A05-610

Dean Joseph Turner, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed March 15, 2006

Affirmed

Willis, Judge

Sherburne County District Court

File No. K2-02-1713

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

Mike Hatch, Attorney General, Steven H. Alpert, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101; and

Kathleen Heaney, Sherburne County Attorney, Sherburne County Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

Considered and decided by Worke, Presiding Judge; Willis, Judge; and Minge, Judge.

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

WILLIS, Judge

Appellant challenges the denial of his petition for postconviction relief without an evidentiary hearing. We affirm.

FACTS

Appellant Dean Joseph Turner was charged with one count of first-degree attempted murder, one count of first-degree assault, four counts of second-degree assault, and one count of reckless discharge of a firearm, all arising from an incident that occurred in August 2002. Turner moved for a mental examination under Minn. R. Crim. P. 20.02 and for a contested omnibus hearing, requesting that the district court dismiss the complaint because Turner was “acting under diminished mental capacity and defect of reason” at the time of the offenses. The district court ordered the rule 20 examination, which concluded that, although Turner exhibited attention-deficit-hyperactivity disorder and suffered from “grief and mourning” resulting from his wife’s death, he “does not suffer from a mental illness, mental disorder, or mental condition that would reach the M’Naghten threshold.”[1] Turner then withdrew his request that the charges be dismissed because of his mental condition.

Turner and the state entered into a plea agreement whereby Turner pleaded guilty to one count of first-degree assault, one count of second-degree assault, and one count of making terroristic threats, and the state dropped the remaining charges. The district court ordered a presentence psychological evaluation. The evaluation, conducted by the same doctor who performed the rule 20 examination, found that Turner continued to suffer from attention-deficit-hyperactivity disorder but noted that Turner’s grief resulting from his wife’s death was “fairly well resolved” and did not find “other psychological factors that should significantly impact the court’s sentencing consideration.”

The presentence-investigation report referred to both the rule 20 examination and the presentence psychological evaluation and recommended a guidelines sentence, concluding that there did not appear to be any clear mitigating factors. In June 2003, the district court denied Turner’s motion for a downward dispositional departure and sentenced him to the presumptive guidelines sentence of 86 months in prison.

In January 2005, Turner petitioned for postconviction relief and requested an evidentiary hearing, arguing that his trial counsel failed to present at sentencing mitigating evidence of Turner’s “several psychological disorders including major depressive disorder [and] post-traumatic stress disorder among others” at the time of the offenses. Turner contended that the submission of evidence of his mental condition by his trial counsel “would have changed the result of the sentencing in that the district court would have been able to consider this [evidence] in support of its sentencing decision to depart.” Turner attached to his petition a report that Turner’s counsel had requested from Dr. F. S. Abuzzahab, Sr., a Minneapolis psychiatrist. Dr. Abuzzahab reported that a “thorough and comprehensive psychiatric examination [of Turner] was conducted in ninety minutes” on October 27, 2004. Dr. Abuzzahab concluded that Turner was “under impaired mental capacity at the time of the incident” in August 2002 and was “entitled to full protection under the M’Naghten rule since he was laboring under defect of reasoning.” Turner also attached to his petition the affidavit of a criminal-defense attorney, who opined that the conduct of Turner’s trial counsel fell below an objective standard of reasonableness.

The postconviction court, who was the same judge who had sentenced Turner, denied Turner’s petition without an evidentiary hearing, concluding that Turner’s ineffective-assistance-of-counsel claim failed because (1) his attorney’s decision to not have Turner evaluated by a psychiatrist was trial strategy not subject to review; (2) Turner’s psychological condition was assessed prior to sentencing; and (3) Turner failed to show that the introduction of additional evidence regarding his psychological condition would have resulted in a different sentence. The postconviction court also concluded that (1) Dr. Abuzzahab’s report was not newly discovered evidence that would justify a new trial; (2) the report “lack[ed] all credibility”; (3) the information contained in Dr. Abuzzahab’s report did not present “any mitigating factors”; and (4) “all of the mitigating factors asserted by [Turner] were taken into account by the State in formulating the plea agreement.” Turner now appeals from the postconviction court’s denial of his petition for postconviction relief.

D E C I S I O N

Turner argues that the postconviction court abused its discretion by failing to grant an evidentiary hearing “before making credibility findings on proffered witness testimony.” A petition for postconviction relief is an attack on a conviction, which carries a presumption of regularity. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). We “review a postconviction proceeding to determine if there is sufficient evidence to sustain the postconviction court’s findings, and we will not disturb the court’s decision absent an abuse of discretion.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001). A postconviction court must conduct an evidentiary hearing unless the petition, files, and records of the proceeding “conclusively show” that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2004). “A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case.” State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993); see also Minn. Stat. § 590.04, subd. 3 (2004).

