Ernest Demar Moore, petitioner, Appellant, vs. State of Minnesota, Respondent.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-147

 

Ernest Demar Moore, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed October 21, 2003 Affirmed Wright, Judge

 

Ramsey County District Court

File No. K1-00-2386

 

 

Ernest Demar Moore, MCF/Rush City, 7600 525th Street, Rush City, MN  55069 (pro se appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

 

            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

 

Appellant challenges the denial of postconviction relief from his conviction for second-degree murder, arguing that (1) his guilty plea was neither voluntarily and intelligently made nor supported by an adequate factual basis, (2) the district court failed to consider mitigating circumstances, and (3) he was denied the effective assistance of counsel.  We affirm.

FACTS

 

Appellant Ernest Moore was charged with second-degree intentional murder and conspiracy to commit second-degree murder.  Pursuant to a plea agreement with the state, Moore pleaded guilty to second-degree unintentional murder, in violation of Minn. Stat.  § 609.19, subd. 2 (1998), and agreed to cooperate with the state in the prosecution of his co-defendant.  In exchange, the state agreed to recommend a sentence of 150 months' imprisonment.  At sentencing, Moore moved for dispositional and durational downward departures, citing mitigating factors including his cooperation with police, family support, lack of criminal record, and age (21 years old).  The district court denied Moore's motion and imposed the presumptive guideline sentence of 150 months.

Moore appealed his sentence, arguing that the district court erred in failing to consider mitigating circumstances that warranted a downward departure.  No other issues were raised on appeal.  We affirmed the district court's decision in State v. Moore, No. C3-01-1304, 2002 WL 15674 *2 (Minn. App. Jan. 8, 2002).  Following his appeal, Moore petitioned for postconviction relief, arguing that he was denied his right to effective assistance of counsel and due process of the law because there was insufficient evidence to support his conviction of second-degree unintentional murder.  The district court denied the petition because "the issues he raise[d] were known but not raised in his direct appeal."  This appeal followed.

D E C I S I O N

 

When a petitioner has directly appealed his or her conviction, "all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief."  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).  A petitioner's failure to raise an issue that was known or that should have been known at the time of appeal bars the consideration of that claim.  Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998).  An exception exists where (1) the claim is novel and the legal basis was unavailable at the time of direct appeal or (2) fairness requires consideration of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.  Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997).  We will not disturb the postconviction court's decision absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

I.

 

Moore argues that his guilty plea was not voluntarily and intelligently made.  Because this claim is not novel and the legal basis was available at the time of direct appeal, Moore is precluded from raising it now.  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. 

Were we to consider this claim properly raised, the record establishes that Moore's claim is without merit.  Whether a defendant has signed and admitted reading and understanding a guilty-plea petition is significant in determining whether a plea was voluntarily and intelligently made.  State v. Propotnik, 299 Minn. 56, 58, 216 N.W.2d 637, 638 (1974).  That Moore was advised by counsel before entering his guilty plea justifies the presumption that counsel advised appellant of his constitutional rights.  See State v. Simon, 339 N.W.2d 907, 907 (Minn. 1983).  Moreover, where the defendant had a full opportunity to consult with counsel before entering a guilty plea, we "may safely presume that counsel informed [the defendant] adequately concerning the nature and elements of the offense."  State v. Russell, 306 Minn. 274, 275, 236 N.W.2d 612, 613 (1975). 

Here, two attorneys represented Moore at the plea hearing.  At the hearing, Moore testified that, on the preceding day, he had read the plea agreement line by line and discussed the plea agreement with his attorneys who had answered his questions.  He testified that he understood his rights under the plea petition, that he understood the constitutional rights that he was waiving by pleading guilty, and that he was not pressured into pleading guilty.  Likewise, the record establishes that Moore admitted facts sufficient to satisfy the elements of second-degree unintentional murder.  See Minn. Stat.       § 609.19, subd. 2(1) (1998) (defining offense as "caus[ing] the death of a human being, without intent to effect the death of any person, while committing or attempting to commit [an unexempt] felony offense").  We, therefore, conclude that the district court did not abuse its discretion in determining that the appellant was not entitled to relief because his claim was known but not raised on direct appeal. 

II.

 

Moore next argues that he received ineffective assistance of counsel because his counsel in the district court proceedings failed to explain adequately the elements of the offense to which he pleaded guilty and led him to believe he may get probation by cooperating.  Moore's claim is procedurally barred because it was known at the time of the direct appeal.  See Sutherlin, 574 N.W.2d at 435. 

Were we to reach the merits of this claim, Moore's arguments would fail.  To prevail on a claim of ineffective assistance of counsel, an appellant must show that his counsel's performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  "There is a strong presumption that a counsel's performance falls within the wide range of ‘reasonable professional assistance.'" State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984)).  We apply an abuse-of-discretion standard to a district court's findings on a postconviction claim of ineffective assistance of counsel.  State v. Rainer, 502 N.W.2d 784, 787-88 (Minn. 1993).

As discussed above, the record establishes that Moore read and understood the plea petition and discussed it with counsel prior to entering his guilty plea.  The plea petition bearing Moore's signature advised Moore that the state would seek a sentence of 150 months' imprisonment.  Moore was also advised at the plea hearing that the presumptive sentence was 150 months' imprisonment and that the state would seek the presumptive sentence.  The record is devoid of any grounds to support Moore's ineffective-assistance-of-counsel claim.  The district court did not abuse its discretion in determining that Moore's claim is procedurally barred. 

            Moore also contends that his right to effective assistance of appellate counsel was denied because his counsel on direct appeal failed to present all meritorious issues.  "The right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal that the trial record supports."  See Garasha v. State,393 N.W.2d 20, 22 (Minn. App. 1986).  Accord, Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989).  Moore failed to raise this claim in his postconviction petition.  Because Moore failed to raise this argument before the district court, we will not address it for the first time on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).    

III.

 

Moore next claims that the district court abused its discretion by failing to consider mitigating circumstances warranting a downward departure from the sentencing guidelines.  Because this issue was previously raised by Moore and decided by this court in Moore, 2002 WL 15674, at *2, the district court properly concluded that this claim also is procedurally barred.  See Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (stating that "[w]here a direct appeal has already been taken, ‘all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief'"). 

Affirmed.