This opinion will be unpublished and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

C1-96-2418

Hollis J. Larson, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 10, 1997

Affirmed

Peterson, Judge

Goodhue County District Court

File No. K991302

Hollis J. Larson, Minnesota Correctional Facility, 5329 Osgood Avenue, P.O. Box 10, #114153, Stillwater, MN 55082 (Appellant Pro Se)

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

Gary Fridell, Goodhue County Attorney, Stephen N. Betcher, Assistant Goodhue County Attorney, Room 103 Courthouse, 509 West Fifth Street, Red Wing, MN 55066 (for Respondent)

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

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

PETERSON, Judge

Appellant Hollis Larson argues the postconviction court erred in denying his petition for relief. We affirm.

FACTS

Appellant Hollis Larson was convicted of three counts of first-degree and one count of second-degree criminal sexual conduct after a court trial where he represented himself with the assistance of standby counsel.

In his direct appeal, Larson argued that venue for two of his convictions was improper, that the district court improperly admitted other-crime evidence, that the evidence was insufficient to support his convictions, that two witnesses gave perjured testimony, that two convictions should be vacated as lesser-included offenses, that the district court was biased, and that his standby counsel was ineffective. This court agreed that two of Larson's convictions should be vacated as lesser-included offenses but rejected his other claims. State v. Larson, 520 N.W.2d 456, 460-63 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994). This court also granted the state's motion to strike a partial transcript from Larson's brief because it was not part of the record on appeal. Id. at 464.

Larson filed a petition for postconviction relief raising the same venue, improper admission of other-crime evidence, sufficiency of the evidence, perjury, and ineffective assistance of counsel claims that he raised in his direct appeal. Larson also argued that he was forced to represent himself when his request for substitute counsel was denied, that the transcripts were improperly stricken from his appellate brief, and that the imposition of a consecutive sentence was an unsupported departure from the guidelines.

The postconviction court denied Larson's petition. The court refused to address the venue, other-crime evidence, sufficiency of the evidence, perjury, and motion to strike issues because they had been addressed in the direct appeal. The court said Larson's ineffective assistance of counsel claim was similar to the claim raised in his direct appeal. The court also noted that it was not required to address Larson's other claims because they were known but not raised at the time of the direct appeal. The court nonetheless considered these claims and found them meritless.

D E C I S I O N

This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.

Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Larson argues the postconviction court erred in denying his petition for relief. But when a direct appeal already has been taken,

matters raised therein and all claims known, but not raised at that time will not be considered in a subsequent petition for post-conviction relief.

Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991). Because Larson's venue, admission of other-crime evidence, sufficiency of the evidence, perjury, ineffective assistance, and motion to strike claims were raised and addressed in his direct appeal, the postconviction court properly refused to consider these matters.

Further, Larson's claims regarding the voluntariness of his decision to represent himself, the denial of his request for substitute counsel, and the propriety of his sentence were known but not raised at the time of his direct appeal. Thus, the postconviction court was not required to address these matters. See id. (claims known but not raised in direct appeal will not be considered in postconviction proceeding unless claim is so novel that its legal basis was not reasonably available at time of direct appeal).

The record, however, supports the postconviction court's decision that Larson decided voluntarily to represent himself and to waive his request for substitute counsel. A defendant may voluntarily and intelligently waive the right to counsel and elect to represent himself. State v. Richards, 552 N.W.2d 197, 205 (Minn. 1996). Although Larson asked for substitute counsel at a pretrial hearing, he indicated at trial that he wanted to represent himself with his original lawyer acting as his standby counsel. Both the district court and the prosecutor questioned Larson about his decision. See id. (court should inquire whether defendant's decision to represent himself is voluntary and intelligent). Larson indicated that he was choosing freely and voluntarily to represent himself and never reiterated his request for substitute counsel or standby counsel. Given these facts, the postconviction court did not abuse its discretion in denying Larson's claim that he was forced to represent himself.

The record also supports the postconviction court's decision that Larson's sentence was neither a departure nor improper. One of Larson's sentences was ordered to run consecutively to the sentence he then was serving for another felony criminal sexual conduct offense. This consecutive sentence was permissive under the guidelines. See Minn. Sent. Guidelines II.F (court may order felony sentence imposed for crime against a person to run consecutively to prior felony sentence imposed for crime against a person that has not expired or been discharged). Thus, the postconviction court did not abuse its discretion in denying Larson's sentencing claim.

Affirmed.