Filed April 11, 2006

Affirmed

Randall, Judge

Renville County District Court

File No. K0-97-607

WashingtonCounty District Court

File No. K4-96-5129

Bradley Allen Wendt, Minnesota Correctional Facility-Rush City, 7800 525th Street, Rush City, MN 55069 (pro se);

Michael Hatch, State Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and

Doug Johnson, Washington County Attorney, Richard Allen, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082; and

David J. Torgelson, Renville County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent).

Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, and Randall, Judge.

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

RANDALL, Judge

This case involves consolidated appeals from orders denying postconviction petitions challenging criminal convictions on grounds of ineffective assistance of counsel. In the Washington County case (A05-1054), appellant, who was convicted in 1997 of third-degree assault, argues that the postconviction court erred in denying his claim under State v. Knaffla, that trial counsel was ineffective in failing to investigate, and that appellate counsel was ineffective in failing to raise a claim of ineffective assistance of trial counsel. In the Renville County case (A05-580), appellant also challenges a denial of relief based on Knaffla. Affirmed.

FACTS

Renville County

In 1995, Bradley Wendt, appellant, was charged with and found guilty of (1) assault in the first degree; (2) assault in the second degree with a dangerous weapon; and (3) drive-by shooting, recklessly discharging a firearm. He was sentenced to confinement.

In March 1996, appellant filed a notice of appeal. Appellant challenged the district court’s admission of expert testimony and also argued that the court failed to properly define “great bodily harm” and “substantial bodily harm” and that he received ineffective assistance of counsel. See State v. Wendt, No. CO-96-577, 1997 WL 76323, at *1 (Minn. App. Feb. 25, 1997), review denied (Minn. April 15, 1997).

This court upheld the district court’s decision regarding all issues. Id. at *2. In regards to appellant’s argument that he received ineffective counsel, this court held

[b]ased on the evidence at trial, there is no indication that the verdict would have differed but for the attorney’s conduct. Furthermore, appellant bases his claim of ineffective assistance of counsel on questions of trial tactics. Trial tactics may not properly serve as the sole basis of an ineffective assistance of counsel claim. (citations omitted).

Id.

Appellant petitioned for review to the Minnesota Supreme Court of this court’s decision which was denied in April 1997. He also petitioned for writ of habeas corpus which the United States District Court, District of Minnesota dismissed without prejudice finding that appellant had not exhausted his state remedies.

On January 10, 2005, appellant filed a petition for post-conviction relief asking that his judgments of conviction be vacated and a new trial granted. He argued that (1) he was denied a fair trial because the district court permitted a state witness to testify that the victim’s injuries constituted “great bodily harm”; (2) he received ineffective assistance of counsel; (3) the search of his vehicle was unconstitutional; and (4) he was denied his right to allocution.

On January 25, 2005, the district court denied appellant’s petition for post-conviction relief finding that appellant had raised the first two issues on direct appeal and justified that claims raised on direct appeal may not be renewed in a post-conviction motion. The court held that appellant’s other two issues, that the search of his vehicle was unconstitutional and that he was denied his right to allocution, were known at the time of his direct appeal and therefore the claims could not be considered. The court found that the claims were not “so novel that their legal basis was not reasonably available at the time of direct appeal.”[1]

Washington County

In July 1996, while serving his sentence of confinement in Washington County for his previous assault, appellant had an altercation with a prison guard which resulted in a broken nose for the guard. See State v. Wendt, No. C1-97-1036, 1998 WL 51372, at *1 (Minn. App. Feb. 10, 1998), review denied (Minn. April 14, 1998). Appellant was charged with and found guilty of third-degree assault. Id. Appellant appealed the district court’s finding, arguing that the evidence was insufficient to support his conviction. Id. In February 1998, this court affirmed the district court’s findings, holding that appellant’s conviction rested on sufficient evidence. Id.

Appellant engaged in the same legal process for this case as he did for his Renville County case. In October 1998, he filed for federal habeas corpus which was dismissed and returned to state court in order to allow appellant to exhaust all available remedies on his ineffective assistance of counsel claims. In February 2005, appellant filed for post-conviction relief which was denied in April 2005. In his petition, appellant argued the district court’s decision was based upon insufficient evidence and that he received ineffective assistance of trial and appellate counsel. The district court denied his petition for post-conviction relief. This appeal followed.

Appellant appeals the orders from Renville and Washington Counties denying post-conviction relief. In both cases, appellant argues he received ineffective assistance of trial and appellate counsel.

D E C I S I O N

Renville County

Appellant argues that he received ineffective assistance of trial counsel because his counsel failed to (a) cross-examine an expert witness’ credentials, and (b) impeach the inconsistent statements made by a Bureau of Criminal Apprehension witness. Appellant also argues that the evidence seized from his vehicle should not have been introduced because the search was unlawful and that he was denied his right to allocution during sentencing.

“The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.” Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but we make an independent determination of the law as it applies to the facts. Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975). “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).

The Minnesota Supreme Court has repeatedly said that an appeal from a judgment of conviction is not the most appropriate way of raising an issue concerning the effectiveness of trial counsel’s representation because the reviewing court does not have the benefit of all the facts concerning why defense counsel did or did not do certain things. See, e.g., State v. Cermak, 350 N.W.2d 328, 332 n.5, (Minn. 1984); State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981). This issue is more effectively presented in a postconviction proceeding.

