This opinion will be unpublished and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
State of Minnesota,
Filed September 12, 2006
Toussaint, Chief Judge
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)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Lance Phillip Wickner challenges the denial of his postconviction petition, challenging a 2002 conviction of criminal vehicular homicide. Because we see no abuse of discretion and no error of law, we affirm.
On July 14, 2005, appellant, acting pro se, filed a petition for postconviction relief challenging his 2002 conviction, arguing ineffective assistance of appellate and trial counsel. Specifically, appellant argued that (1) his appellate attorney on direct appeal failed to raise a claim of ineffective assistance of trial counsel and failed to advise him of the correct procedure for making such a claim in a pro se supplemental brief; and (2), even though the ineffectiveness of the assistance of trial counsel was known to appellant at the time of his direct appeal, fairness required that he be allowed to raise it in a postconviction proceeding because trial counsel failed to introduce evidence that could have materially affected the jury’s verdict. The district court denied appellant’s petition without a hearing on the grounds that his claims were either without merit or procedurally barred. This appeal followed.
court’s findings are reviewed to determine whether there is sufficient evidentiary
support in the record. Dukes v. State, 621 N.W.2d 246, 251 (
Ineffective Assistance of Appellate Counsel
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 (
counsel raised meritorious issues on direct appeal.
Ineffective Assistance of Trial Counsel
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.” State v. Knaffla, 309
Appellant is procedurally barred from raising his claims of ineffective assistance of trial counsel. He presented no facts to support either an assertion that his claim is so novel that the legal basis was not reasonably available at the time of direct appeal or that fairness necessitates that his claim should be considered upon a petition for postconviction relief.
argues that a claim of ineffective assistance of counsel should be heard in
spite of a Knaffla limitation when
there is a need for additional facts to explain the trial counsel’s
decisions. See Black v. State, 560 N.W.2d 83, 86 (
Here, the record shows that trial counsel responded to appellant’s request for an investigation into the speed capability of the car after the accident, advising appellant that such an investigation could not be made after the fact. The record also shows that sufficient evidence, including appellant’s own admission of excessive speed and the testimony of the deputy who investigated the incident, was presented at trial so that a jury could find appellant guilty of gross negligence even if the omitted evidence could have been introduced.