Schleicher v. State

• Decision Date: 27 July 2006
• Docket Number: No. A05-1348.,No. A04-1892.,A04-1892.,A05-1348.
• Citation: 718 N.W.2d 440
• Parties: Roger Lindbo SCHLEICHER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

Page 440

718 N.W.2d 440

Roger Lindbo SCHLEICHER, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A04-1892.

No. A05-1348.

Supreme Court of Minnesota.

July 27, 2006.

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Deborah K. Ellis, St. Paul, MN, for Appellant.

Roger L. Schleicher, Bayport, MN, Appellant Pro Se.

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN; and Douglas L. Ruth, Steele County Attorney, Owatonna, MN, for Respondent.

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

OPINION

ANDERSON, RUSSELL A., Chief Justice.

Roger Lindbo Schleicher appeals the postconviction court's denials of his first and second petitions for postconviction relief from his conviction for first-degree premeditated murder. Because we conclude that all of the claims raised by Schleicher in his postconviction petitions are either procedurally barred by the Knaffla rule or fail on the merits, we affirm.

Schleicher was indicted in Steele County District Court for first-degree premeditated murder for the shooting death of his friend, Jack Johannsen. State v. Schleicher, 672 N.W.2d 550, 550, 551 (Minn.2003). Schleicher pleaded not guilty and not guilty by reason of mental illness under Minn.Stat. § 611.026 (2004).¹ Schleicher, 672 N.W.2d at 550. Our opinion in response to Schleicher's direct appeal provides a comprehensive statement of the facts of the underlying offense. See id. at 550-53.

Schleicher waived his right to a jury trial, and the district court conducted a bifurcated trial. Id. at 550 n. 3, 551. The court rejected Schleicher's defense of not guilty by reason of mental illness, found him guilty of first-degree premeditated murder, and sentenced him to life imprisonment. Id. at 551.

Schleicher appealed, raising a single claim—that the language of Minn.Stat. § 611.026 is unconstitutionally vague. Schleicher, 672 N.W.2d at 555. We affirmed, concluding that we were procedurally barred from considering Schleicher's claim because he had not challenged the constitutionality of the statute at the district court. Id.

After his direct appeal, Schleicher, with the assistance of counsel, filed a petition for postconviction relief. In the petition and attached memorandum of law, Schleicher claimed that: (1) he was denied effective assistance of trial counsel because trial counsel failed to challenge the constitutionality of Minn.Stat. § 611.026 and failed to elicit expert testimony showing that Schleicher, at the time of the murder, did not know his actions were wrong; and (2) he was denied effective assistance of appellate counsel because appellate counsel failed to request a stay of the direct appeal to pursue postconviction relief based on ineffective assistance of trial counsel. Schleicher requested a hearing to present evidence showing that his "mental illness affected his ability to process the perceptions that he had of the victim due to his personality disorder and the mental illness affected his ability to respond to those perceptions," evidence that Schleicher claims trial counsel was ineffective for failing to submit at trial.

The postconviction court held an evidentiary hearing that focused on examining the expert testimony relating to "the interplay between [Schleicher's] personality disorder and [his] mental illness."² The two expert witnesses who testified at the mental illness phase of the trial again testified at the hearing. At the end of the hearing, the court denied relief, concluding on the record that the testimony presented did not alter the court's conclusion that Schleicher had not met his burden of proving by a preponderance of the evidence that he did not know at the time of the murder that his actions were wrong.³

Schleicher appealed from the postconviction court's decision and, while his appeal was pending, moved to stay the appeal to permit him to file a second postconviction petition. We stayed the appeal, and Schleicher filed a pro se petition, claiming that: (1) he was denied his right to testify; (2) he was denied a mental illness evaluation by Dr. Carl Malmquist; (3) he was denied the right to self-representation; (4) he was denied substitute private counsel; (5) he was denied the right to a jury trial; (6) he was not competent to proceed with trial; (7) trial counsel was ineffective; and (8) appellate counsel was ineffective. The postconviction court denied the petition without a hearing, concluding that Schleicher failed to allege facts that would entitle him to relief and that the Knaffla rule procedurally barred his claims. Schleicher appealed, and we consolidated his appeals.

