may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
J. C. Trine, petitioner,
State of Minnesota,
Filed August 17, 1999
Hennepin County District Court
File No. 94110028
J. C. Trine, MCF/STW ID# 181832, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.
Appellant J.C. Trine, who previously filed a direct appeal, contends the district court erred by denying his petition for postconviction relief in which he claims: (1) ineffective assistance of appellate counsel; (2) prosecutorial misconduct; (3) insufficiency of the evidence; (4) a miscalculation of his criminal history score; and (5) an improper upward durational departure in his sentence. We affirm.
In reviewing a postconviction proceeding, the appellate court is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997). A postconviction court's decision will not be disturbed absent an abuse of discretion. Id.
Only appellant's ineffective assistance of appellate counsel brings new issues to the court. All other claims were known and could have been addressed in appellant's direct appeal two years ago. Further, appellant's claims are not so novel that their legal bases were not reasonably available to counsel at the time of the direct appeal. Therefore, we conclude the district court properly dismissed the insufficient evidence, prosecutorial misconduct, and sentencing claims.
To be entitled to an evidentiary hearing on a claim of ineffective assistance of appellate counsel, appellant must allege facts that, if proved, would "affirmatively show that his attorney's representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different." Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998). When reviewing such a claim, this court determines "whether the representation and the assistance were reasonable in the light of all the circumstances." Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989). A strong presumption exists that counsel's performance falls within a wide range of reasonable assistance. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).
Appellant argues that because his appellate counsel failed to present certain arguments on appeal, the attorney provided ineffective assistance of counsel. We disagree. An appellate counsel has no duty to include claims that would detract from other, more meritorious, claims. Wilson, 582 N.W.2d at 886. Similarly, to render effective assistance of counsel, an attorney should not have to advance every conceivable argument on appeal that the record supports. Tsipouras v. State, 567 N.W.2d 271, 276 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997), cert. denied, 118 S. Ct. 1049 (1998). Our review of the record indicates appellant's counsel properly chose to present only the strongest claims. Further, as the district court noted, appellant could have submitted a pro se supplemental brief to the appellate court regarding additional issues, but did not do so.
We conclude appellant did not allege facts that, if proved, would have shown that his attorney's representation fell below an objective standard of reasonableness and that, but for the errors, the result would have been different. Therefore, the district court did not abuse its discretion by dismissing the claim and denying appellant's request for an evidentiary hearing. See Robinson, 567 N.W.2d at 494 (an evidentiary hearing is not required after a postconviction petition unless facts are alleged which, if proven, would entitle a petitioner to relief).
Finally, the district court did not abuse its discretion by denying appellant's request for appointed counsel. See Minn. Stat. §§ 611.14, subd. 2 (1998); 590.05 (a person pursuing a postconviction proceeding of a felony or gross misdemeanor is entitled to be represented by a public defender only if he or she has not already directly appealed the conviction).