This opinion will be unpublished and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

A03-315

 

Robert George Israel,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 13, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Rock County District Court

File No. K4-96-248

 

 

 

Robert George Israel, 210 1/2 East Main Street, Apt. 2, Luverne MN 56156 (appellant pro se)

 

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

 

Terry Scott Vajgrt, Assistant Rock County Attorney, 120 North McKenzie, P.O. Box 538, Luverne, MN 56156 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

 

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

On appeal from the order denying his postconviction petition, appellant Robert Israel argues that the postconviction court erred in denying an evidentiary hearing on his claims of ineffective assistance of trial counsel and improper admission of Spreigl evidence.  Appellant also argues that the postconviction court abused its discretion by rejecting his claim of ineffective assistance of appellate counsel and denying his request for a new trial based on new evidence.  Because the postconviction court did not err in denying an evidentiary hearing, because appellant’s ineffective assistance of appellate counsel claim is without merit, and because the postconviction court did not abuse its discretion when it denied appellant’s request for a new trial, we affirm.

FACTS

Appellant Robert George Israel appeals from the postconviction court’s order denying his petition for postconviction relief challenging his conviction in 1997 of two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a) (1996), and one count of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(a) (1996).  At trial, evidence was introduced of Israel’s 1983 South Dakota conviction of second-degree rape.  Then, after his conviction, but before sentencing, Israel underwent a Psychophysiological Assessment of Sexual Response.  Israel appealed, and this court affirmed the district court. 

Israel then moved for a postconviction hearing, arguing (1) ineffective assistance of trial counsel; (2) error in admitting Spreigl evidence; (3) ineffective assistance of appellate counsel; (4) and discovery of new evidence warranting a new trial.  The postconviction court concluded that Israel’s claims of ineffective assistance of trial counsel and inadmissible Spreigl evidence were both waived because he failed to raise the issues on direct appeal and thus were barred as issues known by Israel at the time of the direct appeal, but not raised.  See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that all claims known by defendant but not raised on direct appeal are barred and will not be considered upon a subsequent petition for postconviction relief).  The postconviction court also concluded that Israel had not carried his burden to demonstrate why the ineffective assistance of counsel and Spreigl evidence arguments should be heard under exceptions to the Knaffla rule.  See Jihad v. State, 594 N.W.2d 522, 524 (Minn. 1999) (providing two exceptions to the Knaffla rule).

Finally, the postconviction court concluded that Israel’s claim of ineffective assistance of appellate counsel failed because Israel (1) did not identify with particularity the issues appellate counsel allegedly failed to raise and (2) failed to carry his burden to establish that the new evidence, consisting of a medical report of his erectile dysfunction, was a ground for a new trial when the dysfunction was known to Israel at the time of trial and the report stated Israel “probably has had erectile dysfunction for some time.”  This appeal followed.

D E C I S I O N

1.         Ineffective assistance of trial counsel and improper admission of evidence

            Arguing ineffective assistance of trial counsel before this court, Israel asserts that he was denied his Sixth Amendment right to counsel when his trial attorney failed to (1) use expert witnesses to contradict the state’s expert witnesses; (2) object to the state’s expert witnesses; and (3) call witnesses that Israel had provided.  Israel also argues that the district court erred by admitting into evidence his 1983 conviction for second-degree rape because of its prejudicial effect.

            This court will not disturb the decision of a postconviction court absent an abuse of discretion.  State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).  Once a petitioner has directly appealed a conviction, all matters raised in that appeal, and all matters that were known but not raised, “will not be considered upon a subsequent petition for postconviction relief.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Exceptions “will be made to the Knaffla rule only if a claim is ‘so novel that its legal basis was not reasonably available at the time of the direct appeal’ or in limited situations when fairness dictates that the petitioner be given a hearing.”  Jihad v. State, 594 N.W.2d 522, 524 (Minn. 1999) (quoting Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997)).

