.347, subd. 3. In the event of a conflict, the defendant’s constitutional rights require admission of evidence excluded by the rape shield law.
We are constrained to interpret statutes as constitutional in purpose and effect unless a party proves otherwise beyond a reasonable doubt. Thus, when confronted with a statute susceptible to multiple interpretations, we adopt the one that stands in harmony with the Constitution, even if the alternative construction might otherwise seem a more accurate reflection of legislative intent.
Following these principles, we conclude the rape shield statute serves to emphasize the general irrelevance of a victim’s sexual history, not to remove relevant evidence from the jury’s consideration.

State v. Crims, 540 N.W.2d 860, 865-67 (Minn.App.1995) (quotation and citations omitted), review denied (Minn. Jan. 23, 1996). D.D.’s admission that she changed her story as to appellant’s alleged inappropriate touching was highly relevant to her credibility, and highly relevant to the jury’s evaluation of that credibility, and to the jury’s consideration of whether the state had proved every essential element of the crime by proof beyond a reasonable doubt.

In every case, the credibility of anyone who takes the stand-defendant, victim, and all other witnesses-is on trial. See 10 Minnesota Practice, CRIMJIG 3.12 (1999) (instructing that jurors are sole judges of witnesses’ credibility and may consider witnesses’ interest or lack of interest in outcome of case; their relationship to parties; their ability and opportunity to know, remember, and relate facts, their manner and appearance; their age and experience; their frankness and sincerity, or lack thereof; reasonableness or unreasonableness of their testimony in light of all other evidence; any impeachment of their testimony; and any other factors that bear on credibility and weight); 4 Minnesota Practice 4, CIVJIG 12.15 (1999) (stating the same).

The “rape shield law” is not a law in the same sense as laws prohibiting theft or laws prohibiting majority shareholders in a close corporation from taking undue advantage of minority shareholders. The rape shield law is a legislative limitation of a citizen’s Sixth Amendment right to confront and cross-examine opposing witnesses. Notwithstanding enactment of the rape shield law, district courts have always had the right to protect witnesses from harassment and to sustain objections to questioning that is repetitious, and/or cumulative, and/or irrelevant. The rights of district courts to protect the rights of people in court and to ensure a fair and orderly trial were in place long before the rape shield law, and they are still in place. Whether the rape shield law was in place or not, district courts have the continuing power to prevent any witness from being badgered, harassed, or subjected to irrelevant or cumulative questions. Thus, in any given case, application of the rape shield law must be scrutinized to determine whether it provides or prevents a fair and orderly trial.

Both Friend and Crims upheld the exclusion of evidence pursuant to the rape shield law, and both illustrate the circumstances in which the statute was meant to apply. In Friend, the court excluded evidence that a victim, murdered after having intercourse with the defendant, had engaged in consensual sexual relations with someone else two weeks earlier. The defendant wanted to show that his sexual activity with the victim was consensual. However,

[t]he evidence demonstrated that the victim had a broken nose, had a wound under her eye, and did not get up between the time of the sexual intercourse and the murder. * * * [T]he limited probative value of the evidence [of her previous sexual relations with a third party] was clearly outweighed by its potential for confusing the jury and creating unfair prejudice.

Friend, 493 N.W.2d at 545. Here, there was no possibility of the jury being confused by the excluded evidence because the jury already had seen D.D.’s two inconsistent videotaped statements.

In Crims, a defendant convicted of third-degree criminal sexual conduct (force or coercion) challenged the exclusion of evidence that the victim had previously exchanged sex for drugs. This court upheld the exclusion “[bjecause collateral evidence of prostitution would have added nothing to Crims’s consent theory nor rebutted the extensive evidence of withdrawn consent.” Crims, 540 N.W.2d at 869. Here, evidence that D.D. had recounted directly conflicting versions of appellant’s activity and had accused another of the same activity was highly probative of her credibility and critical to the jury’s assessment of that credibility. The error was magnified because D.D.’s credibility was essentially the only evidence used to convict appellant. Her previous denial that anything wrong had happened to her had caused the state not to charge appellant. At that time, the state offered nothing else and took the position that D.D. had not said the touching occurred and there was no reason to go forward.

