This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Keith Jerome Coleman,



Filed February 14, 2006


Willis, Judge


Ramsey County District Court

File No. K5-03-4172


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Patrick J. Swift, Assistant County Attorneys, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)


John M. Stuart, State Public Defender,  Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Worke, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from his conviction of third-degree controlled-substance crime and denial of postconviction relief, appellant argues that his conviction violates his constitutional right to due process and equal protection of the law because the statutes defining third-degree and fourth-degree controlled-substance crime proscribe identical conduct, but third-degree controlled-substance crime carries a higher penalty.  Because appellant did not properly raise this issue in the trial court or the postconviction court and, therefore, failed to preserve this issue for appeal, we affirm.


            In November 2003, the state charged appellant Keith Jerome Coleman with third-degree controlled-substance crime for selling cocaine to an undercover police officer, in violation of Minn. Stat. § 152.023, subd. 1(1) (2002).  During the jury trial, Coleman’s defense counsel argued that Coleman had been entrapped and that the jury should find Coleman guilty only of the lesser included offense of fifth-degree controlled-substance crime for the possession of cocaine, in violation of Minn. Stat. § 152.025, subd. 2 (2002).  The jury found Coleman guilty of both third-degree and fifth-degree controlled-substance crime, and the trial court sentenced Coleman to 55 months in prison on the third-degree conviction. 

            In September 2004, Coleman filed a notice of appeal, and in February 2005, he filed a brief in which he challenged the sufficiency of the evidence to support his conviction.  This court then granted Coleman’s subsequent motion to stay his appeal pending postconviction proceedings.  Coleman argued in the postconviction court that he was denied effective assistance of trial counsel because his attorney failed to argue that due process and equal protection required vacation of his conviction of third-degree controlled-substance crime and imposition of a conviction of fourth-degree controlled-substance crime because the statutes proscribe identical conduct and require proof of identical elements, but third-degree controlled-substance crime carries a higher penalty.  In his reply memorandum in support of his petition, Coleman requested for the first time that the postconviction court address, in the interests of justice, the merits of his constitutional claim, which he conceded did “not fit nicely into an ‘ineffective assistance of counsel’ claim.”  In May 2005, the postconviction court issued an order in which it declined to review the merits of Coleman’s constitutional claim and denied his petition.

            In June 2005, this court granted Coleman’s motion to reinstate the appeal.  Coleman filed another brief in which he withdrew his challenge to the sufficiency of the evidence and argued instead that in the interests of justice this court should review his constitutional claim.


            The state argues that because Coleman did not raise his constitutional claim in the trial court and did not properly raise it during the postconviction proceedings, this court has no district court ruling on the issue to review and Coleman’s appeal must fail.  This court generally does not consider matters that were not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  But we may review constitutional issues raised for the first time on appeal “when the interests of justice require consideration of such issues, when the parties have had adequate time to brief such issues, and when such issues are implied” in the district court.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).

Coleman did not raise his claim in the trial court or in his petition for postconviction relief but, instead, first requested that the postconviction court consider his constitutional claim in his reply memorandum.  The state, therefore, had no opportunity to address the merits of Coleman’s claim.  Because Coleman’s claim was not properly raised in either the trial court or the postconviction court, we decline to review it on appeal.