IN COURT OF APPEALS
State of Minnesota,
Concurring specially, Davies, Judge
Hubert H. Humphrey, III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802-1298 (for respondent)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Davies, Judge.
Appellant Nancy Ann Olson appeals the denial of her petition for postconviction relief based on ineffective assistance of pretrial and trial counsel. The postconviction court found that the petition was procedurally barred because Olson did not raise the issue in her direct appeal. We reverse and remand.
On June 10, 1994, Olson was charged with two counts of wrongfully obtaining public assistance in violation of Minn. Stat. §§ 256.98 and 609.52, subd. 3(2) (1994). At some point before her trial, Olson changed counsel. In October 1995, a jury found Olson guilty of both counts. The district court sentenced her to concurrent terms of 13 months' and 15 months' incarceration but stayed execution of the sentences on condition Olson complete five years' probation including serving six-months in the county jail, restitution, and fines.
Olson appealed her conviction to this court, arguing that (1) the district court lacked personal jurisdiction because the complaint was not filed within the statute of limitations on prosecutions, (2) that the district court erred in admitting Spriegl evidence, and (3) that the prosecutor committed misconduct by making improper statements during closing argument.
On January 14, 1997, this court, in an unpublished opinion, affirmed the district court on all three issues. State v. Olson, No. C9-96-531, (Minn. App. Jan. 14, 1997), review denied (Minn. Mar. 26, 1997). We held that the statute of limitations is an affirmative defense and is nonjurisdictional. Id., unpub. op. at 3. Affirmative defenses are waived if they are not raised at trial, and therefore, Olson had waived the statute of limitations defense. With respect to the misconduct in closing arguments, we held that because Olson's counsel did not object to the comments at trial or ask for a curative instruction, and because we lack supervisory power over the district courts, Olson had forfeited her right to have the issue considered on appeal. Id., unpub. op. at 6-7. The supreme court denied review.
In July 1997, Olson brought a petition for postconviction relief, claiming ineffectiveness of pretrial and trial counsel for failing to assert a statute of limitations defense and failing to object to improper statements made by the prosecutor during closing argument.
On December 24, 1997, without reaching the merits, the postconviction court denied relief on procedural grounds. The postconviction court found that at the time of the direct appeal, Olson was aware of the manner in which the statute of limitations issue had been handled and that trial counsel had not objected to the prosecutor's statements during closing arguments. The postconviction court concluded that Olson knew or should have known at the time of her direct appeal that it was necessary to raise ineffectiveness of counsel as an alternative ground for relief. This appeal followed.
Where a party has appealed directly, all matters raised in that appeal, and all matters known but not raised, will not be considered on a subsequent petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). In general, postconviction claims for ineffective assistance of counsel are precluded if known at the time of direct appeal. Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). A claim known but not raised on direct appeal will be considered in a subsequent petition for postconviction relief, however, if (1) the claim is so novel that it can be said that its legal basis was not reasonably available at the time of the direct appeal, or (2) fairness requires consideration and the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). In Berg v. State, 557 N.W.2d 593 (Minn. App. 1996), subsequent to bringing a direct appeal, the appellant petitioned for postconviction relief claiming ineffective assistance of counsel. The postconviction court denied relief on procedural grounds. Id. at 594. Based on fairness, we reversed and remanded the matter for substantive review. Id. at 596. We reasoned that a determination of whether Berg had "deliberately and inexcusably" failed to raise the matter on direct appeal was "intertwined with her understanding of trial counsel's advice and her corresponding legal position." Id.
Similarly, in the instant case the detailed basis for Olson's ineffective assistance of counsel claim is unknown. We cannot conclude that Olson "knew" of her ineffective assistance of counsel claim at the time of her direct appeal because we have no record of what her pretrial, trial, or appellate counsel told her about the statute of limitations defense. A procedural waiver of the ineffective assistance of trial counsel claim is intertwined with the information Olson received from counsel, and we believe that fairness requires that the merits of her claim be considered.
Accordingly, we reverse and remand to the postconviction court for hearing and determination of Olson's ineffective assistance of pretrial and trial counsel claims.
2. Appellant's Motion to Strike An appellate court may not base its decision on matters outside the record on appeal, and matters not produced and received in evidence by the district court may not be considered on appeal. Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 847 (Minn. App. 1986), review denied (Minn. June 30, 1986). "The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal." Minn. R. Civ. App. P. 110.01. Olson moves to strike two parts of the state's brief that involve purported discussions between Olson and her attorneys about the statute of limitations defense. The record does not support factual assertions that Olson and her pretrial or trial attorney discussed the statute of limitations. Therefore, we grant Olson's motion to the extent the statements in respondent's brief are understood to state facts. But because the disputed statements are found in the argument section of appellant's brief, and can be regarded as such, we deny the motion to the extent that the disputed statements are taken as mere argument.
Reversed and remanded; motion granted in part and denied in part.
DAVIES, Judge (concurring specially)
I concur with the majority opinion, but write separately to express my concerns regarding the rule of Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).
In State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), our supreme court established the general requirement that all claims then known be asserted on direct appeal. Despite Knaffla, however, the supreme court and this court repeatedly held that claims of ineffective assistance of trial counsel, even if known at the time of direct appeal, were more appropriately raised in a postconviction petition than on direct appeal. State v. Cermak, 350 N.W.2d 328, 332 n.5 (Minn. 1984); Berg v. State, 557 N.W.2d 593, 595 (Minn. App. 1996); Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991); see also Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (considering postconviction claim of ineffective assistance of counsel, despite failure to raise issue in prior direct appeal); Gustafson v. State, 477 N.W.2d 709, 712-13 (Minn. 1991) (same); Marhoun v. State, 451 N.W.2d 323, 328 (Minn. 1990) (same).
But in Black, our supreme court negated this long-standing exception to Knaffla by announcing that postconviction claims of ineffective assistance of trial counsel were "generally precluded if known at the time of direct appeal." 560 N.W.2d at 85. This new procedure presents numerous problems:
1. When trial counsel continues to represent a criminal defendant during a direct appeal, it is difficult for that defendant to allege ineffective assistance of trial counsel. In effect, appellate counsel are forced to charge themselves with ineffectiveness at trial.
2. Even when different counsel provide representation on appeal, appellate counsel still needs the full cooperation of trial counsel. Claims of ineffectiveness at trial can interfere with that cooperation.
3. Direct appeals often involve issues that lose vitality when coupled with a claim that trial counsel provided ineffective assistance. For example, an appellate claim that trial counsel was ineffective for failure to object to introduction of certain evidence may compromise a simultaneous claim of improper prosecutorial argument or improperly admitted evidence. And pointing to trial counsel's ineffective arguments or failure to investigate may weaken an insufficiency-of-evidence claim.
4. Sorting through what a postconviction petitioner knew or did not know about the effectiveness of trial counsel often requires subtle judgments, making administration of the Black rule difficult.
5. The Black rule simply shifts the claim of ineffective counsel in a postconviction petition to a claim that appellate counsel was ineffective for having failed to raise trial counsel ineffectiveness on direct appeal. The rule, therefore, accomplishes nothing.
Black should be reconsidered at the earliest opportunity. Claims of ineffective assistance of counsel are, as a practical matter, in a class by themselves and should, in all cases, be exempt from the rule of Knaffla.
 The Spriegl issue was not raised on the instant appeal.
 I do not criticize the result in Black, where the petitioner waited 18 years to raise an ineffective assistance of trial counsel claim in his petition for postconviction relief. In a case of such inexcusable delay, the court properly exercised its inherent authority to preclude a claim that should have been brought years earlier.