This opinion will be unpublished and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

C5-96-2213

Barry J. Wilcox, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 3, 1997

Affirmed

Willis, Judge

Morrison County District Court

File No. K595489

Michael D. O'Neill, O'Neill, Grills & O'Neill, P.L.L.P., 1250 Minnesota World Trade Center, 30 East Seventh Street, Saint Paul, MN 55101 (for Appellant)

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

Conrad I. Freeberg, Morrison County Attorney, 213 Southeast First Avenue, Little Falls, MN 56345 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Schultz, Judge.[*]

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

WILLIS, Judge

Appellant Barry Wilcox challenges the district court's denial of his petition for postconviction relief, arguing that (1) he is entitled to a new trial because of newly discovered evidence and because he received ineffective assistance of counsel, and (2) he is entitled to an evidentiary hearing on his petition for postconviction relief because he alleged facts that, if proven, would entitle him to relief. We affirm.

FACTS

On February 22, 1995, Wilcox was involved in an accident at the intersection of County Roads 2 and 203 in Morrison County. The car Wilcox was in ran a stop sign and struck Steven Burtyk's car, and Burtyk was killed. At the time of the accident, Wilcox was in the car with his girlfriend, Loucinda Riddle. Blood samples were taken from both Wilcox and Riddle. Riddle's blood-alcohol content was .14 and Wilcox's was .18.

On May 25, 1995, Wilcox was charged with two counts of criminal vehicular homicide and one count of driving under the influence of alcohol. Riddle's daughter testified at trial that when Riddle and Wilcox dropped her off at school on the morning of the accident, Wilcox was driving the car. Riddle testified that although she could not remember clearly what happened between Wilcox's turn onto County Road 203 and the accident, she was certain that Wilcox was driving the car when he turned onto County Road 203. Judy Hanson, a driver who met Wilcox's car shortly before the accident, testified that there was a man in the driver's seat of the car when she met it.

The jury found Wilcox guilty on all counts. Wilcox now appeals the district court's denial of his petition for postconviction relief.

D E C I S I O N

In reviewing postconviction proceedings, this court determines whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The "postconviction court's decision will not be disturbed absent an abuse of discretion." Id.

1. Newly Discovered Evidence.

Wilcox argues that he is entitled to a new trial because of newly discovered evidence, including: (1) expert testimony that the position of his car as it entered the ditch was different from the position testified to by the state's accident reconstruction expert, (2) expert testimony based on medical records that the injuries suffered by Wilcox and Riddle were consistent with Riddle having been the driver of the car at the time of the accident, (3) expert testimony concerning the amount of time Hanson had to observe Wilcox and Riddle, and (4) evidence that the position of the driver's seat of the car was consistent with Riddle having been the driver at the time of the accident.

A new trial based on newly discovered evidence will be granted only where appellant establishes: (1) that the newly discovered evidence was not within petitioner's or his counsel's knowledge before trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce a different or more favorable result.

Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).

The evidence Wilcox now offers on the position of the car, the medical records, and the time Hanson had to observe the car is based on the opinion of an accident reconstruction expert hired by Wilcox after trial. "Generally expert testimony does not constitute newly discovered evidence justifying a new trial." State v. Blasus, 445 N.W.2d 535, 543 (Minn. 1989). Further, evidence regarding the position of the car, the amount of time Hanson had to observe the car, the medical records, and the position of the driver's seat after the accident was available to Wilcox and any expert he wished to have examine them before trial.

The district court noted that the state's case turned largely on Judy Hanson's testimony that she saw a man driving the car before the accident. Therefore, even if the evidence Wilcox now offers were not based on expert testimony or had not been available before trial, it is unlikely that it would have produced a more favorable result for Wilcox. The district court did not abuse its discretion in denying Wilcox a new trial on the basis of newly discovered evidence.

2. Ineffective Assistance of Counsel.

Wilcox argues he received ineffective assistance of counsel at trial because his attorney did not investigate the issues Wilcox now raises as newly discovered evidence. In order to be granted a new trial on the ground of ineffective assistance of counsel, the defendant must prove that the representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984), and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. To provide effective representation, an attorney must exercise "the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances." State v. Heinkel, 322 N.W.2d 322, 326 (Minn. 1982).

Wilcox's attorney argued at trial that the state had not proven its case because (1) the state's accident reconstruction expert did not identify Wilcox as the driver of the car, (2) Riddle had a motive to lie about who was driving the car at the time of the accident, (3) Riddle's daughter testified only that Wilcox was driving the car earlier in the day, and (4) Judy Hanson did not have enough time to identify the car positively or to identify Wilcox as the driver of the car when she met it on the highway. Wilcox's trial attorney pursued these arguments in his cross-examination of witnesses and in his opening and closing statements to the jury. The district court did not err in concluding that Wilcox had not established that his counsel's representation fell below an objective standard of reasonableness or that the verdict would have been different had Wilcox's trial counsel offered the evidence and pursued the theories now offered by Wilcox.

3. Evidentiary Hearing.

Wilcox argues that the district court erred in denying him an evidentiary hearing on the issues raised in his petition for postconviction relief.

An evidentiary hearing is required only when the post-conviction pleadings place material facts in dispute. To place material facts in dispute, the petitioner must allege facts which, if proved, would entitle petitioner to the relief sought.

Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (citation omitted), review denied (Minn. May 18, 1987).

Because the issues Wilcox now raises do not place material facts in dispute and are not sufficient to entitle him to the relief he seeks, the district court did not abuse its discretion in denying him an evidentiary hearing.

4. Motion to Strike.

In his reply brief, Wilcox noted that there is a disciplinary action pending against his trial counsel. Respondent moved to strike that portion of Wilcox's brief, citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (concluding that issues not presented to and considered by district court will not be considered on appeal). Wilcox responded by stating that new evidence is admissible at the appellate level in limited situations. See Economy Fire & Cas. Co. v. Iverson, 426 N.W.2d 195, 202 (Minn. App. 1988) (stating that appellate admission of evidence is permissible in very limited situations, generally only when that evidence is uncontroverted), aff'd in part, rev'd in part on other grounds, 445 N.W.2d 824 (Minn. 1989). However, Wilcox does not explain how his trial lawyer's alleged misconduct affected the representation he provided to Wilcox. Further, Wilcox cites no authority for the proposition that we must take an unrelated professional discipline proceeding into account in determining whether Wilcox's lawyer provided him with effective assistance. Because this issue was not before the trial court and because Wilcox has not shown that it is relevant to this proceeding, respondent's motion to strike is granted.

Affirmed.

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