This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-97-317

Benjamin (NMN) Braylock, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed September 9, 1997

Affirmed

Amundson, Judge

Hennepin County District Court

File No. 90067622

J. Anthony Torres, Margaret A. Skelton, Torres Law Offices, 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for appellant)

Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155, Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant challenges the postconviction court's denial of his petition for postconviction relief based on ineffective assistance of counsel. We affirm.

FACTS

On August 7, 1991, appellant Benjamin Braylock was convicted of first-degree criminal sexual conduct, for the forced penetration of his 14-year-old granddaughter. See Minn. Stat. § 609.342, subd. 1 (g) (1990). At sentencing, defense counsel moved to continue the sentencing for an evidentiary hearing. Counsel explained that he needed more time to review the presentence investigation and the psychological services report of state's psychologist, Dr. Paul Boerger, as well as time to consider a cross-examination of Dr. Boerger and the possibility of calling an independent expert witness in rebuttal. The district court denied the motion and sentenced Braylock to 268 months in prison (twice the presumptive sentence) as a patterned sex offender. See Minn. Stat. § 609.1352 (1990).

Braylock appealed the court's denial of his motion for a continuance.[1] In an unpublished opinion, this court remanded for a contested sentencing hearing. See State v. Braylock, No. C7-91-2386 (Minn. App. Oct. 13, 1992). At the second sentencing hearing, defense counsel again did not call Dr. Boerger or an independent expert to testify. Braylock was again sentenced to 268 months as a patterned sex offender.

Braylock appealed, arguing that the district court abused its discretion in sentencing by ignoring his age (56 years at the time of the offense) as a mitigating factor. This court rejected that argument, affirming the district court in an unpublished opinion. See State v. Braylock, No. C8-94-1181 (Minn. App. Aug. 23, 1994), review denied (Minn. Dec. 12, 1994). Braylock then filed a petition for postconviction relief alleging ineffective assistance of counsel at his second sentencing hearing. The postconviction court denied the petition. This appeal followed.

D E C I S I O N

Braylock argues that the postconviction proceedings erred in denying his petition for postconviction relief and that he is entitled to a new trial, or alternatively a new sentencing hearing, because of ineffective assistance of counsel at sentencing. This court's review of a postconviction proceeding is limited to the question of "whether there is sufficient evidence to sustain the postconviction court's findings." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, the decision of the postconviction court will not be disturbed. See id.

I. Procedural Bar

The state asserts that Braylock is barred from seeking postconviction relief because of his earlier direct appeal of his resentencing. See State v. Braylock, No. C8-94-1181 (Minn. App. Aug. 23, 1994), review denied (Minn. Dec. 12, 1994). The state cites the rule in Minnesota:

where 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). However, the state fails to acknowledge later case law that clarifies Knaffla. The supreme court has held:

In limited situations, if fairness so requires and if the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal, we will allow substantive review of a claim contained in a petition for postconviction relief, either when the claim was known at the time of direct appeal or when its legal basis may have been reasonably available.

Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Further, the supreme court has specifically held that a claim of ineffective assistance of counsel is more appropriately raised in postconviction proceedings than on direct appeal. See Scruggs at 25. We therefore conclude that Braylock's direct appeal does not bar his petition for postconviction relief based on ineffective assistance of counsel.

II. Ineffective Assistance of Counsel

In order to prevail on an ineffective assistance of counsel claim, an appellant must affirmatively prove that (1) counsel's representation "fell below an objective standard of reasonableness"; and (2) there is a "reasonable probability" that but for counsel's unprofessional performance, the proceeding's result would have been different. 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)). There is a strong presumption that an attorney's performance falls within the wide range of "reasonable professional assistance." State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Braylock asserts that his counsel's representation fell below an objective standard of reasonableness when, at his sentencing, counsel failed to call the state's expert, Dr. Boerger, to testify in order to cross-examine him, and by failing to call an additional expert to testify. This is particularly startling given the fact that Braylock's first appeal revolved around counsel's lack of opportunity to do either of those things at the first sentencing hearing. See State v. Braylock, No. C7-91-2386 (Minn. App. Oct. 13, 1992). This court's analysis in remanding the sentencing hearing was that counsel was not afforded enough time to respond to the district court's proposed upward sentencing departure. See id. at 3. Braylock's counsel's failure to cross-examine Dr. Boerger or to present testimony of an independent psychologist, especially given the long period before the hearing in which to prepare, may raise concerns about counsel's representation. Braylock has failed, however, to prove the second prong of the test of ineffective assistance of counsel, namely, that the outcome of his sentencing hearing would have been different but for his counsel's presumed errors. We have no evidence before us that cross-examining Dr. Boerger would have reduced Braylock's sentence; there is also no evidence to indicate that an independent psychologist would have presented testimony different from Dr. Boerger, or that such testimony would have resulted in a lower sentence. Further, as the postconviction court wrote:

In the absence of evidence to the contrary, the court will presume that a decision by counsel not to call a particular witness is a tactical decision.

We agree. "Which witnesses to call and what evidence to present to the jury are matters of trial strategy, which are within the discretion of trial counsel." State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990). Braylock fails to demonstrate that the result of his sentencing would have been different but for his attorney's performance.

Affirmed.

[ ]1 Braylock also raised a claim regarding the admission of Spreigl evidence. This court affirmed on that issue. See State v. Braylock, No. C7-91-2386 (Minn. App. Oct. 13, 1992).