State of Minnesota, Respondent, vs. Jason Ryan Burford, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

Larcell (NMN) Mack,
Petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Hennepin County District Court
File No. 94018172

Daniel M. Mohs, Daniel Mohs & Associates, Ltd., The Colonnade, Suite 1025, 5500 Wayzata Blvd., Minneapolis, MN 55416 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

Appellant challenges the postconviction court's summary denial of his petition for postconviction relief. Because there is sufficient evidence to sustain the postconviction court's findings and there is no abuse of discretion, we affirm.

A jury convicted appellant Larcell Mack of intentional second-degree murder and second-degree felony murder. The trial court sentenced him to 306 months in prison.

Appellant challenged his conviction on direct appeal to this court, arguing that (1) the evidence was insufficient to convict him of second-degree murder, (2) his conviction was based on uncorroborated accomplice testimony in violation of Minn. Stat. § 634.04 (1992), and (3) the district court erred in its jury instructions. This court affirmed appellant's conviction in State v. Mack, No. C6-94-2166 (Minn. App. Aug. 22, 1995), review denied (Minn. Oct. 18, 1995).

Appellant then sought postconviction relief. The postconviction court summarily denied his petition on the grounds that most of his issues were raised and rejected on direct appeal and that the remaining issues were known and not raised on direct appeal. Appellant challenges the denial, arguing that (1) he was unfairly prejudiced when the trial court allegedly altered the jury instructions after the state rested its case, (2) his conviction is not supported by sufficient evidence, (3) he was prejudiced by ineffective assistance of counsel during trial, and (4) his conviction is based on uncorroborated accomplice testimony in violation of Minn. Stat. § 634.04 (1998).

We review a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings; a postconviction court's decision will not be disturbed absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Appellant raises four issues. The first, second, and fourth issues appellant raises were previously rejected by this court. In a postconviction appeal, we will not consider an issue already raised on direct appeal. Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998). Moreover, at oral argument, appellant withdrew all issues except the claim of ineffective assistance of counsel.

The remaining claim of ineffective assistance of counsel is also precluded. Once an appellant has appealed his conviction, "any matter raised and any claim known but not raised, will not be considered upon a subsequent petition for post-conviction relief." Black v. State, 560 N.W.2d 83, 85 (Minn. 1997) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). There is an exception to this rule where a claim is so novel that its legal basis was not reasonably available at the time a direct appeal was taken and decided. Fox v. State, 474 N.W.2d 821, 824 (Minn.1991) (citing Case v. State, 364 N.W.2d 797, 800 (Minn.1985)).

Here, appellant's ineffective assistance claim is based on his trial counsel's alleged failure to (1) defend against the charge of aiding and abetting, (2) adequately cross-examine expert witnesses, (3) object to the introduction of certain evidence, and (4) object to actions by the prosecutor during closing arguments. But these alleged failures were evident to appellant and his counsel[1] at the time of the direct appeal. Moreover, appellant's claim is not so novel that its legal basis was not reasonably available at the time of his direct appeal.

Finally, appellant's ineffective assistance-of-counsel claim is merely a recast of evidentiary issues raised in the direct appeal and elsewhere in this post-conviction appeal. See Black, 560 N.W.2d at 86 (appellant cannot avoid the Knaffla limitation simply by recasting evidentiary issues as a claim of ineffective assistance of trial counsel).

We conclude that the postconviction court did not abuse its discretion in applying the Knaffla rule to bar appellant's claim of ineffective assistance of counsel.

I concur, but write separately because I believe the district court should have reached the merits of the ineffective-assistance-of-counsel claim. Appellant failed to raise the issue on direct appeal, but the Minnesota Supreme Court, this court, and the district courts have so regularly found one reason or another to address on postconviction review the merits of the ineffective-trial-counsel issue that this appellant ought not be denied review and, thus, be treated differently from the postconviction petitioners in all those cases in which the merits of the issue has been reached.[2]

Even more significantly, not reaching the merits of the issue simply postpones the district courts' and our need to address it until it is raised in a claim of ineffective assistance of appellate counsel. That was made amusingly clear when respondent's counsel said in oral argument that appellant's failure at this time to make a claim of ineffective direct-appeal counsel showed the weakness of the ineffective-trial-counsel claim.

There are many problems with the rule of Black v. State, 560 N.W.2d 83, 85-86 (Minn. 1997) (appellant required to raise ineffective-assistance-of-counsel claim on direct appeal if claim known at time of appeal). I previously addressed these problems in the unpublished opinion Olson v. State, No. C5-98-336, 1998 WL 481913, at *3-*4 (Minn. App. Aug. 18, 1998) (Davies, J., concurring specially), review denied (Minn. Oct. 20, 1998).

In suggesting that Black should be reconsidered at the earliest opportunity, I then pointed to the following problems with the Black rule:

1. When trial counsel continues to represent a criminal defendant during a direct appeal, it is difficult for that defendant to allege ineffective assistance of trial counsel. In effect, appellate counsel are forced to charge themselves with ineffectiveness at trial.
2. Even when different counsel provide representation on appeal, appellate counsel still needs the full cooperation of trial counsel. Claims of ineffectiveness at trial can interfere with that cooperation.
3. Direct appeals often involve issues that lose vitality when coupled with a claim that trial counsel provided ineffective assistance. For example, an appellate claim that trial counsel was ineffective for failure to object to introduction of certain evidence may compromise a simultaneous claim of improper prosecutorial argument or improperly admitted evidence. And pointing to trial counsel's ineffective arguments or failure to investigate may weaken an insufficiency-of-evidence claim.
4. Sorting through what a postconviction petitioner knew or did not know about the effectiveness of trial counsel often requires subtle judgments, making administration of the Black rule difficult.
5. The Black rule simply shifts the claim of ineffective counsel in a postconviction petition to a claim that appellate counsel was ineffective for having failed to raise trial counsel ineffectiveness on direct appeal. The rule, therefore, accomplishes nothing.

Id.

Without meaning to suggest the claim has merit, I would remand appellant's claim of ineffective trial counsel.

[1] Appellant was represented by different private counsel at trial and on direct appeal.

[2] See, e.g., Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998) (discussing merits of ineffective assistance of trial counsel claim after determining it was procedurally barred), cert. denied, 118 S. Ct. 2351 (June 22, 1998) (No. 97-8768). Even the majority in this case cannot resist a peak at the merits of the ineffective-counsel claim.