This opinion will be unpublished and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

CX-96-1624

Edward Joseph Boroski, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed March 18, 1997

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Roseau County District Court

File No. K394598

Mark D. Nyvold, Suite 654, 386 North Wabasha, St. Paul, MN 55102 (for Appellant)

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

Michelle E. Moren, Roseau County Attorney, 606 5th Avenue SW, Room 10, Roseau, MN 56751 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

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

LANSING, Judge

This is an appeal from a district court order dismissing a petition for postconviction relief. We conclude that the direct appeal foreclosed most of the issues raised in the postconviction petition, and the district court's denial of the petition was within its discretion. But because the district court did not address one unforeclosed ground for the petitioner's ineffective assistance of counsel claim, we remand for further consideration.

FACTS

Joseph Boroski pleaded guilty to second degree manslaughter for shooting another hunter who he mistakenly thought was a fox. At sentencing the district court imposed the three-year mandatory minimum sentence for second degree manslaughter involving use of a firearm. On direct appeal Boroski argued that the district court abused its discretion when it failed to inform him of the statutory mandatory minimum at the plea or sentencing hearing but imposed the mandatory minimum instead of the presumptive guidelines sentence of eighteen months stayed. His appeal was denied.

Boroski filed a petition for postconviction relief alleging (1) that his guilty plea was unknowing, involuntary, and unintelligent; (2) that defense counsel made unfulfilled assurances of probation; and (3) that defense counsel provided ineffective assistance of counsel.

The postconviction court denied Boroski's petition for an evidentiary hearing and postconviction relief, reasoning that because Boroski had failed to raise the arguments asserted in the postconviction petition at sentencing, in a post-trial motion, or on direct appeal, he waived his rights to do so in his petition for postconviction relief.

Boroski now appeals.

D E C I S I O N

The district court must grant an evidentiary hearing for a postconviction appeal "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1996). The district court may decide not to grant an evidentiary hearing only when there is no material issue of fact in dispute. State ex rel Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (Minn. 1967). To place material facts in dispute, the petitioner must allege facts which, if proven, would entitle the petitioner to the requested relief. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

I

Boroski argues that because he was not informed of the mandatory minimum before sentencing, his plea was not voluntary, knowing, and intelligent and that he should be permitted to raise the validity of his plea now even though he did not challenge his plea in his direct appeal. The Minnesota Rules of Criminal Procedure require either counsel or the court to inform the defendant of the mandatory minimum before sentencing. Minn. R. Crim. P. 15.01(10)(b).

When a direct appeal has been taken in a criminal case, issues raised in that appeal or claims known but not raised will not be considered in a petition for postconviction relief unless the legal basis for the claim was not reasonably available at the time of the direct appeal. Case v. State, 364 N.W.2d 797, 799 (Minn. 1985). Claims of ineffective assistance of counsel, however, may be raised in a postconviction proceeding when not raised in a direct appeal. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Boroski argues that the failure to raise the validity of his plea in his direct appeal does not preclude him from raising it now because post-traumatic stress and depression following the incident prevented him from challenging his conviction. For two reasons we reject this argument.

First, Boroski's postconviction petition requests that his plea be vacated because he was suffering post-traumatic stress disorder and depression "leading up to his guilty plea and sentencing." He does not allege that this condition continued or affected his decision making after sentencing or during the preparation of his direct appeal. See Fratzke, 450 N.W.2d at 102 (dismissing postconviction petition because allegations were too generalized).

Second, the evidence Boroski points to as support for his argument of incapacitating post-traumatic stress is from a psychologist who treated Boroski for depression and post-traumatic stress after the shooting but before Boroski entered his plea. Dr. Shoberg's letter evaluating the post-traumatic stress Boroski suffered in the five months preceding the plea and immediately following the incident is the only evidence in the record relating to Boroski's mental state.

Neither the allegations in the petition nor the facts in the record support Boroski's argument that post-traumatic stress disorder prevented him from raising the plea withdrawal issue in his direct appeal. On this record the district court did not err in denying Boroski an evidentiary hearing on the validity of his plea.

II

Boroski's second allegation is that his defense counsel made unfulfilled assurances that he would receive the presumptive sentence of probation. Boroski's attorney stated on the record that "this is a presumptive non-prison sentence meaning that as a result of entering a plea * * * you do not automatically go to prison." An unqualified promise that is part of a plea arrangement must be honored or the guilty plea may be withdrawn. Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979). But this statement was made by Boroski's attorney, not the prosecutor, and it was not a promise made as part of a plea agreement. Furthermore, this unfulfilled promise argument was available to Boroski at the time of his direct appeal. He did not raise it, and as a result, he is barred from raising it in a postconviction appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

III

Boroski's final allegation is that he received ineffective assistance of counsel. To prevail on this claim, Boroski must demonstrate that counsel's errors were "unreasonable" and resulted in "actual prejudice." Strickland v. Washington, 466 U.S. 668, 688, 693-94, 104 S. Ct. 2039, 2052, 2067-68 (1984); Gates v. State, 398 N.W.2d 558, 561-62 (Minn. 1987). Boroski asserts three grounds for his ineffective assistance claim. He alleges that defense counsel (1) should have sought out the final autopsy before discussing a plea with him; (2) should have advised him of the mandatory minimum sentence; and (3) should have advised him of his right to try to withdraw his plea prior to sentencing.

The postconviction court concluded that Boroski failed to demonstrate actual prejudice resulting from defense counsel's failure to obtain the final autopsy report or defense counsel's failure to advise Boroski of the mandatory minimum sentence. We agree. Boroski has not presented any reasonable inferences relating to the contents of the final autopsy report that might be exculpatory. And it is undisputed that Boroski knew of the mandatory minimum at the time he was sentenced and did not attempt to withdraw his plea or raise it in his direct appeal.

Boroski's third ground, that his attorney failed to advise him of his right to withdraw his plea before sentencing, was not addressed by the district court. We are satisfied that Boroski's postconviction petition adequately alleges this ground and that this claim may be raised in a postconviction proceeding even though it was not raised in the direct appeal. See Scruggs, 484 N.W.2d at 25 (permitting ineffective assistance claim in postconviction proceeding despite failure to raise in direct appeal).

The standard for withdrawing a plea before sentence ("fair and just") is less rigorous than the standard for withdrawing a plea after sentence ("necessary to correct a manifest injustice"). Minn. R. Crim. P. 15.05, subds. 1, 2. Boroski's allegation demonstrates possible prejudice and provides a basis for an evidentiary hearing. We remand to allow the district court an opportunity to address this issue.

Affirmed in part, reversed in part, and remanded.