This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1126

Gerald Keith LaFreniere, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed February 18, 1997

Affirmed

Peterson, Judge

Pine County District Court

File No. K889615

Gerald Keith LaFreniere, P.O. Box 55, Stillwater, MN 55082 (Pro Se)

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

John K. Carlson, Pine County Attorney, Brent S. Schafer, Assistant Pine County Attorney, 316 6th Street, Pine City, MN 55063 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.[*]

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

PETERSON, Judge

This appeal is from an order denying Gerald LaFreniere's postconviction petition challenging the revocation of his probation and execution of sentence. We affirm.

FACTS

Appellant Gerald LaFreniere pleaded guilty in 1989 to two counts of second-degree criminal sexual conduct. He was sentenced to concurrent stayed sentences of 26 and 30 months and placed on probation for 15 years. The conditions of probation included abstaining from alcohol, completing outpatient sexual offender treatment, and paying a fine or performing community service work.

Following probation revocation hearings in April 1991, January 1995, and April 1995, the court found that LaFreniere had violated probation. Each time, the court modified the conditions of probation and continued probation.

The substance of LaFreniere's postconviction claims concern a fourth revocation hearing, held on December 4, 1995, at which LaFreniere admitted violating two of the conditions of probation, including the requirement that he complete sex offender treatment. The court revoked probation and executed the concurrent 26 and 30 month sentences. LaFreniere did not appeal the probation revocation order, but instead wrote to the presiding judge and asked for a modification of the sentence. When that request was not granted, LaFreniere filed a pro se postconviction petition.

LaFreniere's petition alleged that there was insufficient evidence to show that he violated his conditions of probation. The petition was assigned to the judge who had sentenced LaFreniere in 1989. After the state filed a response to the petition, LaFreniere filed an amended petition, a motion for the assigned judge to recuse, and a request for appointment of counsel. In his amended petition, LaFreniere added a claim of ineffective assistance of counsel. The postconviction court denied the petition and the amended petition without a hearing. The court concluded that LaFreniere "has alleged no material facts requiring vacation of the revocation and resulting sentence." The court discussed LaFreniere's claims of insufficient evidence, then briefly referred to the claim of ineffective assistance, dismissing it as "mere assertions lacking any material facts to substantiate them."

D E C I S I O N

1. Summary denial of postconviction claims.

LaFreniere argues that he was entitled to an evidentiary hearing on his claims of insufficient evidence and ineffective assistance of counsel. We disagree.

The district court has broad discretion in determining whether to revoke probation and its decision will be reversed only if there is a clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). The court may summarily deny a postconviction petition without holding an evidentiary hearing if the record and the petition conclusively show that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (1994). A hearing is not required unless the petitioner alleges facts that, if proven, would entitle him to the requested relief. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995); Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

LaFreniere's claim that he presented factual allegations warranting an evidentiary hearing is without merit. In his original petition, LaFreniere challenged only the sufficiency of the evidence that he had violated the conditions of probation. Some of the facts he presented related only to alleged violations that were withdrawn. The remainder consisted of a reiteration of facts LaFreniere claimed should excuse his failure to complete the sex offender treatment program. These facts, and a similar excuse, had already been presented at the probation revocation hearing and were rejected by the district court. The facts alleged in the postconviction petition, to the extent not already considered, could not have altered the decision to revoke probation. As the postconviction court found, given LaFreniere's admission that he did not complete the treatment program, the facts offered in the petition were merely "empty assertions at this point."

LaFreniere argues that he received ineffective assistance of counsel at the probation revocation hearing because his counsel advised him that if he admitted violating two of the terms of his probation, including failure to complete treatment, he would be required to serve 30 days in the county jail. LaFreniere contends that if he had not been advised to admit the alleged violations, the allegations could have been refuted at the revocation hearing. A postconviction petitioner who claims ineffective assistance of counsel must allege facts that would affirmatively prove both counsel's unprofessional errors and a reasonable probability that, but for those errors, the result would have been different. Fratzke, 450 N.W.2d at 102.

