This opinion will be unpublished and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
David Kenneth Christian, petitioner,
State of Minnesota,
Filed October 5, 2004
Mower County District Court
File No. K4-00-1117
David K. Christian, MCF-Oak Park Heights, OID #157214, 5329 Osgood Avenue North, Stillwater, MN 55082-1117 (pro se appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick Flanagan, Mower County Attorney, Mower County Courthouse, 201 First Street NE, Austin, MN 55912 (for respondent)
Considered and decided by Randall, 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
Appellant was convicted of and sentenced for two counts of aiding and abetting second-degree murder and one count of first-degree assault. On direct appeal, this court affirmed the convictions and his sentences. Appellant challenges the postconviction court’s order denying his petition for relief, arguing that he is entitled to an evidentiary hearing on his claims that he received ineffective assistance of trial and appellate counsel. We affirm.
On June 30, 2000, appellant David Kenneth Christian and three accomplices murdered two men and assaulted another while robbing them at a motel in Austin. Following a jury trial in May and June 2001, Christian was convicted of two counts of aiding and abetting second-degree murder and one count of first-degree assault. He was sentenced to three consecutive prison terms totaling 493 months. This court affirmed the convictions and sentences in State v. Christian, No. C5-01-1840 (Minn. App. Oct. 29, 2002), review denied (Minn. Dec. 30, 2002).
In November 2003, Christian filed a petition for postconviction relief, seeking vacation of his convictions and a new trial. He claimed that his trial counsel’s assistance was ineffective because (1) counsel failed to communicate to the state that Christian wanted to propose a plea agreement calling for a 20-year prison sentence in exchange for his testimony and (2) counsel failed to ask certain questions during cross-examination of one of the state’s witnesses. Christian also claimed that his appellate counsel’s assistance was ineffective because, against Christian’s wishes and instructions, counsel did not base his appellate arguments on federal law and the United States Constitution. The postconviction court denied Christian’s petition without an evidentiary hearing. This pro se appeal follows.
D E C I S I O N
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. Woodruff v. State, 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).
Once a petitioner has directly appealed a conviction, all matters raised in that appeal and all matters that were known but not raised “will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). There are two exceptions to this rule: first, a postconviction court may consider a claim that was previously known but not raised if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Second, even if the claim was known at the time of direct appeal and its legal basis was reasonably available, we still allow substantive review of the claim when fairness so requires and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Id.
Christian first argues that his trial counsel provided ineffective assistance by failing to obey Christian’s instruction to communicate to the state a plea proposal of 20 years in prison in exchange for Christian’s testimony against his codefendants. To prove ineffective assistance of trial counsel, Christian 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)) (citation omitted). Although this claim was known at the time of Christian’s direct appeal, the postconviction court determined that it was novel enough that it was not barred by Knaffla and, therefore, granted review. The postconviction court concluded that Christian’s claim failed because he was unable to prove that, but for the alleged error, the results of the proceeding would have been different.
The record shows that during trial, Christian proposed a 10-year sentence in exchange for his testimony against his codefendants, and the state rejected the offer. The state continued to attempt plea negotiations during the trial, but Christian would not agree to a sentence longer than 10 years. At sentencing, the state told the court that if Christian had proposed a sentence longer than 10 years, the state would have “entertained” the proposal. The record does not show whether Christian, as he claims, instructed his trial counsel to propose a 20-year sentence in exchange for his testimony or if his counsel failed to communicate such an offer to the state.
The postconviction court assumed, arguendo, that Christian did propose such an agreement and that his counsel failed to communicate it. The court noted that to show that counsel’s alleged error would have affected the outcome of the trial, Christian would have to show (1) that a plea agreement would have been reached, (2) that the court would have accepted the plea agreement, and (3) that Christian would have honored the plea agreement by testifying truthfully against the codefendants, one of whom was his brother. The postconviction court concluded that Christian could not establish any of these suppositions because doing so would require “pure speculation” and that, therefore, Christian was unable to establish that the outcome of the trial would have been affected by counsel’s alleged error and an evidentiary hearing was not warranted.
Christian argues that the outcome would have been different if his counsel had proposed the 20-year sentence because he “would not have gone to trial and . . . [been] found guilty.” But Christian’s contention assumes that the state would have accepted a proposed plea agreement requiring him to receive a 20-year sentence. At the sentencing hearing, the state said only that it would have “entertained” a proposal with a prison sentence of more than 10 years, not that it would have accepted the proposal. A prosecutor has no duty to engage in plea negotiations or to reach a plea agreement. State v. Andrews, 282 Minn. 386, 391 n.4, 165 N.W.2d 528, 532 n.4 (1969). Additionally, the postconviction court judge, who also presided at the trial, stated in the order denying Christian’s petition that he would not have accepted a plea agreement that required Christian to be sentenced to only 20 years in prison.
