This opinion will be unpublished and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
Jerome L. Jefferson, petitioner,
State of Minnesota,
Filed August 22, 2006
File No. K5-98-775
L. Jefferson, No. 164853, Minnesota Correctional Facility, 7600 – 525th Street,
Rush City, MN 55069 (pro se appellant)
Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800
Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Arden J. Fritz, Assistant Sherburne County Attorney, Government Center,
13880 Highway 10, Elk River, MN 55330 (for respondent)
Considered and decided by Ross,
Presiding Judge; Shumaker, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends that his
sentence was improperly determined and that his appellate counsel was
ineffective in his failure to challenge the improper sentence. We affirm.
A jury found appellant
Jerome L. Jefferson guilty of felon in possession of a firearm, attempted
second-degree murder, attempted first-degree assault, and two counts of
second-degree assault. The district court
imposed concurrent sentences of 213 months for attempted second-degree murder
and 27 months for the firearm violation.
In computing Jefferson’s criminal-history score under the sentencing
guidelines, the court considered a prior Wisconsin felony conviction and
followed the computational procedure approved in State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981).
Jefferson appealed, challenging the
sufficiency of the evidence to support the convictions and the propriety of his
sentences, and he raised due-process issues relating to the jury instructions
and alleged juror misconduct. This court
vacated the attempted assault conviction because it was a lesser-included
offense of attempted murder, remanded the sentencing computational issue
because the record was inadequate for review, and affirmed in all other
respects. State v. Jefferson, No. C5-99-41, 1999 WL 732437, at *4 (Minn. App. Sept. 21, 1999), review denied (Minn. Nov. 23, 1999).
petitioning for a writ of habeas corpus and moving to reopen his appeal, Jefferson filed an amended petition for postconviction
relief, raising claims of insufficiency of the evidence, sentencing errors, and
Apprendi violations. The district
court denied the petition without an evidentiary hearing but made a thorough
analysis of each of Jefferson’s contentions.
Jefferson now appeals from the denial
of postconviction relief. He argues that
the sentencing court abused its discretion in using the Hernandez method to determine his criminal-history score and that
his appellate counsel was ineffective because he failed to petition for
certiorari and instead sought habeas corpus relief.
D E C I S I O N
Jefferson filed only a statement of the case
in lieu of a brief, it is not clear whether he is limiting his challenges to
the sentencing and assistance of counsel issues. But, as the district court correctly held,
the claim of insufficient evidence is barred because it has been decided on
direct appeal and cannot be raised again.
State v. Knaffla, 309 Minn. 246, 252, 243
N.W.2d 737, 741 (1976).
sentencing issue is also barred by Knaffla. The district court applied Hernandez to the two offenses for which Jefferson was sentenced separately. Counsel for the state and the defense
presented arguments at sentencing regarding the use of Hernandez. “[W]here a direct
appeal has once been taken, all matters raised therein, and all claims known
but not raised, will not be considered upon a subsequent petition for
postconviction relief.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Jefferson
knew of this matter at the time of his direct appeal but did not specifically
raise it. He cannot do so now.
claim of ineffective assistance of appellate counsel appears to relate to
counsel’s alleged failure to challenge the district court’s use of the Hernandez method, which, if we follow Jefferson’s argument, resulted in a sentence imposed as
an aggravated departure in violation of Apprendi.
claim of ineffective assistance of counsel is properly raised through
postconviction proceedings. See Scruggs v. State, 484 N.W.2d 21, 25
(Minn. 1992) (stating that a “direct appeal is not the most appropriate way to
raise an ineffective-assistance claim” and that “[t]his court previously has
considered ineffective-assistance claims in postconviction proceedings even
though petitioner did not raise the claims on direct appeal”). To establish a claim of ineffective
assistance of counsel, the challenger must affirmatively show that counsel’s
representation fell below an objective standard of reasonableness and that, but
for counsel’s inadequate performance, the outcome of the proceedings would have
been different. Sullivan v. State, 585 N.W.2d 782, 784 (Minn. 1998).
There is a strong presumption that counsel’s performance was
reasonable. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
An objective standard of reasonableness is based on “representation by
an attorney exercising the customary skills and diligence that a reasonably
competent attorney would perform under similar circumstances.” State
v. Glasser, 505 N.W.2d 62, 70 (Minn. 1993)
(quoting White v. State, 309 Minn. 476, 481, 248
N.W.2d 281, 285 (1976)).
Under Hernandez, when separate offenses that
are not part of the same behavioral incident and that do not involve the same
victims are sentenced on the same day, the sentencing court may count the
offenses separately to determine the defendant’s criminal-history score. State
v. Hernandez, 311 N.W.2d 478,
481. The court did so here.
determining whether criminal conduct was part of the same behavioral incident,
the court must consider factors of time and place and must determine whether
the offenses were motivated by a desire to obtain a single criminal
objective. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).
The facts show that Jefferson, a felon, had a firearm when he and others
visited a St. Cloud
residence. During the visit, some people
argued, and Jefferson attempted to shoot one
or more of those people. The sentencing
court found, and we agree, that Jefferson’s
possession of the firearm was separate and distinct from his use of the firearm
to commit the other crimes. There was no
evidence to indicate that Jefferson possessed the firearm for the purpose of
using it to assault or to attempt to kill anyone at the St. Cloud
residence. His possession was fortuitous
with respect to the crimes that followed.
Thus, the district court properly used the Hernandez method in counting both the firearm possession and the
attempted murder as part of Jefferson’s
appellate counsel could not have successfully challenged the court’s use of the
Hernandez method, counsel’s failure
to raise the issue on appeal or in subsequent proceedings was not unreasonable
and did not render counsel’s assistance ineffective. Furthermore, because Hernandez was properly applied and resulted in a term that did not
exceed the statutory maximum sentence, no Apprendi
issue arose, and it was not unreasonable for counsel to fail to seek an Apprendi review. See
Apprendi v. New Jersey, 530 U.S. 466 (2000) (accused
is entitled to jury trial on factor used as basis for sentence that exceeds the
Finally, Jefferson argues
that the sentencing court improperly included a prior Wisconsin
conviction as a felony when computing his criminal-history score. Jefferson
raised this issue in his direct appeal, but neither the guidelines sentencing
worksheet nor the presentence investigation report had been sent to this court
at the time of the appeal. Because the
record was inadequate to address the issue, we remanded the issue to the
district court “if determination [was] required.” State v. Jefferson, No.
C5-99-41, 1999 WL 732437, at *4 (Minn. App. Sept.
21, 1999), review denied (Minn. Nov.
23, 1999). The postconviction court
found, “after diligent efforts at communication with the Columbia County Clerks
of Court and the Minnesota Department of Corrections” that a felony sentence
had been imposed in Wisconsin. The court determined that Jefferson
was adjudged guilty of a Class-D felony, which is punishable by imprisonment
not to exceed five years. Wis. Stat.
§ 939.50(3)(d) (1996). Minnesota recognizes
that “convictions from other jurisdiction must, in fairness, be considered in
the computation of an offender’s criminal history index score.” Minn.
Sent. Guidelines cmt. II.B.502. Because
in Minnesota “a crime for which a sentence of
imprisonment for more than one year may be imposed” is a felony, the
Class-D-Wisconsin crime of which Jefferson was convicted falls within Minnesota’s definition
of a felony. Minn. Stat. § 609.02, subd. 2
(1996). Thus, it was proper for the
court to assign a criminal-history point for Jefferson’s Wisconsin
Because a careful review of
the record reveals that the postconviction court did not abuse its discretion with
regard to any of the claims raised by Jefferson
in this appeal, we affirm.