author: PAGE, Justice. ANDERSON, RUSSELL A., Justice HANSON, Justice

text:
    Charles Lee SPANN, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-278.
    Supreme Court of Minnesota.
    Oct. 6, 2005.

      Bradford Colbert, Legal Assistance to Minnesota Prisoners, William Mitchell College of Law, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

PAGE, Justice.

On this issue of first impression, we must decide whether a defendant can waive his right to appeal after he has been convicted following a jury trial. Appellant Charles Spann was convicted of two counts of first-degree criminal sexual conduct involving separate victims after a jury trial. The district court sentenced Spann to two executed 118-month sentences to be served consecutively. Each sentence was an upward departure from the Minnesota Sentencing Guidelines presumptive sentence. of 86 months. Spann appealed his conviction and sentences to the court of appeals, but he agreed to dismiss his appeal and waive all of his rights to appellate and postconviction review when the state agreed to request that Spann be resen-tenced to presumptive guidelines sentences. The court of appeals dismissed Spann’s appeal and the district court re-sentenced Spann to executed consecutive 86-month sentences. Spann subsequently filed a postconviction petition challenging his sentences and the waiver of his right to appeal. In addition, he alleged that he had received ineffective assistance of trial and appellate counsel. The postconviction court denied the petition, finding that Spann had made a “knowing, voluntary and intelligent waiver of his right to appeal.” The court of appeals affirmed. We reverse and remand.

Spann was charged with and, after a jury trial, found guilty and convicted of two counts of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(g) (2004), for the sexual abuse of two of his minor daughters. The district court sentenced Spann to consecutive 118-month sentences for the two convictions. The sentences were an upward durational departure from the presumptive sentence of 86 months for each count under the sentencing guidelines and were based on the court’s finding of several aggravating factors, which it placed on the record.

Spann appealed his conviction to the court of appeals arguing: (1) juror bias because of a comment made by one of the jurors during trial; (2) improper admission of taped interviews of both victims that introduced evidence of Spann’s bad character and, without proper notice, other bad acts by Spann; (3) prosecutorial misconduct based on improper cross-examination and attacking Spann’s character during closing arguments; and (4) improper sentencing under the sentencing guidelines. On the improper sentencing issue, Spann argued that the district court abused its discretion when it imposed a 32-month upward departure for each of the consecutive sentences because his crimes did not justify a 32-month upward departure.

Before the state filed its responsive brief at the court of appeals, the parties entered into a stipulated settlement of Spann’s claims on appeal. Under the stipulation, the state agreed to request a remand for resentencing to have Spann’s sentence reduced to two consecutive 86-month sentences from the original two consecutive 118-month sentences. In exchange, Spann agreed to dismiss his appeal and to waive his right to challenge his convictions or sentences on direct appeal or on post-conviction relief. The parties’ stipulation specifically stated, “Appellant further agrees that resentencing pursuant to stipulated [sic] agreement resolves all issues raised in appellant’s brief, and appellant waives all further appellate and post-conviction review.” The parties further agreed that if the district court did not accept the stipulation agreement, Spann’s appeal would be reinstated.

Based on the parties’ stipulation, the court of appeals dismissed the appeal and remanded for resentencing. At the resen-tencing hearing, the state explained that in exchange for the reduced sentence, the “defendant waives all issues on appeal and all appeals.” Although Spann agreed that he was “waiving all rights to appeal the case,” neither the attorneys nor the court asked Spann any specific questions about the extent of his waiver. The district court agreed to the terms of the stipulation and resentenced Spann to consecutive 86-month sentences for each count.

In May of 2003, Spann, acting pro se, filed a petition for postconviction relief in which he challenged his sentence and alleged ineffective assistance of both trial and appellate counsel. In September 2003, Spann, represented by counsel, filed an amended postconviction petition in which he challenged the waiver of his appeal rights and incorporated by reference his pro se petition. The postconviction court denied Spann’s petition, stating “[t]he record clearly establishes that [Spann] made a knowing, voluntary and intelligent waiver of his right to appeal.” The court further indicated that, under the circumstances of the case, the waiver was valid because Spann was represented by counsel and obtained a “known benefit” in the reduced sentence. The court also determined that Spann’s attempt to appeal his sentence was untimely and stated that Spann made no claim that his sentence was illegal.

On appeal, a divided panel of the court of appeals affirmed the postconviction court’s denial of relief. Spann v. State, 686 N.W.2d 868, 872 (Minn.App.2004). In affirming, the majority noted that Spann did not dispute that his waiver was knowing, intelligent, and voluntary, but rather argued, without citing any controlling authority, that his waiver violated public policy. Id. The court held that:

Under current Minnesota law, it was not an abuse of discretion for the district court to deny appellant’s request for postconviction relief and give effect to appellant’s waiver of his right to appeal, where the waiver was entered into (1) knowingly, intelligently, and voluntarily; (2) following appellant’s conviction, sentence, and filing of an appellate brief; and (3) in exchange for the known benefit of a sentence pursuant to the Minnesota Sentencing Guidelines.

Id. The dissenting judge, however, argued that “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court” and that permitting a waiver of a defendant’s right to appeal and to a postconviction review raises “[ijssues of fairness and voluntariness” of the waiver and “risk[s] foreclosing appellate review of issues that may not be fully developed at the time of waiver.” Id. (Klaphake, J., dissenting). We granted Spann’s petition for further review.

Whether a criminal defendant can waive his right to appeal is a legal issue of first impression that this court reviews de novo. Cf. State v. Larson, 605 N.W.2d 706, 710 (Minn.2000). Spann also argues that his constitutional right to due process has been violated. This court also reviews constitutional challenges de novo. State v. Schwartz, 628 N.W.2d 134, 138 (Minn.2001).

Spann argues that the criminal appeal is a “fundamental element of procedural fairness” and “[bjecause a criminal appeal plays a critical role in the criminal justice system, public policy and Due Process preclude a defendant from waiving his right to appeal his conviction.” While acknowledging that certain rights, such as the defendant’s Sixth Amendment right to counsel, can be waived, he argues that waivers that conflict with public policy are invalid.

In that regard, he argues that appeals are necessary to correct lower court errors and that a waiver serves to affirm erroneous convictions and that denying appellate scrutiny makes appellate courts “accomplices to police violations and trial court errors.” He also argues that permitting a defendant to waive the right to appeal will harm uniformity among district court decisions because appellate review is the only way to ensure that all the district courts “move in a common direction.” Spann contends that, as a consequence of allowing defendants to waive the right to appeal, there would be a decrease in the perceived legitimacy of the criminal justice system in the eyes of both the public and the defendant. Spann further contends that allowing defendants to waive the right to appeal could circumvent policy considerations set by this court and the legislature. He suggests, as an example, that in requiring the defendant to waive all appeal rights, the state could ignore the requirement, established by this court in State v. Misquadace, 644 N.W.2d 65 (Minn.2002), that a sentencing departure cannot be based on a plea agreement alone, but must have a factual basis. Finally, Spann argues that permitting a defendant to waive his right to appeal violates due process, which prohibits a state from placing an impermissible burden on a defendant’s right to appeal his conviction. Citing People v. Harrison, 386 Mich. 269,191 N.W.2d 371 (1971), he asserts that “requiring [him] to waive his right to appeal in exchange for a modification of his sentence chills his right to appeal and is ‘constitutionally obnoxious.’ ” Spann states that the waiver is especially onerous in this case because he waived his right to appeal after a jury trial, rather than after a guilty plea pursuant to a plea agreement. He argues that after a trial, “the defendant’s only bargaining tool is his right to appeal” and that the defendant’s unequal bargaining position allows a prosecutor to force the defendant into giving up his rights in exchange for a small concession, which, Spann asserts, is exactly what happened in this case.

The state argues that a criminal defendant may knowingly, intelligently, and voluntarily waive his right to appeal, just as he may waive other rights. Alternatively, the state argues that even if all rights to appeal are not waivable, waiver in this case does not violate public policy. The state asserts that Spann was fully aware of his rights, had several months between signing the stipulation and resentencing to reconsider, and waived his rights only after he had a full opportunity to consult with his counsel. The state contends that the stipulation agreement was “the result of a good faith, non-coercive negotiation with benefit to both parties” and that Spann received a reduced sentence and the state was able to give closure to the child victims in the case.

