This opinion will be unpublished and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
C2-99-398

State of Minnesota,
Respondent,

vs.

James H. Haislip,
Appellant.

Filed September 21, 1999
Affirmed
Davies, Judge

Ramsey County District Court
File No. K4963154

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Blvd. W., Suite 315, St. Paul, MN 55102 (for respondent)

James H. Haislip, MCF-Faribault, #148663, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se appellant)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

Appellant, in this pro se appeal, challenges the district court's summary denial of his postconviction petition, arguing that (1) he was denied a fair trial, (2) he was denied effective assistance of appellate counsel, and (3) the postconviction court erred by not vacating or deferring the imposed fine. We affirm.

FACTS

On March 4, 1997, a jury found appellant James Henderson Haislip guilty of assaulting his girlfriend. He was sentenced to 15 years in prison, fined $9,000, and ordered to pay restitution. With assistance of counsel, appellant challenged the conviction on the ground that he had presented sufficient evidence to establish that he acted in self-defense. This court affirmed the conviction. State v. Haislip, No. C9-97-1270 (Minn. App. June 2, 1998), review denied (Minn. July 30, 1998).

In December 1998, appellant, now pro se, petitioned for postconviction relief, alleging that he was denied a fair trial, he was denied effective assistance of appellate counsel, and the $9,000 fine should be vacated or deferred. The postconviction court summarily denied the petition, finding the petition contained only argumentative assertions without factual support and the issues should have been raised in the direct appeal. Appellant raises the same issues in this appeal of the postconviction order.

D E C I S I O N

This court's review of a postconviction proceeding is limited to determining whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a postconviction court's decision will not be disturbed on appeal. McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).

A postconviction court is not required to hold an evidentiary hearing on a petition for postconviction relief unless the petitioner alleges facts that, "if proved by a fair preponderance of the evidence, would entitle [the petitioner] to the requested relief." Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) (citations omitted).

I. Denial of Fair Trial

In his pro se statement of the case, appellant alleges that, taken together, the trial judge's bias against defense counsel, the judge's refusal to recuse herself, and the judge's rejection of a plea agreement prevented appellant from receiving a fair trial.

As to bias, appellant complains of incidents occurring during the pretrial hearings. Appellant makes no mention of any biased judicial conduct during trial or at sentencing, although the same judge presided at both pretrial and trial. Our review of the record reveals that, during pretrial, defense counsel twice moved to remove the judge. Counsel alleged in the first motion that the judge had acted as a lawyer in this case and in the second motion that the judge had "displayed such bias against counsel" that her impartiality was questionable. The chief judge denied both motions, finding "no impropriety" in the judge's conduct and "no reasonable basis for questioning the judge's impartiality."

Defense counsel then petitioned this court for a writ of prohibition to remove the judge, alleging judicial bias and improper rejection of a plea agreement. By order, this court concluded that on the merits the judge's "impartiality and her ability to put aside past conflicts with petitioner's counsel cannot reasonably be questioned" and denied the petition. State v. Haislip, No. C1-97-81 (Minn. App. Jan. 28, 1997).

When an appellate court has determined a legal issue on the merits, that ruling becomes the law of the case and will not be reexamined in a later appeal. Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994); see also State v. Schabert, 222 Minn. 261, 262-63, 24 N.W.2d 846, 848 (1946) (applying law of the case in criminal matter). An issue raised in a petition for an extraordinary writ, such as mandamus or prohibition, is subject to the law of the case doctrine and may not be raised in a subsequent appeal. Liedtke v. Ferguson, 370 N.W.2d 477, 478 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985). The issue of judicial bias was resolved by this court when it denied appellant's writ of prohibition. In this appeal, appellant may not again raise that issue for review.

II. Ineffective Assistance of Appellate Counsel

When a postconviction petitioner claims ineffective assistance of counsel, the petitioner must allege facts affirmatively showing that

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, 2068 (1984)).

Appellant alleges he had ineffective appellate counsel because counsel did not raise the issue of the trial judge's alleged lack of impartiality. But the impartiality issue had been previously resolved by this court in the prohibition proceeding. Appellate counsel thus did not act unreasonably or unprofessionally by not arguing it in the direct appeal.

III. Fine/Restitution

Upon a defendant's conviction of a felony, the sentencing court may sentence the defendant to imprisonment, payment of a fine, and payment of restitution. Minn. Stat. § 609.10, subd. 1(5) (1996). In this case, the trial court sentenced appellant to pay a mandatory $9,000 fine, in addition to imprisonment. It also ordered appellant to pay restitution to the victim or to the Crime Victims Reparations Board for the full cost of the victim's dental care.

On August 30, 1998, appellant moved the trial court for a hearing "to remedy the inappropriate fine or in the alternative to have the payments deferred until the petitioner is released and gainfully employed." Appellant based his motion on Minn. R. Crim. P. 27.03, subd. 9, which authorizes a court to "correct a sentence not authorized by law." Appellant argued that the trial court failed to determine whether he had the ability to pay the fine. The trial court denied his motion.

The sentencing court "need not specifically find that a defendant has the ability to pay a fine before imposing the fine as part of the defendant's sentence." Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997). Under Minnesota law, moreover, the court must impose a fine of not less than 30% of the maximum fine when sentencing a person convicted of first-degree assault. Minn. Stat. § 609.101, subd. 2 (1996). For first-degree assault, the maximum fine is $30,000. Minn. Stat. § 609.221 (1996). Under Minn. Stat. § 609.101, subd. 2 (1996), the sentencing court had to fine appellant at least $9,000.

In his petition for postconviction relief, appellant further stated that "the victim has gone on the record saying she does not want the restitution." He also stated that the money was not going to the victim but was "diverted to another agency" and, therefore, it should be returned to him. The postconviction court ruled that appellant should have raised this issue on direct appeal.

Under Minn. Stat. § 243.23, subd. 3 (1996), the commissioner of corrections must deduct from an inmate's compensation any court-ordered restitution, payment of fines, and contribution to the Crime Victims Reparations Board, provided that the contribution shall not be more than 20% of an inmate's gross wages. Even if the victim did not request the restitution, the trial court clearly ordered restitution to be paid to the Crime Victims Reparations Board. Appellant is not entitled to the return of any wages deducted for restitution payments.

The postconviction court did not abuse its discretion in denying appellant's petition for postconviction relief.

Affirmed.