Opinion
No. C1-95-1467.
Filed May 14, 1996.
Appeal from the District Court, Todd County, File No. K2-93-606.
Hubert H. Humphrey, III, Attorney General, Jon C. Audette, Assistant Attorney General, (for Respondent).
Charles G. Rasmussen, Todd County Attorney, (for Respondent)
La Verne Koenig, (Pro Se Appellant)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
Unpublished Opinion
La Verne Koenig challenges denial of his petition for postconviction relief, arguing that (1) he was denied his right to postconviction counsel, (2) the district court erred by not allowing him to withdraw his petition for postconviction relief, (3) the district court erred by denying an evidentiary hearing on his claim of ineffective assistance of counsel on appeal, (4) it was an abuse of discretion for the district court to deny the petition without specific findings of fact, and (5) Minn. Stat. ___.05 is unconstitutional. We affirm.
Facts
La Verne Koenig was charged with writing a worthless check for $415 at an auction in Long Prairie. The check was written on a South Dakota bank account that had been closed two weeks earlier.
Koenig appeared in court with the assistance of a public defender and demanded a speedy trial, a demand that was later modified, with Koenig's consent. When Koenig appeared for trial, the public defender explained to the court that he was appearing as Koenig's legal adviser and not as his attorney. The court asked Koenig if he had decided to represent himself, and Koenig replied that he had.
Koenig was convicted of three gross misdemeanor counts of theft and one gross misdemeanor count of issuing a worthless check. The district court vacated the three theft convictions and sentenced him to 365 days in jail and a $3,000 fine on the conviction for issuing a worthless check. The sentence was stayed, and Koenig was placed on probation for two years on the conditions that he serve 90 days in jail, pay a $500 fine or perform community service in lieu of the payment, and make restitution in the amount of $415.
Koenig, with the assistance of a public defender, took a direct appeal to this court, arguing that he had not knowingly waived his rights to counsel and a speedy trial. This court affirmed his conviction. He then filed a petition for further review with the Minnesota Supreme Court. The supreme court denied his petition.
While his petition for review was pending, Koenig filed a pro se petition for postconviction relief, which the district court denied in all respects. This appeal followed.
Decision
I. Appointment of Counsel for Postconviction Proceedings
Koenig contends that he was denied his constitutional right to assistance of counsel because the district court denied his request to have counsel appointed for the postconviction proceedings. In support of his argument, Koenig relies on Harris v. State, 470 N.W.2d 167 (Minn. App. 1991). In Harris, the appellant filed a direct appeal before filing a petition for postconviction relief, and this court held that
[a]n indigent person who properly applies to the court shall be entitled to representation by the state public defender to pursue postconviction relief from a felony or gross misdemeanor conviction.
Id. at 167.
Since the decision in Harris, however, the relevant statute has been amended to read
A person financially unable to obtain counsel who desires to pursue the remedy provided in section 590.01 may apply for representation by the state public defender. The state public defender shall represent such person under the applicable provisions of sections 611.14 to 611.27, if the person has not already had a direct appeal of the conviction * * *
Minn. Stat. § 590.05 (1994) (emphasis added); see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993 (1987) (rejecting suggestion that prisoners' constitutional right to counsel extends beyond their first right of appeal).
Before filing his petition for postconviction relief, Koenig had directly appealed his conviction and had petitioned the Minnesota Supreme Court for further review. Thus, under the statute, Koenig was not entitled to have a public defender appointed to represent him in the postconviction proceedings.
II. Withdrawal of Petition for Postconviction Relief
Under Minnesota law, a district court ``may at any time prior to its decision on the merits permit a withdrawal of the petition, ***.'' Minn Stat. § 590.03 (1994). Koenig contends that the district court abused its discretion by denying his motion to withdraw his petition for postconviction relief. Koenig argues that the district court's denial was prejudicial because he did not have an opportunity to have an ``evidentiary hearing to establish a record of the issues raised in the original motion.''
