This opinion will be unpublished and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
DeMario James Drummond, petitioner,
Ramsey County District Court
File No. K3-96-4036
DeMario James Drummond,
Mike Hatch Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Worke, 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 request for an evidentiary hearing on his second petition for postconviction relief, contending that newly discovered evidence entitled him to a hearing and to withdraw his plea of guilty. Because the court did not err in denying an evidentiary hearing and postconviction relief, we affirm.
In 1997, appellant DeMario James Drummond pleaded guilty to two counts of second-degree assault and one count of possession of a firearm by an ineligible person.
In his pro se brief on appeal, Drummond summarizes the factual basis for his plea:
In submitting a factual foundation for the plea, [appellant] admitted on December 9, 1996, he illegally possessed a handgun near 6th and Cedar Street in St. Paul . . . ; that he fired the gun at least three times into the ground . . . ; and that he intended to cause fear in the people who were there of being hurt badly or killed . . . . Additionally, he agreed that Zachary Kloeppel and Tocolie Green were both in fear of being shot or killed by his actions.
The district court sentenced Drummond in accordance with a plea agreement to executed concurrent sentences of 18, 36, and 45 months.
January 21, 2003, after serving his sentence, Drummond sought to withdraw his
plea through a petition for postconviction relief, arguing that the police had
improperly induced Zachary Kloeppel to identify Drummond as his assailant and
that his defense attorney had been ineffective.
The district court denied the petition without an evidentiary hearing,
and this court affirmed that ruling. Drummond v. State, No. A04-230 (
On December 17, 2004, Drummond filed a second petition for postconviction relief seeking to withdraw his plea. In this petition he claimed that newly discovered evidence revealed that an eyewitness to the shootings of Kloeppel and Green had lied when he identified Drummond as the shooter. He also alleged ineffective assistance of appellate counsel.
The district court denied the petition without an evidentiary hearing. Drummond appealed.
In support of his petition, Drummond offered an affidavit of Thaddeus Johnson, an alleged eyewitness to the December 9 incident in which Kloeppel and Green were shot. Johnson states that a “short guy” shot Kloeppel, and possibly Green. But, because he feared the “short guy,” Johnson and others told the police that Drummond was the shooter.
Although Drummond steadfastly denies that he actually shot Kloeppel and Green, he does not deny that he fired a gun and that he intended to cause fear in others. In his “Reply Argument” he states: “The weapon [appellant] fired was not the weapon used to shoot Mr. Kloeppel.” And he indicates that “[e]ven though [appellant] has admitted he intended to cause fear by his actions, it is of no consequence.”
D E C I S I O N
In his petition for postconviction relief,
Drummond contends that he should be allowed to withdraw his plea of guilty so
as to correct a manifest injustice. A
criminal defendant has no absolute right to withdraw a plea of guilty. Alanis
v. State, 583 N.W.2d 573, 577 (
The district court denied Drummond’s second
petition without an evidentiary hearing.
No evidentiary hearing is necessary “if the petition, files, and record
‘conclusively show that the petitioner is entitled to no relief.’”
Newly Discovered Evidence
In this appeal, Drummond refers again to
Kloeppel’s indication that the police suggested to him that Drummond was the
shooter and to the ineffective assistance of his attorney. These are issues decided in Drummond’s appeal
from the denial of his first petition for postconviction relief and they cannot
be raised again.
As newly discovered evidence in this second
appeal, Drummond relies on the affidavit of Thaddeus Johnson. Johnson states that he encountered Drummond,
Zachary, Green, and a “short guy” in the skyway in downtown
Even assuming Johnson’s statement to be true,
it does not show that Drummond did not fire a handgun. Rather, it shows only that someone else
actually shot Kloeppel and possibly Green.
Drummond has denied shooting these victims but, even on appeal, he has
admitted firing a gun with the intention of causing fear in Kloeppel and Green
of great bodily harm or death. Johnson’s
affidavit does not negate Drummond’s admission.
And the assault crime to which Drummond pleaded guilty does not require
the infliction of injury, it being sufficient that he used a dangerous weapon
in a manner so as to intentionally cause another to fear great bodily harm or
Because Drummond has consistently admitted assaulting Kloeppel and Green from the time he entered his plea through this appeal, and because the alleged new evidence does not in any way negate Drummond’s admission, the district court did not err in denying an evidentiary hearing on the petition for postconviction relief and in determining that Drummond is not entitled to withdraw his plea.
Ineffective Assistance of Appellate Counsel
Drummond claims that his appellate attorney was ineffective because he failed to argue the ineffective assistance of trial counsel and because he failed to view a surveillance videotape of the scene of the shootings.
court considered the issue of ineffective trial counsel in Drummond’s first
appeal. Drummond v. State, No. A03-1024, 2004 WL 771757, at *3 (
surveillance videotape was part of the evidence available when Drummond entered
his plea. Because he did not raise the
issue of the tape in his first appeal, he is precluded from doing so now. See Knaffla,