Morrow v. State

• Decision Date: 21 September 2016
• Docket Number: No. A16–0117.,A16–0117.
• Citation: 886 N.W.2d 204
• Parties: Aaron Joseph MORROW, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

886 N.W.2d 204

Aaron Joseph MORROW, Appellant,

v.STATE of Minnesota, Respondent.

No. A16–0117.

Supreme Court of Minnesota.

Sept. 21, 2016.

Rehearing Denied Nov. 7, 2016.

Aaron Joseph Morrow, Bayport, MN, pro se.

Lori Swanson, Attorney General, and John Choi, Ramsey County Attorney, Peter Marker, Assistant Ramsey County Attorney, Saint Paul, MN, for respondent.

Considered and decided by the court without oral argument.

OPINION

STRAS, Justice.

Appellant Aaron Joseph Morrow appeals the postconviction court's summary denial of his ineffective-assistance-of-appellate-counsel claims. Because we conclude that the petition, files, and records of the proceeding conclusively show that Morrow is not entitled to relief, we affirm.

I.

On September 26, 2010, Morrow fired his AK–47 at three people, killing one and injuring another.¹ A Ramsey County grand jury indicted Morrow on nine separate counts, including one count of first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2014) ; one count of first-degree murder while committing a drive-by shooting, Minn.Stat. §§ 609.185(a)(3) (2014), 609.66, subd. 1e (2014) ; one count of second-degree intentional murder, Minn.Stat. § 609.19, subd. 1(1) (2014) ; two counts of attempted first-degree premeditated murder, Minn.Stat. §§ 609.17 (2014), 609.185(a)(1) ; and two counts of attempted first-degree murder while committing a drive-by shooting, Minn.Stat. §§ 609.17, 609.185(a)(3), 609.66, subd. 1e.

A jury found Morrow guilty of all nine counts, although the district court convicted him of only three of the nine charged offenses: the lone count of first-degree premeditated murder and the two counts of attempted first-degree premeditated murder. The court did not convict him of the second-degree-murder and drive-by-shooting offenses.

On direct appeal, Morrow's principal brief challenged various aspects of the grand-jury proceedings, the district court's evidentiary rulings, and the denial of surrebuttal closing argument. State v. Morrow, 834 N.W.2d 715, 721–29 (Minn.2013). In a supplemental pro se brief, Morrow raised additional claims, including one that questioned whether the State had presented sufficient evidence of premeditation. Id. at 730. We affirmed Morrow's convictions and specifically held that “the State [had] presented ample evidence to establish that Morrow acted with premeditation and did not act in self-defense.” Id.

Less than 2 years later, on May 6, 2015, Morrow filed a petition for postconviction relief. In it, he argued that appellate counsel was ineffective by failing to raise the following five issues on appeal: (1) the sufficiency of the evidence; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel; (4) instructional error on the drive-by-shooting counts; and (5) the possible violation of a statute prohibiting multiple overlapping convictions, Minn.Stat. § 609.04 (2014). The postconviction court denied Morrow's petition, concluding that none of his theories had merit and that no evidentiary hearing was required. Morrow appeals the decision denying postconviction relief.²

II.

The question presented in this case is whether the postconviction court abused its discretion when it denied Morrow's petition for postconviction relief without holding an evidentiary hearing. We review the “denial of a petition for postconviction relief, as well as a request for an evidentiary hearing, for an abuse of discretion.” Riley v. State, 819 N.W.2d 162, 167 (Minn.2012). In doing so, we review the postconviction court's underlying factual findings for clear error and its legal conclusions de novo. Williams v. State, 869 N.W.2d 316, 318 (Minn.2015). A postconviction court may deny a petition for postconviction relief without holding an evidentiary hearing if the petition, files, and records in the proceeding conclusively establish that the petitioner is not entitled to relief. Minn.Stat. § 590.04, subd. 1 (2014).

To be entitled to an evidentiary hearing on an ineffective-assistance-of-appellate-counsel claim, a defendant must allege facts that, if proven by a fair preponderance of the evidence, would satisfy the two requirements from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Carridine v. State, 867 N.W.2d 488, 493–94 (Minn.2015). The first Strickland requirement is that, to prevail on an ineffective-assistance-of-counsel claim, a defendant must show that “counsel's performance fell below an objective standard of reasonableness.” Id. at 494 (citation omitted). Appellate counsel does not have a duty to raise all possible issues, and may choose to present only the most meritorious claims on appeal. Zornes v. State, 880 N.W.2d 363, 371 (Minn.2016) ; Arredondo v. State, 754 N.W.2d 566, 571 (Minn.2008) (explaining that “[a]ppellate counsel is not required to raise all possible claims on direct appeal”). A defendant alleging ineffective assistance of appellate counsel must overcome the strong presumption that appellate counsel has exercised reasonable professional judgment in selecting the issues to raise on appeal. Zornes, 880 N.W.2d at 371.

The second Strickland requirement is that a defendant must establish “a reasonable probability that absent his appellate counsel's error, the outcome of his direct appeal would have been different.” Ives v. State, 655 N.W.2d 633, 637 (Minn.2003) (quoting Sanders v. State, 628 N.W.2d 597, 603 (Minn.2001) ). A “reasonable probability” is one that is sufficient to undermine confidence in the outcome. Patterson v. State, 670 N.W.2d 439, 442 (Minn.2003). If a defendant raises an issue in a pro se supplemental brief, then counsel's failure to raise the same issue in the principal brief or at oral argument is not prejudicial. Sessions v. State, 666 N.W.2d 718, 723 (Minn.2003) (“[Sessions] was not prejudiced by ... his appellate counsel's failure to raise his pro se issues at oral argument, since they were addressed in his supplemental brief....”).

Having carefully reviewed the petition, files, and records in the proceeding, we conclude that Morrow cannot show prejudice from his appellate counsel's alleged errors. The facts alleged by Morrow do not create a reasonable probability that the outcome of his direct appeal would have been different had appellate counsel raised the issues he discusses in his postconviction petition. Appellate counsel's failure to raise the alleged insufficiency of the evidence and prosecutorial misconduct did not affect the outcome of Morrow's direct appeal because these claims were raised in Morrow's pro se supplemental brief and, after careful review, we concluded that each lacked merit. Morrow, 834 N.W.2d at 730.

There is also no reasonable probability that the outcome of Morrow's direct appeal would have been different had appellate counsel challenged trial counsel's failure to request a manslaughter instruction. We have said that the failure to instruct on heat-of-passion manslaughter, even if erroneous, cannot be prejudicial when a jury is presented with charges of both first-degree premeditated murder and second-degree intentional murder and the jury finds the defendant guilty of first-degree murder. State v. Chavez–Nelson, 882 N.W.2d 579, 591–92 (Minn.2016). Under such circumstances, the “verdict indicates that the jury would not have found [the defendant] guilty of first-degree manslaughter, which requires an intent triggered by the heat of passion but no premeditation.” Cooper v. State, 745 N.W.2d 188, 194 (Minn.2008). Therefore, even if appellate counsel had raised the alleged instructional error on direct appeal, Morrow would not have received relief on the claim.

Similarly, even if appellate counsel had challenged the district court's instructions on the drive-by-shooting offenses, there is no reasonable probability that the outcome of Morrow's direct appeal...