The district court relied on Kobow, 466 N.W.2d at 750 (finding no abuse of discretion in exclusion of evidence that victim had alleged individuals other than defendant had abused her). Kobow is distinguishable. In that case, the defendant

sought to admit the evidence of [the victim’s] prior allegations of sexual abuse to impeach her credibility as a truthful witness. However, [the victim] made no statement during direct examination on this issue of prior allegations of abuse. Having made no such statements, [the victim] was not subject to impeachment on that issue. Had [the victim] testified that she had never alleged sexual abuse before, then [the defendant] may have had grounds to present evidence of her prior allegations to impeach her veracity as a witness.

Id. at 751 (emphasis added). Here, the jury saw one statement in which D.D. said appellant had not inappropriately touched her and another statement in which she said he had. With those two statements in evidence, due process mandates appellant have the right to impeach D.D. through cross-examination as to those inconsistent statements, and now her claim that not one man, but rather two different individuals, had inappropriately touched her.

We conclude the district court correctly refused to delete any part of the second videotape where D.D. admitted the inconsistencies and then tried to explain why she changed her story. However, once evidence is admitted in a trial and heard by the jury, thus giving the jury the right to consider it for whatever it is worth, we cannot fathom a case where either the state’s attorney or the defendant’s attorney is not allowed to refer to evidence that has been admitted! The district court could have called both attorneys into chambers and cautioned them that this was a sensitive area, that they should go slowly and carefully, and that the court would watch closely for any abuses on cross-examination and redirect examination. But a court must allow attorneys to comment on and use admitted evidence.

If the district court had found the tapes inadmissible, it could have excluded them and that might have given rise to an appeal. But once the district court admitted both tapes, not allowing either attorney to use them as a basis for legitimate cross-examination and legitimate closing argument was an abuse of discretion. Ruling that a witness’s explanation of the reason for inconsistent statements was enough for the jury to hear and that the jury make up its own mind without any right of cross-examination of the witness is directly contrary to the letter and the spirit of a defendant’s constitutional right to cross-examine accusers.

Providing the jury with evidence that D.D. had made inconsistent statements as to appellant’s inappropriate touching conferred on appellant the right to cross-examine D.D. on those statements, to present witnesses who would testify as to the accuracy of the statements, and to refer to the inconsistency in closing argument.

DECISION

It was clear and substantial error to deny appellant the right to cross-examine a witness whose inconsistent statements had been admitted as evidence and shown to the jury. It was error to deny appellant the right to produce witnesses as to the veracity of those statements and error to deny appellant’s counsel the opportunity to refer to the inconsistencies in closing argument.

Reversed and remanded for a new trial.

      . "Sexual conduct” as used in Minn.Stat. § 609.347 has been defined to include "allegations of sexual abuse.” State v. Kobow, 466 N.W.2d 747, 750 (Minn.App. 1991), review denied (Minn. April 18, 1991).

      . In all criminal prosecutions, the accused has the right * * * to be confronted with the witnesses against him. U.S. Const, amend. VI. The Minnesota Constitution, art. 1, § 6 provides for the same right.

      . As a separate grounds for reversal, appellant argues that the district court abused its discretion in admitting the officer’s testimony of appellant's wife remark because the remark was inadmissible character evidence within the meaning of Minn. R. Evid. 404(a). Appellant did not raise this argument to the district court, and therefore it is not properly before us. A party may not obtain review by raising the same issue under a different theory. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Our decision to reverse on other grounds renders the issue moot. However, we note that the officer's testimony was not an attack on appellant’s character precluded by Minn. R. Evid. 404(a) and that, in any event, there was no reasonable probability that this testimony significantly affected the verdict because appellant himself testified to his wife's remark. See State v. Post, 512 N.W.2d 99, 102, n. 2. (Minn.1994) (noting "when dealing with a claim of erroneous admission of evidence [a reviewing court asks] whether there is a reasonable probability that the wrongfully admitted evidence significantly affected the verdict”) (emphasis omitted).


author: VANDE WALLE, Chief Justice.

text:
    2002 ND 24
    STATE of North Dakota, Plaintiff and Appellee, v. Robbie Del James ROBERSON, Defendant and Appellant.
    No. 20010053.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Adam Hamm, Assistant State’s Attorney (on brief), and Wade L. Webb, Assistant State’s Attorney (argued), Fargo, for plaintiff and appellee.
    Mark A. Beauchene, Fargo, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Robbie Del James Roberson appealed from the trial court’s criminal judgment entered after a jury convicted him of two counts of terrorizing. Roberson contends he was denied due process of law during his trial, at which he represented himself, because the trial court did not conduct a hearing to determine his competency to stand trial. Roberson concedes he did not request a competency hearing during trial. He argues, however, that based on his behavior throughout the proceedings, and despite expert opinions finding he was competent to stand trial, the trial court should have ordered a competency hearing on its own motion. We disagree and therefore affirm.

