This opinion will be unpublished and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
Bradley Allen Wendt, petitioner,
Renville County District Court
File No. K0-97-607
WashingtonCounty District Court
File No. K4-96-5129
State Attorney General,
Doug Johnson, Washington County Attorney, Richard Allen, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082; and
David J. Torgelson, Renville County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent).
Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, and Randall, Judge.
U N P U B L I S H E D O P I N I O N
case involves consolidated appeals from orders denying postconviction petitions
challenging criminal convictions on grounds of ineffective assistance of
counsel. In the
In 1995, Bradley Wendt, appellant, was charged with and found guilty of (1) assault in the first degree; (2) assault in the second degree with a dangerous weapon; and (3) drive-by shooting, recklessly discharging a firearm. He was sentenced to confinement.
In March 1996, appellant filed a notice
of appeal. Appellant challenged the
district court’s admission of expert testimony and also argued that the court
failed to properly define “great bodily harm” and “substantial bodily harm” and
that he received ineffective assistance of counsel. See
State v. Wendt, No. CO-96-577, 1997 WL 76323, at *1 (Minn. App. Feb. 25, 1997),
review denied (
This court upheld the district court’s
decision regarding all issues.
[b]ased on the evidence at trial, there is no indication that the verdict would have differed but for the attorney’s conduct. Furthermore, appellant bases his claim of ineffective assistance of counsel on questions of trial tactics. Trial tactics may not properly serve as the sole basis of an ineffective assistance of counsel claim. (citations omitted).
Appellant petitioned for review to the Minnesota Supreme Court of this court’s decision which was denied in April 1997. He also petitioned for writ of habeas corpus which the United States District Court, District of Minnesota dismissed without prejudice finding that appellant had not exhausted his state remedies.
On January 10, 2005, appellant filed a petition for post-conviction relief asking that his judgments of conviction be vacated and a new trial granted. He argued that (1) he was denied a fair trial because the district court permitted a state witness to testify that the victim’s injuries constituted “great bodily harm”; (2) he received ineffective assistance of counsel; (3) the search of his vehicle was unconstitutional; and (4) he was denied his right to allocution.
On January 25, 2005, the district court denied appellant’s petition for post-conviction relief finding that appellant had raised the first two issues on direct appeal and justified that claims raised on direct appeal may not be renewed in a post-conviction motion. The court held that appellant’s other two issues, that the search of his vehicle was unconstitutional and that he was denied his right to allocution, were known at the time of his direct appeal and therefore the claims could not be considered. The court found that the claims were not “so novel that their legal basis was not reasonably available at the time of direct appeal.”
July 1996, while serving his sentence of confinement in
engaged in the same legal process for this case as he did for his
Appellant appeals the orders from
D E C I S I O N
Appellant argues that he received ineffective assistance of trial counsel because his counsel failed to (a) cross-examine an expert witness’ credentials, and (b) impeach the inconsistent statements made by a Bureau of Criminal Apprehension witness. Appellant also argues that the evidence seized from his vehicle should not have been introduced because the search was unlawful and that he was denied his right to allocution during sentencing.
“The scope of review of a
postconviction proceeding is limited to determining whether there is sufficient
evidence to sustain the postconviction court’s findings, and a postconviction
court’s decision will not be disturbed absent an abuse of discretion.” Hale v.
State, 566 N.W.2d 923, 926 (
The Minnesota Supreme Court has repeatedly said
that an appeal from a judgment of conviction is not the most appropriate way of
raising an issue concerning the effectiveness of trial counsel’s representation
because the reviewing court does not have the benefit of all the facts
concerning why defense counsel did or did not do certain things. See, e.g., State v. Cermak, 350 N.W.2d 328, 332 n.5, (
claim made on direct appeal may not be renewed in a post-conviction petition. Fratzke
v. State, 450 N.W.2d 101, 102 (
raises two additional issues. He argues
that the evidence seized from his vehicle should not have been introduced
because the search was unlawful and that he was denied his right to allocution
during sentencing. Appellant could have
raised the unconstitutional search issue on direct appeal.
Appellant’s unlawful-search claim is a claim that he knew or should have known about which was required to be raised on direct appeal. His failure to raise the issue on appeal does not fit within any exception to the law. Even if we were to remand the issue back to the district court, any evidence from 1995 is now stale lessening any claim that an error on the part of the district court was substantial.
Appellant argues he was
denied his right to allocution. Before
pronouncing sentence, under the Minnesota Rules of Criminal Procedure, the
district court shall give the
prosecutor, the victim, and defense counsel an opportunity to make a statement
with respect to any matter relevant to the question of sentence including a
recommendation as to sentence. The district court shall also address the defendant personally and ask if he wishes to
make a statement on his behalf and to present any information before sentence,
including, in the discretion of the court, oral statements from other persons
on behalf of the defendant.
Before pronouncing sentence, the district court
did not ask appellant if he wished to make a statement in his own behalf or
present any information. In State v. Young, where the court failed
to extend the right to allocution to the defendant, we held that the rule was
clear that “a defendant has a right to allocution before the court imposes
sentence.” 610 N.W.2d 361, 363 (
Ordinarily, the fact that a defendant was denied
his right to allocution could constitute reversible error, but appellant’s
failure to raise the allocution issue on direct appeal leads us to conclude that
he is barred from raising the issue in his subsequent petition for
postconviction relief. Knaffla, 309
Appellant argues that he received ineffective assistance of trial counsel because his counsel failed to call as witnesses other inmates present during the altercation, thereby failing to properly investigate the facts of the altercation. He argues that had his counsel called as witnesses other inmates, a jury would not have found him guilty.
direct appeal, appellant raised the issue that there was insufficient evidence
to sustain his conviction. Wendt, 1998 WL 51372 at *1. Unlike in his
argues that he received ineffective assistance of appellate counsel during both
his Renville and
Appellant argues that during his Renville appeal his appellate counsel failed to raise issues pertinent to his appeal. He argues his appellate counsel should have challenged the search of his vehicle and argued appellant was denied his right to allocution.
Appellant’s argument lacks merit. “When an appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues.” Case, 364 N.W.2d at 800.
district court found that there was no basis to grant relief against
appellant’s appellate counsel. The district
court properly relied on Sutherlin v.
State where the defendant’s “main contention [was] that his appellate attorney
failed to raise the claim that his trial attorney provided ineffective
assistance of counsel” but the court held that “[b]y making this argument,
[defendant] is in effect simply re-characterizing an issue that he should have
raised on direct appeal.” 574
N.W.2d 428, 435 (
Based upon the record presented and relied on by the district court concerning appellant’s ineffective assistance of trial counsel claim, we conclude that appellate counsel had no duty to raise the other claims argued by appellant on direct appeal.
See Case v. State,
364 N.W.2d 797, 799-800 (