Bajram Hajrusi, 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This opinion will be unpublished and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

A04-499

 

Bajram Hajrusi, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed December 21, 2004

Affirmed

Wright, Judge

 

Clay County District Court

File No. K8-99-2198

 

 

Bajram Hajrusi, Minnesota Correctional Facility Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN  55767 (pro se appellant)

 

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

 

Lisa Nelson Borgen, Clay County Attorney, 807 North Eleventh Street, P.O. Box 280, Moorhead, MN  56560 (for respondent)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court's second denial of postconviction relief from his conviction of first-degree criminal sexual conduct.  Appellant argues that the 172-month sentence, a double upward durational departure, was an abuse of discretion because the sentence exaggerated the criminality of his conduct and the district court improperly relied on the victim's age as an aggravating factor.  Appellant also contends that the district court improperly sentenced appellant for more than one offense arising from a single behavioral incident and violated appellant's due process rights.  We affirm. 

FACTS

 

On August 6, 1999, appellant Bajram Hajrusi sexually assaulted S.A., a 12-year-old babysitter for his children.[1]  At about 3 a.m., when Hajrusi returned home from visiting his wife in the hospital, Hajrusi woke S.A. and asked her to watch a movie.  S.A. soon realized that the movie was pornographic and attempted to flee.  Hajrusi grabbed S.A. from behind, forced her to the floor, fondled her breasts, and digitally penetrated her vagina.  Hajrusi then attempted to penetrate S.A. vaginally and orally with his penis.  When S.A. again tried to escape, Hajrusi pulled her onto the couch, put his penis between her legs and moved up and down.  S.A. fled to the other side of the room where she saw Hajrusi masturbate until he ejaculated.  Hajrusi threatened to kill S.A. and her family if she told anyone about the sexual assault.

Hajrusi was charged with and convicted of three counts of first-degree criminal sexual conduct.  At the sentencing hearing, the district court dismissed count two because the state failed to prove each element beyond a reasonable doubt.  The district court then imposed a 172-month sentence on count three, Minn. Stat. § 609.342, subd. 1(e)(i) (2002) (offender "causes personal injury [and] uses force or coercion to accomplish sexual penetration"), which constitutes a double upward durational departure from the presumptive guideline sentence.  We affirmed the sentence on direct appeal, holding that the district court neither abused its discretion in imposing the departure nor improperly considered factors present in the offense.  State v. Hajrusi, No. C2-00-1171, 2001 WL 314913, at *4 (Minn. App. April 3, 2001), review denied (Minn. May 15, 2001).

Hajrusi filed his first petition for postconviction relief in 2003, arguing ineffective assistance of counsel and incompetence to stand trial.  Because Hajrusi failed to allege facts to support the petition, the district court denied relief without an evidentiary hearing.  We affirmed the first postconviction ruling.  Hajrusi v. State, No. A03-261 (Minn. App. Nov. 4, 2003).  In 2004, Hajrusi filed his second petition for postconviction relief, arguing that the district court abused its discretion in departing upward from the sentencing guidelines and that his right to due process was violated by the prosecutor's reliance on perjured testimony at trial and testimony as to Hajrusi's willingness to submit to a polygraph test.  Hajrusi also claimed ineffective assistance of both trial and appellate counsel.  The district court ruled that these arguments, excluding the challenge to appellate counsel, were known at the time of Hajrusi's direct appeal and denied relief without an evidentiary hearing.  The district court also denied Hajrusi's ineffective assistance of appellate counsel claim without an evidentiary hearing.  This appeal followed. 

D E C I S I O N

 

We will not disturb the district court's denial of postconviction relief absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  When a petitioner has directly appealed a 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 consideration of that claim.  Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998).  An exception exists when (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). 

I.

Hajrusi first argues that the 172-month sentence, a double upward durational departure, was an abuse of discretion because the district court exaggerated the criminality of his conduct and improperly relied on the victim's age as an aggravating factor.  Because this issue was previously raised by Hajrusi and decided by this court in Hajrusi, 2001 WL 314913, at *2-*4, the district court properly denied postconviction relief based on this claim.  See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (holding all matters raised on direct appeal are barred from consideration in a subsequent motion for postconviction relief). 

II.

            Hajrusi next argues that the district court improperly sentenced him for more than one offense arising from a single behavioral incident.  Because Hajrusi did not raise this argument before the district court in his postconviction petition, we need not consider it here.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (this court generally will not consider matters not argued and considered in the district court).

Were we to consider this claim properly preserved, the record establishes that Hajrusi's argument is without merit.  "If a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses . . . ."  Minn. Stat. § 609.035, subd. 1 (2002).  The purpose of this section is to protect a defendant convicted of multiple offenses against unfair exaggeration of the criminality of the defendant's conduct.  State v. Mullen, 577 N.W.2d 505, 511 (Minn. 1998). 

Here, however, the record establishes that Hajrusi was sentenced on only one count of first-degree criminal sexual conduct.  Although a jury convicted Hajrusi on three counts, the district court dismissed count two because the state failed to meet its burden.  After hearing argument from counsel, the district court chose to sentence Hajrusi on count three for violating Minn. Stat. § 609.342, subd. 1(e)(i) (offender "causes personal injury [and] uses force or coercion to accomplish sexual penetration"), rather than on count one.  Thus, the sentence imposed properly punishes Hajrusi for only one offense.

III.

Hajrusi also argues that his right to due process was violated of law by the district court's bias exhibited during sentencing.  Because Hajrusi also failed to raise this claim in the postconviction petition, we decline to consider it here.  See Jones v. State, 671 N.W.2d 743, 746 n.4 (Minn. 2003) (declining to consider arguments raised in brief that were not made in the district court).  We also note that Hajrusi's claim is procedurally barred because it was known at the time of his direct appeal.  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'").

Accordingly, Hajrusi's challenge to the district court's denial of postconviction relief fails. 

            Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]  A detailed account of the facts leading to Hajrusi's conviction is set forth in his direct appeal.  See State v. Hajrusi, No. C2-00-1171 (Minn. App. April 3, 2001), review denied (Minn. May 15, 2001).