[¶ 2] Roberson was charged with two counts of terrorizing arising from events that occurred on or about July 15, 2000. Before trial, Roberson’s trial counsel filed a motion for an order of commitment for evaluation. The trial court held a hearing on the matter on October 31, 2000, and concluded “there is certainly reason to believe that the Defendant is suffering from a mental disease or defect.” Accordingly, the trial court ordered Roberson be committed to the James River Correctional Facility for a mental health evaluation. The trial court asked for a report on Roberson’s fitness to stand trial and his criminal responsibility at the time of the offenses. Specifically, with regard to Roberson’s fitness to stand trial the trial court requested:

1. A report regarding the Defendant’s present mental condition as to his ability to understand the proceedings now pending in this Court against him and to assist in his defense thereof;
3. [A report answering the following questions] Whether the Defendant is fit to proceed or is unable to effectively communicate with counsel and whether the Defendant will attain fitness to proceed or ability to effectively communicate with counsel and whether the Defendant will attain [fitness] to proceed or ability to effectively communicate with counsel in the foreseeable future.

[¶ 3] The James River Correctional Center complied with the court order and sent a report to the trial court. The opinion of two experts, Joseph Belanger, Ph.D. and Joanne Roux, M.D., were recorded within the report. Dr. Belanger served as the principal evaluator with regard to Roberson’s competency to stand trial. He concluded “it is [my] best professional judgment and recommendation that Mr. Roberson be found trial competent in the sense that he is able to confer coherently with counsel and provide necessary and relevant information to formulate a defense.”

[¶ 4] Dr. Roux agreed with Dr. Belan-ger’s conclusions, but she also noted a trial court may disagree with this recommendation. Dr. Roux discussed in detail why the trial court may choose not to follow the expert’s advice. Dr. Roux stated the following:

During the proceedings against him, Mr. Roberson will be at best “difficult” to work with: He tends to ramble and get “off track” (although he can be redirected), he appears rather anxious and is impatient, he tends to argue any point that disagrees with his own point of view, he questions the “State’s motives” in regards to the case against him, and he acknowledges that “volatilities may occur” in the Courtroom. In noting that criminal proceedings tend to be “adversarial” in nature, such is apt to be the case even if Mr. Roberson is “allowed” to pursue his intended line of defense. Despite his best intentions, Mr. Roberson might therefore compromise his own ability to do so. Unfortunately, with perhaps the exception of Mr. Roberson’s tendency to “ramble,” none of the evaluators are able to determine to what extent the aforementioned behaviors are “willful,” and to what extent they may be beyond Mr. Roberson’s “volitional control.” [In other words, the evaluators cannot determine to what extent Mr. Roberson will simply “choose not to cooperate” during the proceedings against him, and to what extent he actually “lacks the capacity” to do so]. However, it is not beyond reason to note that even if the aforementioned behaviors are under Mr. Roberson’s volitional control, he could still potentially benefit from treatment, which — at the very least— could decrease his anxiety, impatience, and tendency to “ramble”. In this regards, treatment could potentially improve his ability to participate in his own defense — regardless of what “line of defense” he chooses to follow.

Upon receiving the evaluation, the trial court followed the two experts’ recommendation, and found Roberson competent to stand trial.

[¶ 5] On January 12, 2001, the trial court held a hearing to set the date for trial and make any other necessary pretrial arrangements. Roberson began arguing with the trial court almost from the beginning. Among other statements Roberson made he asked, “[w]hy aren’t my accusers and my accusatory instruments before me?” The trial court answered:

Because we are trying to get this thing on for trial, and you know what if you are going to represent yourself, you are at least going to have to cooperate with the process. I’m going to afford you an opportunity to try your case. You’ll have the opportunity to do that, ok? But the reality of it is we have got to make some decisions before we can get to that point.

