This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals

     State of Minnesota,

La Verne Koenig,
     Filed May 14, 1996
Willis, Judge

Todd County District Court

File No. K2-93-606

Hubert H. Humphrey, III, Attorney General, Jon C. Audette, Assistant
Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101
(for Respondent)

Charles G. Rasmussen, Todd County Attorney, 119 3rd Street S., Long
Prairie, MN 56347 (for Respondent)

La Verne Koenig, Rt. 2, Box 103, Long Prairie, MN 56347 (Pro Se Appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and
Willis, Judge.
                        Unpublished Opinion

WILLIS, Judge (Hon. Thomas A. Godzala, District Court Trial Judge)

La Verne Koenig challenges denial of his petition for postconviction
relief, arguing that (1) he was denied his right to postconviction counsel,
(2) the district court erred by not allowing him to withdraw his petition
for postconviction relief, (3) the district court erred by denying an
evidentiary hearing on his claim of ineffective assistance of counsel on
appeal, (4) it was an abuse of discretion for the district court to deny

the petition without specific findings of fact, and (5) Minn. Stat.
𨺦.05 is unconstitutional. We affirm.

La Verne Koenig was charged with writing a worthless check for $415 at an
auction in Long Prairie. The check was written on a South Dakota bank
account that had been closed two weeks earlier.

Koenig appeared in court with the assistance of a public defender and
demanded a speedy trial, a demand that was later modified, with Koenig's
consent. When Koenig appeared for trial, the public defender explained to
the court that he was appearing as Koenig's legal adviser and not as his
attorney. The court asked Koenig if he had decided to represent himself,
and Koenig replied that he had.

Koenig was convicted of three gross misdemeanor counts of theft and one
gross misdemeanor count of issuing a worthless check. The district court
vacated the three theft convictions and sentenced him to 365 days in jail
and a $3,000 fine on the conviction for issuing a worthless check. The
sentence was stayed, and Koenig was placed on probation for two years on
the conditions that he serve 90 days in jail, pay a $500 fine or perform
community service in lieu of the payment, and make restitution in the
amount of $415.

Koenig, with the assistance of a public defender, took a direct appeal to
this court, arguing that he had not knowingly waived his rights to counsel
and a speedy trial. This court affirmed his conviction. He then filed a
petition for further review with the Minnesota Supreme Court. The supreme
court denied his petition.

While his petition for review was pending, Koenig filed a pro se petition
for postconviction relief, which the district court denied in all respects.
This appeal followed.

I. Appointment of Counsel for Postconviction Proceedings
Koenig contends that he was denied his constitutional right to
assistance of counsel because the district court denied his request to have
counsel appointed for the postconviction proceedings. In support of his
argument, Koenig relies on Harris v. State, 470 N.W.2d 167 (Minn.
App. 1991). In Harris, the appellant filed a direct appeal before
filing a petition for postconviction relief, and this court held that
        [a]n indigent person who properly applies to the
        court shall be entitled to representation by the
        state public defender to pursue postconviction
        relief from a felony or gross misdemeanor

Id. at 167.

Since the decision in Harris, however, the relevant statute has been
amended to read
        A person financially unable to obtain counsel who
        desires to pursue the remedy provided in section
        590.01 may apply for representation by the state
        public defender. The state public defender shall
        represent such person under the applicable
        provisions of sections 611.14 to 611.27, if the
        person has not already had a direct appeal of
        the conviction * * *

Minn. Stat. § 590.05 (1994) (emphasis added); see also
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993
(1987) (rejecting suggestion that prisoners' constitutional right to
counsel extends beyond their first right of appeal).

Before filing his petition for postconviction relief, Koenig had directly
appealed his conviction and had petitioned the Minnesota Supreme Court for
further review. Thus, under the statute, Koenig was not entitled to have a
public defender appointed to represent him in the postconviction
II. Withdrawal of Petition for Postconviction Relief
Under Minnesota law, a district court ``may at any time prior to its
decision on the merits permit a withdrawal of the petition, ***.'' Minn
Stat. § 590.03 (1994). Koenig contends that the district court abused
its discretion by denying his motion to withdraw his petition for
postconviction relief. Koenig argues that the district court's denial was
prejudicial because he did not have an opportunity to have an ``evidentiary
hearing to establish a record of the issues raised in the original

The record indicates that Koenig's motion to withdraw his petition for
postconviction relief was filed at the hearing on his petition. The issues
raised in Koenig's motion to withdraw the petition were essentially
identical with those raised in the petition itself. Because Koenig's motion
to withdraw the petition did not identify issues justifying a withdrawal,
we conclude that the district court did not abuse its discretion in denying
the motion.
III. Claim of Ineffective Assistance of Counsel on Appeal
Koenig contends that the district court erred in denying his petition
for postconviction relief without an evidentiary hearing on his claim of
ineffective assistance of counsel handling his appeal.

