author: VOGEL, J.

text:
    STATE of Iowa, Appellee, v. Steven Melvin COOLEY, Appellant.
    No. 03-2084.
    Court of Appeals of Iowa.
    Sept. 9, 2004.

      Philip Mears, Iowa City, for appellant.
    Steven Cooley, Fort Madison, appellant pro se.

      Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Charles A. Stream, County Attorney, for appellee.
    Considered by SACKETT, C. J., and VOGEL and ZIMMER, JJ.
   VOGEL, J.

Steven Melvin Cooley appeals the district court order correcting the judgment and sentence against him for the crime of forgery. Finding a defect in sentencing procedure, we vacate the sentence of the district court order and remand with instructions.

I. Background Facts and Proceedings

On March 15, 2002, the Mahaska County Attorney filed a trial information charging Cooley with a single count of forgery. It was further alleged that Cooley was a habitual offender under Iowa Code section 902.8 (2001). On May 30, 2002, a jury found Cooley guilty of forgery, a class “D” felony. In a July 26, 2002 judgment entry the district court concluded that Cooley was “convicted of the crime of Forgery, a class “D” felony, in violation of Iowa Code section 715A.2 and as a Habitual Offender pursuant to Iowa Code section. 902.8.” The district court then sentenced Cooley to a term of incarceration not to exceed fifteen years. This sentence was to be served consecutively with sentences Cooley was then serving. Cooley appealed this conviction and sentence on August 1, 2002.

In that appeal Cooley asserted that the district court, in judging him a habitual offender, improperly considered a 1978 conviction where he had represented himself and pled guilty without a knowing and voluntary waiver of his right to counsel. Cooley then argued that consideration of this 1978 conviction resulted in the improper enhancement of his 2002 sentence. In a September 24, 2003 opinion, State v. Cooley, No. 02-1201, 2003 WL 22187576 (Iowa Ct.App. Sept. 24, 2003). (Cooley I), this Court affirmed Cooley’s conviction but reversed the district court’s judgment and remanded for entry of judgment without consideration of Cooley’s 1978 conviction. The basis for this reversal and remand was the Iowa Supreme Court’s decision in State v. Tovar, 656 N.W.2d 112, 121 (Iowa 2003), which has subsequently been reversed by the United States Supreme Court in Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).

On December 11, 2003, the Iowa District Court of Mahaska County entered an order correcting its July 26, 2002, judgment entry by amending the order as follows:

The defendant is convicted of the crime of Forgery, a class “D” felony, in violation of Iowa Code Section 715A.2
The defendant is committed to the custody of the Director, Iowa Department of Corrections for a prison term not exceeding five years, and the defendant has not earned credit for days already spent in custody on this charge.
The corrections effected above are deemed effective as of the date of the original Judgment Entry.
All other provisions of the original Judgment Entry which are not changed by this order and which are not inconsistent with this order, remain in effect.

Thus, the district court on remand entered judgment finding Cooley guilty of the offense of forgery, but not as a habitual offender and correspondingly sentenced him solely on the class “D” felony. However, because all other provisions of the original July 26, 2003 judgment entry remained in effect, Cooley’s new sentence continued to run consecutively with other sentences. No hearing was held and Cooley was not otherwise afforded the opportunity to personally address the district court prior to the entry of this December 11, 2003 sentence. Cooley appeals.

II. Scope of Review

We review sentencing challenges for errors at law. Iowa R.App. P. 6.4; State v. Liddell, 672 N.W.2d 805, 815 (2003). “A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure.” Liddell, 672 N.W.2d at 815.

A. Allocution

Cooley contends that because he was not present when he was sentenced on the class “D” felony, the district court’s December 11, 2003 order should be vacated and the matter returned to the district court for a sentencing hearing. The State counters by arguing that Cooley’s presence was not required at the time of the district court’s December 11, 2003 sentencing order because the district court did not resentence Cooley, but instead only entered an order correcting the original judgment and sentence.

Prior to the rendition of judgment, Iowa Rule of Criminal Procedure 2.23(3)(d) directs that “counsel for the defendant, and the defendant personally, shall be allowed to address the court where either wishes to make a statement in mitigation of punishment.” State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). In keeping with the United States Supreme Court’s interpretation of a similar federal rule, our Iowa Supreme Court requires a record establishing that the court has invited or afforded an opportunity for the defendant to speak regarding punishment. See State v. Craig, 562 N.W.2d 633, 637 (Iowa 1997) (citing Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670, 673 (1961)) (citations omitted).

However, this requirement is not universally applied to all sentencing proceedings. As previously noted, Iowa Rule of Criminal Procedure 2.23(3)(d) mandates a defendant’s personal presence at sentencing so that the defendant has an opportunity to address the court in mitigation of punishment. See Lumadue, 622 N.W.2d at 304. Significantly, Iowa Rule of Criminal Procedure 2.27, which also provides that a defendant shall be present at imposition of sentence, further provides an exception to this requirement, stating that, “[a] defendant’s presence is not required at a reduction of sentence under rule 2.24.”

The Iowa Supreme Court expanded this exception in State v. Austin, by determining that a defendant’s presence is not required under Iowa Rule of Criminal Procedure 2.27 for a “correction of sentence” where the dispositions will not be significantly aided by the defendant’s presence. See State v. Austin, 585 N.W.2d 241, 245 (Iowa 1998); accord, State v. Foster, 318 N.W.2d 176, 179 (Iowa 1982). However, our Iowa Supreme Court has also held that a defendant must be present at proceedings “correcting” a void sentence when imposing a new and different sentence. See State v. Johnson, 222 N.W.2d 453, 458 (Iowa 1974) (holding that where an original felony related judgment is void a defendant must be present upon imposition of new and different sentence). Therefore, we recognize that under the Iowa Rules of Criminal Procedure,' a distinction exists between proceedings in the district court that modify an existing sentence and those that impose a new sentence after the original has been vacated or otherwise set aside. A defendant’s presence is not required in the former instance, but is in the latter. See United States v. Moree, 928 F.2d 654, 655-56 (5th Cir.1991).

Moreover, federal courts interpreting similar Federal Rules of Criminal Procedure have also recognized this distinction in determining that a defendant need not be present for a correction of a sentence so long as the entire sentencing package has not been set aside or vacated and the modification of sentence does not make the sentence more onerous. See United States v. Jackson, 923 F.2d 1494, 1497 (11th Cir.1991) (holding that “where the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as the modification does not make the sentence more onerous”); Rust v. United States, 725 F.2d 1153, 1154 (8th Cir.1984) (determining that the district court did not err by issuing a written order in absentia correcting an illegal sentence by vacating part of a sentence because the correction did not constitute a resentencing requiring the defendant’s presence) cf. United States v. Taylor, 11 F.3d 149, 152 (11th Cir.1994) (resentencing following a:complete vacation of original sentence “constituted imposition of sentence ... and not merely a sentence reduction under Rule 35 [counterpart to Iowa Rule of Criminal Procedure 2.24]”).

We therefore hold that under the Iowa Rules of Criminal Procedure, a defendant’s presence is not required where a district court is correcting an existing sentence, so long as the disposition would not be aided by the defendant’s presence and the modification does not make the sentence more onerous: However,' a defendant has the right to be present and address the court where the court is imposing a new. sentence after nullification of the original sentence.

Upon reexamination of Cooley I, we note this court affirmed Cooley’s conviction, but reversed the district court’s judgment and remanded the case to the district court “for entry of judgment without consideration of Cooley’s 1978 conviction.” This direction, in effect, required that the district court set aside its judgment that Cooley was a habitual offender. Moreover, because the Cooley I opinion did not limit the remand to a simple reduction in the sentence, the remand order may be treated as calling for a reconsideration of all of the discretionary aspects of the judgment including the district court’s decision to impose the maximum sentence and order that this sentence be served consecutive to his other sentences. See State v. Jacobs, 644 N.W.2d 695, 697 (Iowa 2001) (concluding that a remand order that did not limit the district court to curing the deficiency that resulted in the vacating of the original sentence may be treated as calling for reconsideration of all of the discretionary aspects for sentencing based on the offenses for which a defendant is convicted).

We recognize that, at the original sentencing, the trial court did carefully consider several factors in exercising its discretion and sentencing Cooley to the maximum sentence for a habitual offender, as illustrated by the district court’s colloquy with Cooley:

Mr. Cooley, in determining what sentencing was appropriate, I considered all of the information made available to me about you. Specifically, I looked at your age, I considered your prior criminal history, I noted that you had not performed successfully under supervision before, I noted your past employment experience, your family situation, the nature of this offense. And in particular, I looked at the needs that you demonstrate for a high-degree of structure and programming in a quest to become rehabilitated and also as a safety measure to protect the community from further offenses by you.
There was nothing in the record before me to justify suspension of the prison sentence, and everything to justify the sentence that the Court imposed and specifically, the consecutive directive.

However, the record of the original sentencing also clearly establishes that the Court sentenced Cooley solely as a habitual offender, as demonstrated by the following sentencing recommendation of the State,

It’s the recommendation of the State that Mr. Cooley be sentenced to a term not to exceed fifteen years as an habitual offender

(emphasis added) and pronouncement of sentence by the district court,

The Court has considered the sentencing options that are available. And specifically, the Court has looked at the provisions of the Iowa Code Sections 902.8, [902].9 and 901.5, and the Court’s decision about the sentence that’s appropriate is based upon the options that provide you, Mr. Cooley, with the best opportunity to be rehabilitatéd and will at the same time protect the community from further offenses by you and by others.
It would therefore be the order of the Court the defendant is committed to the custody of the Department of Iowa Corrections for a term not to exceed fifteen years.

