Opinion
No. C6-96-180.
Filed September 17, 1996.
Appeal from the District Court, Crow Wing County, File No. K8942010.
Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, (for respondent)
Donald F. Ryan, Crow Wing County Attorney, Crow Wing County Courthouse, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, (for appellant)
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
A jury convicted appellant Matthew Sean Salinas of first-degree criminal sexual conduct in violation of Minn. Stat. § subd. 1(a) (1994). Salinas challenges the district court's imposition of a statutory fine of $12,000 and surcharges and assessments of $2,425. Salinas, pro se, also argues he received ineffective assistance of counsel at trial. Affirmed in part, reversed in part, and remanded.
DECISION I.
The trial court exercises discretion when imposing a sentence. State v. Martinson, 460 N.W.2d 342, 343 (Minn.App. 1990), review denied (Minn. Oct. 25, 1990). The maximum fine for first-degree criminal sexual conduct is $40,000. Minn. Stat. § subd. 2 (1994). When a court convicts a defendant of first-degree criminal sexual conduct, the court "must" impose a fine of not "less than $500 nor more than the maximum fine authorized by law." Minn. Stat. § subd. 2(1) (1994). Once a court imposes a fine, the court "shall" also impose a surcharge and assessment of 20% of the amount fined plus an additional $25. Minn. Stat. § subd. 1(a), (b). The court may reduce the minimum fine, surcharge, and assessment if the court makes written findings that the convicted person is indigent or that immediate payment would create undue hardship. Minn. Stat. § subd. 5.
Salinas argues that the district court abused its discretion by imposing a fine, surcharge, and assessment without making findings on Salinas's ability to pay. The court imposed a fine of $12,000, which is between the minimum fine of $500 and the maximum fine of $40,000. Thus, the court imposed greater than the minimum fine. Based on the $12,000 fine, the court also imposed the statutorily mandated surcharge and assessment of $2,425. The court made no findings on Salinas's ability to pay the fine.
It should be noted that the 1995 law, which does not apply here because Salinas's offense occurred on October 22, 1994, requires a court to impose a fine of at least "30 percent of the maximum fine authorized by law." Minn. Stat. subd. 2 (Supp. 1995). This may explain why the court imposed a $12,000 fine, which is thirty percent of the maximum fine of $40,000. Thus, the 1995 law would appear to make a $12,000 fine the mandatory minimum.
The recent case of Perkins v. State, 540 N.W.2d 908 (Minn.App. 1995), review granted (Minn. Feb. 27, 1996), is on point. In Perkins, as in this case, the district court imposed a $12,000 fine for a first-degree criminal sexual conduct conviction. Id. at 910. This court, in reversing and remanding the fine, reasoned that
[a] trial court must make a finding that the defendant is able to pay a fine. State v. Martinson, 460 N.W.2d 342, 344 (Minn.App. 1990), review denied (Minn.App. 1990), review denied (Minn. Oct. 25, 1990). In State v. Patterson, 511 N.W.2d 476 (Minn.App. 1994), review denied (Minn. Mar. 31, 1994), this court held that such a finding is only required if a court reduces the amount of a minimum fine. * We conclude that such a finding is also required if a court imposes a fine greater than the minimum. The mandatory minimum fine for first-degree criminal sexual conduct is $500. * * *. We remand so that the court may make this finding or alter the fine.
Id. at 912 (citations omitted).
Therefore, a court imposing the minimum fine need not make findings on a defendant's ability to pay. See Patterson, 511 N.W.2d at 479. But where the court imposes a fine somewhere between the minimum and maximum, the court must find that the defendant is able to pay. Perkins, 540 N.W.2d at 912.
The state correctly points out that the fine statute is silent on whether a court must make findings in imposing a fine between the statutory minimum and maximum. However, as the state seems to concede, this court's decision in Perkins is on point and dictates our result. Accordingly, we conclude the district court abused discretion in imposing greater than the statutory minimum fine without making findings on Salinas's ability to pay. We reverse and remand the fine, surcharge, and assessment so that the district court can either make the appropriate finding or reduce the fine to the $500 minimum.
II.
A direct appeal is an inappropriate way of raising the issue of ineffective assistance of counsel; rather, the issue should be raised in a postconviction proceeding so that the reviewing court will have the benefit of an expanded factual record. State v. Buchanan, 431 N.W.2d 542, 553 (Minn. 1988); State v. Franson, 403 N.W.2d 920, 922 (Minn.App. 1987), review denied (Minn. Jun. 1987). While this is a direct appeal rather than a postconviction proceeding, we address Salinas's pro se argument on ineffective assistance of counsel because Salinas has chosen to raise the issue at this time.
Under the Sixth Amendment to the United States Constitution, an accused is guaranteed the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14 (1970). In order to succeed on a claim of ineffective assistance of counsel, the defendant must prove (1) that counsel's representation "fell below an objective standard of reasonable" and (2) 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, 2064, 2068 (1984)). A strong presumption exists that an attorney's performance falls within the wide range of "reasonable professional assistance." State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Trial tactics are within the trial attorney's discretion. Id. Thus, decisions regarding which witnesses to call and what information to present to a jury, because they involve trial tactics, should not be reviewed by an appellate court. Id.
Salinas's arguments regarding ineffective assistance of counsel implicate trial tactics such as what witnesses to call, what objections to raise, and what evidence to present. Salinas's arguments are also conclusory and fail to point adequately to record evidence to support his argument. For example, he argues that his attorney failed to show how a witness committed perjury, without indicating in what way the witness had perjured herself. He similarly stresses testimonial "discrepancies" without indicating specifically to what discrepancies he is referring. Thus, we conclude Salinas has failed to sustain his burden of demonstrating that he would have received a better result at trial in the absence of any of the alleged errors.