Minn. Stat. § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
Thomas Michael Pollock, petitioner,
State of Minnesota,
File No. K689752
Bruce A. Olander, 200 First Street East, Jordan, MN 55352 (for appellant)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
James C. Backstrom, Dakota County Attorney, Mary J. Theisen, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
Considered and decided by Short, Presiding Judge, Parker, Judge, and Foley, Judge.[*]
This appeal is from the denial of appellant Thomas Michael Pollock's petition for postconviction relief. Pollock was convicted of five counts of criminal sexual conduct in the first degree and one count of criminal sexual conduct in the fourth degree. He was sentenced to 180 months' incarceration. Pollock contends the trial court erred in denying his motion for postconviction relief. We affirm.
D E C I S I O N
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). Appellate courts review "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) (citing Gustafson v. State, 477 N.W.2d 709, 712 (Minn. 1991)).
1. Filing Delay
Pollock argues that his six-year delay in petitioning for postconviction relief does not warrant a denial of his claims. Pollock contends he did not and could not raise in his previous sentencing appeal the claims he now presents because he was appealing only his sentence and did not order transcripts to support any postconviction claims. He contends his low IQ and lack of education prevented him from realizing that his postconviction claims had not already been put to the court. Therefore, he argues, the postconviction court abused discretion in refusing to grant his petition for new trial. Pollack cites State v. Larson, 409 N.W.2d 63 (Minn. App. 1987), review denied (Minn. Sept. 23, 1987), and Fox v. State, 474 N.W.2d 821 (Minn. 1991), to support his contention that even an eight-year delay in filing for postconviction relief would not justify the denial of his petition.
In Larson, appellant sought postconviction relief 16 years after his conviction. Larson, 409 N.W.2d at 64. Concluding that Larson failed to meet his burden of showing that he was not advised of his right to counsel before pleading guilty, this court affirmed the trial court's denial of postconviction relief. Id. at 65. In Fox, the supreme court concluded that fairness allowed substantive review of Fox's postconviction claims eight years after trial because the administration of a strong antipsychotic medication could have prevented him from participating in his initial defense. Fox, 474 N.W.2d at 825-26.
Although length of delay such as to warrant dismissal has not been absolutely established, "delay in seeking relief is a relevant consideration in determining whether that relief should be granted." Black v. State, 560 N.W.2d 83, 85 (Minn. 1997) (quoting Fox, 474 N.W.2d at 826). Once there has been a direct appeal of a conviction, "any matter raised in the direct appeal, and any claim known to the petitioner at that time but not raised, will not be considered by a postconviction court in a subsequent petition for postconviction relief." Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). However, a claim that was known but not raised may be considered "if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal." Russell, 562 N.W.2d at 672 (citing Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995)). The court may accept review of a claim in limited circumstances "when fairness so requires and when the petitioner did not 'deliberately and inexcusably' fail to raise the issue on direct appeal." Id.; see also Fox, 474 N.W.2d at 825 (in the unique instance where defendant was administered a strong antipsychotic medicine during trial, fairness required a substantive review of whether defendant was able to participate in defense).
Pollock's reliance on Fox is misplaced. Notwithstanding his claims of a low IQ and lack of formal education, we note that he does not point us to any evidence in the record that presents a "unique" circumstance, such as that experienced by appellant Fox, to explain why he failed to raise these claims in his direct appeal, rather than limiting its scope to his sentence. We observe, however, that like the appellant in Larson, Pollock cannot explain his delay in raising the postconviction claims he now asserts. Pollock was represented by counsel at all stages of the proceedings, and thus we cannot say the claims he now raises were unknown to him at the time of his sentencing appeal. We conclude, therefore, the trial court did not abuse discretion in denying his petition for postconviction relief.
