This opinion will be unpublished and

may not be cited except as provided by

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




Bonnie Lou Allen, petitioner,



State of Minnesota,


Filed November 10, 1998


Short, Judge

Kandiyohi County District Court

File No. K2961369

Aldo J. Terrazas, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for appellant)

Hubert H. Humphrey III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Short, Judge.


SHORT, Judge

Bonnie Lou Allen was convicted of felony theft in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (1996), and sentenced to 120 hours of community service work plus $1,000 in fine and fees. Her direct appeal was dismissed without prejudice. See State v. Steele, 449 N.W.2d 157, 157-58 (Minn. 1989) (discussing Minnesota Court of Appeals policy and procedure of dismissing direct appeal and issuing order allowing defendant to raise all issues, if necessary, on appeal from denial of postconviction relief). On appeal from a denial of postconviction relief, Allen argues: (1) denial of postconviction relief without a hearing constitutes reversible error; and (2) she is entitled to a new trial as a matter of law. We affirm.


Postconviction actions present an opportunity for collateral review. 8 Henry W. McCarr, Minnesota Practice § 43.1 (1990); see Minn. Stat. § 590.01, subd. 1 (1996) (providing postconviction remedy for criminal conviction or sentence violative of constitution or laws). In reviewing a postconviction order, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).


Allen argues the postconviction court abused its discretion by denying her petition without a hearing. See Minn. Stat. §§ 590.02, subd. 1(1) (1996), 590.04, subd. 3 (1996) (stating mandatory hearing is required when petitioner alleges (1) material facts in dispute (2) which would entitle petitioner to relief if proved by a fair preponderance of evidence). However, a postconviction petition may not necessitate an evidentiary hearing. See Minn. Stat. § 590.04, subds. 1, 3 (1996) (dictating procedures for postconviction hearings). Because Allen's allegations are generalized, argumentative assertions without factual support, the postconviction court did not abuse its discretion by denying relief without an evidentiary hearing. See Robinson v. State, 567 N.W.2d 491, 493 (Minn. 1997) (denying relief without hearing where petitioner did not make factual allegations of what preparation should have been done or what witnesses should have been called or difference that would have made); Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (denying relief without hearing where petitioner's allegations were argumentative assertions without factual support).


Allen argues she is entitled to a new trial as a matter of law because her constitutional rights to a fair trial and to effective assistance of counsel were denied. Allen claims: (1) she did not knowingly waive the conflict of interest created by her counsel's representation of her husband; (2) she was denied her right to testify; and (3) her counsel's performance fell below an objective standard of reasonableness. We disagree.

First, the trial court made an Olsen inquiry, which covered 13 transcript pages. State v. Olsen, 258 N.W.2d 898, 906-07 (Minn. 1977) (dictating procedure to waive right to conflict-free representation); see also Minn. R. Crim. P. 17.03, subd. 5 (applying Olsen inquiry to criminal co-defendants). On two separate occasions, Allen affirmatively waived her rights. See Mercer v. State, 290 N.W.2d 623, 625 (Minn. 1980) (holding when Olsen inquiry is made and defendant waives right to conflict-free counsel, then, on appeal, defendant bears burden of showing prejudicial conflict actually existed). Moreover, Allen has failed to demonstrate any evidence of a prejudicial conflict of interest. See State v. Moore, 481 N.W.2d 355, 363 (Minn. 1992) (holding actual conflict did not exist when defendant was well represented, appropriate pretrial motions were made, witnesses were vigorously cross-examined, and counsel consulted with defendant throughout).

Second, Allen waived her right to testify on the record. See State v. Walen, 563 N.W.2d 742, 751-52 (Minn. 1997) (concluding because defendant has burden of proving his waiver of right to testify was not knowing and voluntary, placement on record of defendant's waiver, although not required, will save time at postconviction proceeding). In addition, both Allen and her counsel acknowledged that decision was made after consultation. See Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (holding when defendant acknowledges decision not to testify was made after discussing issue with counsel and finding no evidence trial counsel refused to allow defendant to testify then no denial of right to testify).

And third, defense counsel's exercise of tactical judgment does not support a claim of ineffective assistance. See State v. Buchanan, 431 N.W.2d 542, 553 (Minn. 1988) (noting choice of trial tactics is not usually a basis for finding ineffective assistance of counsel) (citing Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 2065-66 (1984)). Allen also failed to demonstrate the claimed errors affected the outcome at trial. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (requiring defendant claiming ineffective assistance to show reasonable probability that, but for counsel's unprofessional errors, result of proceeding would have been different). Under these circumstances, Allen is not entitled to a new trial.