The state, relying on State v. Williams, 664 N.W.2d 432 (Minn.App.2003), contends that the court of appeals has allowed a defendant to waive the right to appeal when (1) the defendant received an important concession from the state, and (2) the waiver was knowing, intelligent, and voluntary. The state distinguished the instant case from Ballweber v. State, 457 N.W.2d 215 (Minn.App.1990), in which the court of appeals held that a defendant’s right to appeal an illegal sentence cannot be waived. The state contends that Ballwe-ber is a narrow exception to the general rule that a defendant may waive an appeal right. Because Spann does not complain that his sentence is illegal, the state contends that Ballweber is inapplicable.

The state acknowledges that the right to appeal is an integral part of the criminal justice system, but argues that the importance of the right to appeal has nothing to do with whether the right is waivable. The state notes that a defendant may waive many constitutional rights, including Miranda rights, the right to a jury trial, and the right to counsel as long as the waivers are knowing, intelligent, and voluntary. Moreover, the state asserts that the prevailing view among United States jurisdictions is that the right to appeal may be waived.

The state also contends that Spann’s public policy arguments are overstated and asserts that the waiver of the right to appeal after conviction at trial is no more burdensome on a defendant than a waiver at the preconviction plea bargaining stage. The state argues that Spann had legitimate interests to negotiate and made an agreement that benefited him, the victims, and the state. The state further claims that allowing a defendant to waive his right to appeal would neither create the danger of a loss of uniformity nor undermine the judicial system because appeal waivers “are far from common practice.”

The specific question of whether a defendant, who has been convicted after a jury trial, can waive all rights to appeal as part of an agreement with the state is an issue of first impression with this court. Although a convicted defendant does not have a constitutional right to appeal under either the United States Constitution or the Minnesota Constitution, we have determined in Minnesota that “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court.” Hoagland v. State, 518 N.W.2d 531, 534 (Minn.1994) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)); see also Minn. R.Crim. P. 28.02, subd. 2 (“A defendant may appeal as of right from any adverse final judgment * * *.”); Minn.Stat. § 244.11, subd. 1 (2004) (“An appeal to the court of appeals may be taken by the defendant or the state from any sentence imposed or stayed by the district court according to the rules of criminal procedure for the district court of Minnesota.”).

At the same time, we have allowed criminal defendants to waive many rights stating that “it has long been settled law that courts will honor a defendant’s lawful, ‘intentional relinquishment or abandonment of a known right or privilege.’ ” State v. Givens, 544 N.W.2d 774, 777 (Minn.1996) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). The rights that we have allowed defendants to waive are rights personal to the defendant and include a waiver of Miranda rights, see State v. Ray, 659 N.W.2d 736, 742 (Minn.2003); the right to counsel, State v. Blom,, 682 N.W.2d 578, 613 (Minn.2004); the right to a jury trial, State v. McKenzie, 532 N.W.2d 210, 217-18 (1995), Minn. R.Crim. P. 26.01, subd. 1(2)(a); and the right to be present at trial, Brown v. State, 682 N.W.2d 162, 166 (Minn.2004), Minn. R.Crim. P. 26.03, subd. 1(2). Indeed, a defendant may waive the right to trial entirely by pleading guilty. State v. Nordstrom, 331 N.W.2d 901, 904 n. 6 (Minn.1983). We have also allowed defendants to waive the protections of certain evidentiary rules. Blom, 682 N.W.2d at 617.

Moreover, a defendant can always waive the right to appeal simply by not filing an appeal. Further, the failure to object to an error at trial constitutes a waiver of the right to appeal on that basis unless the appellant shows that there was plain error affecting substantial rights. See, e.g., State v. Bolstad, 686 N.W.2d 531, 542 (Minn.2004) (denying a new trial for unobjected-to prosecutorial misconduct where misconduct did not deny defendant a fair trial); State v. Taylor, 650 N.W.2d 190, 205 (Minn.2002) (upholding admission of evidence where appellant failed to object at trial).

We recognize that a majority of other jurisdictions have held that allowing a defendant to waive his right to appeal is not inherently illegal or unfair. See, e.g., State v. Perkins, 108 Wash.2d 212, 737 P.2d 250, 251 (1987); United States v. Nave, 302 F.3d 719, 720 (7th Cir.2002) (concluding waiver of appeal is no different than waiver of other rights). Jurisdictions allowing a defendant to waive his or her right to appeal a conviction require that the waiver be made “intelligently, voluntarily and with an understanding of the consequences.” Perkins, 737 P.2d at 251; see also Cubbage v. State, 304 Md. 237, 498 A.2d 632, 633 (1985) (upholding a knowing and voluntary waiver of appeal made by the defendant after conviction but before sentencing). These jurisdictions have justified the allowance of appeal waivers stating that, while the criminal defendant’s right to appeal is important, it is no more fundamental than other rights a defendant is allowed to waive. Perkins, 737 P.2d at 252; see also Nave, 302 F.3d at 720; Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (“there is no federal constitutional right to state appellate review of state criminal convictions”); McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894) (stating that the right to appeal is not a necessary element of due process of law). There may also be some advantages to allowing a defendant to waive the right to appeal the waiver: (1) brings closure to the state, defendant, and victims; (2) increases judicial economy; (3) gives the defendant power with which to bargain; and (4) reduces frivolous appeals. See, e.g., United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003) (citing United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992) (overruled on other grounds)). But we note that most of the jurisdictions upholding appeal waivers have decided the issue in the context of a pretrial plea agreement in which the defendant has pleaded guilty in exchange for a reduced sentence and not in the context of the waiver of the right to appeal after the defendant has been convicted and sentenced.

Other jurisdictions, while allowing a defendant to waive the right to appeal, have explicitly placed restrictions on the appeal waiver. See, e.g., Andis, 333 F.3d at 889. The Eighth Circuit Court of Appeals stated that it “will not enforce a waiver where to do so would result in a miscarriage of justice” and concluded that claims involving an illegal sentence, a sentence in violation of the terms of the agreement, and claims asserting ineffective assistance of counsel are not waivable. See id. at 890-91. Other courts have also included prose-cutorial misconduct among the claims that the defendant cannot waive. See, e.g., United States v. Brown, 232 F.3d 399 (4th Cir.2000); Blancas v. United States, 344 F.Supp.2d 507 (W.D.Tex.2004).

The Supreme Court of Arizona has determined, however, that inclusion of an appeal waiver in a plea or other agreement is inherently coercive and allowing the defendant to waive this right provides the defendant with little bargaining power. State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979). Essentially, the court held that the right to appeal is so vital to the protection of the defendant’s rights that it cannot be waived. See id. at 769. The court stated that the public policy of ensuring that defendants are afforded their basic rights “forbids a prosecutor from insulating himself from review by bargaining away a defendant’s appeal rights.” Id. The court further held that the right to appeal was not negotiable in plea bargaining and that a defendant, as a matter of public policy, would be allowed to bring a timely appeal from a conviction notwithstanding an agreement waiving an appeal. Id.

In People v. Harrison, the Michigan Supreme Court determined that it was “constitutionally obnoxious” to allow “the adjournment of one case with notice it would be dismissed if a defendant did not appeal a second case.” 191 N.W.2d at 374. In Michigan, where the right to appeal is included in the state constitution, the court further stated, “Such action serves to chill the exercise of a defendant’s constitutional right to appeal a criminal conviction and will not be tolerated.” Id. The court also stated, “A court is ‘without right to * * * put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered.’ ” Id. n. 2 (citing North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (overruled on other grounds)).

Due process guarantees in our state and federal constitutions include the right to a fair trial. State v. DeRosier, 695 N.W.2d 97, 106 (Minn.2005). The requirement that a defendant receives a fair trial makes the waiver of the right to appeal after being convicted at trial as a result of an agreement with the state fundamentally different from the defendant’s waiver of personal rights or waiver by default. Therefore, we conclude, based on public policy and due process considerations, that a defendant may not, after conviction at trial and sentencing, waive the right to appeal.

The right to appeal implicates not only matters personal to the defendant, but broader issues as well. Once the defendant is convicted, institutional concerns that the conviction was fair and proper become paramount. “There is no legitimate State interest in preserving an unjust conviction for the sake of the conviction alone.” State v. Ventura, 139 A.D.2d 196, 531 N.Y.S.2d 526, 532 (App.Div.1988). Although the state argues that allowing a defendant to waive his right to appeal allows the defendant to obtain a concrete benefit, such as a reduced sentence, in exchange for waiving the right to appeal, the need to have trial proceedings reviewed for error outweighs a defendant’s interest in accepting a particular benefit.

