This opinion will be unpublished and

may not be cited except as provided by

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







Brian Keith Todd, petitioner,





State of Minnesota,



Filed June 18, 2002


Willis, Judge


Hennepin County District Court

File No. 94042868


Brian Keith Todd, MCF OID# 179356, Willow River/Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN  55767-9449 (pro se appellant)


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


Amy J. Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)


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

U N P U B L I S H E D   O P I N I O N


            Appellant Brian Keith Todd challenges an order dismissing his petition for postconviction relief.  The postconviction court held that, under the Knaffla rule, the issues Todd raised were precluded because they either were raised in his direct appeal or because Todd knew, or should have known, of the issues at the time of his direct appeal.  Because we conclude that the district court did not abuse its discretion, we affirm.


On May 26, 1994, the state charged Todd with two counts of attempted first-degree murder, two counts of attempted second-degree murder, and one count of second-degree assault.  Todd pleaded not guilty and requested a jury trial, and, on September 16, 1994, a jury convicted him of one count of attempted second-degree murder and the charge of second-degree assault.  The state moved for an upward durational sentencing departure.  The district court imposed the presumptive 163-month sentence for the attempted-murder conviction and a consecutive 120-month sentence for the assault conviction.           

On January 3, 1995, Todd, who was then represented by a public defender, appealed, arguing that the district court (1) erred in admitting his confession and (2) abused its discretion by imposing a 120-month sentence for his assault conviction.  This court affirmed the district court but modified the assault sentence, reducing it to 72 months because the facts did not support a greater-than-double upward departure.

On July 31, 2001, Todd filed a pro se petition for postconviction relief.  Todd argues that (1) his sentences should run concurrently because a consecutive sentence exaggerates the criminality of his offense and (2) the district court abused its discretion by imposing “an aggregate sentence of 283 months for crimes committed during a single behavioral incident.”  On August 15, 2001, the postconviction court denied the petition, and this pro se appeal follows.


The postconviction court dismissed Todd’s petition, concluding that the issues presented are precluded because Todd either raised them in his direct appeal or he knew, or should have known, about them at the time of the appeal.  See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that when petitioner files a direct appeal from conviction, all issues raised or known at time of appeal are not considered by postconviction court in subsequent petition); see also Black v. State, 560 N.W.2d 83, 85 (Minn. 1997) (applying Knaffla rule when petitioner should have known about issue at time of direct appeal). This court reviews the decision of a postconviction court under an abuse-of-discretion standard.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). 

Todd argues that the district court abused its discretion by denying relief because he was not aware of the issues he now raises at the time of his direct appeal.  But the only exceptions to the Knaffla rule are when a “legal basis of a claim was not reasonably available because it was novel at the time of the direct appeal” or “in limited situations when fairness so requires and when the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.”  Ademodi v. State, 616 N.W.2d 716, 718 (Minn. 2000) (citations omitted) (quotation omitted). 

In considering whether an argument is novel, the inquiry is whether the argument was legally available, not whether it was practically available.  Id.  The legal arguments Todd now seeks to make were legally available to him at the time of his direct appeal.  And there is no basis to conclude that fairness requires this court to consider the issues Todd raises.  The postconviction court did not abuse its discretion by denying relief.


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