Most notably absent from the record is any mention that the maximum sentence was appropriate for his forgery conviction, or that this sentence should be served consecutively with other sentences. Therefore, the district court did carefully consider multiple factors in exercising discretion at the original sentencing, but it did so solely within the context of sentencing Cooley as a habitual offender.

Once the district court was no longer able to consider Cooley’s 1978 conviction, Cooley was no longer a habitual offender, so that the sole sentence entered by the district court at the original sentencing hearing, the habitual offender sentence, was no longer valid. Thus, the Cooley I reversal of the district court’s judgment, and remand “for entry of judgment without consideration of Cooley’s 1978 conviction,” necessitated resentencing Cooley as having committed a class D felony. We therefore conclude Cooley was entitled to the opportunity to be present and address the Court in mitigation of punishment at his resentencing.

B. Law of the Case

We next address the State’s assertion that this case should be remanded to the district court for re-entry of the original habitual offender judgment with enhanced sentence because the Cooley I opinion relied on the subsequently reversed Iowa Supreme Court’s decision of State v. Tovar, 656 N.W.2d 112, 121 (Iowa 2003). When a ease is remanded so that a district court may proceed under a rule dictated on appeal, that rule becomes the law of the case. See Hillrichs v. Avco Corp., 514 N.W.2d 94, 101 (Iowa 1994). The law of the case binds the lower court on remand, even when decisions filed after the remand proceedings, but before a second appeal, abandon the rule. Feller v. Scott County Civil Serv. Comm’n, 482 N.W.2d 154, 160 (Iowa 1992). Thus, the timing of the proceedings on remand in relation to the intervening change in the law controls whether the law of the case is binding on the second appeal. Hillrichs, 514 N.W.2d at 101. For instance, if the United States Supreme Court decision in Iowa v. Tovar had occurred prior to the district court’s December 11, 2003 order, the United States Supreme Court decision would have established the controlling rule of law for the district court’s December 11, 2003 order and on the current appeal. See id.

However, the United States Supreme Court decided Iowa v. Tovar on March 8, 2004, approximately three months after the district court order on remand. See Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). Thus, this Court’s determination in its September 24, 2003 opinion, that the Iowa Supreme Court’s decision in State v. Tovar “is legally controlling,” is the law of the case. Consequently, we find no merit in the State’s contention that this case should be remanded for entry of the original judgment as a habitual offender. Moreover, this Court notes that the State failed to provide any authority for its proposition that the rule announced by the United States Supreme Court after Cooley I, and after the district court’s December 11, 2003 order, should be applied by this Court on appeal. See Iowa R.App. P. 6.14(c) (providing that failure in a brief “to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue”).

III. Conclusion

We conclude the district court should have afforded Cooley an opportunity to address the court in mitigation of punishment on his resentencing. We vacate the sentence imposed by the district court and remand for a new sentencing hearing and entry of judgment applying the law of the case as dictated by Cooley I. We do not retain jurisdiction.

VACATED AND REMANDED.

      . Iowa Rule of Criminal Procedure 2.24(5) allows a district court to "correct an illegal sentence at any time", and further directs that the defendant shall receive full credit for time spent in custody prior to "correction or reduction.”

      . The Iowa Supreme Court has held that whether issues of fact are presented at a particular proceeding is a determinative factor in assessing whether a post trial disposition would be “significantly aided" by a defendant's presence. See State v. Foster, 318 N.W.2d 176, 179 (Iowa 1982).

      . The requirement that the correction of sentence not be more "onerous" is not found in Iowa case law, however, federal jurisdictions interpreting language identical to the pertinent language in Iowa Rule of Criminal Procedure 2.27(3)(⅛), e.g., "The defendant's presence is not required at a reduction of sentence” have appropriately concluded that a defendant's presence is required if sentence is not reduced but instead increased on a motion attacking the sentence. See Caille v. United States, 487 F.2d 614, 616 (5th Cir. 1973) (citations omitted).

      . Iowa Code section 902.8 provides that "[a]n habitual offender is any person convicted of a class "C” or a class "D" felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States.” Iowa Code § 902.8 (2003).

      . Iowa Code section 902.9 provides the maximum sentences for felons and specifically provides that "[a]n habitual offender shall be confined for no more than fifteen years.” Iowa Code § 902.9(3) (2003).

      .Iowa Code section 901.5 provides the general procedures for pronouncing judgment and sentence. See Iowa Code § 901.5.


source: Caselaw Access Project

license: Public Domain

text:
    Feliciano DIAZ, Appellee, v. Michael THOMPSON, Appellant.
    No. 03-1849.
    Court of Appeals of Iowa.
    Sept. 29, 2004.
    C.R. Hannan of Reilly, Petersen, Han-nan & Dreismeier, P.L.C., Council Bluffs, for appellant.
    Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellee.
    Considered by SACKETT, C.J., and VOGEL and ZIMMER, JJ.
   VOGEL, J.

■ Michael Thompson appeals the district court’s interpretation of Iowa Code chapter 654A (2003) resulting, in the denial of his motion to set aside a sheriffs sale of his agricultural real estate. Iowa Code chapter 654A requires, generally, mediation prior to the initiation of proceedings to enforce a debt secured by agricultural property. The district court determined this chapter was inapplicable because Thompson was not a borrower of the creditor executing on his agricultural land. We agree and affirm.

I.Background Facts and Proceedings

Feliciano Diaz obtained a workers’ compensation judgment against Thompson in the amount of $43,838.53 plus interest. Thompson owns agricultural land in Fremont County, Iowa. Diaz sought to enforce his judgment by executing on this real estate and the same was eventually set for sheriffs sale. Just prior to the sheriffs sale, Diaz assigned his judgment hen to Sean Thomas Smith. Smith then purchased the real estate described above at the June 24, 2003, sheriffs sale for $151,000.00.

Thompson filed a “motion to set aside sale,” alleging:

1) He was denied his right of redemption
2) Diaz failed to obtain a mediation release as required by Iowa Code section 654A.6.
3)The sale produced a price well below market value.

In its ruling the district court addressed, and found contrary to each of Thompson’s contentions, denying Thompson the relief requested. Thompson appeals. •

II. Standard of Review

The validity ’ of Thompson’s claim depends on our interpretation of Iowa Code chapter 654A. Our review of the district court’s construction and interpretation of a statute is for corrections of errors at law. In re Detention of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).

III. Issue

The only issue before us on appeal is whether Diaz, as the holder of a judgment that did not arise from a loan to the owner of the agricultural property, was required to obtain a farm mediation release pursuant to Iowa Code chapter 654A prior to executing on the real estate. Because this issue can only be resolved through statutory interpretation, we begin with “the relevant portions of the applicable statute.” Nash Finch Co. v. City Council of the City of Cedar Rapids, 672 N.W,2d 822, 825 (Iowa 2003) Iowa Code section 654A.6(l)(a) (2003), in pertinent part, .states:

A creditor subject to this chapter desiring to initiate a proceeding to enforce a debt against agricultural property which is real estate under chapter 654, to forfeit a contract to purchase agricultural property under chapter 656, to enforce a secured interest in agricultural property under chapter 554, or to otherwise gar-^ nish, levy on, execute on, seize, or attach agricultural property, shall file a request for mediation with the farm mediation service. The creditor shall not begin the proceeding subject to this chapter until the creditor receives a mediation release ....

The merit of Thompson’s argument on appeal hinges on whether Diaz is a “creditor subject to this chapter.” This question is initially addressed by Iowa Code section 654A.4 entitled “Applicability of chapter” which provides:

This chapter applies to all creditors of a borrower described under subsection 2 with a secured debt against the borrower of twenty thousand dollars or more.

Iowa Code § 654A.4(1) (emphasis added). Thus, the crucial question on appeal is whether Diaz is a “creditor of a borrower” as defined by chapter 654A.

In interpreting and applying statutory provisions, we strive to give effect to the General Assembly’s true inteiit in enacting the law. Nash Finch Co., 672 N.W.2d at 826 (Iowa 2003). Generally, this intent is gleaned from the language of the statute. Id. Iowa Code section 654A.1 defines the terms used in chapter 654A and provides that a “creditor” may be a “judgment creditor with a judgment against a debtor with agricultural property.” Iowa Code § 654A.1(3). Neither party disputes on appeal that Diaz has a judgment against Thompson and that the real estate at issue is agricultural property. Therefore Diaz is without question a creditor under the provisions of chapter 654A. However, one vital inquiry remains: ■ Is Thompson a “borrower” within the meaning of Iowa Code chapter 654A?

Unfortunately, the General Assembly did not provide a definition of a “borrower” in Iowa Code section 654A.1. When the legislature has not defined a word in a statute, we look to prior decisions of our appellate courts and others, similar statutes, dictionary definitions, and the words common usage to ascertain the true intention of the legislature. See Gardin v. Long Beach Mortgage, 661 N.W.2d 193, 197 (Iowa 2003). However, if reasonable minds could differ or be uncertain as to the meaning of a statutory term, the term is ambiguous. State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). Thompson argues that a “borrower” for purposes of Iowa Code chapter 654A is any “debtor with agricultural property.” Diaz asserts that “borrower” for purposes of chapter 654A has a more narrow construction, meaning “one to whom money is lent.” Although we tend to agree with Diaz’s position, Thompson’s interpretation is not unreasonable, and therefore we turn to statutory construction to settle the ambiguity. See Nash Finch Co., 672 N.W.2d at 827.

