STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2175

Phillip Ray Clow, Sr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 13, 2005

Affirmed

Wright, Judge

Clay County District Court

File No. K7-02-1037

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Lisa N. Borgen, Clay County Attorney, Kenneth J. Kohler, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)

Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

WRIGHT, Judge

Appellant challenges the denial of his petition for postconviction relief, arguing that his counsel rendered ineffective assistance by stipulating to a prior felony conviction in the presence of the jury and failing to object to the admission of other evidence regarding this conviction. We affirm.

FACTS

Appellant Phillip Clow was charged with one count of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000); one count of prohibited possession of a firearm, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2000); and two counts of second-degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2000). These charges arose from three incidents between appellant and his wife, Patricia Clow, in May and June 2002. At a jury trial, the state presented evidence against appellant as follows.

Patricia Clow testified that in early May, appellant and his girlfriend, Jennifer Solis, visited the Clows’ residence. Following an argument, appellant pointed a handgun at Patricia Clow’s head, threatened to kill her, and then fired a single bullet into the ceiling. Police later took a statement from Solis in which she gave a version of events consistent with that provided by Patricia Clow. But in her testimony, Solis recanted the statement. A photograph of the bullet hole in the ceiling and a cutout portion of the ceiling with the bullet hole were admitted in evidence. This first incident provided the basis for one count of second-degree assault.

Another count of second-degree assault arose out of the second incident. Patricia Clow testified that approximately one week after the first incident, appellant arrived at their residence with a handgun and a canister of gasoline and threatened to kill her. Patricia Clow identified the canister of gasoline that appellant brought to their residence. Two other witnesses, a friend and a neighbor, testified that Patricia Clow had made statements to them about the first and second incidents that were consistent with her testimony.

The terroristic-threats charge was based on the third incident. Patricia Clow testified that on June 1, 2002, appellant renewed his threats to burn their residence and kill her. When Patricia Clow refused to permit appellant to enter the residence, appellant broke a window. A photograph of the broken window was admitted at trial. Patricia Clow then contacted the police, who questioned her about appellant’s actions. Testimony from a police officer indicates that Patricia Clow described the three prior incidents consistently with her testimony at trial. Patricia Clow also gave the police two threatening notes that she received from appellant, which also were admitted at trial.

After questioning Patricia Clow, the police met with Solis at her residence. Solis gave the police a bag containing a firearm and told the police that appellant used the firearm to shoot the ceiling of the residence. Solis also mentioned that appellant had served at least 12 years in prison and suggested that this experience caused appellant to be a more violent person. A recording of Solis’s statements was played during the trial.

In addition to the firearm that the police recovered from Solis, the state also introduced evidence of a second firearm through the testimony of Roger Neubauer. According to Neubauer, appellant gave him cash and a firearm in exchange for a camper. Police subsequently obtained the firearm from Neubauer. Tammi Dunkin, a friend of Patricia Clow, testified that she saw appellant in possession of a matching pair of firearms. When she was shown the firearms recovered from Solis and Neubauer, Dunkin identified them as the matched set.

At the close of its case, the state placed a stipulation on the record by stating in the presence of the jury:

I would like to put on the record for the jury that both the defense and the state are stipulating and agreeing that the defendant has been convicted of a burglary, which is a felony, and that ten years have not elapsed since he was restored to his civil rights and that burglary occurred in the state of Washington.

Appellant’s counsel accepted this statement of the stipulation without objection.

During trial, appellant principally challenged the assertion that he had owned or possessed any firearms. Appellant presented a single witness, Casey Gapp, who initially claimed to be the owner of the firearm recovered from Solis. On cross-examination, Gapp confused the firearms recovered from Solis and Neubauer and then claimed that he was the owner of the firearm recovered from Neubauer.

Because of this testimony, appellant’s counsel did not offer a defense against the charge of prohibited possession of a firearm during closing argument. Appellant’s counsel also referred to appellant’s felony burglary conviction. On the remaining charges, appellant’s principal defense theory was that Patricia Clow fabricated her account in order to gain control over their marital assets. The jury returned a guilty verdict on all counts, and appellant was later sentenced to 132 months’ imprisonment.

On direct appeal from the convictions, appellant argued that the district court committed plain error by allowing evidence about his felony burglary conviction and incarceration in Washington. Appellant also claimed that defense counsel provided ineffective assistance by permitting the jury to hear other-crimes evidence and the stipulation to his prior burglary conviction.

We affirmed in an unpublished opinion. State v. Clow, No. C7-03-175, 2003 WL 22889367 at 5, 7, 9 (Minn. App. Dec. 9, 2003), review denied (Minn. Feb. 17, 2004). On the plain-error argument, we determined that the evidence of his conviction and imprisonment were not unduly prejudicial and added that “the result would have been the same had the evidence not been admitted.” Id. at *2-*3. We also held that the failure of defense counsel to object to other-crimes evidence was not ineffective assistance of counsel. Id. at *4. But we declined to reach the argument regarding the stipulation, stating that

without a more developed record, it is difficult to see what tactical advantage Clow received from a stipulation that highlighted for the jury that Clow had been convicted of a crime of violence, specifically a burglary, and that at the time he possessed the gun, his civil rights were not yet restored.

Id. at *5.

