Anthony Allen Cress, 1101 Linden Lane, Faribault, MN 55021-6400 (Pro Se)

John K. Carlson, Pine County Attorney, Brent Schafer, Assistant County Attorney, Courthouse, 315 - 6th Street, Pine City, MN 55063 (for Respondent)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

Appellant challenges the district court's summary denial of his petition for postconviction relief. Summary denial by the district court was not an abuse of discretion, because appellant failed to show that he could not have raised the issue in his direct appeal. We affirm.

In this petition for postconviction relief, Cress argues that the restitution order was improper, because Minn. Stat. § 611A.04, subd. 1 (1990) requires that the appellant or appellant's attorney be served with requests for, or affidavits of, restitution at least 24 hours prior to sentencing or disposition. Cress claims that neither he nor his attorney received such a request. Therefore, he asks that the restitution order be vacated and that the court administrator be ordered to return petitioner the $2,000 he has already paid, including interest at the rate of 8 percent. The district court found that the restitution issue had been previously raised in Cress's direct appeal and summarily denied Cress's petition for postconviction relief.

On appeal, Cress asserts that the district court abused its discretion by concluding that the restitution issue was previously raised in his direct appeal. Cress reasons that although we addressed the issue of restitution during the direct appeal, we did not address the particular argument regarding restitution that he now propounds.

Cress contends that the district court's restitution order was improper because neither he nor his attorney was served with an affidavit of restitution at least 24 hours before his sentencing. See Minn. Stat. § 611A.04, subd. 1 (1990) ("The court administrator shall provide copies of [the restitution] request to the prosecutor and the offender or the offender's attorney at least 24 hours before the sentencing or dispositional hearing."); see also State v. Grayson, 546 N.W.2d 731, 739 (Minn. 1996) (vacating trial court's order for restitution because section 611A.04 procedures were not followed).

Cress contends that this restitution argument is not the same argument he raised on direct appeal. On direct appeal, Cress argued that restitution was improper because the district court failed to consider his ability to pay it; in this postconviction petition, he argues that restitution is improper because the statutory procedures in section 611A.04 were not followed.

Without deciding whether Cress previously raised this precise issue in the direct appeal, this case can be resolved. This is because not only is summary denial appropriate for issues that were raised and decided on direct appeal, but summary denial is also appropriate for issues that were known, or should have been known, at the time and could have been, but were not, asserted in the direct appeal. Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995); Roby, 531 N.W.2d at 484; Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986); see also Minn. Stat. § 590.04, subd. 3 (1990) ("the court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case."). Therefore, summary denial was appropriate if Cress knew, or could have known, about the lack of affidavits at the time of the direct appeal and failed to raise the argument.

Cress bears the burden of establishing, by a fair preponderance of the evidence, facts which indicate that he did not know of the restitution affidavit issue at the time of his direct appeal. See, e.g., Minn. Stat. § 590.04, subd. 3 (petitioner seeking postconviction relief has burden of establishing "by a fair preponderance of the evidence" facts which warrant reopening of case); Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (stating that this burden is not met by unsupported assertions), review denied (Minn. May 18, 1987). Cress did not meet this burden, because he failed to show that he did not know of the court administrator's failure to serve a restitution affidavit at the time of his direct appeal. Moreover, Cress's argument regarding restitution affidavits is not "so novel that it can be said that its legal basis was not reasonably available at the time direct appeal was taken and decided." Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991) (citing Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)). To vacate the restitution order in this case would be an abuse of the postconviction remedy procedure. Bangert v. State, 282 N.W.2d 540, 545 (Minn. 1979). The district court properly summarily denied Cress's petition for postconviction relief.

Affirmed.