When a statute is ambiguous, we may consider, among other things, the purpose of the statute and its legislative history. Iowa Code §§ 4.6(1), (3); Nash Finch Co., 672 N.W.2d at 827. Iowa Code chapter 654A was originally enacted in 1986 from House File 2473. The legislative findings accompanying this bill indicate that the General Assembly promulgated this statute out of concerns brought by its recognition of the following:

Thousands of the state’s farmers are unable to meet current payments of interest and principal on mortgages and other loan and land contracts and are threatened by the loss of their farmland, equipment, crops, and livestock through mortgage and lien foreclosures, forfeitures of real estate contracts, and other collection actions.

H.F. 2473, 71st G.A., Reg. Sess. (Iowa 1986). Thus, the legislative intent in promulgating chapter 654A was largely to protect farmers from the harsh consequences wrought by foreclosure and forfeiture proceedings resulting from a farmer’s inability to pay off loans and land contracts. See also First Nat’l Bank v. Heimke, 407 N.W.2d 344, 346 (Iowa 1987) (relying in part on the general legislative intent behind the promulgation of Iowa Code chapter 654A, to alleviate some of the hardships of the farm crisis by “giv[ing] some relief to farmers in dire financial straits,” in applying the protections of Iowa Code chapter 654A to actions filed prior to the effective date of the act). Significantly, the concerns of the legislature, as recorded in their findings, do not indicate a desire or intent to protect farmers from collection of all debt, but instead only mortgage, loan, and land contract debt. See id. Consequently, we conclude that the legislature did not intend to protect debtors such as Thompson because his debt did not result from a loan secured with agricultural property.

IV. Conclusion

Because Thompson was not a “borrower” under Iowa Code chapter 654A, compliance with the farm mediation provisions of that chapter was not required prior to executing on Thompson’s agricultural land. We therefore find no error in the trial court’s refusal to set aside the subsequent sheriffs sale.

AFFIRMED.

      . Iowa Code section 654A.6 requires that creditors subject to its provisions who execute-on agricultural property obtain a mediation release. Diaz executed on agricultural property but assigned his judgment lien to Smith just prior to the sheriff's sale on June 24, 2003. Thus, assuming arguendo that Diaz is a creditor to whom Iowa Code section 654A.6 applies, he was required to obtain the mediation release prior to executing on the property, so that he is the correct named party on appeal even though he did not hold the judgment lien at the time of the sale.

      . Thompson indicated in his notice of appeal that he was also appealing the district court’s determination regarding the reasonableness of the sale price, however Thompson provided no argument or authority on this issue so that we deem it waived. See Iowa R.App. P. 6.14(l)(c); City of Marquette v. Gaede, 672 N.W.2d 829, 835 (Iowa 2003).

      . Thompson proposes that Diaz is a “creditor subject to this chapter” i.e. a "creditor of a borrower” because he is a judgment creditor executing on agricultural property. Thompson thus argues, by implication, that a "borrower” for purposes of Iowa Code chapter 654A is a "debtor with agricultural property.”

      . An examination of the language chosen by the legislature in promulgating Iowa Code chapter 654B substantiates this conclusion. Iowa Code chapter 654B was enacted in 1990 by the same bill amending Iowa Code chapter 654A, and broadly applies mediation protection to any "person with an interest in farmland,” yet the legislature when amending Iowa Code chapter 654A chose to leave unchanged the narrower “creditors of a borrower” language. See H.F. 2404, 73rd Gen. Assent., Reg. Sess. (Iowa 1990). It thus follows that the General Assembly did not intend the class of individuals to whom mediation protection is available under Iowa Code chapter 654A, for farmer-creditor disputes, be nearly as broad as the class receiving mediation protection under Iowa Code chapter 654B, for care and feeding contracts and nuisances, as the legislature easily could have amended the mediation protections of Iowa Code chapter 654A to that of Iowa Code chapter 654B had it intended "borrower” to mean any debtor with an interest in farmland.


author: HECHT, J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Gary Lee STEWART, Defendant-Appellant.
    No. 03-1637.
    Court of Appeals of Iowa.
    Oct. 14, 2004.

      Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Michael Short, County Attorney, and Gordon Liles, Assistant County Attorney, for appellee.
    Considered by HUITINK, P.J., and HECHT and EISENHAUER, JJ.
   HECHT, J.

Gary Stewart appeals from the judgment and conviction entered following a jury trial on the charges of eluding or attempting to elude a pursuing law enforcement vehicle while participating in a felony, third-degree burglary, and second-degree theft, in violation of Iowa Code sections 321.279(1), 321.279(3)(a), 713.1, 713.7(a), 714.1 and 714.2(2) (2003). He maintains he received ineffective assistance of counsel. We affirm.

I. Background Facts and Proceedings.

In the early morning hours of May 12, 2003, restaurant manager Timothy Rader spotted a vehicle parked near a neighboring Honda dealership. The back hatch of the vehicle was open and a large box was leaning on it. Rader was suspicious and went inside to call police. Rader then returned outside and observed an individual standing behind the vehicle loading an all terrain vehicle (ATV), which had previously been in the box, into the back of the vehicle. Rader also observed the individual kneeling down as police arrived and began investigating with spotlights. The person Rader observed then entered the vehicle and quickly drove off, leaving the ATV behind.

Police officers pursued the vehicle on a thirty-mile chase at speeds reaching 120 miles per hour before it stopped and its driver fled on foot. Officers quickly captured the fleeing individual, whom they later identified as Gary Stewart.

Based on this incident, the State charged Stewart with eluding or attempting to elude a pursuing law enforcement vehicle while participating in a felony, third-degree burglary, and second-degree theft. Stewart filed a notice of insanity and diminished responsibility defenses. Following a trial, the jury found Stewart guilty as charged. The court sentenced him to indeterminate terms of imprisonment not to exceed five years on each count. It ordered that the eluding and burglary sentences be served concurrently, but that the theft sentence would be consecutive to the first two. It also ordered Stewart to pay fines of $750 on each count. Stewart appeals, contending counsel provided ineffective assistance.

II. Scope and Standards of Review.

Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).

Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). “Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).

III. Ineffective Assistance.

Stewart contends his trial counsel was ineffective for failing to object on three occasions when the prosecutor either insinuated Stewart was lying, or asked Stewart to comment on whether he claimed Timothy Rader had lied in his testimony. Stewart also claims his trial counsel was ineffective in failing to object to the prosecutor’s attempt to impeach a defense expert by emphasizing the expert had primarily testified on behalf on criminal defendants in the past. We find the record is adequate to address these claims.

A. Insinuation of Lying.

In cross-examining Stewart, the prosecutor asked him the following questions, and Stewart gave the following responses:

Q. Would he [Timothy Rader] have any motive, that you know of, to come in and lie about what he saw you do, crouching in front of the — your Blazer to avoid the police? A. I just don’t think that’s the way it happened. I don’t know.
Q. So if he wanted to, it would have been awful easy for him to come and lie and say, yeah, I saw you as the one in front of the Blazer, but he didn’t did he? A. No.
Q. I just want some semblance of the truth from you, Mr. Stewart. That’s the only reason I’m asking these questions.

Our supreme court held in State v. Graves that asking the defendant whether another witness is lying is incompatible with the duties of a prosecutor, and is therefore “clearly improper.” State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003). Likewise, the court determined it is improper for a prosecutor to call a defendant a liar. Id. at 876. Thus, we conclude counsel did breach a duty in failing to object to this line of questioning. However, we must still turn to the prejudice prong of Stewart’s claim to determine whether the prosecutor’s improper questioning deprived him of a fair trial. See id.

In examining the prejudice prong in Graves, the supreme court stated:

[W]e must determine whether there is a reasonable probability the prosecutor’s misconduct prejudiced, inflamed or misled the jurors so as to prompt them to convict the defendant for reasons other than the evidence introduced at trial and the law as contained in the court’s instructions. In making this determination we consider the factors noted previously: (1) the severity and pervasiveness of the misconduct; (2) the significance of the misconduct to the central issues in the case; (3). the strength of the State’s evidence; (4) the use of cautionary instructions or other curative measures; and (5) the extent to which the defense invited the misconduct.

Id. at 877.

Here, there were only three inappropriate questions from the prosecutor. In the context of a trial with multiple witnesses, we cannot say this was either “severe” or “pervasive.” Moreover the State’s evidence at trial was overwhelming on the question whether Stewart was the individual who attempted to steal the ATV and later led police on a lengthy high-speed chase. The only truly controverted issue was whether the affirmative defenses of insanity or diminished responsibility had been established. The subject of the improper cross-examination was focused on the issue of the identity of the individual who committed the crimes, an issue not seriously in dispute. The improper questioning did not go to the issues of insanity and diminished responsibility. Consequently, we conclude the prosecutor’s misconduct did not generate Strickland prejudice in this case.

Accordingly, although we strongly condemn the action of this prosecutor who pursued a line of clearly inappropriate questions, we hold Stewart cannot establish the required prejudice prong and reject this claim of ineffective assistance of counsel.

B. Expert Witness Cross-Examination.

The following exchange occurred during cross-examination between the prosecutor and defense witness Dr. Frank Gersh, a psychiatrist who evaluated Stewart:

Q. Have you ever evaluated a person in preparation for a criminal ease as this at the request of the State of Iowa? A. Yes, I did.
Q. When did you do that last? A. That would have been years ago, in about 1986.
Q. Would I be correct that the vast majority of the time you have evaluated persons for a criminal case and possible testimony, in the vast majority of matters, that’s been on behalf of the defendant? A. Yes, it has....

