This opinion will be unpublished and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

A03-515

 

Marlowe N. Brooks, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed February 3, 2004

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 00087189

 

Marlowe N. Brooks, OID No. 207063, Department of Corrections-Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Marlowe N. Brooks challenges the district court’s decision denying his petition for postconviction relief without an evidentiary hearing.  Appellant claims his guilty plea was not intelligently made because the district court added additional conditions to the already agreed-upon plea, the district court failed to advise and interrogate appellant in order to establish a factual basis for the guilty plea, there was a conflict of interest between appellant and his trial counsel, and appellant’s appellate counsel was ineffective.  We affirm.

D E C I S I O N

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).  A district court’s findings of fact are afforded great deference, and we will not reverse the findings unless they are clearly erroneous.  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).

I.

Appellant argues that the district court erred in denying his petition for postconviction relief without granting him an evidentiary hearing.  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).  And when a petitioner has directly appealed his or her 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)).  The Knaffla rule applies to ineffective assistance of counsel claims unless an evidentiary hearing is necessary to develop additional facts to explain the attorney’s decisions.  Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).  Exceptions to the rule exist 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).

Appellant argues that the district court erred in denying his petition for postconviction relief because the restitution imposed by the district court at sentencing was not part of the plea agreement.  But appellant did not object to the restitution at sentencing, did not raise the issue of restitution in his first appeal, and only raised the issue for the first time in his petition for postconviction relief.  See State v. Brooks, No. C1-01-1253, 2002 WL 1277970 (Minn. App. June 11, 2002).  Since this claim was known but not raised by appellant during his first appeal, it cannot be considered in a subsequent petition for postconviction relief.  See Gassler, 590 N.W.2d at 771.  In a case involving similar facts, this court held that “failure to object to restitution either during [an appellant’s] plea hearing or during sentencing constitutes a waiver of the challenge . . . . ”  State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993).  Thus, even if appellant had raised this issue in his direct appeal, he would not have been successful.

Appellant also argues that the district court erred in not advising and interrogating him to establish a factual basis supporting the guilty plea.  Again appellant knew of this issue at the time of his original appeal.  Thus, this argument is also barred by Gassler.  590 N.W.2d at 771.  In appellant’s earlier appeal, he argued that he should have been able to withdraw his guilty plea because the district court did not establish that appellant possessed the requisite intent and that the killing was premeditated.  Brooks, 2002 WL 1277970, at *2.  But in the previous appeal, this court analyzed the factual basis supporting the guilty plea and determined that both intent and premeditation were established during the plea hearing.  Id. at *2 *3.  Thus, although appellant’s argument is barred by Gassler, we note that the factual basis supporting appellant’s guilty plea was adequately considered in the earlier appeal to this court.

Appellant also argues that he was denied effective assistance of trial counsel.  Appellant has raised this issue at every proceeding beginning with the hearing on his motion to withdraw his guilty plea.  The district court concluded that appellant’s trial counsel was effective.  Additionally, this court previously held that “[t]he district court concluded that Brooks had received effective assistance of counsel, and the record supports that finding.”  Id. at *4.  Thus, because this issue has been previously raised and decided on the merits, it cannot be raised again.  See Gassler, 590 N.W. 2d at 771.

II.

Finally, appellant contends that his appellate counsel was ineffective.  An appellant arguing that he or she received ineffective assistance of counsel must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and a reasonable probability exists that the outcome would have been different but for the counsel’s errors.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).   A reasonable probability is one that is sufficient to undermine confidence in the outcome.  Id.  There is a strong presumption that a counsel’s performance fell within the range of reasonable assistance.  See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  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).

First, appellant argues that appellate counsel failed to raise the issue of restitution.  An attorney’s tactical decisions are within the proper discretion of the attorney and will not be later reviewed for competence.  Voorhees, 596 N.W.2d at 255.  The decision of what arguments to make on appeal is a tactical decision, and therefore, will not be reviewed for competence.  Additionally, in Anderson, this court held that where an appellant failed to object to restitution either during his plea hearing or during sentencing, he effectively waived his right to challenge restitution.  507 N.W.2d at 247.  And an appellant’s counsel need not make arguments on appeal that have already been waived.  Thus, the appellate counsel’s failure to assert this claim on direct appeal was not outside the standard of reasonableness.

Appellant next argues that his appellate counsel erred in failing to argue that the district court did not advise and interrogate appellant to establish a factual basis supporting the guilty plea.  An appellate counsel “has no duty to include claims which would detract from other more meritorious issues” when an appellant and counsel have divergent opinions as to what issues should be raised on appeal.  Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (citation omitted).  Dissatisfied appellants are advised to state their contentions in a supplemental brief.  Id.  Here, appellant filed a supplemental brief in his direct appeal that could have, but did not, address this issue.  Moreover, during the plea hearing, appellant expressly and specifically acknowledged the truth and accuracy of facts constituting the essential elements of the crime.  Thus, because the guilty plea was supported by an adequate factual basis, appellate counsel did not err in failing to raise this issue on direct appeal.  In addition, because appellate counsel raised an argument on appeal that required the court to consider the adequacy of the factual basis supporting the guilty plea, any error in not asserting appellant’s current argument would not have affected the result.

Finally, appellant argues that his appellate counsel failed to argue that appellant had a conflict of interest with his trial counsel.  At the post plea hearing, appellant first stated to the district court that he thought his trial attorneys were ineffective.  At that time, the district court determined that it was no longer appropriate for those attorneys to represent appellant and appointed a conflict attorney.  In the earlier appeal, this court reviewed the district court file and concluded that appellant was not denied effective assistance of counsel.  Brooks, 2002 WL 1277970, at *4.  Thus, because the record indicates appellant was not harmed by any conflict of interest between himself and his trial attorneys, appellant was not harmed when his appellate counsel failed to make this argument.

In conclusion, because most of appellant’s arguments are procedurally barred by Gassler, and all of appellant’s arguments are without merit, we affirm.

Affirmed.