This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Benjamin John Igherighe,
Hennepin County District Court
File No. 98060051
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue S.E., Minneapolis, MN 55414-3230 (for respondent)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Kalitowski Judge, and Stoneburner, Judge.
A jury convicted Benjamin John Igherighe of aggravated forgery in violation of Minn. Stat. § 609.625, subd. 3 (1996) and the court sentenced him to imprisonment of one year and one day, pursuant to the Minn. Sent. Guidelines. On appeal, Igherighe argues (1) he was denied effective assistance of counsel and (2) the district court erred by denying his motion for a downward dispositional departure at sentencing. We affirm.
D E C I S I O N
Igherighe argues he is entitled to a new trial because of his trial counsel’s failure during voir dire to challenge several prospective jurors who had connections to crimes involving theft or forgery.
It is well-settled that to prove ineffective assistance of counsel, the claimant must show (1) that counsel’s representation “fell below an objective standard of reasonableness” and (2) “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)). Challenged acts or omissions must not have been reasonable trial tactics. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Gates, 398 N.W.2d at 561(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
In support of his argument, Igherighe contends that the disputed jurors’ connections to forgery and theft crimes constitute implied bias that deprived him of his right to a fair and impartial jury and gave rise to a presumption of prejudice. These arguments are without merit.
In State v. Anderson, we recently declined to adopt the doctrine of implied bias. State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000). In that case, nine jurors had been victims of crimes similar to the charged offense. Id. at 355. In this case, the record from voir dire shows that several prospective jurors had connections to theft or forgery crimes. Igherighe’s argument focuses on seven jurors: (1) a man who had been a juror in a “bad check” case approximately fifteen years before; (2) a man who had pleaded guilty to two forgeries approximately ten and twenty years before; (3) a woman whose aunt’s accounts had been illegally depleted by a relative; (4) a man who had been obligated to pay for property damage after someone he had sold a car to failed to transfer the car’s title and then crashed the car; (5) a woman whose checkbook had been stolen years before, resulting in some forged checks; (6) a man whose car, and property from his car, had been stolen and whose wife’s purse had been stolen, resulting in unauthorized use of her credit card; and (7) a woman whose car had been stolen and whose home had been broken into. These facts give us no reason to reconsider our decision in Anderson.
The record shows that Igherighe’s trial counsel used four of five available peremptory strikes and that, in response to pointed questions from counsel, none of the jurors at issue here expressed any indication that their connections to theft or forgery crimes would affect their state of mind or attitude in deciding the case or would interfere with their ability to be fair. See Minn. R. Crim. P. 26.02 subd. 5 (allowing challenge for cause when prospective juror’s state of mind indicates inability to “try the case impartially and without prejudice to the substantial rights of the party challenging”). In light of these facts, we are convinced that trial counsel’s failure to challenge the jurors was a matter of strategy; therefore, we cannot conclude that trial counsel’s representation was objectively unreasonable.
Igherighe’s argument that prejudice must be presumed on these facts because of structural error in the proceedings is not supported by the case law cited in appellant’s brief. See, e.g., McGurk v. Stenberg, 163 F.3d 470, 475 n. 5 (8th Cir. 1998) (noting “it will be a rare event when the failings of counsel rise to the level of structural error” and “it is difficult to imagine situations that would trigger structural error analysis beyond the failure on the part of counsel to inform a defendant of certain basic rights, such as the right to trial by jury, to self-representation, or to an appeal as a matter of right”). Thus, Igherighe has also failed to show that correction of the alleged errors would have made a difference in the outcome of proceedings. Because he has failed to prove ineffective assistance of counsel under the test outlined in State v. Gates, Igherighe’s argument fails.
Igherighe also argues that several mitigating factors warranted a departure at sentencing. The decision to depart from sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Only in a rare case will a reviewing court reverse a district court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).
In support of his argument, Igherighe argues that the victim of the forgery was the aggressor in the incident, that Igherighe participated in the crime under circumstances of duress, that a departure might have given Igherighe a chance to avoid deportation, and that no harm to the victim or the state resulted from Igherighe’s conduct. See Minn. Sent. Guidelines II.D. (including as mitigating factors that may be considered in deciding whether to grant a departure, whether the victim “was an aggressor in the incident,” whether the offender “played a minor or passive role in the crime or participated under circumstances of coercion or duress,” and whether “[o]ther substantial grounds exist which tend to excuse or mitigate the offender’s culpability”).
The record shows that (1) Igherighe’s mechanic, the victim in this case, charged more than Igherighe was willing to pay for repairs to Igherighe’s car; (2) after Igherighe failed to pay the repair bill, the mechanic sought a mechanic’s lien on the car, eventually effectuating a transfer of title to the mechanic; and (3) Igherighe was upset by this turn of events and, by forging the mechanic’s signature, had title to the car transferred back to his own name. Assuming for the sake of argument that victim-as-aggressor is a relevant consideration in a forgery case, these facts do not clearly demonstrate that the mechanic was an aggressor here. They also fail to establish that Igherighe was under duress when he committed the forgery. See Wise v. Midtown Motors, Inc. 231 Minn. 46, 51; 42 N.W.2d 404, 407 (1950) (defining duress as having one’s free will overcome by an unlawful threat). In addition, Igherighe provides no authority supporting his argument that we should find mitigating factors in (a) his alleged lack of intent to defraud, (b) the lack of monetary loss to the state and the victim, or (c) the possibility that a guidelines sentence would have deportation consequences. In view of these circumstances, we are convinced the district court did not abuse its discretion in sentencing Igherighe according to the guidelines.