This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-2341

Sean Miguel Thomas,

petitioner, Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 10, 1997

Affirmed

Randall, Judge

Hennepin County District Court

File No. 94-07-4247

Sean Miguel Thomas, MCF-Stillwater, Box 55, Stillwater, MN 55082 (pro se).

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent).

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

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

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

RANDALL, Judge

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

FACTS

Following a jury trial in Hennepin County District Court, appellant Sean Miguel Thomas was convicted of aiding and abetting attempted second-degree murder and aiding and abetting first-degree assault. Thomas took a direct appeal, and this court affirmed Thomas's conviction in an unpublished opinion filed December 12, 1996. See State v. Thomas, No. C6-96-329 (Minn. App. Dec. 12, 1995). The facts underlying Thomas's convictions are fully set forth in that opinion and need not be repeated here.

On June 7, 1996, Thomas filed a petition for postconviction relief in Hennepin County District Court. Thomas alleged five separate grounds justifying postconviction relief: (1) ineffective assistance of appellate counsel; (2) ineffective assistance of trial counsel; (3) prosecutorial misconduct; (4) improper jury instructions; and (5) the unconstitutionality of Minn. Stat. § 609.05 (1996), as applied.

By order dated September 17, 1996, the postconviction court denied relief, finding that all the issues raised in Thomas's petition were either addressed in his direct appeal or were known, but not raised, at that time, that Thomas failed to make any showing he received ineffective assistance of either trial or appellate counsel, that the jury instructions given were not prejudicial, and that the evidence of other wrongdoing by Thomas was an integral part of the charged offenses.

Thomas moved the postconviction court to vacate its order denying relief and also moved to amend the petition for postconviction relief. The postconviction court denied Thomas's motions, finding the restated claim of prosecutorial misconduct to be without merit.

D E C I S I O N

On appeal, this court reviews a postconviction proceeding only to determine whether sufficient evidence exists to sustain the postconviction court's findings, and its decision will not be disturbed absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Generally, where a direct appeal has been taken in a criminal case, the matters raised therein and all claims known, but not raised at that time, will not be considered in a later petition for postconviction relief. Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991). Only where the "claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided" will a reviewing court consider such a claim. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (citation omitted). In limited situations, however, if fairness so requires and if the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal, a reviewing court will consider a claim for postconviction relief, even if the claim was known at the time of direct appeal or its legal basis may have been reasonably available. Id.

Thomas claims that he did not deliberately or inexcusably fail to raise the claims in his petition for postconviction relief because, not being an attorney, he did not know how to present a supplemental pro se brief at the time of his direct appeal. Only after speaking with other "jailhouse" lawyers did Thomas realize that he could raise the claims in his petition for postconviction relief.

Under Thomas's reasoning, only defendants who happen to be lawyers would be barred from raising claims known, but not raised, at the time of direct appeal. While courts will take notice of the fact that an individual is proceeding pro se, such an individual is still subject to the same procedural and substantive rules governing licensed attorneys. See State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988) (holding that pro se defendant must comply with the rules of procedure that apply to all litigants, whether represented by counsel or not, and that "the pro se defendant will be held to the standard of an attorney").

Thomas's claims of prosecutorial misconduct, improper jury instructions, and the constitutional application of Minn. Stat. § 609.05 (1996), Minnesota's accomplice statute, were all issues known at the time of his direct appeal. They are also not so novel that they were not reasonably available to him at the time of his direct appeal. There has been no showing by Thomas of facts so unusual that "fairness" would require this court to review the substance of the postconviction claims raised in his petition. Cf. Fox, 474 N.W.2d at 825 (recognizing that fairness warranted substantive review of petitioner's postconviction claims even though they were known at the time of his direct appeal where the evidence indicated that the effects of Thorazine rendered petitioner unable to participate in his original defense).

Likewise, claims of ineffective assistance of trial counsel will not be considered in a subsequent petition for postconviction relief if they were raised in or known at the time of the direct appeal. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1995) (holding that review of issues relating to trial proceedings that were known or known but not raised by petitioner at the time of his direct appeal, including the issue of ineffective assistance of counsel, was barred in subsequent postconviction proceeding); Dent v. State, 441 N.W.2d 497, 499 (Minn. 1989). Because the issue of ineffective assistance of counsel was known at the time of Thomas's direct appeal, it may not now be addressed in his petition for postconviction relief.

