This opinion will be unpublished and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

C0-00-2089

 

State of Minnesota,
 Respondent,

vs.

Keith E. Tellinghuisen,
Appellant.

 

Filed June 12, 2001

Affirmed

Peterson, Judge

 

Polk County District Court

File No. C29749

 

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

 

Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Polk County Courthouse, 612 North Broadway, Suite 301, Crookston, MN  56716 (for respondent)

 

Keith E. Tellinghuisen, MCF-Faribault, 1101 Linden Lane, Faribault, MN  55021 (appellant pro se)

 

            Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

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

PETERSON, Judge

In this appeal from an order denying his postconviction petition, appellant Keith Earl Tellinghuisen argues that the postconviction court should have granted him a new trial based on erroneous admission of Spreigl evidence, ineffective assistance of counsel, and prejudicial prosecutorial misconduct in closing argument.  Appellant also argues that the postconviction court erred in deciding the petition without an evidentiary hearing.  We affirm.

FACTS

            A jury convicted Tellinghuisen of two counts of first-degree burglary and one count each of kidnapping, terroristic threats, fifth-degree assault, and violating an order for protection.  The convictions arose out of two incidents between Tellinghuisen and his former girlfriend.  The first incident occurred on September 14, 1996, and resulted in the terroristic threats and one first-degree burglary conviction.  The second incident occurred on September 24-25, 1996, and resulted in the remaining convictions.  The court imposed concurrent sentences for all of the convictions.  The longest sentence was an executed term of 141 months for the first-degree burglary committed on September 24, an upward durational departure of 30 months.  Tellinghuisen appealed, challenging the sufficiency of the evidence to support his convictions for the two crimes that occurred on September 14 and claiming ineffective assistance of trial counsel.  This court affirmed, rejecting the challenges to the sufficiency of the evidence and declining to decide the ineffective assistance of counsel claim due to an inadequate record.  State v. Tellinghuisen, 1998 WL 249029 (Minn. App. May 19, 1998), review denied (Minn. July 16, 1998).

            Tellinghuisen filed a petition for postconviction relief, claiming ineffective assistance of trial counsel and also raising issues of prosecutorial misconduct, trial procedure, and the admission of other-crime evidence.  The district court denied the petition without conducting an evidentiary hearing. 

D E C I S I O N

            This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction court’s findings and will affirm the postconviction court’s decision absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case.

 

State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999) (quotation omitted).

I.

            Tellinghuisen argues that an evidentiary hearing was required on his ineffective assistance of trial counsel claim.  A postconviction court is not required to hold an evidentiary hearing on a petition for postconviction relief unless the petitioner alleges facts that, “if proved by a fair preponderance of the evidence, would entitle [the petitioner] to the requested relief.”  Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) (citations omitted).

To prevail on a claim of ineffective assistance of counsel, [defendant] must affirmatively show that his attorney’s representation fell below an objective standard of reasonableness and so prejudiced him that there is a reasonable probability that, but for counsel’s errors, the trial outcome would have been different.

 

State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999) (citation omitted), review denied (Minn. Mar. 14, 2000), cert. denied, 121 S. Ct. 196 (2000).

            When determining whether counsel’s representation fell below an objective standard of reasonableness,

[a] strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance.  Particular deference is given to the decisions of counsel regarding trial strategy.

 

State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citations omitted); see also State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (“Appellate courts, which have the benefit of hindsight, do not review for competency matters of trial strategy.”).

What evidence to present to the jury, including which witnesses to call, represents an attorney’s decision regarding trial tactics and lies within the proper discretion of trial counsel.

 

Doppler, 590 N.W.2d at 633.

            Tellinghuisen argues that defense counsel was unable to effectively represent him due to a conflict of interest.  Defense counsel had represented Tellinghuisen in a previous case and knew that Tellinghuisen intended to file an ineffective assistance of counsel claim against him.  Tellinghuisen asserts that defense counsel refused to meet with him, refused to discuss this case with him, and refused to render any assistance whatsoever.  Tellinghuisen’s assertions are contrary to the district court’s findings regarding the effectiveness of defense counsel’s representation:

Two letters supplied to the court by the state * * * indicate that [defense counsel’s] investigator did talk with numerous individuals about testifying on [Tellinghuisen’s] behalf.  Some of the individuals contacted would not have aided [Tellinghuisen’s] defense, others were reluctant to get involved, and still others were unavailable for a variety of reasons including illness.  Under these circumstances, the decision not to call these character witnesses is reasonable and within the trial attorney’s discretion as part of the trial strategy.