A defendant may seek postconviction relief "to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate." Minn.Stat. § 590.01, subd. 1 (2004) (amended 2005). 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) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). A petitioner seeking postconviction relief has the burden of establishing by "a fair preponderance of the evidence" the facts alleged in the petition. Minn.Stat. § 590.04, subd. 3 (2004).

In reviewing a postconviction proceeding, we determine "`whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.'" Zenanko v. State, 688 N.W.2d 861, 864 (Minn.2004) (quoting Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001)). We "review a postconviction court's determinations of legal issues de novo." Pederson v. State, 692 N.W.2d 452, 459 (Minn.2005).

I.

In his briefs to this court, Schleicher presents several claims that he did not raise in his postconviction petitions, including sufficiency of the evidence, double jeopardy, admission of statements obtained in violation of his Miranda rights, denial of his right to participate in his defense, ineffective assistance of appellate counsel for raising only a single issue on appeal, several ineffective assistance of trial counsel claims, and unconstitutionality of the mental illness defense statute. The state contends that Schleicher waived these claims for purposes of appeal by failing to assert them in his petitions. Schleicher does not address the state's waiver argument.⁴

"`It is well settled that a party may not raise issues for the first time on appeal' from denial of postconviction relief." Azure v. State, 700 N.W.2d 443, 447 (Minn.2005) (quoting Robinson v. State, 567 N.W.2d 491, 494 n. 2 (Minn.1997)). "This procedural bar applies even in postconviction proceedings raising constitutional issues of criminal procedure." Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002). Accordingly, we hold that claims raised by Schleicher for the first time on appeal are forfeited for purposes of the appeal. See Azure, 700 N.W.2d at 447.

However, one of the claims raised by Schleicher for the first time on appeal — ineffective assistance of postconviction counsel — is not deemed forfeited because Schleicher could not have asserted this claim in his first petition. Thus, this claim is properly raised on appeal from the denial of his first petition.⁵

Schleicher argues that postconviction counsel was ineffective for failing to pursue the ineffective assistance of trial counsel claims at the evidentiary hearing, failing to properly prepare for the hearing, and failing to adequately communicate with Schleicher. The United States Supreme Court has held that a criminal defendant has "no constitutional right to an attorney in state post-conviction proceedings." Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Because the constitutional right to counsel provides the basis for the right to effective assistance of counsel, the Court has stated that "a petitioner [in a state postconviction proceeding] cannot claim constitutionally ineffective assistance of counsel in such proceedings." Id. Consequently, Schleicher's claims of ineffective assistance of postconviction counsel fail.

The fact that we have interpreted the Minnesota Constitution as providing a right to counsel beyond that guaranteed by the United States Constitution does not alter this conclusion. In Deegan v. State, we held that the Minnesota Constitution guarantees the right to counsel for a first postconviction petition if the defendant did not pursue a direct appeal. 711 N.W.2d 89, 98 (Minn.2006). However, because Schleicher had a counseled direct appeal, he does not benefit from the right announced in Deegan.

Schleicher also contends that his postconviction counsel should have requested substitute counsel because she was the same attorney who pursued Schleicher's direct appeal, and raising a claim of ineffective assistance of appellate counsel thus required her to argue that her own performance on direct appeal was ineffective. Schleicher couches this claim in terms of a due process violation. However, Schleicher cites no authority for the proposition that an attorney's representation of a defendant both on direct appeal and in postconviction proceedings violates the defendant's due process rights when the postconviction petition claims ineffective assistance of appellate counsel, nor have we found any such authority.

In addition, Schleicher has not demonstrated that he was denied a fair postconviction proceeding due to his counsel's alleged conflict. The alleged conflict does not appear to have affected postconviction counsel's performance. Postconviction counsel actively raised the ineffective assistance of appellate counsel claim in Schleicher's first petition, and, while that claim was not specifically addressed at the evidentiary hearing, postconviction counsel vigorously explored the issues underlying that claim at the hearing....