This opinion will be unpublished and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

C5-96-2552

Brian John Laramy, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 3, 1997

Affirmed

Davies, Judge

Ramsey County District Court

File No. K6921316

Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Ave. S., Minneapolis, MN 55404 (for Appellant)

Hubert H. Humphrey III, Attorney General, William F. Klumpp Jr., Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Govt. Center-West, 50 W. Kellogg Blvd., Suite 315, St. Paul, Minnesota 55102 (for Respondent)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Schultz, Judge.[*]

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

DAVIES, Judge

Brian John Laramy appeals from the district court's denial of his second petition for postconviction relief. We affirm.

FACTS

Brian John Laramy pleaded guilty, with the assistance of counsel, to second-degree murder in 1992 and was sentenced to an executed term of 319 months. In 1994, seeking to withdraw his guilty plea, Laramy filed a pro se petition for postconviction relief, which the district court summarily denied. Laramy appealed and we affirmed the decision of the district court. Laramy v. State, No. C4-94-2506, unpub. op. at 5 (Minn. App. June 20, 1995), review denied (Minn. Aug. 30, 1995). In 1996, Laramy filed a second petition for postconviction relief, this time with the assistance of counsel, again asking to withdraw his guilty plea, but now asserting that he had been denied the effective assistance of counsel at the time of his plea. On appeal from an order denying this petition, Laramy argues that the district court abused its discretion by summarily denying the petition.

D E C I S I O N

This court's review of a postconviction proceeding is limited to determining whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968). Absent an abuse of discretion, a trial court's postconviction decision will not be disturbed on appeal. McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).

"[W]here direct appeal has once been taken * * * all claims known but not raised, will not be considered on a subsequent petition for postconviction relief." State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (holding that postconviction relief allowed only where claim so novel that its legal basis was not reasonably available when direct appeal taken and decided). Similarly, where a postconviction petitioner brings "a second or successive petition for similar relief," the district court may summarily deny relief. Minn. Stat. § 590.04, subd. 3 (1996).

The district court dismissed the petition on the ground that the claim was known and available to Laramy at the time he filed his first postconviction petition. We agree. Laramy brought his first postconviction petition two years after he was sentenced. Because he had two years to consider his counsel's performance, his claim of ineffective assistance of counsel should have been asserted in his first petition. His failure to do so is not excused because he chose to proceed pro se. See State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988) (pro se defendants are held to same standards as attorneys in presenting appeal).

Even apart from the timeliness consideration, appellant would not be entitled to an evidentiary hearing. Such a hearing is required only when facts are alleged that, if proved, would entitle a petitioner to relief. State ex rel. Roy v. Tahash, 277 Minn. 238, 245, 152 N.W.2d 301, 306 (1967). In the context of a guilty plea, a postconviction petitioner must allege facts showing that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

We have previously determined that Laramy's plea was entered intelligently and voluntarily pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), and State v. Goulette, 258 N.W.2d 758 (Minn. 1977). Laramy, unpub. op. at 3. We have also examined the evidence the prosecution was prepared to submit had the case proceeded to trial. Id. at 4. In light of these facts, we conclude that Laramy has failed to establish a "reasonable probability" that, but for his attorney's incompetence, he would not have pleaded guilty to second-degree murder and would instead have risked a possible life sentence for first-degree murder.

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.