This opinion will be unpublished and

may not be cited except as provided by

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




David R. Wilbanks, petitioner,



State of Minnesota,


Filed December 16, 1997


Schumacher, Judge

Fillmore County District Court

File No. K989644

Hubert H. Humphrey, III, Attorney General, James B. Early, Ass't Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Matthew J. Opat, Fillmore County Attorney, 22 S.E. Second St., Chatfield, MN 55923 (for respondent)

David R. Wilbanks, MCF-Lino Lakes, 7525 4th Avenue, Lino Lakes, MN 55014 (pro se appellant)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



This appeal is from an order denying appellant David Wilbanks' postconviction petition challenging his 1990 conviction for attempted second-degree murder. We affirm.


Wilbanks was charged with attempted first- and second-degree murder, and first- and second-degree assault for attacking Buford Anderson, his landlord, with a knife. Following a jury trial in July 1990, Wilbanks was found not guilty of attempted first-degree murder but was convicted on the remaining three counts. The trial court sentenced him to 289.5 months, an upward durational departure.

Wilbanks filed a direct appeal, in which he was represented by the State Public Defender. This court affirmed the conviction but reduced Wilbanks' sentence to 240 months. In February 1997, Wilbanks filed a postconviction petition claiming that he was denied the effective assistance of counsel both at trial and on direct appeal. The postconviction court denied the petition without an evidentiary hearing.


This court's review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings and order, which will not be reversed absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). A postconviction petitioner has the burden of establishing by a fair preponderance of the evidence facts that warrant reopening the judgment. Hanley v. State, 534 N.W.2d 277, 278 (Minn. 1995). The postconviction court may deny the petition without an evidentiary hearing unless there are material facts in dispute that must be resolved in order to determine the postconviction claim. Hodgson, 540 N.W.2d at 517.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's representation "fell below an objective standard of reasonableness" and that 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, 2068 (1984)).

The postconviction court concluded that Wilbanks was barred from raising the issue of ineffective assistance of trial counsel because it was known at the time of his direct appeal. See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (claim raised on direct appeal, or known but not raised, will not be considered in postconviction proceeding). We agree. The Knaffla bar applies to postconviction claims of ineffective assistance. See Russell v. State, 562 N.W.2d 670, 673 (Minn. 1997); Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). There is an exception to the Knaffla bar if "the reviewing court needs additional facts to explain the attorney's decision." Black, 560 N.W.2d at 85, n.1. Wilbanks, however, complains of his attorney's failure to call additional witnesses, and other matters of trial strategy that are within counsel's discretion. Moreover, he has failed to show a "reasonable probability" that the outcome would have been different if the alleged errors of counsel had not occurred. There is no need of additional facts to decide Wilbanks' claim of ineffective assistance of trial counsel.

The record indicates that defense counsel faced overwhelming evidence against Wilbanks, who conceded in his postconviction that his only "viable defense" was a reduction of the offense to heat-of-passion manslaughter. The trial court declined to instruct on that offense only because the evidence did not support it, not because of any omission by defense counsel, as Wilbanks claims. This court affirmed that ruling on direct appeal. State v. Wilbanks, No. C9-90-2430 (Minn. App. Sept. 10, 1991), review denied (Minn. Oct. 11, 1991). Defense counsel did make several successful pretrial motions and obtained an acquittal on the most serious charge, attempted first-degree murder. Thus, even if the claim of ineffective assistance of trial counsel were not barred, it would fail.

Wilbanks also claims that his appellate counsel was ineffective for failing to raise on direct appeal the ineffective assistance of trial counsel and the claim that Wilbanks was denied his right to allocution at sentencing. As discussed above, the claim of ineffective assistance of trial counsel is without merit. Therefore, Wilbanks cannot show prejudice from appellate counsel's failure to raise the issue. Moreover, appellate counsel is not required to raise all possible issues on appeal. Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989).

The record does not show that the trial court gave Wilbanks the chance to exercise his right of allocution at sentencing. The denial of the right of allocution, however, does not automatically entitle the defendant to relief. See State ex rel. Napiwoski v. Tahash, 278 Minn. 56, 58, 153 N.W.2d 138, 140 (1967) (defendant not entitled to relief where PSI presented his version of offense). Here, Wilbanks refused to discuss the offense with the probation agent who prepared the PSI. Defense counsel argued vigorously against an upward departure, and the court received letters on Wilbanks' behalf before sentencing. Wilbanks has not shown any prejudice from appellate counsel's failure to raise the allocution issue on direct appeal. Moreover, Wilbanks' delay in raising this issue until 5-1/2 years after his direct appeal weighs against granting any relief. See Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991).