This opinion will be unpublished and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

C3-02-1748

 

Willie Girard Scott, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed June 10, 2003

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 95103407

 

Stephen W. Cooper, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN  55401; and

 

Sara Goldman, Freedom Forum of New York City, 45 West 21st Street, Fifth Floor, New York, New York  10010 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge 

Appellant Willie Girard Scott was convicted of attempted first-degree murder and second-degree assault in 1996, and this court affirmed his conviction.  State v. Scott, C8-96-1962, 1997 WL 360598 (Minn. App. Jul 1, 1997), review denied (Minn. Aug. 26, 1997).  In this appeal from the denial of his postconviction petition seeking vacation of his conviction and sentence, appellant argues that (1) because the complaint was defective, the district court lacked jurisdiction; (2) the district court erred in denying him an evidentiary hearing on the basis of newly discovered recantation evidence; (3) the district court abused its discretion by imposing an upward durational sentencing departure; and (4) he was denied his right to effective assistance of trial and appellate counsel.  We affirm.

FACTS

 

            In 1996, appellant was convicted of attempted first-degree murder and second-degree assault for shooting Dion Lewis and Deborah Parker outside a Minneapolis hair salon.  Both victims testified at trial.  Lewis identified appellant as the shooter. Appellant was sentenced to 240 months for the attempted-murder conviction, an upward departure from the presumptive guidelines sentence of 190 months, and a consecutive 36 months for the assault conviction. 

            In October 2001, Lewis gave a statement to a private investigator.  It states, in part:

Investigator:

Who shot you?

Lewis:

Um…two individuals that had on masks.

Investigator:

Did [appellant] shoot you?

Lewis:

Um…I am not sure.

Investigator:

You are not sure?

Lewis:

No.

Investigator:

But it is a possibility that [appellant] shot you?

Lewis:

It is a possibility but I am not sure.

* * * *

 

Investigator:

And at * * * trial what did you testify to, what did you say?

Lewis

I said that [appellant] shot me.

Investigator:

Okay now is that statement true?

Lewis:

No, I don’t know, I am not sure who shot me.

Investigator:

Why do you say now that you don’t know who shot you and at that time you said that [appellant] shot you?

Lewis:

Because that is who I thought it was but they had on masks so I am not sure who shot me.

Investigator:

They had on masks?

Lewis:

Yes.[1]

* * * *

 

Investigator:

Did you tell the police officer about this?

Lewis:

Yes.

Investigator:

And what did they tell you?

Lewis:

They were just showing me pictures because they were about the problems we had amongst each other, kind of like asking me questions on the problems I have been in involved in.

* * * *

 

Investigator:

Did you feel pressured by anybody to get on the stand and testify?

Lewis:

Um…the police kind of was pressuring me and kind of steering me the wrong way and the police were kind of pressuring me to get on the stand against this guy.

* * * *

 

Investigator:

So when you testified [at trial] that you turned around and you saw [appellant] standing right in front of my face you couldn’t tell who it was?

Lewis:

I thought it was [appellant] because, I thought it was [appellant] from resemblance, but it could not have been him.

* * * *

 

Investigator:

So you thought it was [appellant] at the time?

Lewis:

Exactly.

Investigator:

So when [police] interviewed you on February 26th of 1996 and then you testified on June 3rd of 1996 you still said that you thought it was [appellant]?

Lewis:

Exactly.

Investigator:

But when you gave the interview to [an investigator] on January 28th of 1999 and when you are telling me this now you are saying I don’t think it was [appellant] or I am not sure it was [appellant]?

Lewis:

Exactly.

Investigator:

And so if you were to testify today and they asked you who shot you, what would you say?

Lewis?

I am really not sure.

           

In May 2002, appellant filed a motion for postconviction relief seeking to vacate his conviction and sentence, arguing that the police coerced Lewis into identifying appellant as the shooter.  In his petition, appellant (1) contested jurisdiction based on an alleged infirmity in the complaint; (2) requested an evidentiary hearing to explore Lewis’s recantation of his identification testimony; (3) challenged the sentencing court’s upward departure from the guidelines sentence; and (4) argued that his trial and appellate counsel were ineffective.  The district court denied the petition.   

