This opinion will be unpublished and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
Tony Orlando Smith, petitioner,
State of Minnesota,
Filed August 31, 2004
Ramsey County District Court
File No. K8-01-2797
Tony Orlando Smith, OID # 175769, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying postconviction relief, appellant argues that the postconviction court abused its discretion by denying, without an evidentiary hearing, his petition for a new trial on the grounds of newly discovered evidence and ineffective assistance of both trial and appellate counsel. Appellant also argues that the upward durational departure in his sentence was unlawful. Appellant subsequently moved to amend his brief to add a claim that his sentence violates a recent Supreme Court opinion. We grant the motion, and affirm in part and remand in part.
On August 5, 2001, St. Paul police responded to a 911 call reporting that a man with a gun was threatening the residents of a St. Paul home. When the police arrived, they surrounded the house, announced their presence, and ordered all occupants out of the house. After approximately 15 minutes, appellant Tony Orlando Smith came out and was taken into custody.
While the police waited for a search warrant, one of the residents of the house, Angel Buechner, returned home; Buechner consented to a search. Buechner told the police that earlier in the evening she and Smith had argued and that Smith went to the house’s porch and came back with a handgun. Buechner told police that Smith went to her bedroom where her children were sleeping, sat down on the bed, and started manipulating the gun as if preparing to fire it. During a search of the home, the police found a .22 handgun and a box of ammunition.
On August 6, 2001, Smith was charged with possession of a firearm by a prohibited person, in violation of Minn. Stat. §§ 624.713, subd. 1(b), 609.11, subd. 5(b) (2002). The district court issued an order prohibiting Smith from having any contact with Buechner.
Smith’s trial before a jury began on October 8, 2001. Buechner testified that (1) she argued with Smith, and he went to the porch and returned with a gun; (2) Smith then entered her bedroom, where two of her sons were sleeping; (3) when Smith left the bedroom, he stood in the doorway and showed the gun to her; (4) Smith called her twice the night before she was to testify and told her to tell D.H., Buechner’s 10-year-old son, to testify that the gun was not Smith’s and that Smith had not touched the gun; (5) Smith told Buechner how she should answer questions at trial and that he would signal her whether an answer should be yes or no; and (6) after talking with Smith, Buechner told D.H. to testify that Buechner, not Smith, had the gun that night because she did not want to get Smith into trouble.
D.H. testified that (1) Smith and his mother had been out on a date and that they were arguing when they returned; (2) Smith went to the porch and returned with a gun in his hand; and (3) Smith went into Buechner’s bedroom where Buechner’s other two sons were sleeping, sat on the bed, played with the gun, and then put a bullet in the gun.
Smith denied that he possessed a gun on August 5, that he called Buechner the night before she testified, or that he told Buechner how to testify.
The jury found Smith guilty, and the district court sentenced him to 84 months in prison, an upward departure from the presumptive 60-month sentence. Smith appealed his conviction and the sentence, and this court affirmed. State v. Smith, No. C4-02-348, 2003 WL 1491508 (Minn. App. Mar. 25, 2003), review denied (Minn. June 17, 2003). Smith filed a pro se petition for postconviction relief, which the district court denied without an evidentiary hearing. This pro seappeal follows.
We review a postconviction court’s findings to determine if they are sufficiently supported by record evidence. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). We give great deference to a district court’s findings of fact and will reverse the findings only if they are clearly erroneous. Id. In general, we will not disturb the postconviction court’s decision unless the court abused its discretion. Id.
An evidentiary hearing is not required unless the petitioner alleges facts that, if proved by a preponderance of the evidence, would entitle him to the relief requested. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995). The postconviction court is not required to hold an evidentiary hearing unless there are material facts at issue that must be resolved to determine the merits of the claim. King v. State, 562 N.W.2d 791, 794 (Minn. 1997).
Smith argues next that the postconviction court abused its discretion by denying, without an evidentiary hearing, his claim that he was entitled to a new trial because of ineffective trial counsel. To establish a claim of ineffective assistance of counsel, a criminal defendant must demonstrate 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.” 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)). “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).
Smith bases his claim on his trial counsel’s failure to impeach Buechner’s testimony with the August 2001 statements signed by her and by Fennell. The postconviction court ruled that Smith was procedurally barred from raising this issue but nevertheless determined that Smith’s claim of ineffective counsel failed because Smith did not establish that his attorney’s performance fell below an objective range of professional assistance and that Smith was prejudiced as a result of any deficient performance. Because (1) the record shows that there was a discussion between Smith and his counsel regarding the question of raising at trial Buechner’s 2001 recantation of her report to the police; (2) the record shows that Smith’s counsel made the decision not to raise the recantation with Smith’s knowledge and consent; and (3) Fennell recanted his recantation the day after signing it, it appears that counsel made a tactical decision not to raise the recantations, and we do not review such decisions. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). The postconviction court did not, therefore, abuse its discretion by rejecting Smith’s claim that he is entitled to a new trial because of the ineffective assistance of trial counsel.
Smith also argues that the postconviction court violated his right to due process by denying, without an evidentiary hearing, his claim of ineffective assistance of appellate counsel, thus entitling him to relief. The postconviction court rejected Smith’s argument, finding that Smith “wholly failed to support this claim.”
In his brief to this court, Smith argues that his appellate counsel failed to review the trial record and asserts that, if counsel had done so, he would have discovered that Smith had received ineffective assistance of trial counsel and that Smith’s conviction was based on perjured testimony. Because these arguments were not raised in the postconviction court, Smith has waived them on appeal. State v. Kremer,307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976) (holding that generally this court will not consider arguments made for the first time on appeal).
Smith was sentenced to 84 months, an upward departure from the presumptive 60-month sentence. In his petition for postconviction relief, Smith argued that the sentence is unlawful under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). The postconviction court ruled that, because Smith challenged his sentence in his direct appeal, this claim was barred under Knaffla.
Smith has filed a motion to amend his brief to add a claim that his sentence violates the recently released United States Supreme Court opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), which holds that an upward departure under Washington’s determinate sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. There is not time for full briefing on this issue, and appellate courts are reluctant to address even constitutional issues for the first time on appeal. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). We conclude, however, that the Blakely issue is one whose legal basis was not reasonably available at the time of direct appeal and that it should be addressed in this postconviction proceeding. See Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Smith’s motion to amend his brief is granted. We conclude that this claim is not barred under Knaffla, and we remand to the district court for consideration of the application, if any, of Blakely to Smith’s sentence.
Affirmed in part and remanded in part; motion granted.
 Because there was no “resentencing” and Smith was not represented by counsel in the postconviction proceeding, we assume that, by referring to “postconviction counsel at resentencing,” Smith intends to refer to his counsel in his direct appeal. Smith does not state what the relief should be, instead requesting that this court grant whatever relief “this Court may deem appropriate.”