Stewart argues his trial counsel was ineffective in failing to object to this allegedly improper questioning.

In State v. Werts, 677 N.W.2d 734, 738-39 (Iowa 2004), our supreme court “condemned” the prosecutor’s act of injecting the issue of the fact a defendant’s expert witness associated with defense lawyers and represented and testified for perpetrators charged with killing children. The court characterized the prosecutor’s questioning as “demeaning” and intended simply to make the witness “look bad” in front of the jury. Id. at 738.

We believe the type of questioning that occurred here is distinguishable from that in Werts. In that case, the prosecutor repeatedly noted the witness associated with a “bunch of defense lawyers” and regularly testified on behalf of “people who were charged with killing children.” Werts, 677 N.W.2d at 738. In contrast, here the prosecutor posed a series of questions to Dr. Gersh in a straight-forward, non-inflammatory manner. Generally, the scope of cross-examination may be extended to areas touching on a “witness’s credibility, bias, ill will, hostility or interest in the case.” See State v. Cuevas, 288 N.W.2d 525, 530 (Iowa 1980) (citing State v. Musack, 254 Iowa 104, 109-10, 116 N.W.2d 523, 526 (1962)). We believe that is the situation here. The questions posed to Dr. Gersh cannot be characterized as demeaning. Because we conclude the questions posed to Dr. Gersh addressed a subject that was appropriate for cross-examination, and were posed in a non-demeaning, non-inflammatory manner, we conclude trial counsel did not breach a duty when he failed to object to them.

IV. Conclusion.

Having concluded Stewart was not prejudiced by counsels failure to object to the prosecutors improper implication that Stewart was lying, and that counsel did not breach a duty in failing to object to the questioning of the defendants expei't witness, we affirm the convictions.

AFFIRMED.


author: HANSON, Justice.

text:
    Lena M. HYATT, Appellant, v. ANOKA POLICE DEPARTMENT, et al., Respondents.
    No. A03-1707.
    Supreme Court of Minnesota.
    Feb. 10, 2005.
    Randall J. Fuller, William J. Marshall, Babcock, Neilson, Mannella, Klint, Anoka, MN, for Appellant’s.
    Jon K. Iverson, Paul D. Reuvers, Iver-son Reuvers, LLC, Bloomington, MN, for Respondent’s.
   OPINION

HANSON, Justice.

Appellant Lena Hyatt sued the City of Anoka and its police department (collectively, the “City”) after she was injured by a police dog during the attempted arrest of her husband. Hyatt’s complaint alleged liability solely on the basis of Minn.Stat. § 347.22 (2004) (the dog bite statute), which holds a dog owner strictly liable for injuries caused by the dog so long as the dog was not provoked and the victim was acting peaceably in a place where she had a lawful right to be. The City moved for summary judgment asserting that the dog bite statute did not apply to police dogs and, in the alternative, that the City was immune and that the police department is not a legal entity subject to suit. The district court denied the City’s motion, but the court of appeals reversed, holding that it would be “absurd” to apply the dog bite statute to police dogs because police officers are authorized by statute to use reasonable force. Hyatt v. Anoka Police Dep’t, 680 N.W.2d 115, 119-20 (Minn.App.2004). The court of appeals declined to address the City’s immunity claims. Id. at 120. We reverse the decision of the court of appeals on the dog bite statute and remand to the court of appeals with directions to consider the City’s immunity claims and the propriety of naming the police department as a defendant.

At approximately 1:30 a.m. on May 21, 2002, four law enforcement officers arrived at a residence in St. Francis, Minnesota, to execute arrest warrants for Andrew Hyatt, who had been charged with a controlled substance crime, fleeing a police officer, and driving after revocation. The homeowner told the officers that Andrew Hyatt and his wife, appellant Lena Hyatt, were living in a two-story red barn behind the residence. After entering the barn through an unlocked door, the officers heard movement on the barn’s second level. Sheriffs Deputy Paul Lenzmeier called for Andrew Hyatt to come out. After receiving no response, Lenzmeier and Deputy Todd Diegnau went upstairs and observed two people in bed, covered with a blanket. Lenzmeier called out again and noticed that the male, whom police later identified to be Andrew Hyatt, was awake. After Andrew Hyatt ignored Lenzmeier’s order to show his hands, Lenzmeier pulled down the covers in an effort to reveal any weapons. The other person in bed was Lena Hyatt.

According to deposition testimony and the deputies’ departmental reports, Andrew Hyatt jumped from the bed, yelled something similar to “Go ahead, just shoot me, shoot me,” and lunged toward the deputies. Andrew Hyatt struck Diegnau, and Lenzmeier called downstairs for assistance from Anoka Police Officer Mark Yates, who came upstairs with his police dog, Chips, on a leash. Yates saw Dieg-nau’s bloodied face and Andrew Hyatt standing behind Lena Hyatt as he yelled, “Shoot me, shoot me.” Lenzmeier believed that Lena Hyatt might have been “act[ing] as a shield for her husband.”

When Andrew Hyatt ran toward the back of the room, Yates released Chips. Instead of pursuing Andrew Hyatt, Chips apprehended Lena Hyatt, taking her to the ground and performing a “bite and hold” on her left leg and right arm. With the animal holding Lena Hyatt, Yates pursued Andrew Hyatt, who fled through a second-story window. When Yates later re-entered the room, he released Chips from Lena Hyatt and instructed Lenzmeier to handcuff and arrest her on suspicion of obstruction of legal process. Lena Hyatt was taken by ambulance to a Coon Rapids hospital and treated for a 2-inch laceration on her right elbow and a 5-inch laceration on her left knee.

Hyatt sued the City, seeking compensation for medical costs and pain. Her complaint alleged liability on the sole basis of the dog bite statute, which reads:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable. The term “dog” includes both male and female of the canine species.

Minn.Stat. § 347.22.

The City moved for summary judgment, arguing that the dog bite statute does not apply to police dogs. In the alternative, the City argued that it was entitled to statutory and vicarious official immunity. The City also argued that the police department was not a legal entity and thus was improperly joined as a defendant. The district court denied the City’s motion, ruling that the dog bite statute applies to municipal owners of police dogs because the statute does not explicitly exempt police dogs. The district court also ruled that because the specific use of a police dog was “operational,” the City was not entitled to immunity. The court did not address the question of the propriety of the joinder of the police department as a defendant.

Before the court of appeals, the City argued that applying the dog bite statute to municipal owners of police dogs “clearly produces an absurd result.” It relied on the guideline for statutory construction contained in Minn.Stat. § 645.17(1) (2004) which provides that “the legislature does not intend a result that is absurd, impossible of execution, or unreasonable.” A divided court of appeals agreed and ordered summary judgment for the City. Hyatt, 680 N.W.2d at 119-20. The court did not address the immunity or proper party issues because they were moot. Id. at 120. We granted Hyatt’s petition for review on whether the dog bite statute applies to municipal owners of police dogs.

On appeal from summary judgment, we review whether the district court erred in applying the law and whether there are any genuine issues of material fact. Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 745 (Minn.2001). Statutory interpretation is a question of law that we review de novo. Educ. Minnesota-Chisholm v. Indep. ch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003).

I.

To determine whether the dog bite statute applies to municipal owners of police dogs, we begin our analysis by considering the plain meaning of the words used in the statute. That statute imposes liability on the “owner” of a dog that injures or attacks a person who did not provoke the animal and who acted peaceably in a place where she had a right to be. Minn.Stat. § 347.22. The term “owner” includes “any person” harboring or keeping a dog. Id. The word “any” is given broad application in statutes, regardless of whether we consider the result reasonable. And the word “person” may be applied to include “bodies politic,” such as municipalities. Minn.Stat. § 645.44, subd. 7 (2004). Section 347.22 anticipates potential ambiguities by defining “dog” as an animal “of the canine species” and a dog “owner” as “any person harboring or keeping a dog.” Thus, we conclude that the plain meaning of the words used in the dog bite statute includes a municipal owner of a police dog.

The court of appeals looked beyond the plain meaning of the dog bite statute to ascertain the legislature’s intent. It relied on the guideline for statutory construction contained in Minn.Stat. § 645.17(1) (2004), which states that “the legislature does not intend a result that is absurd, impossible of execution, or unreasonable.” The court held that it would be “absurd” to apply the dog bite statute to police dogs because police officers are statutorily authorized to use “reasonable force” in certain circumstances. Hyatt, 680 N.W.2d at 119. As applicable here, the “reasonable force” authorization is found in section 609.06, subdivision 1 (the reasonable force statute):

Except as otherwise provided in subdivision 2, reasonable force may be used upon or' toward the person of another without the othei’s consent when the following circumstances exist or the actor reasonably believes them to exist:
(1) when used by a public officer or one assisting a public officer under the public officer’s direction:
(a) in effecting a lawful arrest; or

MinmStat. § 609.06, subd. 1(a) (2004).

We recently declined the invitation to disregard the plain meaning of the words of a statute where it was argued that the plain meaning would produce an absurd result. We stated that “where the intention of the legislature is clearly manifested by plain and unambiguous language, we have neither the need nor the permission to engage in statutory interpretation.” Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities, 659 N.W.2d 755, 760 (Minn. 2003). We concluded that we could disregard a statute’s plain meaning only in rare cases where the plain meaning “utterly confounds a clear legislative purpose.” Id. at 761-72.

