This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Scott Andrew Kohser, petitioner,





State of Minnesota,



Filed June 19, 2007


Collins, Judge*


Hennepin County District Court

File No. 99119997


Scott Andrew Kohser, OID No. 141505, Minnesota Correctional Facility, 1101 Linden Lane, Faribault, MN  55021 (pro se appellant)


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


Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Dietzen, Presiding Judge; Hudson, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a district-court order denying his postconviction petition, appellant argues that (1) he is entitled to relief under Blakely and Apprendi, and (2) his claims of ineffective assistance of counsel and incorrect calculation of his criminal-history score should not be barred by the Knaffla rule.  We affirm.


            In December 1999, appellant Scott Andrew Kohser was charged with first-degree burglary, false imprisonment, felony theft of a motor vehicle, and fleeing a peace officer in a motor vehicle.  Following a mistrial and denial of his motion for dismissal of the complaint on the ground of double jeopardy, appellant waived a jury and proceeded with a bench trial on stipulated facts.  The district court found appellant guilty of the burglary, theft, and fleeing charges, and he was acquitted of the charge of false imprisonment.  On August 4, 2000, the district court imposed a sentence of 150 months,[1] after finding appellant to be a career-offender and determining that the victim’s advanced age and vulnerability were aggravating factors.

On direct appeal, this court affirmed appellant’s conviction.  State v. Kohser, No. C7-00-1778 (Minn. App. Aug. 28, 2001), review denied (Minn. Oct. 24, 2001).  In January 2003, appellant filed a pro se petition for postconviction relief challenging (a) admission of certain trial exhibits, (b) chain-of-custody and testing methods, and (c) sentencing under the career-offender statute, and alleging ineffective assistance of counsel.  The postconviction court denied the motion, noting that no new grounds for relief had been raised.  On appeal, this court affirmed.  Kohser v. State, No. A04-1976 (Minn. App. Dec. 13, 2005), review denied (Minn. Feb. 22, 2006).  The current petition for postconviction relief was denied by the district court, as were appellant’s motions for reconsideration and clarification.  This appeal followed. 


            Appellant raises a number of issues alleging that the district court erred in denying his motion for postconviction relief. “A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  We will not disturb the decision of a postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But this court reviews de novo questions of law presented in a postconviction proceeding.  Schleicher v. State, 718 N.W.2d  440, 445 (Minn. 2006).

            A petitioner seeking postconviction relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the petition.  Minn. Stat. § 590.04, subd. 3 (2004).  To meet this burden, the postconviction petitioner’s allegations “must be supported by more than mere argumentative assertions that lack factual support.”  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).


            Appellant contends that he is entitled to retroactive relief under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  We disagree.  In Blakely, the Supreme Court held that the greatest sentence that a judge may impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 542 U.S. at 303, 124 S. Ct. at 2537 (emphasis in original).  A defendant has a Sixth Amendment right to a jury determination of the existence of any fact, except the fact of a prior conviction that increases the sentence above this maximum.  Id. at 313, 124 S. Ct. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). 

            “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”  Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989).  A case becomes final when “the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  Here, appellant’s case became final in early 2002, well before June 2004 when Blakely was decided.  See State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005) (stating that Blakely announced new rule of constitutional law not subject to retroactive application on collateral review). 

            Appellant argues that Blakely did not announce a new rule of constitutional criminal procedure because it was dictated by the Supreme Court’s decision in Apprendi, and therefore the Blakely rule dates back to Apprendi, which was decided in 2000, before his direct appeal was exhausted.  But this argument was rejected by the Minnesota Supreme Court in State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  There, the supreme court held that Blakely is a new rule of constitutional criminal procedure that only applies retroactively to cases pending on direct review when Blakely was filed, not a “watershed” new rule of constitutional criminal procedure requiring full retroactivity.  702 N.W.2d at 273-74.  As such, Blakely does not apply to appellant’s collateral attack of his sentence, which was final before Blakely was announced.  See id.


            Appellant next argues for relief under Apprendi, in which the Supreme Court held that any fact “other than the fact of a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”  530 U.S. at 490, 120 S. Ct. at 2362-63.  The Minnesota Supreme Court noted this language and stated that “[p]rior to Blakely, ‘statutory maximum’ was generally thought to mean the heaviest penalty a court could impose on a defendant─the ceiling of the relevant statutory sentencing range.”  Houston, 702 N.W.2d at 271; see Harris v. United States, 536 U.S. 545, 562-63, 122 S. Ct. 2406 (2002) (concluding that mandatory minimum sentencing statute did not raise Apprendi concerns because statute did not increase penalty for offense beyond prescribed statutory maximum).  