D E C I S I O N

In postconviciton proceedings, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. 590.04, subd. 3 (2002).  Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id. (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).

1.         Appellant argues that the district court lacked jurisdiction to convict and sentence him due to defects in the complaint.  He cites only the first page of a three-page complaint and argues that the complaint charged him with first-degree murder, not attempted first-degree murder.  The postconviction court found that appellant’s claim is inaccurate and concluded that appellant waived any challenge to the complaint. 

[A] defendant is deemed to have forfeited an issue as to the adequacy of a complaint unless the defendant either properly raised the issue in the trial court or can show good cause for not having done so. 

 

State v. Lehman, 295 N.W.2d 264, 265 (Minn. 1980) (citation omitted).  Appellant concedes that he did not raise the issue of the adequacy of the complaint in the trial court, but he argues that he did not do so because he had ineffective assistance of counsel.  The postconviction court concluded that there was not ineffective assistance because there was no jurisdictional issue to raise based on the complaint.  We agree.

As noted, the complaint has three pages.  The first page does not cite the attempt statute as modifying the first-degree murder charge, but the second page, which sets forth the counts charged, states:

COUNT I: ATTEMPTED MURDER IN THE FIRST DEGREE (FELONY) MINN. STAT. 1995, § 609.185(1); § 609.11; § 609.17

PENALTY: 20 YEARS

 

That on or about November 21, 1995, in Hennepin County, Minnesota, WILLIE GARARD SCOTT, while using a firearm within the meaning of Minn. Stat. § 609.11, attempted to cause the death of Dion Martiece Lewis, a human being, with premeditation and with intent to effect the death of the person, or another.

 

The purpose of a complaint is to inform the defendant of the nature of the offense he is charged with so that he may intelligently defend against it.  State v. Owens, 268 Minn. 321, 324, 129 N.W.2d 284, 286 (1964).  Because the complaint clearly informed appellant that he was charged with attempted first-degree murder, there was no jurisdictional issue to raise based on the complaint. 

2.         Appellant argues that the postconviction court erred in denying him an evidentiary hearing.  A postconviction court’s decision to deny an evidentiary hearing will not be disturbed absent an abuse of discretion.  Flournoy v. State, 583 N.W.2d 564, 568 (Minn. 1998). 

            An evidentiary hearing is required “whenever material facts are in dispute that * * * must be resolved in order to determine the issues raised on the merits.”  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (citation omitted).  Any doubts whether an evidentiary hearing is necessary should be resolved in favor of granting a hearing, especially where the allegations attack evidence that was crucial in a wholly circumstantial case.  Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002).  

A postconviction court is not required to conduct an evidentiary hearing when the “petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2002).  Allegations in a postconviction petition must be “more than argumentative assertions without factual support.”  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).  To obtain an evidentiary hearing, appellant must allege facts that, if proven by a fair preponderance of the evidence, would entitle him to the requested relief.  Roby v. State, 531 N.W.2d 482, 483 (Minn. 1995).

[A]nalysis of newly-discovered evidence in cases involving witness recantation should not be an analysis of the impact of the recantation, but should be an analysis of the effect that the absence of the false testimony would have had on the result in the original trial.  The test for newly-discovered falsified testimony provides that in order to grant a new trial: (1) the court must be ‘reasonably well-satisfied’ that the [trial] testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.

 

Dukes v. State, 621 N.W.2d 246, 258 (Minn. 2001) (citation omitted). 

Appellant alleges that a critical prosecution witness, Lewis, now denies that appellant was the shooter.  But, as the postconviction court found, appellant’s allegation lacks factual support.  See Beltowski, 289 Minn. at 217, 183 N.W.2d at 564 (stating allegations must have factual support).  In his October 2001 statement to the private investigator, given five years after the offense, Lewis did not say that his trial testimony was false.  To the contrary, Lewis said that when he testified at trial, he thought it was appellant who shot him.  At most, Lewis’s statement indicates that he is no longer as certain as he was at the time of the shooting and at trial that appellant was the shooter. 

