Opinion
A15-0759
02-08-2016
John Howard Bartz, petitioner, Appellant, v. State of Minnesota, Respondent.
John Howard Bartz, Bayport, Minnesota (pro se appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and Karin L. Sonneman, Winona County Attorney, Erin C. Stephens, Assistant County Attorney, Winona, Minnesota (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Ross, Judge Winona County District Court
File No. 85-CR-11-598 John Howard Bartz, Bayport, Minnesota (pro se appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and Karin L. Sonneman, Winona County Attorney, Erin C. Stephens, Assistant County Attorney, Winona, Minnesota (for respondent) Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Hooten, Judge.
UNPUBLISHED OPINION
ROSS, Judge
John Bartz broke into a house and choked his girlfriend and her mother. After he pleaded guilty to first-degree burglary, third-degree assault, and attempted first-degree assault, Bartz unsuccessfully appealed his sentence. He has now unsuccessfully petitioned for postconviction relief in the district court, and he appeals. All but one of Bartz's claims is procedurally barred, and he does not support his remaining claim. We therefore affirm.
FACTS
John Bartz argued with his girlfriend, T.B., in March 2011, prompting T.B. to leave for the Winona home of her mother, J.S. After several hours of drinking the next day, Bartz went to J.S.'s house looking for T.B. No one answered the door, so Bartz threw a table through the window and climbed inside. He found J.S. and two of T.B.'s children, but not T.B., who was hiding. Bartz pushed J.S. onto a bed and began choking her. That's when T.B. revealed herself, and Bartz released J.S. and began choking T.B. Freed from Bartz's grasp, J.S. called police, who arrested Bartz.
Bartz agreed to plead guilty to first-degree burglary, third-degree assault with substantial bodily harm, and attempted first-degree assault. He moved unsuccessfully for a downward dispositional departure and the district court sentenced him to consecutive prison terms of 60 months for first-degree burglary and 48 months for attempted first-degree assault. The district court also sentenced Bartz to a conditionally stayed term of 15 months in prison for the third-degree assault.
Bartz appealed his sentence, claiming that the district court judge was biased against him and arguing that the court abused its discretion by refusing to depart downward and by executing his sentences consecutively. This court affirmed the sentence. State v. Bartz, No. A11-2013 (Minn. App. Sept. 10, 2012), review denied (Minn. Nov. 27, 2012).
Bartz has now moved to withdraw his guilty pleas. He argued to the district court that the Winona police and the prosecutor committed misconduct, that the sentencing judge was biased and abused his discretion, that Minnesota Rule of Criminal Procedure 17.01, subdivision 1, is unconstitutional, and that both his trial counsel and appellate counsel provided him ineffective assistance. Enforcing the procedural bar to repetitious challenges as defined by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), and applying the authority to summarily deny facially groundless postconviction petitions under Minnesota Statutes section 590.04, subdivision 1 (2014), the district court denied Bartz's petition without a hearing.
Bartz appeals.
DECISION
Bartz argues that his claims merit an evidentiary hearing. A district court may deny a postconviction petition without a hearing if the petition and record conclusively show that the petitioner is entitled to no relief. See Minn. Stat. § 590.04, subd. 1. We will affirm the district court's decision to deny postconviction relief without an evidentiary hearing unless we hold that the denial reflects an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).
The district court correctly concluded that all but one of Bartz's claims is procedurally barred. A postconviction petitioner is entitled to no relief for claims that he raised or could have raised in his direct appeal. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741; Minn. Stat. § 590.01, subd. 1 (2014). Bartz's petition asserts that police destroyed exculpatory evidence they found during his arrest and that they unconstitutionally interrogated him. He also contends that the prosecutor committed misconduct during his sentencing. These claims are based on circumstances Bartz knew about before he appealed directly. They are therefore barred by Knaffla. Bartz's allegation that the sentencing judge was biased against him is also barred under Knaffla because he raised that claim in his direct appeal. Bartz, 2012 WL 3892144, at *4.
