author: ANDERSON, G. BARRY, Justice.

text:
    Jason GEORGE, Respondent, v. Daniel EVENSON, et al., Defendants, Auto-Owners Insurance Company, Appellant, Progressive Insurance Company, Respondent.
    No. A06-2133.
    Supreme Court of Minnesota.
    July 31, 2008.

      James Reding, Jr., Reding & Pilney, Lake Elmo, MN, for appellant.
    Warren V. Bigelow, Jr., Wayzata, MN, for respondents.
    Lori Lou Barton, Woodbury, MN, for amicus curiae.
   OPINION

ANDERSON, G. BARRY, Justice.

We are called upon to decide whether the unorthodox arbitration proceeding in this motor vehicle accident dispute was the functional equivalent of (1) a tort action pursued to a conclusion in a district court action, in which case the underinsurer was entitled to notice pursuant to Malmin v. Minnesota Mutual Fire & Casualty Co., 552 N.W.2d 723 (Minn.1996); or (2) an effort to arrive at a settlement agreement between the injured claimant and the tort-feasors, in which case the underinsurer was entitled to notice of the proposed settlement and an opportunity to substitute payment to the claimant pursuant to Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), superseded by statute on other grounds, Minn.Stat. § 65B.49, subd. 4a (2006), as recognized in Dohney v. Allstate Ins. Co., 632 N.W.2d 598, 603 (Minn.2001). Because what occurred here is more accurately characterized as an arbitration proceeding aimed at arriving at a settlement amount and because the arbitration agreement did not purport to bind the underin-surer, we affirm the court of appeals.

On May 31, 1999, respondent Jason George saw defendant Melissa DesMarais, his former girlfriend and the mother of his child, leave a movie theater in Buffalo with defendant Daniel Evenson. After arguing with George in a nearby parking lot, Des-Marais and Evenson entered DesMarais’s vehicle with Evenson driving. The district court found that George “positioned himself in front of the vehicle” and that Even-son backed up the vehicle and then drove forward, striking George.

DesMarais, who owned the vehicle that struck George, had automobile liability coverage in the amount of $100,000 per person with Farm Bureau Insurance Company. Evenson, who was driving the vehicle when it struck George, had excess liability coverage in the amount of $30,000 with respondent Progressive Insurance Company. George had underinsured motorist coverage in the amount of $50,000 per person under his father’s policy with appellant Auto-Owners Insurance Company.

On July 22, 1999, George’s counsel notified Auto-Owners of George’s underin-sured motorist claim, explaining that George’s damages were significant and would exhaust the $100,000 limit on Des-Marais’s Farm Bureau policy. In September 2003, Auto-Owners informed George’s counsel that George was ineligible for un-derinsured motorist benefits because George’s claim fell under the intentional-acts exclusion in its policy.

On April 14, 2005, George’s counsel faxed letters to Auto-Owners and Progressive. In the letters, George’s counsel explained that Farm Bureau had agreed to submit the case to binding high/low arbitration, which was scheduled for April 29, 2005, and he invited Auto-Owners and Progressive to participate. The letters, characterized as both Malmin and Schmidt notices, stated that notice was provided “because, in the event of a favorable award in excess of Farm Bureau’s liability insurance limits,” a claim for un-derinsured motorist and No-Fault benefits “will be presented to you for payment up to your policy limits.” Progressive acknowledged receipt of the April 14 letter and refused to participate in the arbitration. Auto-Owners, on the other hand, denies receiving the letter.

On Friday, April 29, 2005, George’s counsel faxed Auto-Owners a letter in which he stated that the arbitration was rescheduled for May 4 and that Malmin and Schmidt notices had been served upon Auto-Owners on April 14. George’s counsel again invited Auto-Owners to participate in the arbitration. On May 3, 2005, Auto-Owners’s counsel informed George’s counsel that Auto-Owners had first received notice of the arbitration via the April 29 rescheduling notice, which Auto-Owners’s claims representative did not personally receive until Monday, May 2. Auto-Owners’s counsel explained that Auto-Owners did not receive the April 14 notice “until 2:06 p.m. today when you faxed [it] to [the claims representative].” Auto-Owners’s counsel objected to the arbitration on the grounds of untimely notice and George’s failure to obtain Auto-Owners’s consent to arbitration. Specifically, Auto-Owners’s counsel alleged that “Auto-Owners is not able to evaluate this matter and would be prejudiced under the short notice you have provided.” Later that day, George’s counsel notified Auto-Owners’s counsel that George intended to proceed with the arbitration and “to bind Auto-Owners with the result.”

The arbitration agreement executed by George, Evenson, DesMarais, and Farm Bureau (the liability insurer for DesMari-as) provided that George could recover a minimum of $15,000 and a maximum of $100,000 in damages from Farm Bureau. The agreement also stated that Farm Bureau’s payment of the arbitration award would release it from all obligations under its policy and that the remaining balance on George’s claims could be satisfied only by Auto-Owners, Progressive, or other insurers. The arbitrator found George 45% at fault and Evenson 55% at fault, with total damages of $535,159.82. George’s recovery after fault apportionment was $294,337.90, which exceeded Farm Bureau’s $100,000 policy limit by $194,337.90.

On May 13, 2005, George’s counsel sent Auto-Owners a letter, labeled as a Schmidt notice, in which he notified Auto-Owners of the arbitration award and stated that George intended to accept the arbitration award unless Auto-Owners substituted its draft. Auto-Owners informed George’s counsel on May 19 that it did not wish to substitute its draft, and Farm Bureau paid George $100,000.

George then brought an action against Auto-Owners, Progressive, Evenson, and DesMarais. Progressive moved to dismiss George’s claims against it under Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be granted, and Auto-Owners moved for summary judgment. George moved to confirm the arbitration award, for default judgment against Even-son and DesMarais, and for declaratory judgment that he was entitled to excess damages up to the limits of the Auto-Owners and Progressive policies.

The district court dismissed with prejudice George’s complaint against Progressive and granted Auto-Owners’s motion for summary judgment. In granting summary judgment in favor of Auto-Owners, the district court concluded that “Auto-Owners should prevail due to [George’s] failure to provide a proper and timely Mal-min notice” and that George “failed to overcome the presumption that Auto-Owners was prejudiced by [his] failure to provide proper notice.” The district court stated that George’s purported Schmidt notice was “of no effect” because “[t]his case didn’t involve a ‘settlement.’” The district court also (1) denied George’s motion to confirm the arbitration award as to Auto-Owners and Progressive because the insurers were not parties to the arbitration and did not receive timely Malmin notices; (2) denied George’s motion for default judgment against Evenson and DesMarais, reasoning that “entry of [j]udgment would serve no purpose” because Evenson and DesMarais had been released from personal liability and because the arbitration award was not binding on Auto-Owners and Progressive; and (3) denied George’s motion for declaratory judgment against Auto-Owners and Progressive. In an amended order for judgment, the district court ordered the dismissal of all claims against Evenson and DesMarais.

The district court granted George’s request for reconsideration on the basis of evidence that Evenson had additional liability coverage with Austin Mutual Insurance Company. In its second amended order for judgment, the district court (1) granted George’s motion for default judgment against Evenson and DesMarais in the amount of $194,333.90 but stated that the judgment could only be executed against insurers other than Auto-Owners and Progressive, and (2) granted George’s motion to confirm the arbitration award except as to Auto-Owners and Progressive.

George appealed from the district court’s orders. The court of appeals affirmed the district court’s dismissal of George’s claim against Progressive but reversed the district court’s grant of Auto-Owners’s motion for summary judgment and its denial of George’s motion to confirm the arbitration award. George v. Evenson, No. A06-2133, 2007 WL 4303518, at *1 (Minn.App. Dec. 11, 2007). In reversing the district court’s grant of summary judgment to Auto-Owners, the court of appeals concluded that the arbitration award should be construed as a settlement subject to the Schmidt notice requirements rather than the conclusion of a tort claim subject to the Malmin notice requirements. Id. at *8. The court of appeals went on to hold “that because [George’s] Schmidt notice to Auto-Owners met the applicable requirements, his [un-derinsured motorist] claim against Auto-Owners is not barred.” Id. at *9. In reversing the district court’s denial of George’s motion to confirm the arbitration award, the court of appeals reasoned that although George “had no right to confirm his arbitration award as against Auto-Owners, which was not party to the arbitration,” MinmStat. § 572.18 (2006) required confirmation of the award “against DesMarais and Farm Bureau, the named respondents in the arbitration.” Even-son, 2007 WL 4303518, at *9. The court of appeals ordered the district court to confirm George’s arbitration award on remand. Id. at *10. We granted Auto-Owners’s petition for review.

I.

Summary judgment is proper where there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from a district courts grant of summary judgment, we view “the evidence in the light most favorable to the party against whom summary judgment was granted.” State Farm Fire Cas. v. Aquila Inc., 718 N.W.2d 879, 883 (Minn.2006). “[S]o long as an insurance contract does not omit statutorily mandated coverage or otherwise contravene the applicable statutes, the contract governs the insurer’s liability.” Kwong v. Depositors Ins. Co., 627 N.W.2d 52, 55 (Minn.2001).

The Minnesota No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (2006), requires insurers to include un-derinsured motorist coverage in automobile insurance policies in the minimum amount “of $25,000 because of injury to or the death of one person in any accident and $50,000 because of injury to or the death of two or more persons in any accident.” MinmStat. § 65B.49, subd. 3a(l). The No-Fault Act also requires owners of motor vehicles to maintain underinsured motorist coverage. Id., subd. 3a(2). “With respect to underinsured motorist coverage, the maximum liability of an insurer is the amount of damages sustained but not recovered from the insurance policy of the driver or owner of any underin-sured at fault vehicle.” Id., subd. 4a. “Underinsured coverage * * * is intended to protect against * * * the risk that a negligent driver of another vehicle will have failed to purchase adequate liability insurance * * *.” Meyer v. Ill. Fanners Ins. Group, 371 N.W.2d 535, 537 (Minn.1985).

II.

