This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Stephen Thomas Schouenborg, petitioner,





State of Minnesota,



Filed November 9, 2004


Halbrooks, Judge



Itasca County District Court

File No. K7-97-1934



Stephen Thomas Schouenborg, OID #201368, MCF – Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)


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


John J. Muhar, Itasca County Attorney, 123 Fourth Street Northeast, Grand Rapids, MN 55744  (for respondent)




            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s denial of his petition for postconviction relief from his 1999 conviction of second-degree murder.  Appellant argues that his petition was wrongfully denied because (1) his plea allocution to the murder charge did not state a factual basis for second-degree murder and (2) the district court did not state an adequate basis for its upward sentencing departure.  Pro se appellant also tangentially raises three additional grounds for postconviction relief: (1) ineffective assistance of counsel; (2) judgment procured by fraud; and (3) a Brady violation.  Because we conclude that the district court did not abuse its discretion in denying appellant’s petition for postconviction relief, we affirm. 


            In 1997, appellant Stephen Thomas Schouenborg was charged with first- and second-degree murder for the death of William Booth.  A grand jury subsequently indicted appellant of both crimes, as well as conspiracy charges.  A second complaint charged appellant with two additional offenses – felony murder and crime for the benefit of a gang.  Just before the scheduled trial, appellant pleaded guilty to the second-degree murder charge.  After being fully informed of his rights and confirming the adequacy of his legal representation by the public defender, appellant admitted that he “intentionally shot William Booth with a shotgun in Itasca County, Minnesota” and that “this shooting along with other acts caused the death of William Booth.”  Defense counsel then introduced the plea petition that he and appellant had prepared together.  Appellant acknowledged that he had read and understood the contents of the petition and that he had signed it freely and voluntarily.  The prosecutor highlighted the plea agreement’s upward sentencing departure, and appellant stated that he understood that such a recommendation was going to be made to the court.  After acknowledging that he had a learning disability and that he received disability benefits from the federal government, appellant affirmed that he fully understood the nature of the proceedings taking place.  The district court then accepted appellant’s guilty plea and pronounced him guilty of second-degree murder.

            In 1998, after acquiring new counsel, appellant sought to withdraw his guilty plea or, in the alternative, a mental-competency evaluation pursuant to Minn. R. Crim. P. 20.01.  Appellant’s motion to withdraw his guilty plea was denied, but his request for a mental-competency evaluation was granted.  The court did not allow withdrawal of the guilty plea because appellant “knowingly answered the questions required by Minn. R. Crim. P. 15.01 at the plea hearing . . . [and he] indicated a complete understanding of his rights and, on the record, knowingly, voluntarily, and intelligently waived those rights.”  The mental-competency evaluation was conducted, and the court found appellant to be competent. 

            At the time of appellant’s guilty plea, the state and appellant agreed on a sentence of 420 months, representing an upward departure from the presumptive 366-month sentence for second-degree murder.  Prior to sentencing, appellant admitted to taking “the ill advice of [his] attorney” and pleading guilty “just for the time.”  Appellant expressed his continued desire to withdraw his guilty plea, but in accordance with the court’s previously accepted guilty plea and denial of appellant’s motion to withdraw that plea, the court sentenced appellant to the agreed-upon 420 months.  The court set forth its reasons for the upward departure on the record.  When appellant purported to not understand the upward departure, the district court reminded appellant that he had previously acknowledged and accepted the departure at his guilty-plea hearing.

            Appellant has since challenged his conviction on a number of occasions.  After sentencing, appellant appealed to this court the district court’s decision to not permit withdrawal of his guilty plea.  We affirmed his conviction.  State v. Schouenborg, No. C2-99-739 (Minn. App. Dec. 7, 1999), review denied (Minn. Jan. 18, 2000).  After failing in the state-court system, appellant brought his grievances to federal court by filing a petition for a writ of habeas corpus, arguing inter alia, that he did not receive effective assistance of counsel before pleading guilty to second-degree murder.  After an exhaustive review, a federal magistrate determined that appellant made a knowing and voluntary guilty plea and that his attorney’s conduct did not fall below an objective standard of reasonableness.  Schouenborg v. State, Civ. File No. 00-2800 (D. Minn. Feb. 4, 2002).  The magistrate’s recommendation was accepted by the federal district court, and appellant’s petition was dismissed.  Schouenborg v. State, Civ. File No. 00-2800 (D. Minn. Aug. 20, 2002). 

