This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Michael Ashby, a/k/a
Michael Yusuf Ashraf, petitioner,
State of Minnesota,
Hennepin County District Court
File No. 91047436
Michael Ashby, a/k/a Michael Yusuf Ashraf, Hamilton Correctional Institute, 10650 SW 46th Street, Jasper, FL 32052 (appellant pro se)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*
Appellant challenges an order denying his postconviction petition seeking reduction of his 196-month sentence for first-degree assault, arguing that the double upward departure is an abuse of discretion because the severity of the victim’s injuries is an element of the offense and the evidence does not establish that children were present in the area when the assault occurred. Because appellant either raised or could have raised these issues in prior appeals and postconviction petitions, we affirm.
At approximately 9:00 p.m. on July 2, 1991, Raymond Swearegene was sitting on the front porch of his sister Vivian Swearegene’s apartment complex. A number of adults and children were present. At approximately 9:20 p.m., appellant Michael Ashby and Larry Green approached the apartment complex in search of another resident. Green entered the building, but appellant remained outside. When Green exited the building, appellant pushed Vivian. Raymond, appellant, and some other males engaged in a pushing match. Appellant walked to the street, turned around, pulled out a gun, and fired five to six shots. One of the shots hit Raymond, paralyzing him from the waist down.
A jury convicted appellant of first-degree assault inflicting great bodily harm pursuant to Minn. Stat. § 609.221 (1990) on September 8, 1992. Appellant received a 196-month sentence, a double upward departure from the presumptive 98-month sentence, due to the victim’s severe injuries and the fact that children were in the vicinity of the shooting. Appellant represented himself at trial, although the court appointed an attorney to serve as standby counsel. State v. Ashby, No. C8-92-2133, 1993 WL 276892, at *2 (Minn. App. July 27, 1993), review denied (Minn. Aug. 24, 1993).
This is appellant’s fourth appeal to this court. Appellant has also brought three postconviction petitions in the district court.
Appellant brought his first direct appeal in October 1992. Appellant challenged his conviction, arguing that the trial court erred in allowing him to represent himself and that the trial court had a continuing obligation to ensure that appellant received adequate counsel. Id. at *1. Appellant claimed that his waiver of counsel was neither knowing nor intelligent and that events during trial required the trial court to override his waiver sua sponte. Id. We concluded that appellant understood the charges against him as well as the risks of representing himself and, therefore, held that his waiver was knowing and voluntary. Id. at *2-*3. Appellant also raised a variety of issues in pro se briefs. Id. at *3. We carefully reviewed appellant’s pro se materials and found that they did not “provide any reasonable basis” to overturn his conviction. Id.
Appellant brought his first postconviction petition in September 1993, arguing that (1) the trial court erred regarding expert witnesses, (2) the presence of children in the vicinity was not a basis for the upward departure, (3) the location of the victim was in question, (4) his sentence was an abuse of discretion, and (5) he received ineffective assistance of counsel during pretrial hearings, trial, and appeal. The postconviction court denied appellant’s petition, noting that the bases for appellant’s petition were either addressed or could have been addressed on direct appeal.
Appellant brought his case to this court for the second time in January 1994. He challenged the denial of his postconviction petition but subsequently requested that we remand the appeal to the district court. We construed appellant’s request as an intent to file a second postconviction petition and remanded for postconviction proceedings.
Appellant brought a second petition for postconviction relief in October 1994, alleging that (1) he had not been mentally competent to represent himself, (2) the state suppressed evidence relating to the identity of the shooter, (3) the location of the victim was in question, and (4) the duration of his sentence was improper because he did not have notice that the sentencing court intended to impose an upward departure. The district court denied appellant’s second postconviction petition, noting that appellant could have brought his claims in his first postconviction petition and that many of appellant’s claims had already been adjudicated on appeal.
Appellant brought a third appeal in February 1995. Appellant challenged the representation he received on appeal, claiming that his counsel failed to raise a variety of issues and failed to challenge the duration of appellant’s sentence. Ashby v. State, No. C4-95-412, 1995 WL 465542, at *1 (Minn. App. Aug. 8, 1995), review denied (Minn. Aug. 30, 1995). We upheld the denial of postconviction relief, concluding that appellant’s counsel on appeal provided him with adequate representation. Id. We also noted that, although appellant alleged that his appellate counsel failed to make certain arguments, appellant filed a pro se brief in which he made the arguments allegedly overlooked. Id. at *2.
