This opinion will be unpublished and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

C5-96-1966

Eric Woods Halvorson, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed April 22, 1997

Affirmed

Schumacher, Judge

Pope County District Court

File No. C796255

Eric Woods Halvorson, Inmate No. 100709, Box 55, Stillwater, MN 55082 (Pro Se Appellant)

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

Belvin L. Doebbert, Pope County Attorney, 605 South Lakeshore Drive, Glenwood, MN 56334 (for Respondent)

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

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

SCHUMACHER, Judge

Appellant Eric Woods Halvorson challenges the denial of an evidentiary hearing and postconviction relief, arguing that the district court abused its discretion, that Halvorson had ineffective assistance of counsel at the trial, appellate, and resentencing levels, that the prosecution was guilty of misconduct, that the district court was biased, and that CRIMJIG 3.04 is unconstitutional. Because we find that Halvorson does not allege the facts necessary to require an evidentiary hearing, that Halvorson does not allege facts that would affirmatively prove Halvorson's legal representation fell below an objective standard of reasonableness, that there was no prosecutorial misconduct or judicial bias, and because CRIMJIG 3.04 is constitutional, we affirm.

FACTS

In March 1992, Halvorson kidnapped and sexually assaulted N.C. A full fact recitation is contained in State v. Halvorson, 506 N.W.2d 331 (Minn. App. 1993) (Halvorson I). The jury found Halvorson guilty of two counts of criminal sexual assault and two counts of kidnapping; he was sentenced to a 20-year term.

Halvorson challenged both the judgment and sentence, claiming that there was insufficient evidence to support the verdict, that the sentence was contrary to law, and that the victim's outburst from the gallery denied him a fair trial. This court affirmed the conviction on the grounds that the evidence was sufficient and that the victim's outburst at trial was not prejudicial, but reversed and remanded for resentencing on the ground that because there was only one behavioral incident, Halvorson should be sentenced for one kidnapping and one criminal sexual assault and that consecutive sentencing was appropriate only if aggravating circumstances were present. Halvorson I, 506 N.W.2d at 337, 340.

On remand, the trial court concluded that there were severe aggravating circumstances to justify a consecutive double durational departure and issued an amended order sentencing Halvorson to 88 months for one count of kidnapping and 20 years for one count of criminal sexual conduct. Halvorson challenged the amended sentencing order; this court affirmed the finding of severe aggravating circumstances, but modified the sentence on the kidnapping conviction after determining the trial court had incorrectly calculated the presumptive sentence. State v. Halvorson, No. C8-94-1004, unpub. op. at 2-3 (Minn. App. Sept. 6, 1994) (Halvorson II).

In July 1996, Halvorson filed a petition for postconviction relief and requested an evidentiary hearing, asserting ineffective assistance of counsel, prosecutorial misconduct, judicial bias, unconstitutional jury instructions, and a request to submit newly discovered evidence. The trial court denied Halvorson's motion for an evidentiary hearing and postconviction relief. This appeal followed.

D E C I S I O N

1. On appeal from summary denial of a petition for postconviction relief, the reviewing court determines whether sufficient evidence exists to support the lower court's findings. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). The district court will not be reversed absent an abuse of discretion. Id.

Halvorson argues that he was entitled to an evidentiary hearing on his petition for postconviction relief.

An evidentiary hearing upon a petition for postconviction relief is not required unless the petitioner alleges such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief. The allegations raised in the petition must be "more than argumentative assertions without factual support."

Id. (citations omitted) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). Halvorson alleges no facts that, if proved, would entitle him to relief; instead, he asserts that if he were granted an evidentiary hearing, he would be able to elicit facts entitling him to relief. This assertion, however, does not meet Halvorson's burden of alleging facts.