The first, and narrow, issue before us is whether the arbitration award in this case constituted the conclusion of a tort claim subject to the Malmin notice requirements or a settlement subject to the Schmidt notice requirements. Auto-Owners argues that the arbitration award in this case constituted the conclusion of a tort claim and that Malmin sets forth the governing standard. The district court agreed with Auto-Owners, noting that “[t]he present case looks like a tort action.” The court of appeals, on the other hand, agreed with George’s contention that the arbitration award constituted a settlement subject to the Schmidt notice requirements. Evenson, 2007 WL 4303518, at *8.

In Employers Mutual Cos. v. Nordstrom, we explained that “[ujnderin-sured coverage has generally been understood as excess coverage, to be utilized only after the cause of action against the insured tortfeasor has been concluded.” 495 N.W.2d 855, 856 (Minn.1993). In other words, recovery from the tortfeasor’s liability insurance is a “condition precedent” to bringing an underinsured claim. Id. at 857. In Nordstrom, we recognized two means by which this condition precedent can be satisfied:

[T]he injured claimant can either (1) pursue a tort claim to a conclusion in a district court action, and then, if the judgment exceeds the liability limits, pursue underinsured benefits; or (2) settle the tort claim for “the best settlement,” give a Schmidtr-Clothier notice to the underinsurer, and then maintain a claim for underinsured benefits.

Id.

The first means by which an injured claimant can resolve the underlying liability claim against the tortfeasor is to “pursue a tort claim to a conclusion in a district court action, and then, if the judgment exceeds the liability limits, pursue underinsured benefits.” Id. In Malmin we observed that “procedural due process principles require notice and an opportunity to be heard before a party can be deprived of rights or possessions.” 552 N.W.2d at 728 n. 4. We noted that “a provision within an insurance contract which requires the insured to notify his or her insurer of the commencement of a lawsuit against a tortfeasor within a limited period of time (ie., 60 days) after service of process comports with due process principles.” Id “Such a provision would permit the insurer to consider the nature of the tort claim and the tortfeasor’s liability limits, and thereby determine whether to attempt to intervene in the litigation in order to protect its own financial interests.” Id.

The second means by which an injured claimant can resolve the underlying liability claim against the tortfeasor is to “settle the tort claim for ‘the best settlement,’ give a Schmidt-Clothier notice to the underinsurer, and then maintain a claim for underinsured benefits.” Nordstrom, 495 N.W.2d at 857. In Schmidt v. Clothier, we explained that when an unde-rinsurer pays benefits to its insured and gives the tortfeasor notice of the payment, “a subsequent release obtained by the tort-feasor will not defeat the [underinsurer’s] subrogation right” against the tortfeasor. 338 N.W.2d at 262. In this scenario, the underinsurer can “substitute its payment to the insured in an amount equal to the tentative settlement” and then, as subro-gee, maintain the insured’s tort action against the tortfeasor. Id. at 263. “If the tortfeasor is released before payment by the insurer, however, no subrogation rights ever arise.” Id. at 262. Because the underinsurer has a “subrogation right against the tortfeasor only if it has paid underinsurance benefits prior to release of the tortfeasor * * *, the underinsurer is entitled to notice of the tentative settlement and an opportunity to protect those potential rights by paying underinsurance benefits before release.” Id. at 263. We held in Schmidt that an underinsurer should be given 30 days’ advance written notice of a tentative settlement agreement. Id.

We interpret an arbitration agreement “to give effect to the intention of the parties as expressed in the language they used in drafting the whole [agreement].” Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997). We agree with the court of appeals that the parties to the arbitration agreement at issue here intended the arbitration to be characterized as a settlement subject to the Schmidt notice requirements. Ev-enson, 2007 WL 4303518, at *7. The agreement states that “DesMarais, Even-son and Farm Bureau have * * * agreed to binding, high/low arbitration, subject to Schmidt v. Clothier notice.” Furthermore, the agreement states that “George may provide Schmidt v. Clothier and other applicable notices to Auto Owners, Progressive and other insurers and proceed as if the payment due by Farm Bureau is tantamount to a settlement offer.” (Emphasis added.) Finally, the agreement provides that “nothing in this document shall affect George’s rights against Auto Owners or Progressive” and that the parties intend to preserve George’s rights against Auto-Owners, Progressive, and other insurers “without res judicata or estoppel effects.”

We also note that on May 13, 2005, George provided Auto-Owners an unequivocal Schmidt notice, a notice responded to by Auto-Owners. Although the court of appeals was correct in its observation “that much of [George’s] conduct during the course of the arbitration and subsequent litigation is contradictory to the express language of his own agreement,” id. at ⅜7 n. 4, the May 13 letter, which was labeled as a Schmidt notice, was the last and most unequivocal notice that George provided Auto-Owners. Finally, George concedes that Auto-Owners is not bound by the arbitrator’s assessment of fault and damages and is free to relitigate those issues.

Notwithstanding inconsistent positions taken by George’s counsel at various times, the arbitration in this case was simply a means of establishing the value of George’s claim for purposes of the Auto-Owners/George settlement. Because the parties to the arbitration intended the arbitration award to be characterized as a settlement governed by Schmidt v. Clothier and because the last notice George provided Auto-Owners was a Schmidt notice, we hold that the arbitration award in this case constituted a settlement subject to the Schmidt notice requirements.

III.

Having determined that the arbitration award in this case constituted a settlement subject to the Schmidt notice requirements, we next consider whether George’s notice to Auto-Owners satisfied those requirements. The district court granted Auto-Owners’s motion for summary judgment on the grounds that George “fail[ed] to provide a proper and timely Malmin notice” and “failed to overcome the presumption that Auto-Owners was prejudiced by [his] failure to provide proper notice.” The court of appeals reversed, concluding that George’s notice satisfied the Schmidt standard. Evenson, 2007 WL 4303518, at *9.

In American Family Mutual Insurance Co. v. Baumann, we outlined the requirements for a valid Schmidt notice as follows:

Henceforth, the notice required of the insured shall be 30 days’ written notice of a settlement agreement which is contingent upon the decision of the injured complainants’ underinsurer whether to preserve its potential right of subrogation either by paying underinsured motorist benefits or by substituting its draft for that of the tortfeasor’s liability insurer. The notice shall identify the insured, the tortfeasor and the tortfea-sor’s insurer and shall disclose the limits of the tortfeasor’s automobile liability insurance and the agreed upon amount of the settlement.

459 N.W.2d 923, 927 (Minn.1990).

We conclude that the letter that George’s counsel sent to Auto-Owners on May 13 satisfied the notice requirements that we set forth in Schmidt and clarified in Baumann. The letter stated that “[plursuant to Schmidt v. Clothier, Mr. George intends to accept said Arbitration Award in the event Auto-Owners does not substitute its draft.” The letter also identified George as the insured, Evenson as the tortfeasor, Progressive as Evenson’s excess liability insurer, the limits of Even-son’s coverage, and the amount of the arbitration award. Finally, Auto-Owners cut short the 30-day notice requirement by informing George’s counsel on May 19 that it did not wish to substitute its draft.

We reject Auto-Owners’s argument that the May 13 letter did not satisfy the Schmidt notice requirements because the letter failed to specify that a settlement had been reached. The May 13 letter, which was labeled as a Schmidt notice and invited Auto-Owners to substitute its draft, met the Schmidt standard and gave Auto-Owners sufficient notice of its option to substitute its draft for the arbitration award. We hold, therefore, that the May 13 letter was a valid Schmidt notice and that the district court erred in granting summary judgment to Auto-Owners.

Because the arbitration award in this case constituted a settlement subject to the Schmidt notice requirements and George provided a valid Schmidt notice to Auto-Owners, we affirm the decision of the court of appeals reversing the district court’s grant of summary judgment to Auto-Owners.

Affirmed.

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

      . George’s counsel provided the district court a confirmation that the letter was faxed to Auto-Owners on April 14. The district court found that "[i]t appears most likely that almost identical letters were sent to Auto-Owners and to Progressive on April 14” and that "[bjecause the April 14 letter to Progressive was received, there is reason to believe that [the letter from George's counsel] to Auto-Owners was also sent.”

      . Minnesota Statutes § 572.18 provides that "[u]pon application of a party, the court shall confirm an award” absent circumstances not present in this case.

      . The court of appeals failed to recognize that the district court had granted George's motion to confirm the arbitration award except as to Auto-Owners and Progressive in its second amended order for judgment. Because the district court has already confirmed the arbitration award, it is not required to do so again on remand.


source: Caselaw Access Project

author: /s/ Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Douglas F. McGUIRE, a Minnesota Attorney, Registration No. 70622.
    No. A08-329.
    Supreme Court of Minnesota.
    Aug. 4, 2008.
   ORDER

On February 21, 2008, the Director of the Office of Lawyers Professional Responsibility filed a petition alleging that respondent Douglas F. McGuire committed professional misconduct warranting public discipline. We referred the matter to a referee for findings of fact and recommendations for disposition. The referee found that respondent destroyed evidence in a disciplinary investigation, in violation of Rules 3.4(a), 8.1(a), and 8.4(c) and (d), Minn. R. Prof. Conduct, and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). The referee also found that respondent promptly and voluntarily disclosed the destroyed letter, and that neither the Director nor any party was harmed by respondent’s act. In light of respondent’s sincere remorse and his decades of service to the public and the profession, the referee recommended that this court publicly reprimand respondent for his misconduct.

Respondent and the Director have stipulated that the referee’s findings of fact are conclusive and the parties jointly recommend that we adopt the referee’s recommended disposition of a public reprimand.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Douglas F. McGuire is publicly reprimanded. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR, and shall pay disbursements entered pursuant to Rule 24, RLPR, and Rule 139, Minn. R. CivApp. P.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: PAUL H. ANDERSON, Justice.

text:
    Harold A. GUSTAFSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2370.
    Supreme Court of Minnesota.
    Aug. 7, 2008.

      Harold A. Gustafson, Indian Springs, NY, appellant pro se.
    Lori Swanson, Office of Atty. Gen., Susan Gaertner, Ramsey County Atty., Mark Nathan Lystig, Asst. Ramsey County Atty., St. Paul, MN, for respondent.
   OPINION

PAUL H. ANDERSON, Justice.