We agree with the district court’s conclusion that the postconviction issues were not properly before it because they were known but not raised on direct appeal and that the Knaffla exceptions do not apply.  See Ives v. State, 655 N.W.2d 633, 635 (Minn. 2003) (holding that “[w]hen a direct appeal has been taken and litigated . . . , all matters raised during the appeal and all claims known by the defendant, but not raised, are barred and will not be considered upon a subsequent postconviction petition for relief”).  There is nothing particularly novel about the issues Israel raises, and he has failed to show any reason that fairness compels a deviation from the Knaffla rule.  Thus, the district court did not err in declining to consider these issues in a postconviction evidentiary hearing.

2.         Ineffective Assistance of Appellate Counsel

            Israel also argues ineffective assistance of his appellate counsel because appellate counsel did not raise the alleged ineffective assistance of trial counsel on direct appeal.  Here, Israel makes no legal arguments and cites no supporting authority in support of his argument.  Issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997); see also Gonguli v. Univ. of Minn. 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (holding that this court declines to address allegations unsupported by legal analysis or citation).  However, in the interests of justice, this court may address issues otherwise unsupported by legal analysis or citation.  Minn. R. Civ. App. P. 103.04.

            Ineffective assistance of counsel claims involve mixed questions of law and fact and our standard of review is de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984)).  To prevail on such a claim, an appellant must demonstrate that counsel’s performance fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.  State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998) (quotations omitted).

Here, Israel lacks the basis to support his claim of ineffective assistance of appellate counsel because he failed to argue or prove his claim of ineffective assistance of trial counsel.  Doppler v. State, 660 N.W.2d 797, 802 (Minn. 2003) (holding that to “prove an ineffective assistance of appellate counsel claim predicated on ineffective assistance of trial counsel, the petitioner must first prove that trial counsel was ineffective.”).  Because Israel has not shown ineffective assistance of trial counsel, he cannot successfully assert an ineffective assistance of appellate counsel on appeal.  Thus we conclude that Israel’s claim of ineffective appellate counsel is without merit. 

3.         New trial based on new evidence

            Israel also argues that the postconviction court “violated [his] right to use evidence that was not known at the time of trial, specifically the Psychophysiological Assessment of sexual response.”  Israel asserts that he is impotent and that the assessment report establishes this when it states, “M[r]. Israel probably has had erectile dysfunction for some[t]ime.”

This court reviews an appeal of a postconviction denial of a new trial under the abuse-of-discretion standard, examining the evidence in light of the test set out in Race v. State, 417 N.W.2d 264, 266 (Minn. 1987).  The burden is on the defendant to establish the facts by a preponderance of the evidence as required by Minn. Stat. § 590.04, subd. 3 (1996).

In order to obtain a new trial on the ground of newly discovered evidence, the defendant must establish (1) that the evidence was not known to him or his counsel at the time of trial, (2) that his failure to learn of it before trial was not due to lack of diligence, (3) that the evidence is material, and (4) that the evidence will probably produce either an acquittal at a retrial or a result more favorable to the petitioner.

 

Race, 417 N.W.2d at 266.

 

            Here, Israel argues that the assessment report indicating he may be impotent is new evidence that warrants a new trial, but he fails to establish even one of the requirements under Race because (1) the evidence was known to him at the time of trial because he “has had erectile dysfunction for sometime”; (2) his failure to learn of the evidence was due to lack of diligence as he could have taken the test earlier than right before sentencing; (3) the evidence is not material because he was convicted for digitally penetrating the victim and touching the outside of the her vagina with his penis, actions that do not implicate erectile dysfunction; and (4) the assessment report is not likely to produce either an acquittal or a result more favorable to him because the assessment report does not contradict the evidence supporting his conviction.  Because Israel does not carry his burden under Race, we conclude that the postconviction court did not abuse its discretion in denying Israel a new trial based on new evidence. 

            Affirmed.