Moreover, requiring a defendant to waive his right to appeal after conviction in order to receive some benefit offered by the state is particularly coercive because the disparity in bargaining power between the defendant and the state increases significantly after the defendant has been convicted. Before trial, the defendant and the state face the same uncertainty as to what the outcome of the trial will be. A criminal defendant can therefore make a calculated decision as to what is in his best interest and may plead guilty if the plea is knowing, intelligent, and voluntary. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000). After trial, a defendant has only his right of appeal with which to bargain. Requiring the defendant to give up the right to appeal in exchange for a reduced sentence forces the defendant to choose between a guaranteed reduced sentence and a fair trial. Allowing a defendant to waive his right to appeal after conviction and trial would foster a judicial system that discourages development of the law while encouraging the preservation of unfair trials.

Further, prosecutors have a duty to “seek justice, not merely to convict.” State v. Blasus, 445 N.W.2d 535, 539 (Minn.1989) (quoting ABA Standards Relating to the Prosecution Function, Standard 1.1(c)). Offering a benefit to a defendant in return for the defendant waiving appeal rights as part of negotiating an agreement with the state runs afoul of that duty because it puts the state in a position to hide its own misconduct and errors. As some commentators have suggested, the state would be most likely to offer such benefits in return for waiver of the defendant’s right to appeal in cases in which the defendant has meritorious issues to raise on appeal. See Robert K. Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 167 (1995). We agree with the Supreme Court of Arizona that the public policy requiring prosecutors to ensure that defendants are afforded their basic rights does not allow a prosecutor to insulate his or her actions from review by making a bargain with the defendant requiring the defendant to waive all rights to appeal. Ethington, 592 P.2d at 769. Ethington involved a waiver of the right to appeal in the plea agreement context. The concerns raised there are magnified in the context of a conviction after trial.

Public policy also requires that courts take an active role in ensuring the fairness of trials. Courts have a duty to be a “check against potential abuses of prosecutorial powers.” See Ventura, 531 N.Y.S.2d at 530. Allowing the state to require a defendant to waive the right to appeal after conviction in order to obtain some benefit has the potential to frustrate that duty. Simply saying that the defendant is free to reject the state’s offer does not eliminate the problem. Once conviction occurs, a waiver of the right to appeal seals trial errors. As noted earlier, due process requires that a criminal defendant receive a fair trial. Forcing the defendant to choose between a fair trial and a “known benefit” puts the defendant in an untenable situation and erodes the fairness of criminal trials. Further, as with our concern with prosecutors having an incentive to enter into plea agreements requiring a waiver of the right to appeal, so too are we concerned that courts may have an incentive to accept an appeal waiver agreement as it would also insulate the court from reversal for its errors. See Gregory M. Dyer <& Brendan Judge, Criminal Defendants’ Waiver of the Right to Appeal— An Unacceptable Condition of a Negotiated Sentence of Plea Bargain, 65 Notre Dame L.Rev. 649, 668-69 (1990). We therefore conclude that allowing a defendant to waive his right to appeal after trial conviction and sentencing is inconsistent with the court’s role as an objective supervisor whose purpose includes maintaining the integrity of the judicial system. See In re Linehan, 557 N.W.2d 171, 191-92 (Minn.1996) (stating that the district court has an affirmative duty to protect the rights of defendants).

Our holding in State v. Misquadace supports our conclusion that broader interests impose limits on the rights that a defendant can waive. In Misquadace, we held that a defendant’s plea agreement alone is not enough to support the district court’s decision to depart from the guidelines. 644 N.W.2d at 72. Our decision was based on a 1997 amendment to Minn.Stat. § 244.09 (2004) that contained the following language: “Sentencing pursuant to the guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.” Misquadace, 644 N.W.2d at 69 (citing Act of May 6, 1997, cti. 96, § 1, 1997 Minn. Laws 694, 695). We concluded that Minn.Stat. § 244.09 removed whatever “right” the defendant may have had to be sentenced under the guidelines, but that departure from the sentencing guidelines must be based on articulated substantial and compelling circumstances to ensure rational and consistent sentencing. Misquadace, 644 N.W.2d at 70-71.

There is no integrity in allowing a defendant to waive appeal rights when he has been convicted and sentenced after a trial. The waiver of the right to appeal based on an agreement with the state after the defendant has been convicted and sentenced after a trial is of a fundamentally different nature than waiver of a defendant’s rights before trial. Given that difference and the coercive nature of agreements requiring a defendant to waive the right to appeal after being convicted at trial in order to receive a reduced sentence, we also conclude that retention of the right to appeal after a conviction is necessary both for the protection of the defendant’s rights and maintaining the fairness of the judicial process and cannot be waived. The broader interests we preserve in our holding today are to ensure uniformity, rationality, and fairness in criminal trials. Allowing a defendant to waive his right to appeal creates a system that discourages the development of the law, permits the results of unfair trials to be preserved, and may encourage prosecutors and courts to hide their errors. Accordingly, we hold that Spann’s waiver of his appeal rights under the stipulation agreement is invalid and unenforceable. Spann’s right to appeal is reinstated.

Reversed and remanded.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

ANDERSON, RUSSELL A., Justice

(dissenting).

I respectfully dissent. In my view, with certain exceptions, a waiver of appellate rights following the perfection of an appeal from a judgment of conviction, review of the transcript and records by appellate counsel and the filing of an appellate brief is valid so long as procedural protections are in place to ensure that the waiver is knowing, intelligent, and voluntary. In this case, those procedural protections were absent. Consequently, I would affirm the determination that post-trial, post-sentence appeal rights may be waived, but I would remand the matter to the district court for a more comprehensive inquiry as to the validity of Spann’s waiver of those rights.

In the context of plea bargaining, criminal defendants may waive fundamental constitutional rights, as long as they do so voluntarily and understandingly, with knowledge of the general nature and consequences of the waiver. See Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (discussing waiver of right to jury trial); Johnson v. Zerbst, 304 U.S. 458, 464-67, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (discussing waiver of right to counsel). For four decades, plea bargaining has been the predominate method of obtaining criminal convictions in the United States. Corinna Barrett Lain, Accuracy Where it Matters: Brady v. Maryland in the Plea Bargaining Context, 80 Wash. U. L.Q. 1 (2001) (stating that the plea bargaining rate in criminal cases has been around 90% since the 1960s). While most rights may be waived, there are some rights that are not waivable. See, e.g., United States v. Mezzanatto, 513 U.S. 196, 204, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (suggesting that while most protections are presumptively waivable, there may be some, such as the right to conflict-free counsel, that cannot be waived); United States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir.2003) (holding that guilty plea could not serve as waiver of claim on appeal that defendant had been imprisoned for conduct that Congress did not proscribe in the crime charged).

In that a defendant may waive constitutional rights as part of a plea agreement, it follows that a defendant may also waive statutory rights, including the right to appeal. Every circuit that has considered the issue has reached this conclusion. United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003) (“Given that the Supreme Court has allowed a defendant to waive constitutional rights, we would be hard-pressed to find a reason to prohibit a defendant from waiving a purely statutory right.”); United States v. Khattak, 273 F.3d 557, 559-63 (3d Cir.2001); United States v. Teeter, 257 F.3d 14, 21-27 (1st Cir.2001); United States v. Hernandez, 242 F.3d 110,113-14 (2d Cir.2001); United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir.2001); United States v. Nguyen, 235 F.3d 1179, 1182-84 (9th Cir.2000); United States v. Brown, 232 F.3d 399, 402-06 (4th Cir.2000); United States v. Rubio, 231 F.3d 709, 711-12 (10th Cir.2000); United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir.1999); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992).

Among the policy reasons in support of plea-agreement appeal waivers is the need for finality in the process:

The chief virtues of plea agreements are speed, economy, and finality. Waivers of appeal in plea agreements preserve the finality of judgments and sentences imposed pursuant to valid pleas of guilty. We also note that plea agreements are of value to the accused in order to gain concessions from the government.

United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992) (internal citations omitted).

The majority asserts that plea-agreement appeal waivers are fundamentally different from post-trial/post-sentence waivers, the latter implicating broader institutional concerns related to the integrity of the conviction. But the institutional concerns related to the integrity of a conviction obtained by plea agreement or by trial are equally important; and courts are required to conduct a Rule 15 inquiry to ensure that a plea is “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).” Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997); see Minn.R.Crim. P. 15.01.

