This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-915

 

James Meemken, petitioner,

Appellant

 

vs.

 

State of Minnesota,

Respondent.

 

Filed November 19, 2002

Affirmed
Klaphake, Judge

 

Stearns County District Court

File No. K4973061

 

 

James Joseph Meemken, OID #166665, Stillwater Correctional Facility, 970 Pickett Street North, Bayport, MN 55003 (appellant pro se)

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Pro se appellant James Joseph Meemken challenges the district court’s denial of his postconviction petition seeking a new trial and resentencing.  Because all issues before this court were known and could have been raised at the time of Meemken’s direct appeal, we affirm the district court’s denial of his petition for postconviction relief.

D E C I S I O N

This court reviews a postconviction court’s decision only to determine whether the evidence is sufficient to sustain the postconviction court’s findings.  State v. Doppler, 590 N.W.2d 627, 632 (Minn. 1999).  We will not reverse a postconviction court’s decision absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

In this appeal, Meemken raises several issues regarding the effectiveness of his attorney’s representation at several points during trial.  Specifically, he claims his attorney:  (1) failed to properly cross-examine a witness; (2) failed to adequately argue for dismissal; (3) made statements that prejudiced his trial; and (4) failed to adequately investigate possible defense witnesses.  Because all of these alleged instances of deficient performance occurred during Meemken’s trial, all issues were known to Meemken at the time of his direct appeal.  Where a defendant has already made a direct appeal, he is barred from seeking postconviction review of all matters raised in the appeal or known at the time of appeal.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Thus, the district court did not abuse its discretion in denying Meemken’s postconviction petition on these issues.

            Appellant also argues that his attorney failed to fully communicate to him the consequences of testifying on his own behalf.  This is the type of postconviction claim that may, on occasion, survive the Knaffla procedural bar.  A claim that requires further investigation into conversations between attorney and client can be considered on postconviction, even if not raised on direct appeal.  See, e.g., Robledo-Kennedy v. State, 637 N.W.2d 581, 585 (Minn. 2002).  But in this case, the postconviction court determined that appellant had not singled out any particular action or decision by counsel that warranted further investigation, and denied this claim without an evidentiary hearing.  The court based its decision on the record and the affidavits submitted by both appellant and counsel.  We determine this decision to have been within the postconviction court’s discretion, and affirm.  

Finally, we note that Meemken’s petition for resentencing is not properly before this court.  At the time this appeal was filed, the resentencing issue was pending before the district court, and no final order had been entered.  Although the petition has since been denied, it requires a separate appeal in order to be reviewable by this court.  See Minn. R. Crim. P. 28.02, subd. 2(2) (“defendant may not appeal until final judgment adverse to the defendant has been entered by the trial court”).  We therefore decline to address the resentencing issue at this time. 

            Affirmed.