Marc Joseph Bessette, petitioner, Appellant, vs. State of Minnesota, Respondent.

Marc Joseph Bessette, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-512, Court of Appeals Unpublished, March 13, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-512

 

Marc Joseph Bessette, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed March 13, 2007

Affirmed
Klaphake, Judge

 

Aitkin County District Court

File No. K8-02-324

 

Marc Joseph Bessette, 36072 Grove Street, Palisade MN 56469 (pro se appellant)

 

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

 

Thomas Murtha, Aitkin County Attorney, Lisa Roggenkamp Rakotz, Assistant County Attorney, 217 Second Street, Northwest, Aitkin, MN  56431 (for respondent)

 

            Considered and decided by Klaphake, 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

KLAPHAKE, Judge

            In this postconviction proceeding, appellant Marc Joseph Bessette seeks to vacate his 2004 conviction of and sentence for felony theft on the grounds that he was sentenced by a judge who had a conflict of interest because he had formerly represented appellant in a 1993 civil matter and the representation ended on a contentious note.  Appellant also alleges that the judge improperly appointed the judge's former legal partner to serve as appellant's standby counsel and exhibited bias at sentencing by denying his request for a decrease in his sentence, which would have prevented collateral employment consequences to him.  Because appellant's claims were either known at the time of his direct appeal, and are therefore barred under Knaffla, or are otherwise without merit, we affirm the postconviction court's denial of appellant's petition for relief.

D E C I S I O N

            This court will not overturn a postconviction court's decision absent an abuse of discretion.  White v. State, 711 N.W.2d 106, 109 (Minn. 2006).  Once a direct appeal has been filed, "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).

            Appellant alleges that he is entitled to postconviction relief because the judge presiding over his trial and sentencing had a conflict of interest and was biased.  The alleged conflict arose out of the judge's former representation of appellant in a 1993 civil action.  The judge withdrew from appellant's case when he was appointed to the bench, and appellant complains that he unnecessarily drove 2,000 miles from his residence in Quebec to attend the scheduled trial because no one informed him that the trial had been postponed.  Appellant claims that the relationship ended on a "contentious note" after appellant refused to pay the judge's former law firm an additional $750.

            Appellant clearly knew of the possible conflict of interest when the judge was assigned to his case, yet he failed to object or otherwise raise this as an issue.  Because appellant represented himself at trial and up to sentencing, he had ample opportunity to request the judge's removal.  See Minn. R. Crim. P. 26.03, subd. 13(4) (providing method for defendant to remove judge); State v. Moss, 269 N.W.2d 732, 734-35 (Minn. 1978) (failure to request removal of judge before trial acts as waiver of objection to possible conflict known before trial).  Thus, appellant's claim of judicial bias is barred by Knaffla.

            Moreover, even if the claim were not barred, appellant has failed to establish any actual bias on the part of the judge.  Once a defendant has submitted to a trial and other proceedings before a judge without raising the issue of bias, the judgment will be reversed only if the defendant is "able to show actual bias and not just the appearance of bias."  Moss, 269 N.W.2d at 735.  Appellant claims that the judge was biased because he refused to depart and sentence him to a gross misdemeanor.  But as the sentencing transcript shows, the judge imposed the presumptive sentence and declined to depart because the evidence failed to establish any substantial and compelling reasons to do so.  See Neal v. State, 658 N.W.2d 536, 545 (Minn. 2003) (noting sentencing guidelines require compelling circumstances to justify departure from the presumptive sentence).  Appellant cannot equate the judge's refusal to depart, which was entirely proper under the circumstances presented here, with evidence of judicial bias.

            A liberal reading of appellant's postconviction petition also suggests that he found fault with the judge's appointment of one of the judge's former law partners as standby counsel.  Appellant insists that he informed standby counsel of his "extreme dissatisfaction" and that he told counsel of "his intention to ask [the judge] for another standby counsel," but that counsel warned or threatened him not to do so because the judge would "hold [appellant] in contempt and lock [him] up."  Again, appellant never objected on the record to the judge's choice of standby counsel.  Indeed, appellant acknowledges that he consulted with his standby counsel at several points during trial, and nothing in the record suggests that appellant had problems with counsel or that he was otherwise dissatisfied with the advice that he obtained.  Thus, any complaint appellant might have regarding the judge's choice of standby counsel is either barred by Knaffla because it was known at the time of appellant's direct appeal or is without merit.

            A final claim that might be read into appellant's postconviction petition is ineffective assistance of appellate counsel.  In particular, appellant claims that he "related to [appellate counsel] his history with [the judge and standby counsel]," but that appellate counsel "failed to act on that information and never sought recusal of [the judge] prior to sentencing."            Claims involving ineffective assistance of appellate counsel are generally not barred under Knaffla because they could not have been raised on direct appeal.  Schneider v. State, 725 N.W.2d 516, 521 (Minn. 2007).

            To show ineffective assistance of counsel, a defendant must demonstrate that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's error, the result of the trial proceeding would have been different.  Carney v. State, 692 N.W.2d 888, 892 (Minn. 2005).  Again, the record in this case fails to show or even suggest any actual bias on the part of the judge; to the contrary, the judge was extremely patient with appellant, often ruling in appellant's favor and allowing him extra latitude to question witnesses, make arguments, and present his defense.  Thus, any failure on the part of appellate counsel to raise the issue of judicial bias cannot be viewed as an error or as evidence that counsel's performance was otherwise lacking.

            Affirmed.