Appellant filed a petition for postconviction relief with the state district court, arguing that (1) he was denied the right to effective assistance of counsel; (2) the district court did not state a basis for its upward durational departure in sentencing; and (3) his plea allocution to the murder charge did not state a factual basis for second-degree murder.  A hearing was held where appellant appeared pro se.  The district court denied appellant’s petition in its entirety.  This appeal follows. 


            While the State of Minnesota did not file a responsive brief, we nevertheless determine this appeal on its merits.  See Minn. R. Civ. App. P. 142.03.  Petitions for postconviction relief are collateral attacks on judgments that carry presumptions of regularity and, therefore, cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  This court will not disturb the decision of a postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Our scope of review is limited to determining whether there is sufficient evidence in the record to support the findings of the postconviction court.  Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).  In addition, “[w]here a direct appeal has already been taken, ‘all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief.’”  Severson v. State, 636 N.W.2d 808, 810 (Minn. 2001).  But “an issue is not barred from a petition for postconviction relief if either the claim is so novel that the legal basis was not available on direct appeal, or the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal and fairness requires its consideration.”  Id.

I.          Factual Basis for Guilty Plea

            A plea is inaccurate if the court fails to establish an adequate factual basis.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  Typically, an adequate factual basis is established by questioning the defendant and asking the defendant to explain the circumstances surrounding the crime.  Id.; see also Kaiser v. State, 621 N.W.2d 49, 55 (Minn. App. 2001) (finding an adequate factual basis where appellant made certain admissions surrounding the crime charged).  An adequate factual basis requires “sufficient facts on the record to support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty.”  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted). 

            Appellant argues that his plea was inaccurate because a sufficient factual basis was not established during the plea hearing.  He appears to question the true cause of death of the victim and whether his actions, specifically, caused the victim’s death.  Appellant maintains that a guilty plea requires “the disclosure on the record of specific facts that would establish the elements of the crime to which the defendant is pleading guilty.”

            A defendant is guilty of second-degree murder if that defendant “causes the death of a human being with intent to effect the death of that person or another, but without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (1996).  Here, the appellant clearly and unambiguously admitted at his plea hearing that he intentionally shot William Booth with a shotgun, thereby causing Booth’s death.  The record sufficiently reflects that appellant admitted the elements of second-degree murder that provide a factual basis for his guilty plea. 

            Further, in reviewing the district court’s denial of appellant’s request to withdraw his guilty plea to second-degree murder, this court previously found appellant’s guilty plea to be adequate.  State v. Schouenborg, No. C2-99-739 (Minn. App. Dec. 7, 1999), review denied (Minn. Jan. 18, 2000).  While the issue on this appeal (whether an adequate factual basis exists for the guilty plea) is slightly different from appellant’s argument on his first appeal (whether he knowingly and voluntarily entered the plea), the validity of the guilty plea has been previously established by this court and is not susceptible to reexamination or relitigation.  See Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391 (1983) (explaining that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”).

II.        Upward Durational Departure

The decision to depart from sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Bendzula, 675 N.W.2d 920, 921 (Minn. App. 2004).  Furthermore, the record need only contain valid and sufficient reasons to support departure.  State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002).

Appellant argues that he did not fully understand the details of his plea bargain and the fact that his sentence would be subject to an upward departure, as determined by the plea bargain.  In addition, he claims that a recent decision of the supreme court, State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), governs his case.  Finally, in a supplemental filing with this court, appellant cites Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), in an effort to challenge his sentence. 

