This opinion will be unpublished and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

A05-1890

 

Jerome L. Jefferson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed August 22, 2006

Affirmed

Shumaker, Judge

 

Sherburne County District Court

File No. K5-98-775

 

 

 

Jerome L. Jefferson, No. 164853, Minnesota Correctional Facility, 7600 – 525th Street, Rush City, MN 55069 (pro se appellant)

 

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

 

Arden J. Fritz, Assistant Sherburne County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

 

 

            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant contends that his sentence was improperly determined and that his appellate counsel was ineffective in his failure to challenge the improper sentence.  We affirm.

FACTS

A jury found appellant Jerome L. Jefferson guilty of felon in possession of a firearm, attempted second-degree murder, attempted first-degree assault, and two counts of second-degree assault.  The district court imposed concurrent sentences of 213 months for attempted second-degree murder and 27 months for the firearm violation.  In computing Jefferson’s criminal-history score under the sentencing guidelines, the court considered a prior Wisconsin felony conviction and followed the computational procedure approved in State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981).

Jefferson appealed, challenging the sufficiency of the evidence to support the convictions and the propriety of his sentences, and he raised due-process issues relating to the jury instructions and alleged juror misconduct.  This court vacated the attempted assault conviction because it was a lesser-included offense of attempted murder, remanded the sentencing computational issue because the record was inadequate for review, and affirmed in all other respects.  State v. Jefferson, No. C5-99-41, 1999 WL 732437, at *4 (Minn. App. Sept. 21, 1999), review denied (Minn. Nov. 23, 1999).

After unsuccessfully petitioning for a writ of habeas corpus and moving to reopen his appeal, Jefferson filed an amended petition for postconviction relief, raising claims of insufficiency of the evidence, sentencing errors, and Apprendi violations. The district court denied the petition without an evidentiary hearing but made a thorough analysis of each of Jefferson’s contentions.

Jefferson now appeals from the denial of postconviction relief.  He argues that the sentencing court abused its discretion in using the Hernandez method to determine his criminal-history score and that his appellate counsel was ineffective because he failed to petition for certiorari and instead sought habeas corpus relief.

D E C I S I O N

Because Jefferson filed only a statement of the case in lieu of a brief, it is not clear whether he is limiting his challenges to the sentencing and assistance of counsel issues.  But, as the district court correctly held, the claim of insufficient evidence is barred because it has been decided on direct appeal and cannot be raised again.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

The sentencing issue is also barred by Knaffla.  The district court applied Hernandez to the two offenses for which Jefferson was sentenced separately.  Counsel for the state and the defense presented arguments at sentencing regarding the use of Hernandez.  “[W]here a direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  Jefferson knew of this matter at the time of his direct appeal but did not specifically raise it.  He cannot do so now.

Jefferson’s claim of ineffective assistance of appellate counsel appears to relate to counsel’s alleged failure to challenge the district court’s use of the Hernandez method, which, if we follow Jefferson’s argument, resulted in a sentence imposed as an aggravated departure in violation of Apprendi.

A claim of ineffective assistance of counsel is properly raised through postconviction proceedings.  See Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (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”).  To establish a claim of ineffective assistance of counsel, the challenger must affirmatively show that counsel’s representation fell below an objective standard of reasonableness and that, but for counsel’s inadequate performance, the outcome of the proceedings would have been different.  Sullivan v. State, 585 N.W.2d 782, 784 (Minn. 1998).  There is a strong presumption that counsel’s performance was reasonable.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  An objective standard of reasonableness is based on “representation by an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.”  State v. Glasser, 505 N.W.2d 62, 70 (Minn. 1993) (quoting White v. State, 309 Minn. 476, 481, 248 N.W.2d 281, 285 (1976)).

Under Hernandez, when separate offenses that are not part of the same behavioral incident and that do not involve the same victims are sentenced on the same day, the sentencing court may count the offenses separately to determine the defendant’s criminal-history score.  State v. Hernandez, 311 N.W.2d 478, 481.  The court did so here.

In determining whether criminal conduct was part of the same behavioral incident, the court must consider factors of time and place and must determine whether the offenses were motivated by a desire to obtain a single criminal objective.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  The facts show that Jefferson, a felon, had a firearm when he and others visited a St. Cloud residence.  During the visit, some people argued, and Jefferson attempted to shoot one or more of those people.  The sentencing court found, and we agree, that Jefferson’s possession of the firearm was separate and distinct from his use of the firearm to commit the other crimes.  There was no evidence to indicate that Jefferson possessed the firearm for the purpose of using it to assault or to attempt to kill anyone at the St. Cloud residence.  His possession was fortuitous with respect to the crimes that followed.  Thus, the district court properly used the Hernandez method in counting both the firearm possession and the attempted murder as part of Jefferson’s criminal-history score.

Because appellate counsel could not have successfully challenged the court’s use of the Hernandez method, counsel’s failure to raise the issue on appeal or in subsequent proceedings was not unreasonable and did not render counsel’s assistance ineffective.  Furthermore, because Hernandez was properly applied and resulted in a term that did not exceed the statutory maximum sentence, no Apprendi issue arose, and it was not unreasonable for counsel to fail to seek an Apprendi review.  See Apprendi v. New Jersey, 530 U.S. 466 (2000) (accused is entitled to jury trial on factor used as basis for sentence that exceeds the statutory maximum).

Finally, Jefferson argues that the sentencing court improperly included a prior Wisconsin conviction as a felony when computing his criminal-history score.  Jefferson raised this issue in his direct appeal, but neither the guidelines sentencing worksheet nor the presentence investigation report had been sent to this court at the time of the appeal.  Because the record was inadequate to address the issue, we remanded the issue to the district court “if determination [was] required.” State v. Jefferson, No. C5-99-41, 1999 WL 732437, at *4 (Minn. App. Sept. 21, 1999), review denied (Minn. Nov. 23, 1999).  The postconviction court found, “after diligent efforts at communication with the Columbia County Clerks of Court and the Minnesota Department of Corrections” that a felony sentence had been imposed in Wisconsin.  The court determined that Jefferson was adjudged guilty of a Class-D felony, which is punishable by imprisonment not to exceed five years.  Wis. Stat. § 939.50(3)(d) (1996).  Minnesota recognizes that “convictions from other jurisdiction must, in fairness, be considered in the computation of an offender’s criminal history index score.”  Minn. Sent. Guidelines cmt. II.B.502.  Because in Minnesota “a crime for which a sentence of imprisonment for more than one year may be imposed” is a felony, the Class-D-Wisconsin crime of which Jefferson was convicted falls within Minnesota’s definition of a felony.  Minn. Stat. § 609.02, subd. 2 (1996).  Thus, it was proper for the court to assign a criminal-history point for Jefferson’s Wisconsin conviction.

Because a careful review of the record reveals that the postconviction court did not abuse its discretion with regard to any of the claims raised by Jefferson in this appeal, we affirm.

            Affirmed.