A05-773

Albert Maurice Hillman, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 6, 2006

Affirmed in part, reversed in part, and remanded

Willis, Judge

Isanti County District Court

File No. K7-00-513

Albert Maurice Hillman, OID #206274, 970 Pickett Street North, Bayport, MN 55003-1490 (appellant pro se)

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

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

WILLIS, Judge

Pro se appellant challenges the denial of his petition for postconviction relief. Appellant argues that he was denied effective assistance of both trial and appellate counsel and that the trial court abused its discretion by not sua sponte recusing itself or transferring venue. Appellant argues also that the postconviction court erred by denying his motion for appointment of counsel and that the postconviction court abused its discretion by not recusing itself or transferring venue. Because the merits of appellant’s claim that he was denied effective assistance on the ground that his trial counsel allegedly failed to tell appellant of a plea offer cannot be determined without additional fact-finding, we reverse in part and remand to the district court to conduct an evidentiary hearing on this issue only. Because appellant’s remaining claims were either raised or could have been raised on direct appeal or otherwise lack merit, we affirm in part.

FACTS

In January 2001, pro se appellant Albert Maurice Hillman was convicted of two counts of first-degree assault, in violation of Minn. Stat. ง 609.221, subd. 2 (2000); first-degree attempted murder, in violation of Minn. Stat. งง 609.17, subd. 1, 609.185(4) (2000); drive-by shooting, in violation of Minn. Stat. ง 609.66, subd. 1e(b) (2000); and first-degree controlled-substance crime, in violation of Minn. Stat. ง 152.021, subd. 2(1) (2000). Hillman appealed, and this court affirmed his convictions. State v. Hillman, No. C7-01-1371, 2002 WL 1751103, at *1 (Minn. App. July 30, 2002). In January 2005, Hillman filed a pro se petition for postconviction relief, which the postconviction court denied without an evidentiary hearing. This appeal follows.

D E C I S I O N

This court reviews a postconviction court’s denial of relief for an abuse of discretion. Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005). A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Hillman argues that the postconviction court abused its discretion by denying him relief without holding an evidentiary hearing on his claims that he received ineffective assistance of both trial and appellate counsel and that the trial court abused its discretion by not sua sponte transferring venue or recusing itself. To warrant an evidentiary hearing, a petitioner must allege facts that, if proved, would entitle him to the requested relief. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995); see Minn. Stat. ง 590.04, subd. 1 (2004). The allegations must be more than argumentative assertions without factual support. Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002).

A postconviction court may “summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” Minn. Stat. ง 590.04, subd. 3 (2004). When a 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.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Claims that should have been known at the time of the direct appeal are also barred from consideration. Quick, 692 N.W.2d at 439. But a postconviction court may consider a claim that was previously known but not raised if (1) “the claim presents a novel legal issue” or (2) “fairness requires review of the claim and petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.” Id.

A. Ineffective Assistance of Trial Counsel

Hillman argues that he was denied effective assistance because his trial counsel (1) failed to raise an intoxication defense; (2) failed to move for change of venue; (3) failed to challenge the constitutionality of Hillman’s sentence; and (4) failed to tell him of a plea offer. The postconviction court found that Hillman raised an ineffective-assistance claim on direct appeal and that it was “rejected by the Court of Appeals.” But it appears that Hillman did not in fact raise an ineffective-assistance claim on direct appeal, although he knew or should have known of such a claim at that time. Hillman alleges that his appellate attorney told him that he “could raise his ‘trial counsel errors’ at a later time, but did not specify what the ‘at a later time’ implied.”

Because Hillman did not raise a claim of ineffective assistance of trial counsel in his direct appeal and because his appellate attorney may have discouraged him from doing so, we will review Hillman’s ineffective-assistance claim. See Scruggs, 484 N.W.2d at 25 (stating that “a direct appeal is not the most appropriate way to raise an ineffective-assistance claim” and that “[t]his court previously has considered ineffective-assistance claims in postconviction proceedings even though petitioner did not raise the claims on direct appeal”). 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).

To prove that he received ineffective assistance of counsel, a petitioner must affirmatively show 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.’” 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)). This court need not address both the performance and prejudice prongs if one is determinative. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997). Generally, appellate courts give particular deference to counsel’s decisions regarding trial strategy. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (stating that “[c]ounsel must, after all, have flexibility to represent a client to the fullest extent possible” and that “trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight”).

Hillman argues that his trial counsel provided ineffective assistance by failing to raise an intoxication defense. Trial counsel’s decision regarding what defenses to raise is trial strategy. Lahue, 585 N.W.2d at 789-90. And the record shows that despite the fact that Hillman did not testify that he was impaired by drugs or alcohol at the time of the events that led to his arrest, his trial counsel still requested that the jury be given an intoxication instruction. The trial court denied the instruction, and we affirmed that decision. Hillman, 2002 WL 1751103, at *4. Because Hillman has not shown that his trial counsel’s performance with respect to raising an intoxication defense fell below an objective standard of reasonableness, we conclude that the postconviction court did not abuse its discretion by denying relief on this claim without an evidentiary hearing.

