This opinion will be unpublished and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

C1-00-1386

 

James Thomas Hogan,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 30, 2001

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K5-98-1031

 

 

Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Crippen, Presiding Judge, Randall, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the district court's denial of his second petition for postconviction relief after his conviction of second-degree criminal sexual conduct.  In his petition, appellant claimed (1) a prior out-of-state conviction should not have been used as a factor for an upward sentence departure; (2) he was excessively punished as a sex offender; (3) the record did not demonstrate that he admitted committing criminal sexual conduct; (4) he was forced to enter an Alford plea; (5) the prosecutor's questions during the plea hearing violated his Fifth Amendment right against self-incrimination; (6) the district court threatened him; and (7) he was denied effective assistance of counsel.  Appellant contends that the district court erred when it concluded that he was not entitled to relief because all of his postconviction claims were raised, or were known to him and should have been raised, in his first petition for postconviction relief. We affirm.

FACTS

            In March 1998 appellant James Thomas Hogan was charged with first- and second-degree criminal sexual conduct involving a five-year-old female.  In May 1998, Hogan entered an Alford guilty plea to second-degree criminal sexual conduct in exchange for dismissal of the first-degree charge.  As part of the plea agreement, Hogan received an upward-durational-departure sentence of 86 months.  The district court cited several aggravating factors used to arrive at the upward-durational-departure sentence, including the fact that the child claimed Hogan digitally penetrated her, Hogan abused a position of trust, and Hogan had a history of sexual abuse, which included a 1984 conviction of two counts of first-degree intrafamilial sexual abuse.

            Hogan did not appeal from his conviction or sentence.  In November 1999, however, he filed his first petition for postconviction relief, requesting that his sentence be reduced to the presumptive guideline sentence of 43 months.  The district court reviewed the court file, including the transcripts from the plea hearing and sentence hearing, and concluded that there were no irregularities.  The court denied Hogan's petition, and he did not appeal.

            In May 2000, Hogan filed his second petition for postconviction relief.  Citing Knaffla v. State, 309 Minn. 246, 243 N.W.2d 737 (Minn. 1976), the district court concluded that Hogan's claims in his second petition were either raised in his first petition or were known to him and should have been raised in his first petition.  The district court denied Hogan's second petition, and Hogan now appeals from the district court's decision.

D E C I S I O N

Review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).   The district court's decision will not be reversed absent an abuse of discretion.  Id.

I.                   Claims Raised in First Petition for Postconviction Relief

            "A convicted defendant is entitled to at least one state correction process, either by direct appeal or postconviction proceeding."  State v. Myers, 273 N.W.2d 656, 657 (Minn. 1978).  The district court may "summarily deny a second or successive petition for similar relief on behalf of the same petitioner."  Minn. Stat. § 590.04, subd. 3 (1998).

            Here, several of Hogan's claims in his second petition for postconviction relief were identical with those of his first petition for postconviction relief.[1]  Specifically, Hogan asserts that a prior offense he committed in New Mexico should not have been used as a factor for an upward sentence departure, that he was excessively punished as a sex offender, and that the record does not demonstrate that he admitted committing criminal sexual conduct.  The district court denied Hogan's first petition for postconviction relief, and he did not appeal the district court's decision. 

Because these claims were identical with those Hogan raised in his first petition, the district court did not abuse its discretion by denying Hogan's second request for postconviction relief with respect to the claims Hogan had previously raised.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (concluding claims appellant raised in earlier review will not be considered on appeal).

II.                Additional Claims for Postconviction Relief

In addition to reasserting claims he raised in his first petition for postconviction relief, Hogan also raised several other arguments in his second petition. Specifically, Hogan claimed that his plea must be vacated because (1) he was forced to enter an Alford plea, (2) the prosecutor's questions during the plea hearing violated his Fifth Amendment right against self-incrimination, (3) the district court threatened him, and (4) he was denied effective assistance of counsel.  First, Hogan knew, or should have known, about these additional claims, and he should have raised them in his first postconviction appeal.  Each claim arises from his plea hearing or sentencing hearing.  See Wayne, 601 N.W.2d at 441 (observing claims that were known and could have been raised in earlier review will not be considered in postconviction appeal).

In limited situations, however, if required by fairness, and if petitioner did not deliberately and inexcusably fail to raise the issue previously, an appellate court may consider a claim contained in a later petition for postconviction relief, even if the claim was known at the time of the previous petition for postconviction relief or its legal basis may have been reasonably available.  Cf. State v. Olson, 609 N.W.2d 293, 299 (Minn. App. 2000) (stating in limited situations, even if claim was known to petitioner at time of direct appeal or its legal basis may have been reasonably available, if petitioner did not raise issue on direct appeal, reviewing court will still consider claim in petition for postconviction relief if required by fairness).

            Analyzing the facts of Hogan's case demonstrates that the claims he now raises lack merit.  See Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (recognizing petitioner must present facts showing fairness that requires court to consider issues known but not raised in earlier appeals). 