Even if we were to consider the merits of the claims raised by Thomas in his petition for postconviction relief, it would not change the result.

First, Thomas argues that Minnesota's accomplice statute, Minn. Stat. § 609.05, was unconstitutionally applied in his case. This issue was specifically addressed in his direct appeal and will not be reconsidered. Second, as the postconviction court concluded, the instruction on accomplice liability actually benefits Thomas by imposing a higher burden than necessary on the state. By imposing upon the state the burden of proving Thomas aided or "advised, hired or requested" the other person to commit the crime, rather than the more nebulous "counseling * * * or otherwise procuring" contained in 10 Minnesota Practice, CRIMJIG 4.01 (1990), the jury instruction actually favored Thomas. It took away from the jury the ability to convict him on less culpable activities the jury might have concluded constituted "otherwise procuring."

Third, the trial court did not err in admitting the statements of Mike Reid and Calvin Stevens, Thomas's co-conspirators. Minn. R. Evid. 801(d)(2)(E), provides that out-of-court statements are not hearsay if they are (1) offered against a party and (2) are statements of a co-conspirator made in furtherance of a conspiracy. Such statements, by definition, are not hearsay. State v. Hines, 458 N.W.2d 721, 723 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Before a statement is admissible the existence of a conspiracy must be shown by a preponderance of the evidence, but the out-of-court statement may not be used by itself to establish the conspiracy. State v. Roby, 463 N.W.2d 506, 508 n.2 (Minn. 1990). Because the trial court found that a prima facie case of conspiracy had been established, the statements were therefore admissible under the co-conspirator rule. The trial court also allowed the statements of Roseborough concerning events after the shooting. Because Thomas did not object to these statements at trial, Thomas has waived this issue on appeal. See City of St. Paul v. Willier, 304 Minn. 430, 432, 231 N.W.2d 488, 489 (1975) (holding that failure to object to improper testimony during trial waives issue on appeal).

Thomas also argues that he was denied his right to present a defense when the trial court refused to allow him to introduce testimony that one of the alleged co-conspirators shot him in the leg two weeks after the shooting of Jackson. The testimony consisted of the witness recounting statements made by Thomas in which he offered his opinion on who he thought shot him. The offered witness did not see the shooting firsthand. The trial court properly refused to allow the evidence as speculation pursuant to Minn. R. Evid. 403. It was also the self-serving hearsay of Thomas and therefore properly suppressed. State v. Taylor, 258 N.W.2d 615, 622 (Minn. 1977) (finding no abuse of discretion where trial court refused to admit out-of-court statements made by defendant to another because they were self-serving and therefore unreliable).

Fourth, Thomas argues that the prosecutor engaged in misconduct by filing a duplicative complaint, by engaging in vindictive and malicious prosecution in amending the complaint to include charges of attempted murder in the second-degree and assault in the second-degree, by proceeding to trial on a charge where the prosecution knew the witness had not been subpoenaed to appear in court, and by making improper comments during opening and closing arguments.

The state may amend its complaint any time prior to the commencement of trial. Because the amendment to the complaint occurred before the commencement of trial, Minn. R. Crim. P. 17.05 does not apply. State v. Mickelson, 378 N.W.2d 17, 20 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986) (holding that rule 17.05 does not apply where the complaint was amended prior to the commencement of trial); see also State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980) (holding that rule 17.05 applies only to motions to amend after the commencement of trial). The fact that the state amended its complaint after Thomas rejected a plea bargain does not render the amendment malicious or vindictive.

Thomas's claim that the state knowingly relied on the perjured testimony of Roseborough is unsupported by the record. Similarly, Thomas has made no showing that the state is required to abandon prosecution in cases where a witness is not under subpoena at the time of trial. The record indicates that the state attempted in good faith to secure the presence of Trey Adale before and during trial, but was unable to do so. Although the counts relating to Adale were later dismissed by the trial court, there is no evidence that the charges were pursued in bad faith.

Thomas claims that the prosecutor engaged in misconduct during opening and closing arguments. Thomas takes exception to the prosecutor referring to him as an interstate drug dealer during closing argument. During the trial, the evidence established that Thomas was involved with drug activities. The prosecutor was allowed to make reference to evidence in the record during closing argument.

