This opinion will be unpublished and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
State of Minnesota,
David William Schmitz,
Pope County District Court
File No. K295248
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Belvin Doebbert, Pope County Attorney, 605 South Lakeshore Drive, Suite 1000, Glenwood, MN 56334 (for respondent)
David William Schmitz, MCF – Faribault, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se appellant)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant David Schmitz challenges the district court’s denial of his motion to correct his sentence. Appellant contends that the district court: (1) abused its discretion by failing to identify separate aggravating factors to support an upward departure; (2) erred in concluding that his conviction of first-degree assault was not a lesser included offense of first-degree attempted domestic abuse murder; and (3) erred in concluding that his sentence for first-degree assault did not arise from the same behavioral incident as the crime of first-degree attempted domestic abuse murder. We affirm.
On January 12, 1996, a jury found appellant guilty of first-degree attempted domestic abuse murder, first-degree assault, and pattern of harassing conduct. Appellant appealed his conviction and sentence for first-degree attempted domestic abuse murder, and on January 28, 1997, this court reversed appellant’s conviction and vacated his sentence. State v. Schmitz, 559 N.W.2d 701, 703 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).
Respondent argues that appellant’s present claim for appellate relief should not be considered because he did not raise the issues in his prior direct appeal with this court. We agree. When a direct appeal has already been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995) (emphasis added) (quotation omitted). Here, appellant challenges his conviction of and sentence for first-degree assault. But each issue appellant raises could have been addressed when he filed his first appeal. For example, appellant knew the district court’s reasons for imposing an upward departure on February 20, 1996, and thus, he should have known and raised any claims regarding the propriety of the departure.
In addition, appellant was aware of the elements necessary to support convictions of and sentences for the crimes of first-degree assault, first-degree attempted domestic abuse murder, and pattern of harassing conduct at the time of his first appeal. Therefore, the issues of whether first-degree assault was a lesser-included offense of first-degree attempted domestic abuse murder, and whether first-degree assault arose out of the same incident as first-degree attempted domestic abuse murder and pattern of harassing conduct could have been raised in the prior appeal.
Appellant argues that the claims raised in this appeal could not have been raised before because they relate to the reversal of his conviction of first-degree attempted domestic abuse murder. We disagree. Appellant’s appeal of his conviction of and sentence for first-degree assault was not dependent upon the outcome of his appeal of the first-degree attempted domestic abuse murder conviction and sentence. To the contrary, appellant could have claimed in his prior appeal that the district court erred in upwardly departing from the presumptive sentence even if this court had affirmed his conviction of and sentence for first-degree attempted domestic abuse murder. And there was nothing to prevent appellant from claiming that first-degree assault was a lesser-included offense of first-degree attempted domestic abuse murder and that first-degree assault arose from the same behavioral incident as attempted domestic abuse murder and pattern of harassing conduct.
Moreover, in appellant’s prior appeal, he challenged his conviction of pattern of harassment, suggesting that he was aware of other appealable issues separate and distinct from the first-degree attempted domestic abuse murder claim.
We recognize that there is a narrow exception to the general rule that we will not consider claims known but not raised in a prior appeal upon a subsequent petition for postconviction relief:
In limited situations, if fairness so requires and if the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal, we will allow substantive review of a claim contained in a petition for postconviction relief, either when the claim was known at the time of direct appeal or when its legal basis may have been reasonably available.
Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (citation omitted). But because (1) appellant has not presented any facts indicating why fairness requires that any of the claims known but not raised on prior appeal should be considered; and (2) appellant’s claims lack merit, we conclude that appellant has waived the issues raised in this appeal.