This opinion will be unpublished and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
Scott Andrew Kohser,
State of Minnesota,
Hennepin County District Court
File No. 99119997
Scott Andrew Kohser,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, C-2000 Government
Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*
Appellant challenges the denial of his petition for postconviction relief. Because the district court did not abuse its discretion by denying the petition, we affirm.
After a mistrial was declared in appellant’s first trial on charges of burglary, theft, false imprisonment, and fleeing a police officer, appellant submitted to a bench trial on stipulated facts consisting of testimony and all but two exhibits admitted in the first trial. A public defender had represented appellant at the first trial, but appellant hired private counsel for the bench trial. Appellant was found guilty of burglary, theft, and fleeing a police officer, and was sentenced to 150 months in prison.
Represented by the same private
attorney, appellant filed a direct appeal arguing that the second trial violated
double jeopardy, and that the district court erred by permitting the victim’s
identification testimony and abused its discretion in sentencing. Appellant also submitted a supplemental pro se
brief asserting eighteen additional issues, including ineffective assistance of
counsel. This court affirmed the
conviction and sentence, finding no merit in appellant’s challenges, including the
issues raised in his pro se supplemental brief.
State v. Kohser, No. C7-00-1778,
2001 WL 969024 (
In January 2003, appellant filed a pro se petition for postconviction relief identifying fifty-six issues including evidentiary issues concerning trial exhibits, issues about chain-of-custody and testing-methods, sentencing under the career-offender statute, and ineffective assistance of trial and appellate counsel. On August 14, 2003, appellant wrote to the district court judge assigned to the petition, stating that he intended to represent himself and wanted to pursue “the ineffective assistance of counsel claim.” He contended that he “could not raise any issues concerning [his petition] claims as they were not yet fully developed and several only discovered after [he] received [his] case file back.” Appellant asked for a “reasonable extension” asserting “[t]here is an unsettled dispute as to documents/discovery notes that are missing from my file,” a dispute that he anticipated would be completed at the end of November 2003. No action was taken on the petition, and appellant wrote to the district court judge again in July 2004 asking for thirty days to amend his petition. The judge responded, noting that court records reflected that an appeal was filed on November 7, 2003, and stating that appellant could amend his petition to include only issues not on appeal.
Appellant did not amend his postconviction petition and instead began an inquiry into what pending appeal the district court referenced. In August 2004, thirty-one days after the judge’s correspondence to appellant, the district court summarily denied appellant’s petition for failure to establish “any new grounds upon which relief can be granted.” The district court noted that “if there is a pending [appeal], it is not proper for a post-conviction motion to be considered on any issues covered on appeal.”
Appellant moved for reconsideration or clarification of the postconviction court’s order, claiming that the postconviction court wrongly assessed the appeal filed on November 7, 2003, because that appeal was unrelated to his conviction. The postconviction court denied the motion, stating that “whether [the appeal] is criminal or civil . . . , there are no issues presented to this court which have established any new grounds upon which relief can be granted.” Appellant moved for reconsideration or clarification of this order, contending that his first motion was a motion to vacate. The postconviction court denied this motion, once more noting that no new grounds for relief had been raised. Appellant now appeals from the denial of his petition for postconviction relief.
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 (
I. Incorrect case history entry
Appellant first argues that the postconviction court abused its discretion by not allowing time to correct an error in the case history of his criminal case file. According to appellant, the case history incorrectly stated that an appeal was filed in this criminal case on November 7, 2003, because the appeal referred to was, in fact, filed by appellant’s former attorney regarding a civil dispute with appellant. Appellant contends that the postconviction court’s erroneous reference to this appeal “lulled [him] into inactivity of filing an amended petition.” Appellant’s argument that he was “lulled into inactivity” is unpersuasive. Appellant actively responded to information that there was a November 7, 2003 appeal in several ways, but failed to amend the pending petition for postconviction relief despite having been told he could do so with any issue not covered in the appeal.
A defendant is entitled to a new trial when the district
court “make[s] statements which could mislead a defendant about the appeal
process.” Hoagland v. State, 518 N.W.2d 531, 535 (
II. Denial of petition
The postconviction court denied appellant’s petition because appellant did not present new evidence which permitted relief. The postconviction court noted that the “issues presented here by petitioner have been previously raised on appeal or were known but not raised on direct appeal.” Appellant argues that the postconviction court abused its discretion because new evidence exists for relief and he intended to include that new evidence in an amended petition for postconviction relief.
