This opinion will be unpublished and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

A06-209

 

 

Erik Henry Tweeton, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 12, 2007

Affirmed

Toussaint, Chief Judge

 

Dakota County District Court

File No. T3-04-64720

 

 

Erik H. Tweeton, Post Office Box 1663, Granby, CO 80446-1663 (pro se appellant)

 

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

 

James C. Backstrom, Dakota County Attorney, Judicial Center, 1560 Highway 55, Hastings, MN 55033; and

 

Christine J. Cassellius, Michael E. Molenda, Severson, Sheldon, Dougherty & Molenda, P.A., Apple Valley City Attorneys, 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            After a jury found appellant Erik Henry Tweeton guilty of reckless driving, he filed a petition for postconviction relief.  Following a hearing, relief was denied, and he challenges that denial. Because we see no abuse of discretion in the denial, we affirm.

D E C I S I O N

            “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellant’s failure to provide a trial transcript left the postconviction court with no way to assess the merits of his four arguments, and his failure to provide this court with either a trial transcript or a postconviction hearing transcript leaves us with little capacity to review.

1.         Right to Counsel

Appellant claims that the district court failed to advise him that he was entitled to counsel or ask about his financial situation to see if he was eligible for appointed counsel.  But he offers no evidence to support this claim, and he offered none to the postconviction court.  Absent a transcript or any evidence to show what happened at trial, the postconviction court had no basis for accepting appellant’s position, and this court has none for overturning the postconviction court’s decision. 

2.         Direct Appeal

            Appellant claims he is entitled to a new trial because the district court denied him a direct appeal by not telling him about the right to appeal within ten days.  Again, he provides no evidence to support this claim.  Moreover, even if the district court did err by not telling appellant of his right to appeal, the error was harmless: he was able to petition for postconviction relief and appeal from the denial of that petition. 

3.         False Testimony

            Appellant claims he is entitled to a new trial because false testimony was admitted at his trial.  To grant a new trial on the basis of false testimony, the postconviction court must be reasonably sure that: (1) the testimony was in fact false; (2) the jury might have reached a different conclusion without that testimony, and (3) the petitioner either did not know the testimony was false until after the trial or was surprised by the false testimony at trial.  State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn. 1982). 

            Appellant claims that a witness told 28 lies and that the prosecutor told about 20, but he does not specify what these lies were.  Without a transcript, the postconviction court could not determine whether testimony was false or whether the jury’s conclusion might have been different without it.  Thus, the first and second criteria of Caldwell are not met.  Even if appellant met the third criterion, the postconviction court could not have granted a new trial on the basis of false testimony.

4.         Newly Discovered Evidence

            After trial, appellant contacted an accident reconstruction expert.  Appellant argues that the expert’s evidence was newly discovered, so he is entitled to a new trial on the basis of newly discovered evidence.  But it is not sufficient for appellant to show that evidence was not available at trial: he must also show that it could not have been discovered, that it is not cumulative, impeaching, or doubtful, and that it likely would have changed the result of the trial in his favor.  See Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990) (providing four-prong test for granting new trial on basis of newly discovered evidence). Appellant does not satisfy the last two prongs: he does not show that the reconstruction expert’s evidence would not have been cumulative, impeaching, or doubtful, or that it would have changed the result of the trial in appellant’s favor.   He argues that the evidence could not have been available earlier “because the state did not provide free attorneys and experts.”  But appellant fired his attorney shortly before trial and chose to proceed pro se.  That choice did not entitle him to a new trial on the ground that he had no attorney to see to the production of evidence.  By failing to meet three of the four Wieland prongs, appellant fails to show that he is entitled to a new trial on the basis of newly discovered evidence.

            The postconviction court did not abuse its discretion in denying appellant’s postconviction petition.

Affirmed.