I recognize that there is a trend in the circuits of instituting a greater level of scrutiny of plea-bargain appeal waivers. See, e.cj., Andis, 338 F.3d at 890-91 (excepting from appeal waivers claims of illegal sentences, breach of the plea agreement and ineffective assistance of counsel); Teeter, 257 F.3d at 25, nn. 9 & 10 (stating that appeal waivers would not preclude sentencing claims based on constitutionally impermissible factors or sentences in excess of the maximum penalty allowed by law); Brown, 232 F.3d at 405-06 (expressing concern about an inartfully drafted appeal waiver permitting appeals based on claims of ineffective assistance of counsel and prosecutorial misconduct but precluding appeals from a sentence in excess of the statutory maximum); United States v. Rosa, 123 F.3d 94, 101 (2d Cir.1997) (holding that appellate court oversight permits review of appeal waivers on a case-by-case basis).

I also understand that commentators have expressed much concern over plea-bargain appeal waivers. See, e.g., ._, Plea Bargain Waivers Reconsidered: A Legal Pragmatist’s Guide to Loss, Abandonment and Alienation, 68 Fordham L.Rev.2011, 2085-95 (2000) (proposing a new approach for analyzing plea-bargain waivers and arguing for re-evaluation of appeal waivers); Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 Tul. L.Rev. 695, 749 (2001) (calling for the retention of a process for review of “inappropriate, unethical, or illegal plea bargains”); Robert K. Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 211-15 (1995) (exploring public policy issues and arguing that appeal waivers should either be disapproved or given very restricted scope).

These concerns, however, have little application in a post-trial/post-sentence waiver of appellate rights following an appeal and submission of an appellate brief by legal counsel on a defendant’s behalf. When a bargain is made for a specific sentence within the presumptive range of a guidelines system, “the policies underlying the right to appeal have less force * * *.” Calhoun, supra 210. But those rights that go to the very center of the validity of the appeal waiver, including effective assistance of counsel and the requirement that the waiver be voluntary and intelligent, are unwaivable. Because of our holding in State v. Misquadace, 644 N.W.2d 65, 71-72 (Minn.2002), a defendant should also not be able to waive claims of sentencing error. Additionally, I would except claims based on prosecutorial misconduct from any waiver.

In the context of a post-trial/post-sentence waiver, the court should conduct an inquiry of the defendant, similar to Minn. R.Crim. P. 15.01, to ensure the validity of the waiver. See Butala v. State, 664 N.W.2d 333, 339 (Minn.2003). The inquiry for an appeal waiver agreement should involve similar questions and also include an explanation by the court as to the scope and requirements of the agreement. In that no similar inquiry was conducted in this case and Spann asserted ineffective assistance of counsel in connection with the appeal waiver, I would remand for a comprehensive inquiry by the district court.

HANSON, Justice

(dissenting).

I agree with the conclusion of Justice Russell Anderson that, with certain exceptions, post-sentence appeal rights may be waived so long as procedural protections are in place to ensure that the waiver is knowing, intelligent and voluntary. I dissent separately because I would go further. I would conclude that adequate procedural protections were in place and that Spann’s postconviction petitions do not allege sufficient facts to justify an evidentia-ry hearing on his claim that his waiver was the product of ineffective assistance of counsel or that his consecutive sentence was not authorized by law. Accordingly, I would affirm the denial of Spann’s postcon-viction petition without a hearing.

1. The district court made a sufficient inquiry of Spann to ensure that his appeal waiver was knoiving, intelligent and voluntary.

I agree that it is important for the district court to conduct an inquiry of the defendant, similar in intent to that required by Minn. R.Crim. P. 15.01, before accepting a post-trial, post-sentence appeal waiver. But that inquiry need not include all parts of rule 15.01 because the defendant has had the benefit of a full jury trial and a sentencing hearing and thus does not need to be advised of the rights he has already enjoyed at those stages of the proceeding. The defendant has heard all of the evidence, has had the opportunity to cross-examine witnesses and to testify, has heard the court’s instructions on the charge and the state’s burden of proof, and has received his sentence. Thus, the inquiry for a post-trial, post-sentence appeal waiver need not include these matters and can focus on a defendant’s right to appeal.

Here, the record of the resentencing hearing shows the following: (1) Spann’s appeal brief had already been filed and thus he was fully aware of the precise issues he could raise on appeal. (2) Spann had been advised by his counsel’s letter of July 24, 2001, about the state’s proposal. On July 30, 2001, he signed a letter to his counsel indicating:

I have decided to accept the state’s offer. In exchange for being re-sentenced at two consecutive 86 months sentences totaling 172 months, I will dismiss my appeal and agree to not challenge these convictions in any other post-conviction relief proceedings.

(3) Spann and his counsel then signed a stipulation to remand the case from the court of appeals to the district court. (4) Spann was present at the resentencing hearing where each of the above matters was described. (5) At the hearing, Spann, on the record, acknowledged that he had discussed the appeal issues and the possible outcome of the appeal with his counsel, stated his agreement to waive his rights to appeal, and, on further examination by the state, said that this is what he wanted to do. Spann does not claim that these procedural protections were insufficient to ensure that his waiver was knowing, intelligent and voluntary. In fact, Spann does not challenge the postconviction court’s finding that his waiver was knowing, intelligent and voluntary.

2. If the district court’s inquiry was in any respect deficient, Spann’s appropriate remedy was to identify that deficiency in his postconviction petition.

I agree with Justice Russell Anderson that Spann’s appeal waiver did not waive his right to later challenge or seek to withdraw his waiver so long as he could show that his waiver was not knowingly, intelligently or voluntarily made. I also agree that Spann’s appeal waiver does not preclude his claim that his counsel was ineffective respecting the waiver, so long as he can show that his counsel was ineffective in a way that prevented the waiver from being knowing, intelligent and voluntary. Thus, even if we were to conclude that the procedure followed when Spann’s waiver was accepted was insufficient to ensure that his waiver was knowing, intelligent and voluntary, we need not set aside the waiver because Spann’s remedy is to seek to withdraw his plea in a postconviction proceeding. See, e.g., State v. Coe, 290 Minn. 537, 538, 188 N.W.2d 421, 422 (1971) (stating that if the defendant can provide proof of ineffective assistance of trial counsel, he could obtain relief from his plea in a postconviction proceeding).

In this postconviction setting, Spann had the opportunity to challenge his appeal waiver by alleging facts showing that his waiver was the product of ineffective assistance of counsel or was otherwise not knowing, intelligent or voluntary. Under our postconviction law, Spann would be entitled to a hearing on that challenge only if he alleged sufficient facts which, if proven, would entitle him to relief. See, e.g., State v. Kelly, 535 N.W.2d 345, 347 (1995); Cable v. State, 169 N.W.2d 391, 394, 284 Minn. 89, 94 (1969). But Spann’s petitions contain only argumentative assertions without factual support. See, e.g., Hale v. State, 566 N.W.2d 923, 926 (1997).

The pro se petition contains only conclu-sory statements without any factual support. As to the claim of ineffective assistance of counsel, Spann does not precisely state what actions of counsel he considers to be incompetent, nor provide the expert opinion of any attorney that his counsel’s conduct fell below the accepted standard. To obtain a postconviction hearing, Spann was required to “allege facts which would affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990).

In describing his ineffective assistance of counsel claim, Spann states:

The State and Counsel Misrepresented the facts to Petitioner about his Constitutional Right to seek any Relief from the Courts if relief is available to him in any way. To State on behalf of the Federal Court’s behalf, that Petitioner is waiving all Rights to Appeal the case in this Court, or in any Post Conviction or Federal Court Proceedings, should be deemed impermissible to the highest order.

To the extent that Spann is suggesting that counsel advised him that the waiver would preclude direct appeal, that advice was, in my view, correct. To the extent that Spann is suggesting that counsel advised him that the waiver could also pre-elude postconviction review or federal ha-beas corpus, that advice may have been incorrect. But if, contrary to that advice, Spann retained the right to challenge his waiver in postconviction proceedings, Spann was not prejudiced by that advice. Advice by counsel that the consequences of a waiver would be worse than they actually are would not detract from a knowing, intelligent and voluntary waiver, but would actually reinforce it — a defendant who was willing to waive under the mistaken belief that the effect of the waiver was broader cannot legitimately complain if the true effect of the waiver is narrower.

Because Spann had the right to present his claim of ineffective assistance of counsel in this postconviction petition, the procedural protections surrounding his waiver were fully in place. And because Spann’s postconviction petition fails to present sufficient evidence to support his claim of ineffective assistance of counsel, the district court did not err in denying his petition without a hearing.

