This opinion will be unpublished and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

A05-1900

 

 

Lance Phillip Wickner, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 12, 2006

Affirmed

Toussaint, Chief Judge

 

Beltrami County District Court

File No. K3-00-1998

 

 

Lance Phillip Wickner, OID #204147, 5329 Osgood Avenue North, Stillwater, MN 55082 (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 Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Lance Phillip Wickner challenges the denial of his postconviction petition, challenging a 2002 conviction of criminal vehicular homicide.  Because we see no abuse of discretion and no error of law, we affirm.

FACTS

On July 14, 2005, appellant, acting pro se, filed a petition for postconviction relief challenging his 2002 conviction, arguing ineffective assistance of appellate and trial counsel.  Specifically, appellant argued that (1) his appellate attorney on direct appeal failed to raise a claim of ineffective assistance of trial counsel and failed to advise him of the correct procedure for making such a claim in a pro se supplemental brief; and (2), even though the ineffectiveness of the assistance of trial counsel was known to appellant at the time of his direct appeal, fairness required that he be allowed to raise it in a postconviction proceeding because trial counsel failed to introduce evidence that could have materially affected the jury’s verdict.  The district court denied appellant’s petition without a hearing on the grounds that his claims were either without merit or procedurally barred.  This appeal followed.

D E C I S I O N

A postconviction court’s findings are reviewed to determine whether there is sufficient evidentiary support in the record.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  The court’s findings of fact are given great deference and will not be reversed unless they are clearly erroneous, and its decision will not be disturbed unless the court abused its discretion.  Id.

Ineffective Assistance of Appellate Counsel

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 obtain a new trial on a claim of ineffective assistance of counsel, appellant must “affirmatively prove 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.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  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)).  “The right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal that the trial record supports.”  Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986).

Here, appellate counsel raised meritorious issues on direct appeal.  See State v. Wickner, No. C8-03-363 (Minn. App. Jan. 20, 2004), review denied (Minn. Mar. 30, 2004).  Appellate counsel also advised appellant of his right to file a supplemental brief on the issue of ineffective assistance of trial counsel and provided him with guidance as to the content, format, and length of such a brief.  The district court correctly found that appellant failed to affirmatively show that his appellate counsel’s behavior fell below a standard of reasonableness.

Ineffective Assistance of Trial Counsel

“[W]here 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.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  There are two exceptions to this rule.  The first occurs when 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.”  Case, 364 N.W.2d at 800.  The second occurs “[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.”  Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995); see also Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991) (basing fairness exception on unique fact that defendant had been given powerful antipsychotic medication while awaiting trial and had been unable to participate in original defense).

Appellant is procedurally barred from raising his claims of ineffective assistance of trial counsel.  He presented no facts to support either an assertion that his claim is so novel that the legal basis was not reasonably available at the time of direct appeal or that fairness necessitates that his claim should be considered upon a petition for postconviction relief.

Appellant further argues that a claim of ineffective assistance of counsel should be heard in spite of a Knaffla limitation when there is a need for additional facts to explain the trial counsel’s decisions.  See Black v. State, 560 N.W.2d 83, 86 (Minn. 1997).  But the record shows no need for additional facts.  Appellant argues that trial counsel did not investigate the speed capability of the car he was driving and that, but for the lack of this evidence, appellant would not have been found guilty.  The postconviction court found that trial counsel did explain to appellant the impossibility of such an investigation before his trial, and the record supports this finding.

Here, the record shows that trial counsel responded to appellant’s request for an investigation into the speed capability of the car after the accident, advising appellant that such an investigation could not be made after the fact.  The record also shows that sufficient evidence, including appellant’s own admission of excessive speed and the testimony of the deputy who investigated the incident, was presented at trial so that a jury could find appellant guilty of gross negligence even if the omitted evidence could have been introduced.

Affirmed.