This opinion will be unpublished and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,
Charles Allen Shoemake,
Filed December 24, 2007
Affirmed as modified
St. Louis County District Court
File No. K204600735
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Melanie Ford, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge.
On appeal from an order denying postconviction relief, appellant argues that (1) he was denied the effective assistance of counsel; (2) the prosecutor committed prejudicial misconduct in closing argument by vouching for the credibility of the victim; (3) he should not have been sentenced separately for the burglary and vehicle theft because they constituted a single behavioral incident; and (4) the victim made inconsistent statements during her testimony. We affirm as modified by vacating the sentence for motor-vehicle theft.
D E C I S I O N
An appellate court’s “scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.” Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999) (citation and footnote omitted). “[A] postconviction court’s decision will not be disturbed absent an abuse of discretion.” Id. (citation and footnote omitted). Where, as here, there has been a direct appeal, matters known at the time of the direct appeal are procedurally barred from postconviction review. Doppler v. State, 660 N.W.2d 797, 801 (Minn. 2003) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).
Ineffective Assistance of Counsel
Appellant Charles Allen Shoemake argues that the district court erred in finding that while his counsel’s conduct fell below an objective standard of reasonableness, appellant failed to show that the outcome would have been different but for his counsel’s conduct. Ineffective assistance of counsel claims involve mixed questions of law and fact and our standard of review is de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984)). To prevail on such a claim, an appellant “must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). This court need not reach the issue of whether trial counsel’s representation fell below an objective standard of reasonableness if the defendant has not met his burden of proving that the outcome would have been different but for counsel’s errors. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); see also Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (“This court may dispose of an ineffective assistance of counsel claim when the appellant fails to prove there was a reasonable probability the outcome would have been different.”).
In June 2004, appellant sexually assaulted M.A. Later that day, appellant broke into his employers’ home and stole their daughter’s car. Appellant was charged with first-degree criminal sexual conduct, kidnapping, second-degree burglary, and theft of a motor vehicle. On November 2, 2004, appellant filed a demand for speedy disposition under the Uniform Mandatory Disposition of Detainers Act (UMDDA). At the time, David Keegan from the public defender’s office represented appellant. On February 25, 2005, at the omnibus hearing, the state filed a demand for a speedy trial and Keegan stated he would not be able to appear for trial on March 29 due to a conflict with his calendar. The next available trial date was May 10, which was outside the timeframe of both the state’s speedy trial demand and appellant’s UMDDA demand. The state agreed to waive the speedy trial demand if the trial was held on May 10. Keegan stated that he and appellant had carefully discussed the matter and that appellant’s intention in filing the UMDDA demand was to have the matter resolved by the time he was released from prison on June 2, 2005, on unrelated charges. Appellant agreed to waive his UMDDA demand if the trial was scheduled to begin May 10. The district court accepted both waivers conditioned upon the trial beginning May 10, and noted appellant’s purpose for filing the UMDDA demand was to resolve the matter before his release from prison on June 2.
On March 28, 2005, appellant’s file was reassigned to Daniel Bina from the public defender’s office. At the pretrial hearing on April 28, Bina appeared on behalf of appellant. There was no discussion regarding the trial date, the waiver of the speedy trial demand, or the UMDDA demand. Appellant’s trial began on May 10. Appellant claims that following his conviction, he received his file from Bina and found a letter from Keegan dated February 22, 2005, acknowledging his intent to leave the public defender’s office. However, Keegan was still appellant’s attorney of record at the February 25 omnibus hearing. There is nothing in the record to show that Keegan requested to withdraw from the case or that the district court would have even allowed Keegan to withdraw so close to trial. And Bina did not receive the file until March 28, one day before the March 29 trial date that Keegan could not attend. The record also shows that appellant waived his UMDDA demand on the condition that his case be tried beginning May 10, which it was. At the time of the waiver, appellant acknowledged that he fully understood the rights he was giving up. Even if Keegan had notified the court and appellant at the omnibus hearing that he intended to withdraw from the case, appellant presented no evidence to show that his case would have been tried before the expiration of the UMDDA demand.
The record supports the district court’s finding that appellant failed to show that a reasonable probability exists that the outcome would have been different but for counsel’s errors. Therefore, we need not address whether Keegan’s representation fell below an objective standard of reasonableness.
