This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joel Bergren, petitioner,
State of Minnesota,
Filed February 25, 2003
Affirmed in part, reversed in part, and remanded
St. Louis County District Court
File No. K398601124
Joel Bergren, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)
Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
The district court denied Joel Bergren’s postconviction petition without an evidentiary hearing. Because the petition, files, and record conclusively show that Bergren is not entitled to relief on his claims of sentencing miscalculation, procedural error, and ineffective assistance of counsel, we affirm on those issues. But because Bergren has presented evidence that raises a material question of whether the state violated his due process rights by failing to disclose a quid pro quo plea agreement with his accomplice, we reverse and remand for an evidentiary hearing on the alleged discovery violation.
F A C T S
A St. Louis county jury found Joel Bergren guilty in March 2000 of illegal possession of a firearm, first-degree burglary, attempted aggravated robbery, and second-degree assault. All four charges arose from a late-night burglary in which two intruders shot and stabbed a person after breaking into his house.
In support of the assault charge, the state presented the testimony of the victim and Bergren’s accomplice. The victim testified that two intruders came into his bedroom and one of them shot him. The accomplice, who had already pleaded guilty to participating in the burglary and had admitted to stabbing the victim, identified Bergren as the shooter. The accomplice also testified that he had received a downward departure for his role in the crime but denied that his plea agreement required that he testify at Bergren’s trial. The district court sentenced Bergren to 162 months’ imprisonment, and this court affirmed the conviction and sentence. State v. Bergren, No. C9-00-1328 (Minn. App. April 17, 2001).
During a September 2001 hearing on a motion to revoke the accomplice’s probation, a St. Louis county attorney informed the court that the accomplice had received a “big break” for his involvement in the burglary because he had agreed to testify at Bergren’s trial. The accomplice’s attorney concurred and informed the court that before the accomplice pleaded guilty the parties had “negotiated around” the state’s desire to obtain his testimony at Bergren’s trial.
In his May 2002 postconviction petition, Bergren requested a new trial for the state’s failure to disclose a quid pro quo plea agreement with the accomplice, for procedural errors, and for ineffective assistance of counsel. He also requested that his sentence be vacated because of alleged error in computing his criminal-history score. The district court denied the petition without an evidentiary hearing, and Bergren appeals.
D E C I S I O N
A person convicted of a crime who claims that the conviction was obtained in violation of his constitutional rights may petition the district court “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn. Stat. § 590.01, subd. 1 (2000). If the petition, files, and record conclusively show that the petitioner is entitled to no relief, a postconviction court may dismiss the petition without an evidentiary hearing. Minn. Stat. § 590.04, subd. 1 (2000). Conversely, a district court must grant an evidentiary hearing if the petitioner alleges facts that, if proved, would entitle him to the requested relief. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). We review the decisions of a postconviction court for abuse of discretion. Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000).
In Brady v. Maryland, the U.S. Supreme Court held that “suppression by the prosecution of evidence favorable to an accused * * * violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963). To demonstrate a Brady violation, a defendant must therefore show (1) that the state suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that suppression prejudiced the outcome of the trial. Strickler v. Greene, 527U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999).
Bergren has established the first two elements of a Brady violation. The suppression requirement is satisfied because the state would have been obligated to disclose the plea agreement to Bergren, assuming one was made. See State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996) (holding that a prosecutor has a duty to discover and disclose any plea bargain made with a witness by another prosecutor in the same office). Evidence that the accomplice received personal benefit in exchange for testifying at Bergren’s trial would have been favorable to Bergren in that it would have undermined the credibility of an important prosecution witness.
To satisfy the third element, a defendant must show the admissibility of the suppressed evidence and a “reasonable probability” that its admission would have affected the outcome of the trial. Gorman v. State, 619 N.W.2d 802, 806 (Minn. App. 2000), review denied (Minn. Feb. 21, 2001). A different result is reasonably probable when the suppression of evidence “undermines confidence in the outcome of the trial.” Id. at 807 (quotation omitted).