A.     Alford Plea

Hogan argues that he was forced to accept the Alford plea because he was not able to negotiate the plea and he claims he was told that he must enter the plea or he would receive a life sentence.  The record shows that Hogan testified at his plea hearing and that he and his attorney discussed at length the complaint and the evidence against him.  Hogan testified that he understood that, if he went to trial, the state would attempt to introduce his convictions of first-degree criminal sexual conduct from 1984.  He agreed that, if he went to trial and was convicted, he would most likely receive life in prison because of his 1984 convictions.  Hogan indicated he understood that he could choose not to plead guilty and, instead, go to trial where he would be presumed innocent until proven guilty.  Hogan also stated that he agreed to the plea without any coercion or threats.  Accordingly, we conclude Hogan was not "forced" to plead guilty to second-degree criminal sexual conduct.

B.    Fifth Amendment Right Against Self Incrimination

Hogan argues that the prosecutor violated his Fifth Amendment right against self-incrimination during the plea hearing by questioning him about a crime Hogan committed in New Mexico.  Hogan claims the prosecutor twisted his words and made it appear as though he had victimized more persons than he actually had. 

"The Fifth Amendment provides, '[n]o person shall be compelled in any criminal case to be a witness against himself.'"  State v. Barber, 494 N.W.2d 497, 501 (Minn. App. 1993) (quoting Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141 (1984)).  But the Fifth Amendment does not preclude a defendant from testifying voluntarily even though he may incriminate himself.  Id.  Further, a defendant must actively invoke his Fifth Amendment protection; otherwise the defendant will not be considered to have been compelled to testify.  Id.

During the plea hearing the prosecutor asked:

In addition to [the 1984] convictions, you also had a similar conviction out of the state of New Mexico in the 1970s which was very similar in nature.  But apparently that conviction was vacated or pardoned sometime in the late '70's; is that correct?

 

Hogan replied, "That conviction was for contributing to the delinquency of a minor."  The prosecutor next asked, "It involved sexual abuse of a child, though didn't it?" Hogan answered, "Not to the boy, no."  Next, the prosecutor inquired, "To the girl; is that correct?"  Hogan answered, "Yes."  The prosecutor responded by asking:

In any event, you understand that by virtue of the fact that you have two convictions for 1st degree criminal sexual conduct from 1984, if we proceeded to trial and if you were convicted of 1st degree criminal sexual conduct again, you could well face a mandatory life sentence or a mandatory 30 years sentence in this case.  Do you understand that?

 

(Emphasis added.)  Hogan replied, "Yes."  The record indicates that Hogan did not invoke his Fifth Amendment right at any time during the plea hearing.  Additionally, based on the above exchange, we cannot conclude that the prosecution "twisted" Hogan's words.  It appears the prosecutor was relying on the 1984 convictions to determine that Hogan would face life imprisonment if he was found guilty at trial.  We find that Hogan's Fifth Amendment right against self-incrimination was not violated.

C.                District Court Judge's Threats

Hogan asserts that the district court judge threatened him by stating, "I'll fix you and fix you real good.  I'll make your life extremely miserable way past your retirement." 

Hogan does not cite, nor does there appear to be, any portion of the record to substantiate this claim.  Although Hogan claims that the transcript was manipulated to erase the judge's threatening statements, Hogan has not provided any evidence to corroborate this theory.  Additionally, none of the parties at the plea hearing, including Hogan's attorney, has provided further evidence, such as an affidavit, to confirm Hogan's assertion.  Hogan's claim that the district court judge threatened him is without support in the record.  Cf. State v. Schaefer, 374 N.W.2d 199, 201 (Minn. App. 1985) (concluding appellate court has no reliable basis to evaluate claim when relevant facts are bare allegations unsupported by record); Minn. R. Crim. P. 28.01, subd. 8 (stating record on appeal consists of papers filed in district court, offered exhibits, and transcripts, if any).

D.        Ineffective Assistance of Counsel

When raising the issue of ineffective assistance of counsel, a defendant must affirmatively demonstrate 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." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).

In Hogan's second petition for postconviction relief, Hogan claimed that defense counsel (a) did not protect his Fifth Amendment right against self-incrimination, (b) did not protect him from the district court judge's threatening statements, (c) misled him into the plea agreement, (d) denied him the right to call witnesses if his case went to trial, and (e) did not provide him with the name of the psychologist who analyzed the victim's videotaped examination. 

Neither Hogan's brief submitted by his attorney nor his own pro se briefs elaborate on his assertion that he received ineffective assistance of counsel. Further, as stated previously, the record does not demonstrate that Hogan's Fifth Amendment rights were violated or that the district court judge ever made any threatening statements to Hogan.  During the plea hearing, Hogan's counsel specifically informed him of his right to go to trial and call witnesses.  Finally, Hogan's argument involving the psychologist does not persuade us.  Hogan testified that he knowingly and voluntarily accepted the Alford plea agreement.  Thus, we can only conclude that the videotaped examination of the victim would not change anything.

Hogan failed to show that his counsel's assistance fell below an objective level of reasonableness.  See Townsend v. State, 582 N.W.2d 225, 229 (Minn. 1998) (affirming district court's summary denial of postconviction relief where no indication exists that counsel's assistance fell below objective level of reasonableness).

            We find that the district court did not err by denying Hogan's second petition for postconviction relief.

            Affirmed.



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

[1] In fact, the language in his second petition was copied verbatim from his first petition.