This opinion will be unpublished and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,
Filed July 27, 2004
Hennepin County District Court
File No. 00056162
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Daniel Adams, OID 206021, MCF - Stillwater, 970 Pickett St. North, Bayport, MN 55003 (pro se appellant)
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.
U N P U B L I S H E D O P I N I O N
Appellant was convicted of attempted second-degree murder, and the district court departed upward durationally in sentencing. Appellant challenges the district court’s order denying his motion to reconsider his petition for postconviction relief, arguing that he is entitled to an evidentiary hearing on his claims that he received ineffective assistance of counsel and that the upward durational departure in sentencing was not supported by substantial and compelling circumstances. We affirm.
On June 11, 2000, appellant Daniel Adams assaulted and seriously injured his estranged wife, Katrina Davis. After a bench trial, Adams was convicted of attempted second-degree murder, in violation of Minn. Stat. §§ 609.19, subd. 1(1), 609.17 (1998). The district court sentenced him to 240 months in prison, which represented a 77-month upward durational departure from the presumptive sentence. Adams appealed, arguing that there was insufficient evidence to support the conviction and that the sentencing departure was not supported by substantial and compelling circumstances. This court affirmed the conviction and sentence in State v. Adams, No. C9-01-853, (Minn. App. Feb. 12, 2002), review denied (Minn. Apr. 16, 2002).
On March 18, 2003, Adams filed a pro se petition for postconviction relief, seeking a new trial and an evidentiary hearing on his claim that he received ineffective assistance of counsel. On May 28, the postconviction court denied the petition without an evidentiary hearing. On July 17, 2003, Adams filed what he labeled a “Motion to Reconsider,” also pro se, in which, rather than addressing how the postconviction court’s decision on the petition for postconviction relief was erroneous, Adams argued for the first time that his conviction was a result of Davis’s false testimony at trial. Adams also submitted to the postconviction court documents that he claims proved that Davis had committed perjury. The postconviction court entertained Adams’s new claim and, on September 17, denied the “Motion to Reconsider.” This pro se appeal follows.
D E C I S I O N
Adams’s brief includes no citation to legal authority, and his arguments are unclear. Generally, claims of error are deemed waived if they are not supported by rational argument or citation to legal authority. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). But we will nevertheless attempt to identify and address Adams’s arguments.
Adams appears to argue that the postconviction court abused its discretion by denying his “Motion to Reconsider” without first holding an evidentiary hearing. Adams claims that he is entitled to the hearing because the evidence shows that he received ineffective assistance from his court-appointed counsel when counsel declined to present available evidence that Davis committed perjury. We review a postconviction court’s findings and conclusions to determine whether they are supported by the record, and we will not reverse the decision of a postconviction court absent an abuse of discretion. State v. Woodruff, 608 N.W.2d 881, 884 (Minn. 2000); State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990). To warrant an evidentiary hearing, the petitioner must allege facts that, if proved, would entitle him to the requested relief. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995). The allegations must be “more than argumentative assertions without factual support.” Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).
To establish that he received ineffective assistance of counsel, Adams must “affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
The documents submitted by Adams with his “Motion to Reconsider” show that, at about the time of the assault, Davis may have been using illegal drugs and that in January 2000 the Hennepin County District Court had denied a request by Davis for an order for protection (OFP) against Adams. Adams argued to the postconviction court that the documents are evidence that Davis committed perjury when she testified about her “drug usage and problems” and about an OFP that prohibited him from being in her house at the time of the assault. But Adams admits that the documents were “available” and “given to the counsel” at the time of trial. Which witnesses to call and what evidence to present are matters of trial strategy that are within the discretion of trial counsel and will not be reviewed on appeal. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Because matters of trial strategy will not be reviewed, Adams is unable to establish that he received ineffective assistance of counsel when his lawyer failed to present the evidence, and the postconviction court did not abuse its discretion by denying Adams’s “Motion to Reconsider” without an evidentiary hearing.
And we note that, in any event, the record supports the postconviction court’s conclusion that the documents that Adams presented do not refute Davis’s testimony concerning drug use and that, thus, Adams has not shown that they would have likely produced a more favorable result at trial. The record also supports the postconviction court’s finding that, while there was no “order for protection” in effect at the time of the assault, Adams was under a court order stemming from a domestic incident in February 2000 to have no contact with Davis. Therefore, the record supports the postconviction court’s conclusion that Davis’s reference to the order as an “OFP” was a de minimis misstatement and an accurate description of the outstanding court order would not have produced a more favorable result at trial.
In the “Table of Contents” and “Issues Presented” sections of his brief, Adams raises the issue of whether the upward durational departure in his sentence was supported by substantial and compelling circumstances. We decline to address this issue for two reasons: First, Adams mentions this issue only in passing in the argument section of his brief. Issues not adequately argued in an appellant’s brief are deemed waived on appeal. In re Application of Olson for Payment of Services, 648 N.W.2d 226, 228 (Minn. 2002) (holding that issue was deemed waived where it was mentioned only in one heading and one footnote of the argument section of appellant’s brief). Second, “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). Because the sentencing issue was raised and addressed on Adams’s direct appeal to this court, we will not reconsider it.