Leake v. State, A06-1357.

• Decision Date: 16 August 2007
• Docket Number: No. A06-1357.,A06-1357.
• Citation: 737 N.W.2d 531
• Parties: Pierre LaMont LEAKE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

737 N.W.2d 531

Pierre LaMont LEAKE, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A06-1357.

Supreme Court of Minnesota.

August 16, 2007.

Rehearing Denied September 13, 2007.

Pierre LaMont Leake, Stillwater, MN, pro se.

Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, Minneapolis, MN, for Respondent.

Considered and decided by the court en banc without oral argument.

OPINION

PAGE, Justice.

Appellant Pierre LaMont Leake appeals from the district court's denial of his petition for postconviction relief without an evidentiary hearing. Leake was convicted of first-degree premeditated murder for the 2003 stabbing death of Megan Fisher and was sentenced to life in prison without the possibility of release. State v. Leake, 699 N.W.2d 312, 315 (Minn.2005). We affirmed Leake's conviction and sentence on direct appeal. Id.¹ We held: (1) that the evidence with respect to premeditation was sufficient, id. at 321; (2) that Leake's admission that he used force in commission of a prior offense supported application of the heinous crime statute mandating a sentence of life in prison without the possibility of release, id. at 324-25; (3) that jury verdicts of guilty as to first-degree murder but not guilty as to second-degree murder were logically but not legally inconsistent, id. at 326; (4) that purported prosecutorial misconduct during closing argument did not satisfy the plain error test, id. at 326-28; and (5) that Leake failed to demonstrate that the indictment should be overturned, id. at 328. Accordingly, we affirmed Leake's conviction and the sentence of life in prison without the possibility of release. Id. at 315.

Leake subsequently filed a pro se petition for postconviction relief seeking an evidentiary hearing, a new trial, vacation of his sentence, and other relief. In the petition, he asserted that: (1) the trial court judge made an improper ex parte communication to the jury; (2) the trial court's ruling on the applicability of the spousal communication privilege was erroneous; (3) the trial judge was biased against him; (4) the jury instructions were confusing or inaccurate; (5) the presentence investigation contained inaccuracies; and (6) he was denied effective assistance of trial and appellate counsel. The postconviction court denied the petition without holding an evidentiary hearing. In denying the petition, the court found that Leake failed to allege facts demonstrating that the performance of his appellate counsel was objectively unreasonable and failed to show that the outcome of his direct appeal would have been different but for the alleged errors of his appellate counsel. The court also found that a number of Leake's claims, although they were known or should have been known at the time of his direct appeal, were not raised at that time and were therefore barred by the rule set out in this court's decision in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). This appeal followed. The state did not file a brief opposing Leake's appeal. With the exception of one issue, we affirm the postconviction court's denial of review. Because we cannot, on the record presented, determine whether Leake was denied effective assistance of counsel in connection with advice he received from his trial counsel about the consequences of rejecting a plea offer, we remand to the postconviction court for an evidentiary hearing on that issue.

When reviewing a postconviction court's decisions, we examine only whether the postconviction court's findings are supported by sufficient evidence. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We will reverse a decision of a postconviction court only if that court abused its discretion. Id. However, we review issues of law de novo. Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006). Postconviction courts are required to hold an evidentiary hearing and make findings of fact and conclusions of law "[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief." Minn.Stat. § 590.04, subd. 1 (2006). Allegations in a postconviction petition must be "more than argumentative assertions without factual support," Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995), and an evidentiary hearing is unnecessary if the petitioner fails to allege facts that are sufficient to entitle him or her to the relief requested. Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990).

