Mahlberg v. State

Matthew E. Johnson Judge

St. Louis County District Court File No. 69DU-CR-14-3308

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Frisch, Judge.

ORDER OPINION

Matthew E. Johnson Judge

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:

1. In 2014, Arne Henry Mahlberg was convicted of four counts of criminal sexual conduct. In 2023, he petitioned for postconviction relief. The postconviction court denied the petition on the ground that it is untimely. We affirm.

2. After a court trial in December 2014, a district court judge found Mahlberg guilty of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. The district court imposed concurrent sentences of 70, 91, 144, and 360 months of imprisonment, to be followed by lifetime conditional release. On direct appeal, Mahlberg challenged his conviction by making only one argument: that the district court erred by admitting a recording of a forensic interview of the victim based on the residual exception to the hearsay rule. This court affirmed the conviction. State v. Mahlberg, No. A15-0745, 2016 WL 1174952, at *1 (Minn.App. Mar. 28, 2016), rev. denied (Minn. June 21, 2016).

3. In April 2023, Mahlberg, on a self-represented basis, filed a petition for postconviction relief and a motion to disqualify the district court judge who presided over his 2014 trial. He alleged eight claims for relief. The matter was assigned to the district court judge who presided over Mahlberg's 2014 trial.

4. In June 2023, the postconviction court denied Mahlberg's petition without an evidentiary hearing. The postconviction court concluded that the petition is untimely because it was filed more than six years after final judgment and because no exception to the two-year statute of limitations applies. See Minn. Stat. § 590.01, subd. 4 (2022). The postconviction court reasoned that Mahlberg did not exercise due diligence in attempting to ascertain the facts underlying his claim of newly discovered evidence within two years of the final judgment on his convictions. See id., subd. 4(b)(2). The postconviction court also denied Mahlberg's motion to disqualify the trial judge, without explanation.

5. Mahlberg appeals, again on a self-represented basis. In his principal brief, he does not challenge the postconviction court's conclusions that his petition is untimely and that no exception applies. Rather, he argues the merits of the eight claims that he alleged in his postconviction petition. In his reply brief, however, he argues that he was unable to ascertain the newly discovered evidence at an earlier time because of his mental health, his limited understanding of the law, and his imprisonment. The caselaw is clear that an appellant may not raise an issue for the first time in a reply brief. See In re Application of Otter Tail Power Co., 942 N.W.2d 175, 181 n.5 (Minn. 2020); State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009); Hunter v. Anchor Bank, N.A., 842 N.W.2d 10, 17 (Minn.App. 2013), rev. denied (Minn. Mar. 18, 2014). By waiting until his reply brief to argue that the postconviction court erred in concluding that his petition is untimely, Mahlberg has deprived the state of an opportunity to brief that issue on appeal. Because Mahlberg has not properly presented this court with an argument as to why the postconviction court erred in denying his petition, we will not consider the issue. We note that prejudicial error is not "obvious on mere inspection." See Kaehler v. Kaehler, 18 N.W.2d 312, 313 (Minn. 1945).

6. In his principal brief, Mahlberg also does not challenge the postconviction court's denial of his motion to disqualify the trial judge. Despite the absence of such an argument, the state addressed the issue in its responsive brief. The state asserts that the trial judge was required to refer the disqualification motion to the chief judge of the district court but did not do so. See Minn. R. Crim. P. 26.03, subd. 14(3); Rossberg v. State, 874 N.W.2d 786, 790 (Minn. 2016); State v. Finch, 865 N.W.2d 696, 701-03 (Minn. 2015). The state does not agree with Mahlberg that the trial judge is biased or that the trial judge should be disqualified. But the state suggests that this court should remand the matter to the postconviction court so that the disqualification motion may be decided by the chief judge.

7. In his reply brief, Mahlberg joins in the state's request for a remand with respect to the disqualification motion. Again, the caselaw is clear that an appellant may not raise an issue for the first time in a reply brief. See Otter Tail Power, 942 N.W.2d at 181 n.5; Yang, 774 N.W.2d at 558; Hunter, 842 N.W.2d at 17. Because Mahlberg has not properly presented this court with an argument as to why the postconviction court erred by denying his disqualification motion, we need not consider the issue.

8. Even if we were to consider whether the postconviction court erred by denying Mahlberg's disqualification motion without referring it to the chief judge, we would not reverse and remand. We would agree that a motion to disqualify a judge for cause "must be heard and determined by the chief judge of the district." See Minn. R. Crim. P. 26.03, subd. 14(3); see also Rossberg, 874 N.W.2d at 790; Finch, 865 N.W.2d at 701-02. We also would agree that the trial judge in this case erred by denying the disqualification motion without referring it to the chief judge. See Rossberg, 874 N.W.2d at 790; Finch, 865 N.W.2d at 702. To determine whether that error is a reversible error, we would need to apply the harmless-error rule. See Rossberg, 874 N.W.2d at 790; Finch, 865 N.W.2d at 702-03. Whether the error is harmless depends on whether the absence of a referral to the chief judge "affected [Mahlberg's] 'substantial right to a fair hearing before a decision maker who does not appear to favor one side.'" Rossberg, 874 N.W.2d at 790 (quoting Finch, 865 N.W.2d at 703).

9. In his motion to disqualify the trial judge, Mahlberg asserted that he believes that the trial judge would "not be fair to" him based on her prior rulings on his requests for documents related to his convictions. Mahlberg's asserted reasons do not require disqualification. A judge's previous adverse ruling, by itself, does not establish bias. Hannon v. State, 752 N.W.2d 518, 522 (Minn. 2008); Greer v. State, 673 N.W.2d 151, 157 (Minn. 2004). Because there is no factual basis for a determination that the trial judge is biased against Mahlberg, the denial of his disqualification motion without a referral to the chief judge did not "affect [his] substantial right to a fair hearing before a decision maker who does not appear to favor one side." See Rossberg, 874 N.W.2d at 790 (quotation omitted). Thus, the error is harmless.

IT IS HEREBY ORDERED:

1. The district court's order is affirmed.

2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.