Roberson responded: “No. We’re not going to try it. It’s not going to be tried in this Court. I refuse — I refuse to have a trial in this Court.”

[¶ 6] After many other statements by Roberson, Wade Webb, an assistant state’s attorney, reminded the trial court that under N.D.C.C. § 12.1-04-08 the trial court had the power to suspend proceedings to consider the issue of Roberson’s competency to stand trial. The trial court responded: “Alright. The problem with — as I look at 12.1-04-08 is that the only evidence I have at this point is the psychological evaluation where they say that he can effectively communicate, although frankly given what I have seen, I doubt it.”

[¶ 7] Webb in turn responded: “What I understand 12.1-04-08 to read is that it’s the Court’s determination based upon a preponderance of evidence. Certainly you have Dr. Rau’s [Sic] report, but I do think the Court could certainly rely upon evidence, that which is brought before it at all of the different hearings to make a determination.”

[¶ 8] The trial court concluded the discussion by stating: “I think we should just set it for a jury trial and suffer through the pain and just be done with it. We’ll see what happens. Let’s go ahead and set it on.” Thus, the trial court set a date for trial, granted Roberson’s request to represent himself, and provided Roberson stand-by counsel.

[¶ 9] The trial commenced. Roberson again behaved poorly in court, just as he had at the past hearings and as the medical evaluation predicted he might. He argued with the trial court and repeatedly ignored its directions. Finally, the trial court made the following findings of fact:

[T]hat the defendant willfully, intentionally and repetitively invaded the province of the court, unlawfully commenting on the law to the jury. He was warned to refrain from such comments. He was advised that failure to do so would result in his removal. He refused.
Second, he has consistently used language that was coarse, inappropriate and unacceptable despite repeated warnings by the Court and refused to follow the rulings of the Court.
Three, that he failed to abide by the evidentiary rulings of the Court repetitively; that when the Court indicated to him that an objection was sustained that he should move on, he continued to go back to the topic. The Court attempted to reason with the defendant. All attempts to reason with the defendant were ineffectual.
Frankly, the defendant has mental illness issues which probably have come into play in this case. He believes that the Court is part of a conspiracy generally and specifically with an intent to deprive him of his liberty. Nothing that I can say or do is going to change that. The State hospital has indicated he is fit to stand trial. The State hospital has indicated that he is fit to participate in the trial of the case.
However, the report did note that he also believed that the Court was part of the conspiracy and that that might prove, quote unquote, problematic, as it has.
In any event, the defendant’s conduct included willful disobedience of the Court’s directions, a refusal to follow the rules of decorum, refusal to follow the rules of procedure, a refusal to follow the Rules of Evidence and a refusal to show the appropriate dignity to the witnesses, the jurors, counsel and the Court. He is in all manners incapable of following the rulings of the Court, at which point the Court directed that he be excluded.

[¶ 10] The trial court proceeded to appoint Roberson’s stand-by counsel as trial counsel. The trial resumed without Roberson in personal attendance as authorized by N.D.R.Crim.P. 43(b)(3). Ultimately, Roberson was convicted by a jury of two counts of terrorizing.

[¶ 11] Roberson did not request a competency hearing before the trial court, and we will not generally address issues not raised below. The only exception to this principle arises when the record reveals an “obvious error affecting the defendant’s substantial rights” in the action of the trial court. See State v. Gleeson, 2000 ND 205, ¶ 8, 619 N.W.2d 858; see also N.D.R.Crim.P. 52(b). Such an error is one which is “prejudicial or affect[s] the outcome of the proceedings.” State v. Gleeson, 2000 ND 205, ¶ 8, 619 N.W.2d 858.

[¶ 12] The conviction of a mentally incompetent defendant is a violation of the due process safeguards of the United States Constitution made applicable to the States by the Fourteenth Amendment. See Gleeson at ¶ 9. Further, N.D.C.C. § 12.1-04-04, provides: “No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against the person or to assist in the person’s own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.” To ensure this law’s effect, and preserve the constitutional safeguards, trial courts in this State are required to hold competency hearings if there is reasonable doubt as to a defendant’s competency to stand trial, even if the defendant has not requested such a hearing. See Gleeson at ¶10.

