This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Arvie Ray Burch, petitioner,





State of Minnesota,



Filed April 22, 2003


Willis, Judge


Hennepin County District Court

File No. 96035800


Michael C. Davis, Special Assistant State Public Defender, 46 East Fourth Street, Suite 1042 Minnesota Building, St. Paul, MN  55101 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges the postconviction court’s denial of his petition for relief.  We affirm.


            In the early-morning hours of April 30, 1996, the residents of an Eden Prairie apartment were awakened by a male intruder in their bedroom.  The intruder ordered the residents, a husband and wife whose children were sleeping in the next room, to give him whatever money they had and not to look at him, or he would shoot them.  In the darkness, the residents told the intruder where to find the money in their wallet and purse.  The intruder then ripped out of the wall a telephone base next to the bed and left the apartment.  The Eden Prairie police were called, and when they arrived, the residents reported that a purse was among the items missing from the apartment.

Personnel from the Hennepin County crime lab recovered a fingerprint from the phone base that had been ripped from the wall.  An Eden Prairie police sergeant saw the damage to the phone and recognized it as the modus opperandi of appellant Arvie Ray Burch.  The fingerprint from the phone base matched a record of Burch’s fingerprints.  Eden Prairie police detectives then learned that Burch had a north Minneapolis address (about 10 miles from the scene of the crime) and that a silver Pontiac Grand Am was registered to him.

            In the early afternoon of April 30, some 13 hours after the intruder left the victims’ apartment, two Eden Prairie detectives set out for Burch’s north Minneapolis house.  When they arrived, they saw a silver Grand Am parked in front of Burch’s house.  One of the detectives placed a telephone call to the house, and the person who answered the call identified himself as “Arvie.”  The detectives then saw Burch, whom they recognized from a booking photo, leave the house with a woman, get into the Grand Am, and drive away; the detectives followed.  One of the detectives later testified that Burch saw that he was being followed and started to drive “extremely fast, going through some stop signs, and making turns in such a way that it made us believe that he was trying to avoid us.”  Burch eventually stopped the car near a house owned by his sister and got out, after which detectives stopped him and placed him under arrest.

            After they had taken Burch into custody, the detectives proceeded to search Burch’s car.  Burch refused to give the car keys to the detectives and attempted to throw the keys to his sister, who was returning to her house on foot when she encountered Burch’s arrest; a police officer caught the keys in mid-air.  In the trunk of the car, the detectives found a purse that one of the burglary victims later identified as hers.

            The state charged Burch with one count of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(c) (Supp. 1995), and one count of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(a) (Supp. 1995).  Burch moved the district court to suppress the evidence found in the trunk of his car.  Following a Rasmussen hearing, the district court denied Burch’s motion, finding that the detectives had probable cause to believe that a crime had been committed and to believe that the car contained evidence of that crime.  Burch then waived his right to a jury trial and consented to a bench trial on stipulated facts; in return, the state agreed to drop the count of violating Minn. Stat. § 609.582, subd. 1(a).  The district court found Burch guilty of violating Minn. Stat. § 609.582, subd. 1(c).

            In sentencing Burch, the district court found (1) that Burch had more than four prior felony convictions and (2) that the present offense was a felony committed as part of a pattern of criminal conduct.  The district court concluded that the career-offender statute, Minn. Stat. § 609.152, subd. 3 (1996), authorized a sentence of 240 months, an upward durational departure from the sentencing guidelines, which provide a presumptive sentence of 108 months.  The district court thus sentenced Burch to 240 months in prison.

            Burch petitioned for postconviction relief, arguing that (1) the detectives lacked probable cause to search the car, (2) the sentence was an impermissible upward departure from the sentencing guidelines and unduly exaggerated the criminality of his conduct, (3) he received ineffective assistance of counsel at trial, and (4) the evidence was insufficient to support the conviction.  The postconviction court denied the petition, and Burch appeals.


“A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000) (citation omitted).  A denial of a petition for postconviction relief is reviewed on an abuse-of-discretion standard, and the inquiry is limited to determining whether there is sufficient evidence to sustain the court’s findings of fact.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).  But when the facts are not in dispute, we review de novo the postconviction court’s decision on a pure question of law.  See Garza v. State, 619 N.W.2d 573, 576 (Minn. App. 2000).