Wegener v. Commissioner of Revenue, 505 N.W.2d 612 (Minn.1993), is one such “rare case” where we employed an absurdity analysis. We held it was “utterly absurd” to apply a property tax refund statute in a manner that would require a county assessor to ignore the value of a $464,635 structure when assessing the value of the parcel for real estate tax purposes. Id. at 617. But we are not aware of any other situation where we have allowed an absurdity analysis to override the plain meaning of a statute. The City cites Olson v. Ford Motor Co., 558 N.W.2d 491 (Minn.1997), which states that “[w]hen, however, the literal meaning of the words of a statute would produce an absurd result, we have recognized our obligation to look beyond the statutory language to other indicia of legislative intent.” Id. at 494. But that statement was dicta because, in the end, we concluded in Olson that we should not disregard the plain meaning of the statute. Id. at 495. And even in Wegener, we ultimately determined that there was no conflict between the literal meaning of the statute and the clear legislative purpose. 505 N.W.2d at 617.

In Lena Hyatt’s situation, although there might be good policy reasons to not apply the dog bite statute to police dogs, we cannot say that holding municipalities liable for police dog injuries or attacks is “utterly absurd” or “utterly confounds a clear legislative purpose.” For the reasons discussed below, we are not persuaded that the dog bite statute confounds the purpose of' the reasonable force statute because, first, it is not certain that the reasonable force statute applies to this circumstance and, second, even if it does, any conflict with the dog bite statute can be reconciled. Given the clear language, expansive scope, and anticipation of potential ambiguities in the dog bite statute, we will not disregard the plain meaning of the words used. We hold that the dog bite statute applies to police dogs and the municipalities that own them. Thus, we reverse the grant of summary judgment to the City on Lena Hyatt’s claim under the dog bite statute.

II.

We turn next to the question of whether the reasonable force statute applies to the City’s use of force that resulted in the alleged injury to Lena Hyatt. Lena Hyatt argues that the reasonable force statute does not apply to her injury because she was an innocent bystander. She reads the reasonable force statute as authorizing the use of force only against the arrestee. If she is correct, there would be no need to reconcile the reasonable force statute with the dog bite statute.

The reasonable force statute authorizes public officers to use “reasonable force * * * upon or toward the person of another.” Minn.Stat. § 609.06, subd. 1. It does not limit the use of reasonable force to the person who is the subject of an arrest or other police actions authorized by the statute. In a comparable setting, when the legislature meant to limit the authorization for the use of force to the person arrested, it said so specifically. See Minn.Stat. § 629.32 (2004) (“A peace officer making an arrest may not subject the person arrested to any more restraint than is necessary for the arrest and detention.”) (emphasis added).

Perhaps more importantly, the authorization in section 609.06 is stated broadly to include force that is directed “toward the person of another.” (Emphasis added.) Thus, even if the reference to “another” was limited to the arrestee, the authorization would still apply so long as the reasonable force was directed “toward” the arrestee. In other words, the authorization to use reasonable force is not limited only to situations where the force is used “upon” the arrestee.

The statute does not specifically address the legal consequence where reasonable force is directed toward the arrestee but causes harm to an innocent bystander. But reference to the common law provides some guidance on that issue. Generally, tort law recognizes that the use of force that would otherwise result in actionable assault, battery, or false imprisonment is “privileged” if it is reasonable and it is used for the purpose of effecting a lawful arrest. See, e.g., Restatement (Second) of Torts § 118 (1965) (“The use of force against another for the purpose of effecting his arrest and the arrest .thereby effected are privileged if * * * [several applicable] conditions * * * exist”). And, in that context, the privilege extends to harm to an innocent bystander caused by force directed toward the arrestee, unless under the circumstances it was “unreasonable for [the actor] to take the chance of causing grave harm to bystanders.” Restatement (Second) of Torts § 137 cmt. c (1965). Thus, in Dyson v. Schmidt, 260 Minn. 129, 138-39, 109 N.W.2d 262, 268-69 (1961), we articulated the rule that police officers are authorized to use reasonable force to effect the arrest of a person appearing to present a grave danger to the officers and others, and that the authorization extends to the unintended harm that the force causes to an innocent bystander. We said that this rule would not apply if the officers were negligent in creating the situation that led to the use of force, and if the use of force was the proximate cause of the injury. Id. at 139, 109 N.W.2d at 268-69.

The common law also recognizes that, in addition to the privilege to direct reasonable force toward the arrestee, police are also privileged to direct reasonable force toward a third person who attempts to impede a lawful arrest. According to the Restatement (Second) of Torts § 138 (1965):

Where another by his conduct knowingly causes the actor reasonably to believe that he is intentionally impeding the privileged arrest or recapture of a third person, * * * the actor is privileged to use such force against the other as he would be privileged to use against the third person if he resisted or attempted to escape.

The reasonable force statute was enacted 2 years after Dyson. It appears to have been written broadly to allow for “judicial development in construing the words ‘reasonable force.’ ” Minn.Stat. Ann. § 609.06 advisory comm. cmt. — 1963 (West 2003). Thus, it is fair to conclude that the statute both incorporated the common law and provided a mechanism for the common law to continue to develop within the framework of the, statute. In this context, we observe that there is nothing in the statute to suggest a legislative intent to make the statutory authorization narrower than the common law privilege.

Consistent with the common law, we hold that the reasonable force statute generally applies to harm caused to an innocent bystander by authorized force that is directed by a public officer “toward” an arrestee. We also hold that the reasonable force statute generally applies to force that is directed by a public officer toward a third person who is or reasonably appears to be impeding a lawful arrest.

III.

Because this matter comes to us on summary judgment, we recognize that the application of the reasonable force statute to Hyatt may depend on the resolution of genuine issues of material fact. But, if those issues are ultimately determined in such a manner that the reasonable force statute applies to this case, it will be necessary to reconcile any conflict between the dog bite statute and the reasonable force statute. Under our de novo review, we believe that the relevant guideline of statutory construction for reconciling the provisions is contained in Minn.Stat. § 645.26, subd. 1 (2004), which reads as follows:

When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.

The dog bite statute, which makes a broad assignment of liability to “any person” who harbors or keeps a dog, is more general than the special provision in the reasonable force statute, which permits only “public officers” and those who assist them to use “reasonable force” in specified circumstances. In addition, the dog bite statute was enacted in 1951. Act of April 12, 1951, ch. 315, § 1, 1951 Minn. Laws 413, 413-14. The reasonable force statute is part of the Criminal Code enacted in 1963. Act of May 17, 1963, ch. 753, art. 1, § 609.06, 1963 Minn. Laws 1185, 1189-91. Therefore, we hold that to the extent the dog bite statute conflicts with the reasonable force statute, the special and subsequently enacted provisions of the reasonable force statute prevail.

Our analysis parallels that of the Arizona Court of Appeals, which held that although the state’s strict liability dog bite statute unambiguously applied to police dogs, it had to be read alongside “justification statutes” that unambiguously allowed police officers to use reasonable force when making lawful arrests. Weekly v. City of Mesa, 181 Ariz. 159, 888 P.2d 1346, 1353 (1994). The Arizona court said:

We see no difference between a police officer directing a dog to attack a person and a police officer directing a blow at a person with a baton. In both situations, the officer is directing the force; in both situations, the reasonableness of the use of that force is a factual determination. Only the instrumentality is different. Most cases that have considered this issue in the context of criminal prosecutions agree that the use of a police dog to effect an arrest or detention falls within the justification statute.

Id. at 1352.

We reverse the court of appeals’ decision, which granted summary judgment and dismissed the claim made under the dog bite statute, and hold that Hyatt may pursue a claim under that statute. We further hold that Hyatt’s claim may be limited by the authorization for the use of reasonable force under the reasonable force statute, if that statute is found to be applicable under the facts as ultimately determined. Because the court of appeals did not reach the City’s alternative claims of immunity or address whether the police department is a legal entity subject to suit, we remand to the court of appeals with directions to consider those issues. If the court of appeals determines that the City is not entitled to immunity, the case should then be remanded to the district court for trial of genuine issues of material fact arising from the dog bite and reasonable force statutes.

Reversed and remanded to the court of appeals.

      . For example, in Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997), we held that Minn.Stat. § 169.685 (1996), which at the time barred seat-belt evidence in "any litigation involving personal injuries or property damage,” applied to bar evidence about the seat belt in a crashworthiness action that alleged that the seat belt was defective. (Emphasis added.)

      . Subdivision 2 of section 609.06 prohibits the use of deadly force against peace officers "who have announced their presence and are performing official duties at a location .where a person is committing a crime or an act that would be a crime if committed by an adult.” Minn.Stat. § 609.06, subd. 2 (2004).

      . Although section 609.06 is in the Criminal Code, we apply it in civil actions to avoid "unfair and inequitable results” likely to occur if civil and criminal actions had conflicting standards. Schumann v. McGinn, 307 Minn. 446, 467-68, 240 N.W.2d 525, 537 (1976). The Eighth Circuit has concluded that a police dog’s “bite and hold” is a use of nondeadly force. Kuha v. City of Minnetonka, 365 F.3d 590, 598 (8th Cir.2003). A police officer’s use of deadly force is governed not by section 609.06, but by Minn.Stat. § 609.066 (2004).

      .In Mutual Service Casualty Insurance Co. v. League of Minnesota Cities, we examined whether a marked patrol car is a "motor vehicle” subject to Minnesota’s No-Fault Automobile Insurance Act. Because the Act defined "motor vehicles” as those subject to state registration under chapter 168 of Minnesota Statutes, which unambiguously excluded marked "police patrols,” we refused to look beyond the plain statutory language and held that the Act did not apply to a marked patrol car. Mut. Serv. Cas. Ins. Co., 659 N.W.2d at 757, 758-60 (referencing Minn.Stat. § 168.012, subd. 1(b) (2002)).

