This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
John Elliot Haider, petitioner,
Filed February 7, 2006
Ramsey County District Court
File No. K0-02-813
F. Clayton Tyler, Cortney Coates,
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
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 (
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.
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
D E C I S I O N
claim of ineffective assistance of counsel raises a constitutional issue that
we review de novo.† State v. Blom,
682 N.W.2d 578, 623 (
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.
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,
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.
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 (
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.