Harold Gustafson was convicted of two counts of first-degree murder for his participation in the 1982 shooting of Saint Paul Police Officer Richard Walton. State v. Gustafson, 379 N.W.2d 81, 83 (Minn.1985). Gustafson filed a direct appeal, and we affirmed his conviction. Id. at 85. Gustafson subsequently filed a petition for postconviction relief. Gustafson v. State, 477 N.W.2d 709, 713 (Minn.1991). After a hearing, the postconviction court" deniéd relief, and we affirmed. Gustafson then filed a second petition for postconviction relief, which the postconviction court denied without a hearing. Gustafson now appeals the second postconviction court’s denial of relief. We affirm.

On Sunday, October 24, 1982, three armed men wearing ski masks attempted to rob the pharmacy at Mounds Park Hospital in Saint Paul. Shortly after the robbers entered the pharmacy, the hospital switchboard operator received a call for help and Richard Walton — an off-duty Saint Paul police officer and hospital security guard — responded to the call. When Walton arrived at the pharmacy, there was an exchange of gunshots between Walton and one of the robbers, during which Walton was wounded in the head. The three robbers then fled the scene without completing the robbery. Twelve hours later, Walton died from the gunshot wound to his head.

Two days later, the police received a tip from a citizen informant that a man named Timothy Eling was connected to Walton’s shooting, and that a man named William Dwyer had specific knowledge of the crime. The police subsequently arrested Dwyer. Following his arrest, Dwyer told the police that he and two other men — Guy Hathaway and petitioner Harold Gustaf-son — planned to rob the hospital pharmacy on October 22, but called off the robbery after arriving at the pharmacy because too many people were present. Dwyer also described the weapons and car used in that aborted robbery attempt.

The next day, October 27, the police arrested Eling and took him to the hospital for treatment of two gunshot wounds to his lower right leg. On November 19, George Leslie contacted the Saint Paul Police Department. Leslie told the police that he was supposed to participate in the robbery of the hospital pharmacy on October 24, with Eling, Hathaway, and Gustaf-son. Leslie said that he did not participate in the robbery because he changed his mind at the last minute and did not meet the three men at the agreed-upon time.

Eling was subsequently indicted for the first-degree murder of Walton, found guilty, convicted, and sentenced to life in prison. We affirmed his conviction on direct appeal. State v. Eling, 355 N.W.2d 286, 295 (Minn.1984). Hathaway and Gus-tafson fled the state, but they were arrested by FBI agents in California nearly 2 years after the murder. Both men were charged with first-degree murder, felony murder, and conspiracy to commit aggravated robbery. The State moved for a joint trial of Hathaway and Gustafson, and the district court granted the motion.

At Gustafson and Hathaway’s trial, Leslie and Dwyer testified for the State. Dwyer testified that he, Eling, Hathaway, and Gustafson had a friend purchase a car to use in the robbery. He went on to describe the October 22 aborted robbery attempt. Dwyer also testified that he and a friend — Johnny Johnson — were in Wisconsin on October 24, the day of the robbery/murder. According to Dwyer, he and Johnson went to a prison in Wisconsin around 1:00 p.m. or 2:00 p.m. that day to visit a friend of Johnson’s. After about an hour at the prison, the two men drove to Mel’s Midtowner Bar in River Falls, Wisconsin. Dwyer testified that he and Johnson drank at Mel’s bar and a bar across the street until 11:00 p.m. or 11:30 p.m. that night.

Leslie testified that on the day of the robbery/murder, he, Eling, Hathaway, and Gustafson discussed how they were going to rob the pharmacy. According to Leslie, the four men planned to meet at 7:00 p.m. to carry out the robbery. But Leslie testified that he did not meet the men because he felt the robbery was too risky.

Eling testified on behalf of the defendants, stating that on October 24, he attempted to rob the pharmacy with Leslie and Dwyer, not Hathaway and Gustafson. Neither Gustafson nor Hathaway testified at their trial.

The jury found both Gustafson and Hathaway guilty of two counts of first-degree murder and one count of conspiracy to commit aggravated robbery. The district court convicted both men of first-degree murder and sentenced them to life in prison. Gustafson filed a direct appeal, arguing that (1) the court improperly joined his trial with Hathaway’s trial; (2) Minn. R.Crim. P. 9.01, subd. 8(3) violated his right to obtain disclosure information and exculpatory evidence from the State; (3) law enforcement’s use of photo displays violated his due process rights; and (4) the evidence was insufficient to convict him of the offenses for which he was charged. We affirmed Gustafson’s conviction. Gus-tafson, 379 N.W.2d at 85.

Gustafson subsequently filed a petition for postconviction relief, claiming that he received ineffective assistance of trial counsel and that he was denied conflict-free counsel because his attorney agreed to share investigative duties with Hathaway’s attorney. After a hearing, the post-conviction court denied relief, and we affirmed. Gustafson, 477 N.W.2d at 713.

Sixteen years after we denied his first postconviction petition, Gustafson, who is now imprisoned in Nevada, filed the current petition for postconviction relief. Gustafson argues he has newly discovered evidence showing that (1) the State made secret deals with Dwyer and Leslie in exchange for their testimony against him; (2) a police officer who investigated the robbery/murder falsely testified that he had' confirmed Leslie’s and Dwyer’s alibis; and (3) the victim did not die of a gunshot wound to the head. The postconviction court, after discussing the facts at issue, the evidence, and the claims at length, denied Gustafson’s petition without a hearing. The court also determined that Gus-tafson was not entitled to appointed counsel. Gustafson appealed to our court. On appeal, Gustafson reasserts his claims that a police officer testified falsely about the alibis of Leslie and Dwyer, and that the State made secret deals with Leslie and Dwyer to obtain their testimony. In addition, Gustafson asserts that he is entitled to appointed counsel for this postconviction proceeding because his present imprisonment in Nevada impedes his access to the Minnesota legal system.

I.

When reviewing a postconviction court’s denial of relief, we have “an obligation to extend a broad review of both questions of law and fact.” Butala v. State, 664. N.W.2d 333, 338 (Minn.2003) (internal quotation omitted). On review, we examine issues of law de novo and review findings of fact for sufficiency of the evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn.2007). To be entitled to an evidentiary hearing, a petitioner must “allege facts that are sufficient to entitle him or her to the relief requested” and the allegations must be “ ‘more than argumentative assertions without factual support.’ ” Id. (quoting Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)). We have stated that “[p]ostconviction courts are required to hold an evidentiary hearing and make findings of fact and conclusions of law ‘[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief.’ ” Id. (quoting Minn.Stat. § 590.04, subd. 1 (2006)).

When a “direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). But when a petitioner’s claims are based on newly discovered evidence, as is asserted here, we have said that the “claim is not Km^fe-barred if the evidence was not available at the time of his direct appeal. Schneider v. State, 725 N.W.2d 516, 524 (Minn.2007).” A new trial will be granted on the basis of newly discovered evidence if the petitioner establishes that the evidence “(1) was not known to the defendant or his counsel at the time of trial; (2) could not have been discovered through due diligence before trial; (3) is not cumulative, impeaching, or doubtful; and (4) would probably produce an acquittal or a more favorable result.” Wayne v. State, 747 N.W.2d 564, 566 (Minn.2008).

When a petitioner claims that he has newly discovered evidence of falsified testimony, we apply the Larrison test, under which a new trial is granted only if “(1) the court [is] reasonably well-satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.” Wilson v. State, 726 N.W.2d 103, 106 (Minn.2007). We have said that “[t]he first two prongs [of the Larrison test] are compulsory, but the third prong is not required in order to grant a new trial.” State v. Turnage, 729 N.W.2d 593, 597 (Minn.2007).

Gustafson claims that Saint Paul Police Sergeant James Frank provided false testimony at trial when Frank stated that he had confirmed that Dwyer and his friend Johnny Johnson were in Wisconsin on the day of the robbery/murder. At trial, Frank testified that he confirmed Dwyer’s alibi by speaking to three people: a deputy at the Wisconsin prison who Dwyer claimed had visited with Johnson; Mel Kusilek, the owner of Mel’s Midtown-er Bar; and Randy Kusilek, a bartender at Mel’s bar. Frank testified that through his discussions with these people he confirmed Dwyer’s whereabouts at the time of the robbery/murder. Frank further testified that Mel Kusilek told Frank that he did not know anyone named Dwyer. None of the men Frank said he interviewed regarding Dwyer’s alibi testified at trial.

As evidence that Frank perjured himself, Gustafson submitted to the postcon-viction court a notarized affidavit from a private investigator — Jill Seacrist — stating that she spoke to Randy Kusilek in September 1993. According to Seacrist, Randy Kusilek told her that a Saint Paul homicide investigator interviewed him about 9 months after the robbery/murder and that he told the investigator “that he could not positively identify Johnny Johnson and another male (William Dwyer) being in Mel’s Midtowner Bar on the night of the St. Paul shooting.” Further, after Seacrist sent Randy Kusilek a photograph of Dwyer, Randy Kusilek called Seacrist’s office and told her that he had “never seen that person before.”

Gustafson also submitted a signed, unno-tarized affidavit from Mel Kusilek. In that affidavit, Mel Kusilek states that a Saint Paul homicide investigator questioned him approximately 1 year after the robbery/murder, and that he told the investigator that he was not working on the night of the robbery/murder. Mel Kusilek went on to state that he and Randy Kusi-lek “were each given a subpoena to testify in court,” but that “[a]t a later date, [he] received a telephone call and was told that [he and Randy Kusilek] did not have to testify.” Included with Mel Kusilek’s affidavit was a picture of Dwyer, above which Mel Kusilek wrote, “[t]o my knowledge the man in [the] photograph is a complete stranger to me.”

The postconviction court concluded that it was not satisfied that Frank’s testimony regarding Dwyer’s alibi was false, and therefore Gustafson had failed to satisfy the first prong of the Larrison test. In support of its conclusion, the court noted that the testimony of both Frank and Dwyer was “internally consistent as well as consistent with Sergeant [Franks’] police reports.” Further, the court observed that Frank had disclosed to the jury that Mel Kusilek stated he did not know Dwyer.

