Troy Richard Dean, petitioner, Appellant, vs. State of Minnesota, Respondent.

Troy Richard Dean, petitioner, Appellant, vs. State of Minnesota, Respondent. A04-1610, Court of Appeals Unpublished, March 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1610

 

Troy Richard Dean, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed ­March 22, 2005

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 01081218

 

Troy Richard Dean, OID #209072, MCF Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; 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 Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

            Appellant Troy Richard Dean challenges the district court's denial of his petition for postconviction relief from his convictions of first-degree attempted murder, second-degree attempted murder, first-degree assault, and first-degree aggravated robbery.  Because appellant did not raise his postconviction claims in his direct appeal to this court, the claims are not novel, and fairness does not require us to review the claims.  We affirm the district court's denial of appellant's petition.

FACTS

After a jury trial, appellant was convicted of first-degree attempted murder, second-degree attempted murder, first-degree assault, and first-degree aggravated robbery.  The facts underlying appellant's conviction are set forth in our opinion affirming appellant's conviction on direct appeal.  State v. Dean, No. C4-02-1225 (Minn. App. June 10, 2003).

Ambulance and police crews found the victim unconscious and severely beaten, with his legs burning on top of a small fire.  The victim survived, but was required to have both his legs amputated.  Appellant told the police that his co-defendant, Steven Johnson, was the one who had beaten the victim.  At trial, the state introduced evidence that the police found blood on appellant's shirt, appellant was present at the scene of the crime, and appellant had assisted in beating the victim.  After all the evidence had been introduced at trial but before closing arguments, the district court read instructions to the jury.  One of the instructions was that "[i]n order to return a verdict, whether guilty or not guilty, each juror must agree with the verdict.  Your verdict must be unanimous." 

On direct appeal appellant challenged his conviction, arguing the district court made two erroneous evidentiary rulings, the prosecutor committed misconduct, and the district court abused its discretion by imposing an upward durational departure from the sentencing guidelines. In a supplemental pro se brief, appellant argued he was denied effective assistance of counsel.  Based on our review of appellant's direct appeal, we affirmed his conviction and sentence. 

Appellant then filed a petition for postconviction relief with the district court.  The petition asserted that the element of criminal intent was not proven at trial and the district court charged the jury with erroneous instructions.  The district court denied appellant's petition, finding that appellant did not assert a constitutional violation or show that new and material evidence existed that was unavailable at the time of his trial which established his innocence. 

D E C I S I O N

Appellant challenges the district court order denying his petition for postconviction relief.  The state argues that because at the time of his direct appeal appellant did not make any of the claims he now raises in his petition for postconviction relief, appellant has waived these claims.

            A petitioner seeking postconviction relief must prove, by a preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2002).  After a criminal defendant has made a direct appeal, "all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief."  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  The two exceptions to this rule are when (1) a claim is so novel that its legal basis was not reasonably available at the time of the direct appeal or (2) the defendant did not deliberately and inexcusably fail to raise the issue in the first appeal, and fairness requires review.  Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003).

First, appellant argues that the element of intent was not proven at trial and that the jury instructions were improper.  It is undisputed that neither of these issues were raised on direct appeal.  Appellant had the opportunity to present both of these issues in the direct appeal but did not do so.  Neither the facts nor the law have changed since the direct appeal.  Because appellant knew or should have known of the claims he now raises at the time of his direct appeal and appellant's claims are not novel, the claims do not fit into Knaffla's first exception. 

We must also consider whether appellant deliberately and inexcusably failed to raise these issues in the first appeal and whether fairness requires review.  See id.  At the time of appellant's direct appeal, appellant was aware of the evidence presented and the jury instructions given at trial.  Appellant had the opportunity to raise these additional issues in the supplemental pro se brief he submitted on direct appeal.  He provides no justification now for his failure to raise these issues in the direct appeal.

Appellant argues that fairness requires our review because no evidence was presented at trial from which the jury could find he intended to kill the victim.  Here, the state presented evidence that blood was found on appellant's shirt, appellant was present at the scene of the crime, and appellant participated in beating the victim.  Appellant did present some evidence controverting the state's case.  Viewing the evidence in the light most favorable to the verdict, we conclude that sufficient evidence was presented to support the jury's finding of intent.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Consequently, fairness does not require us to review appellant's first claim.

Second, appellant argues that the district court erred by failing to instruct the jury that it has the right to remain deadlocked.  It is true that judges cannot instruct a jury that the members must reach a verdict.  State v. Petrich, 494 N.W.2d 298, 300 (Minn. App. 1992), review denied (Minn. Feb. 23, 1993).  But judges are not required to spell out to juries that a deadlock is permissible.  State v. Peterson, 530 N.W.2d 843, 846 (Minn. App. 1995).  We conclude that the district court did not err when it did not instruct the jury that it had the right to remain deadlocked; thus, fairness does not require us to review appellant's second claim.

Because we have determined that appellant's postconviction claims are not novel and fairness does not require us to review them, we conclude that appellant waived these claims by failing to raise them on direct appeal.

Affirmed.