This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-622

 

Brad R. Stevens, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed January 23, 2007

Affirmed

Wright, Judge

 

Martin County District Court

File No. K9-92-583

 

 

Brad Stevens, 121 Maple Street, Fairmont, MN  56031 (pro se appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Terry Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, Martin County Courthouse, 123 Downtown Plaza, Fairmont, MN  56031 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

            Appellant challenges the summary denial of his postconviction petition, arguing that he was denied effective assistance of counsel and that his guilty plea was invalid and involuntary.  We affirm.

FACTS

            In October 1993, appellant Brad Stevens entered an Alford[1] plea of guilty to one count of first-degree criminal sexual conduct and was subsequently sentenced to 134 months’ imprisonment.  Stevens did not appeal this conviction or sentence.  But he petitioned for postconviction relief in June 1996, arguing that the use of his inmate wages to reimburse the state for the cost of his incarceration violated the double-jeopardy clause of the United States Constitution.  Stevens v. State, No. CX-96-1803, 1997 WL 161825, at *1 (Minn. App. Apr. 8, 1997), review denied (Minn. June 11, 1997).  The district court dismissed the petition, holding that Stevens could not bring a challenge to the inmate-work statutes in a postconviction proceeding.  Id. We affirmed, and the Minnesota Supreme Court denied review.  Id.

            In November 2004, the state filed a petition to civilly commit Stevens.  After a hearing, the district court ordered an indeterminate civil commitment for Stevens based on the determination that Stevens was a sexually dangerous person as defined by Minn. Stat. § 253B.02, subd. 18c (2004).

            In July 2005, after the issuance of the interim order of commitment, but before the issuance of the final order, Stevens petitioned for postconviction relief, seeking to withdraw his guilty plea.  The district court denied the postconviction petition, and this appeal followed.

D E C I S I O N

“A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  We will not disturb the decision of a postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But we review de novo questions of law presented in a postconviction proceeding.  Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006).  A petitioner seeking postconviction relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the petition.  Minn. Stat. § 590.04, subd. 3 (2004).  To meet this burden, the postconviction petitioner’s allegations “must be supported by more than mere argumentative assertions that lack factual support.”  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

            As a threshold matter, respondent State of Minnesota argues that Stevens’s postconviction petition is untimely under Minn. Stat. § 590.01, subd. 4(a) (Supp. 2005), which provides that “[n]o petition for postconviction relief may be filed more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s direct appeal.”  But section 590.01, subdivision 4(a), did not become effective until August 1, 2005.  2005 Minn. Laws ch. 136, art. 14, § 13, at 775 (“Any person whose conviction became final before August 1, 2005, shall have two years after the effective date of this act to file a petition for postconviction relief.”).  Accordingly, this statutory provision does not bar Stevens’s postconviction petition, which was filed in July 2005.

I.

            Stevens contends that the district court abused its discretion when it declined to hold an evidentiary hearing on his postconviction petition.  An evidentiary hearing is required unless the postconviction petition and the files and records of the postconviction proceeding conclusively show that the postconviction petitioner is not entitled to the relief requested.  Minn. Stat. § 590.04, subd. 1 (2004).  The supreme court has consistently interpreted this section to require a postconviction petitioner to allege facts that, if proved by a fair preponderance of the evidence, would entitle the petitioner to the relief requested.  See, e.g., Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002) (holding that to prevail on request for evidentiary hearing, petitioner “must allege facts that would, if proved by a fair preponderance of the evidence, entitle him to relief”); State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001) (same). 

In his postconviction petition, Stevens alleges that newly discovered evidence contradicts the evidence and testimony supporting his Alford plea.  Specifically, Stevens alleges that Todd Sandersfeld’s testimony during Stevens’s civil-commitment hearing contradicts Sandersfeld’s potential trial testimony, as summarized during the Alford plea proceeding.  Stevens admitted during the proceeding that he understood that the victim would testify that she wrote a letter to Sandersfeld shortly after the sexual assault for which Stevens was convicted in which she described the sexual assault and that Sandersfeld would testify regarding the contents of the letter.  According to Stevens, Sandersfeld testified during the civil-commitment hearing that the victim’s letter did not say anything about “forced sex.” 

            Postconviction relief on the grounds of newly discovered evidence is warranted only when the petitioner establishes

(1) that the evidence was not known to him or his counsel at the time of [the plea], (2) that his failure to learn of it before [entering the plea] was not due to lack of diligence, (3) that the evidence is material (or, as we have sometimes said, is not impeaching, cumulative or doubtful), and (4) that the evidence will probably produce either an acquittal . . . or a result more favorable to the petitioner. 

 

State v. Rhodes, 657 N.W.2d 823, 845 (Minn. 2003) (quotation omitted) (addressing petitioner’s request for new trial based on newly discovered evidence).  The postconviction record does not include a transcript of the testimony offered during the civil-commitment hearing.  Even if Stevens could prove by a fair preponderance of the evidence that the letter did not say anything about “forced sex,” this fact would not entitle Stevens to withdraw his guilty plea because this evidence is not material.  See id. (requiring newly discovered evidence to be material to warrant granting postconviction relief).  Material evidence “is not impeaching, cumulative or doubtful.”  Id.  Sandersfeld’s proffered testimony that the victim’s letter did not say anything about “forced sex” represents a prior inconsistent statement by the victim that is intended to impeach the victim’s testimony.  Because it does not satisfy the materiality requirement, even if proved by a preponderance of the evidence, the proffered testimony does not warrant postconviction relief.  Therefore, the district court did not abuse its discretion when it denied postconviction relief on this ground without an evidentiary hearing.

