Opinion
No. C6-02-951.
Filed December 17, 2002.
Appeal from the District Court, Hennepin County, File No. 98005664.
Bernard Clark, (appellant pro se)
Mike Hatch, Attorney General, and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Bernard Clark challenges the district court's order denying postconviction relief from Clark's assault and robbery convictions. Because there is sufficient evidence in the record to sustain the court's order, we affirm.
FACTS
After conviction of first-degree assault, Minn. Stat. § 609.221 (Supp. 1997), and first-degree aggravated robbery, Minn. Stat. § 609.245, subd. 1 (1996), Clark appealed. In Clark I, this court affirmed all issues except the question of whether ex parte communications between the judge and jury occurred during Clark's trial. State v. Clark, No. C4-99-306, 2000 WL 54093 (Minn.App. Jan. 25, 2000). On remand, the district court and counsel, with Clark present, made a record of the court's communication with the jury during trial.
The district court ruled that the communication between the court and the jury was not an abuse of its discretion. This court affirmed in Clark II and held it was error for the court to communicate with the jury without first notifying appellant, but the error was harmless. State v. Clark, No. C2-01-287, 2001 WL 1035110 (Minn.App. Sept. 11, 2001).
Clark then moved the district court for a new trial, arguing that he was denied effective assistance of counsel, and that he was prejudiced by the court's alleged pressure on the jury to reach a verdict and by the court's failure to tell him of his right to be present for the court's communications with the jury. Clark's motion to the district court was treated as a postconviction petition.
The district court denied Clark's petition for postconviction relief. In reaching its decision, the district court reviewed Clark's claim of ineffective assistance of counsel and applied the Strickland two-prong test. The district court ruled that Clark was not denied effective assistance of counsel.
The district court then reviewed Clark's claims regarding the court's communication with the jury and found that this court already addressed the issue of the ex parte communication in Clark II. The district court then denied Clark's postconviction petition for a new trial.
In the instant appeal, Clark III, Clark argues that his postconviction petition should not have been denied. In support of his claim, Clark contends that (1) his Sixth Amendment rights were violated when he was denied effective assistance of counsel; (2) the district court improperly gave the jury the impression that a deadlock verdict was an unacceptable outcome; and (3) the court relied upon inaccurate information as to the criminal-history score in making its sentencing determination. Clark raises this last issue for the first time in this appeal.
DECISION
The supreme court has held that
[t]he denial of a new trial by a postconviction court will not be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the postconviction court's findings.
State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000) (citation omitted).
Once a direct appeal has been taken, this court will not consider in a postconviction appeal any issue raised in the direct appeal or any claims known at that time but not raised. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). However, at this court's discretion, it
may consider issues raised for the first time on appeal when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party.
Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002) (citation omitted).
1. Ineffective assistance of counsel
Clark first argues that his Sixth Amendment rights were violated because of ineffective assistance of counsel. As stated in the facts, the postconviction court found that this issue had already been decided in Clark II. The district court relied on Roby in denying relief on this issue. Roby held that the court may summarily deny a second or successive petition for similar relief when the issues raised in it have already been decided by the court of appeals in the same case. Roby v. State, 531 N.W.2d 482, 483-84 (Minn. 1985). The record shows that this issue was decided in a prior appeal to this court in Clark II. State v. Clark, No. C2-01-287, 2001 WL 1035110 (Minn.App. Sept. 11, 2001).
But even when we review the merits, we conclude that Clark has not satisfied the Strickland test. The Strickland two-part test for determining ineffective assistance of counsel requires that
[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." [Citation omitted.] "A reasonable probability is a probability sufficient to undermine confidence in the outcome."
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)).
It is unclear whether Clark argues that his district court or appellate court counsel was ineffective, and Clark fails to show in what respect any of his attorneys was ineffective because he provides no substantiation beyond the proposition that, because the court's communication with the jury was error, his counsel was ineffective.
This court in Clark II held that the district court's communication with the jury was harmless error. Clark, 2001 WL 1035110, at *4. Whether Clark is referring to appellate or district court counsel, he fails to carry his burden under Strickland because he fails to demonstrate that, but for the error, the outcome of his trial likely would have been different.
Because the error by the court was harmless error and because Clark fails to affirmatively meet the requirements of Strickland, his counsel's actions relating to the same issue must also be found harmless. The postconviction court's denial of a new trial on the ground of ineffective assistance of counsel will not be disturbed because there is sufficient evidence to sustain the findings, and there was no abuse of discretion.
2. District court communications with the jury
Clark next argues that he was prejudiced by the district court's communications with the jury. This court notes that Clark II held that the court's communications with the jury were neutral and not coercive. Id. Because the district court's communications were considered previously on appeal, applying current, correct law, this court will not consider that issue in this postconviction appeal. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.
3. Calculation of sentence
Clark next argues that the district court relied on inaccurate information when calculating his criminal- history score for sentencing. The record shows that Clark has not previously raised a claim regarding the calculation of his sentence at any time, including at the postconviction hearing. This court generally will not consider an issue raised for the first time on appeal. Id.
However, at this court's discretion, it
may consider issues raised for the first time on appeal when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party.
Ferguson, 645 N.W.2d at 448 (citation omitted).
In the interests of justice, we have reviewed the district court's determination of Clark's criminal history score and sentence. The standard for review of the district court's determination of a defendant's criminal history score is that of abuse of discretion. Bolstad v. State, 439 N.W.2d 50, 53 (Minn.App. 1989). "A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief." Ferguson, 645 N.W.2d at 442, (citing Minn. Stat. § 590.04, subd. 3 (2000)).
The district court found that the presumptive guideline sentence for first-degree assault was sufficient. See Minn. Sent. Guidelines IV. Clark was sentenced to 158 months based on a criminal history score of 7 and a criminal severity level of 8 for conviction under Minn. Stat. § 609.221 (1998). Minn. Sent. Guidelines IV, V. Clark received credit for 316 days served in custody.
The district court also imposed the mandatory minimum fine of $9,000, of which $8,950 was suspended because of Clark's financial circumstances. See Minn. Stat. §§ 609.221, subd. 1, .101, subd. 2 (1998).
Clark fails to show in what respect his criminal history score was inaccurate. Without that showing, Clark fails to meet his burden to establish facts that would warrant relief. Clark received precisely the sentence presumptively appropriate under the guidelines and was given the minimum fine mandated by statute.
Because the district court did not abuse its discretion and there is sufficient evidence in the record to sustain a denial of new trial or other relief, we affirm.