This opinion will be unpublished and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 T. Wilson, petitioner,
State of Minnesota,
Washington County District Court
File No. KX923957
John Stuart, Minnesota Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Doug Johnson, Washington County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Washington County Government Center, P.O. Box 6, Stillwater, MN 55082 (for respondent)
Considered and decided by Willis, Presiding Judge, Toussaint, Judge,* and Minge, Judge.
Appellant seeks relief from his 1992 conviction of second-degree intentional murder on the ground that his guilty plea was involuntary because his attorney failed to arrange for a psychological evaluation, which might have supported a temporary-mental-illness defense. The district court denied appellant’s postconviction petition without an evidentiary hearing. We affirm.
On June 8, 1992, appellant Michael Wilson went to the home of Brett Monson. When appellant began to take a television set, which appellant claimed that he owned, the two began to fight, and appellant killed Monson. Appellant stated, and the evidence revealed, that Monson stabbed appellant in the leg. The evidence also revealed that appellant stabbed Monson approximately 56 times in the chest and neck. Appellant took the television and some stereo equipment, changed clothes, and later sold the items.
On June 18, police arrested appellant and found the knife used to kill Monson under appellant’s mattress. Appellant told investigators that he did not remember killing Monson but admitted that he must have done so. He also stated that he had smoked crack cocaine before going to Monson’s house and that he had blacked out in the past. Moreover, he stated that he was not under psychiatric care.
On July 16, a grand jury indicted appellant for first-degree murder, second-degree murder, and aggravated robbery. On September 4, appellant pleaded guilty to second-degree murder, and the court sentenced appellant to 360 months, a 54-month upward durational departure based on particular cruelty and a zone-of-privacy violation. At the sentencing hearing, appellant repeatedly acknowledged that he understood his plea and had no questions for his attorney, the prosecutor, or the court. Appellant further acknowledged that he stabbed Monson and that a jury would most likely convict him of second-degree murder or possibly first-degree murder.
On December 17, 2001, appellant petitioned for postconviction relief, which the district court denied. This appeal followed.
A petitioner seeking postconviction relief must prove facts entitling him to relief by a preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (2000). A district court may deny postconviction relief without an evidentiary hearing where the record conclusively shows that the petitioner is not entitled to relief. State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001). The district court’s denial of postconviction relief will not be reversed absent an abuse of discretion, and a reviewing court determines only whether the evidence supports the district court’s findings. Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). Similarly, a district court’s determination of whether to permit withdrawal of a guilty plea is reviewed for an abuse of discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).
Appellant argues that his guilty plea was involuntary because his attorney did not investigate whether appellant was suffering from a mental disease or defect during the murder. Appellant contends that his attorney’s failure to order a psychological evaluation constitutes ineffective assistance of counsel.
A guilty plea is valid if the defendant knowingly, intelligently, and voluntarily entered the plea. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). To prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that (1) his trial representation fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for the counsel’s errors, the outcome would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). A disagreement over trial tactics is insufficient to establish ineffective assistance of counsel. State v. Bates, 507 N.W.2d 847, 851 (Minn. App. 1993), review denied (Minn. Dec. 27, 1993). Moreover, failure to investigate further is not ineffective assistance of counsel absent a showing that significant exculpatory evidence could have been found. Crisler v. State, 520 N.W.2d 22, 26 (Minn. App. 1994), review denied (Minn. Sep. 28, 1994). There is a strong presumption that a counsel’s performance falls within a wide range of professional assistance. Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995).
The district court dismissed appellant’s postconviction petition because his trial attorney had successfully obtained the dismissal of first-degree-murder and aggravated-robbery charges. The court also found that appellant’s attorney fully considered all available defenses and concluded that neither self-defense nor temporary insanity would be successful.