The record indicates that Koenig's motion to withdraw his petition for postconviction relief was filed at the hearing on his petition. The issues raised in Koenig's motion to withdraw the petition were essentially identical with those raised in the petition itself. Because Koenig's motion to withdraw the petition did not identify issues justifying a withdrawal, we conclude that the district court did not abuse its discretion in denying the motion.
III. Claim of Ineffective Assistance of Counsel on Appeal
Koenig contends that the district court erred in denying his petition for postconviction relief without an evidentiary hearing on his claim of ineffective assistance of counsel handling his appeal.
A postconviction proceeding is reviewed only to ``determine whether there is sufficient evidence to sustain the postconviction court's findings * * *.'' Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The decision of the postconviction court will not be reversed absent an abuse of discretion. Id.
An evidentiary hearing is required only if the petitioner ``alleges facts which, if proven, would entitle the petitioner to the requested relief.'' State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995). Thus, to determine whether Koenig was entitled to an evidentiary hearing, this court must look to the substance of his claim. Id. Koenig had to allege facts that would prove that the representation of his appellate counsel
``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.''
Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (quoting Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) ); see also Swenson v. State, 426 N.W.2d 237, 240 (Minn. App. 1988) (holding that the same standard is applied to trial counsel and appellate counsel).
Koenig contends that his appellate counsel failed to request this court to remand the record to the district court for an evidentiary hearing on Koenig's alleged waiver of counsel and speedy trial issues. Koenig claims that he was prejudiced by this failure because this court was unable to review an expanded record. In support of his allegation, Koenig contends that his appointed counsel in the district court misinformed him regarding his waiver of a speedy trial and coerced him into waiving counsel at trial.
The district court conducted an extensive inquiry into Koenig's knowledge and understanding of his right to proceed pro se. The district court also
made certain that Koenig's standby counsel adequately explained the consequences of his decision to him. Further, the record demonstrates Koenig's familiarity with the court process. In light of these facts, which are supported by the record, it is not probable that the outcome of Koenig's direct appeal would have been different if his appellate counsel had requested that this court remand the case for an evidentiary hearing.
IV. Absence of Findings of Fact
Koenig also contends that the district court's denial of his petition for postconviction relief was an abuse of discretion because the district court failed to make specific findings of fact.
Under Minnesota law, a district court, when considering a petition for postconviction relief, shall ``make findings of fact and conclusions of law with respect thereto.'' Minn. Stat. ??.04, subd. 1 (1994). However, an absence of findings does not always require a remand. Scruggs, 484 N.W.2d at 24. This court may disregard the absence of findings ```if the record is clear and yields an obvious answer to the relevant questions raised on appeal.''' Id. at 25 (quoting Davis v. State, 775 P.2d 1243, 1247 (Idaho Ct. App. 1989), review denied (Idaho July 29, 1989) ).
The facts in the record support the denial of the postconviction petition. Thus, the district court's failure to make findings of fact in this case does not require us to remand.
V. Constitutionality of Minn. Stat. ??.05
Koenig contends that Minn. Stat. § 590.05, relating to representation by the state public defender of indigent petitioners for postconviction relief, is unconstitutional. He claims that the statute discriminates against indigent persons by allowing the state public defender's office to provide ineffective representation. Koenig contends that it is a ``facade'' to expect the state public defender's office to challenge ``their own ineffective assistance.''
Koenig indirectly refers to the provision of the Minnesota Constitution that provides that persons accused of a crime have the right to have assistance of counsel. However, he fails to establish how this provision is violated by the statute. State statutes are presumed to be constitutional, and this court's ``power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.'' In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). The burden falls on the party challenging the statute to prove ``beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.'' Id. Because Koenig has failed to satisfy his burden of proving a violation of the Minnesota Constitution, we have no basis for declaring section 590.05 unconstitutional.
Affirmed.