We conclude that the postconviction court properly denied Gustafson relief based on his claim that Frank provided false testimony at trial about Dwyer’s alibi. First, as discussed above, claims based on newly-discovered evidence are not subject to the Knaffla bar if “the evidence was not available at the time of [the petitioner’s] direct appeal.” Schneider, 725 N.W.2d at 524. In this case, Gustafson received Frank’s police reports before trial, so he knew the substance of Frank’s testimony. Further, at trial, Gustafson heard both Dwyer’s and Frank’s testimony about Dwyer’s alibi. Finally, at the evidentiary hearing during Gustafson’s first postcon-viction proceeding, both Gustafson and his two attorneys testified that at the time of trial, they knew about Dwyer’s alibi and Mel Kusilek’s identity. We therefore conclude that the evidence of Frank’s alleged false testimony was available to Gustafson when he filed his direct appeal. Further, Gustafson had the opportunity to interview the men that Frank said confirmed Dwyer’s alibi. Therefore, we hold that Gustafson’s claim that he is entitled to relief on his claim that there is newly discovered evidence that a police officer provided false testimony at his trial is KnajfLa-haxred. See Schneider, 725 N.W.2d at 524.

II.

Gustafson also claims that Sergeant Frank perjured himself when he testified that he confirmed Leslie’s alibi. Leslie claimed that on the night of the robbery/murder, he was with Sherri Good-seth — his girlfriend at the time. Frank testified that he confirmed Leslie’s alibi by speaking to Goodseth. Gustafson’s claim that Frank provided false testimony is based on the assertion that no person named Sherri Goodseth exists. To support his claim, Gustafson submitted several internet searches of the name “Sherri Goodseth.” These searches were done using several different internet search engines and included several spelling variations of the name Sherri Goodseth. The searches covered Minnesota and the rest of the United States. Every search of Sherri Goodseth’s name that Gustafson submitted to the court showed that there were no matching results.

The postconviction court concluded that it was not satisfied that Frank’s testimony about Leslie’s alibi was false. The court stated that Gustafson’s “submissions of various internet searches [do] not suggest that Sherri Goodseth does not exist. Despite the reach of the world wide web, not every individual appears in an internet search.” Because of this conclusion, the court declined to analyze the remaining two Larrison factors.

We conclude that the postconviction court properly concluded that although Sherri Goodseth’s name does not appear on the internet, this absence does not prove that Sherri Goodseth does not exist. Gustafson’s internet searches were the only evidence that he offered to prove that Frank provided false testimony about Leslie’s alibi, and we are not “reasonably well-satisfied” that this evidence shows Frank’s trial testimony was false. Wilson, 726 N.W.2d at 106. We therefore conclude that Gustafson “fail[ed] to allege facts that are sufficient to entitle him [ ] to the relief requested.” Leake, 737 N.W.2d at 535. Thus, we hold that the postconviction court did not err when it denied Gustafson relief based on his claim that Frank provided false testimony about Leslie’s alibi.

III.

Gustafson next asserts that the State made a secret deal with Leslie in order to obtain Leslie’s testimony. Gus-tafson’s only evidence to support this claim is a police report written on November 24, 1982, purportedly by a Florida police officer. The report recounts the arrest of Leslie for his suspected participation in an armed robbery. In this report, the Florida officer states that Sergeant Frank had contacted him and that based on this conversation the officer learned that Leslie “is reportedly a star prosecution witness in the murder of a St. Paul, Minn., police officer.” The officer further states that he “called Sgt. Frank and spoke to him about the case in Minnesota,” and that Frank advised the officer “that [Leslie] would fight extradition back to the State of Florida.”

We conclude that Gustafson’s claim that the State made a secret deal with Leslie is “an argumentative assertion! ] without factual support.” Leake, 737 N.W.2d at 535. Nothing in the police report that Gustaf-son submitted suggests anything other than the fact that Minnesota authorities made Florida authorities aware that Leslie was an important witness in an upcoming trial. There is no indication that Leslie was shown or promised leniency in return for his testimony. Because Gustafson failed to provide factual support for his claim, we hold that the postconviction court properly denied relief based on this claim.

IV.

Gustafson also asserts that the State made a secret deal with Dwyer to obtain his testimony. Gustafson claims that Minnesota authorities worked with Missouri authorities to give Dwyer leniency in a Missouri criminal matter — charges associated with an armed robbery — in return for Dwyer’s testimony at Gustafson’s trial. In support of this claim, Gustafson submitted a copy of the transcripts of Dwyer’s guilty plea and sentencing hearings in Missouri circuit court.

We conclude, as we recently did in code-fendant Hathaway’s second petition for postconviction relief, that “the trial record indicates that [Gustafson] either knew or should have known of the details of Dwyer’s plea agreement at the time of trial, and certainly no later than the time of his first petition for postconviction relief.” Hathaway v. State, 741 N.W.2d 875, 879 (Minn.2007). First, Gustafson’s attorney questioned Dwyer at trial about his pending Missouri plea agreement. Second, Dwyer entered into the plea agreement in October 1984 and was sentenced pursuant to the agreement in December 1984. It was after that time that Gustaf-son filed his direct appeal and his first postconviction petition. He was represented by counsel in both proceedings. Gus-tafson asserted in his pro se petition on direct appeal that Dwyer offered false testimony at trial. Gustafson also raised the same issue again as part of the claim of ineffective assistance of counsel that he raised in his first postconviction proceeding. Despite this timeframe and prior knowledge, Gustafson did not raise the issue of Dwyer’s Missouri plea agreement on direct appeal or during his first post-conviction proceeding.

Furthermore, while we note that Gustaf-son is not at fault for being unable to obtain the parts of Dwyer’s plea agreement and sentencing hearing that were omitted from the transcript, Gustafson provides no explanation for why the transcript, though incomplete, was unavailable to him at the time of his direct appeal or his first postconviction proceeding. Because this evidence was available to Gus-tafson at the time of his direct appeal and his first postconviction proceeding, we conclude that Gustafson’s claim is barred by Knaffla. See Schneider, 725 N.W.2d at 524. Therefore, we hold that Gustafson is not entitled to relief on the ground that the State made a “secret” deal with Dwyer in return for Dwyer’s testimony.

V.

Finally, Gustafson claims that he is entitled to appointed counsel because he does not have sufficient access to Minnesota courts from the Nevada prison in which he is presently serving his sentence. Minnesota Statutes § 590.05 (Supp.2007) provides that “[t]he state public defender shall represent [a person financially unable to obtain counsel] if the person has not already had a direct appeal of the conviction.” (Emphasis added). But section 590.05 also states that “[t]he state public defender may represent, without charge, all other persons pursuing a post-conviction remedy under section 590.01, who are financially unable to obtain counsel.” (Emphasis added). Under section 590.05, a petitioner has a right to appointed counsel for his direct appeal proceedings; but, a petitioner who has already had a direct appeal is not entitled to appointed counsel for subsequent postconviction appeals. Because Gustafson has already had a direct appeal, as well as one prior post-conviction review, he is not statutorily entitled to appointed counsel for the present postconviction proceeding. In addition, because Gustafson was represented by counsel both on direct appeal and in his previous postconviction review, he has no constitutional right to counsel in this proceedings. See Deegan v. State, 711 N.W.2d 89, 98 (Minn.2006) (construing the Minnesota Constitution); see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Therefore, we hold that the postconviction court did not err when it denied Gustafson’s motion for appointed counsel.

Affirmed.

      . A more detailed version of the facts can be found in this court’s opinions in Gustafson v. State, 477 N.W.2d 709 (Minn.1991) and State v. Hathaway, 379 N.W.2d 498 (Minn.1985) (affirming the conviction of Gustafson's co-defendant-Guy Hathaway).

      . Under Minn.Stat. § 590.01, subd. 4(a)(2) (2006), a person convicted of a crime generally may not file a petition for postconviction relief if more than, two years have passed since an appellate court disposes of the person’s direct appeal. But "[a]ny person whose conviction became final before August 1, 2005, shall have two years after [August 1, 2005] to file a petition for postconviction relief.” Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Law. 901, 1098. Because Gustafson filed the present postconviction petition before August 1, 2007, his petition is not barred by section 590.01. Further, as the postconviction court properly concluded, section 590.01 does not apply to claims of newly-discovered evidence, subject to some limitations not at issue here. Minn.Stat. § 590.01, subd. 4(b)(2) (2006).

      . Gustafson’s claim concerning the cause of Walton’s death appears to have been abandoned on appeal.

      . The postconviction court did not address this claim in its order, but Gustafson raised it in his postconviction petition.

      . We note that Gustafson’s request for appointed counsel appears to primarily upon his inability to access the Minnesota court system from his Nevada prison. In a letter to the postconviction court, Gustafson attached a written policy of the Nevada prison that states, “law library supplies and services are for Nevada cases only, mail to anyone outside of the State of Nevada is not legal mail and will be returned unmailed.” Further, Gustaf-son asserts that the only access he has to Minnesota legal resources is a paging system, which allows him to request specific cases or statutes but does not provide him any method to research which cases or statutes to request.
      The United States Supreme Court has said that prisoners are constitutionally entitled to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 821-22, 824, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). But to receive relief on such a claim, the inmate must
      demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.

        Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Nevertheless, Gustafson did not develop sufficient facts showing that he has been denied meaningful access to the courts. Because we lack the information necessary to determine whether Gustafson is being denied meaningful access to the courts, we decline to address the issue.


author: DIETZEN, Justice.

text:
    STATE of Minnesota, Respondent, v. Chad Jeffrey THOMPSON, Appellant.
    No. A07-1439.
    Supreme Court of Minnesota.
    Aug. 7, 2008.

      Cathryn Middlebrook, Asst. State Public Defender, St. Paul, MN, for appellant.
    Lori Swanson, Atty. Gen., St. Paul, MN, Christopher D. Karpan, Douglas County Atty., Megan E. Burkhammer, Asst. Douglas County Atty., Alexandria, MN, for respondent.
   OPINION

DIETZEN, Justice.

Appellant Chad Jeffrey Thompson challenges a Douglas County District Court order, which imposed, among other things, concurrent 10-year conditional release periods for his second and third criminal sexual conduct convictions. Thompson argues that the court erred in its interpretation of Minn.Stat. § 609.109, subd. 5 (1998). The court óf appeals reduced the 10-year conditional release period for the second offense to 5 years but affirmed the remaining 10-year conditional release period for the third offense. We reverse.