Hillman also argues that his trial counsel provided ineffective assistance by failing to move for a change of venue because of the publicity that the case received. As proof of publicity, Hillman provided copies of newspaper articles from April and July 2000 about the shooting with which Hillman was charged. The trial took place in January 2001. Of the jurors who were seated, only three stated during voir dire that they had read newspaper articles about the shooting, but they and the remaining jurors satisfied the trial court that they could be fair and impartial. See State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990) (stating that the trial court is best able to determine whether prospective jurors can be impartial because it hears their testimony and observes their demeanor). And this court has already concluded in Hillman’s direct appeal that his juror-bias claims were without merit. Hillman, 2002 WL 1751103, at *8. Based on the record, Hillman has failed to show that if his trial counsel had moved for a change of venue the result of the trial would have been different. In addition, the decision of whether to seek a change of venue is a matter of trial strategy. Jones, 392 N.W.2d at 236. We conclude that the postconviction court did not abuse its discretion by denying relief on this claim without an evidentiary hearing.

Hillman argues that his trial counsel provided ineffective assistance by failing to challenge the constitutionality of Hillman’s sentence. Specifically, Hillman argues that (1) his sentence constitutes cruel and unusual punishment under the U.S. and Minnesota constitutions because his sentence is “grossly disproportionate to the offense”; (2) the sentencing court wrongly ordered Hillman to serve two of his sentences consecutively because it “unfairly exaggerates the criminality of [Hillman’s] conduct”; and (3) his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakley v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). All three constitutional claims lack merit.

The statutory maximum sentence for first-degree attempted murder is 240 months in prison, and Hillman, who had a criminal-history score of two, received 200 months, which was the presumptive guidelines sentence. See Minn. Stat. ง 609.17, subd. 4(1) (2000); Minn. Sent. Guidelines II.G. The statutory maximum sentence for first-degree assault is 240 months in prison, and Hillman received 86 months, which is less than the presumptive guidelines sentence of 120 months. See Minn. Stat. 609.221, subd. 2(b) (2000); Minn. Sent. Guidelines II.E (providing that the “presumptive duration of the prison sentence should be the mandatory minimum sentence according to statute” when it is longer than the sentence provided for by the sentencing guidelines). The Minnesota legislature has the authority to determine what acts constitute criminal offenses and the range of punishment for crimes, including probation, confinement, and parole. State v. Osterloh, 275 N.W.2d 578, 580 (Minn. 1978); Steeves v. State, 287 Minn. 476, 480-81, 178 N.W.2d 723, 725-26 (1970). Hilllman’s sentences are within the ranges permitted by statute and the sentencing guidelines and therefore are not cruel and unusual punishment. See Steeves, 287 Minn. at 480-81, 178 N.W.2d at 725-26 (holding that defendant’s sentence was not cruel or unusual punishment when it was limited to one-half of what defendant could lawfully receive under the relevant statute).

In addition, “[c]onsecutive sentencing of multiple felonies with multiple victims is permissive and within the broad discretion of the [district] court.” State v. Richardson, 670 N.W.2d 267, 284 (Minn. 2003). Here, Hillman’s first-degree assault and first-degree attempted-murder offenses are felonies and involved two separate victims; therefore, consecutive sentences for these offenses were permissive.

A permissive consecutive sentence is not an upward durational departure from the sentencing guidelines. See Minn. Sent. Guidelines II.F (defining permissive consecutive sentences as sentences that may be given “without departure”). This court has held that Blakely and Apprendi do not apply to permissive consecutive sentences. State v. Senske, 692 N.W.2d 743, 748-49 (Minn. App. 2005), review denied (Minn. May 17, 2005). Moreover, Hillman’s sentence was final before the Blakely decision was released, and Blakely does not apply retroactively. See State v. Houston, 702 N.W.2d 268, 270, 273 (Minn. 2005). Apprendi also does not apply because Hillman’s sentences do not exceed the statutory maximum for his offenses. See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2562-63 (providing that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury”).

Because his underlying constitutional claims lack merit, Hillman is unable to show that he was prejudiced by his trial counsel’s failure to raise these claims. Therefore, we conclude that the postconviction court did not abuse its discretion by denying Hillman relief on this claim without an evidentiary hearing.

Hillman also argues that the postconviction court abused its discretion by denying his motion for additional briefing on Blakley and Apprendi, but because these cases do not apply to Hillman’s sentences, the postconviction court did not abuse its discretion by denying Hillman’s motion.

