This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-96-54

State of Minnesota,
Respondent,

vs.

Robert LaVern Hennessy,
petitioner,

Appellant.

Filed August 6, 1996
Affirmed
Randall, Judge

Morrison County District Court
File No. K5-93-1072

Hubert H. Humphrey, III, State Attorney General, Thomas E. Baily, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 S.E. First Avenue, Little Falls, MN 56345 (for respondent)

Pro Se, Minnesota Correctional Facility, 1101 Linden Lane, Faribault, MN 55021-6400 (for appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

RANDALL, Judge

Appellant challenges the postconviction court's denial of his petition for relief. We affirm.

FACTS

Appellant Robert Hennessy was charged under the criminal vehicular homicide and injury laws. Minn. Stat. ' 609.21 (1992). At the omnibus hearing, appellant moved to suppress blood alcohol results on the grounds that the police lacked probable cause to order blood tests and that the blood sample was taken in violation of his right to consult with an attorney under the implied consent law. The trial court denied appellant's motions. The case was then tried to the court on stipulated facts. Appellant was found guilty of one count of criminal vehicular homicide and one count of criminal vehicular injury.

Following a pre-sentence investigation, appellant was sentenced to an executed prison term of 48 months for his conviction of criminal vehicular homicide. At appellant's request, the court imposed a concurrent 23 month executed prison term for his conviction of criminal vehicular injury. The court also ordered appellant to pay the minimum mandatory fine of $6,000, plus court costs, and $52,476.43 in restitution to the victims.

Following sentencing, appellant filed a direct appeal, arguing the trial court erred in denying his motion to suppress blood alcohol results on the ground that his right to an attorney under the implied consent law had been violated and that the court erred in ordering a fine, restitution, and court costs. This court affirmed the conviction and sentence in all respects, and the supreme court denied appellant's petition for further review. State v. Hennessy, No. C3-94-2271 (Minn. App. May 16, 1995), review denied (Minn. July 20, 1995).

In August 1995, appellant filed a pro se petition for postconviction relief, claiming that his right to counsel under the implied consent law was violated when the police obtained a sample of his blood. The postconviction court denied appellant's petition for relief, concluding that this court had already decided that issue on direct appeal.

In September 1995, appellant filed a pro se motion to withdraw his plea, contending that the court's imposition of restitution was a substantial departure from the bargained-for sentencing agreement. In October 1995, he filed a second amended petition for postconviction relief on the ground that his claim of violation of right to counsel under the implied consent law had not been vindicated. The postconviction court denied appellant's motion to withdraw his plea. The court also denied appellant's amended petition for postconviction relief, reiterating that the issue had been raised and rejected on direct appeal to this court. This appeal followed.

D E C I S I O N

A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that warrant a reopening of the case. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). On appeal, this court reviews the postconviction court's decision under an abuse of discretion standard, and "the scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court's findings." Id. Further, where a direct appeal has been taken, "all matters raised therein, and all claims known but not raised will not be considered upon a subsequent petition for postconviction relief." Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995).

Minn. Stat. ' 169.123, subd. 2(b)(3) (1992), provides that

if the peace officer has probable cause to believe the person has violated the criminal vehicular homicide and injury laws, that a [chemical] test will be taken with or without the person's consent.

On direct appeal, this court affirmed the trial court's determination that the police had probable cause. Appellant argues, nevertheless, that the blood alcohol results should be suppressed because they were obtained before he could speak with an attorney. This court also considered and rejected the same argument on direct appeal, concluding that

[a]ppellant's theory fails because he was not under arrest, not detained, and had no right to a lawyer. The implied consent law does not apply in investigations and prosecutions for criminal negligence. Speak, 339 N.W.2d at 744. In situations where a driver is involved in a fatal accident and read the implied consent advisory but not allowed to consult an attorney, the reading of the advisory is merely a "superfluous act." State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993). A defendant in a criminal negligence investigation has no right to consult counsel before blood is removed and therefore has no difficult decisions to make about the legal ramifications of refusal to submit to the test. Because he "has no choice in the matter, there is no need, and hence no right, to contact counsel." Id.

Hennessy, unpub. op. at 6.

Appellant argues that this issue demands reconsideration in light of State v. Lopez, 538 N.W.2d 705 (Minn. App. 1995) and McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912 (Minn. App. 1995). Lopez, however, does not address the right-to-counsel issue. Lopez held only that the reading of the implied consent advisory is not a "custodial interrogation" triggering the Scales electronic recording requirement. Lopez, 538 N.W.2d at 707.

McNaughton is also distinguishable. McNaughton does not stand for the proposition that a defendant in criminal negligence case has a right to consult an attorney before blood is removed. Rather, McNaughton addresses a defendant's limited right to counsel under the implied consent law before submitting to chemical testing, where the defendant's driver's license was revoked for refusing to submit to testing. McNaughton, 536 N.W.2d at 914. McNaughton held that the defendant's right to counsel under the implied consent law was not vindicated where the driver was given a list of five pre-selected attorneys and denied access to telephone, directory assistance, or phone books. Id. at 915.

Because the issue of whether appellant was denied his right to counsel under the implied consent law was already considered and rejected on direct appeal, and there is no new statutory or case law, we hold that the postconviction court did not err in refusing to consider this issue as a basis for postconviction relief.

Appellant also argues that the court-ordered restitution materially altered the plea agreement. Thus, he contends, he is entitled, as a matter of law, to withdraw his guilty plea. Appellant did not challenge the restitution award at either the sentencing hearing or on direct appeal on the ground that it exceeded the terms of the sentencing agreement at either the sentencing hearing or on direct appeal. Thus, he has waived this issue on appeal. See Miller, 531 N.W.2d at 493 (where direct appeal has been taken "all matters raised therein, and all claims known but not raised will not be considered upon a subsequent petition for postconviction relief").

Whether a $52,000 restitution order is practical or makes any sense, is not before us. If that amount becomes, in reality, an impossibility for appellant to pay as a condition of his probation, a trial court down the road will have to face the constitutional issue of whether that failure to pay is grounds for revoking probation and reinstitution incarceration. It is not before us at this time.

Affirmed.