 

            * * * [Defense counsel] aggressively cross-examined the State’s witnesses.  He also actively questioned [Tellinghuisen] when he took the stand.  Lesser-included offenses were included in the jury instructions at the defense’s request.

 

            Throughout the three-day jury trial, [defense counsel] made appropriate objections, some of which were overruled and some were sustained.  The State also made numerous objections throughout the trial with similar mixed results.

 

            In addition, [defense counsel] made objections requested by [Tellinghuisen] and brought [Tellinghuisen’s] concerns to the attention of the court.  (Tellinghuisen’s concern regarding undue prejudice from the jury seeing him in ankle chains and handcuffs which resulted in an inquiry of the jury and curative instruction); (raising objection for [Tellinghuisen] regarding [Spreigl evidence] as hampering his constitutional right to remain silent which would force him to take the stand); (moving for mistrial as requested by [Tellinghuisen] based on the statements made by [a police officer]); (addressing [Tellinghuisen’s] request from stand to speak with his attorney).

 

            He also requested cautionary instructions when necessary.

 

            * * * *

 

            While there were occasions where in hindsight [Tellinghuisen’s] trial counsel could have been more prepared, these instances, when viewed from the time of trial, do not rise to the level of incompetence.  (Trial counsel mistakenly questioned witness on prior felony convictions relying on state’s prior criminal record disclosure of [witness], which were discovered on recess not to be felonies); (request for continuance to subpoena two additional witnesses, resolved to some extent through stipulations by the state).  They appear to be simply occasions where the unexpected arises during the trial.  In addition, [defense counsel] requested corrective instructions when the need arose throughout the trial to mitigate any danger of prejudice.  This court will not fault counsel for dealing with simple trial mistakes.

 

(Citations omitted).  The record supports the court’s findings regarding defense counsel’s effective representation.

            Even if defense counsel’s representation was ineffective, Tellinghuisen must also show that the error was prejudicial.  Tellinghuisen has not demonstrated that if his attorney had conducted additional investigation, a reasonable probability exists that the trial outcome would have been different.  Nor has Tellinghuisen alleged any facts that could be developed at an evidentiary hearing that would support such a finding.  Therefore, the postconviction court did not err when it denied Tellinghuisen relief based on his ineffective assistance of counsel claim without conducting an evidentiary hearing.

            Tellinghuisen also contends that the postconviction court erred by denying his request for substitute counsel before trial.  The Minnesota Constitution and the United States Constitution provide indigent defendants with the right to counsel in all criminal proceedings.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  A defendant, however, does not have an absolute constitutional right to the counsel of his choice.  State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990).  The trial court is obligated to provide an indigent defendant with a capable attorney, but the defendant must accept the appointee.  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  A request for substitute counsel “will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.”  Vance, 254 N.W.2d at 358.

            Tellinghuisen has not alleged facts that constitute the exceptional circumstances necessary to entitle him to substitute counsel.  See State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998) (general dissatisfaction or disagreement with appointed counsel’s assessment of the case does not constitute exceptional circumstances); Vance, 254 N.W.2d at 358 (district court’s refusal to grant a continuance so substitute counsel may be procured will be reversed only if the district court abused its discretion).

II.

            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.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  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).  A novel claim means one for which a legal basis was not reasonably available at the time the direct appeal was taken.  Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991).  Tellinghuisen cites no newly discovered evidence or legal authority indicating that the evidentiary and trial procedure issues that he now raises are novel claims.

            The claims that he now raises are that the district court erred in (1) admitting two complaints charging him with assaulting a previous girlfriend and endangering her child; (2) instructing the jury that evidence of his previous convictions was relevant to whether he was telling the truth in this case; (3) denying his motion to sever the trials on the incident that occurred on September 14 and the incident that occurred on September 24-25.  Tellinghuisen also claims that the prosecutor committed misconduct during closing argument.

Tellinghuisen should have known of these claims at the time of his direct appeal.  To the extent that appellate counsel declined to raise them on direct appeal, Tellinghuisen should have raised the claims on direct appeal in a pro se supplemental brief.  See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (when appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues; a dissatisfied appellant should raise additional claims in a supplemental brief).

            Affirmed.



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