            Here, appellant’s sentence of 150 months was significantly greater than the 57-month presumptive guideline sentence but well within the 240-month statutory maximum.  Because the sentence did not exceed the statutory maximum, it did not violate Supreme Court’s ruling in Apprendi as it was understood at the time of appellant’s direct appeal.  Moreover, because the sentence did not exceed the statutory maximum, and appellant’s case was not pending at the time Blakely was decided, the aggravating factors on which the upward departure was based did not require jury determination.


            In State v. Knaffla, our supreme court held that “where 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 post-conviction relief.”  309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  This rule has been consistently adhered to by the Minnesota Supreme Court.  See, e.g., Sessions v. State, 666 N.W.2d 718 (Minn. 2003); Roby v. State, 531 N.W.2d 482 (Minn. 1995); Miller v. State, 531 N.W.2d 491 (Minn. 1995).  However, the following exceptions apply to the Knaffla rule:  (1) a claim that is so novel that the legal basis was not available on direct appeal; or (2) the interests of justice require it.  White v. State, 711 N.W.2d 106, 109 (Minn. 2006).  The second exception is limited to instances when fairness requires consideration of such a claim, and the petitioner did not “deliberately and inexcusably” fail to raise it on direct appeal.  Id.  Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991).  Further, this court has discretion to address any issue as justice requires.  Minn. R. Civ. App. P. 103.04.

            Here, appellant argues that his claims of ineffective assistance of counsel and incorrect calculation of his criminal-history score should not be barred by Knaffla.

A.         Ineffective assistance of counsel

            In his 2001 direct appeal, appellant raised a claim of ineffective assistance of counsel.  Kohser, 2001 WL 969024, at *6.  This court rejected the claim as unsupported because appellant failed to show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a different outcome would have resulted at trial were it not for counsel’s performance.  Id. 

            Appellant presented a similar claim in his 2003 petition for postconviction relief, which was rejected by the district court.  On appeal, this court held that appellant’s purported new evidence regarding ineffective assistance of his retained counsel at his bench trial and on appeal was not supported by fact or material to the discovery of new evidence or the outcome of his trial.  Kohser, 2005 WL 3370861, at *3.  We further stated that “absent new relevant evidence, appellant’s arguments of ineffective assistance of counsel by his public defender[2] are barred and do not need to be considered on appeal.”  Id. at *4.

            Allegations underlying an ineffective-assistance-of-counsel claim must be more than argumentative assertions without factual support.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  Once again, appellant fails to raise any new claims of ineffective assistance of counsel that are supported by fact or material to the discovery of new evidence or the outcome of trial.  He does no more than insist that this court and the postconviction court erred by not granting relief on his previous similar claims.  Because appellant’s claims of ineffective assistance of counsel have already been twice considered by this court, and he has not brought forth any new evidence or material facts to support these claims, we conclude that they are barred by Knaffla.

B.         Incorrect calculation of appellant’s criminal- history score

            Finally, appellant argues that the criminal-history score attributed to him in determining his presumptive sentence was incorrect.  Appellant claims that the state asserted that appellant had a criminal-history score of 7.  He notes that “factually, [appellant’s] criminal history score is 5, not 7 or 6 as the sentencing court believed.”  Appellant seems to contend that when the district court imposed the upward departure, it did so out of confusion as to his criminal record and criminal-history score.  He argues that had his criminal-history score been correctly calculated, the court would not have departed from the presumptive sentence.

            We disagree.  Appellant fails to present factual support for his claim that the sentencing worksheet prepared by the corrections department and filed prior to the sentencing hearing on August 4, 2000, contained incorrect information relating to either his criminal record or his criminal-history score.  The sentencing court alluded to the presumptive sentence under the guidelines, but, following the determination that appellant is a career offender and citing additional aggravating factors, the court deliberately chose to depart from the guidelines.  Appellant’s argument that an incorrect criminal-history score was a determining factor in the departure from the sentencing guidelines is unsupported and without merit.  Moreover, because appellant knew or should have known at the time of sentencing and before his direct appeal what criminal-history score was applied in the calculation of the presumptive sentence, his claim is barred under KnafflaSee Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.


* Retired judge of the district court, serving as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.


[1] Under Minnesota Sentencing Guidelines, the most serious crime, first-degree burglary, was ranked at severity-level six.  Appellant had five felony points and 1 custody status point for a total criminal-history score of six.  The presumptive sentence was 57 months.  The statutory maximum sentence was 240 months.  Minn. Stat. § 609.582, subd. 1(a) (1998).


[2] Appellant was represented by a public defender at his first trial before a mistrial was declared.