This opinion will be unpublished and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
Dean Joseph Turner, petitioner,
Filed March 15, 2006
Sherburne County District Court
File No. K2-02-1713
Stephen V. Grigsby,
Mike Hatch, Attorney General, Steven H. Alpert, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101; and
Kathleen Heaney, Sherburne County Attorney, Sherburne County Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
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
Appellant challenges the denial of his petition for postconviction relief without an evidentiary hearing. We affirm.
Appellant Dean Joseph Turner was charged with one count of first-degree attempted murder, one count of first-degree assault, four counts of second-degree assault, and one count of reckless discharge of a firearm, all arising from an incident that occurred in August 2002. Turner moved for a mental examination under Minn. R. Crim. P. 20.02 and for a contested omnibus hearing, requesting that the district court dismiss the complaint because Turner was “acting under diminished mental capacity and defect of reason” at the time of the offenses. The district court ordered the rule 20 examination, which concluded that, although Turner exhibited attention-deficit-hyperactivity disorder and suffered from “grief and mourning” resulting from his wife’s death, he “does not suffer from a mental illness, mental disorder, or mental condition that would reach the M’Naghten threshold.” Turner then withdrew his request that the charges be dismissed because of his mental condition.
Turner and the state entered into a plea agreement whereby Turner pleaded guilty to one count of first-degree assault, one count of second-degree assault, and one count of making terroristic threats, and the state dropped the remaining charges. The district court ordered a presentence psychological evaluation. The evaluation, conducted by the same doctor who performed the rule 20 examination, found that Turner continued to suffer from attention-deficit-hyperactivity disorder but noted that Turner’s grief resulting from his wife’s death was “fairly well resolved” and did not find “other psychological factors that should significantly impact the court’s sentencing consideration.”
The presentence-investigation report referred to both the rule 20 examination and the presentence psychological evaluation and recommended a guidelines sentence, concluding that there did not appear to be any clear mitigating factors. In June 2003, the district court denied Turner’s motion for a downward dispositional departure and sentenced him to the presumptive guidelines sentence of 86 months in prison.
January 2005, Turner petitioned for postconviction relief and requested an
evidentiary hearing, arguing that his trial counsel failed to present at
sentencing mitigating evidence of Turner’s “several psychological disorders
including major depressive disorder [and] post-traumatic stress disorder among
others” at the time of the offenses. Turner
contended that the submission of evidence of his mental condition by his trial
counsel “would have changed the result of the sentencing in that the district
court would have been able to consider this [evidence] in support of its
sentencing decision to depart.” Turner attached
to his petition a report that Turner’s counsel had requested from Dr. F. S.
Abuzzahab, Sr., a
The postconviction court, who was the same judge who had sentenced Turner, denied Turner’s petition without an evidentiary hearing, concluding that Turner’s ineffective-assistance-of-counsel claim failed because (1) his attorney’s decision to not have Turner evaluated by a psychiatrist was trial strategy not subject to review; (2) Turner’s psychological condition was assessed prior to sentencing; and (3) Turner failed to show that the introduction of additional evidence regarding his psychological condition would have resulted in a different sentence. The postconviction court also concluded that (1) Dr. Abuzzahab’s report was not newly discovered evidence that would justify a new trial; (2) the report “lack[ed] all credibility”; (3) the information contained in Dr. Abuzzahab’s report did not present “any mitigating factors”; and (4) “all of the mitigating factors asserted by [Turner] were taken into account by the State in formulating the plea agreement.” Turner now appeals from the postconviction court’s denial of his petition for postconviction relief.
Turner argues that the postconviction
court abused its discretion by failing to grant an evidentiary hearing “before
making credibility findings on proffered witness testimony.” A petition for postconviction relief is an
attack on a conviction, which carries a presumption of regularity. Pederson
v. State, 649 N.W.2d 161, 163 (
[N]ot every ineffective assistance of counsel claim will require an evidentiary hearing at the postconviction court. A petitioner’s allegations in a postconviction petition must be more than argumentative assertions without factual support. However, neither should evidentiary hearings be presumptively denied. A postconviction court must evaluate whether, in light of the significance of the claimed error and the evidence presented at trial, a petitioner has raised and factually supported material matters that must be resolved in order to decide the postconviction issues on their merits.
Turner argues that the postconviction
court made a determination of the credibility of Dr. Abuzzahab’s report that could
be made only after an evidentiary hearing.
A petitioner bears the burden of presenting sufficient evidence to
warrant an evidentiary hearing. See Fratzke v. State, 450 N.W.2d 101,
is the “quality that makes something (as a witness or some evidence) worthy of
belief.” Black’s Law Dictionary 374 (7th ed. 1999). Weight of the evidence, however, is the
“persuasiveness of some evidence in comparison with other evidence.”
The postconviction court’s comparison of Dr. Abuzzahab’s report with the earlier psychological evaluations of Turner further shows that the court considered the report’s weight, not Dr. Abuzzahab’s credibility:
[The Abuzzahab report] is a self-serving document based principally, if not entirely on [Turner’s] verbal input and recitations. Dr. Abuzzahab did not conduct an independent review of the records. The report makes no representation that Dr. Abuzzahab reviewed [Turner’s] past psychological records, cited no collateral sources, conducted no independent testing or assessments of [Turner] and did not address the conclusions of the Rule 20.02 report or the pre-sentence psychological reports.
The postconviction court also stated that Dr. Abuzzahab’s report “failed to quantify the degree to which [Turner] ‘was under impaired mental capacity,’ and its conclusion that ‘it was impossible for [Turner] to premeditate an assault’ is directly contradicted by [Turner’s] own sworn testimony.” The postconviction court did not abuse its discretion when it determined that the evidentiary weight of Dr. Abuzzahab’s report was insufficient to warrant a hearing.
Turner relies on Opsahl v. State, 677 N.W.2d 414 (
Lastly, Turner argues that the postconviction
court improperly concluded “that the plea offered by the State accurately
applied the mitigating factors.” Departures
from presumptive sentences are reviewed under an abuse-of-discretion standard,
but there must be “substantial and compelling circumstances” in the record to
justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (
The postconviction court concluded that Dr. Abuzzahab’s report did not present any mitigating factors, finding that Dr. Abuzzahab relied on Turner’s representations to form his opinion, did not review Turner’s prior psychological records or examinations, and did not conduct an independent assessment of Turner. The rule 20 examination, the presentence psychological evaluation, and the presentence-investigation report support the postconviction court’s conclusion that there were no substantial and compelling circumstances that warranted a downward sentencing departure.
 “The M’Naghten
rule requires that in order to be excused from criminal liability by reason of
insanity, a defendant must show that he either did not know the nature of his
act or that the act was wrong.” State v. Odell, 676 N.W.2d 646, 648 (