      . Previously, the use of “force or violence" was permissible "[w]hen necessarily used by a public officer in the performance of a legal duty.” Minn.Stat. § 619.40(1) (1961). The 1963 Criminal Code introduced the idea that force is authorized when it is "reasonable” instead of when it is "necessary.”

      . "The owner of a dog which bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of its viciousness.”

      . We note that the Arizona legislature amended its dog bite statute in 1992 to exclude a "military or police” dog that bites in defense of itself or a person, when the bite occurred as the dog assisted with an apprehension, investigation, or warrant execution. See Ariz. Rev.Stat. Ann. § 11-1025(B) (2003). We also note that the exclusion does not apply when a police or military dog bites an innocent bystander — someone "not a party to, nor a participant in, nor suspected to be a party to or a participant in, the act that prompted the use of the dog.” Ariz.Rev.Stat. Ann. § 11— 1025(C) (2003). Presumably, if the Minnesota Legislature wishes to make section 347.22 of Minnesota Statutes inapplicable to police dogs or to address potential liability to innocent bystanders, it will do so. Ariz.Rev.Stat. 24-521 (1990) (renumbered 11-1025 (2003)).


author: ANDERSON, PAUL H., Justice. PAGE, Justice ANDERSON, RUSSELL A.

text:
    Frederick O. BOND, Appellant, v. COMMISSIONER OF REVENUE, Respondent.
    No. A04-564.
    Supreme Court of Minnesota.
    Feb. 10, 2005.

      Frederick 0. Bond, Champlin, MN, for Appellant.
    Mike Hatch, Attorney General, Craig R. Anderson, Assistant Attorney General, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

Appellant Frederick 0. Bond attempted to avoid all income tax liability for the year 2000 under a claim that “FREDERICK OGAN BOND is a constructive trust created by the United States under the governing statutes whose progeny rests in the Social Security Act of 1935.” Based on this assertion, Bond filed a federal estates and trusts tax return and deducted all reported income for fiduciary fees, leaving a federal taxable income of $0.00. On his Minnesota income tax return, Bond reported $0.00 taxable income based on his federal return and claimed a refund of $2,304.53, the full amount of his state income tax payroll withholdings. The Minnesota Department of Revenue initially granted Bond a refund, but corrected its assessment when it audited his return. The Commissioner of Revenue issued an order correcting Bond’s taxable income and assessing Bond $3,690.48 in total tax payments for the year 2000 — $2,816.53 for additional taxes, $373.95 for interest, and $500 as a penalty for filing a frivolous return. Bond appeals from a Minnesota Tax Court order granting the Commissioner’s motion for summary judgment and affirming the Commissioner’s December 24, 2002 tax order. We affirm.

Frederick 0. Bond earned $49,499 in the 2000 tax year — $48,638 in wages, $183 in taxable interest, and $678 in ordinary dividends. From his wages that year, his employer, Honeywell, Inc., withheld state income tax in the amount of $2,304.53. Payroll statements and the W-2 for 2000 from Honeywell were in the name of Frederick O. Bond.

Before filing his returns for tax year 2000, Bond attempted to secure from the Social Security Administration (SSA) an actual irrevocable written “Simple Social Security Trust” named “FREDERICK O. BOND.” Bond claims that the Trust already existed, having been established in March 1963, but he wanted the Trust’s terms to be in writing. Using a form available on the Internet, Bond sent to the SSA a two-page document setting out the Trust’s specific terms. He named the SSA as the Creator of the Trust, the SSA General Trust Fund as the Beneficiary, and himself as the Trustee. The Trust Document also allowed income from the Trust to pay “A Reasonable Wage” to the Trustee, including all of the Trustee’s living expenses.

Bond signed the Trust Document, but the Trust Document did not provide a signature line for the SSA and no signature was obtained from the SSA. Nevertheless, Bond asserted that the SSA has manifested its approval of the Trust by issuing him a Social Security number and card and by holding open an account under his Social Security number. On July 22, 2003, Bond sent a follow-up letter to the SSA Commissioner, in which he stated that the SSA had already had sufficient time to respond to his January 10, 2001 letter, in which he enclosed the Trust Document. He then stated that the SSA needed to respond within 30 days or otherwise it would be collaterally estopped from denying the existence of the Trust. On August 25, 2003, Bond sent another letter to the SSA Commissioner stating that he interpreted the SSA’s lack of response to his letters as its agreement to the Trust and that “this matter now stands secured by the maxim doctrine of Collateral Estop-pel.”

For his year 2000 federal income tax returns, Bond filed Form 1041 for estates and trusts rather than Form 1040 for individuals. He reported a total income of $49,499 in wages, taxable interest, and ordinary dividends, but he claimed a full deduction for “Fiduciary Fees,” leaving his federal taxable income at $0.00. He then claimed a full refund for his federal income tax payroll withholdings. For his 2000 Minnesota tax return, filed on March 25, 2001, Bond filed an M-l Individual Income Tax form rather than an M-2 return for trusts, but he modified all name and identification references to reflect that he was attempting to file a trust return. He reported $0.00 taxable income based on his 1041 filing and claimed a refund of $2,304.53, the full amount of his payroll withholdings for state income taxes. The Department of Revenue initially sent Bond a refund for this amount.

After auditing Bond’s tax return, the Commissioner of Revenue notified Bond that his filing was incorrect and that, if he did not file an amended return within 20 days of the notice, he could be subject to a penalty for having filed a frivolous tax return. Bond did not file an amended return. Having determined that Bond’s taxable income for 2000 was $43,024, the Department of Revenue sent Bond an Individual Income Tax Audit Report/Tax Order, dated December 13, 2002, assessing him $3,749.86 in total taxes for 2000, of which $2,816.53 was for additional .taxes, $433.33 was for interest, and $500 was for penalties. On December 24, 2002, the amount of interest was corrected to $373.95, reducing the total amount due to $3,690.48. Bond appealed the Commissioner’s order to the regular division of the tax court. The Commissioner responded and, on September 18, 2003, moved for summary judgment.

On October 24, 2003, before the hearing on the summary judgment motion, Bond deposed an Illinois Certified Public Accountant (CPA) as a purported expert witness in an effort to support his theory for tax reporting. The CPA testified that the two notices that Bond received from the IRS granting refunds to the Frederick O. Bond Trust for tax years 2001 and 2002 were administrative proof that the IRS agrees that the Trust exists. More particularly, on December 9, 2002, the IRS sent Bond, as Trustee, a notice informing him that it had changed his return and that a refund would be sent to him in the total amount of taxes paid, or $8,463, unless the Trust owed other taxes. Bond received the same notice on September 15, 2003, for the 2002 tax year, granting him a refund of $2,012. The CPA contended that if the IRS accepts a taxpayer’s filing, it deems it as valid.

The tax court heard the Commissioner’s motion for summary judgment on November 14, 2003. On February 10, 2004, the court issued an order finding that the parties did not dispute the facts and that Bond’s legal contentions were without merit because “when a person who is the source of the trust income has control over the trust corpus, he cannot avoid income tax liability by the operation of a trust.” The court noted that “[sjubstance prevails over form” — Bond’s wages were paid to him and not to the SSA. The court granted the Commissioner’s motion for summary judgment and affirmed the Commissioner’s Order assessing Bond $2,816.53 in taxes, plus interest, for the tax year 2000, and $500 as penalty for filing a frivolous tax return.

Claiming that the tax court made clerical errors and mistakes in its fact-finding, Bond moved for relief from the court’s judgment. Among several claims, he said that the record did not support the court’s finding that he “[did] not deny that he earned income from wages” or that the wages were not paid to a Social Security Trust Fund. The court denied Bond’s motion for relief. At that time, Bond had already filed a petition for a writ of certio-rari to our court.

I.

We review tax court decisions to determine whether the court lacked jurisdiction, whether the court’s decision is supported by the evidence and is in conformity with the law, and whether the court committed any other error of law. Jefferson v. Comm’r of Revenue, 631 N.W.2d 391, 394-95 (Minn.2001). We are not bound by decisions of the tax court. A & H Vending Co. v. Comm’r of Revenue, 608 N.W.2d 544, 546 (Minn.2000). But, before we will overrule the tax court, we must conclude that the court’s decision is clearly erroneous because the evidence as a whole does not reasonably support the decision. Lewis v. County of Hennepin, 623 N.W.2d 258, 261 (Minn.2001).

Minnesota Rules of Civil Procedure 56 provides that a court shall grant summary judgment if the record shows “that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. The Minnesota Rules of Civil Procedure apply to tax court proceedings where they are not inconsistent with tax court procedures. See Minn. R. Civ. P. 81.01. When reviewing an order for summary judgment, we determine (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law. In re Daniel, 656 N.W.2d 543, 545 (Minn.2003). The substantive law identifies which facts are material. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976) (stating “[a] material fact is one of such a nature as will affect the result or outcome of the case depending on its resolution.”). On issues of material fact, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 324 (Minn. 2004). We review de novo the tax court’s conclusions of law, interpretation of statutes, and application of the law. Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 830 (Minn.2002).