As a factual basis for his claim of ineffective assistance of counsel, LaFreniere described in his amended petition certain financial difficulties that prevented him from completing treatment. LaFreniere asserts that his attorney failed to investigate or to bring the true facts regarding his failure to complete treatment before the court.

The probation revocation transcript shows that LaFreniere's attorney argued that financial difficulties prevented LaFreniere from completing treatment, but the attorney only summarized the financial difficulties. The financial difficulties described in LaFreniere's amended petition, even if proved at the probation revocation hearing, would not have proved that counsel's decision to provide summary information was not a reasonable starategic decision. Furthermore, the financial difficulties described in the amended petition do not demonstrate that there was a reasonable probability that had the financial difficulties been described in detail at the revocation hearing, the district court would have continued probation for a defendant who had failed to complete treatment in six years despite two prior revocation hearings on the issue.

LaFreniere argues that he should not be required to assert facts in the postconviction petition, but should be granted an evidentiary hearing to develop the facts. Minn. Stat. § 590.02, subd. 1(1) (1994), however, specifically requires that a postconviction petition contain a "statement of the facts" as well as the legal grounds upon which relief is sought. Both Kelly, 535 N.W.2d at 347-49, and Fratzke, 450 N.W.2d at 102, permit summary denial based on an assessment of the facts alleged. Neither suggests that a petitioner may simply assert a legal argument and obtain an evidentiary hearing at which to build a factual basis for it. See Kelly, 535 N.W.2d at 347-49; Fratzke, 450 N.W.2d at 102.

2. Representation of counsel

A postconviction petitioner has no constitutional right to counsel. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987). But in Minnesota, a postconviction petitioner has a statutory right to the appointment of counsel. See Minn. Stat. § 611.14 (1994) (establishing when person is entitled to appointment of counsel). The statute provides:

The following persons who are financially unable to obtain counsel are entitled to be represented by a public defender:

* * * *

(2) a person appealing from a conviction of a felony or gross misdemeanor, or a person convicted of a felony or gross misdemeanor who is pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction.

Id.

LaFreniere has not had a direct appeal of his conviction and argues that he is, therefore, entitled to appointed counsel to represent him in the postconviction proceeding. We disagree. The fact that LaFreniere has not had a direct appeal of his conviction does not mean that he is entitled to appointed counsel in every postconviction proceeding that is somehow related to the conviction.

When there has been no direct appeal of a conviction, a postconviction proceeding challenging the conviction can take the place of a direct appeal by ensuring that the conviction has been adequately reviewed. See State f. Knaffla, 309 Minn. 246, 251-52, 243 N.W.2d 737, 740-41 (1976) (defendant entitled to at least one review of conviction by an appellate or postconviction court). Thus, Minn. Stat. § 611.14(2) creates a right to be represented by a public defender in either a direct appeal of a conviction or a postconviction proceeding that challenges a conviction when the petitioner has not already had a direct appeal of the conviction.

In this postconviction proceeding, LaFreniere is not challenging his conviction, he is challenging the revocation of his probation. Although LaFreniere has not had a direct appeal of his conviction, he is not entitled to appointment of counsel in this postconviction proceeding because review of the probation revocation does not take the place of a direct appeal of his conviction.

LaFreniere also argues that the postconviction court judge erred in declining to recuse from the postconviction proceeding. This court has held that a postconviction proceeding is not a separate action providing the defendant the right to automatic removal of one judge. Johnson v. State, 486 N.W.2d 825, 827-28 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). LaFreniere, who presented only an unsupported allegation of harshness toward a family member in a separate proceeding, has not made an affirmative showing of cause to remove the postconviction court judge. See State v. Laughlin, 508 N.W.2d 545, 547-48 (Minn. App. 1993) (litigant must show judge's impartiality might reasonably be questioned in order to remove for cause).

Affirmed.

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