Appellant thus renewed his remaining claim for ineffective assistance of counsel before the district court in a petition for postconviction relief. The district court granted a hearing on the petition, which consisted entirely of testimony from appellant’s trial counsel. For the charge of prohibited possession of a firearm, defense counsel testified that he was unaware that it was improper to disclose that the defendant’s prohibited status is due to a felony conviction. Defense counsel also admitted that disclosure of appellant’s felony conviction to the jury did not serve any tactical advantage.

The district court denied appellant’s petition for postconviction relief. The district court determined that, by allowing the stipulation, the performance of defense counsel was not reasonable. But because of the extensive evidence against appellant, the district court concluded that there was no reasonable probability that without the stipulation appellant would not have been convicted of the charged offense. Thus, the district court held that appellant was unable to establish his claim for ineffective assistance of counsel. This appeal followed.

D E C I S I O N

A petition for postconviction relief is a collateral attack on the judgment, which carries a presumption of regularity. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). We will not disturb the decision of the postconviction court absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But a postconviction court’s determination of a legal issue is reviewed de novo. Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).

Appellant argues that, because his defense counsel stipulated to his prior felony conviction in the presence of the jury and failed to object to other evidence of this conviction, he received ineffective assistance of counsel. Whether the legal representation at issue here constitutes ineffective assistance of counsel presents a question of constitutional law, which we review de novo. State v. Blom, 682 N.W.2d 578, 623-24 (Minn. 2004).

In accordance with the right to counsel under the Minnesota and United States constitutions, a defendant is entitled to receive effective assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. I § 6; State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993). In Strickland v. Washington, the United States Supreme Court established a two-part test to determine whether defense counsel has provided ineffective assistance of counsel. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The defendant must first demonstrate that counsel failed to provide an objectively reasonable level of representation. Id. at 687-88, 104 S. Ct. at 2064. Then the defendant must demonstrate that, but for the unreasonable representation, the outcome of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068; State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001).

An objectively reasonable level of representation is met when defense counsel is as skillful and diligent as a reasonably competent attorney under similar circumstances. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). Although the representation is presumed to be reasonable, Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001), this presumption may be overcome when a defendant demonstrates that defense counsel has disregarded well-established legal principles. Roche v. Davis, 291 F.3d 473, 483 (7th Cir. 2002); 3 Wayne R. LaFave, Criminal Procedure § 11.10(c) (2d ed. 1999). But when the action of defense counsel may be characterized as a tactical decision and not a mistake, the representation is objectively reasonable. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990).

The Minnesota Supreme Court held in State v. Davidson that, when a prior felony conviction is an element of the offense of prohibited possession of a firearm, a defendant shall be allowed to stipulate to the conviction so that it is not disclosed to a jury. 351 N.W.2d 8, 11-12 (Minn. 1984). Here, appellant’s defense counsel admitted that, when he allowed the stipulation to be read to the jury, he was unaware of Davidson. And the mistake served no tactical purpose. We conclude, and the state does not contest, that the representation by defense counsel was objectively unreasonable.

The state argues, under the second part of the Strickland test, that the errors of defense counsel did not prejudice the outcome of the proceeding. In order to assess the prejudice caused by unreasonable representation, we consider whether “there is a reasonable probability that, but for [ ] counsel’s errors, the result . . . would have been different.” Patterson v. State, 670 N.W.2d 439, 442 (Minn. 2003). To evaluate the likelihood of prejudice, we ordinarily balance the egregiousness of the error with the weight of evidence against the defendant. See Dukes v. State, 660 N.W.2d 804, 813 (Minn. 2003) (balancing purported concessions by defense counsel against substantial evidence of homicide); State v. Rhodes, 657 N.W.2d 823, 843-44 (Minn. 2003) (rejecting claim for ineffective assistance of counsel, based on failure of defense counsel to challenge the evidence, when testimony overwhelmingly supported the conviction).

We observe that, in several cases when a defendant’s prior felony conviction was improperly disclosed to the jury, this error was held not to be so prejudicial as to violate the right to a fair trial. State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984); State v. Wemyss, 696 N.W.2d 802, 809-10 (Minn. App. 2005), pet. for review filed (Minn. June 23, 2005); State v. McGhee, 359 N.W.2d 286, 287 (Minn. App. 1984); cf. State v. Kolberg, 785 P.2d 702, 704 (Mont. 1990) (determining that erroneous disclosure of prior conviction to jury, when defense counsel failed to object, did not constitute ineffective assistance of counsel). To conclude that disclosure of a prior felony conviction prejudicially influenced the verdict, we have required some indication that the verdict was otherwise based on questionable or inconsistent evidence. State v. Marty, 376 N.W.2d 515, 517-18 (Minn. App. 1985) (reversing verdict when district court erroneously admitted substantial portion of defendant’s driving record and remaining evidence was inconsistent eyewitness testimony); State v. Allen, 375 N.W.2d 82, 84 (Minn. App. 1985) (determining that there was reversible error when district court improperly allowed evidence of four prior convictions, the remaining evidence was confusing and the matter was well-publicized), review denied (Minn. Dec. 19, 1985).

Here, the testimony of Patricia Clow is not substantially contradicted, is supported by other consistent statements, and is corroborated by the testimony of other witnesses. Given the weight of this evidence, we conclude that there is not a reasonable probability that, but for the disclosure of the prior felony conviction and testimony regarding his incarceration, the verdicts would have been different. Thus, appellant has not established his claim for ineffective assistance of counsel, and the district court’s denial of appellant’s petition for postconviction relief was proper.

Affirmed.

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