This opinion will be unpublished and may not be cited except as provided by Minn.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 C7-96-169 Lazaro Despaigne Borrero, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed August 13, 1996 Affirmed Amundson, Judge Ramsey County District Court File No. K5-93-765 Lazaro Despaigne Borrero, MCF-Oak Park Heights, Box 10, Stillwater, MN 55082-0010 (Pro Se) Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent) Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Harten, Judge. U N P U B L I S H E D O P I N I O N AMUNDSON, Judge Appellant contends the trial court abused its discretion when it dismissed his petition for postconviction relief without appointing counsel or granting him an evidentiary hearing. We affirm. FACTS A jury found appellant Lazaro Despaigne Borrero guilty of illegal possession and sale of cocaine and illegal possession of a pistol. Before sentencing, Borrero filed a letter in which he requested a judgment of acquittal or a new trial on these bases: he was denied a fair trial, because all judicial officers and the jury were of a race different from his; the verdict was not supported by the evidence and is contrary to the law; and he should have been able to present certain evidence at trial, including the identity and testimony of the confidential informant. The trial court denied the motion, finding that the public defender had been "strong and effective" in defending Borrero and the jury had been "fair and impartial in all regards," and sentenced Borrero. On appeal from the judgment, this court affirmed Borrero's conviction. State v. Borrero, No. C0-93-2458 (Minn. App. Sept. 27, 1994), review denied (Minn. Nov. 16, 1994). Borrero then brought a pro se petition for postconviction relief, appointment of counsel, and an evidentiary hearing. Borrero contended that he had received ineffective assistance of trial counsel. The trial court dismissed the petition because Borrero had not raised the ineffective assistance of counsel claim in his direct appeal even though the claim had been available to him at that time. Similarly, because Borrero had already had the assistance of the State Public Defender in the direct appeal, the court found Borrero was not entitled to appointed counsel for the postconviction matter. Finally, the court found Borrero was not entitled to an evidentiary hearing. This appeal followed. DECISION Petition for postconviction relief based on ineffective assistance of counsel This court will not disturb a postconviction court's decision absent an abuse of discretion. Berry v. State, 364 N.W.2d 795, 796 (Minn. 1985). Our review is limited to a determination of whether the evidence is sufficient to sustain the findings. Bliss v. State, 457 N.W.2d 385, 391 (Minn. 1990). Borrero based his postconviction petition upon alleged ineffective assistance of counsel, an issue that was available at the time of his direct appeal, but which Borrero chose not to raise. This court will not consider in a postconviction petition any claim that was known but not raised in a prior direct appeal, unless the claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). However, if fairness requires, and the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal, this court may review the merits of the claim. Id. "This rule includes claims of ineffective assistance of trial counsel." Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). The arguments Borrero now raises in his pro se brief are substantively similar to the arguments that defense counsel made in Borrero's motion for judgment of acquittal or new trial. Indeed, at the motion hearing, the trial court commented on the strength of defense counsel's representation at trial. If those issues existed at the time of the motion hearing, they also existed at the time of the direct appeal and, thus, the claim of ineffective assistance of trial counsel is not "so novel" that it was unavailable at the time of the direct appeal. See Roby, 531 N.W.2d at 484. Nor does the record show that Borrero's failure to raise the issue was excusable. Id. Borrero contends, however, that a postconviction proceeding is the only appropriate forum for raising a claim of ineffective assistance of trial counsel. We disagree. The Minnesota Supreme Court noted that, even though the preferred method of challenging effectiveness of trial counsel may be by postconviction proceeding, a defendant is "procedurally barred from pursuing postconviction relief * * * " on the effectiveness of counsel issue if he chose to take a direct appeal first and failed to raise the issue in that proceeding. Fratzke, 450 N.W.2d at 102. We note that Borrero also appears to allege ineffective assistance of appellate counsel from his direct appeal. Borrero had the opportunity to present such an argument in the pro se brief he filed in that case. This court reviewed Borrero's pro se arguments and found them to be without merit. The trial court properly dismissed Borrero's petition for postconviction relief on the basis that Borrero had known of the ineffective assistance of trial counsel claim at the time of the direct appeal, but failed to raise it. Appointed counsel Borrero contends that he was entitled to a have counsel appointed to him for his postconviction petition. We disagree. Borrero relies on Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (interpreting Minn. Stat. § 590.05 (1990)). However, the Minnesota Legislature has amended that statute and superseded the holding in Harris. The current version of that statute entitles a person, who is financially unable to obtain counsel, to a state public defender only "if the person has not already had a direct appeal of the conviction." Minn. Stat. § 590.05 (1994). Because Borrero has already had a direct appeal of his conviction, he was not per se entitled to representation from the state public defender. The trial court properly denied Borrero's request for counsel. Evidentiary hearing Borrero contends he was entitled to an evidentiary hearing on his claims for postconviction relief. Since he failed to raise a viable claim for relief, the trial court properly denied his request for an evidentiary hearing. Affirmed.