[¶ 13] If a defendant is not found competent to stand trial, the proceedings cannot go forward. Accordingly, it is “obvious error affecting the defendant’s substantial rights” to fail to hold a competency hearing, either on motion or of its own accord, when there is reasonable doubt about the defendant’s competency to stand trial. See State v. Gleeson, 2000 ND 205, ¶ 8, 619 N.W.2d 858; see also N.D.R.Crim.P. 52(b).

[¶ 14] The question before this Court “is whether the ‘trial judge received information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted [the trial court] to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.’ ” See Gleeson, 2000 ND 205, ¶ 11, 619 N.W.2d 858 (quoting Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980)). Without receiving such information, the trial court is entitled to presume the defendant is competent to stand trial and proceed without a competency hearing. See Gleeson at ¶ 11.

[¶ 15] We have noted in the past: “[although there is no set of facts which invariably establishes a sufficient doubt, the United States Supreme Court has focused on three significant evidentiary factors: the defendant’s irrational behavior, the defendant’s demeanor before the trial court, and any prior medical opinions on competence to stand trial.” Gleeson, 2000 ND 205, ¶ 11, 619 N.W.2d 858.

[¶ 16] The United States Court of Appeals for the Eighth Circuit has also focused on whether defense counsel, who is in a unique position to judge the defendant’s competency, questioned it before the court. See Gleeson, 2000 ND 205, ¶ 11, 619 N.W.2d 858; see also Speedy v. Wyrick, 748 F.2d 481, 486-87 (8th Cir.1984)(stating: “[a] doubt expressed by a lawyer in open court concerning the competence of his client to stand trial is unquestionably a factor to be considered in determining whether to hold a competency hearing).”

[¶ 17] In some circumstances, one of these factors standing alone may be sufficient evidence in determining whether further inquiry is required. Gleeson, 2000 ND 205, ¶ 11, 619 N.W.2d 858. But, neither Roberson’s demeanor or behavior before the trial court is conclusive, for it consisted of precisely the argumentative, difficult rambling that the mental health evaluators predicted would occur, and the cause of which the mental health' evaluators were unable to ascertain.

[¶ 18] Setting these two factors aside we are left to consider the actions of Roberson’s trial counsel and the medical evaluation. The issue of competency was raised when Roberson’s trial counsel moved for a mental health evaluation at the October 31, 2000 hearing. After the hearing the trial court ordered the evaluation. Roberson, however, “fired” this attorney and chose to represent himself. Roberson, despite acting as his own counsel, did not challenge the ultimate findings of the ordered mental health evaluation, even though it found Roberson competent to stand trial. But, because a mentally ill person may not recognize his infirmity, this factor is not decisive. This leaves the only clear factor in the case, the medical evaluation.

[¶ 19] The medical evaluation is unequivocal in its findings. The trial court ordered Roberson to be committed to the James River Correctional Facility for a mental health evaluation. There, two evaluators agreed Roberson was “able to confer coherently with counsel and provide necessary and relevant information to formulate a defense.” Thus, the conclusion of the evaluators was that Roberson was competent to stand trial, although, the evaluators warned Roberson would be difficult to work with, which the record reflects he was.

[¶ 20] Roberson relies on his disruptive actions in court as the basis for creating a reasonable doubt as to his competency, thus requiring the trial court to conduct a competency hearing. See State v. Storbakken, 246 N.W.2d 78, 81 (N.D. 1976). While disruptive conduct in court on the part of a defendant may, in some instances, constitute sufficient grounds to require the trial court to hold a competency hearing, we do not conclude all disruptive defendants are incompetent to stand trial. Rather, the conduct may be contempt of court. See N.D.C.C. § 27-10-01.1(l)(a) (defining contempt of court as “[i]ntentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court”). See, e.g., City of Grand Forks v. Dohman, 552 N.W.2d 69 (N.D.1996)(affirming an order of contempt for defendant’s conduct in making disparaging comments to the jury in a lurid angry voice).

[¶ 21] Here, the trial court was faced with medical evaluations concluding Roberson was competent to stand trial but would prove difficult. On the record, the facts and circumstances presented before the trial court did not create a sufficient doubt of Roberson’s competency to stand trial, so as to require the trial court on its own accord to order a second evaluation and hold a formal hearing on Roberson’s competency to stand trial. Accordingly, there is no obvious error and the judgment of the trial court is affirmed.

