This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1014

 

Larry Larue Brown, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 16, 2001

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 94049103

 

J. Anthony Torres, 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for appellant)

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Holtan, Judge*.                

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

 

Appellant moved for postconviction relief on two grounds: (1) that his trial attorney improperly prevented him from testifying at trial and (2) that his appellate attorney failed to raise on appeal the issue of trial counsel’s impropriety.  The trial court denied the petition without an evidentiary hearing.  We affirm.

FACTS

 

            Appellant Larry Larue Brown was convicted of two counts of attempted first-degree murder, attempted second-degree murder, and terroristic threats.  He did not testify at the trial.  At the conclusion of the trial, the court instructed the jury, released it to deliberate, and then asked Brown whether he waived his right to testify.  Brown indicated that he chose not to testify.  The jury returned guilty verdicts.

While preparing for his appeal, Brown requested that appellate counsel move for a stay of the appeal pending a postconviction proceeding, so that he could raise a claim of ineffective trial counsel.  Brown’s appellate counsel stated that there was no apparent basis to challenge trial counsel’s representation and requested that Brown provide more information.  Appellate counsel also informed Brown of his right to waive assistance of appellate counsel and proceed pro se, and provided Brown with the required waiver form.

            Brown refused to sign a waiver-of-counsel form, but did file a pro se application for stay of direct appeal with this court.  This court denied Brown’s application on the basis that he had not signed a waiver-of-counsel form.

            On appeal, appellate counsel argued that there was insufficient evidence as a matter of law to support Brown’s conviction of attempted second-degree murder.  Brown filed a pro se supplemental brief, in which he argued, among other issues,  ineffective assistance of trial counsel by failing to obtain expert DNA testing and failing to object to certain exhibits.  Neither appellate counsel’s brief nor the pro se supplemental brief argued that trial counsel prevented Brown from testifying.  This court affirmed Brown’s conviction.

            Brown then filed a petition for postconviction relief, in which he asserted claims  of ineffective assistance of appellate and trial counsel.  He argued that his trial counsel prevented him from testifying and that his appellate counsel knew of this issue and failed to raise it on appeal.  The trial court denied Brown’s request without an evidentiary hearing.  Brown appealed.

D E C I S I O N

With respect to postconviction proceedings, this court’s scope of review is limited to determining whether there is sufficient evidence in the record to sustain the findings of the trial court.  State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).  This court reviews the trial court’s rulings under an abuse-of-discretion standard.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

Ineffective Assistance of Trial Counsel

The first consideration is whether Brown’s claim of ineffective assistance of trial counsel is precluded by law. 

[W]here direct appeal has once 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). An exception to the Knaffla rule exists where a claim was known to the defendant at the time of appeal, but was not raised because the claim was “so novel that its legal basis was not reasonably available at the time of direct appeal.”  Townsend v. State, 582 N.W.2d 225, 228 (Minn. 1998) (citing Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995)). 

“Postconviction claims of ineffective assistance of trial counsel are ‘generally precluded if known at the time of direct appeal.’”  Russell, 562 N.W.2d 670, 673 (quoting Black v. State, 560 N.W.2d 83, 85 (Minn. 1997)); see also Dent v. State, 441 N.W.2d 497 (Minn. 1989).  A narrow exception exists where the claim requires additional fact-finding, so it is not barred by his having known of the claim at the time of his direct appeal.  See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997).

The basis for Brown’s claim of ineffective trial counsel is that trial counsel prevented him from testifying.  Although Brown concedes that he knew of this issue at the time of appeal, he argues that the issue is not precluded by the Knaffla rule because his claim falls under an exception to the rule, as discussed in Robinson, 567 N.W.2d  at 495.  In Robinson, the appellant filed for postconviction relief and asserted ineffective assistance of trial counsel on a number of grounds, including (1) that his attorney failed to hire an expert witness; (2) that his attorney failed to obtain a co-defendant’s testimony; and (3) that his attorney failed  to investigate whether his fingerprints were on the weapon used in the crime. Id. at 493-94.  Robinson also claimed that his attorney failed to communicate two plea offers.  Id. at 494.  Robinson admitted that he knew that he could challenge the effectiveness of trial counsel on direct appeal.  Id.  He admitted discussing the issue with appellate counsel, and he submitted a supplemental pro se brief indicating that he wished to preserve the issue.  Id.  The supreme court held that all of Robinson’s claims were barred by the Knaffla rule, except that which concerned the failure to communicate plea offers.  Id. at 495.  The court reasoned that the issue required additional fact-finding, “so it is not barred by his having known of the claim at the time of his direct appeal.”  See Robinson, 567 N.W.2d at 495 (citing Black, 560 N.W.2d at 85 n.1). 

This case is distinguishable from Robinson, because additional fact-finding is not necessary.  Here, the trial court record shows that, without any reservation, Brown stated that it was his choice not to testify.  He did not intimate that his attorney in any way improperly influenced that choice.  In such circumstances, where it is clear that the client exercised an unfettered choice not to testify, there is no need to further inquire whether trial counsel prevented Brown from testifying.  See, e.g., United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir. 1987) (holding that where a defendant indicates apparent acquiescence in his counsel’s advice not to testify, he cannot later claim that his right to testify was overcome).  Thus, we affirm the trial court’s holding that Brown’s claim of ineffective assistance of trial counsel is precluded by law.

Ineffective Assistance of Appellate Counsel

Brown also asserted a claim of ineffective assistance of appellate counsel.   This claim is not precluded by the Knaffla rule, because it was not known at the time of appeal.  See, e.g., Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997); Robinson, 567 N.W.2d at 495. 

An evidentiary hearing on a postconviction petition is not required unless the petition alleges facts that, if proven by the preponderance of the evidence, would entitle the petitioner to the requested relief.  Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996); see also Minn. Stat. § 590.04, subd. 1 (1998) (providing that no hearing is required if “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief”).  In reviewing whether the district court properly denied Brown’s petition without an evidentiary hearing, this court must examine the substance of the postconviction claim.  State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).

In order to succeed on an ineffective-assistance-of-counsel claim, a defendant must

affirmatively prove that his counsel's representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 

 

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)).  “There is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.”  Hale, 566 N.W.2d at 927. 

Brown argues that it was the ineffective assistance of his appellate counsel that caused him to fail to raise his claim of ineffectiveness of trial counsel on direct appeal.  Brown alleges that appellate counsel erroneously advised him that the record contained a waiver to testify, and as a matter of law, he could not raise the issue on appeal and that appellate counsel failed to notify him of his constitutional right to testify. 

Appellate counsel’s representation did not fall below the standard of care.  See Tsipouras v. State, 567 N.W.2d 271, 276 (Minn. App. 1997) (holding that appellate counsel’s decision not to raise issues on direct appeal well within standard of care), review denied (Minn. Sept. 18, 1997).  Brown’s appellate counsel inquired about the basis of his ineffective-assistance-of-trial-counsel claim.  Brown never gave appellate counsel any additional information on which appellate counsel might have raised the issue.  Moreover, appellate counsel has no duty to raise all possible issues and thereby jeopardize more meritorious claims.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990); see also Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 835 (1985).   Minnesota practice has developed an informal procedure that allows clients to submit their own pro se supplemental briefs when they disagree with counsel about what issues should be raised on appeal.  See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).  Thus, we affirm the trial court’s denial of Brown’s postconviction petition for relief.

            Affirmed.

 

           

 



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