The record supports the postconviction court’s conclusion that Christian had not, and could not, show that his trial counsel’s alleged error affected the outcome of the proceedings. The postconviction court did not abuse its discretion by denying Christian relief on this claim without an evidentiary hearing.
Christian next claims that his trial counsel provided ineffective assistance by failing to question St. Paul Police Sergeant Patricia Englund about what she had been told by two of the state’s witnesses, Natasha Munos and Tanisha Patterson. Christian claims that such questioning would have rebutted the testimony of state’s witness Janea Wienand that Christian knew of the robbery plan before driving his accomplices to the victims’ motel room. The postconviction court declined to address this claim, concluding that it was barred by Knaffla.
This claim was known at the time of Christian’s direct appeal and is not so novel that it was not reasonably available at the time of the direct appeal. Further, Christian has not shown why the fairness exception to the Knaffla rule should apply. Therefore, the district court did abuse its discretion by declining to address the claim. See Sanders v. State, 628 N.W.2d 597, 601-02 (Minn. 2001) (holding that postconviction court did not abuse its discretion by denying postconviction relief without an evidentiary hearing where the appellant’s claim of ineffective assistance of counsel was known but not raised on direct appeal and the defendant had not shown why the fairness exception to Knaffla would apply); Flournoy v. State, 583 N.W.2d 564, 569-70 (Minn. 1998) (holding that Knaffla rule precluded review in a postconviction proceeding of ineffective-assistance-of-counsel claim that was known but not raised at time of direct appeal).
Additionally, what evidence to present is a matter of trial strategy that is 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, Christian would be unable to establish that he received ineffective assistance of counsel when his counsel failed to examine Sergeant Englund about her discussions with Munos and Patterson. The postconviction court did not abuse its discretion by denying Christian relief on this claim without an evidentiary hearing.
Christian argues that his appellate counsel provided ineffective assistance by disregarding Christian’s alleged instruction that counsel base his appellate arguments on violations of federal law and the United States Constitution. The postconviction court declined to review this claim, concluding that Christian was attempting to reargue claims that had been raised on direct appeal and that, therefore, review of the issues was barred by Knaffla. The state argues that the postconviction court did not abuse its discretion by declining to review this claim because, even if his appellate counsel disregarded his instructions and based the issues raised on direct appeal on Minnesota law, Christian was still free to raise the federal issues in his pro se brief on direct appeal. But in his petition for postconviction relief, Christian claims that he submitted his pro se brief to his counsel before seeing counsel’s brief and that he therefore did not have the opportunity to review counsel’s brief before it was submitted. Christian claims that because he did not know when briefs were submitted in his direct appeal that his counsel had disregarded his request, the fairness exception to Knaffla applies.
Even if Christian did not know that his appellate counsel had disregarded his claimed instruction, the record shows that Christian failed to allege facts that, if proved, would entitle him to relief. Thus, we conclude that the postconviction court did not abuse its discretion by denying the requested relief.
To be entitled to an evidentiary hearing on a claim of ineffective assistance of appellate counsel, a petitioner must allege facts that, if proved, would affirmatively show that his counsel’s representation fell below an objective standard of reasonableness and that the petitioner was prejudiced as a result. Ives v. State, 655 N.W.2d 633, 637 (Minn. 2003); Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998). When reviewing a claim of ineffective assistance of appellate counsel, we determine “whether the representation and the assistance were reasonable in the light of all of the circumstances . . . [and] [t]here is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.” Wilson, 582 N.W.2d at 885 (quotations and citation omitted).
Here, Christian’s appeal was from convictions in a Minnesota state court for violations of Minnesota statutes. It was reasonable for appellate counsel to base his arguments on Minnesota law rather than on federal law. Therefore, appellate counsel’s representation did not fall below an objective standard of reasonableness.
Further, Christian has failed to show that he was prejudiced by his appellate counsel’s failure to base his arguments on federal law and the United States Constitution. The petitioner’s burden of proof with respect to prejudice is to establish a “reasonable probability” that, but for appellate counsel’s alleged error, the direct appeal would have had a different outcome. Ives,655 N.W.2d at 637. Here, Christian only states that this court “might have ruled differently” had counsel based its arguments on federal law. This is insufficient to meet his burden.
Because the record supports the conclusion that Christian’s claims of ineffective assistance of trial and appellate counsel are without merit, the postconviction court did not abuse its discretion by denying Christian’s petition for postconviction relief without an evidentiary hearing.
 The one codefendant who did testify against the others as part of a plea agreement received a sentence of more than 30 years.