Once a direct appeal has been taken, all claims raised in that appeal, all claims known at the time of that appeal, and all claims that should have been known at the time of that appeal will not be considered in a subsequent petition for postconviction relief. Black v. State, 560 N.W.2d 83, 85 (Minn.1997); Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. But there are two exceptions to this "Knaffla rule." First, if a claim is known to a defendant at the time of direct appeal but is not raised, it will not be barred by the rule if the claim's novelty was so great that its legal basis was not reasonably available when direct appeal was taken. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). Second, even if the claim's legal basis was sufficiently available, substantive review may be allowed "when fairness so requires and when the petitioner did not `deliberately and inexcusably' fail to raise the issue on direct appeal." Russell, 562 N.W.2d at 672 (quoting Roby, 531 N.W.2d at 484). Leake does not contend that either of these exceptions apply to any of the claims in his petition.²

When a claim of ineffective assistance of trial counsel can be adjudicated on the basis of the trial record, it must be brought on direct appeal or it is barred by the Knaffla rule if raised in a postconviction petition. Torres v. State, 688 N.W.2d 569, 572 (Minn.2004). But a claim of ineffective assistance of trial counsel that cannot be resolved on the trial court record alone need not be brought in a direct appeal and may be brought in a postconviction petition. Id. Claims of ineffective assistance of appellate counsel on direct appeal are not barred by the Knaffla rule in a first postconviction appeal because they could not have been brought at any earlier time. See Schneider v. State, 725 N.W.2d 516, 521 (Minn.2007).

To receive an evidentiary hearing on an ineffective assistance of counsel claim, a petitioner must allege facts that would "affirmatively show that his attorney's representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different." Wilson v. State, 582 N.W.2d 882, 885 (Minn.1998); see also Strickland v. Washington, 466 U.S. 668, 690-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's performance is substandard when the attorney does not exercise "the customary skills and diligence that a reasonably competent attorney would [exercise] under the circumstances." State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (quotation marks and citation omitted). Matters of trial strategy lie within the discretion of trial counsel and will not be second-guessed by appellate courts. See id. Appellate counsel need not raise all possible claims on direct appeal, and a claim need not be raised if "appellate counsel could have legitimately concluded that [it] would not [prevail]." See Schneider, 725 N.W.2d at 523.

I.

First, we address Leake's argument that the judge at his trial engaged in improper ex parte communication with the jury entitling him to a new trial. He also contends that his trial counsel was ineffective for not addressing the issue at the time it arose and that his appellate counsel was ineffective for failing to raise the issue on direct appeal. Because the trial judge's contacts with the jury are evident from the trial record, Leake either knew or should have known of this issue at the time of his direct appeal. Having failed to raise the issue on direct appeal, the issue is barred under the Knaffla rule. The same is true for his claim of ineffective assistance of trial counsel related to this issue. See Black, 560 N.W.2d at 85. Leake's ineffective assistance of appellate counsel claim, however, is not barred because the claim could not have been brought on direct appeal. See Schneider, 725 N.W.2d at 521. The claim nonetheless fails because Leake cannot show that his appellate counsel's performance fell below an objective standard of reasonableness in that his appellate counsel could have legitimately concluded that the claim would not prevail.

During jury deliberations, while out of the presence of the jury, the judge stated the following:

We have another note from the jury. "Do we give a verdict on both counts? For instance, can the defendant be found guilty on both counts?"

* * * *

The Rules are pretty adamant on saying any communication to the jury should be in the courtroom in the presence of the defendant. I violated that when I sent this other note back because I thought it was just a housekeeping thing. They had four forms and they had signed one.

Immediately thereafter, the jury was brought into the courtroom, and the judge stated:

Members of the jury, I have a note here. It's not signed. I assume it's from one of the jurors, probably the foreperson.

Earlier there was a note asking—I don't have it in front of me here but it asked whether it was sufficient to sign one verdict form. I sent a note back with the deputy saying two.

Now I have the following note. "Do we give a verdict on both counts? For instance, can the defendant be found guilty of both counts?"

* * * *

The answer is as follows: Yes, as to the first question, do we give a verdict on both counts? The answer is yes, if you can, according to the instructions I gave you.

Second question, can the defendant be found guilty, the answer to that is the defendant may be found either not guilty or guilty of either or both counts.

No party objected on the...