The record shows that appellant’s attorney fully informed appellant of the plea agreement and that, because appellant repeatedly acknowledged that he understood the plea and had no questions about the plea, he voluntarily pleaded guilty. Moreover, appellant’s attorney stated that he fully considered all defenses and that he would have submitted appellant to a psychological evaluation if appellant had refused to plead guilty. The record suggests that the state could have convicted appellant of first-degree murder based on the felony-murder rule. In particular, appellant paid someone to drive him to Monson’s house, tried to steal Monson’s television, killed Monson by stabbing him 56 times, and then took the television and stereo equipment and sold them for crack cocaine. Under these circumstances, it appears appellant’s attorney negotiated a good plea bargain.
Also, no evidence suggests that a psychological evaluation would have helped appellant’s defense. Although appellant claimed that he had blacked out before, appellant was not under psychiatric care when he killed Monson, and no evidence exists that appellant was taking any medication for mental illness. Moreover, we find it suspicious that appellant claims he blacked out only when he stabbed Monson, yet he remembered what happened before and after. In any event, blacking-out does not necessarily suggest mental illness or temporary insanity. In addition, a psychological evaluation would have only helped in finding some scintilla of evidence to defend against a first-degree-murder charge; such an evaluation was unnecessary in determining whether to plead to a second-degree-murder charge or to prepare for a sentencing hearing. Thus, we find no merit to appellant’s ineffective-assistance-of-counsel claim.
The district court must allow a defendant to withdraw a guilty plea “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. With respect to this postsentencing stage, we note the heightened standard for withdrawal of a plea is “manifest injustice,” as compared to a less demanding “fair and just” standard for withdrawal of a plea prior to sentencing. Compare rule 15.05, subdivision 1, rule 15.05, subdivision 2. We also note that, although “[t]imeliness is not required by the postconviction statute, * * * it is a factor to be considered when determining whether relief should be granted.” Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998) (citation omitted), review denied (Minn. July 16, 1998).
Appellant argues that, contrary to the court’s findings, appellant petitioned for relief under Minn. Stat. § 590.04 (2000) and not under Minn. R. Crim. P. 15.05, subd. 1. Appellant also argues that, because no appellate court has reviewed his case, petitioning for postconviction relief nine years after conviction is not too late. See Sutherlin v. State, 574 N.W.2d 428, 434 (Minn. 1998) (agreeing to review a postconviction petition ten years after conviction upon a claim of newly discovered evidence); see also Rairdon v. State, 557 N.W.2d 318, 322 (Minn. 1996) (stating that convicted defendants are generally entitled to at least one right of review). But see Black v. State, 560 N.W.2d 83, 85 (Minn. 1997) (affirming denial of postconviction relief when petitioner inexplicably waited 18 years, and his conviction had already been reviewed by other courts). Appellant contends that respondent would suffer no prejudice by the delay and that, because his counsel failed to consider mental disease as a defense, a manifest injustice has occurred.
The court did not err by analyzing appellant’s petition under Minn. R. Crim. P. 15.05, subd. 1. See Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994) (holding that, when reviewing postconviction petitions seeking relief through plea withdrawal, courts should apply the standard for plea withdrawal of Minn. R. Crim. P. 15.05, subd. 1).
Because we conclude that appellant’s ineffective-assistance-of-counsel claim fails, no manifest injustice has occurred entitling appellant to withdraw his guilty plea. At sentencing, the court, the prosecutor, and appellant’s counsel extensively questioned appellant, and appellant indicated that he fully understood the plea and had no questions. Thus, we conclude that appellant knowingly, intelligently, and voluntarily entered the plea. Moreover, appellant has waited, without excuse, over nine years to petition for postconviction relief. Appellant does not argue that he has discovered any new evidence, nor does he dispute that he killed Monson. While appellant’s conviction has never been reviewed, timeliness is a factor, and we agree with the district court that filing this petition nine years after conviction is too late. Such a delay would prejudice the state’s presentation of witnesses, who would have to testify to events from nine years ago. The district court did not abuse its discretion by denying appellant’s postconviction petition without an evidentiary hearing.
*The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal. Due to Judge Foley’s untimely death before the filing of the opinion, Chief Judge Toussaint has been assigned as a substitute, and now joins the panel in issuing this decision.
 Under Minn. Stat. § 609.185, subd. 3 (2000), first-degree murder includes intentionally killing a person while committing or attempting to commit aggravated robbery.