This opinion will be unpublished and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

A05-973

 

Michael Bruce Quandt, petitioner,

Respondent,

 

vs.

 

State of Minnesota,

Appellant.

 

Filed May 23, 2006

Reversed; motion granted

Kalitowski, Judge

 

Olmsted County District Court

File No. K5-98-1721

 

Mark William Delehanty, Klampe, Delehanty & Morris, 300 Broadstreet Building, 300 First Avenue Northwest, Rochester, MN 55901 (for respondent)

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for appellant)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.


U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

Appellant State of Minnesota challenges the postconviction courtís order vacating the conviction of respondent Michael Bruce Quandt.† Appellant contends that the postconviction court erred in determining that respondent was denied the effective assistance of counsel at trial.† Respondent made a motion to strike parts of appellantís brief and appendix.† We reverse and grant the motion to strike.†

D E C I S I O N

I.

Generally, ď[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion.Ē† Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).† But a postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo.† Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).†

To prevail on a claim of ineffective assistance of counsel, ď[t]he defendant must affirmatively prove that his counselís representation Ďfell below an objective standard of reasonablenessí and Ďthat there is a reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different.íĒ †Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).† An objectively reasonable level of representation is met when defense counsel is as skillful and diligent as a reasonably competent attorney under similar circumstances.† State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).† Generally, this court must indulge a strong presumption that counselís performance falls within ďthe wide range of professionally competent assistance.Ē Strickland, 466 U.S. at 689, 104 S. Ct. at 2066; see also State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).† When an action of defense counsel may be characterized as a tactical decision and not a mistake, the representation is objectively reasonable.† State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990).

On June 10, 1998, respondent was charged with five counts of criminal sexual conduct in the third degree pursuant to Minn. Stat. ß 609.344, subds. 1(b), 2 (1996).† The amended complaint alleged that the then-26-year-old respondent engaged in sexual penetration with a then-15-year-old girl on five separate occasions.† Respondent was represented by counsel and did not testify at trial.† The alleged victim testified that on February 18, 1998, she arrived at respondentís house around noon and had sex with him shortly thereafter.† On July 9, 1999, the jury found respondent guilty of two counts of criminal sexual conduct in the third degree, including the count specifying misconduct on February 18, 1998.†

More than five years later, on September 8, 2004, respondent filed a petition for postconviction relief, alleging that he received ineffective assistance of counsel because his trial counsel failed to notice or present an available alibi defense.† The postconviction court granted a hearing on the ineffective-assistance-of-counsel claim.

††††††††††† At the evidentiary hearing, a witness testified that he had been subpoenaed to testify at respondentís trial and came to court intending to testify, but respondentís counsel told him that he was not needed.† The witness indicated that he was prepared to testify consistently with the information provided in an affidavit submitted to the postconviction court.† In that January 2005 affidavit, the witness stated that (1) respondent worked for him on February 18, 1998, until 5:31 p.m.; (2) he drove respondent home that day, arriving at respondentís house at approximately 6:30 p.m.; and (3) after he learned of the accusations against respondent, he printed out respondentís time and made a handwritten note that he had driven respondent home that afternoon. †

††††††††††† Respondentís trial counsel also testified at the evidentiary hearing.† Counsel recalled respondentís case but admitted to having only a vague recollection of the specifics of his conversation with the witness.† He recalled that the witness ďappeared to . . . be equivocal about whether or not he could back up what [respondentís] story was in terms of his not being able to be at the place where the crime occurred because he was someplace else.Ē† Further, counsel remembered the witness telling counsel that he could not be ďvery much help.Ē† When asked whether an alibi defense should have been noticed at trial, counsel stated that his recollection of the case was that an alibi ďjust wasnít part of the deal,Ē but noted that ďagain, I have not seen my file in years so I donít remember.Ē†

The postconviction court held that respondentís counsel provided ineffective assistance at trial.† The court found that if counsel had called the witness to testify, he would have corroborated respondentís claim that he did not return home until 6:30 p.m. on February 18, 1998, several hours after the alleged victim claimed that she had engaged in sexual intercourse with him at his home.† The court concluded that counselís performance fell below an objective standard of reasonableness because he failed to note an alibi defense and because a reasonable probability existed that the outcome would have been different but for that error.† The court explained that ďno convincing reason has been advanced as to why [counsel] did not notice the alibi which therefore led to the inability to call [the witness] and perhaps even his own client to testify to what [respondent] claims occurred on February 18, 1998.Ē† As a result, the court vacated respondentís convictions and ordered a new trial.†

Appellant argues that the district court erred by concluding that respondentís trial counsel provided ineffective assistance of counsel by failing to give notice of respondentís alibi defense at trial.† We agree.†