Hillman argues finally that his trial counsel provided ineffective assistance by allegedly failing to tell him of the state’s offer of a 259-month total sentence in exchange for a guilty plea. The merits of this claim cannot be determined by reviewing only the briefs and the trial-court transcript; additional fact-finding is needed. See Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (concluding that a claim that trial counsel failed to communicate two plea offers is properly raised in postconviction petition and not in a direct appeal because of the need for further fact-finding). To evaluate such a claim, a postconviction court “needs to hear testimony from the defendant, his or her trial attorney, and any other witnesses who have knowledge of conversations between the client and the attorney.” Id. And “[o]nly after hearing such testimony could a court determine whether in fact the trial attorney communicated the plea offers.” Id. Therefore, we conclude that the postconviction court abused its discretion by denying Hillman postconviction relief on this claim without an evidentiary hearing, and we remand to the district court to conduct an evidentiary hearing on this issue.

B. Ineffective Assistance of Appellate Counsel

Hillman argues that he was denied effective assistance of counsel on his direct appeal because his attorney (1) failed to move this court for a stay of the appeal pending postconviction proceedings; (2) failed to claim ineffective assistance of trial counsel; and (3) advised Hillman to raise his claims regarding juror bias in a supplemental brief in his direct appeal. To prevail on a claim of ineffective assistance of appellate counsel, Hillman must show that his appellate counsel’s performance was unreasonable and that it prejudiced the outcome of the direct appeal. See Sanders v. State, 628 N.W.2d 597, 603 (Minn. 2001).

The decision of Hillman’s appellate counsel not to move for a stay of the direct appeal pending postconviction proceedings is appellate strategy and not a matter of professional performance. Hillman does not show that the failure of his appellate counsel to make such a motion prejudiced the outcome of Hillman’s appeal. And it was not ineffective assistance for Hillman’s appellate counsel to decide not to raise claims of ineffective assistance of trial counsel or juror bias, or to inform Hillman that he could pursue his own claims on appeal in a pro se brief. See Pierson v. State, 637 N.W.2d 571, 579-80 (Minn. 2002) (providing that when an appellant and his attorney disagree over what issues to raise on appeal, it is not ineffective assistance of counsel for the attorney to choose not to pursue issues that, in his or her judgment, would detract from other, more meritorious claims). Because Hillman’s claims of ineffective assistance of appellate counsel lack merit, we conclude that the postconviction court did not abuse its discretion by denying Hillman relief on this claim without an evidentiary hearing.

C. The Trial Court’s Failure to Sua Sponte Transfer Venue or to Recuse Itself

Hillman argues that the trial court abused its discretion by not sua sponte transferring the case to another venue or recusing itself, “when the trial court [judge] was aware that close personal friends of his were sitting on the jury and that there were jurors who were friends . . . [or relatives of] . . . state witnesses.” Hillman unsuccessfully claimed juror bias on direct appeal. Hillman, 2002 WL 1751103, at *8. And the fact that the trial court judge knew some of the jurors does not alone disqualify the judge or show that the judge was biased. See Minn. Code of Judicial Conduct Canon 3.D (listing reasons for disqualification); see also Minn. R. Crim. P. 26.03, subd. 13(3) (providing that a judge shall not preside over a trial “if that judge is disqualified under the Code of Judicial Conduct”); Minn. R. Crim. P. 26.03, subd. 13(5) (providing that a judge “may recuse himself or herself from presiding over a trial”). Hillman alleges no other basis on which the trial court should have transferred venue or recused itself. And because Hillman knew or should have known of these specific claims at the time of his direct appeal, they are barred from consideration on his petition for postconviction relief. See Quick, 692 N.W.2d at 439; Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

II.

Hillman argues that the postconviction court erred by denying Hillman’s motion for appointment of counsel. The record shows that the state public defender declined to represent Hillman on his postconviction petition. Because Hillman was represented by appointed counsel on the direct appeal from his convictions, he has no statutory right to appointed counsel in the postconviction proceeding. See Minn. Stat. ง 590.05 (2004) (requiring state public defender to represent a person seeking postconviction relief only “if the person has not already had a direct appeal of the conviction”). Therefore, the postconviction court did not err by denying Hillman’s motion for appointment of counsel.

III.

Hillman also argues that the postconviction court abused its discretion by not recusing itself or transferring the venue on the matter of Hillman’s petition for postconviction relief. Hillman claims that he could not obtain fair consideration of his petition because the postconviction court judge was “the trier of facts during the criminal trial, [and] would not admit to any errors that he may have committed.” The record shows that Hillman was convicted by a jury; so the judge who presided at Hillman’s trial did not function as a trier of fact. And it is not improper for the postconviction judge to be the same judge who presided at trial. Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987), review denied (Minn. May 18, 1987). Therefore, we conclude that the postconviction court did not abuse its discretion by denying Hillman’s motions to recuse itself or to transfer venue.

Affirmed in part, reversed in part, and remanded.