This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Fred Charles Koerner,

Filed November 23, 1999
Kalitowski, Judge

Anoka County District Court
File No. K9955066

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

Brian J. Peterson, 7101 Northland Circle, #102, Minneapolis, MN 55428 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


After appellant Fred Charles Koerner's convictions of three counts of criminal sexual conduct were affirmed by this court, Koerner petitioned the trial court for postconviction relief, which was denied. Koerner now appeals the postconviction court's decision arguing that his counsel's representation at trial was so defective that he was denied effective assistance of counsel. We affirm.


This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and its decision will not be disturbed absent an abuse of discretion. Gustafson v. State, 477 N.W.2d 709, 712 (Minn. 1991). When determining whether to grant a new trial based on ineffective assistance of counsel, this court applies the two-part test set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). First, the appellant must prove that counsel's representation fell below "an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. Second, the appellant must prove that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2068.

Koerner contends he was prejudiced because his trial counsel coerced him to not testify at trial. But the ultimate decision about whether or not to testify is that of the defendant after consultation with counsel, and the courts must give great deference to choices made by the defendant. Gustafson, 477 N.W.2d at 712. The court will grant a new trial only where counsel actually refuses to allow the defendant to testify rather than merely advises a defendant not to testify. Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991).

Koerner claims he did not testify because his trial counsel told him that if he testified, the jury would be instructed not to believe him because of a prior conviction for criminal sexual conduct. But the record reflects: (1) during the trial, the court informed Koerner of his right to testify and Koerner stated he did not want to testify; and (2) during the postconviction hearing, Koerner admitted that his trial counsel did not prohibit him from testifying. We conclude the postconviction court did not abuse its discretion when it refused to grant a new trial on this basis. See State v. Ranier, 502 N.W.2d 784, 789 (Minn. 1993) (holding new trial was not warranted where counsel advised defendant not to take stand and defendant knowingly waived that right).

Koerner also argues his trial counsel lacked experience in criminal sexual conduct cases, was unprepared, and failed to call exculpatory witnesses or introduce exculpatory evidence. But because of the wide variety of ways to effectively represent a client, the Strickland court emphasized the need for wide deference and held that counsel's actions that could be considered trial strategy are presumed not to be ineffective assistance. 466 U.S. at 689, 104 S. Ct. at 2065.

Here, the record indicates: (1) information that the alleged "exculpatory" witness would have provided was information that had already been introduced during the trial; (2) Koerner failed to show how evidence not introduced at trial would have changed the outcome of the trial; (3) Koerner's trial counsel was able to secure an acquittal on one of the five counts and get a "hung jury" on another count; and (4) although the trial counsel had only tried one prior criminal sexual conduct case, Koerner hired him based on the amount of his retainer. See State v. Keenan, 289 Minn. 313, 320, 184 N.W.2d 410, 414 (1971) (stating courts have been reluctant to reverse convictions on grounds of inadequacy of counsel where appellant selected counsel). Finally, we note that the same judge presided over the trial and the postconviction proceedings. See State v. Powell, 578 N.W.2d 727, 732 (Minn. 1998) (noting when same judge presided over trial and postconviction hearing, judge had ample opportunity to observe possible ineffectiveness of counsel). Because the postconviction court's determination that trial counsel's representation of Koerner fell within the range of reasonableness is supported by the evidence, we affirm.


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