This opinion will be unpublished and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
CX-98-204

Oliver Lenell Dority, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 8, 1998
Affirmed
Willis, Judge

Ramsey County District Court
File No. CX943980

Mark D. Nyvold, 1030 Minnesota Building, 46 E. Fourth Street, St. Paul, MN 55101 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Oliver Dority challenges the district court's denial, without an evidentiary hearing, of his petition for postconviction relief alleging ineffective assistance of counsel at his guilty plea and on direct appeal. We affirm.

FACTS

In 1995, appellant Oliver Lenell Dority, who was represented by an assistant public defender, pleaded guilty to charges of first- and third-degree criminal sexual conduct involving two separate victims. The state agreed that in sentencing the two offenses consecutively, the third-degree conviction would be sentenced first (resulting in use of a zero criminal history score for the first-degree conviction) and each conviction would be sentenced "to the low end" of the presumptive guidelines with no departure. At the plea hearing, Dority admitted details of both offenses and testified that no promises had been made to him other than those made on the record; he also signed plea petitions containing similar statements.

A presentence investigation determined that under the terms of the plea agreement Dority's sentence should be 84 months for third-degree criminal sexual conduct and 81 months for the first-degree offense. At sentencing, Dority, still represented by the assistant public defender, moved to withdraw his pleas, stating that his counsel had told him that he would receive a sentence of no more than 134 months. The district court denied the motion on the ground that the plea agreement did not mention a specific sentence duration and sentenced Dority to 165 months. Dority appealed, claiming that his pleas were not voluntarily and intelligently made. This court affirmed in an unpublished opinion, concluding that the district court did not abuse its discretion because the record supported the district court's characterization of the plea agreement and contained no evidence that Dority had been promised a sentence of only 134 months. State v. Dority, No. C2-95-1610 (Minn. App. Jan. 30, 1996), review denied (Minn. Mar. 19, 1996). Dority also submitted a pro se brief, raising claims that this court concluded were waived by the guilty plea. Id.

Dority then petitioned for postconviction relief, alleging that his guilty-plea counsel had admitted to his appellate counsel that he had mistakenly thought that first-degree criminal sexual conduct was a level VII, rather than a level VIII, offense and therefore told Dority that he would receive a lesser sentence. Dority alleged that this misreading of the sentencing guidelines constituted ineffective assistance of counsel and that his appellate counsel was also ineffective for failing to raise the issue and seek an evidentiary hearing. The district court dismissed both claims without an evidentiary hearing, concluding that the alleged misreading of the sentencing guidelines did not rise to the level of ineffective assistance of counsel and that the claim had substantially been argued, or if not, should have been argued, on direct appeal. The court also, without explanation, concluded that the ineffective assistance of appellate counsel claim "has no merit." Dority appeals from the dismissal. Because we conclude that Dority's claim of ineffective assistance of guilty-plea counsel is procedurally barred and that the district court did not abuse its discretion in dismissing Dority's claim of ineffective assistance of appellate counsel, we affirm.

D E C I S I O N

In postconviction cases,

[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition.

Minn. Stat.  590.04, subd. 1 (1996). But the postconviction court

may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.

Id., subd. 3. An evidentiary hearing is required only where the petitioner alleges facts that would entitle him to relief if proven by a preponderance of the evidence. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). This court reviews a district court's summary denial of a postconviction petition only for an abuse of discretion. Id.

I. Effective Assistance of Guilty-Plea Counsel

The district court found Dority's claim of ineffective assistance of counsel at his guilty plea to be procedurally barred under alternative rationales. First, it concluded that the claim essentially had been argued on direct appeal, making summary dismissal appropriate under subdivision 3 of section 590.04. It then determined that if the claim had not been decided on direct appeal, Dority had waived it because he knew its factual basis at the time.

We have found no Minnesota caselaw addressing the issue of whether, for purposes of section 590.04, subdivision 3, an appellate court's rejection of a claim that counsel's mistaken information rendered a plea involuntary constitutes a decision on the issue of whether counsel provided ineffective assistance by furnishing the mistaken information. But we need not decide that issue here because we conclude that even if the claims are distinct, on the facts of this case, Dority waived the ineffective assistance claim on direct appeal.

The supreme court has established a general rule that when a defendant fails to raise a claim on direct appeal for which he knows the factual basis at the time, including a claim of ineffective assistance of counsel, the claim cannot be raised in a postconviction proceeding. See, e.g., Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (citations omitted). If a claim of ineffective assistance of counsel requires consideration of facts not in the record on direct appeal, such as testimony explaining an attorney's decisions, counsel on direct appeal should move to stay the appeal or remand the case for a postconviction hearing; this court's policy in such cases is to dismiss the direct appeal and issue an order allowing the defendant to raise all the issues, if necessary, on appeal from a denial of postconviction relief. See State v. Steele, 449 N.W.2d 157, 157 (Minn. 1989) (discussing procedure); Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) (stating that defendant should move this court for stay of direct appeal pending postconviction hearing). While the supreme court has reviewed ineffective assistance claims first raised in postconviction proceedings, it has explained those decisions as exercises of its "discretion to review in the interests of justice." Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997) (citations omitted). The supreme court has further explained that such discretionary review may be had where fairness so requires 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) (quoting Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991) (citation omitted)).