Evidence of a quid pro quo plea agreement between the accomplice and the state is admissible as impeachment evidence showing bias. See Minn. R. Evid. 401, 402; see also United States v. Abel, 469 U.S. 45, 105 S. Ct. 465 (1984) (holding that the Federal Rules of Evidence clearly contemplate use of evidence of bias to impeach credibility). Evidence of a quid pro quo agreement would have also provided additional support for Bergren’s defense: that it was the accomplice who shot the victim.
Although the state presented extensive evidence of Bergren’s involvement in the burglary, Bergren’s conviction for the shooting rested entirely on the testimony of the victim and the accomplice. The accomplice’s identification of Bergren was absolute; the victim’s was equivocal. The victim stated on cross-examination that he had initially told police his attackers were two “unidentified males” and that it was not until six months after the burglary that he first mentioned Bergren’s name to police. Trial testimony also indicated that the victim’s home was dark during the assault and that Bergren and the accomplice wore masks. The victim testified that he identified Bergren through his build and voice, but the only indication that Bergren spoke during the burglary came in testimony that he yelled “police” while breaking in the house door. We conclude that the accomplice’s testimony and credibility were key to the prosecution’s case. Thus, it is reasonably probable that admission of a quid pro quo plea agreement would have affected the outcome of the trial.
Bergen has alleged facts that would entitle him to relief if proved; he is, therefore, entitled to an evidentiary hearing to determine whether the state entered into a quid pro quo agreement with the accomplice and, if so, whether Bergren was prejudiced and denied a fair trial by the state’s failure to disclose the agreement.
Bergren raises five additional bases for relief. We conclude that three are procedurally barred and that the remaining two lack merit.
Once a petitioner directly appeals a conviction, all matters raised in that appeal or known at the time of appeal will not be considered by a postconviction court in a subsequent petition for relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Minn. Stat. § 590.04, subd. 3 (2000) (stating district court may summarily deny a petition when it raises issues previously decided by an appellate court in the same case). This rule also applies when the petitioner knew or should have known about the issue at the time of the direct appeal. Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).
Bergren contends that the sentencing court erred in counting half-point convictions when calculating his criminal-history score. The postconviction court considered the claim and concluded that it had no merit. Although we do not disagree with the postconviction court’s reasoning, Bergren’s claim is procedurally barred because he failed to raise it on direct appeal and provided no evidence to the postconviction court that his claim was unknown at the time of his direct appeal.
Similarly, the Knaffla rule bars Bergren’s claim that the state’s failure to disclose the accomplice’s juvenile record deprived him of the opportunity for effective cross-examination. The district court correctly rejected this basis for postconviction relief because Bergren failed to raise it on direct appeal or to demonstrate that the information underlying the claim was unknown at the time. See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.
Bergren’s last claims address trial procedure and the adequacy of his representation. Bergren argues that he was denied a fair trial because the victim is related to the chief judge of the Sixth Judicial District. But Bergren does not allege that the judge who presided over his case was aware of the relationship. He has therefore provided no basis for questioning the judge’s impartiality. See State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993) (explaining that the rule governing removal of judge for cause in criminal proceedings requires that litigant show that judge’s impartiality might reasonably be questioned).
Bergren claims he was denied the effective assistance of counsel both at trial and on appeal. The alleged shortcomings of trial counsel include stipulating to Bergren’s ineligibility to possess a gun, failing to challenge the computation of Bergren’s criminal-history score, presenting no expert forensics testimony, not objecting to the amendment of the complaint, failing to challenge the admission of bad-acts evidence, conducting no independent investigation, and presenting no mitigating evidence at sentencing. The district court correctly concluded that each of these claims was either considered on direct appeal or known, but not raised, by Bergren at that time and was therefore procedurally barred under Knaffla.
Finally, Bergren contends that appellate counsel provided ineffective assistance because he failed to challenge the effectiveness of trial counsel in a petition for postconviction relief before filing a direct appeal. For two reasons this claim fails. First, Bergren did not raise this argument before the district court and, therefore, it lacks a basis for consideration on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Second, Bergren has not shown that the alleged error would have changed the outcome of his appeal. See Ives v. State, 655 N.W.2d 633 (Minn. Jan. 23, 2003) (affirming summary denial of postconviction claim for ineffective assistance of appellate counsel for failure to show that alleged error would have changed outcome of appeal).
Affirmed in part, reversed in part, and remanded.