[¶ 22] SANDSTROM, NEUMANN, MARING, and KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2002 ND 28
    Kenneth M. HUGHES, Petitioner and Appellant, v. STATE of North Dakota, Warden Tim Schuetzle, and Elaine Little, Director, Respondents and Appellees.
    Nos. 20010188, 20010189, 20010190.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Kenneth M. Hughes (on brief), Fargo, ND, pro se.
    H. Jean Delaney, Assistant State’s Attorney, Valley City, ND, for respondents and appellees.
   MARING, Justice.

[¶ 1] Kenneth Matt Hughes appealed from a judgment dismissing his claims for post-conviction and habeas corpus relief. We conclude the trial court correctly dismissed Hughes’s ineffective assistance of counsel claims because they are conclusory and fail to show how any allegedly deficient performances by his three defense attorneys prejudiced him. We further conclude the trial court correctly dismissed the remainder of Hughes’s claims because they are barred by res judicata or misuse of process. We dismiss the appeal insofar as Hughes challenges the denial of habeas corpus relief, and we affirm the remainder of the judgment.

I

[¶ 2] In January 1998, a Barnes County jury found Hughes guilty of felony charges of possession of marijuana with intent to distribute and possession of cocaine with intent to distribute. Hughes also pled guilty to a misdemeanor charge of possession of marijuana in an unrelated matter. In State v. Hughes, 1999 ND 24, ¶¶ 7-8, 589 N.W.2d 912, we affirmed Hughes’s appeal from the two felony convictions, concluding although there was no probable cause to issue a no-knock search warrant for Hughes’s apartment, the evidence obtained from the search was admissible under the good-faith exception to the exclusionary rule. On October 4, 2000, Hughes filed a 100 page application for post-conviction and habeas corpus relief. Hughes claimed ineffective assistance of counsel and numerous trial errors. The State moved for summary disposition. Following oral arguments on the motion, the trial court dismissed Hughes’s application on July 18, 2001, and Hughes appealed.

II

[¶ 3] Hughes claims the trial court erred in denying his application for post-conviction and habeas corpus relief. We limit our review to the issues Hughes argues on appeal. The issues raised in the district court but not argued on appeal are deemed abandoned. See, e.g., Murchison v. State, 1998 ND 96, ¶¶ 12-13, 578 N.W.2d 514.

[¶ 4] Under N.D.C.C. § 29-32.1-09(1), a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. We review an appeal from a summary denial of post-conviction relief as we review an appeal from summary judgment. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542.

A

[¶ 5] On a claim of ineffective assistance of counsel, the defendant must prove counsel’s performance was deficient and the deficient performance prejudiced the defendant. Berlin v. State, 2000 ND 206, ¶ 8, 619 N.W.2d 623. The second prong requires the defendant to prove that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

[¶ 6] Hughes argues his three defense attorneys were ineffective during his pretrial proceedings, the trial stages, and throughout his unsuccessful appeal. Hughes claims none of them interviewed any witnesses to attempt “to prove the truth.” Specifically, Hughes argues his first defense attorney was deficient because he told him the searches were valid, even though the defense attorney had not seen the search warrant or affidavit in support of the warrant. Hughes argues his second defense attorney was deficient because the attorney advised him to plead guilty to the misdemeanor charge and Hughes believed he had standing as an overnight guest to challenge the second search which resulted in the discovery of contraband; the attorney failed to use any of the legal precedents Hughes provided to him, including Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), during the representation; and the attorney “lied repeatedly,” failed to communicate with him, and joined the “coverup” against him. Hughes argues his third defense attorney was deficient because the attorney failed to request the Franks hearing sought by Hughes; informed the jury about information “outside of the trial itself’ when he contacted jurors after the verdicts were rendered; and filed an inadequate appellate brief because he did not raise all of the case law Hughes had provided to him.

[¶ 7] Hughes’s conclusory claims of deficient performance are not accompanied by any allegations of how the alleged deficient performances by his defense attorneys prejudiced him. Because Hughes did not allege or show how, but for the attorneys’ errors, the results of the proceedings would have been different, we conclude the trial court did not err in summarily dismissing his ineffective assistance of counsel claims.