3. Spann’s postconviction petition likewise fails to present a proper challenge to his consecutive sentence.

I also agree with Justice Russell Anderson that an appeal waiver does not waive the right of a defendant to challenge an illegal sentence. Thus, Spann had the right in this postconviction petition to claim that his consecutive sentence was not authorized by law. But, Spann’s petition fails to make or support that claim.

First, Spann did not challenge his consecutive sentence in the briefs filed on his direct appeal. The only sentencing issue raised in those briefs was a challenge to the upward departures. Those departures were eliminated when Spann was resen-teneed.

Even if Spann’s failure to challenge his consecutive sentence on direct appeal did not preclude doing so by a postconviction petition, Spann’s petition fails because he did not bring it within 90 days of the sentence, as required by Minn. R.Crim. P. 28.05. The only exception to this 90-day requirement is to correct a sentence this is not authorized by law, in a proceeding pursuant to Minn. R.Crim. P. 27.03. But Spann does not claim that his consecutive sentence is not authorized by law. The Minnesota Sentencing Guidelines specifically make a consecutive sentence permissive under these circumstances. Minn. Sent. Guidelines II.F.

Accordingly, I would conclude that Spann’s petition is insufficient to meet the threshold for an evidentiary hearing. I would affirm.

      . The presumptive sentence remained at 86 months for each count because the sentences were made consecutive to each other. Minn. Sent. Guidelines IV; see also State v. Hernandez, 311 N.W.2d 478 (Minn.1981). Consecutive sentences are not an upward departure from the guidelines because consecutive sentences are permissive (may be given without departure) for “[m]ultiple current felony convictions for crimes against persons.” Minn. Sent. Guidelines II. F(2). We have interpreted this provision of the guidelines to mean that ”[c]onsecutive sentences are permissive for multiple current felony convictions of crimes against separate individuals.” O'Meara v. State, 679 N.W.2d 334, 341 (Minn.2004).

      . The case before this court arises in the context of the right of the defendant to waive his right to appeal after a conviction based on a trial. We express no opinion on whether a defendant may waive his right to appeal as a result of a plea bargain before trial or conviction. See, e.g., United States v. Maldonado, 410 F.3d 1231 (10th Cir.) (upholding a pretrial plea agreement in which the defendant waived his rights to "collaterally attack any matter in connection with this prosecution, conviction and sentence”).


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    In the Matter of the ESTATE OF Roland R. KOTOWSKI, Decedent.
    No. A05-230.
    Court of Appeals of Minnesota.
    Oct. 11, 2005.

      Marcy S. Wallace, Cox, Goudy, McNulty & Wallace, P.L.L.P., Minneapolis, MN; and Peter C. Grayson, Sanborn & Gray-son, P.A., St. Paul, MN, for appellant Mary Kotowski Becker.
    Steven R. Peloquin, Peloquin & Minge, P.A., New York Mills, MN, for respondent John A. Masog.
    Considered and decided by HUDSON, Presiding Judge; WRIGHT, Judge; and WORKE, Judge.
   OPINION

WRIGHT, Judge.

Appellant presented claims against the estate of the decedent, seeking (1) compensation for care of the decedent prior to the decedent’s death, and (2) attorney fees incurred from a successful petition to remove the personal representative of the estate. Arguing that the claims were not timely, the estate moved for summary judgment, and the district court granted the motion.

Appellant now asserts that her claim for personal services was timely, first, because she did not receive a notice to creditors, and second, because the estate’s notice of disallowance did not meet the statutory requirements for such notice. Appellant also asserts that, because her claim for attorney fees is an administrative expense of the estate, it is not subject to the time limits for claims arising after the death of the decedent. Alternatively, appellant contends that, if the claims were untimely, the district court abused its discretion by declining to find good cause to permit the claims. We affirm in part and reverse in part.

FACTS

This case involves two claims that appellant Mary Becker presented to the estate of her father, Roland Kotowski. After the estate rejected the claims, Becker filed them in district court on March 17, 2004. The estate moved for summary judgment, arguing that the claims were untimely. The record with respect to each of the claims is as follows.

The first claim arises out of care Becker provided to Kotowski prior to his death on December 11, 2000. After Kotowski’s death, the district court issued an order dated April 16, 2001, that included a notice to creditors of the estate. An affidavit, executed and filed that same day, indicates that a copy of the order was mailed to Becker at Post Office Box 62 in Park Rapids.

Becker presented a claim against the estate on September 30, 2001, seeking compensation in the amount of $441,240 for the care that she provided Kotowski prior to his death. In the written statement of this claim, Becker supplied Post Office Box 62 for her address. On October 16, 2001, the personal representative, Jerome Fuller, issued a notice of disallowance by a letter from his counsel. The text of the letter states:

I have received your Written Statement of Claim....
I would direct your attention to Minnesota Statutes 524.3-803 with respect to limitations on the presentation of claims. The statute specifically states that claims against the estate are barred unless the creditor within four months after the date of the Court Administrator’s Notice to Creditors as published files a claim against the decedent’s estate.
The Notice ... was executed on April 16, 2001 and published April 21_Ac-
cordingly, the last day to file a claim in the estate would have been four months from the first publication, or August 21, 2001.
Because Ms. Kotowski Becker’s claim falls outside the notice provisions, it is denied.
In speaking with the personal representative ... the claim would also be denied on factual bases, not just the failure to timely file.

An affidavit indicates that a copy of this letter was mailed the next day to Becker at Post Office Box 62. Becker did not take further action until she presented a substantially identical claim to the estate on October 10, 2003. Becker filed this claim in the district court on March 17, 2004.

In opposing summary judgment on her claim for personal services to Kotowski, Becker consistently asserted that she did not receive the April 16 order and notice to creditors. Becker also contested the adequacy of the October 16 notice of disallowance.

The district court entered summary judgment for the estate. In its accompanying memorandum, the district court did not address whether Becker received the April 16 order giving notice to creditors. Instead, it concluded that the October 16 letter was a valid notice of disallowance and that Becker did not timely petition the district court to contest the disallowance.

Becker’s other claim arose out of her successful action to remove the personal representative for the estate. Fuller was appointed personal representative on March 22, 2001. Based on Becker’s allegations that Fuller had breached his fiduciary duty to the estate, the district court ordered Fuller removed as the personal representative on August 19, 2002.

On October 10, 2003, Becker presented a claim against the estate, seeking attorney fees of $23,500 incurred pursuing the removal of Fuller. When no action was taken on the claim, Becker petitioned the district court on March 17, 2004, for allowance of the claim, alleging that the estate “indicated an intent to deny the claim[ ].” The estate did not issue a notice of disal-lowance for this claim. The district court also granted summary judgment in favor of the estate, holding that the claim for attorney fees was untimely. This appeal followed.

ISSUES

I. Was Becker’s claim for personal services arising prior to the death of the decedent timely presented?
II. Was the notice of disallowance of the claim for personal services adequate?
III. Was Becker’s claim for attorney fees timely presented?
IV. Did the district court abuse its discretion when it denied the filing of an untimely claim for attorney fees?

ANALYSIS

Becker challenges the decision of the district court to grant summary judgment in favor of the estate, thereby disallowing her claims. Whether summary judgment was properly granted is a question of law, which we review de novo. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). In doing so, we consider whether any genuine issues of material fact exist and whether the district court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

Becker asserts that due process requires the district court to accept as timely her claim for personal services to Kotow-ski arising prior to his death because she did not receive the April 16 order giving notice to creditors. Our analysis of this issue is governed by relevant sections from Minnesota’s version of the Uniform Probate Code (UPC). We interpret its provisions liberally, in a manner that clarifies the resolution of estates and promotes their speedy distribution. Minn.Stat. § 524.1-102 (2004). Because uniform laws are intended to encourage common interpretation among jurisdictions, caselaw from other UPC jurisdictions has substantial persuasive value here. Minn.Stat. § 645.22 (2004); Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002).

When a claim arises prior to the death of the decedent, the period for presentation of the claim is governed by Minn.Stat. § 524.3-803(a) (2004), which provides in relevant part:

(a) All claims ... against a decedent’s estate which arose before the death of the decedent ... are barred against the estate ... unless presented as follows:
(2) in the case of a creditor who was served with notice under section 524.3-801, paragraph (c), within the later to expire of four months after the date of the first publication of notice to creditors or one month after the service;
(3) within ... one year after the decedent’s death ... whether or not notice to creditors has been published or served under section 524.3-801....