A claim made on direct appeal may not be renewed in a post-conviction petition. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (holding that claims raised and decided on direct appeal may not be reconsidered in a subsequent post-conviction proceeding). On direct appeal, one of the issues decided by this court was appellant’s claim of ineffective assistance of counsel. Wendt, 1997 WL 76323 at *2. This court found that appellant failed to show that his attorney’s representation was inadequate. Id. Appellant raised this issue on direct appeal, and, therefore, it may not be reconsidered. See Fratzke, 450 N.W.2d at 102. “[W]here direct appeal has once been taken, all matters raised therein . . . will not be considered upon subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

Appellant raises two additional issues. He argues that the evidence seized from his vehicle should not have been introduced because the search was unlawful and that he was denied his right to allocution during sentencing. Appellant could have raised the unconstitutional search issue on direct appeal. Id. Appellant was required to raise any issues on direct appeal that he knew or should have known on direct appeal. Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005). There are two exceptions. First, “[w]here a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided . . . postconviction relief will be allowed.” Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). Second, “[i]n limited situations, if fairness so requires and if the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal [this court] will allow substantive review of a claim contained in a petition for postconviction relief, either when the claim was known at the time of direct appeal or when its legal basis may have been reasonably available.” Roby v. State,531N.W.2d 482, 484 (Minn. 1995).

Appellant’s unlawful-search claim is a claim that he knew or should have known about which was required to be raised on direct appeal. His failure to raise the issue on appeal does not fit within any exception to the law. Even if we were to remand the issue back to the district court, any evidence from 1995 is now stale lessening any claim that an error on the part of the district court was substantial.

Appellant argues he was denied his right to allocution. Before pronouncing sentence, under the Minnesota Rules of Criminal Procedure, the district court shall give the prosecutor, the victim, and defense counsel an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence. The district court shall also address the defendant personally and ask if he wishes to make a statement on his behalf and to present any information before sentence, including, in the discretion of the court, oral statements from other persons on behalf of the defendant. Minn. R. Crim. P. 27.03, subd. 3.

Before pronouncing sentence, the district court did not ask appellant if he wished to make a statement in his own behalf or present any information. In State v. Young, where the court failed to extend the right to allocution to the defendant, we held that the rule was clear that “a defendant has a right to allocution before the court imposes sentence.” 610 N.W.2d 361, 363 (Minn. App. 2000), review denied (Minn. April 25, 2000). In Young, the court failed to separately address the defendant or give him an opportunity to address sentencing issues. Id. The district court failed to do the same here. Appellant is correct. He was denied his right to allocution.

Ordinarily, the fact that a defendant was denied his right to allocution could constitute reversible error, but appellant’s failure to raise the allocution issue on direct appeal leads us to conclude that he is barred from raising the issue in his subsequent petition for postconviction relief. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (holding that “where direct appeal has been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”). Appellant knew of the allocution issue at the time direct appeal was taken and failed to raise it then as law requires. Further, the ten-year time lapse between his sentence hearing and now virtually nullifies his otherwise equitable claim. If he goes back to district court to say something in his own words (not an unimportant right), with the ten year interval, it is axiomatic that the district court is not apt to change appellant’s sentence.

Washington County

Appellant argues that he received ineffective assistance of trial counsel because his counsel failed to call as witnesses other inmates present during the altercation, thereby failing to properly investigate the facts of the altercation. He argues that had his counsel called as witnesses other inmates, a jury would not have found him guilty.

On direct appeal, appellant raised the issue that there was insufficient evidence to sustain his conviction. Wendt, 1998 WL 51372 at *1. Unlike in his Renville County appeal, he did not raise the issue of ineffective assistance of trial counsel on direct appeal. Id. We find that appellant cannot now raise the issue on this appeal because he knew or should have known the issue on direct appeal. He was aware at trial that witnesses were not called to testify. This claim is almost identical to his insufficiency of the evidence claim raised on direct appeal. The legal basis for his claim of ineffective assistance of counsel was known at the time of trial, yet he failed to appeal this issue. He cannot now raise the issue in his subsequent petition for postconviction relief. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

II.

Appellant argues that he received ineffective assistance of appellate counsel during both his Renville and Washington County appeals.

Appellant argues that during his Renville appeal his appellate counsel failed to raise issues pertinent to his appeal. He argues his appellate counsel should have challenged the search of his vehicle and argued appellant was denied his right to allocution.

Appellant’s argument lacks merit. “When an appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues.” Case, 364 N.W.2d at 800.

In his Washington County appeal, appellant argues that his appellate counsel failed to raise the issues of ineffective assistance of trial counsel.

The district court found that there was no basis to grant relief against appellant’s appellate counsel. The district court properly relied on Sutherlin v. State where the defendant’s “main contention [was] that his appellate attorney failed to raise the claim that his trial attorney provided ineffective assistance of counsel” but the court held that “[b]y making this argument, [defendant] is in effect simply re-characterizing an issue that he should have raised on direct appeal.” 574 N.W.2d 428, 435 (Minn. 1998). As previously stated, Minnesota law holds that “[w]hen an appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues.” Case, 364 N.W.2d at 800.

Based upon the record presented and relied on by the district court concerning appellant’s ineffective assistance of trial counsel claim, we conclude that appellate counsel had no duty to raise the other claims argued by appellant on direct appeal.

Affirm.

[1] See Case v. State, 364 N.W.2d 797, 799-800 (Minn. 1985) (holding that claims known to plaintiff at time of direct appeal must be raised on direct appeal unless they were “so novel that their legal basis was not reasonably available at the time of direct appeal.”)