The material facts are undisputed. Between March 1999 and January 2000, Thompson committed three criminal sexual conduct offenses against three different minor females. On March 8, 1999 (the first offense), then 1'9-year-old Thompson had sexual intercourse with a 14-year-old girl. Thompson was charged by complaint with third-degree criminal sexual conduct in violation of Minn.Stat. § 609.344, subd. 1(b) (2006) (prohibiting a person from engaging in sexual penetration with someone between the ages of 13 and 16 when the defendant is more than 2 years older than the victim).

On October 2, 1999 (the second offense), Thompson, then 20 years old, had sexual contact with a 15-year-old girl. The second offense occurred after he was charged for the first offense but before he entered a guilty plea on the first offense.

On October 26, 1999, Thompson pleaded guilty to the first offense. At the plea hearing, the district court found that Thompson -waived his constitutional trial rights and ■ admitted a sufficient factual basis to support the charge. The district court indicated it “would * * * adjudicate! ]” Thompson guilty of the charge, but reserved its decision regarding the appropriateness of the plea agreement pending completion of a pre-sentence investigation (PSI).

On January 5, 2000 (the third offense), Thompson had sexual contact with a 14-year-old girl in her home. The third offense occurred between the plea hearing and the sentencing hearing for the first offense.

On January 6, 2000, Thompson was sentenced for the first offense. Imposition of a prison sentence was stayed on a number of conditions, and Thompson was put on probation for 15 years.

Later in January 2000, Thompson was charged by separate complaints for the second and third offenses. He was charged with fourth-degree criminal sexual conduct, Minn.Stat. § 609.345, subd. 1(b) (2006) (prohibiting a person from engaging in sexual contact with someone between the ages of 13 and 16 when the defendant is more than 4 years older than the victim) for the second offense, and third-degree criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(b), for the third offense. On April 20, 2000, Thompson pleaded guilty to both offenses; he was sentenced to 15 months in prison for the second offense and 28 months in prison for the third offense. The district court stayed execution of both prison sentences and placed Thompson on probation for a total of 15 years.

A year and a half later, Thompson pleaded guilty to aiding an offender in connection with a motor vehicle theft, Minn.Stat. § 609.495, subd. 1(a) (2006). Thompson also admitted that this conduct violated the terms of his probation on the three criminal sexual conduct convictions. At his sentencing for aiding an offender on November 14, 2001, the district court revoked the stay of execution on each of the prison sentences for the three criminal sexual conduct convictions (15 months, 18 months, and 28 months, respectively) and ordered that Thompson serve the three sentences concurrently. Further, the district court ordered a 10-year conditional release period pursuant to the mandatory conditional release statute, Minn.Stat. § 609.109, subd. 7 (1998).

In May 2007, Thompson moved the district court to modify the length of his conditional release period. Thompson argued that the date of conviction for the first offense was not until he was sentenced on January 6, 2000, and that the second and third offenses occurred before that date, on October 2, 1999, and January 5, 2000. Thompson argued, therefore, that when he committed the second and third offenses he did not have any prior criminal sexual conduct convictions. Consequently, he argued that his conditional release should be reduced to 5 years under Minn. Stat. § 609.109, subd. 7.

The district court rejected Thompson’s argument and concluded that the date of his first conviction was the date he pleaded guilty. But, the court granted Thompson’s motion in part and decreased the conditional release period for the first offense to 5 years. The court did not modify the 10-year conditional release period imposed on the second and third offenses.

Thompson appealed arguing that under Minn.Stat. § 609.109, subd. 5, he should only receive concurrent 5-year conditional release periods for the second and third offenses. The court of appeals concluded that the second offense warranted only a 5-year conditional release period, but that a 10-year conditional release period was required for the third offense. State v. Thompson, No. A07-1439 at 3-4 (Minn.App. Nov. 14, 2007) (order affirming in part, reversing in part, and remanding to correct sentence). We granted Thompson’s petition for review.

On appeal, Thompson argues that under Minn.Stat. § 609.109, subd. 5, the date of his first conviction is January 6, 2000, the date of his sentencing hearing. He contends that on that date he had no qualifying convictions under section 609.109 and, therefore, his conditional release period should be 5 years rather than 10 years.

We review questions of statutory interpretation de novo. State v. Engle, 743 N.W.2d 592, 593 (Minn.2008). The objective of all statutory interpretation is “to give effect to the intention of the legislature in drafting the statute.” State v. Iverson, 664 N.W.2d 346, 350 (Minn.2003); Minn.Stat. § 645.16 (2006). The principal method of determining the legislature’s intent is to rely on the plain meaning of the statute. Iverson, 664 N.W.2d at 350-51.

Minnesota Statutes § 609.109 (1998) sets forth presumptive and mandatory sentences for repeat sex offenders. Subdivision 7 provides that persons convicted of enumerated sex offenses must be placed on conditional release following completion of the imposed sentence. MinmStat. § 609.109, subd. 7. Subdivision 7 mandates a 5-year conditional release period for all defendants sentenced to prison for first-, second-, third-, and fourth-degree criminal sexual conduct and a 10-year conditional release period “[i]f the person was convicted for a violation [of first-, second-, third-, or fourth-degree criminal sexual conduct] a second or subsequent time.” Id. (emphasis added). Under subdivision 7, if Thompson had a prior criminal sexual conduct conviction when he committed any of the three offenses, he is subject to a 10-year conditional release period; but if Thompson had no prior criminal sexual conduct convictions, he is only subject to a 5-year conditional release period. Thompson committed the second offense before he pleaded guilty to any qualifying offenses. Thus, the question is whether Thompson had a criminal sexual conduct conviction as of the date of his third offense, January 5, 2000.

■The term “conviction” is defined by statute. MinmStat. § 609.02, subd. 5 (2006). A conviction is defined as either “(1) A plea of guilty; or (2) A verdict of guilty by a jury or a finding of guilty by the court” that is “accepted and recorded by the court.” Id. Thus, a “conviction” requires that a district court both accept and record the guilty plea. Id It is undisputed that Thompson entered a guilty plea for the first qualifying offense pursuant to a plea agreement at the October 26, 1999, plea hearing. The district court and the court of appeals both concluded that Thompson was convicted as of that date. Thompson argues that a conviction requires entry of a judgment of conviction, which did not occur here until the sentencing hearing on January 6, 2000. Thus, we must determine whether the district court convicted Thompson on the date of the plea hearing or the date of the sentencing hearing.

Rule 15.04 of the Minnesota Rules of Criminal Procedure sets forth the procedure that district courts must follow when a defendant enters a plea of guilty pursuant to a plea agreement. Minn. R.Crim. P. 15.04, subd. 3. More importantly, it sets forth the procedure required by the district court to “accept” a plea of guilty:

When such plea is tendered and the defendant questioned, the trial court shall reject or accept the plea of guilty on the terms of the plea agreement. The court may postpone its acceptance or rejection until it has received the results of a pre-sentence investigation.

Minn. R.Crim. P. 15.04, subd. 3(1) (emphasis added). The use of the word “shall” in the first sentence indicates the rule is mandatory. Minn.Stat. § 645.44, subd. 16 (2006). Under this rule a district court must either accept or reject the plea of guilty on the terms of the plea agreement. Further, the court may postpone its acceptance or rejection pending completion of a PSI.

At the plea hearing, the district court found that Thompson effectively waived his trial rights and established, through his testimony, a sufficient factual basis to support the plea. But the court then stated it would “reserve a decision as to the appropriateness of the plea agreement pending the results of the [PSI] and the sex offender evaluation.” With those words, the court did not accept the guilty plea on the terms of the plea agreement. Thus, we conclude that at the plea hearing the court postponed acceptance of Thompsons plea.

Because under Minn.Stat. § 609.02, subd. 5, a guilty plea must be “accepted” by the court to become a conviction, we conclude Thompson was not convicted of third-degree criminal sexual conduct at the plea hearing. Instead, Thompson was convicted at the sentencing hearing when the district court accepted both Thompson’s guilty plea and the terms of the plea agreement. Therefore, when Thompson committed the third offense on January 5, 2000, he did not have any prior criminal sexual conduct convictions and his period of conditional release for that offense should be 5 years.

We reverse the court of appeals’ order affirming a 10-year conditional release period for Thompson’s third offense and remand to the district court to impose a 5-year conditional release period.

Reversed and remanded.

      . The conditional release statute requires 5-year conditional release periods for all offenders convicted of first-, second-, third-, or fourth-degree criminal sexual conduct, and 10-year conditional release periods for offenders with prior criminal sexual conduct convictions. Minn.Stat. § 609.109, subd. 7.

      . It is unclear why the district court did not decrease the conditional release period for the second offense. If the district court was correct that the date of conviction was October 26, 1999, Thompson had a prior conviction at the time of the third offense on January 5, 2000, but did not have a prior conviction when he committed the second offense on October 2, 1999.

      . Section 609.109 has been repealed by the legislature since Thompson’s sentencing. Act of June 1, 2006, ch. 260, art. 1, § 48, 2006 Minn. Laws. 707, 732 (repealing subdivisions 1 through 6); Act of June 2, 2005, ch. 136, art. 2, § 23, 2005 Minn. Laws 920, 923 (repealing subdivision 7).

      . Relying on State v. Hoelzel, 639 N.W.2d 605 (Minn.2002), Thompson also argues that his guilty plea was not “recorded by the court” until the filing and entry of the judgment of conviction, which did not occur until after the sentencing hearing. But a defendant may stand convicted before he is sentenced. See Minn. R.Crim. P. 27.01 (authorizing district courts to set conditions of release for a defendant who “has been convicted and is awaiting sentence”). Because we conclude that Thompson’s plea was not accepted prior to the second offense, we do not reach the issue of when Thompson's conviction was recorded by the court. We observe, however, that the clerk’s entry of the judgment of conviction under Minn. R.Crim. P. 27.03, subd. 7, is not required to satisfy the Minn.Stat. § 609.02 requirement that a guilty plea be "recorded by the court.”


author: PER CURIAM.

text:
    In re Petition for REINSTATEMENT OF William G. MOSE, a Minnesota Attorney, Registration No. 125659.
    No. A07-0437.
    Supreme Court of Minnesota.
    Aug. 7, 2008.

