This opinion will be unpublished and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

A03-274

 

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher Lorenzo Robinson,

Appellant.

 

 

Filed October 7, 2003

Affirmed

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. K1992008

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN (for respondent)

 

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

 

 

Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Christopher Lorenzo Robinson challenges the district court order denying his petition for postconviction relief and an evidentiary hearing, arguing (1) he received ineffective assistance of counsel; (2) he was denied due process; and (3) his sentence amounted to cruel and unusual punishment. We affirm.

FACTS

In June 1999, Robinson was arrested after he fired three or four shots from an assault rifle at three individuals sitting in an automobile. Robinson, who was 17 at the time, was charged in juvenile court with three counts of second-degree assault and one count of drive-by shooting. He subsequently waived his adult-certification hearing and consented to stand trial as an adult.

The state charged Robinson with three counts of second-degree attempted murder, in violation of Minn. Stat.  609.05; .11, subd. 4; .17; .19, subd. 1(1) (1998); three counts of assault, in violation of Minn. Stat.  609.05; .11; .222, subd. 1 (1998); one count of drive-by shooting, in violation of Minn. Stat.  609.05; .11; .66, subd. 1e(a); and one count of possession of a firearm by an ineligible person, in violation of Minn. Stat.  609.11, subd. 5(b), 624.713, subd. 1(b), 2 (1998).

Robinson then entered into a plea agreement with the state whereby he pleaded guilty to one count of second-degree assault and one count of possession of a firearm by an ineligible person and the state recommended a 90-month executed sentence. The district court sentenced Robinson to concurrent 36- and 90-month executed sentences for the assault and firearm-possession charges, respectively.

Robinson filed a petition for postconviction relief and an evidentiary hearing, arguing (1) he received ineffective assistance of counsel; (2) he was denied due process; and (3) his sentence amounted to cruel and unusual punishment. The district court denied the petition, and this appeal followed.

D E C I S I O N

This court reviews the denial of a petition for postconviction relief "to determine only whether sufficient evidence exists to support the postconviction court's findings and will not disturb the court's decision absent an abuse of discretion." King v. State, 649 N.W.2d 149, 156 (Minn. 2002) (citation omitted).

The district court "may dismiss a petition for postconviction relief without conducting an evidentiary hearing if the petition, files and record 'conclusively show that the petitioner is entitled to no relief.'" Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (quoting Minn. Stat. 590.04, subd. 1 (1996). But an evidentiary hearing is necessary "whenever material facts are in dispute that . . . must be resolved in order to determine the issues raised on the merits." State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001) (alteration in original) (quotation omitted). "Thus, appellant must allege facts that would, if proven by a fair preponderance of the evidence, entitle him to relief." Id. Any doubts as to whether to conduct an evidentiary hearing should be resolved in favor of the party requesting the hearing. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

To prevail on his claim he received ineffective assistance of counsel, Robinson must demonstrate 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." 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, 2068 (1984)). An attorney's tactical decisions are within the proper discretion of the attorney and will not be later reviewed for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).

Where a defendant has pleaded guilty, he must show "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

Robinson claims his attorney was deficient in failing to investigate an alibi defense; investigate the strength of the evidence supporting the gun-possession charge; or confirm the prior adjudications that made Robinson ineligible to possess a gun. These allegations concern tactical decisions made by Robinson's attorney, and are therefore not reviewable for competence. Robinson also alleges his attorney should not have allowed him to waive his right to an adult certification hearing without discussing the matter with Robinson's guardian. Robinson presents no evidence he has a guardian or ever requested one. In this case, a presumption of certification applied unless Robinson could show public safety would be served by retaining the matter in juvenile court. See Minn. R. Juv. P. 18.05, subd. 1. Robinson presented no evidence to rebut the presumption.

Robinson also claims his attorney failed to adequately explain the elements of the charged offenses at the time of the guilty plea, which was therefore not knowing, voluntary, and intelligent. At the plea hearing, Robinson reviewed the plea petition and acknowledged he was voluntarily waiving a trial and other rights. He also specifically disavowed any claim of actual innocence. Robinson presents no evidence he would not have pleaded guilty but for his attorney's deficient performance. Robinson has not alleged facts which, if true, would entitle him to relief on his ineffective-assistance claim.

Robinson's allegation he was deprived of due process is based on his assertion the plea was not knowing, voluntary, and intelligent. This assertion is not supported by the plea hearing transcript. Robinson also claims he was subjected to cruel and unusual punishment, but offers no facts or argument to support the allegation.

The district court did not abuse its discretion by denying Robinson's petition for postconviction relief.

Affirmed.