[N]ot every ineffective assistance of counsel claim will require an evidentiary hearing at the postconviction court. A petitioner’s allegations in a postconviction petition must be more than argumentative assertions without factual support. However, neither should evidentiary hearings be presumptively denied. A postconviction court must evaluate whether, in light of the significance of the claimed error and the evidence presented at trial, a petitioner has raised and factually supported material matters that must be resolved in order to decide the postconviction issues on their merits.

Rhodes, 627 N.W.2d at 88 (citations and internal quotations omitted).

Turner argues that the postconviction court made a determination of the credibility of Dr. Abuzzahab’s report that could be made only after an evidentiary hearing. A petitioner bears the burden of presenting sufficient evidence to warrant an evidentiary hearing. See Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (stating that to secure an evidentiary hearing a petitioner must allege facts that would “affirmatively prove that his counsel’s representation” was ineffective (quotation omitted)). A postconviction court is entitled to weigh the evidence presented by a petitioner when determining whether to grant an evidentiary hearing. See Rhodes, 627 N.W.2d at 88.

Credibility is the “quality that makes something (as a witness or some evidence) worthy of belief.” Black’s Law Dictionary 374 (7th ed. 1999). Weight of the evidence, however, is the “persuasiveness of some evidence in comparison with other evidence.” Id. at 1588. A review of the record and the postconviction court’s findings leads us to conclude that although the postconviction court used the word “credibility,” it in fact determined that Dr. Abuzzahab’s report had little or no evidentiary weight. The postconviction court noted that (1) the rule 20 examination included a review of the record, a clinical interview of Turner, a discussion with Turner’s personal therapist, and the administration to Turner of several “profiling instruments”; (2) the presentence psychological evaluation concluded that no psychological factors other than those found in the rule 20 examination existed that should affect the sentencing decision; and (3) “all factors that could be characterized as mitigating circumstances” were considered by the presentence-investigation report, which recommended the presumptive guidelines sentence.

The postconviction court’s comparison of Dr. Abuzzahab’s report with the earlier psychological evaluations of Turner further shows that the court considered the report’s weight, not Dr. Abuzzahab’s credibility:

[The Abuzzahab report] is a self-serving document based principally, if not entirely on [Turner’s] verbal input and recitations. Dr. Abuzzahab did not conduct an independent review of the records. The report makes no representation that Dr. Abuzzahab reviewed [Turner’s] past psychological records, cited no collateral sources, conducted no independent testing or assessments of [Turner] and did not address the conclusions of the Rule 20.02 report or the pre-sentence psychological reports.

The postconviction court also stated that Dr. Abuzzahab’s report “failed to quantify the degree to which [Turner] ‘was under impaired mental capacity,’ and its conclusion that ‘it was impossible for [Turner] to premeditate an assault’ is directly contradicted by [Turner’s] own sworn testimony.” The postconviction court did not abuse its discretion when it determined that the evidentiary weight of Dr. Abuzzahab’s report was insufficient to warrant a hearing.

Turner relies on Opsahl v. State, 677 N.W.2d 414 (Minn. 2004), to support his claim that the postconviction court abused its discretion by making a determination of the credibility of Dr. Abuzzahab’s report. In Opsahl, the appellant submitted new evidence in a postconviction petition that five of the seven trial witnesses lied under oath and had recanted their testimony in affidavits. Id. at 419. The supreme court determined that the district court abused its discretion by “concluding that the recantations were unreliable without first evaluating the credibility of the witnesses at an evidentiary hearing.” Id. at 423-24. We conclude that Opsahl is inapposite. Here, the postconviction court assessed the evidentiary weight of Dr. Abuzzahab’s report on its face, not Dr. Abuzzahab’s credibility as might be assessed by observing his demeanor.

Lastly, Turner argues that the postconviction court improperly concluded “that the plea offered by the State accurately applied the mitigating factors.” Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). We review a postconviction court’s findings to determine whether sufficient evidentiary support exists in the record. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

The postconviction court concluded that Dr. Abuzzahab’s report did not present any mitigating factors, finding that Dr. Abuzzahab relied on Turner’s representations to form his opinion, did not review Turner’s prior psychological records or examinations, and did not conduct an independent assessment of Turner. The rule 20 examination, the presentence psychological evaluation, and the presentence-investigation report support the postconviction court’s conclusion that there were no substantial and compelling circumstances that warranted a downward sentencing departure.

Affirmed.

[1] “The M’Naghten rule requires that in order to be excused from criminal liability by reason of insanity, a defendant must show that he either did not know the nature of his act or that the act was wrong.” State v. Odell, 676 N.W.2d 646, 648 (Minn. 2004). The M’Naghten rule is codified at Minn. Stat. § 611.026 (2004).