This opinion will be unpublished and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

C3-96-2081

Floyd Edward Gilliland, Jr., petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 15, 1997

Reversed and remanded

Schultz, Judge

[*]

Ramsey County District Court

File No. K8944142

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

Considered and decided by Huspeni, 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

SCHULTZ, Judge

Appellant Floyd Edward Gilliland, Jr. was convicted of two counts of violation of controlled substance law in the fifth degree, Minn. Stat. § 152.05, subd. 1(1) (1996) (sale of marijuana), and subd. 2(1) (possession of marijuana), following a jury trial. Based on his conviction for intent to sell, appellant received a 36-month stayed sentence, was fined, and ordered to perform community service. The trial court did not sentence appellant on the lesser offense of possession.

Appellant challenged his conviction for sale of marijuana, alleging ineffective assistance of counsel. The trial court denied appellant's request for postconviction relief, and he appeals to this court. We reverse appellant's sentence and conviction for violation of controlled substance law in the fifth degree (sale of marijuana) and remand to the trial court for resentencing on the remaining conviction for violation of controlled substance law in the fifth degree (possession of marijuana).

FACTS

In November 1994, Deputy Michael Hankee and several other officers searched appellant's St. Paul residence pursuant to a warrant. They observed appellant at a table on which there was a small amount of marijuana, a smoking device, and a police scanner. A box of plastic baggies was close by and a pouch containing $1,065 in cash was on top of a cabinet. Appellant directed Hankee to a drawer that contained some marijuana, hashish, and a loaded handgun. Hankee also discovered a digital scale and a notebook. There were two important developments prior to trial that are relevant to appellant's claim of ineffective assistance of counsel. First, the trial court suppressed a notebook seized by the police during their search of appellant's apartment because the state did not take appropriate steps to make the notebook available for the defense to review. Second, the state, concerned with maintaining the confidentiality of the informant who had made the "control buy" supporting the search warrant, decided not to attempt to show that any of the cash found at appellant's residence was money marked for the control buy. Instead, they intended to base their case for intent to sell solely on the circumstantial evidence discovered in appellant's apartment during the search.

Appellant openly admitted to personally using marijuana as a means of controlling spasticity that he suffers due to having had both of his legs amputated following a car accident. Appellant testified that he had unsuccessfully attempted to obtain a prescription for legal marijuana use through his doctor. He acknowledged that in the past he had helped friends locate marijuana and had given people the drug.

He also claimed that he used inheritance proceeds to buy a pound of marijuana in June 1994 to get a bulk discount and that the smaller bags of marijuana found at his residence were from previous separate purchases--explaining that he had portions of the drug that differed in potency so that he could switch back and forth as his tolerance changed. He used the scale to ensure he was not being shortchanged when buying marijuana, the police scanner to monitor crime in his neighborhood, and owned a handgun for personal protection.

Appellant alleges that his lead defense counsel committed two main errors during trial. The first occurred during cross-examination of Officer Hankee. Hankee had testified that often he would find a notebook detailing drug sales when searching drug dealer's residences. However, the state, in abiding by the trial court's suppression order, did not bring up the notebook found in appellant's apartment. On cross-examination, defense counsel, having not yet reviewed the notebook, engaged in the following exchange with Hankee:

Q I'm sorry, did you also indicate when you testified earlier that one of the things that you found * * * was usually some kind of notebook with contacts in it, or a notebook related to trafficking activity?

A Yeah, sometimes you find that, sometimes you don't; that is correct.

Q: Now you didn't find any notes, did you, that contained anything in this case, contacts for buys; is that correct?

MS. THOMPSON [prosecutor]: Your Honor, may we approach?

THE COURT: Uh-huh.

The court ruled that the defense had "opened the door" to admission of the notebook by implying to the jury that no notebook had been found at appellant's apartment. On cross-examination the following day, Hankee testified that he seized a notebook when searching appellant's apartment and that he believed it could be related to drug trafficking. He further stated that although he did not run criminal histories on people in the book, some of the names sounded familiar to him. For example, in referring to names in the book he stated, "There is Joanne Dirks. Not so much Joanne, but the Dirks family. I can elaborate why it sounds familiar. The Dirks family have been involved in the motorcycle gangs and drug trafficking for years."

The second error by defense counsel also occurred during cross-examination of Hankee. Consistent with her representations prior to trial, the prosecutor did not introduce any evidence of the control buy to ensure the confidentiality of her informant. Instead, she relied on the circumstantial evidence seized from appellant's apartment to prove the sale charge. She made no attempt to show that any of the $1,065 seized from appellant's residence had been involved in a drug transaction. In his cross-examination, defense counsel asked the following questions:

Q After you read Mr. Gilliland his rights, did you ask him where the money--how he got the money?

A No, I did not.

* * *

Q I see. From the money itself, that is the money that you seized, was there any evidence, analysis, of the money to indicate that it had been part of a drug trafficking operation?

A Yes.

Q Okay. What kind of analysis was done?

