This opinion will be unpublished and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

A03-1750

 

Arvie Ray Burch, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed July 13, 2004

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 96035800

 

Arvie Ray Burch, Minnesota Correctional Facility Lino Lakes, 7525 Fourth Avenue, Lino Lakes, MN 55014 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Schumacher, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Arvie Ray Burch appeals from the denial of his second petition for postconviction relief challenging his 1996 conviction of and sentence for first-degree burglary.  Because all of the issues raised in the petition were raised or could have been raised in his first petition, we affirm.

D E C I S I O N

 

Review of a postconviction proceeding “is limited to the question of whether there is sufficient evidence to sustain the findings of the post-conviction court.”  Marhoun v. State, 451 N.W.2d 323, 327 (Minn. 1990).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.

 

Minn. Stat. § 590.04, subd. 3 (2002).  And claims that were known but not raised in first postconviction appeal will not be considered in a subsequent petition for postconviction relief.  Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (applying State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), to bar claims that could have been raised in previous petition for postconviction relief).

            In his first petition for postconviction relief, appellant challenged the warrantless search of the trunk of his vehicle, his sentence, the sufficiency of the evidence, and the effectiveness of counsel.  On appeal from denial of that petition, appellant raised the issues of prosecutorial misconduct and whether the district court considered evidence outside of the stipulated facts.  This court affirmed denial of the petition, declining to address the two issues raised for the first time on appeal.

            In his current petition for postconviction relief, appellant challenges whether he was mentally competent to assist in his defense, whether the warrantless search of his car was lawful, whether the district court considered evidence outside of the stipulated facts, whether the prosecutor engaged in misconduct, and whether appellant was properly sentenced.  Because the issues now raised were either raised and decided or were known but not raised in appellant’s first postconviction appeal, the district court did not abuse its discretion by concluding that those claims are barred by application of Minn. Stat. § 590.04, subd. 3, and the Knaffla holding that claims known but not raised in earlier review are barred.  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. 

            Even though appellant’s claims of prosecutorial misconduct, consideration of evidence outside of the stipulated facts, and challenge to the calculation of his prior felony offenses for purposes of sentencing as a career offender are procedurally barred by Knaffla, we will address them in the interests of justice because, unlike the other claims raised in this petition, these issues have not been previously addressed.  See Boitnott v. State, 631 N.W.2d 362, 369-70 (Minn. 2001) (noting that reviewing court can opt to review an appellant’s claims on the merits in the interest of justice despite Knaffla bar).

I.          Prosecutorial misconduct

            Appellant argues that the prosecutor committed misconduct by commenting at the Rasmussen hearing on appellant’s decision to exercise his Fifth Amendment privilege and not answer a question about his prior knowledge of stolen property in the trunk of his vehicle.  The prosecutor erroneously told the court that the defendant could not testify at the Rasmussen hearing and invoke his Fifth Amendment rights on certain areas of inquiry and argued that the court should draw adverse conclusions from appellant’s invocation of his Fifth Amendment right.  The next day, the prosecutor corrected this error on the record and made sure that appellant understood that his testimony during the Rasmussen hearing could not be used against him in the case in chief other than for impeachment purposes.

            Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  Even serious prosecutorial misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” and less-serious misconduct will be found harmless if it is unlikely that the misconduct played a substantial part in influencing the fact-finder to convict.  Id. (citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).

            In this case, because the erroneous comment was made to the court, not a jury, and was promptly corrected, we conclude that there is no prosecutorial misconduct.  Furthermore, nothing in the record indicates that the comment had any influence on the verdict.  The evidence supporting appellant’s conviction was overwhelming.  Appellant acknowledged prior to trial that the stipulated facts would result in his conviction.  Appellant’s claim of prosecutorial misconduct is without merit.

II.        Evidence considered by district court  

            Appellant claims that the district court erred by considering prejudicial facts outside of the stipulated facts.  The court asked appellant’s attorney whether it could consider the entire inventory of items taken from appellant’s vehicle, and appellant’s attorney then consented to admission of the inventory list despite the facts that the stipulation only allowed for admission of the victim’s property and appellant had exercised his Fifth Amendment right to refuse to testify about the contents of his vehicle.  Appellant’s consent was not required before his attorney could agree to placing the inventory list in evidence.  See State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  Decisions about what evidence should be presented at trial represent an attorney’s decision regarding trial tactics, which lie within the discretion of trial counsel, and will not be reviewed later for competence.  Id.  The inventory list was not outside of evidence that counsel agreed the district court could consider.

III.       Sentencing

In his first petition for postconviction relief, appellant argued that his sentence unduly exaggerated the criminality of his conduct.  On appeal from denial of relief based on this claim, the state admitted that the district court had erroneously calculated the number of prior felony offenses appellant had for purposes of the career-offender statute.  This court affirmed denial of relief from sentencing, noting that appellant had not raised a challenge to sentencing under the career-offender statute.  In this petition, appellant alleges that he only had five prior felony convictions prior to committing the current offense and not seven as found by the district court or six as alleged by the state.  Five prior felony convictions, however, were sufficient to trigger sentencing as a career offender, so appellant’s current challenge to his sentence is also without merit.  Minn. Stat. § 609.1095 subd. 4 (1996). 

            After this case was submitted, appellant asserted that the United State Supreme Court’s recent decision in Blakely v. Washington, 72 U.S.L.W. 4546 (U.S. June 24, 2004) (holding that factors resulting in upward sentencing departures in the state of Washington must be found by jury absent admission or waiver), makes his sentence unconstitutional.  Id.  Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided.  This court has held that Apprendi does not apply retroactively on collateral review, including postconviction.  State v. Meemken, 662 N.W.2d 146, 150 (Minn. App. 2003).  See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563­­ (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review).  Therefore, absent any authority that Blakely applies to appellant’s sentence, we decline to address this issue.

            Affirmed.