Douglas H. Dehn, petitioner, Appellant, vs. State of Minnesota, Respondent.

Douglas H. Dehn, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-617, Court of Appeals Unpublished, January 16, 2007.

This opinion will be unpublished and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

A06-617

 

Douglas H. Dehn, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed January 16, 2007 Affirmed Minge, Judge

 

Olmsted County District Court

File No. K0-03-2002

 

 

Douglas H. Dehn, 1101 Linden Lane, Faribault, MN 55021 (pro se appellant)

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the postconviction court's denial of his constitutional claims and raises ineffective-assistance-of-counsel claims for the first time.  Because the postconviction court correctly concluded that appellant's constitutional claims are barred by the Knaffla rule, we affirm.  We also conclude that appellant waived his ineffective-assistance-of-counsel claims because they were not raised at the postconviction level.

FACTS

 

            In May 2003, appellant Douglas Dehn was arrested and charged with aiding and abetting first-degree controlled substance crime.  A jury found appellant guilty, and the district court sentenced him to the presumptive sentence.

            Following his conviction, appellant filed a direct appeal to this court raising constitutional and sentencing claims.  State v. Dehn, No. A04-1784, 2005 WL 2739301, at *1 (Minn. App. Oct. 19, 2005), review denied (Minn. Dec. 21, 2005).  We affirmed appellant's conviction and sentence in an unpublished opinion.  Id.  Appellant then sought further review from the Minnesota Supreme Court, but appellant's petition was denied.  Id.

            In January 2006, appellant filed a petition for postconviction relief, but the postconviction court denied relief.  The postconviction court concluded that appellant's claims should have been raised on direct appeal, as required by the Knaffla procedural bar, and that even if those claims are not Knaffla-barred, they are without merit.  This appeal follows.

D E C I S I O N

 

I.

 

            The first issue is whether the postconviction court abused its discretion by denying appellant's postconviction petition for relief based on the Knaffla procedural bar.  We review a postconviction court's denial of relief based on the Knaffla bar for an abuse of discretion.  Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).

            The Knaffla rule provides that once a direct appeal has 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).  "Knaffla also bars claims that should have been known at the time of direct appeal."  Quick, 692 N.W.2d at 439.  But Knaffla does not prevent a postconviction court from considering a claim "(1) if the claim presents a novel legal issue or (2) if fairness requires review of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal."  Id.

            First, appellant claims the aiding and abetting statute he was convicted under is unconstitutional in violation of either Article I, section 6, or Article IV, section 17 of the Minnesota Constitution.  But even though appellant knew, or should have known, the bases for his constitutional claims at the time of his conviction, he did not raise these claims in his direct appeal.  The statutory basis for appellant's conviction did not change from the time he was charged for aiding and abetting first-degree controlled substance crime, and any challenge to the statutory basis of appellant's conviction was fully available on direct appeal. 

            In addition, appellant's constitutional claims do not satisfy either exception to the Knaffla rule.  The constitutionality of the aiding and abetting statute appellant was convicted of violating is not a novel issue, and the statute has existed in substantially the same form since at least 1963.  See Minn. Stat. Ann. § 609.05 hist. nn. (West 2003).  Accomplice liability is a well-established and accepted theory of criminal liability.  Therefore, neither claim is novel.  Moreover, because the claims were fully available to appellant at the time of the direct appeal, and because appellant did not provide a reason why they were not raised in the direct appeal, it is not unfair to deny review based on Knaffla.  Accordingly, the postconviction court did not abuse its discretion by finding them Knaffla-barred.

            But even if appellant's claims are not Knaffla-barred, they are without merit.  Appellant argues that his conviction was obtained in violation of the clause of the Minnesota Constitution, which provides, "The accused shall enjoy the right to be informed of the nature and cause of the accusation . . . ."  Minn. Const. art. I, § 6. 

            Here, the record indicates that appellant was adequately informed of the nature and cause of the accusation against him.  The complaint clearly charges appellant with aiding and abetting controlled substance crime in the first degree in violation of Minn. Stat. § 152.021, subd. 2a (2002), and Minn. Stat. § 609.05.  And the aiding and abetting theory of criminal liability is clearly codified in Minnesota law.  Minn. Stat. § 609.05, subd. 1 (2002).  Moreover, appellant was represented by counsel throughout the proceeding.  The record indicates that appellant and his counsel discussed a plea agreement, and, necessarily, the charges against appellant, before appellant chose to proceed to trial.  Here, the record does not support appellant's contention that he was confused about the combination of two statutes in the charge, or inadequately informed of the charges against him.

            Appellant also argues that his conviction should be reversed because the aiding and abetting statute violates the Minnesota Constitution by embracing more than one subject.  Appellant cites the following constitutional limit: "[n]o law shall embrace more than one subject, which shall be expressed in its title."  Minn. Const. art. IV, § 17.  The purpose of the section's subject rule is to prevent "deception as to the nature and subject of legislative enactments."  LeRoy v. Special Indep. Sch. Dist. No. 1, 285 Minn. 236, 241, 172 N.W.2d 764, 768 (1969).  "To constitute duplicity of subject, an act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any legitimate connection with or relation to each other."  Johnson v. Harrison, 47 Minn. 575, 577, 50 N.W. 923, 924 (1891).  "Minnesota statutes are presumed constitutional . . . ."  Defenders of Wildlife v. Ventura, 632 N.W.2d 707, 711 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).

            Here, appellant misconstrues Article IV, section 17 by focusing on the potential breadth of the codified aiding and abetting statute, rather than the session law as passed by the legislature.  Appellant has not shown that the Criminal Code of 1963, as passed by the legislature, embraces dissimilar subjects, or that the aiding and abetting statute, Minn. Stat. § 609.05, subd. 1, is not germane to the general subject of the act.  In fact, appellant cites to no other portion of the act in addition to the aiding and abetting statute to show the alleged dissimilarity and discordance in the law as passed.  Because Minnesota statutes are presumed constitutional, and because appellant has done nothing to show that the Criminal Code of 1963 violates the one-subject rule of Article IV, section 17, appellant's claim is without merit.

II.

            The second issue is whether appellant waived his ineffective-assistance-of-counsel claims.  "‘It is well settled that a party may not raise issues for the first time on appeal' from denial of postconviction relief."  Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (quoting Robinson v. State, 567 N.W.2d 491, 494 n.2 (Minn. 1997)).  For example, in Azure, the supreme court concluded that "[b]ecause the [petitioner] did not raise the [ineffective-assistance-of-appellate-counsel] claim in his postconviction petition and the postconviction court made no findings on the issue, [the supreme court had] no postconviction ruling to review."  Azure, 700 N.W.2d at 447.  The court further held that Azure waived his ineffective-assistance-of-appellate-counsel claim, and declined to address the issue.  Id.

            Appellant's ineffective-assistance-of-counsel claims are not different from those in Azure.  For the first time, in his informal brief to this court, appellant claims his trial counsel was ineffective because he did not request a lesser-included-offense instruction and because he did not object on the ground that accomplice testimony at trial was insufficiently corroborated.  Appellant also claims he was denied effective assistance of appellate counsel because his appellate counsel did not raise appellant's constitutional claims on direct appeal.  Appellant did not raise any of his ineffective-assistance-of-counsel claims at the postconviction level, and the postconviction court did not rule on those claims.  Accordingly, like the court in Azure, we conclude that we have no postconviction ruling to review, and appellant has waived those claims for purposes of this appeal.

            In sum, we conclude that appellant's constitutional claims are Knaffla-barred and without merit, and that appellant waived his ineffective-assistance-of-counsel claims.

            Affirmed.

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