Richard Emery Terry, petitioner, Appellant, vs. State of Minnesota, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-975

Gale A. Rachuy,

petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed April 21, 1998

Affirmed

Toussaint, Chief Judge

Pine County District Court

File No. K491126

Gale A. Rachuy, P. O. Box 55, Stillwater, MN 55082 (pro se appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

John K.Carlson, Pine County Attorney, Todd R. Schoffelman, Assistant County Attorney, Pine County Courthouse, Pine City, MN 55063 (for respondent)

Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Mulally, Judge. *

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Gale Rachuy was convicted in 1991 of several counts of felony theft by swindle. See Minn. Stat. § 609.52, subds. 1(a), 3(c)(1) (1990). Rachuy had a direct appeal and has filed two postconviction petitions challenging aspects of his conviction and sentence. This court affirmed the denial of Rachuy's first postconviction petition in November 1996. Rachuy v. State, No. C1-95-2568 (Minn. App. Nov. 22, 1996). On this appeal from the denial of his second postconviction petition, Rachuy raises the following issues (1) the prosecution's alleged failure to disclose the substance of oral statements made to the investigating officer; (2) the postconviction court's failure to admit evidence of Rachuy's posttrial phone call with Robert Warder; (3) the claim that a felony sentence on Count VII was improper; and (4) the failure to reconsider restitution. Because Rachuy's present claims on appeal have been resolved in his direct appeal and prior postconviction proceeding and appeal, we affirm.

D E C I S I O N

This court reviews a postconviction order to determine whether sufficient evidence exists to sustain the postconviction court's findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The postconviction court's decision will not be disturbed absent an abuse of discretion. Id.

The postconviction court may summarily deny a second or successive petition for similar relief. Minn. Stat. § 590.04, subd. 3 (1996). Moreover, where a direct appeal has been taken, matters raised therein, and all matters known but not raised, will not be considered in a subsequent petition for postconviction relief "unless the `claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided.'" Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (citing Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)). State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Rachuy's discovery and restitution claims, his challenge to felony sentencing on Count VII, and his attempt to introduce evidence of his phone call with Robert Warder have all been raised before on direct appeal or in the first postconviction proceeding. Therefore, the postconviction court did not abuse its discretion in denying the second petition.

Affirmed.