      Edward F. Kautzer, St. Paul, MN, for Relator.
    Cassie Breta Hanson, Kenneth R. White, Office of Lawyers Professional Responsibility, St. Paul, MN, for Respondents.
   OPINION

PER CURIAM.

William G. Mose, a lawyer admitted to the practice of law in Minnesota in 1980 and indefinitely suspended from said practice in 1991, filed a petition for reinstatement to the practice of law. The Director of the Office of Lawyers Professional Responsibility contested the petition. A panel of the Lawyers Professional Responsibility Board recommended Mose not be reinstated, concluding that Mose failed to meet several of his reinstatement conditions, and that Mose did not show by clear and convincing evidence that he has undergone the requisite moral change for reinstatement or now possesses the intellectual competence necessary to be a lawyer. Mose appeals the panel’s findings, conclusions, and recommendation. We conclude that Mose should not be reinstated to the practice of law because he has failed to (1) satisfy several of his reinstatement conditions; (2) prove that he has undergone the requisite moral change for reinstatement; and (3) prove that he is competent to return to the practice of law.

William G. Mose was admitted to practice law in Minnesota in 1980. He began practicing law in 1984 when he opened a solo practice that dealt mainly with family law issues. In 1989, the Director of the Office of Professional Responsibility filed a petition for disciplinary action against Mose, alleging that he had committed misconduct involving incompetence, neglect, and a failure to adequately communicate with clients in two client matters, in violation of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 3.4(c) and (d), and 8.4(d). Mose and the Director entered a stipulation for discipline, which recommended a public reprimand and placing him on 2 years of supervised probation. We accepted the stipulation and imposed the recommended sanctions. In re Mose, 443 N.W.2d 191 (Minn.1989).

In 1990, the Director petitioned to revoke Mose’s probation. The Director alleged that Mose had not complied with his probation conditions and that he had committed new acts of misconduct in five client matters. Based on the Director’s petition, we suspended Mose indefinitely from the practice of law in Minnesota. In re Mose, 458 N.W.2d 100 (Minn.1990). The Director filed another petition for disciplinary action in 1991, alleging that Mose committed further misconduct in eight client matters both before and after his suspension. Mose again entered into a stipulation with the Director. We accepted the stipulation and indefinitely suspended Mose from the practice of law in Minnesota for a minimum of 5 years. In re Mose, 470 N.W.2d 109 (Minn.1991). The record reflects that at the end of all the disciplinary proceedings, the Director had received 19 separate complaints against Mose.

After his suspension, Mose spent the next 16 years working at several different jobs, mostly as an official at sports games. He officiated an average of 20 to 25 hours a week, generally in the evenings or on the weekend. Mose did not hold any law-related jobs during his suspension. But in 2006, Mose began volunteering for Home Line, an advocacy organization where tenants can receive information and advice regarding their legal rights. Mose testified that he volunteered at Home Line for about 6 to 8 hours a week for the first few months and then about 3 hours a week for the next 8 months. Mose volunteered at Home Line for a little over 1 year until he stopped in 2007 to “concentrate on [his] reinstatement process.”

In February 2007, Mose petitioned for reinstatement to the practice of law. The Director opposed reinstatement. After a hearing, a panel of the Lawyers Professional Responsibility Board unanimously recommended that Mose not be reinstated. The panel concluded that Mose had failed to (1) satisfy some of the original conditions required for reinstatement; (2) prove by clear and convincing evidence that he had undergone the requisite moral change for reinstatement; and (3) prove that he possessed the organizational skills, work ethic, and motivation to practice law.

Mose ordered a transcript of the hearing, therefore, the panel’s findings “ ‘are not binding on this court.’ ” In re Selmer, 749 N.W.2d 30, 37 (Minn.2008) (quoting In re Peterson, 718 N.W.2d 849, 853 (Minn.2006)); see also Rule 14(e), RLPR (providing that if respondent orders a transcript, the findings of fact and conclusions of law are not conclusive). Accordingly, we independently review the entire record to determine whether a petitioner should be reinstated. In re Singer, 735 N.W.2d 698, 703 (Minn.2007). But we will uphold the panel’s factual findings if they have evidentiary support in the record and are not clearly erroneous. Id. We also “defer[ ] to the credibility assessments of lower courts and tribunals.” In re Kadrie, 602 N.W.2d 868, 871 (Minn.1999).

A petitioner applying for reinstatement must show he has met the reinstatement conditions we imposed in our suspension order. See Singer, 735 N.W.2d at 703-4. The petitioner then “ ‘must establish by clear and convincing evidence that she or he has undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once forfeited.’ ” Singer, 735 N.W.2d at 703 (quoting In re Jellinger, 728 N.W.2d 917, 922 (Minn.2007)). We have said that moral change is a central focus of the reinstatement inquiry, but it is only one factor. Jellinger, 728 N.W.2d at 922; Kadrie, 602 N.W.2d at 870. We also consider the following factors when determining whether reinstatement is appropriate:

(1) the petitioner’s recognition of the wrongfulness of his conduct; (2) the length of time since the original misconduct and the suspension; (3) the seriousness of the original misconduct; (4) the existence of physical or mental illness or pressures that are susceptible to correction; and (5) the petitioner’s intellectual competency to practice law.

Singer, 735 N.W.2d at 703. Each of these reinstatement factors will be considered in turn.

Compliance with the Suspension Order

In our 1991 order suspending Mose from the practice of law, we conditioned his reinstatement on, among other things:

1. complying with Rule 26, RLPR;
2. successfully completing the Minnesota bar examination;
3. satisfying CLE requirements pursuant to Rule 18(e), RLPR;
4. refunding unearned retainers to three clients;
5. fully complying with the terms of our July 18, 1989 discipline order. Mose, 470 N.W.2d at 110.

Our previous order required Mose to, among other things, (1) complete a course in family law and a course in professional responsibility; (2) complete a 4- or 8-day course in trial advocacy skills; (3) complete 30 CLE credits; and (4) certify to the Director that he made restitution to two clients. Mose, 443 N.W.2d at 192.

The panel concluded that Mose failed to (1) comply with Rule 26, RLPR; (2) comply with his CLE reporting requirement; (3) pay his lawyer registration fee; and (4) pay restitution to two clients. It is not disputed that Mose successfully completed the Minnesota bar examination and that he completed a course on family law and one on professional responsibility.

Rule 26(a), RLPR, required Mose to notify his clients of his suspension. The Director asserted, and the panel found, that Mose failed to notify his clients of his suspension and instead vacated his law office without notice. But the Director’s report references clients whom Mose failed to tell about his 1990 suspension. Mose was already disciplined for his failure to notify those clients when we suspended him in 1991. Mose, 470 N.W.2d at 109. Nowhere in the record does it indicate that Mose violated the Rule 26 notification requirements after his 1991 suspension. Because Mose was already disciplined for his 1990 violations of Rule 26, these violations should not prevent him from reinstatement if he is able to meet the other reinstatement requirements. The same is true of the retainers Mose took from clients after his 1990 suspension — Mose was already disciplined for this misconduct in 1991, Id., and did not commit any further similar misconduct after his 1991 suspension.

Nevertheless, Mose still owes restitution to two clients, and we conditioned his reinstatement on payment of that restitution. Id. at 110. Further, Mose testified and submitted an affidavit showing that he has earned 60.5 CLE credits, but Mose failed to report these credits to the Board of Continuing Legal Education. While we recognize that Mose’s earned CLE credits, if reported, would satisfy the CLE requirements we imposed on him, we note that CLE credits must be reported before an attorney may be reinstated. Rule 18(e)(4), RLPR; Rule 9, Rules of the Minnesota State Board of Continuing Legal Education. Finally, Mose attended a 4-day trial advocacy course, which was a condition of his reinstatement. But he missed parts of 2 days of the course and therefore did not fully complete the course as we required. Because Mose did not pay restitution to two clients, properly report his CLE credits, or complete the required trial advocacy course, we conclude that Mose failed to satisfy his reinstatement conditions.

Moral Change and Recognition of Wrongfulness of Misconduct

We have said that to be reinstated to the practice of law, the petitioner’s moral change “must be such that if the petitioner were reinstated, ‘clients could submit their most intimate and important affairs to him with complete confidence in both his competence and fidelity.’ ” Kadrie, 602 N.W.2d at 870 (quoting In re Herman, 293 Minn. 472, 476, 197 N.W.2d 241, 244 (1972)). The petitioner must provide “stronger proof of good character and trustworthiness than is required in an original application for admission to practice.” In re Porter, 472 N.W.2d 654, 655-56 (Minn.1991); see also In re Strand, 259 Minn. 379, 380, 107 N.W.2d 518, 519 (1961). Evidence of this moral change must come from (1) an observed record of appropriate conduct, (2) the petitioner’s own state of mind, and (3) the petitioner’s values. Kadrie, 602 N.W.2d at 870 (citing In re Swanson, 405 N.W.2d 892, 893 (Minn.1987)).

Following the hearing, the panel found that Mose failed to tell a witness who téstifíed at the panel hearing about his suspension or the nature of the panel hearing. The panel found that Mose’s failure to tell this witness about his suspension “signifies a willingness to engage in dishonest conduct in order to avoid accepting consequences or blame.” Moreover, the panel found that Mose’s failure to pay restitution to two clients shows a disregard for the harm he caused those clients. The panel further found that while Mose testified that he was remorseful, he “tended to minimize or ignore his dishonest acts of misconduct and offered no explanation regarding his intentional misconduct.” Overall, the panel found that Mose “was not credible in his testimony that he understood the inappropriateness of’ his pri- or misconduct and failed to demonstrate remorse for that misconduct. Based on its findings, the panel concluded that Mose had not undergone the requisite moral change to merit reinstatement.

As a general rule we will defer to a panel’s finding that a petitioner’s testimony that he has undergone the requisite moral change is not credible, and we see no reason to depart from this general rule here. Kadrie, 602 N.W.2d at 870. Moreover, based on the record before us, we conclude that Mose failed to provide clear and convincing evidence that he has undergone the moral change necessary to reenter the practice of law.

