This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1563

 

 

Robert Eugene Adams, Sr., petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed August 1, 2006

Affirmed

Toussaint, Chief Judge

 

Beltrami County District Court

File No. K0-92-1183

 

 

Robert E. Adams, Sr., Post Office Box 35, Starbuck, MN 56381 (pro se appellant)

 

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

 

Timothy R. Faver, Beltrami County Attorney, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

On appeal from an order summarily denying his petition for postconviction relief, Robert Eugene Adams, Sr., challenges his conviction and revocation of probation on multiple grounds.  Because Adams’s claims are either procedurally barred by an earlier appeal or do not state a sufficient basis for relief, we affirm.

D E C I S I O N

Adams appeals from the district court’s summary denial of his petition for postconviction relief.  In June 1995 Adams pleaded guilty to a first-degree controlled-substance crime.  The district court sentenced him to a 110 months’ imprisonment stayed and ordered him to pay restitution.  The district court revoked Adams’s probation and  executed his sentence in November 2003 following multiple violations of his probation conditions.

Adams appealed the revocation and, in a pro se supplemental brief, also argued that his plea was invalid and that the district court erred in calculating his criminal-history score.  This court upheld the execution of Adams’s sentence and further held that his pro se arguments lacked merit.  State v. Adams, No. A04-225, 2004 WL 2093635, at *2 (Minn. App. Sept. 21, 2004), review denied (Minn. Dec. 14, 2004).

In April 2005, Adams filed a petition for postconviction relief that asserted multiple grounds for relief. The district court denied the petition without a hearing, holding that Adams’s claims either lacked merit or were procedurally barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), which held that, when a defendant directly appealed conviction, matters that were raised on direct appeal or that were known but not raised at time of appeal may not be raised in a petition for postconviction relief. 

Adams appeals the denial of his petition pro se and asserts ten grounds for relief.  He argues that the district court improperly participated in plea negotiations, improperly included restitution in his sentence, did not hold a timely probation-revocation hearing, and failed to file its reasons for a dispositional departure with the Minnesota Sentencing Guidelines Commission.  Adams further argues that he received ineffective assistance from both trial and appellate counsel, that the state entrapped him to enhance his sentence, that he was not informed of his Miranda rights, that the prosecution committed misconduct, and that the district court improperly used prior convictions to enhance his sentence.

A criminal defendant may petition the district court for postconviction relief under Minn. Stat. § 590.01 (2004).  The district court may deny a hearing on the petition if the record shows that the petitioner is not entitled to relief or the petition raises issues that have previously been decided by an appellate court in the same case.  Id., subds. 1, 3 (2004).  We review the denial of a petition for postconviction relief for an abuse of discretion.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

            The district court erroneously construed Adams’s appeal from his probation revocation as a direct appeal.  Although that appeal was his first appeal, it was not an appeal from his conviction and sentence.  See Minn. R. Crim. P. 28.02, subd. 4(3) (requiring defendant to appeal within 90 days of final judgment).  Despite this incorrect construction, however, the district court did not err by denying Adams’s petition because his claims are either waived because of his earlier appeal or do not provide a sufficient basis for relief.

Several of Adams’s claims are barred by his appeal from his probation revocation.  Because this court has already determined that his allegation of judicial participation in securing his plea is without merit, he may not raise this claim again.  See Adams, 2004 WL 2093635, at *2 (holding claim is without merit).  Adams also may not challenge the timeliness of his probation-revocation hearing or the district court’s order of restitution because his appeal from the revocation provided an opportunity for this court to review the revocation and the sentence.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (stating that court will not consider claims appellant could have raised in earlier review); State v. Hockensmith, 417 N.W.2d 630, 632 (Minn. 1988) (holding that defendant can challenge sentence at time of probation revocation).

Adams’s additional claims do not provide a sufficient legal or factual basis for postconviction relief.  To demonstrate ineffective assistance of counsel, a petitioner bears the burden of showing that an attorney’s representation fell below an objective standard of reasonableness and that prejudice resulted from the attorney’s errors.  White v. State, 711 N.W.2d 106, 110 (Minn. 2006).  Adams argues that his trial counsel was ineffective because he failed to object to Adams’s guilty plea on the grounds of judicial participation and because he did not demand that the district court file a report stating its reasons for the dispositional departure with the Minnesota Sentencing Guidelines Commission.  But these claimed errors do not establish ineffective assistance of counsel.

This court previously held that Adams’s argument of an invalid plea lacked merit, and the alleged absence of a filed report lacks a factual basis.  Upon Adam’s request for a copy of the report, the commission informed Adams that it no longer had the report, but its electronic records indicated that the district court granted the departure because court services recommended it and because the district court found Adams amenable to treatment.  This response indicates that the district court properly filed a report with the commission.  See Minn. R. Crim. P. 27.03, subd. 4(C) (requiring court to file departure report with Minnesota Sentencing Guidelines Commission).  Adams’s claim that his trial counsel should have demanded further action by the district court is therefore unsupported.

Adams asserts that his appellate counsel was ineffective by failing to provide him with transcripts in a timely manner so he could prepare his pro se supplemental brief and challenge the validity of his plea.  Correspondence demonstrates that appellate counsel instructed Adams to notify her immediately if he wanted transcripts to prepare his brief and that she sent the transcripts to Adams after he filed his brief.  But Adams does not indicate when he requested thetranscripts.  Further, he cannot demonstrate prejudice from any error.  Adams’s appeal was from a probation-revocation order and the time to appeal his conviction, outside of a postconviction context, had expired in 1996.  See Minn. R. Crim. P. 28.02, subd. 4(3) (requiring appeal within 90 days of final judgment).  Moreover, this court had copies of the transcripts when it reviewed his pro se claims, and the court determined that his claim was without merit.

            Adams next argues that the state entrapped him and intentionally sought to enhance his sentence by increasing the amount of drugs its agent bought from him.  Sentencing entrapment occurs when “outrageous official conduct overcomes the will of an individual predisposed only to dealing in small quantities, for the purpose of increasing the amount of drugs and the resulting sentence of the entrapped defendant.”  State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997) (quotation omitted).  The record does not support Adams’s claim.  He presented no evidence that he regularly dealt in small quantities of drugs; he acknowledged that he freely agreed to sell the drugs involved in the present case, and the complaint indicates that the government agent took no action beyond asking Adams for increased quantities of a controlled substance.

            Adams also claims that he was never read his Miranda rights and that the prosecution engaged in misconduct because a hearing started at 11:45 a.m. when it was scheduled for 9:00 a.m.  Adams does not provide a factual basis for either argument.  Adams states only that he was not read his rights when taken into custody and does not suggest either that he was interrogated or that evidence was obtained as a result of any failure to read him his rights.  See State Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (stating that court can decline to review issue when briefing is inadequate).  Similarly, Adams argues that a hearing began late, but he neither identifies the hearing at which this occurred nor provides a factual basis for demonstrating that the prosecutor caused the delay and that the delay prejudiced him.  Id.

Finally, Adams argues on appeal that the district court improperly used prior convictions to enhance his sentence.  We decline to consider this claim because Adams raises it for the first time in this appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that appellate court will not consider matters not argued in district court).

Affirmed.