This opinion will be unpublished and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

C8-97-1244

Richard A. Folden, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 30, 1997

Affirmed

Schumacher, Judge

Clay County District Court

File No. K3921453

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Todd S. Webb, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 55561 (for Respondent)

Richard A. Folden, Pro Se, P.O. Box 55 - 109399, Stillwater, MN 55082

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Forsberg, Judge.**

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

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

SCHUMACHER, Judge

Richard A. Folden appeals from the denial of his petition for postconviction relief, arguing that (1) his sentence violates the Double Jeopardy clause and constitutes cruel and unusual punishment; (2) his conviction is legally inconsistent with acquittals on three similar charges; and (3) the postconviction court erred in concluding he was not denied effective assistance of trial counsel. We affirm.

FACTS

Folden was charged with four counts of first-degree criminal sexual conduct for abuse that occurred between January 1, 1989 and September 28, 1992. A jury convicted Folden of one count and acquitted him on the three remaining counts. Folden was sentenced to a mandatory 37 years in prison.

On May 19, 1993, Folden appealed his conviction, arguing the evidence was insufficient to support the conviction. This court affirmed the conviction. State v. Folden, No. C8-93-1025 (Minn. App. Jan. 26, 1994) (Folden I), review denied (Minn. Mar. 15, 1994).

On April 7, 1997, Folden petitioned for postconviction relief, arguing that (1) his sentence violated the Double Jeopardy clause and constituted cruel and unusual punishment, (2) the conviction was inconsistent with his acquittals, and (3) his trial counsel was ineffective. The postconviction court denied Folden's petition. Folden appeals.

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 absent an abuse of discretion, a postconviction court's decision will not be disturbed. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

1. Folden argues the requirement that a percentage of his prison wages be deducted to pay for the cost of his confinement pursuant to Minn. Stat. § 243.23 (1996) was not part of his original sentence and constitutes a second punishment for the same crime in violation of the Double Jeopardy clause.

Postconviction relief is only available when

a person convicted of a crime * * * claims that the * * * sentence * * * made violated the person's rights under the Constitution or laws of the United States or of the state * * *.

Minn. Stat. § 590.01, subd. 1 (1996). In Rainer v. State, 566 N.W.2d 692, 696 (Minn. 1997), the Minnesota Supreme Court held that

constitutional claims against the Department of Corrections' deduction of room and board costs from inmate wages to offset the cost of incarceration are not properly brought as a basis for postconviction relief

because they do not relate to the inmate's conviction or sentence. We conclude the postconviction court did not abuse its discretion in denying Folden relief.

2. Folden argues the requirement that he perform work assignments while in prison pursuant to Minn. Stat. § 243.18 (1996) constitutes cruel and unusual punishment in violation of the Thirteenth Amendment.

The Minnesota Supreme Court has expressly ruled that requiring prisoners to work does not violate the Thirteenth Amendment. Wilkinson v. McManus, 299 Minn. 112, 112-13, 216 N.W.2d 264, 265 (1974). Moreover, section 243.18 is one of the powers of the Department of Corrections, and therefore Folden's argument is not related to his sentence. See Rainer, 566 N.W.2d at 696. The postconviction court did not abuse its discretion in denying Folden relief.

3. Folden argues his conviction for first-degree criminal sexual conduct is legally inconsistent with his acquittal on three other counts of first-degree criminal sexual conduct. Folden was convicted of first-degree criminal sexual conduct for abuse that occurred between January 1, 1989 and September 28, 1992 (Count I). Folden was acquitted of first-degree criminal sexual conduct for abuse that occurred during three other time periods: (1) May 1, 1992 through September 28, 1992 (Count II); (2) May 28, 1991 through June 5, 1991 (Count III); and (3) September 1, 1991 through June 1, 1992 (Count IV). Folden argues that his acquittals show there was no "specific crime of abuse," therefore, there could be no conviction for a crime encompassing the whole time period.

We disagree. First, Folden failed to raise this issue in Folden I, and, therefore, he cannot raise the issue in a subsequent petition for postconviction relief. Dent v. State, 441 N.W.2d 497, 499 (Minn. 1989). Second, verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Here, none of the elements in Counts II-IV negate the elements necessary to convict Folden of Count I. All four counts merely reference time periods in which abuse allegedly occurred. In fact, there are two-and-a-half years (Jan. 1, 1989 to May 28, 1991) included in Count I that are not included in Counts II-IV. Because the state failed to prove to the jury that abuse occurred during the times in Counts II-IV, does not mean the state could not prove abuse occurred at all the other times included in Count I. The postconviction court did not abuse its discretion in denying Folden relief on this issue.

4. Folden argues for the first time in his postconviction petition that his trial counsel provided ineffective assistance for failing to move for a new trial because the verdicts were legally inconsistent.

The correct procedure for an ineffectiveness of trial counsel argument is to file a direct appeal and then move for dismissal to allow for a postconviction hearing. Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991). Folden failed to raise this issue in Folden I, therefore, he is barred from raising the issue in a subsequent petition for postconviction relief. Dent, 441 N.W.2d at 499. Furthermore, as analyzed in the previous section, Folden's convictions were not legally inconsistent; therefore, his trial counsel could not provide ineffective assistance on this issue.

Affirmed.