This opinion will be unpublished and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
State of Minnesota,
Trent William Lederhaus,
Filed May 11, 2004
Becker County District Court
File No. K3-01-769
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Joseph A. Evans, Becker County Attorney, 910 Lincoln Avenue, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying postconviction relief, appellant argues that the district court erred in holding that his claims for relief were procedurally barred and in denying postconviction relief without granting an evidentiary hearing. Appellant also argues that newly discovered evidence supports his claim that police who helped a paid informant rent a home located in a school zone improperly manipulated the length of his sentence. We affirm.
In November 2001, appellant Trent William Lederhaus was convicted of three counts of second-degree controlled-substance crime for selling methamphetamine to Michael Felix, a paid police informant, on two separate occasions. Appellant’s defense at trial was that he was not selling methamphetamine to Felix, he was buying marijuana from Felix. To rebut Felix’s testimony that he had not sold drugs to anyone, appellant wanted to introduce testimony that Felix frequently sold marijuana and methamphet-amine in his home. The state made a motion in limine to prohibit the introduction of the testimony, arguing that it would essentially be used to establish Felix’s character and show that he acted in conformity with it on the days in question and that such evidence is prohibited by Minn. R. Evid. 404(b) and 608(b). The district court ruled that the evidence was inadmissible under those rules.
In a direct appeal from his convictions, appellant argued that the district court erred in excluding the testimony that Felix sold marijuana and methamphetamine. State v. Lederhaus, No. C3-02-244, 2002 WL 31554576 (Minn. App. Nov. 19, 2002), review denied (Minn. Jan. 21, 2003). This court affirmed appellant’s conviction, holding that the district court did not abuse its discretion in excluding the evidence because (1) rule 608(b) specifically prohibits its introduction; and (2) appellant’s attorney did not make an offer of proof concerning the relevancy of the testimony or which exception to rule 404(b) applied to the testimony. Id., 2002 WL 31554576, at *1-2.
Following his direct appeal, appellant filed a petition for postconviction relief, arguing that he was denied effective assistance of counsel when his trial counsel failed to make a proper offer of proof for the evidence of Felix’s illegal drug dealing. Appellant also claimed that the state manipulated his sentence by helping Felix rent a house located within a school zone as the location where the drug transactions occurred.
The district court denied appellant’s petition without holding an evidentiary hearing. The court determined that because appellant was aware of all of his postconviction claims at the time of his direct appeal, he was barred from raising them in a subsequent postconviction proceeding. The district court also found that even if appellant’s claims were not barred, the claims failed on the merits because they concerned matters of trial tactics and strategy, and there was no evidence that the tactics fell below an objective standard of reasonableness.
A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted). In postconviction 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). On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal. Id.
Once a direct appeal has been taken, we will not consider [upon a subsequent petition for postconviction relief] matters that were raised on direct appeal or claims known at that time but not raised. The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not “deliberately and inexcusably” fail to raise on direct appeal. The exceptions are limited to the extent that fairness requires consideration of such a claim.
Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) (citations omitted). Also, ineffective-assistance-of-counsel claims that require additional factfinding may be raised in a postconviction petition, even if they were known at the time of the defendant’s direct appeal. Dukes v. State, 621 N.W.2d 246, 255 (Minn. 2001). This last exception, however, is limited to claims that cannot be evaluated on direct appeal based on the briefs and the district-court record. Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997).
Ineffective assistance of counsel
Appellant argues that his ineffective-assistance-of-counsel claim based on trial counsel’s failure to make an offer of proof is not barred because the record was incomplete to address this claim on direct appeal. Appellant contends that the record was incomplete because the witnesses that he wished to call had testified in other proceedings that Felix sold marijuana, but the transcripts of their testimony in those proceedings were not filed with the district court during appellant’s trial. Appellant contends that without these transcripts, the appellate court in appellant’s direct appeal could not review the weight and importance of the potential witnesses’ testimony, and, therefore, additional factfinding was needed.
But it was not necessary for the court in appellant’s direct appeal to have transcripts of the potential witnesses’ testimony in order to review a claim that trial counsel’s failure to make a proper offer of proof was ineffective assistance.
To establish a claim of ineffective assistance of counsel, a criminal defendant must demonstrate that (1) his counsel’s representation fell below an objective standard of reasonableness, and (2) 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). “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). “Even if counsel’s performance is objectively deficient, [appellant] must also affirmatively prove prejudice.” Miles v. State, 512 N.W.2d 601, 603 (Minn. App. 1994), review denied (Minn. May 17, 1994) (citing Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).
The Rules of Evidence state:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Minn. R. Evid. 103(a)(2) (emphasis added). Under the plain language of this rule, all that is required for a proper offer of proof is that the offer inform the court about the substance of the proffered evidence. But a proper offer of proof does not, by itself, make evidence admissible. All that an offer of proof does is provide information about the nature of the excluded testimony so that a reviewing court can determine whether a substantial right of a party was affected by the exclusion of evidence. Minn. R. Evid 103(b) 1989 comm. cmt. Even if the proponent of evidence makes a proper offer of proof, excluding the evidence is not error if there is not a legal basis for admitting the evidence. Therefore, demonstrating that counsel failed to make a proper offer of proof does not establish an ineffective-assistance-of-counsel claim unless it is also demonstrated that there is a reasonable probability that with a proper offer of proof, the evidence would have been admitted.
