Gregory Allen Peterson, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-444

 

Gregory Allen Peterson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 21, 2004

Affirmed

Kalitowski, Judge

 

Koochiching County District Court

File No. K2-00-66

 

Barry V. Voss, Samuel J. Glover, Barry V. Voss, P.A., 527 Marquette Avenue South, Suite 1050, Minneapolis, MN 55402 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Jennifer J. Hasbargen, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN 56649 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Gregory Peterson challenges the district court's denial of his petition for postconviction relief, in which he alleged ineffective assistance of trial counsel and appellate counsel.  Appellant contends that the district court abused its discretion in holding that he was procedurally barred from proceeding with his claim for postconviction relief.  We affirm.

D E C I S I O N

We review a postconviction court's findings and conclusions to determine whether they are supported by the record, and will not reverse the decision of a postconviction court absent an abuse of discretion.  Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). 

I.

This is appellant's third appeal from his conviction and sentence for fourth-degree criminal sexual conduct, and appellant is represented by his third attorney.  Appellant first argues that the district court erred when it held that he was procedurally barred from proceeding with his claim of ineffective assistance of trial counsel.  To support this claim, appellant states that his first attorney committed fundamental mistakes of law and strategy during his omnibus hearing on probable cause and during his plea negotiation. 

Following a direct appeal, a postconviction court will not consider a claim that was known but not raised at the time of appeal.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Exceptions to this rule exist for claims that are so novel that their legal basis was not available at the time of direct appeal, and where the petitioner did not "deliberately or inexcusably" fail to raise the claim on direct appeal.  Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).  These exceptions, however, are limited to cases in which fairness requires consideration of the claim.  Id.

            The state charged appellant with two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.  Following an omnibus hearing on probable cause and a plea negotiation, appellant pleaded guilty to one count of fourth-degree criminal sexual conduct.  The district court accepted appellant's plea and imposed a stayed sentence of 18 months in prison, placed appellant on probation for 10 years, and ordered appellant to attend sex-offender treatment.  Appellant's first attorney appeared at these proceedings. 

After sentencing, appellant hired new counsel and filed a motion to withdraw his guilty plea.  While this motion was pending before the district court, appellant appealed his sentence.  We affirmed appellant's sentence in State v. Peterson, No. C0-00-2111 (Minn. App. July 3, 2001).  The district court later denied appellant's motion to withdraw his plea, and appellant filed his second appeal.  We affirmed in Peterson v. State, No. C6-01-647 (Minn. App. Nov. 6, 2001).  Following his second appeal, the district court held a probation-violation hearing and found that appellant violated his probation by failing to complete sex-offender treatment.  As a result, the district court revoked appellant's stay and executed his 18-month prison sentence. 

Appellant then hired his third attorney and filed a petition for postconviction relief with the district court.  Appellant requested an evidentiary hearing to determine whether he was denied effective assistance of trial counsel and appellate counsel.  The state argued that appellant was procedurally barred from proceeding with his postconviction relief claim, and the district court agreed.  The district court denied appellant's motion and stated that appellant's ineffective assistance of trial counsel claim was one that he should have known about and raised at the time of his direct appeal.  The district court concluded that the Knaffla exceptions did not apply, and dismissed appellant's petition for postconviction relief. 

Based on the record, we conclude that appellant must have known of his claim of ineffective assistance of trial counsel when he filed his first and second appeal.  The district court held the omnibus hearing on probable cause in April 2000.  And appellant entered his guilty plea in June 2000.  Appellant filed his first appeal in December 2000 and his second appeal in April 2001.  Appellant did not raise the claim of ineffective assistance of trial counsel in either appeal, and the Knaffla exceptions do not apply here.  Accordingly, the district court did not abuse its discretion in determining that appellant's ineffective assistance of trial counsel claim was procedurally barred.

II.