At the panel hearing, Mose stated that he is seeking reinstatement because he wants to “rectify the mistakes [he] did in the past and [he thinks he] can do a good job.” He admitted that he made several mistakes and that those mistakes involved neglect, incompetence, and a failure to communicate with clients; Mose testified that his misconduct was due to taking on too many cases while being a solo practitioner, being inexperienced, and splitting his time between his work in the Twin Cities and his family in the Brainerd area. Mose also stated that when he undertook the representation of a new client, he would neglect the clients he already had in order to do work for the new client.

When asked about his intentional lies to clients, Mose stated that he was “very sorry” but also characterized his deceptive statements as “inaccurate statements” or “misstatements,” which we conclude indicates an ongoing unwillingness to recognize the wrongfulness of his conduct. Mose also apologized, but offered no explanation for much of his intentional conduct, including why he kept client retainers when he was suspended from the practice of law.

Mose testified that he is currently more mature than when he committed his prior misconduct, and that he would now do things differently. He further stated that he would put plans in place' — such as using a “tickler” computer program — to make sure he did not commit any future misconduct. But when asked about the tickler system, Mose admitted he had never used one and had no training on such systems. Moreover, Mose has not made any plans for employment if he is reinstated. We have considered whether a petitioner has a career plan in place for after reinstatement when we analyze the moral change factor. E.g., In re Trygstad, 472 N.W.2d 137, 139 (Minn.1991); Strand, 259 Minn. at 381, 107 N.W.2d at 519; see also Jellinger, 728 N.W.2d at 921. We conclude that Mose failed to show that he has developed plans to ensure that, unlike when he was previously admitted to practice law, “ ‘clients could submit their most intimate and important affairs to him with complete confidence in both his competence and fidelity.’ ” Kadrie, 602 N.W.2d at 870 (quoting Herman, 293 Minn, at 476, 197 N.W.2d at 244).

Regarding the unpaid restitution to two clients, Mose testified that he has been unable to locate the two clients to'whom he owes restitution. He stated that the money he owes them is in his attorney trust account. But Mose also admitted without explanation that he only began searching for these clients after he petitioned for reinstatement, which was approximately 16 years after his suspension. We have viewed failure to pay claims as an indication that the petitioner has not undergone a sufficient moral change. See, e.g., In re Swanson, 343 N.W.2d 662, 664 (Minn.1984); see also Kadrie, 602 N.W.2d at 870-71.

Finally, Mose disclosed his suspension to his supervisor at Home Line. The supervisor testified that Mose discussed the suspension with him and also that Mose appeared remorseful and “disgusted with his behavior” about what he had done. A petitioner’s -disclosure and expression of remorse to others can weigh in favor of reinstatement. Kadrie, 602 N.W.2d at 871. But Mose failed to disclose his suspension to the supervisor of one of his officiating positions. While nondisclosure to this non-legal supervisor is not as worrisome as nondisclosure in a legal setting, at Mose’s request, the officiating supervisor testified on Mose’s behalf at the panel hearing. Despite her testifying, Mose never disclosed to the supervisor his suspension or the nature of the panel hearing. We conclude that Mose’s failure to disclose his suspension to this supervisor who testified on his behalf evidences a failure to recognize the wrongfulness of his misconduct and to show remorse for that misconduct.

Based on Mose’s testimony at the panel hearing, his failure to pay restitution to clients, his failure to develop sufficient plans to avoid future misconduct, and our deference to the panel’s finding that Mose was not credible in his testimony concerning his moral change, we conclude that Mose failed to show by clear and convincing evidence that he has undergone the requisite moral change to be reinstated to the practice of law.

Length of Time Since, the Original Misconduct and the Suspension.

Mose has been suspended from the practice of law for over 16 years. This long period of time between his misconduct and his petition' for reinstatément weighs in favor of reinstatement. See Ka-drie, 602 N.W.2d at 871 (stating that “[t]he length of time since petitioner’s misdeeds and suspension also weighs in favor of his reinstatement” when petitioner had been suspended 9 years earlier); In re Wegner, 417 N.W.2d 97, 99-100 (Minn.1987). Seriousness of the Original Misconduct

We have said that “present fitness to practice law of an attorney seeking reinstatement must be considered in light of the offenses for which he or she was disbarred.” Wegner, 417 N.W.2d at 100. But we have also said that even serious misconduct should not bar reinstatement when the petitioner has undergone the imposed discipline. Kadrie, 602 N.W.2d at 871.

We have in the past reinstated attorneys even after they committed serious misconduct. E.g., Wegner, 417 N.W.2d at 99-100 (reinstating an attorney who was convicted of a drug smuggling crime in violation of 21 U.S.C. §§ 952(a), 963 (1971)). But here, Mose’s misconduct was directly related to his law practice. His failure to communicate with clients, failure to competently handle client matters, and neglect of client matters caused serious consequences for his clients, including adverse rulings and a stayed prison sentence for contempt of court. Mose also committed misconduct in many important family law matters, including child custody and domestic abuse matters. We will therefore consider the seriousness of Mose’s misconduct in our reinstatement analysis and consider his present fitness to practice law in light of that misconduct.

Existence of Physical or Mental Illness or Pressures that are Susceptible to Correction.

Mose does not claim that any of his misconduct was caused by physical or mental illness. Therefore, this factor has no bearing on our analysis.

Intellectual Competency to Practice Law

We have said that “there is no fixed standard in reinstatement proceedings by which we determine a petitioner’s intellectual competency to return to practice.” Kadrie, 602 N.W.2d at 873. But when a lawyer has been suspended for a long period of time, we have suggested that “it might be advisable for an applicant to make a showing of some systematic effort to familiarize himself with current legal practice.” Strand, 259 Minn, at 381, 107 N.W.2d at 519 (emphasizing that there is “no definite or formal standard[ ]” and “each case must be determined on the basis of a judgment as to the individual involved”).

In Jellinger, we reinstated an-attorney after a stayed disbarment subject to indefinite suspension. 728 N.W.2d at 919-20. We concluded that the attorney had current legal skills and knowledge, demonstrated by his completion of the professional responsibility exam and his CLE requirements, and also his work as a paralegal.- Id. at 922. The attorney had been working as a paralegal for 2 years when he petitioned for reinstatement and for almost 4 years when we reinstated him. Id. at 920. The attorney also worked as a tax preparer while he was suspended. Id.

In Kadrie, while the panel concluded that the attorney had not demonstrated that he possessed the skills and knowledge needed for corporate practice, we concluded that the attorney had demonstrated that he was sufficiently competent to be reinstated. 602 N.W.2d at 872-73. Supporting this conclusion was the fact that the attorney had earned 130 hours of CLE credits, 53.5 of which were related to corporate practice. Id. Further, we concluded that the attorney’s employment during his suspension “allowed him to familiarize himself with various aspects of corporate law.” Id. at 873.

Finally, in Trygstad, we concluded that the attorney was sufficiently competent to practice law when he had earned over 100 CLE credits, worked as “in house” counsel for a company, and was working as a paralegal at the time of his reinstatement proceedings. 472 N.W.2d at 139. The attorney also had a plan set up for him to practice with an attorney he worked with when he was a paralegal. Id.

Conversely, in In re Hanson, the attorney had not practiced law for 35 years. 454 N.W.2d 924, 926 (Minn.1990). We concluded that the attorney’s eight CLE courses and his work as the personal representative for his brother’s estate were not enough to “adequately demonstrate[ ] his ability to practice law after such a long hiatus.” Id.

In this case, the panel found that based on Mose’s work history, he does not have the necessary motivation or skills to practice law, nor has he evidenced an ability to prioritize his personal and professional life. Mose successfully completed the bar exam and 60.5 CLE credit hours. Mose argues that this should be sufficient to show his competency as an attorney. While it is important that Mose met the reinstatement conditions of passing the bar exam and completing the required CLE credits, given his history we conclude that more is needed to prove his competence to return to the practice of law. For example, work directly related to the law, as in Jellinger and Trygstad, or training specifically related to the practice areas in which he is interested in pursuing, as in Kadrie, would help to show Mose’s legal competence. While an attorney who has only been suspended for a short period of time may not need to show such experience to be reinstated, Mose has been away from the practice of law for 16 years. Further, he worked as an attorney for only approximately 5 years before he was first disciplined, and his professional misconduct occurred during 4 of those 5 years. Finally, much of Mose’s misconduct for which he was suspended involved his ongoing lack of competence as an attorney. We therefore require that Mose provide more than his successful completion of the bar examination and CLE credits to prove he is now competent to practice law.

After his suspension, Mose did not obtain any legal employment. Mose testified that his work officiating sports games has prepared him for the rigors of a law practice. He stated that as a sports official, he has to (1) make instantaneous decisions, (2) know the rules, (3) show up on time, (4) be prepared, (5) prioritize games in advance, and (6) schedule far in advance. But Mose did not provide evidence that any of his employment positions during his 16-year' suspension involved any legal skills. Further, evidence showed that Mose was terminated from three different positions during his suspension for reasons such as missing work.

Mose has not worked at a full-time job since his suspension. He generally officiates 20 to 25 hours a week and does so mainly on weekends and weeknights. When he volunteered at Home Line, he only worked a few hours a week. Thus, since Mose last practiced law he has had no experience with the rigors of full-time employment — legal or otherwise.

Mose’s only legal experience since his suspension is his 1-year position volunteering at Home Line for a few hours a week. As a volunteer, Mose was responsible for telephone intake. People would call with questions, Mose would take those questions to one of the three attorneys in the office, and then Mose would relay the information back to the caller. Mose’s supervisor testified that Mose was competent, diligent, honest, and organized when he volunteered at Home Line, and that he would consider hiring Mose as an attorney. But the supervisor admitted that Mose’s position did not involve many of the skills necessary for the practice of law. Mose’s volunteer position did involve short-term case management, which the supervisor testified Mose handled well. But Mose’s position did not involve any long-term case management or any legal research or writing. Considering Mose’s lack of competence as an attorney before his suspension, as well as his lack of any real legal experience during his suspension, we conclude that Mose has not met his burden of showing that he is now competent to practice law.

Based on the foregoing analysis, we hold that Mose should not be reinstated to the practice of law because he failed to meet the following requirements:

(1) he did not satisfy all of the reinstatement conditions set out in our 1991 suspension order;
(2) he failed to prove by clear and convincing evidence that he has undergone a sufficient moral change to practice law; and
(3) he failed to show that he is intellectually competent to reenter the practice of law.