The calculation of the applicable time frame for presenting a claim depends on whether Becker was served with the notice to creditors. If there was proper and effective service of the notice, under clause (2), Becker would be required to present her claim within four months after publication of the notice to creditors. Minn.Stat. § 524.3-803(a)(2). Because the notice was published on April 21, 2001, the deadline for presentation of the claim under Minn. Stat. § 524.3-803(a)(2) would fall on August 21, 2001, for those who were properly-served. Under such circumstances, presentation of the claim on September 30, 2001, would be untimely, and the claim would be barred. See In re Estate of Kuckenbecker, 383 N.W.2d 11, 12-13 (Minn.App.1986) (holding that claim is barred when not filed within statutory period). If service of the notice were not properly effected, under clause (3), Becker would be required to present her claim within one year after the decedent’s death. Minn.Stat. § 524.3-803(a)(3). Because Kotowski died on December 11, 2000, a claim presented on September 30, 2001, would be timely. See Russo v. Sunrise Healthcare Corp. (In re Estate of Russo), 994 P.2d 491, 495 (Colo.Ct.App.1999) (under Colorado version of UPC § 3-803 substantially identical with Minn.Stat. § 524.3-803, holding that failed notice activated residuary deadline); see also Nat’l Bank of Commerce Trust & Sav. Assn. v. Otto (In re Estate of Emery), 258 Neb.789, 606 N.W.2d 750, 755-56 (2000) (reaching similar conclusion under Nebraska variant of UPC § 3-803); In re Estate of Anderson, 821 P.2d 1169, 1172 (Utah 1991) (reaching similar conclusion under Utah variant of UPC § 3-803).

Thus, we must determine whether the mailing of the April 16 order constitutes effective service. A personal representative may accomplish service “either by delivery of a copy of the required notice to the creditor, or by mailing a copy of the notice to the creditor by certified, registered, or ordinary first class mail[.]” Minn.Stat. § 524.3-801(c) (2004). The Minnesota Supreme Court recently recited the law governing service by mail in Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813 (Minn.2004). The case involved a statute that required a lien to be “served personally or by certified mail on the owner.” Id. at 815-16. The court stated that, when a statute provides for service by regular mail, service is not effective unless the mailing is actually received; but when a statute expressly indicates service by certified or registered mail, service is effective on mailing. Id. at 818 (citing 66 C.J.S. Notice § 30(a) (1998)). Other Minnesota caselaw addressing service by regular mail supports the proposition that such service is not effective unless there is actual receipt. Cf. Roehrdanz v. Brill, 682 N.W.2d 626, 632 (Minn.2004) (holding that when rule directed service “by first class mail” and district court found actual receipt, service was effective); State v. Pierce, 257 Minn. 114, 115-16, 100 N.W.2d 137, 138 (1959) (“[W]e have long held that, where service is made by mail and actually reaches the party to be served within the required time, it is equivalent to personal service.”). An affidavit of mailing will raise a presumption of receipt but may be overcome by reasonable evidence demonstrating no actual receipt. Thomas v. Fey, 405 N.W.2d 450, 454 (Minn.App.1987); City of Chisago City v. Poulter, 342 N.W.2d 167,169 (Minn.App.1984).

Here, the estate offers an affidavit to establish that the notice to creditors was sent to Becker by regular mail. In two affidavits, Becker denies actual receipt of the notice to creditors. On review of summary judgment, we are required to view the evidence in the light most favorable to the nonmoving party, in this case Becker. Neither the estate nor Becker contends that a genuine issue of material fact exists as to whether Becker received the notice. Thus, assuming that Becker did not receive the notice to creditors despite its deposit in the mail, service of the notice was ineffective. As such, Becker timely presented her claim within one year after the decedent’s death. See Minn.Stat. § 524.3-803(a). Summary judgment, therefore, is not justified on this basis.

The estate counters that, because Becker was participating in proceedings against the estate prior to April 16, she had actual notice of the notice to creditors. Knowledge of an estate, or of a proceeding in probate, does not supply notice to creditors under the UPC. Armstrong v. Armstrong, 130 F.R.D. 449, 453 (D.Colo.1990); Natl Bank of Commerce, 606 N.W.2d at 756. Nor will participation in a proceeding necessarily establish this notice as a matter of law. See Schwartz v. First Tr. Co. of St. Paul, 236 Minn. 165, 171, 52 N.W.2d 290, 295 (1952) (holding that when heirs to estate participated in receivership proceeding, delivery of district court order by mail did not by itself establish actual notice). The estate essentially proposes a form of inquiry notice for some creditors who are entitled to more than notice by publication under section 524.3-803(a)(l). We reject such a rule because it would undermine the certainty and efficiency of notice under the UPC. See MinmStat. § 524.3-801 (2004). Based on the foregoing reasoning, Becker’s claim for personal services arising before the death of Kotow-ski was not time-barred.

II.

Becker next challenges the conclusion of the district court that she did not timely file a petition contesting the notice of disallowance. Because the notice of dis-allowance did not warn of the time frame in which she could contest the disallowance, Becker argues that the notice is defective and that she may proceed with an untimely petition for allowance of a disallowed claim.

Section 524.3-806 governs disallowance of a claim and provides in relevant part:

[T]he personal representative may mail a notice to any claimant stating that the claim has been disallowed.... Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than two months after the mailing of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on the claim ... has the effect of a notice of allowance....

Minn.Stat. § 524.3-806(a) (2004). When a notice of disallowance is untimely, or when it fails to clearly and unequivocally indicate disallowance, the notice is ineffective and the claim against the estate is allowed. Peterson v. Marston, 362 N.W.2d 309, 314 (Minn.1985); Law Office of William F. Brattain II v. Anderson (In re Estate of Evans), 901 P.2d 1138, 1141-42 (Alaska 1995).

Few reported cases have considered the effect of failing to disclose the “impending bar” for a petition contesting a disallowed claim. In Wishbone, Inc. v. Eppinger, the Colorado Court of Appeals construed language identical with Minn.Stat. § 524.3-806(a) and stated:

[T]he mandatory warning invokes the 60-day time bar only, and failure to give such notice affects only that time bar. Since it cannot be said here that the failure to warn of the 60-day time bar defeated the substance or intended effect of the notice of disallowance, failure of [the estate] to comply strictly with this notice requirement only relieves [claimants] of the requirement to file their claim seeking allowance within 60 days.

829 P.2d 434, 437 (Colo.CtApp.1991) (citation omitted), overruled on other grounds by Hall v. Hartley (In re Estate of Hall), 948 P.2d 539 (Colo.1997). Considering a provision adapted from UPC § 3-806, the Massachusetts Supreme Court reached a similar conclusion in Telesetsky v. Wight and held:

The fact that the administrators gave a defective notice of disallowance does not necessarily lead to the result ... [that the] claim is automatically allowed. A procedural misstep which has caused no prejudice to the [claimant] should not be the basis of automatic allowance of the ... claim without regard to its merit. It suffices to put the [claimant] in the same position [the claimant] would have been in had the administrators given the required notice[.]

395 Mass. 868, 482 N.E.2d 818, 823 (1985) (citations omitted).

Here, the parties do not contest that the October 16 letter supplies clear and unequivocal notice that the claim was disallowed. The only defect in the notice is the failure to “warn[ ] the claimant of the impending bar.” Because Becker was not informed of the time period in which she could file a petition contesting the disal-lowance, the proper remedy as a matter of law is to exempt Becker from this time period and to permit her to proceed on the late petition. See Telesetsky, 482 N.E.2d at 823; Wishbone, Inc., 829 P.2d at 437. Accordingly, we reverse the district court’s summary judgment in favor of the estate on the claim for personal services to Ko-towski and remand for consideration of the claim on the merits.

III.

Becker next disputes the determination of the district court that her claim for attorney fees was untimely. Because she incurred attorney fees in her successful petition to remove Fuller as personal representative, Becker characterizes her claim as an “expense of administration” that may be presented any time prior to the closing of the estate.

When a claim arises after the death of the decedent, Minn.Stat. § 524.3-803 (2004) governs the period for presentation of the claim. Section 524.3-803 provides in relevant part:

(b) All claims against a decedent’s estate which arise at or after the death of the decedent ... are barred against the estate ... unless presented....
(2) ... within four months after it arises.
(c) Nothing in this section affects or prevents: ...
(4) the presentment and payment at any time before [formal termination of the administration of the estate] of:
(i) any claim arising after the death of the decedent that is referred to in section 524.3-715, clause (18), although the same may be otherwise barred hereunder[.]