Thomas contends that the prosecutor committed misconduct during opening statements because she referred to evidence that was not later presented at trial, specifically the testimony of Trey Adale. A review of the prosecutor's opening statement, however, shows that she simply stated that the evidence would show that Thomas, along with others, was involved in an incident in which Adale was assaulted. There was no specific claim that Adale would testify or that Thomas himself assaulted Adale.

Finally, Thomas claims that trial counsel's representation fell below an objective standard of reasonableness because counsel: (1) failed to prepare and file proper pre-trial motions preventing testimony of any prejudicial allegations of interstate drug dealing, (2) failed to secure proper jury instructions, (3) failed to object to or move to preclude any reference to the alleged assault of Adale after the court dismissed the charge involving Adale, (4) failed to present an opening statement, and (5) failed to object to the trial court's use of the dismissed charge as a ground not to depart downward.

As the postconviction court found, at most a disagreement as to trial tactics and strategy is alleged. A disagreement over trial strategy does not constitute ineffective assistance of counsel. State v. Gobely, 366 N.W.2d 600, 603 (Minn. 1985), cert denied, 474 U.S. 922 (1985). A review of the record indicates that Thomas's trial counsel was experienced and conducted herself in a professional and competent manner. Any errors made by counsel were not so serious as to deprive Thomas of a fair trial.

The remaining issue of ineffective assistance of appellate counsel raised by Thomas, however, is one properly brought and addressed in a petition for postconviction relief. See Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) (holding that claim of ineffective assistance of appellate counsel could not be raised in direct appeal, therefore petitioner was entitled to raise it in petition for postconviction relief). Thomas claims: (1) that his appellate counsel failed to raise viable claims, (2) there was a conflict of interest between appellate counsel and trial counsel, and (3) an abandonment of claims.

"The right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal that the trial record supports." Id.; accord, Dent 441 N.W.2d at 500 ("Counsel appealing a criminal conviction has no duty to raise all possible issues."). Appellate counsel's choice of issues for appeal simply must not fall below an objective standard of reasonableness. Garasha, 393 N.W.2d at 22. When reviewing a claim of ineffective assistance of appellate counsel, the question asked is whether the representation and the assistance were reasonable in the light of all the circumstances. Dent, 441 N.W.2d at 500. When an appellant and his appellate counsel have divergent opinions as to what issues should be raised on appeal, counsel has no duty to include claims that would detract from other, more meritorious issues. Id.

Here, Thomas simply argues that the claims he raises in his petition for postconviction relief are stronger than the sufficiency-of-the-evidence claim raised by his appellate counsel. The decision to argue insufficiency of the evidence was a strategic, if not tactical, decision by appellate counsel and was not an unreasonable choice.

If Thomas were dissatisfied with the issues chosen by his counsel, he could have submitted a pro se supplemental brief containing those issues. In Minnesota, the informal practice has developed whereby dissatisfied appellants are, or should be, advised by counsel to state what their contentions are in a pro se supplemental brief. Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). However, counsel's failure to advise a defendant of this option does not necessarily rise to the level of ineffective assistance of appellate counsel. Id. (affirming denial of postconviction relief where, in direct appeal, it would have been better practice for counsel to have advised appellant that he could have submitted a supplemental brief stating issues not selected by counsel to be raised on appeal).

Thomas claims that because the case was referred to appellate counsel by trial counsel, appellate counsel would not make a claim of ineffective assistance of trial counsel. We note that it is common practice for appellate counsel to be different from trial counsel. Because a case is referred does not necessarily give rise to a conflict of interest. Cases, whether civil or criminal, are routinely referred by trial counsel to other outside counsel to be handled on appeal. There is no merit, beyond Thomas's assertion, that there was or is a conflict of interest created by the referral.

Next, Thomas claims that appellate counsel abandoned meritorious claims by advising Thomas that he recommended against filing a petition for review with the Minnesota Supreme Court in Thomas's direct appeal. After reviewing this court's decision affirming Thomas's conviction, his appellate counsel concluded that it was unlikely the supreme court would grant review if a petition for review were filed. The record does not indicate that counsel would not, on Thomas's behalf, file a petition for review with the supreme court. There is also no evidence that Thomas was himself prevented from filing a petition for review with the supreme court.

Finally, Thomas has moved this court for sanctions against respondent, arguing that respondent presented false evidence and misrepresented the facts in its brief. These arguments are without merit. The statements made by respondent are either specifically supported by the record or are reasonable argument based on the record. Accordingly, Thomas's motion is denied.

Affirmed.