This opinion will be unpublished and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

C0-95-1590

Solomon Benildo Martinez, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 4, 1996

Affirmed

Willis, Judge

Hennepin County District Court

File No. 910707

Solomon Benildo Martinez, El Dorado Correctional Facility, Registration No. 32158, P.O. Box 311, El Dorado, KS 67042 (Pro Se Appellant)

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

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

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Solomon Martinez appeals an order denying his petition for postconviction relief. We affirm.

FACTS

Martinez was convicted of two counts of first-degree criminal sexual conduct and two counts of kidnapping for abducting and sexually assaulting 17-year-old M.S. and 16-year-old S.O. on February 16, 1991. The trial court sentenced Martinez to 300 months for one of the criminal sexual conduct offenses and a consecutive 180 months for the other, for an aggregate sentence of 480 months. This was the statutory maximum and slightly less than double the presumptive sentence for the two offenses sentenced consecutively. See Minn. Stat.  609.15, subd. 2 (1990).

Martinez filed a direct appeal, in which he was represented by appointed counsel. This court affirmed the conviction and sentence in an unpublished opinion. State v. Martinez, No. C3-92-466, 1992 WL 383422 (Minn. App. Dec. 29, 1992).

Martinez filed a pro se postconviction petition claiming that he was denied the effective assistance of counsel at trial and that the sentencing departure was an abuse of discretion. He filed a motion for appointment of private counsel, along with other motions.

The trial court denied the petition without a hearing. The court granted Martinez's motion to proceed in forma pauperis, but denied the other motions. The court concluded that the issues raised in the petition had already been addressed and decided on direct appeal.

D E C I S I O N

I.

Martinez's challenge to the postconviction court's denial of his motion for appointment of counsel is without merit. There is no constitutional right to the appointment of counsel for indigent defendants pursuing a postconviction petition. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987). Furthermore, because Martinez was represented by appointed counsel on direct appeal of his conviction, he has no statutory right to appointed counsel in this postconviction proceeding. Minn. Stat.  590.05 (1994).

Martinez argues that denial of counsel has deprived him of a fair opportunity to develop his postconviction claims. Because the statute has been amended to limit the right to counsel to petitioners for postconviction relief who have not had a direct appeal, there is no ground for his claim. Cf. Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (deciding before statute was amended that denial of counsel in a postconviction proceeding required reversal).

II.

Martinez argues that the postconviction court abused its discretion in denying his petition. This court reviews a postconviction proceeding only to determine whether sufficient evidence exists to support the postconviction court's findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The postconviction court's decision will not be disturbed absent an abuse of discretion. Id.

Martinez argues that the trial court abused its discretion in departing upward to 480 months, the statutory maximum sentence. But, as the postconviction court found, Martinez challenged the departure on direct appeal and cannot relitigate that issue here. See Case v. State, 364 N.W.2d 797, 799 (Minn. 1985) (holding that claim raised on direct appeal will not be considered in postconviction proceeding).

Martinez does argue for the first time that the sentencing departure should be reversed because the trial court failed to file the departure report within 15 days. See Minn. R. Crim. P. 27.03, subd. 4(C). His argument that this failure is reversible error, when the trial court stated the reasons for departure at sentencing, is without merit. See generally State v. Pendzimas, 379 N.W.2d 247, 248 (Minn. App. 1986) (explaining that departure reasons should be stated at sentencing to allow defendant to evaluate and prepare appeal), review denied (Minn. Mar. 14, 1986).

The postconviction court also found that Martinez's claim of ineffective assistance of counsel was barred because it was raised on direct appeal. This court has addressed an ineffective assistance claim in a second postconviction petition even though the defendant raised the same issue, on somewhat different grounds, in both his direct appeal and his first postconviction petition. Crisler v. State, 520 N.W.2d 22, 26 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994). As this court noted in Crisler, such a claim could be held barred. See id. (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). We conclude that even if Martinez's ineffective assistance claim is not procedurally barred, it lacks substantive merit.

A defendant claiming ineffective assistance of counsel must show both that counsel's representation "fell below an objective standard of reasonableness" and that there is a "reasonable probability that, but for counsel's unprofessional errors" the result would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2068 (1984)).

Martinez's present claims of ineffective assistance all involve the failure to investigate the case more fully. The supreme court has held:

It is within trial counsel's discretion to forgo investigation of leads not reasonably likely to produce favorable evidence.

Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991). The decision not to call certain witnesses may be a reasonable tactical decision. Id.

Martinez cites Sullivan v. Fairman, 819 F.2d 1382 (7th Cir. 1987), in which the court affirmed a finding that counsel's failure to track down witnesses was ineffective assistance. But the court in Sullivan stated:

It is undisputed that, prior to trial, defense counsel was aware, through the police reports and discovery, that there were five witnesses, with no apparent reason to help the defendant, who made statements to the police that were exculpatory or inconsistent with the prosecution witnesses' statements. The names and addresses of these witnesses were available to defense counsel; yet his attempts to locate and to interview them were perfunctory at best.

Id. at 1391-92.

Martinez has made no showing even approaching that made in Sullivan. He relies on the mere possibility that favorable evidence would have been developed, while ignoring the fact that such evidence, to be favorable, would have to be both credible and consistent with the other evidence at trial. The court in Sullivan stated:

Again, we stress that we do not hold that trial defense counsel must track down every lead or must personally investigate every evidentiary possibility before choosing a defense and developing it.

Id. at 1392.

Martinez has not shown that the defense his counsel developed and presented at trial was unreasonable. See generally Gustafson, 477 N.W.2d at 713 (holding that what witnesses to call and what evidence to present at trial are matters of trial strategy that are generally within the discretion of trial counsel).

Affirmed.


Footnotes

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, sec. 10.