This opinion will be unpublished and

may not be cited except as provided by

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







Joseph Patrick Schlies, petitioner,





State of Minnesota,




Filed December 19, 2000


Amundson, Judge


Ramsey County District Court

File No. K0983141


John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN  55414 (for appellant)


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


Clayton Robinson, St. Paul City Attorney, Sarah Lynn Sanville, Assistant St. Paul City Attorney, 15 West Kellogg Boulevard, Suite 500, St. Paul, MN 55102 (for respondent)



            Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N





Appellant challenges the district court’s order denying his petition for postconviction relief, arguing that he received ineffective assistance of counsel at trial.  We affirm.



Appellant John Patrick Schlies was convicted of enhanced gross misdemeanor test refusal in violation of Minn. Stat. § 169.121, subds. 1a, 3(d)(2) (1998).  In August 1998, St. Paul Police Officer Gary Minnie stopped Schlies for failure to make a complete stop at a stop sign and failure to signal a turn. Schlies had watery, bloodshot eyes, slurred speech, and he smelled of alcohol.  Officer Minnie arrested Schlies and took him to the police department where he read him the implied consent advisory. Schlies refused all tests.

At the time of his arrest, Schlies had four alcohol-related driving convictions dating back to February 23, 1984, and his driving privileges had been cancelled.  Schlies was charged with two counts of enhanced gross misdemeanor driving under the influence in violation of Minn. Stat. § 169.121, subd. 1(a) (1998) and Minn. Stat. § 169.129, subd. 1 (1998), enhanced gross misdemeanor test refusal in violation of Minn. Stat. § 169.121, subd. 1a (1998), and gross misdemeanor driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (1998).

Schlies was tried before a six-person jury that found him guilty only of the test-refusal charge.  The district court dismissed the driving-after-cancellation charge and sentenced Schlies to two years incarceration, but stayed imposition and placed him on probation for six years, subject to conditions, including one year in the county workhouse.

In January 1999, the Minnesota Supreme Court held enhanced-gross-misdemeanor statutes, such as Minn. Stat. § 169.121, subd. 3(d)(2), unconstitutional because they permitted local imprisonment in excess of one year without requiring a twelve-person jury.  Baker v. State, 590 N.W.2d 636, 640 (Minn. 1999).  Following Baker, Schlies’s attorney moved for resentencing.  On January 22, 1999, the court vacated Schlies’s sentence and resentenced him to an executed one-year term of imprisonment.

Two months later, the Minnesota Supreme Court withdrew and amended its earlier opinion in Baker, making its decision prospective, holding that individuals who had not challenged the constitutionality of the enhanced gross misdemeanor statute prior to March 11, 1999, could not do so on appeal, as the issue had been waived.  Id.

            In August 1999, Schlies filed a petition for postconviction relief, contending that he received ineffective assistance of counsel because his attorney failed to challenge the constitutionality of the enhanced-gross-misdemeanor statute at trial and failed to object to the use of a six-person jury.

            The postconviction court denied relief, concluding that Schlies failed to demonstrate that his attorney’s representation fell below an objective standard of reasonableness where the attorney tried the case “in accordance with the law as it existed at the time.”  The postconviction court also found that Schlies failed to prove that the outcome of his trial would have been different but for his attorney’s errors.  In fact, he received a substantially lesser sentence because of his attorney’s actions.  This appeal followed.



This court reviews a postconviction order only to determine whether the evidence is sufficient to sustain the findings of the postconviction court.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).   Absent an abuse of discretion, the reviewing court will not disturb a postconviction court’s decision.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).

            To succeed on a claim of ineffective assistance of counsel, Schlies must prove that his attorney’s representation “fell below an objective standard of reasonableness and that  there is a reasonable probability that, but for counsel’s * * * errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).


Given the Minnesota Supreme Court’s review of the validity of the gross-misdemeanor-test-refusal statute at the time of his trial, Schlies argues that his attorney was negligent in failing to challenge its constitutionality.  Statutes, however, are presumptively constitutional.  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Even if other “reasonable and experienced” attorneys were regularly challenging the constitutionality of the statute, as Schlies alleges, his attorney’s failure to challenge the law does not rise to the level of  negligence—defense counsel was trying the case in accordance with the law as it existed at that time.  Furthermore, when the law did change, Schlies’s attorney immediately moved for resentencing, and Schlies received a lesser sentence as a result.

            Furthermore, Schlies’s attorney’s failure to object to a six-person jury was not unreasonable.  Non-felony offenses are ordinarily tried to a six-person jury and, at the time of Schlies’s trial, the statute under which he was tried was in force.   See Minn. Const. art. I, § 6 (allowing legislature to determine number of jurors in all non-felony criminal prosecutions provided that the jury have at least six members); Baker, 590 N.W.2d at 640 (giving prospective effect to invalidation of enhanced-gross-misdemeanor statutes).  In hindsight, an argument could be made that Schlies’s attorney should have challenged the enhanced-gross-misdemeanor statute or objected to the six-person jury, but failure to do so was not unreasonable under the circumstances.  See Berkow v. State, 583 N.W.2d 562, 564 (Minn. 1998) (holding attorney’s failure to inform defendant of effect on immigration status from guilty plea did not constitute ineffective assistance of counsel); Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (stating failure to inform defendant that claims raised in pro se brief could not be reasserted in postconviction setting did not constitute ineffective assistance of counsel).

Because the conduct of Schlies’s attorney did not fall below an objective standard of reasonableness, the postconviction court did not abuse its discretion in concluding that the legal representation Schlies received was not deficient.


            Even if his attorney’s representation was deficient, Schlies must also demonstrate that he was prejudiced by his attorney’s failure to challenge the statute and the six-person jury.  Specifically, he must prove that the result of the proceeding would have been different but for his attorney’s failure to attack the constitutionality of the gross-misdemeanor statute or object to the six-person jury.  See Scruggs, 484 N.W.2d at 25.

It is undisputed that by failing to contest the validity of the statute at trial, Schlies’s waived his right to challenge it on appeal.  But even if Schlies had been able to later challenge the statute, it is not certain that his attorney’s failure to contest the statute’s validity was “so serious as to deprive him of a fair trial.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (stating “[t]he error of counsel must have prejudiced the proceeding”).  Schlies has not shown that a new trial before twelve jurors rather than six would have altered the final outcome.  Schlies’s conviction was based on his refusal to take a test measuring his blood-alcohol content, and the “totality of the evidence” before the jury suggests that Schlies would still have been found guilty of the charge.  See id. at 237 (concluding totality of the evidence before the jury suggested that the result of his trial would not have changed).

            Moreover, Schlies’s attorney’s representation resulted in his acquittal on two counts of driving while under the influence and, later, the imposition of a sentence that was less severe than that originally imposed at trial.  It is obvious that the attorney brought skill and professionalism in changing the outcome to benefit the defendant.  Thus, even if his attorney erred by not challenging the statute or the six-person jury, those errors cannot be considered so serious as to deprive Schlies of a fair trial.  Therefore, the postconviction court did not abuse its discretion in denying relief.  We affirm the district court’s conclusion that Schlies received effective assistance of counsel.