At the plea hearing, appellant’s counsel recognized that “we are aware it’s an upward departure from the guidelines and we have agreed to that as a part of the plea agreement in order to have the first degree murder charge dismissed.”  In response, the district court specifically asked appellant if he understood the last statements made about his sentence being an upward departure, to which appellant responded in the affirmative.  Some months later at the sentencing hearing, the district court carefully articulated its reasons for the upward departure.  After appellant asserted that he did not fully understand the upward departure, the court reminded appellant that he previously acknowledged and agreed to the upward departure at his plea of guilty.  As the district court correctly concluded, appellant was “not entitled to post-conviction relief on this ground because a sufficient basis was stated for the upward durational departure to [appellant’s] sentence.” 

Appellant’s reliance on the Misquadace decision is misplaced.  Misquadace held that a sentencing court cannot rely on the parties’ plea agreement as the sole reason for a departure from a presumptive guideline sentence and that all departures “must be supported by substantial and compelling circumstances.”  644 N.W.2d at 71, 72.  First, as the district court here correctly explained, the decision is inapplicable since it applies only “to pending and future cases” and the appellant did not have a direct appeal pending on May 9, 2002, when Misquadace was filed.  See id. at 72 (explaining the prospective application of the decision and that “retroactive application is not required”).  Second, in Misquadace, “the district court departed from the guidelines sentence ‘pursuant to the plea agreement’ without stating any other reason for the departures.”  Id. at 66.  Even if the case were applicable, it would have no effect here because the district court articulated several compelling reasons for the upward departure.

Finally, the United States Supreme Court recently issued its opinion in Blakely that an upward departure under Washington state’s determinate sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial.  124 S. Ct. at 2531.  Appellant has cited Blakely in a supplemental filing to this court, but the application of that opinion has not been adequately briefed.  See Minn. R. Civ. App. P. 128.05 (allowing citation of supplemental legal authority without argument).  Moreover, even if the issue had been adequately briefed, appellant has not shown that Blakely would apply retroactively on collateral review of his conviction.  Absent any authority that Blakely applies to appellant’s sentence, we decline to address this issue.  See Meemken v. State, 662 N.W.2d 146, 150 (Minn. App. 2003) (holding that the related Apprendi decision does not apply retroactively on collateral review, including review of petitions for postconviction relief).   

III.       Other Issues

While appellant refers to an ineffective-assistance-of-counsel claim in his notice of appeal, he did not brief the issue.  Issues not briefed on appeal are deemed waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997); see also Scruggs v. State,484 N.W.2d 21, 24 n.1 (Minn. 1992) (observing pro se appellant’s failure to address certain claims in his brief as constituting a waiver of those claims).  Even if appellant had properly briefed the ineffective-assistance-of-counsel claim, it is clear from the district court record that appellant has failed to meet the burden of proof necessary to support such a claim.  It is well-settled that

[t]he defendant 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 district court found that appellant’s attorney did not fall below an objective standard of reasonableness.  In addition, the district court found that even if appellant’s attorney had committed an error, appellant failed to prove that, but for the mistake, the result of the proceeding would have been different.  We conclude that the district court did not abuse its discretion in finding that appellant had not established an ineffective-assistance-of-counsel claim.

            Appellant raises other extraneous issues in his brief, including a claim asserting judgment procured by fraud and a Brady violation.  While this court will generally not consider matters not argued and considered before the district court, we may deviate from this rule “when the interests of justice require consideration of such issues and doing so would not unfairly surprise a party to the appeal.”  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). 

Appellant claims “fraud” because the district court noted in its written order opinion that appellant did not “present any evidence” at his postconviction hearing.  Appellant misunderstands this phrase to mean that he did not offer any testimony or evidence at the hearing.  That is clearly not accurate, as appellant did offer oral argument and testimony at his hearing.  But the record accurately reflects, and the district court correctly noted, that he did not present any new evidence to the court. 

Finally, appellant attempts to raise a Brady violation based on “new” issues allegedly raised by the district court at the postconviction hearing.  But to demonstrate a Brady violation for newly discovered evidence, a defendant must show that (1) the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently; and (3) prejudice ensued.  Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999).  The record reveals no newly discovered evidence.  Moreover, pro se issues unsupported by argument or citation to legal authority in support of an allegation are deemed waived.  State v. Krosch, 642 N.W.2d 713, 719-20 (Minn. 2002). 


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.