This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Lovell N. Oates, petitioner,
State of Minnesota,
Hennepin County District Court
File No. 9812470
Lovell N. Oates, MCF-Stillwater,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.
Appellant challenges the district court’s second denial of postconviction relief for his convictions of second-degree murder and second-degree assault. Appellant argues that (1) he could not be convicted of second-degree murder because the charge was not contained in the indictment; (2) the statutes he was convicted of violating are void because they have no titles or enacting clauses; and (3) both the trial judge and the postconviction judge exhibited bias, demonstrated in part because of the delay in issuing the postconviction order. Appellant also challenges his sentence, arguing that (1) separate sentences were erroneously imposed because the assaults were part of the same behavioral incident and (2) his sentence was imposed in violation of the Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). We affirm.
Following a 1998 shooting at a nightclub in Minneapolis, a grand jury indicted appellant Lovell Oates on charges of first-degree murder, attempted first-degree murder, and four counts of second-degree assault. During the incident, Oates pulled a gun on Ricky Fuller, the intended victim. As Fuller and a nightclub employee struggled to retrieve the gun from Oates, Ragan Durrenberger was shot and killed, and Justin Vasser and Diamond Porter suffered gunshot wounds.
Following a jury trial, Oates was convicted of one count of second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (1998), and four counts of second-degree assault, in violation of Minn. Stat. § 609.222, subd. 2 (1998). The district court imposed the presumptive guidelines sentence of 306 months’ imprisonment for second-degree murder. The district court also imposed presumptive sentences of 36 months’ imprisonment for each count of second-degree assault and ordered Oates to serve two of these sentences concurrently and the remaining two consecutively.
We affirmed Oates’s conviction on
direct appeal, holding that any errors in the jury instructions were harmless
and that the evidence was sufficient to support the conviction. State
v. Oates, 611 N.W.2d 580, 584-87 (Minn. App. 2000), review denied (
Oates filed his first petition for
postconviction relief in 2002, arguing that (1) he was denied effective
assistance of trial and appellate counsel; (2) the prosecutor committed
misconduct at trial; and (3) the district court failed to inquire into his counsel’s
prior representation of two Spreigl
witnesses. The district court denied the
petition without an evidentiary hearing, and we affirmed the first
postconviction ruling. Oates v. State, No. C7-02-2269, 2003 WL
21911197, at *2-*3 (
In 2004, Oates filed his second petition for postconviction relief, arguing in relevant part that (1) he was erroneously convicted of second-degree murder because the charge was not contained in the indictment; (2) the district court lacked subject-matter jurisdiction; and (3) the statutes under which he was convicted were void because they lacked titles and enacting clauses. In its order dated August 24, 2004, the district court denied the second petition because the issues were known when Oates filed both his direct appeal and his first postconviction petition.
In a supplemental petition, which the district court construed as a third petition for postconviction relief, Oates raised several challenges to his sentence. After Oates filed a notice of appeal from the August 2004 order, the district court denied relief on Oates’s sentencing claims contained in the supplemental petition.
We review the postconviction court’s findings
for clear error and its conclusions of law de novo. Dukes
v. State, 621 N.W.2d 246, 251 (
A district court 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 (2004). Once a petitioner takes a direct appeal of a
conviction, “all matters raised therein, and all claims known but not raised,
will not be considered upon a subsequent petition for postconviction
relief.” Gassler v. State, 590
N.W.2d 769, 771 (
Oates could have raised the following arguments in his direct
appeal: (1) the second-degree-murder conviction was erroneous
because it was not included in the indictment; (2) the statutes under which he was convicted were void for
lack of titles and enacting clauses; and (3) the district court judge
exhibited bias by committing errors at trial.
Accordingly, postconviction relief was properly denied on these
claims. See Zenanko v. State, 587 N.W.2d 642, 644 (
On direct appeal, we expressly rejected Oates’s
claim that separate sentences were erroneously imposed because the
assault counts were part of the same behavioral incident. See
Oates, 611 N.W.2d at 587 (holding that 378-month aggregate sentence did not
violate the prohibition against multiple punishments). Because this issue was previously raised and
decided, Oates is barred from relitigating the issue in a subsequent petition
for postconviction relief. Minn. Stat. §
590.04, subd. 3; Taylor v. State, 691
N.W.2d 78, 79 (
Two of Oates’s arguments are properly before us because they could not have been raised on direct appeal or in his first petition for postconviction relief. We review these arguments on the merits.
maintains that the postconviction judge exhibited bias by failing to issue its order in a timely
manner. Due process entitles a criminal
defendant to an impartial and disinterested tribunal. McKenzie v. State, 583 N.W.2d 744, 747
As to the timely issuance of
postconviction orders, Minn. Stat. § 590.04
(2004) provides that “the court shall promptly. . . determine the issues, [and]
make findings of fact and conclusions of law with respect thereto.”
Oates offers no proof that a failure to issue the postconviction order promptly affected the merit of his claims or the outcome of his postconviction appeal. The record establishes that, although the postconviction decision was issued five months after the state’s response to the petition, the postconviction order addressed each of Oates’s arguments in a legally correct manner. In doing so, the order reached the merits of several arguments when such thorough review and analysis were not legally required. Because Oates has not demonstrated any prejudice from the delay in issuing the postconviction order, his claim of judicial bias fails.
next argues that the sentence imposed violated his Sixth Amendment right to a
jury trial under Blakely v.
sentencing of multiple felonies with multiple victims is permissive and within
the broad discretion of the [district] court.”
to his argument, Oates did not receive an upward durational departure. For the second-degree murder offense, the
district court imposed the presumptive guidelines sentence of 306 months’
the district court ordered Oates to serve two of the 36-month sentences
consecutively was not an upward departure because the consecutive sentences
Accordingly, Oates’s challenge to the district court’s denial of postconviction relief fails.
 A detailed account of the facts leading to Oates’s
conviction is set forth in State v. Oates,
611 N.W.2d 580, 582-84 (Minn. App. 2000), review
 Oates did not raise this issue in his second petition for postconviction relief. Rather, he advances this argument in the supplemental petition. The district court summarily denied the relief requested in the supplemental petition in its order dated November 14, 2004. By that time, Oates had filed a notice of appeal from the August 24, 2004 order. Because Oates has not appealed from the November 14 order, this issue is not properly before us. See Minn. R. Civ. App. P. 103.04 (stating that “appellate courts may reverse, affirm or modify the judgment or order appealed from” (emphasis added)). But in the absence of any prejudice to the state, we review Oates’s argument in the interest of justice. See id. (stating that we may review “any other matter as the interest of justice may require”).
 Like Oates’s multiple-sentencing argument, the district court rejected the Blakely challenge in its November 14, 2004 order, from which Oates did not appeal. We also review this issue in the interest of justice.
To the extent that Oates also challenges his sentence under Apprendi v.