This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed June 12, 2007
Toussaint, Chief Judge
Erik H. Tweeton, Post
Lori Swanson, Attorney
James C. Backstrom, Dakota County Attorney, Judicial Center, 1560 Highway 55, Hastings, MN 55033; and
Christine J. Cassellius, Michael E. Molenda, Severson, Sheldon, Dougherty & Molenda, P.A., Apple Valley City Attorneys, 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for respondent)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
After a jury found appellant Erik Henry Tweeton guilty of reckless driving, he filed a petition for postconviction relief. Following a hearing, relief was denied, and he challenges that denial. Because we see no abuse of discretion in the denial, we affirm.
D E C I S I O N
decisions of a postconviction court will not be disturbed unless the court
abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (
1. Right to Counsel
Appellant claims that the district court failed to advise him that he was entitled to counsel or ask about his financial situation to see if he was eligible for appointed counsel. But he offers no evidence to support this claim, and he offered none to the postconviction court. Absent a transcript or any evidence to show what happened at trial, the postconviction court had no basis for accepting appellant’s position, and this court has none for overturning the postconviction court’s decision.
2. Direct Appeal
Appellant claims he is entitled to a new trial because the district court denied him a direct appeal by not telling him about the right to appeal within ten days. Again, he provides no evidence to support this claim. Moreover, even if the district court did err by not telling appellant of his right to appeal, the error was harmless: he was able to petition for postconviction relief and appeal from the denial of that petition.
3. False Testimony
claims he is entitled to a new trial because false testimony was admitted at
his trial. To grant a new trial on the
basis of false testimony, the postconviction court must be reasonably sure
that: (1) the testimony was in fact false; (2) the jury might have reached a
different conclusion without that testimony, and (3) the petitioner either did
not know the testimony was false until after the trial or was surprised by the
false testimony at trial. State v.
claims that a witness told 28 lies and that the prosecutor told about 20, but
he does not specify what these lies were.
Without a transcript, the postconviction court could not determine whether
testimony was false or whether the jury’s conclusion might have been different
without it. Thus, the first and second
4. Newly Discovered Evidence
trial, appellant contacted an accident reconstruction expert. Appellant argues that the expert’s evidence
was newly discovered, so he is entitled to a new trial on the basis of newly discovered
evidence. But it is not sufficient for
appellant to show that evidence was not available at trial: he must also show
that it could not have been discovered, that it is not cumulative, impeaching,
or doubtful, and that it likely would have changed the result of the trial in
his favor. See Wieland v. State, 457
N.W.2d 712, 714 (
The postconviction court did not abuse its discretion in denying appellant’s postconviction petition.