Appellant alleges that, based upon “racial and discriminating animus,” the police and prosecutor coerced Lewis to lie.  But, as the district court concluded, nothing in Lewis’s statement indicates that the police and prosecutor were motivated by a discriminatory, racial animus.  And although Lewis stated that the police were pressuring him to testify, and kind of steering him the wrong way, he did not state that the pressure caused him to lie; he stated that he believed his testimony was true at the time of trial.  Because appellant did not allege facts that, if proven, would entitle him to a new trial, the postconviction court did not abuse its discretion when it denied his request for an evidentiary hearing.  

3.         Appellant alleges error in the 50-months upward departure in sentencing.  Citing State v. Valentine, 630 N.W.2d 429 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001), appellant argues that the sentencing court erred by basing the departure solely on the extent of Lewis’s injuries.  In Valentine, this court concluded that the sentencing court “abused its discretion by departing upward from the presumptive sentence based solely on the extent of the victim’s injuries, rather than examining appellant’s conduct.”  Id., at 437.  But in the present case, the sentencing court did not base the upward departure solely on the extent of Lewis’s injuries.  In addition to Lewis’s substantial, permanent injury, the sentencing court also cited as bases for the departure appellant’s particular cruelty in shooting Lewis repeatedly as he lay on the ground, the fact that there were multiple victims, and the fact that there were innocent bystanders in the immediate vicinity.

            Particular cruelty toward a victim is an aggravating factor.  Sentencing Guidelines II.D.2.b(2).  Indeed, this court stated in Valentine

If appellant had walked over to [the victim], fired a few more shots into his fallen body, kicked him, and continued to inflict more harm after [the victim] was down and helpless, we would have a different case.  Appellant’s conduct then would not have been typical, and then would have been significantly more egregious than the conduct (attempted first-degree murder) defined by the statute.

 

630 N.W.2d at 437 (emphasis in original).  Greater than normal danger to bystanders is also a basis for an upward sentencing departure.  See State v. Morris, 609 N.W.2d 242, 246 (Minn. App. 2000) (stating “multiple victims and a greater than normal danger to the safety of people other than the victims have both been recognized as aggravating factors that will support a durational departure”), review denied (Minn. May 23, 2000).

            Appellant did not prove facts that would entitle him to relief from his sentence, and the postconviction court did not abuse its discretion in denying relief.

4.         Appellant alleges that he was denied the effective assistance of trial and appellate counsel because his counsel failed to raise the issues that were raised in his petition for postconviction relief.  In his petition, appellant alleged:

            None of the constitutional issues regarding actual innocence,[2] the sentence enhancements, or complaint errors were even noticed by, let alone properly argued, objected to or preserved at the trial level.  None of these paramount issues were pled by appellate counsel on appeal.

 

Postconviction courts must apply a two-part test

in determining whether to grant a defendant a new trial on the ground of ineffective assistance of counsel.  The defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  See Ives v. State, 655 N.W.2d 633, 637 (Minn. 2003) (applying same standard to claims concerning appellate counsel).  An attorney’s actions are considered to be within the objective standard of reasonableness when the attorney provides the client with “the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation and citation omitted).

            The postconviction court concluded that appellant did not demonstrate that his counsel’s performance fell below an objective standard of reasonableness or that there was a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different.  We agree.  Because there is no merit in any of the claims appellant asserted in his postconviction petition, counsel’s failure to assert the claims at trial or on appeal was not ineffective assistance.

            Affirmed.



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

[1] At trial, Parker testified that the shooter wore a mask that she described as a covering from his neck up to his nose. She testified that she could see his face from the nose up.  Lewis testified that the shooter did not have anything obstructing his face.

[2] We understand the issue regarding actual innocence to be appellant’s claim that he would have been acquitted if the jury had known the truth about the police coercion of Lewis.