Burch argues that the district court erred by concluding that the police had probable cause to believe that evidence of the burglary could be found in his car.  Both the federal and state constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are per se unreasonable under the Fourth Amendment unless the search falls within one of several specific exceptions.  California v. Acevedo, 500 U.S. 565, 593, 111 S. Ct. 1982, 1998 (1991); State v. Search, 472 N.W.2d 850, 852 (Minn. 1991).  Under the automobile exception, police may search a vehicle without a warrant “if they have probable cause to believe the search will result in a discovery of evidence or contraband.”  Search, 472 N.W.2d at 852 (citing United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157 (1982)).  The automobile exception “has been held to apply to [the search of] a locked trunk.”  State v. Nace, 404 N.W.2d 357, 361 (Minn. App. 1987) (citing Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523 (1973)), review denied (Minn. June 25, 1987).

Probable cause requires more than mere suspicion of criminal activity.  State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000).  Probable cause exists where the totality of the circumstances would “warrant a reasonable man of reasonable caution in the belief that the automobile contains articles the officer is entitled to seize.”  State v. Gallagher, 275 N.W.2d 803, 806 (Minn. 1979) (citing Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925)).  Probable cause may be based on reasonable inferences from the circumstances.  See State v. Vereb, 643 N.W.2d 342, 348-49 (Minn. App. 2002).

            Here, the district court found that the police had probable cause to believe that Burch’s car contained evidence of the burglary because:  (1) the latent thumbprint on the telephone base in the victim’s apartment matched Burch’s thumbprint; (2) the crime was committed more than 10 miles from the place at which Burch was apprehended and was committed in the early-morning hours, permitting a reasonable inference that Burch used a motor vehicle to arrive at and leave the scene of the crime; (3) 13 hours after the crime was committed, the police observed Burch driving a car registered to him; (4) when the police began to follow Burch, he tried to evade them, permitting a reasonable inference that Burch did not want to be apprehended in that car; (5) at the time of his arrest, Burch attempted to throw the car keys to his sister, permitting a reasonable inference that Burch did not want police to search the car; and (6) the police knew that a purse had been taken from the victims’ apartment.  These findings of fact are supported by evidence admitted at the Rasmussen hearing, and on these findings we conclude that the district court did not err by ruling that the police had probable cause to search Burch’s car.


            Burch contends that the postconviction court erred by concluding that the 240-month sentence did not unduly exaggerate the criminality of his conduct.  On appeal, Burch does not claim that the district court erred by sentencing him under the career-offender statute; rather, he maintains that the 240-month sentence “raises an issue of fairness” and that “determining the fairness of a sentence involves comparison of the appellant’s sentence with those of other offenders.”  But Burch cites neither legal authority nor evidence in the record showing that the 240-month sentence imposed here was comparatively unfair.  Error is never presumed on appeal.  White v. Minnesota Dep’t of Natural Res., 567 N.W.2d 724, 734 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  Thus, we cannot conclude that the postconviction court erred by refusing to grant Burch relief on this issue.


            Burch argues that the postconviction court erred by denying him relief on his claim of ineffective assistance of counsel.  To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his attorney’s performance fell below an objective standard of reasonableness and that a reasonable probability exists that the outcome would have been different but for the attorney’s errors.  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65 (1984); Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  There is a strong presumption that the attorney’s performance was reasonable.  Voorhees, 627 N.W.2d at 649.

A postconviction petitioner bears a burden of proving by a preponderance of the evidence facts that warrant a reopening of his case.  Hummel, 617 N.W.2d at 564.  “In order to meet that burden, a petitioner’s allegations must be supported with more than mere argumentative assertions that lack factual support.”  Id. (citation omitted).

            In his petition for postconviction relief, Burch alleged that (1) his trial counsel either failed to apprise him of the chances for a successful appellate challenge to the ruling on the motion to suppress or “misled him into believing that there was a viable suppression issue to raise on appeal” and (2) given the likelihood that the state would demand the maximum sentence allowed by law, there was no strategic reason not to try the case “in the hope that trial error would occur sufficient to warrant a reversal on appeal.”

            The district court found that Burch “failed to allege facts in support of his ineffective assistance of counsel claim that go beyond bald assertions and conclusory allegations.”  On appeal, Burch cites no evidence in the record that supports his allegations concerning ineffective assistance of counsel.  More importantly, the record shows that at the sentencing hearing Burch unequivocally stated that he (1) waived his right to a jury trial, (2) understood that he could be sentenced as a career offender, and (3) understood that he could face a sentence of 240 months.

Thus, the postconviction court did not err by denying Burch’s claim of ineffective assistance of counsel.


Burch’s pro se supplemental brief also raises issues of (1) prosecutorial misconduct, (2) whether the district court considered prejudicial evidence outside of the stipulated facts, and (3) the sufficiency of the evidence.  But Burch did not raise the first two issues in his petition for postconviction relief.  Thus, these issues are not properly before us.  Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997); Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  As for the claim regarding the sufficiency of the evidence, we have carefully reviewed the record and conclude that this claim does not provide a basis for relief.