MS. THOMPSON [prosecutor]: Your Honor, may we approach?

THE COURT: You may.

The prosecutor restated her concern that the questioning not lead to the identification of the confidential informant. The trial court ruled that defense counsel would not be allowed to pursue the identity of the confidential informant.

On redirect, the prosecutor had Hankee explain the operation of a control buy and the use of "buy" money. After approaching the bench to receive an advance ruling that defense counsel had "opened the door," the prosecutor asked Hankee whether the money seized from appellant had been involved in drug trafficking. Hankee responded "Yes, there was a sum of the Ramsey County buy fund money that we used for a previous buy of marijuana from Mr. Gilliland that was found within that money." Appellant was found guilty of both charges.

At a postconviction proceeding, appellant challenged his conviction for intent to sell on the basis of ineffective assistance of counsel. At the hearing, the trial court commented that with respect to deficient performance "the record is replete with what I think is one of the most appallingly presented defense cases that I have ever seen in 24 years." She further stated in her opinion "both of these individuals should not be practicing criminal law." The court, however, denied appellant's motion for postconviction relief, holding that although defense counsel's performance may have been deficient, it was not prejudicial in that even without evidence of the notebook and the buy money, there was still sufficient evidence for the jury to find appellant guilty of the intent to sell charge.

D E C I S I O N

We review the decision of the postconviction court under an abuse of discretion standard and our scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court's findings. Gustafson v. State, 477 N.W.2d 709, 712 (Minn. 1991); see State ex. rel Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (stating that postconviction proceeding is a collateral attack on a judgment carrying a presumption of regularity and should not be set aside lightly).

To obtain postconviction relief for ineffective assistance of counsel, a defendant must show two things: (1) that counsel's representation "fell below an objective standard of reasonableness," and (2) "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, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In determining whether appellant has made the requisite showing of prejudice, the court must consider the totality of the evidence before the jury. Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2069. This two-part test must be applied by postconviction and appellate courts. Gates, 398 N.W.2d at 561.

In its memorandum denying postconviction relief, the trial court referred to the Strickland prongs as (1) deficient performance by counsel and (2) prejudice to defendant. Based on the trial court's strong criticism of defense counsel, the order implies that the first prong was met though it never states that counsel's performance was deficient. In analyzing the prejudice issue, the trial court first noted "even were the Court to vacate the conviction under Count I, nonetheless the conviction for Count II would stand, and would have the identical consequences as the first. Thus, no prejudice to the Petitioner." However, the court decided to address the issue "if only for the benefit of Defendant/Petitioner's peace of mind."

The court's analysis of the prejudice prong was as follows:

The question is: "but for" the errors of counsel, whether there is a reasonably [sic] probability that the trial result would have been different. Put another way: were these errors so egregious that they rendered the trial result unreliable? Absent the introduction of notebook or reference to the "buy" money, did the jury have sufficient evidence to conclude him guilty of the remaining charge? It did.

Typically, a charge of possession with intent to sell or deliver is proved by way of circumstantial evidence. Even without the notebook, or without reference to the "buy" money found in the large cache of cash, there was more than enough evidence here to support the conviction. There was a substantial (one half pound) amount of marijuana, a scale admittedly used for weighing it, a large amount of cash, numerous baggies, not to mention a gun in proximity to all of this. The notebook and the "buy" money were merely gravy on an already baked goose.

We conclude that the trial court applied the incorrect standard in determining that appellant was not prejudiced by his counsel's actions. Appellant "need not show that counsel's deficient conduct more likely than not altered the outcome" of the case. Strickland, 466 U.S. at 693-94, 104 S. Ct. at 2068.[1] In addition,

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from the counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

Id., at 695, 104 S. Ct. at 2068-69.

The trial court incorrectly focused on the sufficiency of the evidence to support appellant's conviction. Cf. State v. Dillon, 532 N.W.2d 558, 558 (Minn. 1995) (court may not declare error harmless simply by finding that properly admitted evidence was sufficient to support jury's verdict).

Accordingly, the trial court clearly erred by applying the wrong standard in asking whether or not the evidence, without the notebook and the buy money, was sufficient to support the jury's verdict. This is not an accurate translation of the prejudice standard under Strickland/Gates, which is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Gates, 398 N.W.2d at 561 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

Although the circumstantial evidence against appellant was substantial, his situation as a double amputee with related medical problems also allowed him a unique defense--that he used marijuana on a daily basis for medicinal purposes, requiring that he have a large amount on hand. Counsel's errors which allowed the notebook and the buy money evidence and related testimony into evidence were "sufficient to undermine confidence in the outcome" because once that evidence was admitted, appellant's defense was rendered unbelievable. Counsel's errors, which invalidated this defense in the eyes of the jury, produced a "reasonable probability" that the result of the proceeding as to count I would have been different "but for" those errors. That standard is not met, however, with respect to count II, on which the evidence was overwhelming.

Reversed and remanded.

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

[ ]1 The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.