This opinion will be unpublished and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

C2-01-2007

 

 

Garey Francis Ledin,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 18, 2002

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 94017931

 

Kyle D. White, Attorney at Law, 101 East Fifth Street, Suite 2314, St. Paul, MN  55101-1813 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Amy Klobucher, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

 

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge.

            This case arises from appellant’s second petition for postconviction relief.  In his petition, appellant claims ineffective assistance of counsel, improper joinder of offenses at trial, and erroneous upward sentencing departure by the district court.  The district court denied appellant’s petition, and because we conclude that appellant’s arguments are without merit, we affirm. 

FACTS

            Appellant Garey Francis Ledin was charged with multiple counts of felony criminal sexual conduct in two separate rape cases; those cases were tried jointly.  Both victims testified before the jury, and appellant was found guilty on all charges. 

            On appellant’s direct appeal, this court affirmed his conviction on sufficiency-of-the-evidence grounds.  State v. Ledin, No. C3-95-1079, 1996 WL 81548 (Minn. App. Feb. 27, 1996) (Ledin I).  Appellant filed a petition for postconviction relief requesting a new trial or an evidentiary hearing to assess the admissibility of polygraph examination results.  The postconviction court denied the petition, and this court affirmed in Ledin v. State, No. C7-97-876 (Minn. App. Dec. 9, 1997), review denied (Minn. Jan. 28, 1998). 

            Appellant then filed a second petition for postconviction relief based on appellant’s claims of ineffective assistance of counsel, including the failure of his trial counsel to move for severance, and an erroneous double upward sentencing departure.  On September 19, 2001, the district court denied appellant’s second petition.  This appeal followed. 

D E C I S I O N

I.

            Appellant claims that his trial counsel was ineffective because he failed to move for severance of the charges.  Furthermore, appellant claims that his original appellate counsel was ineffective because he failed to brief five issues that were listed in the statement of the case on appellant’s direct appeal. 

            To obtain postconviction relief on the grounds of ineffective assistance of counsel, appellant must show the representation “fell below an ‘objective standard of reasonableness’” and “there is ‘a reasonable probability that, but for [lawyer’s] unprofessional errors, the result of the proceeding would have been different.’”  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

A.  Trial Counsel

            When assessing whether representation fell below the objective standard of reasonableness, there is a “strong presumption” that the conduct of defense counsel “falls within the wide range of reasonable professional assistance.”  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  Generally, tactical decisions are within the discretion of defense counsel and are not a basis for ineffective-assistance claims.  State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998); see also State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001) (stating that “appellate courts do not review matters of trial strategy for competency” (citation omitted)).

            Whether to challenge joinder or move for severance of offenses is a matter of trial strategy.  State v. Moore, 274 N.W.2d 505, 507 (Minn. 1979).  Therefore, appellant’s ineffective-assistance argument fails as to his trial counsel.  See Scruggs, 484 N.W.2d at 26 (claim of ineffective assistance may not be based on hindsight review of trial tactics).

B.  Appellate Counsel

            When assessing whether there is a reasonable probability that the result would have been different in the absence of alleged errors, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  The issue is whether the error “so prejudiced the case that a different outcome would have resulted but for the errors.”  Vick, 632 N.W.2d at 688.  Prejudice should be determined by examining the totality of the circumstances.  Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

            Appellant claims that his original appellate counsel was ineffective because he mentioned six issues in the statement of the case in appellant’s direct appeal, but only briefed one of those issues.  After reviewing appellant’s counsel’s statement of the case in conjunction with the record, it is apparent that the issues not briefed were not meritorious.  Those issues focused on alleged evidentiary errors, and the district court impliedly addressed those issues by affirming appellant’s convictions on sufficiency-of-the-evidence grounds.  There is little reason to believe that briefing and arguing those additional issues would have resulted in a different outcome.  The original appellate counsel made a tactical decision to focus the appeal on the argument most favorable to appellant.  Because the issues not raised were not meritorious, there is not a reasonable probability that a different outcome would have occurred if all issues had been briefed and argued.  The district court did not abuse its discretion in denying appellant’s petition alleging ineffective assistance of appellate counsel. 

II.

            Appellant argues that the charges against him should have been severed at trial and that he is entitled to a remand to the district court to have two separate trials.  Although appellant’s joinder argument fails because of our conclusion regarding his ineffective-assistance claim, we address it here in the interests of justice.  See Minn. R. Civ. App. P. 103.04. 

            Minn. R. Crim. P. 17.03, subd. 1, permits a defendant to be charged in the same complaint with more than one offense if the offenses occurred as part of the same behavioral incident.  State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).  On motion, the district court shall sever offenses for trial if:

            (a) the offenses or charges are not related;

            (b) before trial, the court determines severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense or charge; or

(c) during trial, with the defendant's consent or upon a finding of manifest necessity, the court determines severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each crime.

 

Minn. R. Crim. P. 17.03, subd. 3(1). 

            In State v. Profit, 591 N.W.2d 451, 458 (Minn. 1999), the supreme court stated that offenses must be “part of a single behavioral incident or course of conduct” to be joined.  (Citation omitted.)  In determining whether offenses constitute a single behavioral incident, we must look at how the offenses are “related in time and geographic proximity and at whether the actor was motivated by a single criminal objective.”  Id. at 460 (quotation omitted).  “[T]he existence of a common plan, alone, is simply insufficient to support joinder.”  Id.  Offenses are not properly joined for trial when they were perpetrated against separate victims, at separate times, with months in between.  Id. at 459.