Appellant brought a third petition for postconviction relief in July 2001, arguing that it was error to allow him to represent himself because he was not mentally competent to do so. Appellant also claimed that evidence that another person was the shooter was suppressed. Appellant further argued that the testimony at trial conflicted regarding the location of the victim at the time of the shooting and that children were not present in the area. Additionally, appellant argued that his sentence was an abuse of discretion. The postconviction court denied the petition. This appeal follows.
We review denials of postconviction relief under an abuse-of-discretion standard. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Petitioners for postconviction relief must show “by a fair preponderance of the evidence, facts which warrant a reopening of the case.” State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993) (citation omitted). A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted). None of the reasons appellant cites in his third postconviction petition or in his pro se appellate brief provides a basis for relief.
1. Appellant’s Sentence Was Not an Abuse of Discretion.
A. Appellant’s sentence does not violate Apprendi.
In his third postconviction petition, appellant argues, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that his sentence is an abuse of discretion because it was allegedly based on sentencing factors not presented to the jury. Apprendi held that, other than the fact of prior conviction, any fact increasing the sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S. Ct. at 2362-63. Appellant’s 196-month sentence, although a double upward departure, is not in excess of 240 months, the maximum penalty for first-degree assault. Therefore, the postconviction court properly ruled that appellant’s sentence did not violate Apprendi.
B. Aggravating factors existed to form the basis for the upward departure.
On appeal, appellant asserts that the victim’s severe injuries and the alleged presence of children in the vicinity are not bases for an upward departure in sentencing. Because appellant did not specifically make these arguments to the third postconviction court, we need not address them here. Hirt v. State, 309 Minn. 574, 575, 244 N.W.2d 162, 162 (1976) (issues not raised in postconviction petition may not be raised on appeal from postconviction ruling). Nevertheless, in an attempt to bring final resolution to appellant’s protracted claims, we will address them on the merits.
Appellant contends that the victim’s severe injuries are an element of the offense and are, therefore, not a basis for an upward departure. Appellant argued for a reduction of his sentence in his first postconviction petition, which was denied because appellant failed to raise this issue in his direct appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (petitioner not entitled to postconviction relief for issues that were or could have been raised and decided on direct appeal); Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999). Although great bodily harm is an element of first-degree assault, it can form the basis for a sentencing departure if appellant committed the offense “in a particularly serious way.” See State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984) (finding that criminal sexual conduct done in a “particularly serious way” can suffice for a departure in a first-degree criminal sexual conduct case). When determining whether aggravating circumstances exist, a trial court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). Appellant committed the assault with a firearm and caused severe harm to the victim. The upward sentencing departure based on extreme harm to the victim was warranted under these circumstances.
Appellant also alleges that children were not present at the time of the shooting, thereby removing one of the bases for the upward departure. Again, appellant made this argument in his first postconviction petition, which was denied because appellant failed to raise this issue on his direct appeal. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. We note that the testimony at trial clearly indicates that children were present in the area and that they ran away when appellant fired the shots.
The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Appellant assaulted someone with a firearm without regard for the safety and welfare of nearby adults and children, and caused severe harm to the victim. We cannot say that the upward departure was an abuse of discretion.
2. Appellant Waived His Right to Counsel.
Appellant contends that the trial court erred in allowing him to represent himself. The postconviction court properly denied appellant relief on this claim because appellant raised this issue in his direct appeal, and we held that appellant’s waiver was valid. State v. Ashby, No. C8-92-2133, 1993 WL 276892, at *2 (Minn. App. July 27, 1993), review denied (Minn. Aug. 24, 1993); see Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.
3. Evidence Relating to the Identity of the Shooter.
Appellant argued in his third petition for postconviction relief that the state suppressed evidence that indicated that someone else was the shooter. Appellant raised this issue in his second petition for postconviction relief, which was denied. As a postconviction court need not grant successive requests for the same relief, we hold that the postconviction court properly denied appellant’s request for relief on this basis. See Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999) (affirming denial of a second petition for postconviction relief because it requested the same relief as the first petition, which was denied).
4. Evidence Relating to the Location of the Victim.
Finally, appellant argues that the state suppressed evidence relating to the location of the victim. Appellant raised this issue in his first and second petitions for postconviction relief, both of which were denied. Therefore, the postconviction court properly denied appellant relief on this issue. Id.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.