This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Robert Eugene Adams, Sr., petitioner,
State of Minnesota,
Filed August 1, 2006
Toussaint, Chief Judge
Beltrami County District Court
File No. K0-92-1183
Robert E. Adams, Sr.,
Post Office Box 35, Starbuck, MN 56381 (pro se appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
Timothy R. Faver, Beltrami County Attorney, 619
Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)
Considered and decided by Randall,
Presiding Judge; Toussaint, Chief Judge;
and Willis, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from an order summarily denying his
petition for postconviction relief, Robert Eugene Adams, Sr., challenges his
conviction and revocation of probation on multiple grounds. Because Adams’s claims are
either procedurally barred by an earlier appeal or do not state a sufficient
basis for relief, we affirm.
D E C I S I O N
appeals from the district court’s summary denial of his petition for
postconviction relief. In June 1995 Adams pleaded guilty to a first-degree controlled-substance
crime. The district court sentenced him to
a 110 months’ imprisonment stayed and ordered him to pay restitution. The district court revoked Adams’s
probation and executed his sentence in
November 2003 following multiple violations of his probation conditions.
appealed the revocation and, in a pro se supplemental brief, also argued that his
plea was invalid and that the district court erred in calculating his
criminal-history score. This court
upheld the execution of Adams’s sentence and
further held that his pro se arguments lacked merit. State
v. Adams, No. A04-225, 2004 WL 2093635, at *2 (Minn. App. Sept. 21, 2004), review denied (Minn. Dec. 14, 2004).
In April 2005, Adams
filed a petition for postconviction relief that asserted multiple grounds for
relief. The district court denied the petition
without a hearing, holding that Adams’s claims either lacked merit or were
procedurally barred by State v. Knaffla,
309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), which held that, when a defendant directly appealed conviction, matters
that were raised on direct appeal or that were known but not raised at time of
appeal may not be raised in a petition for postconviction relief.
appeals the denial of his petition pro se and asserts ten grounds for relief. He argues that the district court improperly
participated in plea negotiations, improperly included restitution in his
sentence, did not hold a timely probation-revocation hearing, and failed to
file its reasons for a dispositional departure with the Minnesota Sentencing
Guidelines Commission. Adams
further argues that he received ineffective assistance from both trial and
appellate counsel, that the state entrapped him to enhance his sentence, that
he was not informed of his Miranda rights,
that the prosecution committed misconduct, and that the district court improperly
used prior convictions to enhance his sentence.
A criminal defendant may petition the
district court for postconviction relief under Minn. Stat. § 590.01
(2004). The district court may deny a
hearing on the petition if the record shows that the petitioner is not entitled
to relief or the petition raises issues that have previously been decided by an
appellate court in the same case. Id.,
subds. 1, 3 (2004). We review the denial
of a petition for postconviction relief for an abuse of discretion. Powers
v. State, 695 N.W.2d 371, 374 (Minn.
The district court erroneously construed Adams’s
appeal from his probation revocation as a direct appeal. Although that appeal was his first appeal, it
was not an appeal from his conviction and sentence. See
Minn. R. Crim. P. 28.02, subd. 4(3) (requiring defendant to appeal within 90
days of final judgment). Despite this
incorrect construction, however, the district court did not err by denying
Adams’s petition because his claims are either waived because of his earlier
appeal or do not provide a sufficient basis for relief.
Several of Adams’s
claims are barred by his appeal from his probation revocation. Because this court has already determined
that his allegation of judicial participation in securing his plea is without
merit, he may not raise this claim again.
See Adams, 2004 WL 2093635, at
*2 (holding claim is without merit). Adams
also may not challenge the timeliness of his probation-revocation hearing or
the district court’s order of restitution because his appeal from the
revocation provided an opportunity for this court to review the revocation and the
sentence. See Wayne v. State, 601 N.W.2d 440, 441 (Minn.
1999) (stating that court will not consider claims appellant could have raised
in earlier review); State v. Hockensmith,
417 N.W.2d 630, 632 (Minn.
1988) (holding that defendant can challenge sentence at time of probation
additional claims do not provide a sufficient legal or factual basis for
postconviction relief. To demonstrate
ineffective assistance of counsel, a petitioner bears the burden of showing
that an attorney’s representation fell below an objective standard of
reasonableness and that prejudice resulted from the attorney’s errors. White
v. State, 711 N.W.2d 106, 110 (Minn.
2006). Adams argues that his trial
counsel was ineffective because he failed to object to Adams’s guilty plea on
the grounds of judicial participation and because he did not demand that the
district court file a report stating its reasons for the dispositional
departure with the Minnesota Sentencing Guidelines Commission. But these claimed errors do not establish
ineffective assistance of counsel.
This court previously held that Adams’s argument of an invalid plea lacked merit, and the
alleged absence of a filed report lacks a factual basis. Upon Adam’s request for a copy of the report,
the commission informed Adams that it no longer had the report, but its
electronic records indicated that the district court granted the departure because
court services recommended it and because the district court found Adams amenable to treatment. This response indicates that the district court
properly filed a report with the commission.
See Minn. R. Crim. P. 27.03,
subd. 4(C) (requiring court to file departure report with Minnesota Sentencing
Guidelines Commission). Adams’s claim that his trial counsel should have demanded
further action by the district court is therefore unsupported.
asserts that his appellate counsel was ineffective by failing to provide him
with transcripts in a timely manner so he could prepare his pro se supplemental
brief and challenge the validity of his plea.
Correspondence demonstrates that appellate counsel instructed Adams to
notify her immediately if he wanted transcripts to prepare his brief and that she
sent the transcripts to Adams after he filed
his brief. But Adams
does not indicate when he requested thetranscripts.
Further, he cannot demonstrate prejudice
from any error. Adams’s
appeal was from a probation-revocation order and the time to appeal his
conviction, outside of a postconviction context, had expired in 1996. See Minn. R. Crim. P. 28.02, subd. 4(3)
(requiring appeal within 90 days of final judgment). Moreover, this court had copies of the transcripts
when it reviewed his pro se claims, and the court determined that his claim was
Adams next argues that the state
entrapped him and intentionally sought to enhance his sentence by increasing
the amount of drugs its agent bought from him.
Sentencing entrapment occurs when “outrageous official conduct overcomes
the will of an individual predisposed only to dealing in small quantities, for
the purpose of increasing the amount of drugs and the resulting sentence of the
entrapped defendant.” State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997) (quotation
omitted). The record does not support Adams’s claim. He
presented no evidence that he regularly dealt in small quantities of drugs; he
acknowledged that he freely agreed to sell the drugs involved in the present
case, and the complaint indicates that the government agent took no action
beyond asking Adams for increased quantities
of a controlled substance.
Adams also claims that he was
never read his Miranda rights and
that the prosecution engaged in misconduct because a hearing started at 11:45
a.m. when it was scheduled for 9:00 a.m.
Adams does not provide a factual basis
for either argument. Adams states only
that he was not read his rights when taken into custody and does not suggest either
that he was interrogated or that evidence was obtained as a result of any
failure to read him his rights. See State Dep’t of Labor & Indus.
v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (stating that court can decline
to review issue when briefing is inadequate).
Adams argues that a hearing began late, but he
neither identifies the hearing at which this occurred nor provides a factual
basis for demonstrating that the prosecutor caused the delay and that the delay
prejudiced him. Id.
argues on appeal that the district court improperly used prior convictions to
enhance his sentence. We decline to consider
this claim because Adams raises it for the
first time in this appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding
that appellate court will not consider matters not argued in district court).