This opinion will be unpublished and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
Brooks Daniel Fisher, petitioner,
State of Minnesota,
Stearns County District Court
File No. K3-91-2194
Brooks Daniel Fisher, MCF Willow River/Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Roger S. VanHeel, Stearns County Attorney, Mary Yunker, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4774 (for respondent)
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Poritsky, Judge.*
Appellant Brooks Fisher challenges the denial of his petition for postconviction relief. Because Fisher’s postconviction claims were either previously raised on direct appeal, known at the time of appeal, or lack factual support, we affirm.
On July 15, 1991, Fisher committed crimes in three different counties. He committed robberies in Isanti and Otter Tail Counties and a rape and robbery at a motel in Stearns County. Fisher pleaded guilty to the Isanti and Otter Tail robberies and was sentenced to 182 months. With respect to the Stearns County charges, Fisher pleaded guilty to robbery and went to trial on the two counts of criminal sexual conduct in the first degree. A jury found Fisher guilty of criminal sexual conduct.
The trial court sentenced Fisher to an additional 182 months to run consecutively to the Isanti and Otter Tail County sentences. The length of the sentence constituted an upward departure from the sentencing guidelines. The trial court also sentenced Fisher to 115 months’ imprisonment for aggravated robbery to be served concurrently with the criminal-sexual-conduct sentence. Finally, the trial court ordered restitution in excess of $20,000 to be paid to the motel and its workers’ compensation insurer. The trial court, recognizing that Fisher would have a limited ability to pay restitution while incarcerated, directed that his prison earnings be applied towards the financial obligation.
Fisher appealed his conviction arguing that: (1) the evidence was insufficient to support his conviction; (2) the trial court’s departure from the sentencing guidelines was an abuse of discretion; (3) his sentence for aggravated robbery was based on the wrong criminal history score; and (4) restitution was unreasonable in light of his ability to pay. In a pro se supplemental brief, Fisher raised a number of other issues. The court of appeals affirmed the trial court in nearly all respects, but remanded for resentencing on the aggravated robbery charge because, as the state conceded, the wrong criminal history score had been used. See State v. Fisher, No. C5-93-1225 (Minn. App. Feb. 1, 1994).
On July 19, 1999, Fisher filed a petition for postconviction relief. Fisher argues that his due-process rights were violated by a police officer’s trial testimony that Fisher’s demeanor was “cocky,” in contradiction of a pretrial agreement. Fisher also argues that the trial court erred by imposing both a durational departure and a consecutive sentence. Finally, Fisher seeks to modify his restitution payments on the grounds of hardship. The district court denied Fisher’s petition in its entirety.
D E C I S I O N
When reviewing postconviction proceedings, this court’s role is limited to determining whether there is sufficient evidence to support the postconviction court’s findings. Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998). The postconviction court’s decision will not be reversed absent an abuse of discretion. Kambon v. State, 583 N.W.2d 748, 750 (Minn. 1998).
A convicted defendant has the right to one review by an appellate or postconviction court. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). When a defendant has already made a direct appeal, he is barred from seeking postconviction review of all matters raised in the appeal or known at the time of appeal. Id. The Knaffla rule also precludes review of issues the postconviction petitioner should have known of at the time of appeal. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998). An exception to the rule exists when the petitioner’s claim is novel or fairness requires further review. Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997). Another exception recently reestablished is a claim of ineffective counsel. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).
The district court found that the Knaffla rule barred two of Fisher’s three claims. First, Fisher argues that the trial court abused its discretion by allowing a police officer to testify to Fisher’s demeanor. This issue was argued before the trial court and, thus, was obviously known to Fisher at the time of his direct appeal.
Fisher’s second claim is that the trial court erred in its departure from the sentencing guidelines. The sentencing issue was raised before this court as part of his direct appeal and was rejected. Because Fisher’s first two claims were either raised on appeal or known at the time of the direct appeal, the district court did not abuse its discretion by denying the relief sought under these claims. Moreover, it cannot be said that either issue is novel or that fairness required the district court to engage in any further review.
Fisher’s final claim is that his restitution obligation should be modified so that he need not make payments until his release from prison. The district court recognized that this issue was properly raised in a postconviction proceeding. See State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993) (defendant may seek modification of restitution repayment schedule when asked to pay more than he has the ability to pay), review denied (Minn. Dec. 22, 1993); State v. Jola, 409 N.W.2d 17, 20 (Minn. App. 1987) (same). The district court nevertheless determined that Fisher’s petition did not provide a sufficient basis for granting relief.
The postconviction petitioner has the burden of proving, by a preponderance of the evidence, facts entitling him to relief. Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999). A petition for postconviction review must allege facts that, if proven to be true, would entitle the petitioner to the relief sought. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). Argumentative assertions, without factual support, are insufficient to entitle the petitioner to either an evidentiary hearing or relief. Gassler, 590 N.W.2d at 772.
According to the figures set forth in his petition, Fisher earns approximately $32 to $38 per month, one-half of which is taken to pay restitution. Fisher listed five potential monthly expenses. Specifically, he must pay $3 for dental or health visits. He alleges expenses for replacement clothing, personal hygiene items, and medication, but does not state what those costs are. Fisher presents no evidence that his expenses and restitution payments exceed his prison income. Further, Fisher has not alleged that he has been unable to purchase necessities as a result of his restitution obligation. Because Fisher has not presented any evidence that he does not have the ability to pay restitution, his petition was properly denied. Cf. Steinbuch v. State, 589 N.W.2d 464, 466 (Minn. 1999) (affirming denial of request to modify restitution because petitioner presented “no evidence to support his contention that he is medically unable to work”).
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.