Under the Strickland test, a defendant must show a reasonable probability that, but for counselís alleged errors, the result of the proceeding would have been different.† Gates, 398 N.W.2d at 561.† Here, even if counselís failure to notice an alibi defense was error, respondent did not establish that but for that error, he would have been found not guilty.† To obtain a not-guilty verdict based on an alibi theory, counsel would have to do more than just notice the defense.† Counsel would also need to establish the alibi defense at trial.† The postconviction court drew a connection between the lack of alibi notice and counselís failure to call the alibi witness.† But that connection finds no support in the record.† And the courtís speculation that the defendant did not testify because counsel failed to notice an alibi defense is likewise without support in the record.† At no point did respondentís trial counsel attempt to call the witness or respondent only to be frustrated by the fact that he had not noticed an alibi defense.†

Moreover, in concluding that respondentís trial counsel provided ineffective assistance by failing to notice an alibi defense, the district court assumed that respondentís trial counsel intended to pursue an alibi defense and to call an alibi witness.† But this is not what the law allows.† Minnesota courts have repeatedly held that we will not second-guess counselís trial tactics.† Opsahl, 677 N.W.2d at 421.† What evidence to present to the jury, including which witnesses to call, represents an attorneyís decision regarding trial tactics and lies within the proper discretion of trial counsel. Jones, 392 N.W.2d at 236; see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that defense counselís failure to call certain witnesses did not constitute ineffective performance and represented a matter of trial strategy that the court will not review for competence); Scruggs v. State, 484 N.W.2d 21, 26-27 (Minn. 1992) (rejecting the claim that defense counselís failure to call three potential defense witnesses constituted ineffective assistance).† And counselís decision not to pursue a particular theory of defense does not generally rise to the level of ineffective assistance of counsel. †See Voorhees, 596 N.W.2d at 255 (stating that matters of trial strategy, including what defenses to raise at trial, will not be reviewed later for competence); State v. Grover, 402 N.W.2d 163, 166 (Minn. App. 1987) (finding that attorneyís decision not to contest validity of search warrant did not result in ineffective assistance of counsel, where attorney could have made decision for strategic reasons or because he thought contesting warrant would have been futile).†

Appellant also asserts that respondentís delay of over five years in petitioning for postconviction relief should weigh against granting him relief.† Delay alone is not a sufficient basis upon which to deny postconviction relief.† Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998), review denied (Minn. July 16, 1998).† But timeliness ďis a factor to be considered when determining whether relief should be granted.Ē† Id.† And a delay in filing a postconviction petition weighs against the petitioner.† Fox v. State, 474 N.W.2d 821, 826-27 (Minn. 1991) (affirming denial of postconviction relief based in part on four-year delay); Wieland v. State, 457 N.W.2d 712, 715-16 (Minn. 1990) (affirming denial of postconviction relief and noting that ten-year delay weighed against petitioner).†

Here, the postconviction court improperly weighed the delay against appellant, rather than against respondent, the petitioner.† The court explicitly contrasted counselís vague recollection of the events at trial against the sharper memory exhibited in the witnessís 2005 affidavit and concluded that counselís failure to call the witness was a mistake rather than a trial tactic.† But counsel explained that he declined to call the witness because the witness appeared equivocal about whether he could corroborate respondentís story.† And in light of respondentís delay in bringing this action, the district court should have construed his counselís inability to recall more specifically why he did not call the witness against respondent.†

Respondent failed to carry his burden of demonstrating a reasonable probability that but for counselís failure to notice an alibi defense, the jury would have found him not guilty.† Given that counselís performance enjoys a strong presumption of competence, that this court does not second-guess matters of trial strategy, and that any weaknesses of memory due to delay should be construed against respondent, we conclude that the district court erred by finding that respondentís counsel provided ineffective assistance at trial.† Therefore, we reverse the district courtís order vacating respondentís conviction and ordering a new trial.†

II.

 

Respondent moved to strike a statement that appellant included in its appendix and referenced in its brief.† The record on appeal consists of ď[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.Ē† Minn. R. Civ. App. P. 110.01.† An appellate court generally ďmay not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.Ē† Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).† If a party includes in its brief documents that are not properly before the court on appeal, the court will strike the documents.† Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), affíd, 504 N.W.2d 758 (Minn. 1993).

††††††††††† Here, appellant included in its appendix a summary statement of a potential trial witness.† It is undisputed that the statement was not included in the district courtís file.† Because that statement was not part of the record before the postconviction court, respondentís motion to strike that statement is granted.†

††††††††††† Reversed; motion granted.