This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1905

 

Richard Alan Folden, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed August 8, 2000

Affirmed; motion granted

Randall, Judge

 

Clay County District Court

File No. K3-92-1453

 

Richard Alan Folden, MCF-Stillwater #109399, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

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

 

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.


U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Pro se appellant challenges the district court's denial of his petition for postconviction relief without an evidentiary hearing. Respondent filed a motion to strike portions of appellant's reply brief. We affirm and grant respondent's motion to strike.

FACTS

Appellant Richard Alan Folden was convicted of first-degree criminal sexual conduct and received a 37-year sentence. He appealed his conviction, challenging the sufficiency of the evidence, and this court affirmed. State v. Folden, No. C8-93-1025 (Minn. App. Jan. 26, 1994) (order op.), review denied (Minn. Mar. 15, 1994). In 1997, Folden petitioned for postconviction relief. He asserted (a) his sentence violated the Double Jeopardy Clause and the Thirteen Amendment; (b) his conviction was inconsistent with his acquittals on three other charges; and (c) his trial counsel was ineffective. The district court denied his petition, and this court affirmed. State v. Folden, No. C8-97-1244 (Minn. App. Dec. 30, 1997).

In October 1999, Folden again sought postconviction relief. He alleged the district court erred by (a) sentencing him with "judicial biasness/presence" in violation of his due-process and equal-protection rights; (b) allowing "vindictive prosecution" to influence the conviction and length of sentence; and (c) sentencing him "in lieu of 'attorney-client conflict,' and possible coercion between counsel and tribunal to obtain sentencing courts conviction." The district court denied Folden's petition without an evidentiary hearing.

D E C I S I O N

I. Postconviction Relief

An appellate court reviews postconviction proceedings only to determine whether the postconviction court's findings are supported by sufficient evidence; the postconviction court's decision will not be reversed absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

After a defendant has taken a direct appeal, issues raised in that appeal, and issues known but not raised, may not be considered on a subsequent petition for postconviction relief. King v. State, 562 N.W.2d 791, 795 (Minn. 1997). Postconviction relief may be granted when an issue "is so novel that * * * its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided." Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). Such relief may also be available when evidence is discovered that was unavailable at the time of trial. Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995).

Folden first asserts that his due-process and equal-protection rights were violated by judicial bias at sentencing. In his memorandum supporting his petition for postconviction relief, Folden states that after full review of the record, "it could be reasonably demonstrated" that the district court judge who sentenced him did so with judicial bias. Folden points to no specific facts supporting his assertion that the district court judge was biased. Instead, he contends that because there was not enough evidence to support his conviction, he was sentenced for his previous convictions.

Because Folden had previous convictions for second- and third-degree criminal sexual conduct, the district court was mandated by statute to sentence him to 37 years. See Minn. Stat. 609.346, subd. 2a(a) (1990) (stating court shall sentence person convicted of first- or second-degree criminal sexual conduct to 37 years' imprisonment if person has two prior first-, second-, or third-degree criminal sexual conduct convictions). To the extent Folden's argument is an attempt to assert insufficiency of the evidence, Folden raised this issue in his direct appeal, and this court rejected it. See King, 562 N.W.2d at 795 (stating issues raised in direct appeal, and issues known but not raised, shall not be considered on subsequent petition for postconviction relief). His allegation of judicial basis is not a novel issue or based on newly discovered evidence. We will not address this issue in a postconviction proceeding.

Folden next contends that the sentencing court permitted "vindictive prosecution" to influence his conviction and the length of his sentence. Folden nakedly asserts that to have imposed the sentence that it did, the district court "must have acted in concert and participation" with the county attorney's office. Folden alleges that review of this matter in an evidentiary hearing would demonstrate that (a) the complaint contained false and misleading information; (b) the sentencing court, prosecution, and defense counsel knew of such false and misleading information; and (c) Folden is incarcerated in violation of his constitutional rights.

As stated above, the district court sentenced Folden based on a statutory mandate. Folden provides no explanation of what information in the complaint is false and misleading. Further, Folden was not entitled to have these issues addressed in a postconviction proceeding because they are neither novel nor based on newly discovered evidence.

Folden's final allegation is that there was an attorney-client conflict and possible "coercion"[1] between counsel and the district court. He states that newly discovered evidence and prior evidence, which he claims would be demonstrated during an evidentiary hearing, would support these allegations. He asserts that such evidence would establish that there was a conflict between him and his attorney and that, to obtain his conviction, the district court and defense counsel would have had to have been "acting in concert" with the prosecution. Folden goes on to again state that he was sentenced based solely on his prior convictions. He then contends that his physical condition and the fact there was no rule 20 mental examination discussed demonstrate that his counsel and the prosecution were acting in concert or that defense counsel was not competent to defend him.

Folden provides no description of the alleged "newly discovered evidence." He makes nothing but broad assertions, without any support, that his counsel worked in concert with the prosecution and the district court to convict him. Finally, his claim that his counsel was incompetent was previously raised in his first postconviction petition. Folden is not entitled to have these issues addressed again in postconviction proceedings.

Because appellant made only cursory accusations in his petition for postconviction relief and has not raised any issues that were not, or could not have been, raised in his direct appeal, the district court properly denied his petition without an evidentiary hearing. See Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (stating court may dismiss petition for postconviction relief without evidentiary hearing if petition, files, and record "conclusively show that the petitioner is entitled to no relief" (quoting Minn. Stat. 590.04, subd. 1 (1996)); King, 562 N.W.2d at 794 (stating postconviction court need not hold evidentiary hearing unless material facts in dispute must be resolved to decide postconviction claim on merits).

II. Motion to Strike

Respondent filed a motion to strike the discussion in Folden's reply brief about Folden's medical condition and to strike the medical-information form attached to his reply brief.

Appellate courts may not consider "matters outside the record on appeal, and may not consider matters not produced and received in evidence below." Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988); see also Minn. R. Crim. P. 28.02, subd. 8 (defining record on appeal as "papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any").

The medical form Folden attached to his reply brief was not introduced in the district court. We strike the document and Folden's discussion of the information it contains.

Affirmed; motion granted.



[1] Although Folden uses the term "coercion," it appears from his memorandum supporting his postconviction petition that he is referring to "collusion" between counsel and the district court.