Minn.Stat. § 524.3-803. The exception to the four-month time frame for claims arising at or after the decedent’s death referred to in section 524.3-803(c)(4)(i) provides:

[A] personal representative, acting reasonably for the benefit of the interested persons, may properly: ...
(18) pay ... without the presentation of a claim, the reasonable and necessary last illness expenses of the decedent[,] ... reasonable funeral expenses, debts and taxes with preference under federal or state law, and other taxes, assessments, compensation of the personal representative and the personal representative’s attorney, and all other costs and expenses of administration although the same may be barred under section 524.3-803[J

Minn.Stat. § 524.3-715(18) (2004). Taken together, these provisions exempt from the timing requirements of Minn.Stat. § 524.3-803(b) claims by a personal representative for expenses arising from administration of the estate.

Minnesota caselaw has not expressly considered what constitutes “expenses of administration” under MinmStat. § 524.3-715(18). But we observe that, under the statutory scheme of the UPC, this provision relates exclusively to the powers of the personal representative. When other jurisdictions apply their versions of UPC § 3-715, the cases consistently involve claims by, or in the place of, the personal representative against the estate. See, e.g., In re Estate of Footer, 749 A.2d 146, 149-50 (Me.2000) (claim by personal representative for payments on mobile home); In re Estate of Grillo, 393 So.2d 578, 579-80 (Fla.Dist.Ct.App.1981) (claim by personal representative for costs in defense of wrongful-death action); see also Kerrigan & Line v. Foote, 5 Neb.App. 397, 558 N.W.2d 837, 840 (1997) (holding that attorney who had performed services for personal representative was not bound by timing requirements under Nebraska variant of UPC § 3-803), aff'd sub nom. Kerrigan & Line v. Lange, (In re Estate of Wagner), 253 Neb.498, 571 N.W.2d 76 (1997).

We infer further constraints on the scope of Minn.Stat. § 524.3-715(18) from our decision in Cleys v. Cleys, 363 N.W.2d 65 (Minn.App.1985). In Cleys, we concluded that, when a beneficiary failed to submit a timely claim against the estate for funeral expenses under section 524.3-803(b), the claim was barred. Id. at 72. Even though funeral expenses are included under section 524.3-715(18), we evaluated the timeliness of the beneficiary’s claim under section 524.3 — 803(b). Id.

Similar reasoning guides our analysis here. The enumeration of a particular type of claim in section 524.3-715(18) does not indicate that any person may advance that type of claim under this provision. See id. (evaluating timeliness of claim for funeral expenses, by person other than personal representative, under section 524.3 — 803(b)). Rather, consistent with other jurisdictions’ application of UPC § 3-715(18), we hold that “expenses of administration” under section 524.3-715(18) are limited to claims by or in the place of the personal representative. Because Becker was not acting in this capacity in her petition to remove the personal representative, her attorney fees cannot be characterized as expenses of administration.

The parties do not dispute that Becker’s claim for attorney fees arose upon the removal of Fuller as personal representative, which was no later than August 19, 2002. Becker did not present a claim against the estate for these fees until October 10, 2003, well beyond the four-month time period required under Minn.Stat. § 524.3-803(b). The district court correctly concluded that Becker’s claim for attorney fees was time-barred. Summary judgment in favor of the estate on this claim, therefore, was properly entered.

IY.

Becker last asserts that the district court abused its discretion by failing to permit, for good cause, the untimely filing of her claims. As to such late claims, Minn.Stat. § 524.3 — 803(c)(4)(ii) allows the district court to revive them “upon petition of ... the claimant for cause shown on notice and hearing as the court may direct.” The district court’s denial of such a petition will not be disturbed on appeal absent an abuse of discretion. In re Estate of Hoppke, 388 N.W.2d 754, 755 (Minn.App.1986).

A petition for a late claim may be granted in cases of “hardship, misunderstanding, and diligent but mistaken procedures” but not in cases of “unexplained and inexcusable lack of diligence.” In re Estate of Thompson, 484 N.W.2d 258, 261-62 (Minn.App.1992) (citing In re Estate of Kucera, 290 Minn. 501, 503-04, 186 N.W.2d 538, 540 (1971)). It is not an abuse of discretion for the district court to reject a petition when the petitioner does not present a significant reason for the delay. In re Estate of Henry, 426 N.W.2d 451, 459 (Minn.App.1988).

Because we have previously concluded that Becker may proceed with her claim for personal services, we consider only her untimely claim for attorney fees. Becker generally asserts that mismanagement by the estate caused her claim to be untimely. But neither this reason nor the record demonstrates why Becker was misled or mistaken regarding the period in which she could assert her claim for attorney fees. Thus, the district court did not abuse its discretion by denying Becker’s petition for allowance of her claim for attorney fees on the ground that it was time-barred.

DECISION

Assuming here, for purposes of summary judgment, that Becker did not actually receive the notice to creditors, we conclude that service of the notice is ineffective. Thus, Becker had one year from the death of the decedent to submit claims arising prior to the decedent’s death. Because her claim for personal services was submitted during this period, it is timely. The notice of disallowance for this claim failed to disclose the time period during which Becker could contest the disallowance. Therefore, Becker is exempt from this time period and may proceed with her otherwise untimely petition contesting dis-allowance. The district court erred by entering summary judgment in favor of the estate, disallowing Becker’s claim for personal services as time-barred. We, therefore, reverse as to this claim.

The attorney fees incurred by Becker in her successful petition to remove the personal representative are not expenses of administration. Thus, the time period in which Becker could submit her claim for attorney fees, which arose after the death of the decedent, was within four months after the attorney fees arose. Because Becker submitted her claim after this period, her claim for attorney fees is untimely. The district court did not abuse its discretion by denying Becker’s petition to permit the late submission of this claim. Summary judgment in favor of the estate on Becker’s claim for attorney fees was properly granted, and we affirm as to this claim.

Affirmed in part and reversed in part.

      . The other jurisdictions that have adopted the UPC are Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, Michigan, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pennsylvania, South Carolina, South Dakota, Utah, and Wisconsin.

      . The Wishbone court also held that, when a notice of disallowance was inadequate, the claimant was required to contest the notice of disallowance within the time frame for the original submission of a claim. 829 P.2d at 436-37. Determining that this rule improperly conflated the procedures for notice to creditors and notice of disallowance, the Colorado Supreme Court overruled the Wishbone court in Hall, 948 P.2d at 542-43.

      . Because Becker's claim was for personal services to Kotowski, the district court further determined, in its order for summary judgment, that Becker had not properly filed a petition with the district court under Minn. Stat. § 524.3-806 (2004). Section 524.3-806(a) provides that “[a]ny claim in excess of $3,000 for personal services rendered by an individual to the decedent ... may be allowed only in compliance with subsection (b).” Minn.Stat. § 524.3-806(a). Section 524.3-806(b) then requires a hearing "[ujpon the petition of the personal representative or of a claimant” in which the right to the claim is contested. Minn.Stat. § 524.3-806(b). Neither of these provisions establishes a time frame for filing such a petition or a sanction for its late filing. The absence of a petition for such a hearing, therefore, does not compel summary judgment against Becker's claim as a matter of law. But to perfect her claim, Becker will be required to petition for such a hearing before the district court.

      . In support of her argument that her attorney fees are expenses of administration, Becker advances cases from non-UPC jurisdictions with different rules on attorney fees. See In re Estate of Knott, 245 Ill.App.3d 736, 185 Ill.Dec. 798, 615 N.E.2d 357, 359-60 (1993) (construing expenses of administration to include attorney fees and other expenses incident to a third party’s actions to preserve estate property); In re Estate of Goldman, 813 N.E.2d 784, 788 (Ind.Ct.App.2004) (holding that claimant who successfully contested will was entitled to attorney fees). These authorities do not inform our analysis of the UPC here.

      . Because we conclude that her claim for attorney fees is untimely, we need not reach the issue of whether Becker advanced a proper basis for recovery of attorney fees from the estate.


author: GORDON W. SHUMAKER, Judge.

text:
    John Patrick BURCK, et al., Appellants, v. Benjamin Paul PEDERSON, et al., Respondents, Edna Pernella Peterson, Respondent.
    No. A04-2230.
    Court of Appeals of Minnesota.
    Oct. 11, 2005.