Appellant argues that the prosecutor engaged in misconduct by stating that the jury should accept M.A.’s testimony as truthful. A prosecutor may not personally endorse the credibility of witnesses. State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995). When evaluating alleged misconduct, a court will look at the closing argument as a whole. State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003). Here, the prosecutor inferred in closing argument that M.A.’s testimony should be taken as truthful and appellant’s testimony should not. These statements were made within a discussion of factors affecting the credibility of the witnesses, and based on that context the statements were proper. See State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977) (stating that prosecutor has a right to analyze evidence and “vigorously argue” state’s witnesses are worthy of credibility). Even if the statements directly endorse the credibility of M.A., we review the statements under the plain-error standard because they were not objected to at trial.
Under the plain-error test, a new trial may be granted only if: (1) there was error, (2) the error was plain, and (3) the error affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). To meet the third prong, the state must show that the error was not prejudicial in that it did not affect substantial rights. State v. Ramey, 721 N.W.2d 204, 299-300 (Minn. 2006). Given the strength of the evidence against appellant, even if the statements were plain error, they were not sufficiently prejudicial to warrant a new trial.
Appellant argues that the district court erred in imposing three concurrent sentences for the three convictions because they were part of the same behavioral incident and should be barred under Minn. Stat. § 609.035, subd. 1 (2004). The district court has great discretion in sentencing, and this court may not substitute its own judgment. McLaughlin v. State, 291 Minn. 277, 284, 190 N.W.2d 867, 872 (1971). Whether multiple offenses form part of a single behavioral act is a question of fact. See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (reviewing district court’s finding of two separate behavioral acts under clearly erroneous standard).
“[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.” Minn. Stat. § 609.035, subd. 1. Whether multiple offenses arise out of a single behavioral incident depends on the circumstances and facts surrounding the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). Factors to consider in determining whether the conduct constituted a single behavioral incident include “time and place and whether [appellant] is motivated by a single criminal objective.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). “[I]f the factors of time and place are not coincidental and [appellant] is not motivated by a single criminal objective in committing two intentional crimes, then generally [appellant] may be sentenced for both crimes.” Id. at 295. The prohibition of multiple sentences for conduct arising out of a single behavioral incident applies to concurrent sentences. State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986).
In determining whether appellant’s conduct constituted a single behavioral incident, we must look at whether there was “a change in appellant’s criminal objective during the course of th[e] incident to support a break in the continuum of [his] criminal conduct.” State v. Williams, 608 N.W.2d 837, 842 (Minn. 2000). Appellant’s acts were committed within a relatively short timeframe. The sexual assault against M.A. occurred between 2:00 and 4:00 p.m. The burglary and motor-vehicle theft, committed against different victims, occurred at approximately 5:30 p.m. Appellant testified that he did not steal the vehicle in order to escape, but rather to drive to Minneapolis to pick up his unemployment check, and he intended to return the vehicle. Considering appellant’s admitted objective for the burglary and motor-vehicle theft was transportation and not escape, there was a break in the continuum of appellant’s criminal conduct between the assault and the burglary. The burglary and the motor-vehicle theft, however, constitute a single behavioral incident. The evidence shows that appellant broke into his employers’ home to get the keys to the car. Therefore, the district court abused its discretion in imposing a separate sentence for the motor-vehicle theft, and the 30-month sentence for that conviction is vacated.
Pro Se Supplemental Brief
The first two issues raised by appellant in his pro se supplemental brief are ineffective assistance of counsel and prosecutorial misconduct, which have already been addressed. Appellant also argues that the victim made inconsistent statements during her testimony. However, we defer to the factfinder’s credibility determinations. State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003) (stating that weight and believability of witness testimony is issue for district court, and appellate court defers to district court’s credibilitydeterminations), review denied (Minn. July 15, 2003). Appellant also fails to cite to the record or any legal authority in support of his arguments. See State v. Krosch, 642 N.W.2d 713, 719-20 (Minn. 2002) (holding the appellant’s pro se assertions “contain no argument or citation to legal authority in support of the allegations and [are] therefore deem[ed]  waived”).
Affirmed as modified.