Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kenneth Dewayne Gladback, petitioner,
State of Minnesota,
Filed March 17, 1998
Otter Tail County District Court
File No. K0941173
Kenneth D. Gladback, Box 55-172557, Stillwater, MN 55082 (pro se appellant)
Hubert H. Humphrey, III, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Waldemar B. Senyk, Otter Tail County Attorney, David J. Hauser, Assistant County Attorney, Otter Tail County Courthouse, Fergus Falls, MN 56537 (for respondent)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.
Appellant Kenneth Gladback, whose first-degree burglary and fifth-degree criminal sexual contact convictions were previously affirmed by this court, appeals the trial court's denial of his petition for postconviction relief. We affirm.
Ineffective Assistance of Counsel.
Appellant raised the claim of ineffective assistance of counsel in his direct appeal and this court rejected it. State v. Gladback, 1995 WL 606601, at *2 (Minn. App. Oct. 17, 1995). He is not entitled to review of the issue in this proceeding.
2. Interpretation of the Burglary Statute.
Appellant contends that he could not be convicted of burglary because he did not enter "without consent." Minn. Stat. § 609.581, subd. 4 (1996). Appellant was initially permitted on the premises but failed to leave when the victim instructed him to do so. We responded to a similar argument in appellant's dispute of his sentence in his prior appeal and observed that the statute specifically includes the act of remaining on the premises without the consent of the victim. Gladback, 1995 WL 606601, at *1. Appellant is not entitled to further review of this issue.
Admissibility of Confession.
Appellant contends that the trial court erred in admitting his confession. Because this issue was known at the time of his prior appeal and appellant has made no showing that it was excusable to omit a request for review in those proceedings, he is not entitled to further review of this issue.
Appellant contends that the trial court erred in convicting him and sentencing him on multiple charges. The sentencing issue is not reviewable now, because it was known at the time of his prior appeal and was not excusably omitted from those proceedings. Moreover, the record demonstrates that the trial court sentenced appellant only on the burglary conviction.
Criminal History Score.
Appellant contends that his criminal history score calculation took into account an out-of-state felony assault conviction that should have been treated as a misdemeanor. This issue was known and not raised in his prior appeal and is not reviewable now. Moreover, appellant has not furnished evidence in the record to support his contention that his conviction was a misdemeanor.
Dated: March 10, 1998