A postconviction proceeding is reviewed only to ``determine whether there
is sufficient evidence to sustain the postconviction court's findings ***
.'' Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The decision
of the postconviction court will not be reversed absent an abuse of
discretion. Id.
An evidentiary hearing is required only if the petitioner ``alleges
facts which, if proven, would entitle the petitioner to the requested
relief.'' State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995). Thus, to
determine whether Koenig was entitled to an evidentiary hearing, this court
must look to the substance of his claim. Id. Koenig had to allege
facts that would prove that the representation of his appellate counsel
        ``fell below an objective standard of
        reasonableness'' and ``that there is a reasonable
        probability that, but for counsel's unprofessional
        errors, the result of the proceeding would have been

Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (quoting
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) ); see
also Swenson v. State, 426 N.W.2d 237, 240 (Minn. App.
1988) (holding that the same standard is applied to trial counsel and
appellate counsel).

Koenig contends that his appellate counsel failed to request this court to
remand the record to the district court for an evidentiary hearing on
Koenig's alleged waiver of counsel and speedy trial issues. Koenig claims
that he was prejudiced by this failure because this court was unable to
review an expanded record. In support of his allegation, Koenig contends
that his appointed counsel in the district court misinformed him regarding
his waiver of a speedy trial and coerced him into waiving counsel at trial.

The district court conducted an extensive inquiry into Koenig's knowledge
and understanding of his right to proceed pro se. The district court also

made certain that Koenig's standby counsel adequately explained the
consequences of his decision to him. Further, the record demonstrates
Koenig's familiarity with the court process. In light of these facts, which
are supported by the record, it is not probable that the outcome of
Koenig's direct appeal would have been different if his appellate counsel
had requested that this court remand the case for an evidentiary hearing.
IV. Absence of Findings of Fact
Koenig also contends that the district court's denial of his petition
for postconviction relief was an abuse of discretion because the district
court failed to make specific findings of fact.

Under Minnesota law, a district court, when considering a petition for
postconviction relief, shall ``make findings of fact and conclusions of law
with respect thereto.'' Minn. Stat. 𨺦.04, subd. 1 (1994). However,
an absence of findings does not always require a remand. Scruggs,
484 N.W.2d at 24. This court may disregard the absence of findings ```if
the record is clear and yields an obvious answer to the relevant questions
raised on appeal.''' Id. at 25 (quoting Davis v. State, 775
P.2d 1243, 1247 (Idaho Ct. App. 1989), review denied (Idaho July 29,
1989) ).

The facts in the record support the denial of the postconviction petition.
Thus, the district court's failure to make findings of fact in this case
does not require us to remand.
V. Constitutionality of Minn. Stat. 𨺦.05
Koenig contends that Minn. Stat. § 590.05, relating to
representation by the state public defender of indigent petitioners for
postconviction relief, is unconstitutional. He claims that the statute
discriminates against indigent persons by allowing the state public
defender's office to provide ineffective representation. Koenig contends
that it is a ``facade'' to expect the state public defender's office to
challenge ``their own ineffective assistance.''

Koenig indirectly refers to the provision of the Minnesota Constitution
that provides that persons accused of a crime have the right to have
assistance of counsel. However, he fails to establish how this provision is
violated by the statute. State statutes are presumed to be constitutional,
and this court's ``power to declare a statute unconstitutional should be
exercised with extreme caution and only when absolutely necessary.'' In
re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). The burden falls on the
party challenging the statute to prove ``beyond a reasonable doubt a
violation of some provision of the Minnesota Constitution.'' Id.
Because Koenig has failed to satisfy his burden of proving a violation of
the Minnesota Constitution, we have no basis for declaring section 590.05