This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






DeMario James Drummond, petitioner,





State of Minnesota,



Filed January 17, 2006


Shumaker, Judge


Ramsey County District Court

File No. K3-96-4036



DeMario James Drummond, #192295, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)


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


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.

On 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 (Minn. App. Oct. 5, 2004).

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.”


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 (Minn. 1998).  But he may do so if withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Alanis, 583 N.W.2d at 577.  A manifest injustice exists when a defendant can show that his plea of guilty was not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  The petitioner bears the burden of establishing facts that, if proved by a fair preponderance of the evidence at an evidentiary hearing, would warrant the reopening of the case.  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).

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.’”  Id.(citing Minn. Stat. § 590.04, subd. 1); see State v. Harding, 260 Minn. 464, 473, 110 N.W.2d 463, 468-69 (1961) (affirming the denial of defendant’s request to withdraw his guilty plea when his statements conclusively established his participation in the crime and the defendant offered nothing to support his claim of innocence).

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.  See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

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 St. Paul.  He describes an argument between Zachary and the short guy and states that the short guy shot Zachary.  He then indicates that he heard more shots but did not know who the shooter was and that he found Green at the top of some stairs.  She had been shot in the leg.  He states that everyone decided to blame Drummond for the shootings because they were frightened of the short guy.

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 death.  Minn. Stat. § 609.222 subd. 1 (2004).

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.

            This court considered the issue of ineffective trial counsel in Drummond’s first appeal.  Drummond v. State, No. A03-1024, 2004 WL 771757, at *3 (Minn. App. April 13, 2004), review denied (Minn. June 29, 2004).  When a claim of ineffective assistance of trial counsel has no merit, an appellant may not base a claim of ineffectiveness of appellate counsel on the failure to raise a meritless claim.  Sutherin v. State, 574 N.W.2d 428, 435 (Minn. 1998).

            The 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, 309 Minn. at 252, 243 N.W.2d at 741.