This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-895

 

John Elliot Haider, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed February 7, 2006

Affirmed

Lansing, Judge

 

Ramsey County District Court

File No. K0-02-813

 

F. Clayton Tyler, Cortney Coates, 331 Second Avenue South, Suite 230, Minneapolis, MN 55401 (for 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 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102

 

††††††††††† Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

In this postconviction-relief proceeding, John Haider alleges that his 2002 sentence for second-degree attempted murder exceeds the statutory maximum, violates his constitutional rights by relying on judicially determined facts, and impermissibly departs from the sentencing guidelines as a result of ineffective assistance of appellate counsel in his direct appeal.† The district court granted partial relief, reducing Haiderís sentence from 250 months to the statutory maximum of 240 months.† Haider appeals the rejection of his claim that ineffective assistance of counsel requires a reduction to the guidelines sentence of 214.5 months.† Because the postconviction court did not abuse its discretion by denying additional relief, we affirm.

F A C T S

A jury found John Haider guilty of second-degree attempted murder, and the district court, in September 2002, sentenced him to 250 months in prison.† In departing upward from the presumptive guidelines sentence of 214.5 months, the district court found that the act was random and senseless and that the victim was particularly vulnerable, was treated with particular cruelty, and suffered severe and permanent injuries.

In a direct appeal, Haider challenged his conviction but not his sentence.† We affirmed his conviction in State v. Haider, C3-02-2124, 2003 WL 22388623 (Minn. App. Oct. 21, 2003), review denied (Minn. Dec. 23, 2003).† The supreme court denied Haiderís petition for review in December 2003, and Haider did not seek further review of his conviction.

Haider filed a postconviction petition in March 2005, seeking relief from his sentence.† The petition stated three bases for relief:† (1) the sentence exceeded the statutory maximum, (2) the sentence relied on judicially determined facts in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) and Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004), and (3) appellate counsel in the direct appeal was ineffective for failing to challenge the upward sentencing departure.† The state conceded that Minn. Stat. ß 609.17, subd. 4(2) (2002), limits a sentence for an attempt to one-half the maximum sentence for the completed crime, and that Haiderís maximum sentence for second-degree attempted murder was therefore 240 months.†

The district court concluded that the sentence exceeded the statutory maximum and, under Minn. R. Crim. P. 27.03, subd. 9, corrected the illegal sentence by reducing it from 250 months to 240 months.† But the district court denied Haiderís claim that his sentence, which was final before the U.S. Supreme Court issued Blakely, violated his constitutional rights.† The district court also denied Haiderís claim that his appellate counsel in his direct appeal provided ineffective assistance by failing to appeal the upward departure from the sentencing guidelines.† On appeal, Haider challenges only the postconviction courtís rejection of his claim that ineffective assistance of appellate counsel requires that his sentence be reduced to the guidelines sentence of 214.5 months.

D E C I S I O N

A claim of ineffective assistance of counsel raises a constitutional issue that we review de novo.† State v. Blom, 682 N.W.2d 578, 623 (Minn. 2004).† When the claim is raised on appeal from a postconviction proceeding, we review the legal issues de novo, but limit our review of factual issues to ďwhether there is sufficient evidence in the record to sustain the postconviction courtís findings.Ē† Id. (quotation omitted).†Absent an abuse of discretion, the postconviction decision will be sustained.† Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). †To prevail on a claim of ineffective assistance of counsel, ď[t]he defendant must affirmatively prove that his counselís representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different.Ē† Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted). †A reasonable probability is one sufficient to undermine confidence in the outcome.† Id.

Haider argues that his appellate representation in his direct appeal fell below an objective standard of reasonableness in four ways.† Specifically he claims that his attorneyís performance was objectively deficient by failing to challenge:† (1) his sentence on the ground that it exceeded the statutory maximum, (2) the judicial determination of sentencing-departure facts as a violation of Apprendi, (3) the adequacy of the district courtís findings supporting the upward sentencing departure, and (4) the ineffective assistance of trial counsel.

The first contention, the failure to challenge his sentence because it exceeded the statutory maximum by ten months, was resolved in Haiderís favor at the postconviction hearing.† Although the prosecutor, Haiderís attorney, and the district court overlooked the statutory limitation at sentencing, the district court corrected the error at the postconviction hearing, and Haider has not established in this appeal that he has been actually prejudiced.

Haiderís second contention, raised in his brief, is that his appellate counsel failed to contest his sentence as a violation of Apprendi and Blakely.† But Haiderís direct appeal was complete before the United States Supreme Court issued Blakely, and therefore both the deficient-performance and the prejudice prong fail. †Accordingly, Haider expressly withdrew this argument at the oral argument in this appeal.

The third contention is that appellate counsel should have challenged the reasoning offered by the sentencing court in support of its upward departure from the presumptive sentence.† See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (adopting general rules to ensure compliance with sentencing guidelines).† Each of the sentencing courtís stated reasons for the limited upward departure have a factual basis in the record, and, taken together, represent a justifiable basis for the sentence.† Haider has provided no expert opinion of any attorney that the failure of his direct-appeal attorney to challenge the bases for the departure was an objectively deficient performance that resulted in actual prejudice.† ďA claim of ineffective assistance of counsel may not rest on the failure of an attorney to make a [challenge] that would have been denied if it had been made.Ē† Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).

In his fourth contention, Haider argues that his direct-appeal attorney should have raised the issue of ineffective assistance of trial counsel.† Haider bases this claim on trial counselís failure to challenge the sentence for exceeding the statutory maximum.† Because the underlying issue was resolved by the postconviction courtís correction of Haiderís sentence to remove the additional ten months, Haider has not established actual prejudice.

The state additionally argues that, because Haiderís direct appeal was based on the theory that he was not the person who shot the victim, his direct-appeal counsel could have tactically concluded that any sentencing arguments might have detracted from this argument and focused the courtís attention on the aggravated facts of the offense.† See State v. Haider, C3-02-2124, 2003 WL 22388623, at *1 (Minn. App. Oct. 21, 2003) (stating nature of appeal), review denied (Minn. Dec. 23, 2003); see also Hummel v. State, 617 N.W.2d 561, 566 (Minn. 2000) (recognizing that appellate counsel may reasonably exclude issues from appeal that detract from more meritorious issues).† We generally decline to review attacks on the strategic choices of an attorney.† Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).† Regardless of whether strategy played a part in selecting the issues for the direct appeal, Haider has not established that the district court abused its discretion by denying Haiderís claim to reduce his sentence to 214.5 months based on a claim of ineffective assistance of counsel.

Finally, we address Haiderís contention at oral argument that we need not consider his ineffective-assistance-of-counsel claim to grant the remaining relief that Haider requests because, under Minn. R. Crim. P. 27.03, subd. 9, a court at any time ďmay correct a sentence not authorized by law.Ē †The language of rule 27.03 does not provide a general review of the sentencing courtís decision for an abuse of discretion. †The only error in Haiderís sentence was the calculation of the maximum statutory sentence, and the district court corrected this error at the postconviction hearing. †Haider could have directly challenged the merits of the courtís reasons for departure in his direct appeal or in the postconviction petition, but he did not.

Affirmed.†