Because the district-court record contained any statements that appellant’s counsel made to the district court regarding the substance of the potential witnesses’ testimony and any legal arguments that counsel made regarding the admissibility of the testimony, the court on direct appeal could have considered whether appellant’s trial counsel provided both information as to the nature of the excluded testimony and a legal basis for admitting the testimony. If counsel did not provide a legal basis for admitting the testimony, the testimony would not have been admitted even if counsel had made a proper offer of proof.
In appellant’s direct appeal, this court determined that appellant’s counsel failed to present to the district court both information as to the nature of the excluded testimony and a legal basis for admitting the evidence. Therefore, because counsel failed to provide a legal basis for admitting the evidence, there is no reason why the court on direct appeal could not evaluate appellant’s ineffective-assistance claim based on the briefs and the district-court record. See Robinson, 567 N.W.2d at 495 (distinguishing ineffective-assistance-of-counsel claims that require evidence of attorney-client conversations from other ineffective-assistance claims that could “be evaluated by an appellate court on direct appeal based on the briefs and trial court transcript, and without additional factfinding”). Additional factfinding was not required by the court on direct appeal to determine whether trial counsel made a proper offer of proof because based on the district-court record, even if a proper offer of proof had been made, without a legal basis for admitting the evidence, there was not a reasonable probability that the evidence would have been admitted.
After failing to raise his ineffective-assistance claim at the time of his direct appeal, appellant cannot obtain review of the claim in a subsequent postconviction proceeding by alleging that additional factfinding is needed with respect to a factual issue that the court on direct appeal did not need to have determined in order to address the claim. The exception applies only when the court on direct appeal cannot evaluate the claim without additional factfinding.
Appellant also argues that because his trial counsel’s explanations for his failure to cite State v. Denison, 607 N.W.2d 796 (Minn. App. 2000) review denied (Minn. June 13, 2000), and Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974), as a basis to admit the potential witnesses’ testimony and his failure to add two witnesses to appellant’s witness list are necessary to resolve his ineffective-assistance claim, his claim that these failures constituted ineffective assistance is not procedurally barred. But “matters of trial strategy . . . will not be reviewed later for competence.” Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001). Which witnesses to call and what arguments to make are matters of trial strategy.
We conclude that appellant is procedurally barred from pursuing postconviction relief based on his claims that he received ineffective assistance of counsel when his trial counsel failed to make an offer of proof, failed to cite particular opinions to the district court, and failed to add two witnesses to appellant’s witness list.
Appellant argues that police who caused Felix to rent a home located in a school zone manipulated his sentence. See Minn. Stat. § 152.022, subd. 6(ii) (2000) (second-degree controlled substance crime includes selling any mixture containing methamphetamine within a school one). “Sentencing manipulation is outrageous government conduct aimed only at increasing a person’s sentence.” State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997). The supreme court has declined to adopt the doctrine of sentencing manipulation in the absence of egregious police conduct that goes beyond legitimate investigative purposes. Id.
Appellant concedes that he did not argue that his sentence had been manipulated either at the time of his sentencing or at the time of his direct appeal. Appellant asserts, however, that his trial counsel was ineffective for failing to raise the sentence-manipulation claim at the time of sentencing, or alternatively, that his claim relies on newly discovered evidence that was not available at the time of trial.
As we have already discussed, the general rule is that claims that were known, but not raised, when a direct appeal was taken may not be raised in a subsequent postconviction proceeding. Sanders, 628 N.W.2d at 600. Although the postconviction court did not directly address appellant’s sentencing-manipulation argument, it found that all of appellant’s ineffective-assistance-of-counsel claims were barred because the bases for the claims were known at the time of appellant’s direct appeal.
The record supports this finding with respect to the sentencing-manipulation claim. Appellant knew at the time of trial, and, therefore, at the time of his direct appeal, that the home where the drug transactions occurred was in a school zone. Appellant, however, argues that the specific facts supporting his sentencing-manipulation claim were not discovered until an August 2002 due-process hearing in another proceeding in which a police officer testified about the location and selection of the home that Felix used. See State v. Roussopoulos, No. C7-03-290, 2004 WL 77884, at *1 (Minn. App. Jan. 20, 2004) (appeal from conviction of controlled-substance offense where Felix was informant), review denied (Minn. Mar. 30, 2004). But to prevail in obtaining a new trial based on newly discovered evidence, appellant must prove:
(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.
Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (citations omitted). Appellant offers no explanation why he could not have discovered before trial how Felix selected the home where the drug transactions occurred. Thus, appellant’s assertion that his sentencing-manipulation argument relies on newly discovered evidence is without merit.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The witnesses whose testimony appellant wanted to introduce included Felix’s wife, teenage friends of Felix’s children who visited the Felix home, friends of Felix’s wife, neighbors, and friends and acquaintances of Felix.
 Minn. R. Evid. 404(b) prohibits evidence of a crime or wrong “to prove the character of a person in order to show action in conformity therewith[,]” subject to certain exceptions “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b).
 Minn. R. Evid. 608(b) provides that a witness’s credibility may not be attacked or supported with extrinsic evidence of specific instances of conduct, other than conviction of a crime. The rule permits inquiry into the conduct on cross-examination if probative of truthfulness or untruthfulness, subject to the court’s discretion. Minn. R. Evid. 608(b).
 Appellant asserts that this court already determined that trial counsel’s performance was deficient in its unpublished opinion concerning appellant’s direct appeal. Lederhaus, 2002 WL 31554576, at *2. But this court did not address appellant’s ineffective assistance of counsel claim in appellant’s direct appeal because appellant did not raise it.
 At the time of the direct appeal, no additional factfinding was required to determine whether counsel provided a legal basis for admitting the evidence; the district-court record demonstrated any basis for admission that counsel asserted.