This opinion will be unpublished and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

C3-97-1412

Bennie E. Davis, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed February 17, 1998

Affirmed

Crippen, Judge

Hennepin County District Court

File No. 94061560

Bennie E. Davis, MCF-Stillwater, Box 55, Stillwater, MN 55082 (pro se appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

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

CRIPPEN, Judge

Appellant Bennie Davis, whose conviction was upheld in an earlier appeal, disputes the trial court's summary denial of postconviction relief. We affirm.

FACTS

In February 1995, a jury convicted appellant of first-degree and second-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(a) (1994); 609.343, subd. 1(a) (1994). On appeal, appellant claimed that the admission of videotaped statements of the child victim and another child witness denied him his right to a fair trial. State v. Davis, No. CX-95-1564 (Minn. App. May 21, 1996). This court rejected his claim and found that appellant waived his objection when his attorney waited to object until after the jury viewed the videotape. Id., unpub. op. at 6. This court also found that the statements were sufficiently reliable and any error in admitting them was harmless because of overwhelming evidence of appellant's guilt. Id., unpub. op. at 7.

Appellant subsequently filed a petition for postconviction relief, which was denied by the trial court without an evidentiary hearing.

D E C I S I O N

On appeal, this court reviews "whether the evidence is sufficient to sustain the postconviction court's findings and will not overturn the postconviction court's findings absent an abuse of discretion." King v. State, 562 N.W.2d 791, 794 (Minn. 1997).

Admission of Videotaped Statements.

Appellant contends that the admission of videotaped statements was improper and prejudicial. Because this issue was the subject of appellant's direct appeal, review is barred by Minn. Stat. § 590.04, subd. 3 (1996) (providing that the court "may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals * * * in the same case"). The postconviction court properly denied appellant's request for relief on this subject.

2. Ineffective Assistance of Trial Counsel.

In order to prove ineffective assistance of counsel, "[t]he defendant 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) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Appellant contends that his trial counsel was ineffective because he failed to object to the admissibility of the videotapes until after the jury had already viewed them. The postconviction court properly found that appellant's contentions were merely conclusory and failed to show either that the attorney's conduct was sub-standard or that the alleged error would have affected the outcome of his case; as we have previously determined, the videotapes were properly admitted as evidence.

3. Ineffective Assistance of Appellate Counsel.

Appellant contends that his appellate counsel was ineffective because he did not raise the issue of ineffective assistance of trial counsel. Appellant has failed to show that the result of the proceeding would have been different if his attorney had raised that issue. As decided on this appeal, there has been no showing of merit in appellant's challenge regarding the effectiveness of trial counsel.

Evidentiary hearing.

The postconviction court did not abuse its discretion in denying appellant's request for an evidentiary hearing because appellant failed to produce any material facts entitling him to a hearing. King, 562 N.W.2d at 794 ("A postconviction court is not required to hold an evidentiary hearing unless there are material facts in dispute which must be resolved in order to determine the postconviction claim on the merits.").

Counsel.

The trial court properly denied appellant's request for counsel because he had already received representation in his direct appeal. Minn. Stat. § 611.14, subd. 2 (1996) (stating that a person has a right to representation in a postconviction proceeding only if he "has not already had a direct appeal of the conviction").

Affirmed.