      Michael A. Zimmer, Kafi C. Linville, Tewksbury, Kerfeld, Zimmer, Minneapolis, MN, for appellants.
    Douglas D. McGhee, Arthur Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for respondents Pederson.
    Diane B. Bratvold, Jan M. Gunderson, Rider Bennett, LLP, Minneapolis, MN, for respondent Peterson.
    Considered and decided by KALITOWSKI, Presiding Judge; SHUMAKER, Judge; and FORSBERG, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant John Patrick Burck alleges that he was injured through contact with his own seatbelt in a motor-vehicle accident involving cars driven by respondents Benjamin Pederson and Edna Peterson. The district court granted respondents’ motion in limine to preclude the introduction of evidence relating to appellant’s use of his seatbelt under Minn.Stat. § 169.685, subd.4(a) (2004), the “seatbelt gag rule.” Because the court’s ruling was legally dis-positive of the case, the court ordered summary judgment in favor of respondents. Contending that the district court’s interpretation of Minn.Stat. § 169.685, subd. 4(a), was in error and produced an absurd result, appellants challenge the summary judgment on appeal. We affirm.

FACTS

Appellant John Patrick Burck and respondents Benjamin Pederson and Edna Peterson were driving separate cars. Peterson was in the lane adjacent to Burck, and Pederson was directly behind Burck. Peterson moved her car into Burek’s lane in such a manner as to cause Burck to apply his brakes hard to avoid colliding with her. Pederson struck Burck from behind.

Burck was wearing a seatbelt. The impact of the collision caused his seat to break and collapse backward. He sustained various injuries that were treated after the accident.

About five months later, Burck began to experience abdominal pain. Ultimately, his surgeon diagnosed the problem as an abdominal hematoma, which the surgeon removed. The surgeon’s opinion was that the hematoma was caused by contact with the seatbelt in the accident with the respondents. Burck sued the respondents.

The respondents moved in limine to preclude evidence of Burck’s use of his seat-belt in the accident. Burck acknowledged that, without the surgeon’s opinion as to the cause of the hematoma, he would have no evidence that the accident caused his abdominal injury and that, “in essence, the issue was dispositive.”

The district court granted the respondents’ motion, treated the matter as a summary-judgment proceeding, and ordered entry of summary judgment dismissing the case. The appellants challenge that dismissal on appeal.

ISSUE

Appellant motor-vehicle driver was wearing his seatbelt during a multiple vehicle collision. His physician would testify that contact with the seatbelt in the collision caused injury to appellant’s abdomen. Minn.Stat. § 169.685, subd. 4(a) (2004), prohibits the introduction into evidence of the fact of the use or nonuse of a seatbelt in a motor-vehicle accident.

Did the district court err by ruling that appellant is prohibited from presenting at trial his physician’s opinion as to the cause of his abdominal injury?

ANALYSIS

Minn.Stat. § 169.685, subd. 4(a) (2004), provides that “proof of the use or failure to use seat belts ... shall not be admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of any motor vehicle.”

In this personal-injury action arising from a motor-vehicle accident in which appellant John Patrick Burck alleges that he was injured through forceful contact with his seatbelt, the district court applied Minn.Stat. § 169.685, subd. 4(a), the so-called “seatbelt gag rule,” so as to preclude Burck from introducing at trial evidence that his seatbelt caused one of his injuries.

With the parties’ agreement, the district court treated this matter as a summary-judgment motion. On appeal from summary judgment, the interpretation of a statute is a question of law that we review de novo. Marsden v. Crawford, 589 N.W.2d 804, 806 (Minn.App.1999), review denied (Minn. May 18, 1999). When interpreting a statute, our function is to ascertain and effectuate the legislature’s intention. Minn.Stat. § 645.16 (2004). “If a statute is free from ambiguity, we will examine only the plain language.” Marsden, 589 N.W.2d at 806. However, when the statute’s literal meaning leads to an absurd result that utterly departs from the legislature’s purpose, we may look beyond the language and examine other indicia of legislative intent. Anker v. Little, 541 N.W.2d 333, 336 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). But, if the “statute’s unambiguous language merely produces a troubling result, we must apply it without reference to its drafting history.” Id.

The appellants contend that the district court’s application of the statute violated the legislature’s intent and produced an unreasonable, absurd result. They argue that the seatbelt gag rule was created (1) to avoid the harsh result of contributory negligence as an absolute bar to recovery; (2) to shield automobile manufacturers from lawsuits; , (3) to protect plaintiffs from comparative-negligence claims based on their failure to use seatbelts; and (4) to remove the issue of a plaintiffs failure to use a seatbelt from the jury.

The appellants cite Olson v. Ford Motor Co., 558 N.W.2d 491 (Minn.1997), for the second and third propositions noted above. In Olson, the appellant argued that the truck he was driving was not “crashwor-thy” because of its defective seatbelt restraint system. Id. at 493. He argued that the seatbelt gag rule was not intended to apply to a crashworthiness issue and that to hold that it was so intended would result in an absurdity. Id. at 493-94. The supreme court rejected both contentions. Id. at 497. The court noted that the seat-belt gag rule was written expressly to bar proof of the use or nonuse of a seatbelt in any litigation arising out of the use or operation of a motor vehicle. Id. at 494. Nothing in the plain language of the law allowed the court to read into the statute an exception for a crashworthiness issue. So, the court held: “Absent some other justification allowing us to consider legislative intent, we need look no further than the express language of the staUite.” Id. at 494 (emphasis added).

As to the “absurdity” argument, the supreme court noted that “it simply is not clear that the legislature intended to benefit motorists alone in enacting the seat belt gag rule ...” and reiterated that the express, plain language of the statute bars seatbelt evidence. Id. at 495-96.

The appellants cite Lind v. Slowinski 450 N.W.2d 353 (Minn.App.1990), review denied (Minn. Feb. 21, 1990), in support of their fourth contention. In that case, a motor-vehicle passenger was sitting on another passenger’s lap and was injured when the car hit a parked car. Id. at 358. The district court barred an expert witness from testifying that the injured passenger’s injuries were caused or exacerbated by her seating position. The district court held that there was no foundation for that opinion and that the statement of the opinion would result in the disclosure that the injured passenger was not wearing a seat-belt, evidence prohibited by the seatbelt gag rule. Id. In affirming, this court, without analysis, stated: “The specific intent of the legislature was to remove from jury consideration the use or nonuse of seat belts.” Id. at 359. Because the district court here effectuated the legislative intent suggested in Lind, we fail to see how that case supports the appellants’ argument.

Appellants cite only two authorities in support of their argument that the district court misinterpreted and misapplied the seatbelt gag rule. Neither case persuades us that the legislative intent of the statute is to do anything other than what the plain language states, namely, to prohibit evidence of seatbelt use or nonuse in motor-vehicle-accident litigation.

Although it might be argued that the law unfairly prevents a person allegedly injured by a seatbelt from proving the cause of the injury, the result is not absurd if the legislature purposely created the restriction on that proof. It is indisputable that the legislature has the power to create and to limit rights. Limitations can sometimes be criticized as being unfair. The appellants have plausibly shown that the seatbelt gag rule can be unfair when applied in certain circumstances. But they have failed to show that the restriction was not within the purpose of the law.

The conclusion that the legislature intended precisely what the plain language of the statute provides is fortified by the fact that the legislature amended the statute in 1999 to include a products-liability exception but did not in any way alter the prohibition on proof of the use or nonuse of a seatbelt in ordinary motor-vehicle personal-injury litigation. See 1999 Minn. Laws ch. 106, § 1, at 378. The appellants’ cited authorities, Lind and Olson, had been decided before the 1999 amendment, and presumably the legislature was aware of the issue regarding the legislative intent of the prohibition when it amended the statute.

In addition to Lind and Olson, Minnesota courts have consistently applied the plain language of the seatbelt gag rule in motor-vehicle personal-injury litigation against both plaintiffs and defendants. See Anker, 541 N.W.2d at 340 (holding that evidence of seatbelt-restraint-system failure is not admissible against vehicle manufacturers); Swelbar v. Lahti 473 N.W.2d 77, 79 (Minn.App.1991) (holding that evidence of use of child-restraint system not admissible as defense against wrongful-death claim); and Marsden, 589 N.W.2d at 807 (holding that seatbelt evidence is not admissible in breach-of-contract claim). In Anker and Marsden, we suggested that the application of the plain language of the statute produced a troubling result, but we found no basis for concluding that the result was unintended or was absurd.

DECISION

Because the appellants’ evidence of the use of a seatbelt as causing injury falls squarely within the plain meaning of Minn. Stat. § 169.685, subd. 4(a) (2004), the district court did not err in applying the statute so as to preclude the introduction of such evidence at trial. Nor did the court err in treating the evidentiary issue as dispositive and granting summary judgment dismissing the action.

Affirmed.