In re the Guardianship of N.E.F.
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Steven Eugene Daniels, petitioner,
State of Minnesota,
Filed June 25, 2002
Hennepin County District Court
File No. 97103672
Steven E. Daniels, MCF-Faribault, 1101 Linden Lane, Faribault, MN 55021-6400 (appellant pro se)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Willis, Presiding Judge, Harten, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant, acting pro se, challenges the denial of his petition for postconviction relief, arguing ineffective assistance of appellate counsel on his prior direct appeal, abuse of discretion in departure from the sentencing guidelines, and incorrect credit for jail time. His claim of ineffective assistance of appellate counsel was previously addressed by this court, so we decline to address it. Because we see no abuse of discretion in the departure from the sentencing guidelines and no error in the crediting of appellant's jail time, we affirm.
A jury convicted appellant Steven Daniels of three counts of simple robbery and one count of aggravated robbery. His victims included an 83-year-old woman who was being helped across a parking lot by her 60-year-old daughter when appellant snatched both their purses. Appellant was sentenced to a total of 174 months. He challenged both his conviction and his sentence by direct appeal to this court. In State v. Daniels, C7-98-1438 (Minn. App. 20 July 1999), we affirmed the sufficiency of the evidence for appellant's conviction, held that his claim of ineffective assistance of counsel was without merit, and reversed and remanded for resentencing on the aggravated robbery charge after finding that the double durational departure was unsupported. Appellant's sentence was modified to 150 months in accord with that opinion.
Appellant then petitioned for postconviction relief, alleging that he had had ineffective assistance of appellate counsel because his claim of ineffective assistance at trial was not argued on appeal, that the sentencing departure on two other counts was unjustified, and that he had not been credited with the proper amount of jail time. The postconviction court denied appellant's petition. Appellant challenges that denial.
D E C I S I O N
1. Ineffective Assistance of Appellate Counsel
Appellant argues that counsel on his direct appeal was ineffective because his claim of ineffective assistance at trial was not presented to the appellate court.
To establish a claim of ineffective assistance of counsel, a defendant must meet a two-pronged test evaluating deficiency and prejudice. First, the defendant must show by a preponderance of the evidence that counsel's performance was so deficient that it fell below an objective standard of reasonableness. * * *
Second, the defendant must show by a preponderance of the evidence that counsel's deficient performance resulted in prejudice.
Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (citations and quotation omitted). Even if appellant could meet the first prong by showing that a reasonable appellate attorney would have argued ineffective assistance, he cannot meet the second. Appellant himself presented the claim in his pro se brief, and we addressed it. See Daniels, 1999 WL 507627, at *3. Appellant cannot "show that, absent his appellate counsel's error, the outcome of his direct appeal would have been different." Pierson, 637 N.W. 2d at 579 (quotation and citation omitted).
The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court ordered a double durational departure when sentencing appellant for the robbery of an 83-year-old woman who was being helped across a parking lot by her 60-year-old daughter when appellant seized their purses. The district court based its guidelines departure on the vulnerability of the victims, and the record amply supports that finding. The older victim testified on direct examination that it
[s]eemed like he was trying to get my purse and pushed me down. * * * He was trying to get it and my daughter was trying to keep him from getting my purse. * * * I tried hanging on to it. * * * I didn't give it to him. He got it off my arm. * * * He went so quickly, I didn't see anything. I maybe was still on the ground getting up.
She was not cross-examined. Her daughter testified that:
[My mother] had fallen down. * * * Then as I was trying to help and aid her, I had my shoulder strap purse on my left shoulder. It slipped off and [appellant] said, "I'll take that one, too." * * * Then I tried to grab the purse as well and we had a struggle with the purse at that time. * * * He was pulling the purse and I was pulling the purse as well. * * * He pulled and he pulled, and finally he sort of, with the force of his pulling actually, I fell to the ground. At that point I let go of the purse.
There was no abuse of discretion in the district court's finding that the vulnerability of the victims was an aggravating factor that justified an upward departure.
3. Jail Time
The granting of jail credit is not discretionary with the district court. State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. 15 Jan. 1988). Appellant was arrested 179 days before he was sentenced, and the district court credited him with 179 days of jail time. Appellant does not show that this credit was incorrect.
 As a threshold matter, we note that this claim is not properly before us. A claim for postconviction relief is not allowed after a direct appeal 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." Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). Appellant advances no novel legal basis for this challenge to his sentence, nor any explanation of why he failed to include it in his pro se brief on direct appeal.
 In his brief, appellant claims that a computer printout from the Department of Corrections will be provided, but, if it arrives, this court cannot consider it because it is not part of the record. See Minn. R. Civ. App. P. 110.01. Appellant also moved this court to accept his untimely reply brief. The motion was not opposed and was granted.