2. To show constitutionally inadequate performance by an attorney, Halvorson must allege facts that would

affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 2068 (1984)). Halvorson argues ineffective assistance of counsel at three levels. He asserts his trial counsel was ineffective because he waived Halvorson's right of confrontation by stipulating to have two reports on blood evidence by experts from the Bureau of Criminal Apprehension (BCA) read to the jury without cross-examining the authors, because he failed to object to the admission of "multiple syringes" that had a prejudicial effect and were not needed to prove the elements of the crime, and because he failed to expose the falsity of some of the victim's testimony.

"Which witnesses to call and what evidence to present to the jury are matters of trial strategy, which are within the discretion of the trial counsel."

Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990)). Stipulating to reading the results of the BCA investigation and admitting "multiple syringes" were trial strategy and within counsel's discretion. The jury heard testimony regarding any inconsistencies in the victim's statements. Moreover, Halvorson fails to allege facts that, if true, affirmatively prove his trial counsel's representation fell below an objective standard of reasonableness and fails to show how the proceeding would have been different if counsel had acted in some other manner. We conclude that trial counsel was not ineffective.

Halvorson claims that appellate counsel was inadequate because he failed to correct and argue the alleged errors of trial counsel. Because Halvorson knew of and failed to raise this claim in his appeal from resentencing, he is precluded from raising it now. See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) ("where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief"). Even if we did address his claim, we conclude that trial counsel was not ineffective, and this argument fails. Nor was Halvorson's counsel at resentencing ineffective. Relief is not available to a defendant who is wrongly denied the right to be present at resentencing if the error is harmless. State v. Ware, 498 N.W.2d 454, 457-58 (Minn. 1993). The record indicates that counsel and Halvorson discussed whether it would be in Halvorson's best interest to appear at the resentencing hearing and that second, the resentencing judge intended to impose the maximum sentence allowed by law. Halvorson waived his right to be present. Moreover, any error is harmless because Halvorson's presence at the hearing would not have affected the mathematical calculation of his sentence.

3. Halvorson argues that the prosecutor was in contempt of court because a witness violated court rules. He offers no authority, however, showing that a prosecutor is responsible for the witness abiding by court rules.

Halvorson argues that the prosecutor improperly called witnesses who purposely gave false testimony to the jury. This argument also fails. Halvorson does not state what the false testimony was and makes no claim that the prosecution knew false testimony was being offered.

Finally, Halvorson argues that the prosecutor used improper remarks in his closing arguments to bolster the credibility of the victim. Again, this issue is precluded because Halvorson did not raise it before the trial court. See State v. Packard, 366 N.W.2d 721, 726 (Minn. App. 1985), (arguments made on appeal for first time will not be considered) review denied (Minn. July 17, 1985). Even if we did consider this claim, we conclude that the prosecutor's remarks were not a personal endorsement, impermissible, or prejudicial. The prosecutor has the right to argue vigorously that the state's witnesses are credible and defendant's witnesses are not. State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977).

4. Halvorson argues that the trial judge exercised "bias and/or prejudice" at sentencing. Once again, because Halvorson knew of but failed to raise this claim in his appeal from resentencing, the claim is not properly before this court. See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Even if the claim was properly before us, Halvorson's sentencing resulted from the aggravating circumstances of his crime, not from the bias or prejudice of the trial court judge. This court previously concluded that

[t]he trial court was well within its discretion in finding that piercing the victim's breast with a bovine needle was a particularly cruel act. [Halvorson] not only inflicted physical injury completely gratuitous to the kidnapping itself, but also left permanent scarring. It was not only psychologically degrading, but was far beyond the physical injury typically associated with second-degree criminal sexual conduct. Similarly, tying the victim by her wrists to ceiling-hung ropes went far beyond the restraint usually involved in a kidnapping associated with sexual assault. The victim was also particularly vulnerable because her wrists were tied and she was ill.

State v. Halvorson, No. C8-94-1004, unpub. op. at 3 (Minn. App. Sept. 6, 1994) (citations omitted).

5. State v. Harris, 521 N.W.2d 348, 350 n.2 (Minn. 1994), holds that CRIMJIG 3.04 does not violate a defendant's constitutional rights. Therefore, Halvorson's claim that the instruction is unconstitutional fails.

Affirmed.