Petition denied.

      .The Director alleged that Mose committed misconduct in regards to one client when Mose (1) failed to notify opposing counsel that Mose's client could not attend a scheduled settlement conference and was unprepared for another settlement conference; (2) failed to provide answers to interrogatories; (3) failed to provide required evidence of his client's income and expenses at a temporary hearing, which resulted in the court assessing attorney’s fees against his client based on inflated figures of the client's income; (4) promised his client that he would seek a reduction of child support and would "take care of” the attorney's fees but did nothing; and (5) knew that his client was paying less than the ordered amount of child support and did not advise his client of the consequences, which resulted in the court sentencing Mose's client to a stayed 30-day prison sentence.
      In regard to the second client matter, the Director alleged that Mose committed misconduct when he (1) did not return client phone calls; and (2) failed to refund an unearned retainer.

      . Two additional complaints not included in the petition were also received by the Director and were resolved with Mose's acceptance of admonitions. These complaints involved neglect and non-communication in a bankruptcy matter and neglect and failure to properly withdraw from representation in a family law matter.

      . Mose's alleged misconduct included (1) failing to timely file briefs, motions, and responsive motions; (2) failing to answer discovery requests; (3) failing to communicate with clients and to respond to multiple client communications; (4) failing to prepare a case for trial; (5) improperly filing a joint petition for dissolution of marriage; (6) moving his law office and changing his phone number without advising clients; and (7) lying to clients about why he failed to communicate with them.

      . The Director alleged that Mose had (1) failed to communicate with or respond to clients; (2) neglected and been incompetent in a domestic abuse matter; (3) failed to return unearned attorney's fees; (4) failed to timely file motions and briefs; (5) failed to notify clients about his suspension; (6) accepted retainers from clients while suspended from the practice of law; (7) failed to refund an excess attorney fee; and (8) failed to comply with Rule 26, Rules on Lawyer Professional Responsibility (RLPR), as required by our 1990 suspension order.

      . See Rules 4(e), 9, Rules on Lawyers Professional Responsibility (RLPR).

      . We note that when determining whether Mose met his reinstatement conditions, the board found that Mose’s failure to pay his registration fees weighed against him. But nothing in the rules addressing reinstatement or registration fees indicate that a suspended attorney must pay attorney registration fees before petitioning for reinstatement. See Rule 18, RLPR (requiring an attorney petitioning for reinstatement to pay a fee of $300 to the Director, but making no mention of registration fees); Lawyer. Reg. R. 2 (stating that active status and inactive status attorneys must pay registration fees, but not stating that suspended or disbarred attorneys must pay registration fees).

      . In Trygstad, we noted that the petitioner's work as "in-house counsel” was unauthorized practice of law but that the petitioner engaged in it in good faith, he disclosed it to the State authorities, and it should not preclude rehabilitation. Trygstad, 472 N.W.2d at 139.

      . Mose testified that he is interested in having a legal practice dealing with social security or public interest law, such as tenant's rights. But Mose admitted that he has not taken any CLE credits specifically addressing those areas. He is therefore unlike the attorney in Kadrie whose CLE credits in his intended practice area weighed in favor of reinstatement.


author: MEYER, Justice.

text:
    Rene Julian McKENZIE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A08-167.
    Supreme Court of Minnesota.
    Aug. 7, 2008.

      Rene Julian McKenzie, Minnesota Correctional Facility, Stillwater, MN, pro se appellant.
    Lori Swanson, Atty. Gen., St. Paul, MN Michael 0. Freeman, Hennepin County Atty., Michael K. Walz, Asst. Hennpin County Atty., Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

Rene Julian McKenzie filed a petition for postconviction relief in July 2007. The postconviction court denied his petition without a hearing. We affirm.

On December 2, 1992, a Hennepin County jury convicted McKenzie of first-degree murder in the death of Perry Pajunen, and he was sentenced to life in prison. McKenzie appealed to this court in 1993, with the assistance of appellate counsel, raising three issues: (1) whether the evidence was sufficient to support the conviction; (2) whether the district court erred in admitting testimony from a witness who said that McKenzie told her he had killed before and would do it again; and (3) prejudicial misconduct in the prosecutor’s final argument. State v. McKenzie, 511 N.W.2d 14, 16-17 (Minn.1994). We affirmed McKenzie’s conviction, concluding that any errors were harmless. Id. at 17.

In July 2007, McKenzie filed a pro se petition for postconviction relief making two claims: ineffective assistance of trial counsel and jury nullification. He seeks a new trial, a reduction of his charge to second-degree murder, or his immediate release to the INS for deportation pursuant to a 1995 immigration court order. The postconviction court found that both claims were barred by the rule of State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), and denied the petition without an evidentiary hearing. McKenzie appealed.

When a person convicted of a crime petitions for post'conviction relief, the postconviction court must hold an evi-dentiary hearing unless the “files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2006). The petitioner bears the burden of establishing by a fair preponderance of the evidence facts that warrant reopening the case. Minn.Stat. § 590.04, subd. 3 (2006). “Allegations in a postconviction petition must be ‘more than argumentative assertions without factual support.’ ” Schleicher v. State, 718 N.W.2d 440, 444 (Minn.2006) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). An evidentiary hearing is not necessary if the petitioner does not allege facts sufficient to entitle him to the requested relief. Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990). When reviewing a postconviction court’s denial of relief, we examine whether the findings are supported by the evidence. Perry v. State, 731 N.W.2d 143, 146 (Minn.2007). The decision to grant or deny a new trial will not be disturbed absent an abuse of discretion. Id.

Claims asserted in a postconviction petition are procedurally barred under our rule of Knaffla if they were raised in a direct appeal or a previous postconviction petition, or if they were known or should have been known at the time of direct appeal. Buggs v. State, 734 N.W.2d 272, 274 (Minn.2007); Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. There are two exceptions: a claim may be considered despite the Knaffla bar if it is so novel that the legal basis for it was unavailable on direct appeal, or if fairness requires review and the petitioner did not “deliberately and inexcusably” fail to raise the claim on direct appeal. Perry, 731 N.W.2d at 146 (citing White v. State, 711 N.W.2d 106, 109 (Minn.2006)). Neither of McKenzie’s claims was raised on direct appeal.

Ineffective assistance of counsel

McKenzie asserts that his trial counsel was ineffective in the following ways: (1) by failing to object to testimony of the victim’s widow; (2) by failing to interview and call rebuttal witnesses; (3) by meeting only twice with McKenzie before trial; (4) by failing to conduct formal discovery; (5) by making “racial remarks during closing statement”; (6) by having a record of misconduct and professional discipline; (7) by failing to inform McKenzie of counsel’s disciplinary record and of McKenzie’s right to self-representation; and (8) because trial counsel, as an “officer[ ] of the court,” had an inherent conflict of interest.

The Knaffla bar applies to ineffective assistance of counsel claims. Torres v. State, 688 N.W.2d 569, 572 (Minn.2004). McKenzie knew or should have known of all of these claims at the time of his direct appeal. The first Knaffla exception, for a claim “so novel that the legal basis was not available on direct appeal,” Perry, 731 N.W.2d at 146, is clearly unavailable here, as the standard for a Sixth Amendment ineffective assistance of counsel claim was established eight years before McKenzie’s trial. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Eling, 355 N.W.2d 286, 293 (Minn.1984).

We have determined that an ineffective assistance of counsel claim fits within the second exception to Knaffla “if it cannot be determined from the district court record and requires additional evidence, such as that involving attorney-client communications.” Torres, 688 N.W.2d at 572 (citing Robinson v. State, 567 N.W.2d 491, 494-95 (Minn.1997)). Here, the trial record fully informs the alleged failure to object to testimony, the racial remarks during closing arguments, the witness statement McKenzie wished to rebut, and the evidence presented by the defense. McKenzie’s other allegations, that his trial counsel had a conflict of interest, failed to conduct discovery, and met with him only twice before trial, are simple argumentative assertions, for which he offers no factual support and no argument as to why they constitute ineffective assistance of counsel. Under these circumstances, additional evidence is not necessary to resolve the claim on the merits, and McKenzie’s ineffective assistance of counsel claim is barred by the rule of Knaffla.

Jury nullifícation

McKenzie argues that he was denied his right to a fair trial when the court did not instruct the jury that it had an “inherent right to disregard the instructions of the court and the evidence presented and return a verdict of acquittal if [it found] that the defendant was not blameworthy.” McKenzie was present when the court instructed the jury and, according to the district court, had access to the transcripts in preparing for his direct appeal. The facts were thus known to him, and he should have brought this claim on direct appeal.

Neither of the exceptions to Knaffla applies to this claim. It is not novel, as McKenzie relies on the case of United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972), which was released 20 years before his direct appeal. McKenzie has given no explanation for why he failed to raise this claim on direct appeal, nor has he invoked the second exception to the Knaffla bar. The jury nullification claim is barred by the rule of Knaffla.

Even if the claim were not Knaffla-h&rred, it would fail on the merits. We have acknowledged that the jury in a criminal case has a “raw power of lenity.” State v. Perkins, 353 N.W.2d 557, 561-62 (Minn.1984). This power is not a right, but rather the result of a number of things, including the defendant’s right to a jury trial, the rule “prohibiting postverdict inquiry into the thought processes of jurors,” and the “rules against appellate review of verdicts of acquittal.” Id. at 561. The Constitution does not mandate a jury instruction informing the jury of its “raw power of lenity.” Id. at 562. Even the case most relied upon by McKenzie, United States v. Dougherty, concluded that such an instruction should not be given. 473 F.2d at 1135-37.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the submission, took no part in the consideration or decision of this case.

      . A comprehensive statement of the facts can be found in our decision on direct appeal, State v. McKenzie, 511 N.W.2d 14, 15-16 (Minn.1994).

      . The INS (Immigration and Naturalization Service) no longer exists. Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security, is now charged with enforcing immigration laws.

      . The best procedure for raising such a claim, however, is "to file a petition for postconviction relief before appeal.” Torres, 688 N.W.2d at 572 n. 1 (quoting Robinson, 567 N.W.2d at 495 n. 3).