A04-117

State of Minnesota,

Respondent,

vs.

Maximo Franch,

Appellant.

Filed March 28, 2006

Affirmed

Worke, Judge

Freeborn County District Court

File No. K5-03-687

Mike Hatch, Attorney General, Daniel L. Abelson, Assistant Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Craig S. Nelson, Freeborn County Attorney, 411 South Broadway, Albert Lea, MN 56007 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55487 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from a conviction of first-degree controlled-substance possession and an order denying postconviction relief, appellant argues that he is entitled to a new trial because he received ineffective assistance of trial counsel. We affirm the conviction and the district court’s postconviction order.

FACTS

Appellant Maximo Franch was driving a vehicle owned by his passenger while enroute from Las Vegas to St. Paul when they were stopped by a Minnesota state trooper for speeding. As the trooper spoke with appellant, he detected a strong scent of an air freshener, noticed that appellant’s eyes were bloodshot, and observed that appellant “was very lethargic, he seemed out of it, just kind of stood there and had a gaze that was almost looking through you.” Appellant provided a suspended driver’s license to the trooper.

Suspecting drug activity, the trooper called for backup, including a K-9 handler to determine the presence of controlled substances. The dog was led around the car and “sniffed intensively,” but did not alert to the presence of drugs. A trooper asked appellant to get out of the vehicle so he could “explain the citation to [appellant].” After appellant exited the car, one of the troopers noticed a broken hairpin and white ash on the driver’s seat. The trooper then asked appellant to open the trunk, but observed only automobile jacks, tires, and rims. One trooper began to speak to appellant’s passenger, who was still seated in the vehicle. He questioned her about the presence of drugs, which she denied, but as he spoke with her she opened a console between the two seats and he noticed a protruding piece of glass that he “believed to be a pipe.” The trooper then opened the console completely and found two glass pipes containing what appeared to be drug residue. The passenger then got out of the vehicle, and the troopers searched her purse and found what they suspected to be controlled substances. Both appellant and his passenger were then arrested. Searching the vehicle more thoroughly, the troopers found a small quantity of a substance that field-tested as cocaine. They subsequently found a large quantity of what appeared to be methamphetamine hidden inside the back seat.

Appellant was charged with first-degree possession of a controlled substance, in violation of Minn. Stat. § 152.021, subds. 2(1), 3(a) (2002). Prior to trial, appellant waived the right to a contested evidentiary hearing. During trial, defense counsel persuaded the district court to provide jury instructions on the lesser-included offense of third-degree possession. During his closing argument, appellant’s attorney told the jury that, based on the state’s case, the only facts that the jury could find was that “these two people were driving on the freeway smoking dope” and that appellant should have known about the drugs that were found in his passenger’s purse. The jury returned a guilty verdict on the first-degree controlled-substance charge, and the district court sentenced appellant to 98 months in prison.

After appealing the conviction, appellant obtained a stay from this court and filed a petition for postconviction review in the district court, alleging ineffective assistance of counsel and seeking a new trial. The district court granted appellant’s request for an evidentiary hearing, which was limited to testimony from appellant’s trial attorney. Following the hearing, the district court denied the petition. It found that the attorney had advised appellant about his decision not to contest the circumstances of the stop and that appellant had not objected to the inclusion of a lesser offense in the jury instructions, and concluded that appellant had failed to establish that he received ineffective assistance of counsel during his trial. Appellant now appeals the district court’s denial of his postconviction petition.

D E C I S I O N

A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). “The defendant must affirmatively prove 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” 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)).

Appellant argues that his attorney’s failure to request an omnibus hearing “demonstrated unreasonable professional judgment” and prejudiced appellant’s case because there is a reasonable probability that this defense tactic would have resulted in the exclusion of virtually all of the evidence against him.

Appellant’s trial attorney testified at the postconviction evidentiary hearing that he told appellant that “if the evidence were suppressed, the state wouldn’t have a case against him.” But he also told appellant that he “felt there was little or no chance of success” in suppressing the evidence because the car did not belong to appellant and appellant would have to prove an expectation of privacy with respect to his personal belongings in the car. The attorney testified that he provided appellant with another option: “waive the omnibus hearing and invoke the speedy trial demand and hopefully put . . . the prosecution at a disadvantage” because drug test results had not yet been returned and the passenger’s availability as a witness was uncertain. According to appellant’s attorney, it was appellant who decided against an omnibus hearing because he believed his passenger would not testify. Appellant chose not to testify at the postconviction hearing; he submitted an affidavit along with a post-hearing supplemental memorandum that the district court refused to consider because of the unavailability of cross-examination to the prosecution.

Citing American Bar Association standards of practice, appellant maintains that his trial attorney had the ultimate responsibility to decide whether to demand an evidentiary hearing. But this argument is not relevant when a defendant expressly stated that he did not want to challenge the evidence following an explanation of the merits of such a challenge, a fact that is in the record and was clearly adopted by the district court, to whose credibility determination this court must defer. Furthermore, the trial attorney himself believed that an attempt to suppress the evidence would be unsuccessful, and it is not the province of this court to review trial strategy. Opsahl, 677 N.W.2d at 421.

Even in his reply brief, appellant does not acknowledge the difficulty of establishing standing to contest the search of the vehicle. But the trial attorney’s testimony shows that he recognized this heightened difficulty in assessing the chances of success in suppressing the evidence. See State v. Champion,594 N.W.2d 526, 529 (Minn. App. 1999) (“A criminal defendant must show that a search or seizure violated his or her own legitimate expectation of privacy before successfully challenging the search or seizure under the Fourth Amendment.”). Given that appellant’s attorney also articulated an alternative strategy based on appellant’s right to a speedy trial, the decision to forego an evidentiary hearing seems to be reasonable (appellant states in a footnote in his appellate brief that he ultimately waived his right to a speedy trial). See State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997) (indicating a “strong presumption” that an attorney’s representation falls within the “wide range of reasonable professional assistance”). We conclude that appellant’s attorney’s recommendation that appellant forego an attempt at suppressing the evidence did not fall below the standard of reasonableness and does not support a claim of ineffective assistance of counsel.

Appellant also argues that his trial attorney’s statements about appellant’s drug use constituted ineffective assistance of counsel because they amounted to an admission of appellant’s guilt. In closing argument, the attorney told the jury twice that “if the state has proven anything” it was that appellant and his passenger were “smoking dope” in the car, but that the state had not established appellant’s exercise of dominion over the primary stash of a controlled substance ultimately found in the car.

During trial, appellant’s trial attorney successfully persuaded the district court, over the state’s objection, to include a lesser-offense instruction for third-degree controlled-substance possession against appellant because of the witness’s testimony that appellant had placed a small quantity of methamphetamine in her purse. The attorney testified at the postconviction hearing that appellant reacted favorably to this strategy and was present while it was introduced to the district court.

Appellant’s argument that his attorney’s statements were an admission of guilt overstates their import. Appellant was convicted of first-degree possession, and the mere fact that he used drugs would not have sustained that charge. But more to the point, the attorney did not admit that appellant had been “smoking dope.” The context of the statement clearly reveals the attorney’s argument was that such a finding would be the most the jury could find in light of the evidence presented. Thus, the attorney’s statements did not contradict appellant’s claim at trial that he had not used drugs. In light of the lesser-offense instruction to which appellant conceded, these statements were a reasonable attempt by the trial attorney to persuade the jury that the state had not established the elements of a first-degree charge. The district court’s denial of postconviction relief on this issue was appropriate.

Affirmed.