We must first address Bond’s contention that genuine issues of material fact are in dispute. Specifically, Bond argues that the tax court erred when it granted the Commissioner’s motion for summary judgment because the following “material facts” were at issue: (1) “overwhelming evidence via several motions supported by law”; (2) a sworn expert deposition about the validity of Bond’s return; and (3) “documentary evidence establishing validity and existence of the parties with standing.” Bond argues that this evidence could lead a reasonable person to conclude that “the account creation of the Social Security Administration effects the creation of a constructive [T]rust that is in fact a ‘person’ under state and federal taxing statutes” and separate from the person producing the income. He argues that the court did not review all of the evidence that he submitted.

Bond claims that the tax court “rewrote the record of evidence on file” in order to reach its result. Specifically, he criticizes the part of the court’s order that says “noticeably absent from the record are any documents setting up the Trust or evidence that it has a taxpayer identification number.” Bond claims this statement is incorrect because of his contentions that the SSA established the Trust and issued the Trust’s tax identification number in the form of Bond’s Social Security number. He says that he submitted all of the foregoing as evidence but does not explain how his theory allows him to avoid all tax liability.

The tax court found that no material facts were in dispute and granted the Commissioner’s motion. We agree. In its memorandum, the court stated what it found to be the relevant facts under the tax law for its decision. The court found that: (1) in 2000, Bond resided in Minnesota and earned $49,499 in wages, taxable interest, and dividends; (2) Bond’s W-2 indicated that his wages were paid to him individually and that his employer had withheld $2,304.53 in state taxes; (3) Bond filed a modified Minnesota Individual Income Tax Return on which he claimed a full refund for withheld state taxes based on his assertion that all income was deducted for fiduciary fees; and (4) Bond based his Minnesota tax return on his federal 1041 form on which he also deducted all income as fiduciary fees. Having reviewed the record, we conclude that Bond’s W-2 statements and tax filings for tax year 2000 confirm these findings. Bond does not contest any of the data found on these forms, only the conclusions to be reached from them. We conclude that the tax court did not abuse its discretion in reviewing the record and determining that no genuine issues of material'fact were disputed.

II.

Next, we must determine whether the tax court erred in its application of the law. Bond asserts that FREDERICK O. BOND is a constructive Trust created by the SSA and that the Trust allows him to deduct all of his income for fiduciary fees.

Under Minnesota common law, the essentials of an express trust are (1) a designated trustee with enforceable duties; (2) a designated beneficiary vested with enforceable rights; and (3) a definite trust res in which the trustee has legal title and the beneficiary has the beneficial interest. In re Bren, 284 B.R. 681, 697 (Bankr.D.Minn.2002). A trust is created only if the settlor demonstrates, by external expression, the intent to create a trust. In re Bush’s Trust, 249 Minn. 36, 42-43, 81 N.W.2d 615, 619-20 (1957). The settlor does not need to use any particular form or words to create a trust. Id. at 42, 81 N.W.2d at 619. But the settlor must show “a definite, unequivocal, explicit declaration of trust,” or circumstances must “show with reasonable certainty or beyond a reasonable doubt that a trust was intended to be created.” 90 C.J.S. § 41 (2002).

The SSA has not manifested any intent to create a trust with individual taxpayers. The purpose of Social Security was not to create trusts with individual taxpayers, but was to provide social insurance for the “security of the men, women, and children of the Nation against certain hazards and vicissitudes of life.” Economic Security Act Hearings Before the Committee on Ways and Means House of Representatives, 74th Cong. 13 (1935) (Message from the President of the United States Transmitting A Recommendation for Legislation on the Subject of Economic Security). Bond claims that the following acts provide evidence of the SSA’s intent to establish the FREDERICK 0. BOND Trust: (1) the issuance of Bond’s Social Security number; (2) the distribution of Bond’s Social Security card; and (3) the holding open of an account under his issued Social Security number. We conclude that these three acts do not create a genuine issue as to whether the SSA intended to create a trust and that these three acts are more comparable to acts taken to create information-tracking systems.

Bond’s only other argument is that the SSA is collaterally estopped from denying the existence of the Trust because it failed to respond to his attempts to establish the Trust Document. We have repeatedly held that a party seeking to apply equitable estoppel against a government agency acting in its sovereign capacity has a heavy burden of proof. Northwest Airlines, Inc. v. County of Hennepin, 632 N.W.2d 216, 221 (Minn.2001). This proof includes a showing that the government’s wrongful conduct induced the party’s detrimental reliance. Id. Affirmative misconduct is not simple inadvertence, mistake, or imperfect conduct. The SSA has only declined to respond to Bond’s letters and notices attempting to set up the Trust Document. Therefore, we conclude that the SSA’s inaction is insufficient to establish that it affirmatively represented that it supports the existence of the FREDERICK 0. BOND Trust.

We also conclude that Bond may not rely on notices from the IRS granting refunds to the Frederick 0. Bond Trust for tax years 2001 and 2002 as a basis to establish that the Trust exists. For income tax purposes, Minnesota defines “net income” as federal taxable income. Minn. Stat. § 290.01, subd. 19 (2000). Minnesota tax assessments, however, are independent from federal tax assessments and may differ from federal assessments. In Specktor v. Comm’r of Revenue, we concluded that although Minnesota gross income is defined as federal adjusted income, the Commissioner may adjust a taxpayer’s gross income based on the Commissioner’s own independent investigation of the taxpayer. 308 N.W.2d 806, 807-08 (Minn.1981). We have, therefore,

rejected the argument that federal adjusted gross income was conclusive, observing that such an approach would nullify several state statutes which give the Commissioner of Revenue authority to examine tax returns and make assessments if deficiencies are found. Moreover, if federal gross income was controlling, state tax authorities would be powerless to correct the taxpayer’s return if the federal adjusted gross income were the result of a mistake or fraud.

Weed v. Comm’r of Revenue, 550 N.W.2d 285, 289 (Minn.1996) (internal citations omitted).

Bond earned $49,499 in wages, taxable interest, and ordinary dividends in the year 2000. Having earned the income, he cannot avoid taxation by contrivances. The tax court is free to look to the substance, not just the form, of a transaction. Midwest Federal Sav. and Loan Ass’n v. Comm’r of Revenue, 259 N.W.2d 596, 599 (Minn.1977). The granting of a refund by the IRS, whether valid or erroneous, does not prevent the Commissioner from independently evaluating Bond’s state taxes.

Thus, for all of the foregoing reasons, we conclude that the Bond Trust does not exist. Accordingly, we hold that the tax court did not err when it affirmed the Commissioner’s Order by concluding that Bond, as an individual, earned income in the form of wages, taxable interest, and ordinary dividends.

III.

Having held that Bond cannot avoid tax liability for wages, taxable interest, and ordinary dividends through the mechanism of a purported Trust, we must now decide whether the tax court erred in affirming the Commissioner’s assessment of a penalty for filing a frivolous return. Minnesota Statutes § 289A.60, subd. 7 (2000), imposed a $500 penalty for the filing of a “frivolous return.” It is generally well established in federal tax law that frivolousness is determined under an objective standard and that a position is “frivolous” if it has no basis in law or fact. See, e.g., Kahn v. United States, 753 F.2d 1208 (3d Cir.1985); Gillett v. United States, 233 F.Supp.2d 874, 881 (W.D.Mich.2002); Schoffner v. United States, 627 F.Supp. 167, 169 (S.D.Ohio 1985); Matz v. United States, 581 F.Supp. 714, 716 (N.D.Ill.1984).

Bond earned $49,499 in wages, taxable interest, and ordinary dividends in tax year 2000. The tax laws are clear that all net income of a resident individual is taxable. Minn.Stat. § 290.014, subd. 1 (2000). Valid trusts can claim deductions for reasonable fiduciary fees, but the fiduciary cannot escape taxation for this income earned. Bond’s contention that he can escape all income tax liability by claiming that his income from wages, taxable interest, and ordinary dividends was paid out to him as the Trust’s fiduciary has no basis in the tax law. Therefore, we conclude that Bond’s claim is frivolous because it has no basis in fact or law. Ae-cordingly, we hold that the tax court did not err when it affirmed the Commissioner’s assessment of a penalty for Bond’s filing of a frivolous tax return.

Affirmed.

ANDERSON, G. BARRY, J„ not having been a member of the court at the time of submission, took no part in the consideration or decision of this case.

PAGE, Justice

(concurring specially).

I concur in the result, but differ as to the rationale. This is a review on writ of certiorari to the tax court, which affirmed an order assessing tax liability, interest, and a frivolous return penalty. The relevant facts are not at issue. During the calendar year 2000, Bond received $48,638 in wages, $183 in taxable interest, and $678 in dividends. On March 25, 2001, Bond filed his state income tax return (Form Ml) for tax year 2000, modifying the form to serve as a trust income tax return and claiming $0.00 in taxable income and a refund for the full amount of state income taxes withheld. Bond submitted a Form W2 Wage and Tax Statement reflecting that his employer, Honeywell, Inc., withheld $2,304.53 in state income tax. Bond based his state income tax return on his federal income tax return for estates and trusts (Form 1041) on which he reported that all of his earnings had been paid to a trust, identified himself as trustee, and claimed a deduction equal to his gross income as fiduciary fees.

According to the tax court, an audit of Bond’s state income tax return was performed and on November 21, 2002, the Minnesota Commissioner of Revenue notified Bond that he had incorrectly reported his tax liability and could be assessed a $500 penalty for filing a frivolous return unless he filed an amended return within 20 days. The record reveals that an amended return was not filed. On December 13, 2002, the Department of Revenue issued an audit report assessing Bond $3,749.86 in taxes, interest, and penalties. By notice of December 24, 2002, the commissioner modified the order, adjusting the calculation of interest, and assessing total liability for taxes, interest, and penalties at $3,690.48. The tax court affirmed on appeal, rejecting Bond’s claim that his income was exempt from taxation as lacking in merit. Bond asserts error in the tax court’s application of law.

