State of Minnesota, Respondent, vs. DeAndre Jerome Barnes, petitioner, Appellant.

State of Minnesota, Respondent, vs. DeAndre Jerome Barnes, petitioner, Appellant. A05-1454, Court of Appeals Unpublished, June 13, 2006.

This opinion will be unpublished and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

A05-1454

 

State of Minnesota,

Respondent,

 

vs.

 

DeAndre Jerome Barnes, petitioner,

Appellant.

 

Filed June 13, 2006

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 00044943

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

DeAndre Jerome Barnes, OID No. 205967, Minnesota Correctional Facility, 7600 525th Street, Rush City, MN  55069 (pro se appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant petitioned for postconviction relief on a variety of grounds.  He challenges the denial of his petition without a hearing.  We affirm.

FACTS

            In 2000, pro se appellant DeAndre Barnes was indicted on charges of first- and second-degree murder.  As the result of a plea bargain, the state dismissed the charge of first-degree murder in exchange for an upward departure from the sentencing guidelines on the charge of second-degree murder.  At sentencing, Barnes requested a substitution of counsel and that his plea be withdrawn.  The district court granted his request for substitution of counsel but denied his request to withdraw his plea.  The district court then stated, "If Mr. Barnes could come forward with his attorney, please.  Mr. Barnes, is there anything you would like to say before the Court imposes sentence?"  Barnes responded, "No."  The district court sentenced him to 450 months in prison, an upward departure from the presumptive guidelines sentence of 326 months.

            Barnes appealed from the district court's denial of his motion to withdraw his guilty plea, arguing that he did not understand the plea agreement and that he was delusional when he entered his plea.  In July 2001, this court affirmed, finding no abuse of discretion by the district court.  State v. Barnes, No. C4-00-2094, 2001 WL 826883, at *1 (Minn. App. July 24, 2001).  Barnes did not appeal from that decision.  In December 2004, Barnes petitioned for postconviction relief, the postconviction court denied his petition without a hearing, and Barnes appeals.

D E C I S I O N

            Appellate courts "review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  "The decisions of a postconviction court will not be disturbed unless the court abused its discretion."  Id.

Barnes first argues that because his guilty plea was not voluntary, knowing, or intelligently made, the postconviction court abused its discretion by denying his petition for postconviction relief.  It is a "well-settled rule that a defendant is not entitled to raise issues already decided on appeal."  State v. Andren, 350 N.W.2d 404, 405 (Minn. App. 1984).  This issue was decided on direct appeal from Barnes's conviction, and the postconviction court did not abuse its discretion by refusing to reconsider it.

            Barnes next argues that he received ineffective assistance of trial counsel, alleging that his counsel committed several errors before Barnes was sentenced.  "[W]here direct appeal has once been taken, 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).  Barnes either knew of or should have known of the alleged errors by his trial counsel at the time of his direct appeal.  The postconviction court did not abuse its discretion by denying relief on this claim.

            Barnes also claims in his petition for postconviction relief that he received ineffective assistance of counsel on his direct appeal.  First, he argues that his appellate attorney did not respond to a letter written to her in July 2001 by one of Barnes's family members requesting that the attorney add to Barnes's appeal a claim of ineffective assistance of trial counsel.  Barnes cites no authority for the proposition that a failure to respond to such a letter would constitute ineffective assistance of counsel, but in any event the record shows that Barnes's appellate counsel responded to the letter eight days after receiving it, stating that the "issue of withdrawal of plea was what [Barnes] wanted me to address [on appeal]."  The postconviction court did not abuse its discretion by denying relief on this claim.

Second, Barnes argues that his appellate counsel did not notify Barnes that there was a deadline for petitioning the Minnesota Supreme Court for review after this court affirmed Barnes's conviction.  To succeed on a claim of ineffective assistance of counsel, an appellant "must affirmatively prove that his counsel's representation ‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2068 (1984)). 

Barnes's petition for postconviction relief refers to a letter to him from his appellate counsel, dated the day after this court released its opinion affirming Barnes's conviction.  In that letter, his counsel told Barnes that Barnes would have to contact the State Public Defender's Office if he wished to petition the supreme court for review.  She did not mention that he had a deadline by which to petition for review.  Barnes subsequently wrote to the Public Defender's Office requesting representation, but his letter was postmarked after the deadline had passed for petitioning the supreme court.

We refuse to decide whether this conduct falls below an objective standard of reasonableness because Barnes has not shown that the result of his appeal would have been different if he had been told of the deadline to petition for review.  See Voytik v. United States, 778 F.2d 1306, 1310 (8th Cir. 1985) (declining to decide whether an attorney's conduct fell below an objective standard of  reasonableness when the appellant failed to show prejudice resulting from the conduct).  The transcript of Barnes's plea hearing shows that his trial counsel and the prosecutor asked him if he understood that he would serve 25 years in prison as a result of his plea, and Barnes responded that he did.  Barnes also presented no medical evidence to contradict a rule 20 examiner who concluded that Barnes had the mental capacity to understand the proceedings and to participate in his defense.  The postconviction court did not abuse its discretion by denying relief on Barnes's claims of ineffective assistance of appellate counsel.

            Barnes next argues that the upward sentencing departure he received is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The maximum sentence that a district court can issue is "the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."  Id. at ____, 124 S. Ct. at 2537.  But Blakely applies only if a defendant's conviction was not final on June 24, 2004, the date that Blakely was released.  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  Barnes's conviction was final in 2001, when the deadline passed to petition the Minnesota Supreme Court for review of this court's decision affirming his conviction.  See O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  Because his conviction was final before Blakely was decided, the postconviction court did not abuse its discretion by denying Barnes's request for relief on this claim.

            Barnes also alleges a Brady violation, claiming that the state failed to disclose a mug shot taken of him six days before the incident for which he was convicted and that the mug shot is exculpatory because it somehow shows that Barnes was not the person who committed the crime.  A Brady violation occurs when the "state has suppressed evidence material to guilt or innocence that is favorable to the accused."  State v. Burrell, 697 N.W.2d 579, 603 (Minn. 2005) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)).  But Barnes offers no evidence that the state suppressed the mug shot.  Instead, he claims only that the mug shot proves his innocence, a claim that he knew of before his direct appeal.  This claim is barred by Knaffla, and the postconviction court did not abuse its discretion by denying relief to Barnes on this claim.

            Barnes argues that he was denied his right of allocution at sentencing.  This argument is also without merit.  At sentencing, the district court expressly asked Barnes if he wanted to speak before being sentenced; he said, "No."  Moreover, Barnes wrote a letter to the district court in 2004 in which he acknowledged that the district court "offered me a chance to speak at my sentencing hearing but I didn't."  The postconviction court did not abuse its discretion by rejecting this claim.

            Barnes further argues that the statutes under which he was indicted are unconstitutional.  This argument was not argued in the postconviction court, and we will not consider it on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts generally will not consider matters not argued and considered in the court below).  Additionally, Barnes either knew of or should have known of this claim before his direct appeal, and he is in any event barred from raising it in a petition for postconviction relief.  See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

            Lastly, Barnes argues that he did not receive a return on his indictment and that the police violated his Miranda rights by questioning him after he requested an attorney.  Barnes either knew of or should have known of both of these claims before his direct appeal, and they are not, therefore, grounds for postconviction relief.  See id.

            Affirmed.