B

[¶ 8] Under N.D.C.C. § 29-32.1-12(1), a court may deny a post-conviction application on the ground of res judi-cata if the same claims or claim has been fully and finally determined in a previous proceeding. Heyen v. State, 2001 ND 126, ¶ 9, 630 N.W.2d 56. Consequently, when claims have been raised previously on direct appeal or in a previous post-conviction application, they cannot be raised again in a subsequent post-conviction application. Clark, 1999 ND 78, ¶ 8, 593 N.W.2d 329.

[¶ 9] Hughes argues his Fourth, Sixth and Fourteenth Amendment rights were violated. Specifically, Hughes contends the prosecutor misled the court about the law on no-knock search warrants; the search warrant was improperly issued; the “SWAT-style” entry into his residence to conduct the search was “unlawful and terrifying,” causing him “permanent physical injury”; the trial court incorrectly concluded no-knock search warrants were issued per se in all drug cases prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336; and this Court erred in applying the good faith exception to the exclusionary rule and “decimated” his Fourth and Fourteenth Amendment rights in our decision on his direct appeal.

[¶ 10] These claims have been fully and finally determined in Hughes’s direct appeal, are res judicata, and cannot be raised again in this proceeding. Consequently, the trial court did not err in summarily dismissing these allegations.

C

[¶ 11] Under N.D.C.C. § 29-32.1-12(2)(a), a court may deny an application on the ground of misuse of process when a defendant inexcusably fails to pursue an issue in a proceeding leading to judgment of conviction, inexcusably fails to pursue an issue on appeal after having raised the issue in the trial court, or fails to raise an issue in an initial post-conviction proceeding. Syvertson v. State, 2000 ND 185, ¶ 18, 620 N.W.2d 362.

[¶ 12] Hughes argues the prosecutor committed misconduct in the proceedings by withholding evidence, presenting false documentary and testimonial evidence, and using improper trial tactics which prejudiced him. Specifically, Hughes claims the search warrant was executed after the search was conducted and was unsigned and different than the warrant submitted in evidence, the affidavit in support of the warrant was false, and, consequently, the police could not rely in objective good faith on the warrant. Hughes also claims a law enforcement officer failed to divulge the name of an informant during a preliminary hearing; the prosecution did not disclose the existence of a transcript or recording of the application for the search warrant; the court improperly took judicial notice of facts in question; the State did not give notice of an expert witness whose testimony “was almost entirely false”; voir dire, jury selection, and the opening and closing jury instructions were “woefully inadequate to ensure fairness”; the prosecutor “repeatedly” expressed her personal opinion about the case during closing arguments; the jury verdicts were “against the bulk of the ' evidence”; and “transcripts and documents are missing or have been altered or created from thin air.”

[¶ 13] Because Hughes has failed to explain why these issues were not pursued in the trial court proceedings leading to his convictions or on the original appeal to this Court, we conclude the trial court did not err in summarily dismissing these contentions for misuse of process.

D

[¶ 14] Hughes argues the trial judge erred in refusing to recuse himself in this case because the judge had a “personal interest in the outcome.” Hughes does not explain what “personal interest” the judge allegedly had in this case. Hughes does allege the trial court refused to read a letter Hughes had mailed to him, which indicated to Hughes the judge was also involved in the “cover-up.” This allegation is so conclusory and devoid of factual support, we conclude the trial court did not err in summarily dismissing it.

E

[¶ 15] Hughes also challenges the denial of his request for habeas corpus relief. No appeal lies from a final order in a habeas corpus proceeding. Johnson v. Raftevold, 505 N.W.2d 110 (N.D.1993). Moreover, we need not treat the appeal as a request to exercise our supervisory jurisdiction because Hughes is no longer confined on the convictions. Id. at 111; In Interest of Klein, 325 N.W.2d 227, 229 (N.D.1982). In any event, the issues raised in connection with Hughes’s request for habeas corpus relief do not differ from those raised in connection with his application for post-conviction relief, and we have concluded the trial court’s summary disposition of the application was proper. Hughes’s appeal from the denial of his request for habeas corpus relief is dismissed.

Ill

[¶ 16] Hughes’s appeal from the denial of his request for habeas corpus relief is dismissed and the remainder of the judgment is affirmed.

[¶ 17] GERALD W. VANDEWALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.