In apparent reliance on a theory floated on an Internet website, Bond advanced the position that the Social Security Administration (SSA) had created the FREDERICK OGAN BOND trust in March 1963, “offered” the position of trustee to him by sending him a social security card, and instructed him “to sign [the card] for acceptance”; and that by signing the card he acted as trustee in all of his dealings with the trust. Bond purported to “secure” the trust with an “indenture” by submission of form letters and documents, made available on the Internet website, to the SSA; and he thereafter filed the federal Form 1041 (trust income tax return) instead of the federal Form 1040 (individual income tax return).

The primary objective of the old age and disability aspects of the social system is to “provide workers and their families with basic protection against hardships created by the loss of earnings due to illness or old age.” Mathews v. De Castro, 429 U.S. 181, 185-86, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976). Social security is an earnings-based insurance program funded by wage earnings and is set up as a trust fund administered by the Social Security Administration. Doe v. Heckler, 568 F.Supp. 681, 683 (D.C.Md.1983). Under the current system, employers withhold payroll taxes from their employees’ wages and pay those taxes, together with the employer’s share, to the federal government to fund the Social Security Trust Fund. Paukstis v. Kenwood Golf & Country Club, Inc., 241 F.Supp.2d 551, 560 (D.Md.2003). Assets in the Social Security Trust Fund, however, are not segregated for particular classes of beneficiaries. “Rather, the trust funds are accounting entries in the federal budget to which Social Security contributions and certain other accruals and payments are attributed and from which Social Security benefits and certain other expenses are paid.” Howell E. Jackson, Accounting for Social Security and Its Reform, 41 Harv. J. on Legis. 59, 69 (2004).

Bond received taxable income from wages, interest, and dividends in the year 2000. His claim that his income was exempt from state income tax was subject to summary judgment as it was without factual or legal basis. Moreover, Bond’s state tax return was substantially incorrect and frivolous, thus making him liable for the frivolous return penalty. Cf. Bradley v. United States, 817 F.2d 1400, 1404 (9th Cir.1987) (test for frivolous federal tax return is met when the position taken by the individual has no basis in fact or law). I see no need to further refute Bond’s assertions “with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some col-orable merit.” Crain v. Comm’r of Internal Revenue, 737 F.2d 1417, 1417-18 (5th Cir.1984).

ANDERSON, RUSSELL A.

(concurring specially).

I join in the special concurrence of Justice Page.

      . In this opinion, we will refer to the trust that Bond claims exists as "Trust” and the written document that Bond attempted to establish with the SSA as the "Trust Document.”

      . The tax court did not mention the CPA’s deposition in its memorandum. The CPA’s testimony, however, spoke only to his belief in the existence of the FREDERICK O. BOND Trust and not to any of the court’s findings listed above. Thus, despite Bond’s claim that the CPA’s testimony provides evidence of factual disputes, the CPA’s opinion testimony only has any possible relevance for legal conclusions.

      . Bond misconstrues the meaning of a constructive trust. A constructive trust "has no existence in fact as a trust but is only a fiction adopted by equity as an unjust-enrichment, rectifying remedy." Knox v. Knox, 222 Minn. 477, 488, 25 N.W.2d 225, 232 (1946). Constructive trusts are "designed to correct abuses of fiduciary relationships and force a conveyance to prevent unjust enrichment." PJ Acquisition Corp. v. Skoglund, 453 N.W.2d 1, 20 (Minn. 1990).

      . We apply the tax law valid at the time of the filing. For frivolous returns, Minnesota Statutes § 289A.60, subd. 7, now provides for “a penalty of the greater of $1,000 or 25 percent of the amount of tax required to be shown on the return.” Minn.Stat. § 289A.60, subd. 7 (2004).

      . Minnesota Statutes § 289A.60, subdivision 7 (2000), assigned liability in the amount of $500 to a person filing a frivolous tax return. The provision has since been amended to provide a “penalty of the greater of $1,000 or 25 percent of the amount of tax required to be shown on the return” for returns filed after December 31, 2003. Act of May 25, 2003, ch. 127, art. 3, § 5, 2003 Minn. Laws 780.


author: ANDERSON, G. BARRY, Justice.

text:
    Dallas Lee THOMPSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-682.
    Supreme Court of Minnesota.
    Feb. 10, 2005.

      Dallas Lee Thompson, Bayport, MN, pro se.

    Mike Hatch, Attorney General, St. Paul, MN, Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County Attorney, Anoka, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Dallas Lee Thompson was found guilty of two counts of first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2004); and two counts of first-degree murder while committing a burglary, Minn.Stat. § 609.185(a)(3) (2004), for the 1995 shooting deaths of Michelle Eardley and her mother, Susan Eardley. The underlying facts can be found at State v. Thompson, 578 N.W.2d 734 (Minn.1998). The district court imposed a sentence of two consecutive life terms. Id. at 739. On direct appeal, we affirmed Thompson’s conviction and sentence. Id. at 743. Thompson appeals from the order of the postconviction court denying without a hearing his petition for postconviction relief. Because all of the issues raised in this petition could have been raised in Thompson’s direct appeal, we affirm.

On February 5, 2004, Thompson, representing himself, filed for postconviction relief. The district court denied Thompson’s petition without a hearing stating that the “files and records of the proceedings conclusively show that petitioner is entitled to no relief.” Thompson appealed to our court.

In this postconviction appeal, Thompson raises two issues: First, he contends that the statutes under which he was sentenced did not contain either the enacting clause or the title required by the Minnesota Constitution. Thompson therefore argues that the statutes were null and void and that there was no crime for him to commit. Second, Thompson claims that the gold-fringed United States and Minnesota flags present in the courtroom when he was tried were military flags that suspended “the State Constitution and the judge’s ‘Oath of Office.’ ” He therefore contends that the judge had no authority to sentence him because the judge was “merely an actor in a black robe.”

We review a postconviction court’s rulings under an abuse of discretion standard. Henderson v. State, 675 N.W.2d 318, 322 (Minn.2004). On issues of law, we review the postconviction court’s conclusions de novo. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). Once a defendant has directly appealed a conviction, we will not consider in a subsequent post-conviction proceeding any matters that were raised in that appeal or were known at the time of that appeal. State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, 741 (1976).

Two exceptions to Knaffla allow for postconviction relief despite the fact that the claims could have been raised on direct appeal: (1) where a novel legal issue that was not reasonably available to petitioner at the time of the direct appeal is presented; or (2) where the interests of fairness and justice require relief. Washington v. State, 675 N.W.2d 628, 630 (Minn.2004). When fairness so requires, the petitioner must not have “deliberately and inexcusably” failed to raise the issue on direct appeal. Greer v. State, 673 N.W.2d 151, 155 (Minn.2004). Claims decided in the interests of justice also require that the claims have substantive merit. King v. State, 649 N.W.2d 149, 157 (Minn.2002).

Thompson does not argue that the exceptions to Knaffla apply to either of the issues he raises. Thompson does not claim that he did not know or could not have known about the fringe on the flags at the time of the direct appeal. Similarly, whether Minn.Stat. §§ 609.185(a)(1) and 609.185(a)(3) (1994) were enacted with a proper enacting clause and title could have been easily determined and raised at the time of Thompson’s direct appeal. We conclude that Thompson’s claims are barred by the rule in Knaffla.

Because we conclude that Thompson’s claims are barred by our decision in Knaff-la, we also conclude that the postconviction court did not abuse its discretion in denying Thompson’s petition.

Affirmed.

      . Thompson filed what he captioned, "Memorandum and Motion to Dismiss For Lack of Subject Matter Jurisdiction,” along with an "Affidavit in Support of Memorandum and Motion to Dismiss/Vacate for Lack of Subject Matter Jurisdiction.”

      . Thompson filed what he captioned, "Petition for Appeal From Adverse Decision by the Tenth Judicial District Court,” along with an "Affidavit in Support of Memorandum and Motion to Dismiss/Vacate for Lack of Subject Matter Jurisdiction.” In this Petition, Thompson raises, for the first time, the argument that the fringe on the flag deprived the judge of authority to sentence him. The state asserts that Thompson’s failure to raise the flag claim in the district court prevents us from even addressing it.

      . While unnecessary to the resolution of this case, we note that Thompson’s enacting clause claim also fails on its merits. The session laws in question included both titles and enacting clauses. Act of May 17, 1963, ch. 752, 1963 Minn. Laws 1185, 1200 (codified at Minn.Stat. § 609.185(a)(1)); Act of May 19, 1981, ch. 227, 1981 Minn. Laws 1006, 1009 (codified at Minn.Stat. § 609.185(a)(3)). We also previously determined that the title to the 1963 law conformed to the Minnesota Constitution. State v. Harris, 277 Minn. 351, 354, 152 N.W.2d 728, 730 (1967). The title to the 1981 law is significantly similar to the 1963 law.
      Neither are the statutes voided when published by the Revisor of Statutes. Minnesota Statutes § 3C.07 (2004) states: ”[T]he laws contained in Minnesota revised statutes are continuations of the acts from which compiled and are not new enactments.” The Re-visor merely arranges and renumbers sections of the laws. The Revisor's Office explains: "A compilation is never enacted by the legislature as law. It is therefore, not law but merely evidence of it. The original session laws remain the law, and in case of conflict between the compilation and the session laws, the session laws prevail.” Minn.Stat., Vol. 1, Preface, xi.