A petitioner bears the burden of
proving, by a preponderance of the evidence, facts sufficient to reopen the
case. Hummel v. State, 617 N.W.2d 561, 564 (
Ineffective assistance of counsel
Appellant claims to have new evidence regarding ineffective assistance by his attorney at the bench trial and on appeal. He relies primarily on an admonition of the attorney by the Office of Lawyers Professional Responsibility and an allegation that the attorney lost notes taken by appellant and family members. But the admonition of the attorney is not material because it concerns audiotapes regarding other clients that the attorney’s office mistakenly sent to appellant. And appellant presents no factual support for his assertion that the attorney lost any notes pertaining to appellant’s case or that such notes are material to the discovery of new evidence or the outcome of his trial.
Appellant also claims that his attorney provided ineffective
assistance of counsel on appeal because the attorney was unaware of a 911
audiotape and a transcript of a police interview with the robbery victim. A “strong presumption” exists that an
attorney’s performance falls within an acceptable range of reasonable
professional assistance. Hale v. State, 566 N.W.2d 923, 927 (
The 911 audiotape, its transcript, and a transcript of the police interview with the robbery victim were all admitted as exhibits in the first trial and were part of the stipulated facts in the subsequent bench trial. The audiotape and transcripts were also part of the record submitted by appellant’s attorney on direct appeal, and the trial record was heavily cited by appellant’s attorney in a memorandum submitted to the district court supporting a motion for dismissal. The attorney also cited the 911 call in a separate memorandum to the district court. Appellant presents no factual evidence that the attorney did not review the audiotape and transcripts, or that he was otherwise unprepared.
Appellant also argues that his attorney was ineffective
because of his “over eagerness to focus solely on the double jeopardy issue
created by the mistrial.” But this is a
matter of strategy for which the attorney deserves deference. See
Case v. State, 364 N.W.2d 797, 800 (
Lastly, appellant argues that all of his “claims relating to
any ineffective assistance of counsel claim are therefore not barred.” Once a direct appeal is taken, any issue raised
and any claim known but not raised are not to be considered in a subsequent
petition for postconviction relief. Pederson v. State, 692 N.W.2d 452, 463 (
Trial judge’s comments
Appellant argues that he learned of prejudicial comments by the trial judge after his direct appeal and that he is not barred from bringing this claim in a postconviction petition. He cites two alleged comments by the trial judge: “you don’t fool me, Mr. Kohser” and “maybe there will be a miracle.” Appellant also cites comments made by his attorney regarding the judge’s alleged prejudice toward defendants of German background.
The alleged comments, however, all occurred before appellant’s direct appeal. In an affidavit, appellant states that the judge said “you don’t fool me, Mr. Kohser” at a pretrial proceeding. The fact that appellant claims the judge addressed him by name implies appellant was present when the comment was made and knew about this comment before his direct appeal. At the stipulated-fact trial, the trial judge asked appellant, “Why do you want to give up your jury trial now? Maybe there’ll be a miracle.” Appellant therefore also knew about this comment before direct appeal. Immediately after appellant’s sentencing, his attorney allegedly told appellant’s family members that the trial judge was prejudiced against Germans. This comment also clearly occurred before the direct appeal. Any postconviction-relief claim stemming from any of these allegedly prejudicial comments is barred by appellant’s failure to assert them on direct appeal.
Appellant argues that the postconviction court abused its discretion because the trial court referred to the two exhibits that were not part of the stipulated facts in the second trial. Appellant was present and knew of the trial court’s reference, but failed to raise the issue on direct appeal and is now barred from raising it in a petition for postconviction relief.
Lost legal mail
Appellant also argues that the postconviction court erred because the correctional facility lost his legal mail. Appellant cites as evidence a motion filed on his behalf by his attorney asking this court to give appellant more time to file a pro se brief on direct appeal. Other than complaining that the correctional facility did not deliver the state’s responding brief quickly enough, appellant fails to make any argument or assert any facts that the alleged lost legal mail will produce relevant, material, and newly discovered evidence on any issue that would have affected the outcome of his trial.
III. Evidentiary hearing
A postconviction court need not
conduct an evidentiary hearing if the petition, files, and record “conclusively
show that the petitioner is entitled to no relief.” Hummel,
617 N.W.2d at 564. If the petitioner’s
claims have been previously decided on direct appeal, the postconviction court
does not abuse its discretion by denying a hearing. Severson
v. State, 636 N.W.2d 808, 810 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant asserts that there are several errors on the district court’s case history and that the appeal referred to by the district court involved a civil matter not relevant to his criminal conviction.