may not be cited except as provided by
Minn. Stat. §. 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Larry Eugene Burrell, petitioner,
State of Minnesota,
Filed October 8, 1996
Hennepin County District Court
File No. 92-012271
Larry Eugene Burrell, 1101 Linden Lane, Faribault, MN 55021 (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, Paul R. Scoggin, Assistant County Attorney, Kathleen Ghreichi, Special Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Foley, Judge.
In 1992, appellant Larry Burrell was convicted of simple and aggravated robbery, sentenced to the presumptive term for aggravated robbery, and ordered to pay restitution. On direct appeal, this court affirmed. State v. Burrell, 506 N.W.2d 34 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In 1995, appellant filed a petition for postconviction relief alleging unconstitutionally vague criminal statutes, erroneous sentencing and restitution, false testimony by state's witness, and an improper restitution order. His petition was denied. Because we find that appellant raised or could have raised all issues on direct appeal, we affirm.
Appellant testified at trial that as he approached the getaway vehicle, someone jumped on his back and placed a hand over his mouth. He testified that he bit the person by mere reflex without thinking. He said he did not know it was Abusbeih until after he bit her and pushed her to the ground.
Abusbeih, on the other hand, testified that she did not jump on his back or place her hand over his mouth. She said that appellant grabbed her while she was screaming at him, threw her against the getaway car, bit her hand, punched her in the face, and knocked her to the ground. She testified that appellant then got into the car and threw one carton of cigarettes at her as the car sped away. The police, having heard Abusbeih calling for help, immediately stopped the vehicle and took appellant into custody.
On September 29, 1992, a jury found appellant guilty of simple and aggravated robbery in violation of Minn. Stat. SSSS 609.24 and 609.245 (1990). The trial court sentenced him to 108 months, the presumptive sentence for aggravated robbery, and ordered restitution.
On direct appeal, appellant argued that the evidence was insufficient to support the verdict, the simple and aggravated robbery statutes impermissibly overlapped, and there should have been a downward departure in his sentence. This court affirmed the trial court. Burrell, 506 N.W.2d at 37.
On April 27, 1995, appellant filed a petition for postconviction relief, asserting that: (1) the simple and aggravated robbery statutes are unconstitutionally vague because they impermissibly overlap; (2) justice required that he be sentenced for the simple robbery conviction instead of the aggravated robbery conviction; (3) he was entitled to a new trial because Abusbeih committed perjury; and (4) the court erred by ordering him to pay restitution to the Victim Reparations Board because it is not a victim under Minn. Stat. § 611A.04. The postconviction court denied his petition.
[s]ince the statutes for simple robbery and aggravated robbery are clear and describe different behavior, they do not impermissibly overlap.
Burrell, 506 N.W.2d at 37. Because this issue was raised on direct appeal, it may not be considered by a postconviction court.
Although appellant did not raise this issue on direct appeal, it is barred because it could have been raised at that time. See Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995) (perjury claim waived because not raised on direct appeal). Moreover, "[t]he facts alleged must be more than bald assertions or conclusory allegations without factual support." Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987), review denied (Minn. May 18, 1987). Appellant's allegation of perjury lacks sufficient factual support to warrant postconviction relief.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.