Here, Dority claims that his appellate counsel was aware that his guilty-plea counsel had made a mistake in reading the sentencing guidelines and points to his claim of ineffective assistance of appellate counsel as evidence that his failure to raise the claim was not deliberate. But Dority also submitted a pro se brief on direct appeal that did not mention an ineffective assistance claim. Dority was plainly aware of the factual basis for such a claim because the claim was based on his counsel's alleged representations to him and because his claim on direct appeal was based on the same alleged misrepresentations. Under the circumstances, we conclude that Dority's claim that the assistant public defender provided ineffective assistance at his guilty-plea hearing is procedurally barred, and we see no compelling circumstances here requiring exercise of our power of discretionary review. Cf. Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996) (remanding for review of postconviction ineffective assistance claim where question of whether failure to raise claim on direct appeal was deliberate and inexcusable was intertwined with defendant's understanding of trial counsel's advice).

II. Effective Assistance of Appellate Counsel

A claim of ineffective assistance of appellate counsel by nature must first be raised in a postconviction proceeding. Garasha, 393 N.W.2d at 22. To prevail on such a claim, a defendant must affirmatively prove (1) that his "counsel's representation fell below an objective standard of reasonableness" and (2) that, in the absence of counsel's errors, there is a reasonable probability that this court would have ordered a new trial and that the defendant would have been acquitted on retrial. State v. Kelly, 535 N.W.2d 345, 348 (Minn. 1995). A postconviction court may summarily dismiss a claim of ineffective assistance of appellate counsel based on the failure to raise a claim of ineffective assistance of trial counsel if that underlying claim is without merit. Miles v. State, 512 N.W.2d 601, 603 (Minn. App. 1994), review denied (Minn. May 17, 1994).

For an attorney's assistance to be ineffective, he must make "errors so serious that [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. Race, 383 N.W.2d 656, 663 (Minn. 1986) (quoting Strickland v. Washington, 466 U.S. 668, ___, 104 S. Ct. 2052, 2064 (1984)). Counsel's action or inaction must rise to the level of "incompetence." State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987). "There is a strong presumption that a counsel's performance falls within the wide range of 'reasonable professional assistance.'" State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). The determination is based on counsel's performance over the entire proceeding rather than on an examination of individual errors. See Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998).

We agree with the district court that under this standard, the assistant public defender's alleged mistake in reading the sentencing guidelines does not rise to the level of ineffective assistance of counsel. Dority's guilty-plea counsel negotiated what appeared to be a reasonable plea bargain and after the mistake was discovered made a timely request to withdraw the plea in order to negotiate a new agreement. Because the district court correctly concluded that Dority would not have prevailed if he had raised his claim of ineffective assistance of guilty-plea counsel on direct appeal, it was justified in dismissing Dority's ineffective assistance of appellate counsel claim based on the failure to raise the issue. See Miles, 512 N.W.2d at 603.

Dority is correct that ineffective assistance is established where trial counsel makes an unqualified promise of a particular sentence in return for a plea agreement and that sentence is not imposed. State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984). But Andren simply incorporates into the ineffective assistance context the supreme court's standard for voluntariness of a guilty plea. See id. (citing State v. Trott, 338 N.W.2d 248, 252-53 (Minn. 1983)). This court concluded on direct appeal that the record did not support Dority's claim that his guilty plea was based on mistaken information about his sentencing and therefore would not have granted a new trial on the basis of an unqualified promise of a particular sentence. Even if Dority's claim is interpreted as alleging ineffective assistance based on his appellate counsel's failure to raise the ineffective assistance claim and to request a hearing to develop the record, the supreme court has made clear that appellate counsel has no duty to raise all possible claims but may limit the appeal to those he considers to be the most meritorious. See, e.g., Sutherlin, 574 N.W.2d at 435; see also Jones, 392 N.W.2d at 236 (stating that ineffective assistance claims based on challenges to attorney's choice of tactics are disapproved).

Moreover, if Dority were to receive a new trial on the ground of ineffective assistance of appellate counsel, it appears questionable whether he has established a reasonable probability that he would be acquitted. DNA evidence strongly links him with the attack on the first victim; the record indicates that the odds of another individual having DNA matching Dority's are one billion to one. Similarities with the attack on the first victim greatly weaken his claim that his sexual contact with the second victim was consensual. We conclude that the district court did not abuse its discretion in holding that Dority had failed to state facts that, if proven, would entitle him to relief on the basis of ineffective assistance of appellate counsel and therefore properly dismissed his petition.

Affirmed.

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