This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Scott Andrew Kohser, petitioner,
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)
Attorney General, 1800
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, 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
D E C I S I O N
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 (
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,
Appellant contends that he is entitled to retroactive
relief under Blakely v. Washington,
“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
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 (
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
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.
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.”
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.
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 are barred
and do not need to be considered on appeal.”
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 (
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 Knaffla. See
* Retired judge of the district court, serving as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 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).
 Appellant was represented by a public defender at his first trial before a mistrial was declared.