Bartz asserts that Minnesota Rule of Criminal Procedure 17.01, subdivision 1, is unconstitutional. This rule allows the state to prosecute Bartz's offense by complaint. At the time of his direct appeal, Bartz knew that the state brought its charges against him by complaint. So this claim too is barred.
Bartz's petition refers to his trial counsel's performance during the sentencing hearing and claims that it constitutes ineffective assistance. "[A]n ineffective assistance of trial counsel claim is generally Knaffla-barred in a postconviction petition if the claim can be decided on the basis of the trial record and the briefs." White v. State, 711 N.W.2d 106, 110 (Minn. 2006). Because Bartz knew at the time of his direct appeal about any allegedly deficient attorney performance issues arising from his sentencing hearing, that claim also fails.
Bartz seems to suggest in cursory fashion that a Knaffla-bar exception applies here. The Knaffla rule has two exceptions. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). The first is that a claim escapes the Knaffla bar when "the claim's novelty was so great that its legal basis was not reasonably available when direct appeal was taken." Id. The second exception allows the court to consider an otherwise barred claim "when fairness so requires and when the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal." Id. (quotations omitted). Bartz's argument includes language that hints at the second exception, but he does not build on the idea by developing an argument or by identifying supporting facts. A petitioner must present his allegations with more than unsupported argumentative assertions. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). The district court had no apparent ground on which to apply either exception.
One of Bartz's claims does avoid the Knaffla rule, but it fails on the merits. The Knaffla rule does not bar an ineffective appellate counsel claim because a directly appealing defendant could not have known that his appellate counsel provided ineffective assistance at the time of his direct appeal. Schneider v. State, 725 N.W.2d 516, 521 (Minn. 2007). The postconviction court nevertheless properly rejected this claim without a hearing. To obtain an evidentiary hearing on a claim of ineffective appellate counsel, a petitioner must allege facts that, if proved by a preponderance of the evidence, would satisfy the customary two-element test. Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012). First, he must allege facts showing that his appellate counsel's representation fell below an objective standard of reasonableness. Id. Second, he must establish that, but for his appellate counsel's objectively unreasonable performance, the outcome of the appeal probably would have been different. Id.
Bartz argues that his appellate counsel was ineffective for not raising the claims that are now procedurally barred. Appellate counsel is not ineffective merely because she fails to argue all possible claims on direct appeal by choosing to raise only the most meritorious ones. Id. Bartz's appellate counsel maintained that the sentencing judge erroneously denied Bartz's motion for a downward dispositional departure, Bartz, 2012 WL 3892144, at *3, and Bartz now argues that failing to also include the charge of judicial bias constitutes ineffective assistance. But Bartz himself made the bias allegation in his supplemental appellate brief, and we saw no support in the record for the claim. Id. at *4. Because we have already determined that the claim is unsustainable on the record, Bartz cannot now establish that his appeal would have been successful had his attorney raised the claim.
Bartz also argues that his appellate counsel was ineffective for failing to argue that his trial counsel provided ineffective assistance. Of course, this claim also fails unless Bartz establishes a basis for the theory—proof that his trial counsel was ineffective. Schneider, 725 N.W.2d at 521. Trial counsel's performance is presumptively reasonable, and we do not second-guess trial strategy. Id. Bartz asserts that his trial counsel failed to investigate the crime, failed to raise various issues, and failed to object at points during the sentencing hearing. He leaves these assertions bare, citing no facts or circumstances that tend to show that they demonstrate ineffectiveness. His allegations are also related to his trial counsel's strategic decisions, to which we give particular deference. And he has failed to show that the outcome likely would have been different even if his trial counsel had done what he claims should have been done. By arguing that his appellate counsel was ineffective for failing to argue a claim of ineffective trial counsel, Bartz "is in effect simply recharacterizing an issue that he should have raised on direct appeal." Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998). Because there seems to be no merit to Bartz's claim that he received ineffective assistance of trial counsel, his appellate counsel did not provide ineffective assistance by not raising this issue. Id.
The district court reasonably considered Bartz's postconviction petition and did not abuse its discretion by denying it without a hearing. We concur with the district court's assessment that the petition and the record conclusively show that Bartz is entitled to no relief.
Affirmed.