Appellant also argues that the district court erred when it held that he was procedurally barred from proceeding with his claim of ineffective assistance of appellate counsel.  To support this claim, appellant contends that his second attorney failed to raise a claim of ineffective assistance of trial counsel in his second appeal, and advised appellant to deny his guilt at sex-offender treatment while appellant attempted to withdraw his guilty plea.

To gain postconviction relief for ineffective assistance of counsel, 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."  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, 2064, 2068 (1984)).  "To prove an ineffective assistance of appellate counsel claim predicated on ineffective assistance of trial counsel, the petitioner must first prove that trial counsel was ineffective."  Doppler v. State, 660 N.W.2d 797, 802 (Minn. 2003). 

In his second appeal, appellant claimed that his first attorney coerced him into pleading guilty, and that the district court abused its discretion in finding his plea was accurate, voluntary, and supported by an adequate factual basis.  Appellant now contends that his second attorney was ineffective for failing to argue ineffective assistance of trial counsel in the second appeal.  Appellant contends that his first attorney was ineffective because he:  (1) did not object to the district court allowing the victim to testify at the omnibus hearing; (2) allowed the prosecutor and judge to undermine appellant's confidence in his representation; (3) threatened appellant during the plea negotiation; (4) negotiated a plea without knowing the results of a polygraph test or sexual assault examination; and (5) failed to inform appellant of the terms and conditions of the plea bargain.  We reject appellant's argument. 

The district court's determination that this claim fails is supported by the record.  Appellant testified at the plea hearing that he understood the charges against him, and that he was satisfied that his attorney fully informed him of the facts of the case, possible defenses, and legal options.  Appellant also testified that no one, including his attorney, the prosecutor, or the judge, made promises or threats in order to obtain a guilty plea.  The record does not indicate that appellant's trial counsel fell below an objective standard of reasonableness.  Nor does the record show that there is a reasonable probability that, but for trial counsel's alleged errors, the outcome in this case would have been different.  Therefore, to the extent appellant's claim of ineffective assistance of appellate counsel is premised on ineffective assistance of trial counsel, appellant's claim fails.  Moreover, appellant's claim fails because he is merely recasting his coercion argument from his second appeal as a claim of ineffective assistance of trial counsel.  See Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998) (rejecting ineffective assistance of trial counsel claim as a mere recasting of evidentiary objections already made on direct appeal). 

Appellant also contends that his second attorney was ineffective for allegedly advising appellant to deny his guilt at sex-offender treatment.  Although appellant pleaded guilty to the district court, he repeatedly denied his guilt throughout sex-offender treatment.  The treatment facilitator testified at the probation revocation hearing that appellant was belligerent, aggressive, and argumentative at treatment.  The facilitator testified that at his last session, appellant informed her that he was going to rescind his plea and asked for permission to leave.  The facilitator stated that there was nothing else the program could do for appellant at that point and completed a discharge summary, stating that appellant was not amenable to treatment.  Based on the facilitator's testimony, appellant was discharged only after he announced that he was going to rescind his plea and asked for permission to leave.

Appellant now argues that, because he followed the advice of his second attorney, the treatment facilitator discharged appellant from the program and the district court revoked appellant's probation.  Appellant claims that if he had known the consequences, he would have admitted his guilt at treatment in order to avoid violating his probation.  We do not agree with appellant's claim that counsel's alleged advice fell below an objective standard of reasonableness.  Appellant professed innocence and chose to challenge his conviction.  Thus, it was not unreasonable for counsel to advise appellant to deny his guilt at treatment.  Moreover, although appellant testified at the probation violation hearing that counsel informed him of the possibility that the district court would execute his sentence, appellant chose to admit his probation violation rather than contest the matter or ask for a chance to reenter sex-offender treatment. 

            In conclusion, it was within the district court's discretion, on this record, to bar appellant's petition for postconviction relief alleging ineffective assistance of trial counsel and appellate counsel.

            Affirmed.