This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Kelly Daniel Stepp, petitioner,



State of Minnesota,


Filed August 10, 1999

Affirmed in Part, Reversed in Part, and Remanded

Davies, Judge

Pennington County District Court

File No. K195665

Maureen Williams, Law Office of Maureen Williams, P.O. Box 581304, Minneapolis, MN 55458-1304 (for appellant)

Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2131; and

David M. Olin, Pennington County Attorney, Alan G. Rogalla, Assistant County Attorney, P.O. Box 396, Thief River Falls, MN 56701 (for respondent)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Anderson, Judge.



Appellant challenges summary denial of two petitions for postconviction relief. In the petitions he alleged that (1) he had ineffective assistance of counsel in his direct appeal, (2) he was prejudiced by the prosecutor's familial relationship to a key witness, and (3) he did not commit the crime. Appellant argues that he should have received an evidentiary hearing. We affirm the postconviction court as to appellant's allegation of ineffective assistance of appellate counsel. But, as to appellant's other claims, we reverse and remand for an evidentiary hearing.


On September 21, 1995, Kevin Loerzel was attacked in his Thief River Falls home by Kenneth Schwartz and another male. From a photographic line-up, Loerzel identified appellant Kelly David Stepp as the other assailant. Schwartz and appellant were both charged and offered plea bargains. Schwartz entered an Alford plea of guilty to first-degree assault, but appellant elected to go to trial.

At trial, appellant maintained that Casey Holmgren, who, with Schwartz, had threatened Loerzel earlier on the evening of the attack, was Loerzel's assailant. But Schwartz, Holmgren, and Loerzel testified that it was appellant, not Holmgren. Also, Christine Shetler, Loerzel's neighbor, testified that Loerzel replied in the affirmative when, on the way to the hospital after the beating, she asked him if appellant had beaten him. In addition, Vikki Hutchinson (an acquaintance of appellant, Holmgren, and Schwartz) testified at trial that Holmgren was with her at the time of the assault and that appellant had gone with Schwartz and afterward bragged about beating Loerzel. This testimony came, however, after Holmgren changed her story numerous times.

Appellant was convicted of first-degree assault and sentenced to 120 months (10 years). The conviction and sentence were affirmed on direct appeal.

Nearly a year after his appeal, appellant petitioned for postconviction relief based on alleged ineffective assistance of appellate counsel in his direct appeal and on affidavits indicating that Holmgren, not appellant, was the second assailant. That petition was denied.

While appeal of the denial was pending, appellant allegedly learned that the brother of trial prosecutor, Alan Rogalla, is married to Schwartz's half-sister. On appellant's motion, the pending appeal of his first petition for postconviction relief was dismissed without prejudice. Appellant then filed a second petition for postconviction relief based on the prosecutor's failure to disclose his relationship to Schwartz. That petition was also denied, and appellant now challenges the orders denying both petitions.


Appellant challenges the postconviction court's decision to deny his petitions for postconviction relief without holding an evidentiary hearing. We will not reverse summary denial of postconviction relief absent an abuse of discretion. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996).


In appellant's direct appeal of the conviction, his appellate counsel chose not to argue that the evidence was insufficient to sustain appellant's conviction. In his first petition for postconviction relief, appellant claimed this was ineffective assistance of appellate counsel.

To succeed on an ineffective assistance of counsel claim, 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, 2064, 2068 (1984)).

There is sufficient evidence to sustain a criminal conviction if the jury could reasonably have concluded the defendant was guilty based on all the facts and legitimate inferences that could be drawn from those facts. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997). At trial, five witnesses--Christine Shetler, Vikki Hutchinson, Kenneth Schwartz, Casey Holmgren, and Kevin Loerzel--gave testimony indicating that it was appellant who attacked Loerzel. Appellant challenges the credibility of this testimony and points to contradictory evidence that he offered at trial. But on appeal, the appellate court would have had to defer to the jury's credibility determinations and the weight the jury gave particular evidence. State v. Jones, 556 N.W.2d 903, 913-14 (Minn. 1996).

The evidence was sufficient to support appellant's conviction and, even if appellant's counsel had raised the sufficiency of the evidence in appellant's direct appeal, appellant would not have prevailed on the issue. The postconviction court did not abuse its discretion by summarily denying appellant's claim of ineffective assistance of appellate counsel.


The postconviction court is required to hold an evidentiary hearing "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1998). A petitioner is entitled to postconviction relief if he establishes:

(1) that the newly discovered evidence was not within petitioner's or his counsel's knowledge before trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce a different or more favorable result.

Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (citation omitted).

Appellant argues that his second petition for postconviction relief alleged facts sufficient to justify an evidentiary hearing when he raised new information that there is a familial relationship between prosecutor Rogalla and Schwartz, a key witness against appellant.

The postconviction court ruled that it was "not prepared to declare that an inherent conflict of interest existed in this case." But, at this stage in the proceedings, the court did not have to rule conclusively on the allegations. It only had to decide whether appellant made sufficient allegations to justify giving him an opportunity to prove them in an evidentiary hearing. See Minn. Stat. § 590.02, subd. 1 (1998) (petition need only include "[a] statement of the facts and the grounds upon which the petition is based"); Minn. Stat. § 590.04, subd. 1 (evidentiary hearing is used to "determine the issues"). That the relationship exists is apparently conceded by respondent; and appellant is entitled to an evidentiary hearing because it is not conclusively apparent that appellant suffered no prejudice.

Appellant's first postconviction petition included six affidavits indicating that Casey Holmgren, not appellant, assisted Schwartz in beating Kevin Loerzel. Appellant alleged that this information was not known at the time of trial and could not reasonably have been discovered at that time. The identity of the assailant is a material fact and, if Holmgren were proven to be the assailant, there would likely be a different result. See State v. Jacobson, 326 N.W.2d 663, 664 (Minn. 1982) (new evidence that another individual may have committed crime for which defendant was convicted required new trial).

Respondent argues that appellant did not offer adequate support for his claim. But appellant's duty was simply to allege facts that were more than bald assertions. Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987), review denied (Minn. May 18, 1987). The law does not require postconviction petitioners to prove their claim to be entitled to an evidentiary hearing.

Although the factual support given by appellant seems dubious, he met the low threshold of alleging facts with some evidentiary support. We do not presume to judge the veracity of appellant's claims. Whether appellant can actually prove the facts alleged remains to be seen.

Affirmed in part, reversed in part, and remanded.