II.

Stevens also argues that the district court erred when it denied Stevens’s postconviction petition because his trial counsel’s representation was ineffective and his guilty plea was invalid and involuntary.

A.

To prevail on an ineffective-assistance-of-counsel claim, the claimant “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.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted.)  There is a strong presumption that counsel’s performance fell within a broad range of reasonable assistance.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  We give particular deference to counsel’s decisions regarding trial strategy.  Id.

In support of his claim, Stevens argues that his trial counsel failed to adequately investigate the case against Stevens.  But even if Stevens can show that his counsel’s investigation was wanting, Stevens cannot prevail on his ineffective-assistance-of-counsel claim unless he can prove that he was prejudiced as a result of the inadequate investigation.  See State v. Fedor, 628 N.W.2d 164, 170 (Minn. App. 2001) (holding that postconviction petitioner who proved counsel failed to properly investigate cannot prevail on ineffective-assistance-of-counsel claim unless petitioner shows he was prejudiced by this failure).  We determine prejudice “by examining whether under the totality of the circumstances, the result would have been different if counsel had not erred.”  Id. (quotation omitted).  Thus, a postconviction petitioner who pleaded guilty must demonstrate with reasonable probability that, but for counsel’s alleged errors, the postconviction petitioner would not have pleaded guilty.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994). 

In Ecker, the postconviction petitioner alleged that his counsel failed to contact witnesses that could testify in the petitioner’s favor and that this failure affected petitioner’s decision to plead guilty.  Id.  The Minnesota Supreme Court disagreed, holding that, because petitioner had failed to address in his petition how these alleged witnesses would have affected his decision to plead guilty, and because the case against petitioner was strong, petitioner had not shown that, but for counsel’s failure to investigate, petitioner would not have pleaded guilty.  Id.; see also Fedor, 628 N.W.2d at 170 (holding that petitioner alleging that counsel was ineffective for failing to investigate impeaching evidence was not entitled to relief because, even if counsel failed to investigate, evidence against petitioner was so strong that this failure did not prejudice petitioner).

Here, Stevens has not identified any facts or evidence supporting his claim that his trial counsel failed to investigate or discover evidence presented later during Stevens’s civil-commitment hearing, namely, the evidence that the letter to Sandersfeld did not say anything about “forced sex.”  Stevens, therefore, waived this argument.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that appellant that fails to support its assertions with authority or argument waives the issue).  Had Stevens identified such evidence, he nevertheless cannot show with reasonable probability that he would not have pleaded guilty if his trial counsel had discovered this evidence, particularly in light of Stevens’s favorable plea agreement with the state. 

Because Stevens did not establish that his trial counsel’s representation was ineffective for failing to properly investigate the case and that this alleged ineffectiveness was prejudicial, the district court did not err when it summarily denied the postconviction petition on this basis.

B.

            Stevens raises several arguments in support of his contention that postconviction relief is warranted because his guilty plea was invalid and involuntary.  First, Stevens argues that his Alford plea was invalid because the complaint was not supported by probable cause.  But Stevens did not raise this argument in his postconviction petition.  Consequently, we need not consider it.  See Ferguson, 645 N.W.2d at 448-49 (refusing to review claim of ineffective assistance of counsel when issue was not raised in postconviction petition and postconviction court did not make findings on issue).  Moreover, this claim is barred because Stevens failed to raise it in his earlier postconviction petition.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (applying rule in State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that postconviction petitioner’s claims are barred if they were or could have been brought in direct appeal), to situations in which petitioner did not raise claim in previous postconviction petition).

            Second, Stevens argues that his guilty plea was not accurate, voluntary, and intelligent, as required by State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983), because counsel used leading questions to establish the factual basis for the guilty plea.  We decline to consider this claim because it was not raised in either the instant postconviction petition, Ferguson, 645 N.W.2d at 448-49, or in the prior postconviction petition, Wayne, 601 N.W.2d at 441.

Third, Stevens contends that his Alford plea was involuntary because the state misled Stevens about the evidence it possessed against him.  But Stevens has not presented any factual support for this conclusory assertion.  See Powers v. State, 695 N.W.2d 371, 374-75 (Minn. 2005) (requiring petitioner to support his or her allegations with more than mere argumentative assertions that lack factual support).   Therefore, this argument fails.

Finally, Stevens argues for the first time on appeal that his Alford guilty plea was involuntary because it required him to give up his right to appeal his conviction after a jury trial in another matter.  This claim is barred by Stevens’s failure to raise it in this postconviction petition, Ferguson, 645 N.W.2d at 448-49, and in his prior postconviction petition, Wayne, 601 N.W.2d at 441.  Moreover, Stevens misstates the facts.  Stevens’s guilty plea in this matter did not require him to forego his right to appeal his conviction in another matter.  Rather, during the guilty-plea proceeding, Stevens’s counsel advised Stevens that, although Stevens may appeal his conviction in the other matter, “it would be basically a waste of time” because, even if that appeal were successful, Stevens would be required to serve his sentence in this matter, which he was ordered to serve concurrently with the sentence of 134 months’ imprisonment for the other conviction.

In sum, the district court did not abuse its discretion when it denied Stevens’s petition for postconviction relief.

            Affirmed.