This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Scott L. Butterfield,
State of Minnesota,
Anoka County District Court
File No. KX-95-4699
Scott L. Butterfield, MCF/STW, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)
Considered and decided by Lansing, Presiding Judge; Wright, Judge; and Crippen, Judge.*
Generally, a postconviction court must grant an evidentiary hearing on a postconviction petition “[u]nless 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). When a petitioner has directly appealed a conviction, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). A petitioner’s failure to raise an issue that was known or that should have been known at the time of direct appeal bars the consideration of that claim. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998). An exception exists where (1) the claim is novel and the legal basis was unavailable at the time of direct appeal or (2) fairness requires consideration of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal. Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997). We will not disturb the postconviction court’s decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).
Butterfield argues that (1) the 523-month sentence imposed by the district court exceeded the statutory maximum for first-degree criminal sexual conduct and (2) he received ineffective assistance of appellate and postconviction counsel. Because Butterfield’s claims regarding sentencing and ineffective assistance of appellate counsel were either previously raised or available in his prior appeals, Butterfield is now procedurally barred from raising them. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (stating that all issues known or raised at the time of direct appeal are precluded from postconviction consideration).
We affirmed as modified Butterfield’s sentence on direct appeal. Butterfield, 555 N.W.2d at 534 (reducing total length of Butterfield’s sentence to 523 months). His sentence does not exceed the statutory maximum because his 523-month sentence is an aggregate of three separate, consecutive sentences and one concurrent sentence; and none of these sentences exceeds the statutory maximum for the relevant offense. The maximum sentence permitted by statute for first-degree criminal sexual conduct is 30 years’ imprisonment. Minn. Stat. § 609.342, subd. 2(a) (1994). Butterfield was sentenced to 330 months’ imprisonment (approximately 28 years) for committing first-degree criminal sexual conduct in the park, a concurrent term of 134 months’ imprisonment (approximately 11 years) for committing first-degree criminal sexual conduct in the car, and a consecutive term of 172 months’ imprisonment (approximately 14 years) for committing first-degree criminal sexual conduct in the trailer. The statutory maximum sentence for kidnapping is 40 years. Minn. Stat. § 609.25, subd. 2(2) (1994). Butterfield was sentenced to 42 months’ imprisonment (approximately four years) for the kidnapping offense. Thus, not one term of imprisonment imposed exceeds the statutory maximum for the offense of conviction.
Butterfield also contends that the 330-month sentence, an upward departure that is three times the presumptive guidelines sentence, was erroneously based on a finding that he used a dangerous weapon in the assault. Butterfield claims that his acquittal of criminal sexual assault in the first degree (while using a dangerous weapon), Minn. Stat. § 609.342, subd. 1(d) (1994), precludes the district court from considering the use of a knife as an aggravating factor warranting the departure. This argument also lacks merit. Contrary to Butterfield’s contention, he was not sentenced on the one charge that resulted in an acquittal. The district court imposed a 330-month sentence for Butterfield’s sexual assault in the park, not the trailer where the offense of acquittal was alleged to have occurred. For the sexual assault in the park, Butterfield was convicted under Minn. Stat. § 609.342, subd. 1(c) (1994) (causing reasonable fear of imminent great bodily harm while committing criminal sexual conduct). To support the upward durational departure for this offense, the district court found several aggravating factors, including multiple acts of penetration, Butterfield’s possession of a knife while making oral threats to kill the victim, and his particular cruelty in punching the victim and forcing her to remove her clothes in 45-degree weather. As these findings are well supported by the record, the district court’s determination was not erroneous.
We also rejected Butterfield’s claim of ineffective assistance of appellate counsel on his first postconviction appeal. Butterfield, 2001 WL 214210 at *3 (holding that appellant’s claim was procedurally barred and that he did not sustain his burden of showing ineffective assistance of counsel). Because he now raises the same claim again, Butterfield’s claim of ineffective assistance of counsel in his direct appeal is procedurally barred, and we decline to revisit it. See Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998).
Butterfield argues that he also was denied effective assistance of counsel in his first postconviction case. Because this claim could not have been previously known or raised at the time of his direct appeal or during the first postconviction proceedings, it is not procedurally barred. To prevail on this claim, Butterfield must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). But Butterfield fails to allege any facts that would support his claim. Accordingly, the relief he seeks is unwarranted.
Because the district court did not abuse its discretion in denying Butterfield’s petition for postconviction relief, we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.