This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-238

J. C. Trine, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed August 17, 1999

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 94110028

J. C. Trine, MCF/STW ID# 181832, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.

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

KALITOWSKI, Judge

Appellant J.C. Trine, who previously filed a direct appeal, contends the district court erred by denying his petition for postconviction relief in which he claims: (1) ineffective assistance of appellate counsel; (2) prosecutorial misconduct; (3) insufficiency of the evidence; (4) a miscalculation of his criminal history score; and (5) an improper upward durational departure in his sentence. We affirm.

D E C I S I O N

In reviewing a postconviction proceeding, the appellate court is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997). A postconviction court's decision will not be disturbed absent an abuse of discretion. Id.

I.

Appellant argues first that the court erred by basing its denial of relief on appellant's delay in bringing the petition for postconviction relief. We disagree. In its order denying postconviction relief, the district court properly noted that the court could consider appellant's delay in determining whether postconviction relief should be granted. See Bailey v. State, 414 N.W.2d 503, 507 (Minn. App. 1987) (holding that delay in asserting a petition for postconviction relief is only one factor to be considered in determining whether to grant a petition), review denied (Minn. Dec. 22, 1987). Although the court found delay, the court dismissed all but the ineffective assistance claim on other grounds, finding appellant did not raise the issues in his previous direct appeal. Further, the court dismissed the ineffective assistance claim because it found that appellant's attorney acted reasonably and that appellant did not allege facts that would show that the result would have been different but for the ineffective assistance. Because the district court addressed appellant's claims and dismissed them for reasons independent of delay, we conclude the district court did not abuse its discretion.

II.

After a defendant has brought a direct appeal, the district court will not subsequently consider issues that were raised or that were known but not raised at the time of the direct appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Only where a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal will postconviction relief be allowed. Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). The state argues that under the Knaffla rule all of appellant's claims except ineffective assistance of appellate counsel were properly denied. We agree.

Only appellant's ineffective assistance of appellate counsel brings new issues to the court. All other claims were known and could have been addressed in appellant's direct appeal two years ago. Further, appellant's claims are not so novel that their legal bases were not reasonably available to counsel at the time of the direct appeal. Therefore, we conclude the district court properly dismissed the insufficient evidence, prosecutorial misconduct, and sentencing claims.

III.

To be entitled to an evidentiary hearing on a claim of ineffective assistance of appellate counsel, appellant must allege facts that, if proved, would "affirmatively show that his attorney's representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different." Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998). When reviewing such a claim, this court determines "whether the representation and the assistance were reasonable in the light of all the circumstances." Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989). A strong presumption exists that counsel's performance falls within a wide range of reasonable assistance. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).

Appellant argues that because his appellate counsel failed to present certain arguments on appeal, the attorney provided ineffective assistance of counsel. We disagree. An appellate counsel has no duty to include claims that would detract from other, more meritorious, claims. Wilson, 582 N.W.2d at 886. Similarly, to render effective assistance of counsel, an attorney should not have to advance every conceivable argument on appeal that the record supports. Tsipouras v. State, 567 N.W.2d 271, 276 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997), cert. denied, 118 S. Ct. 1049 (1998). Our review of the record indicates appellant's counsel properly chose to present only the strongest claims. Further, as the district court noted, appellant could have submitted a pro se supplemental brief to the appellate court regarding additional issues, but did not do so.

We conclude appellant did not allege facts that, if proved, would have shown that his attorney's representation fell below an objective standard of reasonableness and that, but for the errors, the result would have been different. Therefore, the district court did not abuse its discretion by dismissing the claim and denying appellant's request for an evidentiary hearing. See Robinson, 567 N.W.2d at 494 (an evidentiary hearing is not required after a postconviction petition unless facts are alleged which, if proven, would entitle a petitioner to relief).

Finally, the district court did not abuse its discretion by denying appellant's request for appointed counsel. See Minn. Stat. §§ 611.14, subd. 2 (1998); 590.05 (a person pursuing a postconviction proceeding of a felony or gross misdemeanor is entitled to be represented by a public defender only if he or she has not already directly appealed the conviction).

Affirmed.