2. Fair Trial
Pollock also claims there were numerous errors made by both the prosecution and the trial court that prevented him from receiving a fair trial. Without citing to any instances in the transcript, Pollock contends (1) the cases of the two victims were erroneously consolidated; (2) the trial court erred in allowing the state to amend its complaint; (3) the trial court erroneously allowed Spreigl evidence to be admitted; and (4) the court allowed a biased juror to remain on the jury. We review these alleged errors in order.
The court on motion of the prosecution or on its initiative may order two or more indictments, [or] complaints, * * * to be tried together if the offenses * * * could have been joined in a single indictment, complaint or tab charge.
See Minn. R. Crim. P. 17.03, subd. 4. Factors to consider in determining whether multiple violations constitute a single behavioral incident are unity of time, place, and criminal objective. Bangert v. State, 282 N.W.2d 540, 546 (Minn. 1979). Moreover,
[t]he court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
Minn. R. Crim. P. 17.05.
A reviewing court will not reverse a trial court's admission of evidence of other crimes "unless an abuse of discretion is clearly shown." State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). Furthermore, an appellant claiming juror bias must show that actual prejudice resulted from failure to dismiss the juror and that appellant made the appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983).
We do not believe the trial court's determination summarily to deny Pollock's petition was error. The record reveals the sexual assaults of the two victims, C. and R.A., often occurred at the same time or separately, but while the victims were at the same location. The evidence showed unity of time, place, and criminal objective; therefore, these multiple violations could constitute a single behavioral incident for the purposes of consolidation. Furthermore, the rules of criminal procedure give the trial court discretion to allow amendment of the complaint at any time before the verdict. See Minn. R. Crim. P. 17.05. Pollock directs us to no evidence to support his contention that the trial court was acting outside the scope of his authority or abusing his discretion.
We further observe that Pollock's assertion that he was not given notice of the state's intention to introduce Spreigl evidence is also misplaced. The state made its intention known prior to trial, and its motion to present evidence of Pollock's previous crime was argued before the court, with counsel for both parties present. Furthermore, a careful reading of the transcript shows the trial court properly instructed the jurors to consider the Spreigl evidence only for the limited purpose of establishing a "modus operandi" as evidence that Pollock committed the crimes charged. The record does not indicate any objection to the instruction or request for a further or different instruction by Pollock.
Lastly, the record reveals that one of the jurors indicated that she recognized (the victim) C.'s mother from her church choir, but that she did not know C.'s mother personally. Voir dire followed by the trial court and both counsel. Both attorneys questioned the juror as to her ability to remain unbiased and both indicated there were no objections to the juror remaining on the panel. Other than bald assertions, Pollock directs us to nothing factual to support his claims that he was denied a fair trial. We conclude, therefore, that the trial court did not abuse discretion in refusing to grant Pollock an evidentiary hearing before denying his petition for postconviction relief.
3. Ineffective Assistance of Counsel
Lastly, Pollock argues he was denied effective assistance of counsel because of numerous errors made at all levels of the court proceedings by his trial counsel, which ineffective assistance prohibited him from receiving a fair trial.
An accused is constitutionally guaranteed the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449 & n.14 (1970). To support a claim of ineffective assistance of counsel, the defendant must show that (1) 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." Scruggs, 484 N.W.2d at 25 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984)). However, a claim of ineffective assistance of trial counsel that was known at the time of a prior appeal but not raised may be considered only if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (citing Dent v. State, 441 N.W.2d 497 (Minn. 1989), and Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)).
There is ample evidence in the record to show that Pollock's trial counsel prepared and executed a reasonable defense strategy. There is no evidence in the record before this court to show that trial counsel's efforts failed to meet the requirements of the Strickland test. Because Pollock's claim of ineffective assistance of counsel was known at the time of his sentencing appeal, he has waived the right to have this claim considered in this postconviction appeal. See Fratzke, 450 N.W.2d at 102. We conclude, therefore, the postconviction court did not abuse discretion in finding that Pollock was not denied effective assistance of counsel.
[*.] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.