Opinion
No. CX-96-697.
Filed October 8, 1996.
Appeal from the District Court, Hennepin County, File No. 92-012271.
Larry Eugene Burrell, (Pro Se Appellant)
Hubert H. Humphrey, III, Attorney General, (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, Kathleen Ghreichi, Special Assistant County Attorney, (for Respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. §. 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
In 1992, appellant Larry Burrell was convicted of simple and aggravated robbery, sentenced to the presumptive term for aggravated robbery, and ordered to pay restitution. On direct appeal, this court affirmed. State v. Burrell , 506 N.W.2d 34 (Minn.App. 1993), review denied (Minn. Oct. 19, 1993). In 1995, appellant filed a petition for postconviction relief alleging unconstitutionally vague criminal statutes, erroneous sentencing and restitution, false testimony by state's witness, and an improper restitution order. His petition was denied. Because we find that appellant raised or could have raised all issues on direct appeal, we affirm.
FACTS
On February 13, 1992, appellant attempted to steal seven cartons of cigarettes from a small convenience store. As he was leaving the store, Corrine Abusbeih, the store owner, pursued him out onto the street, demanding that he return the stolen cigarettes and calling for help.
Appellant testified at trial that as he approached the getaway vehicle, someone jumped on his back and placed a hand over his mouth. He testified that he bit the person by mere reflex without thinking. He said he did not know it was Abusbeih until after he bit her and pushed her to the ground.
Abusbeih, on the other hand, testified that she did not jump on his back or place her hand over his mouth. She said that appellant grabbed her while she was screaming at him, threw her against the getaway car, bit her hand, punched her in the face, and knocked her to the ground. She testified that appellant then got into the car and threw one carton of cigarettes at her as the car sped away. The police, having heard Abusbeih calling for help, immediately stopped the vehicle and took appellant into custody.
On September 29, 1992, a jury found appellant guilty of simple and aggravated robbery in violation of Minn. Stat. §§ 609.24 and 609.245 (1990). The trial court sentenced him to 108 months, the presumptive sentence for aggravated robbery, and ordered restitution.
On direct appeal, appellant argued that the evidence was insufficient to support the verdict, the simple and aggravated robbery statutes impermissibly overlapped, and there should have been a downward departure in his sentence. This court affirmed the trial court. Burrell , 506 N.W.2d at 37.
On April 27, 1995, appellant filed a petition for postconviction relief, asserting that: (1) the simple and aggravated robbery statutes are unconstitutionally vague because they impermissibly overlap; (2) justice required that he be sentenced for the simple robbery conviction instead of the aggravated robbery conviction; (3) he was entitled to a new trial because Abusbeih committed perjury; and (4) the court erred by ordering him to pay restitution to the Victim Reparations Board because it is not a victim under Minn. Stat. § 611A.04. The postconviction court denied his petition.
DECISION
When reviewing a postconviction proceeding, this court must determine "whether there is sufficient evidence to sustain the findings of the post-conviction court." Marhoun v. State , 451 N.W.2d 323, 327 (Minn. 1990). If a direct appeal has already been taken, the postconviction court may not consider any claim raised therein or any claim then known but not raised. Fratzke v. State , 450 N.W.2d 101, 102 (Minn. 1990). Relief is allowed where "a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal." Id. (citing Case v. State , 364 N.W.2d 797, 800 (Minn. 1985)).
I.
Appellant argues that the simple and aggravated robbery statutes are unconstitutionally vague because they overlap. This claim, however, was raised on direct appeal. This court concluded that
[s]ince the statutes for simple robbery and aggravated robbery are clear and describe different behavior, they do not impermissibly overlap.
Burrell , 506 N.W.2d at 37. Because this issue was raised on direct appeal, it may not be considered by a postconviction court.
II.
Appellant also argues that, "in the interests of justice," he is entitled to be sentenced on the simple robbery conviction instead of the aggravated robbery conviction. This claim was also raised on direct appeal and will not be considered here.
III.
Appellant next claims that he is entitled to a new trial because Abusbeih perjured herself during trial. Appellant asserts that during a television interview Abusbeih admitted jumping on appellant's back and choking him. Appellant does not indicate when the interview aired or on what station, but merely asserts that such an interview exists.
Although appellant did not raise this issue on direct appeal, it is barred because it could have been raised at that time. See Hanley v. State , 534 N.W.2d 277, 279 (Minn. 1995) (perjury claim waived because not raised on direct appeal). Moreover, "[t]he facts alleged must be more than bald assertions or conclusory allegations without factual support." Berg v. State , 403 N.W.2d 316, 318 (Minn.App. 1987), review denied (Minn. May 18, 1987). Appellant's allegation of perjury lacks sufficient factual support to warrant postconviction relief.
IV.
Finally, appellant claims that the trial court erred by ordering him to pay restitution to the "Victim Reparations Board" because the board is not a "victim" under Minn. Stat. §§ 611A.04, or 611A.045. Because appellant refers to section 611A.04, which authorizes restitution payments to the victim reparations board, we assume appellant's argument pertains to that entity. Because appellant could have raised this issue on direct appeal, it, too, has been barred.
V.
With respect to all issues raised, appellant claims there have been "significant changes in the law's interpretation since the time of Appellant's direct appeal." Nevertheless, he fails to indicate any specific changes that would affect the outcome of his petition. In addition, our research disclosed no such changes. This is not a case where appellant's claims are "so novel that * * * [their] legal basis was not reasonably available at the time direct appeal was taken and decided" so as to warrant postconviction relief. Hanley , 534 N.W.2d at 279. Thus, the postconviction court properly denied appellant's petition on all grounds.