            There is no doubt that appellant’s offenses should have been severed for trial because the offenses were committed against two different victims, in different cities, and approximately three weeks apart.  See State v. Shevchuk, 282 Minn. 182, 187-88, 163 N.W.2d 772, 776 (1968) (holding that several crimes were not part of a single behavioral incident where, although all crimes occurred during same evening, the period extended two and one-half hours, occurred in or by victim’s vehicle, and vehicle itself was moved from place to place).

            When offenses are improperly joined, the question becomes “one of prejudice” to determine whether remand and severance are required.  Profit, 591 N.W.2d at 460 (quoting State v. Townsend, 546 N.W.2d 292, 296 (Minn. 1996)).  “[R]emand is not required if the district court’s denial of the motion to sever was not prejudicially erroneous.”  Id. (citation omitted).  A useful framework for evaluating prejudicial effect is set out in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), and the admission of Spreigl evidence is “governed by Minn. R. Evid. 404(b) and subject to Minn. R. Evid. 403.”  Profit, 591 N.W.2d at 461 (citation omitted).

            Evidence of other bad acts may not be used as character evidence to show a defendant conformed with this character.  Minn. R. Evid. 404(b).  The evidence is carefully limited to demonstrating “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Id.  It is improper for the state to claim “motive, opportunity, intent, * * * or absence of mistake or accident” as a subterfuge to prove a defendant’s propensity or disposition to commit a particular crime.  See State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997) (stating evidence of other crimes is inadmissible to prove defendant’s propensity or disposition to commit crimes).

            Spreigl evidence may be admitted if

(1) there is clear and convincing evidence that defendant participated in the [Spreigl] offense; (2) the evidence is relevant and material to the state’s case, and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice.

 

State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000) (citation omitted).

            Here, there was clear and convincing evidence that appellant participated in both offenses as is evidenced by the testimony at trial.  Furthermore, this court has already upheld those verdicts on sufficiency-of-the-evidence grounds.  Ledin I, 1996 WL 81548. 

            The evidence of each incident was relevant to the other, as each incident dealt with acts of criminal sexual conduct by appellant; both rapes occurred at night, the victims were acquaintances of appellant, and appellant claimed that both victims consented to the sexual contact.  The close relationship in time of the crimes increases the relevance of each crime to the other similar crime.  State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (close relationship between events increases relevance or probative value of Spreigl evidence).  The crimes were sufficiently similar to each other, were closely related, involved the same modus operandi, and therefore were admissible as Spreigl evidence.  See State v. Filippi, 335 N.W.2d 739, 743 (Minn. 1983) (“In determining relevancy, we have generally required that the other crime be similar in some way--either in time, location, or modus operandi--to the charged offense, although this, of course, is not an absolute necessity.”); Kennedy, 585 N.W.2d at 391 (Spreigl offense “need not be identical in every way to the charged crime, but must instead be sufficiently or substantially similar to the charged offense”).

            Finally, admission of the evidence of the two separate crimes was not unfairly prejudicial.  Appellant testified that he spoke to his second victim about the earlier incident and used this discussion as evidence that he received consent to have sex with his second victim.  Furthermore, appellant’s trial counsel tried to persuade the jury that appellant’s second victim had heard of the first incident and had claimed she had been raped only after she became embarrassed about having sex with appellant. 

            Evidence of either crime could be admitted to show modus operandi with respect to the other.  Filippi, 335 N.W.2d at 743.  Although the evidence presented at trial was certainly detrimental to appellant’s consent argument, it was not more prejudicial than probative.  Therefore, even if the district court erred by joining the charges, under Profit the error was not “prejudicially erroneous.”  Appellant’s joinder argument is without merit. 

III.

            Appellant argues that the district court abused its discretion by sentencing him to an upward durational departure on the third-degree criminal-sexual-conduct charge.  Appellant argues that the district court’s reliance on a “zone of privacy” invasion and victim vulnerability to depart from the guidelines was an abuse of discretion. 

            Where 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.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Because appellant had the double-departure argument available to him when he brought his direct appeal in Ledin I, his argument concerning the district court’s double departure as to the third-degree criminal sexual conduct charge is waived. 

IV.

            Appellant argues that the postconviction court abused its discretion by denying him an evidentiary hearing in support of his petition for postconviction relief.  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).  A postconviction court does not abuse its discretion if the record contains sufficient evidence to sustain the court’s findings.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

            A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2000); see also Hanson v. State, 344 N.W.2d 420, 423 (Minn. App. 1984).  A postconviction court may dismiss a petition for postconviction relief without an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2000); see also Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (holding that an evidentiary hearing is required only when facts are alleged that, if proved, would entitle petitioner to relief); State ex rel. Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967). 

            Appellant claims that he is entitled to relief on three grounds: (1) ineffective assistance of counsel; (2) improper joinder of the charges at trial because of counsel’s ineffective assistance; and (3) abuse of discretion by the sentencing court in departing upward with regard to one of appellant’s convictions.  Because these arguments are without merit, the district court did not abuse its discretion by denying appellant an evidentiary hearing. 

            Affirmed.