Rassmussen v. State

Thomas John Rassmussen, Jr., petitioner, Appellant, v. State of Minnesota, Respondent.

A18-1150

STATE OF MINNESOTA IN COURT OF APPEALS

March 4, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed; motion denied

Bratvold, Judge

Wright County District Court

File No. 86-CR-15-563

Thomas J. Rassmussen, Jr., Faribault, Minnesota (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney, Buffalo, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Halbrooks, Judge; and Jesson, Judge.

UNPUBLISHED OPINION

BRATVOLD, Judge

Appellant challenges the district court's order summarily denying his petition for postconviction relief. Appellant contends that the postconviction court erroneously determined that his claims of ineffective assistance of trial counsel and insufficiency of the evidence are procedurally barred, and that his claim of ineffective assistance of appellate counsel fails on the merits. Because appellant raised his claims of ineffective assistance of trial counsel and insufficient evidence in his direct appeal, and because appellate counsel's representation did not fall below the objective standard of reasonableness, we affirm.

FACTS

In November 2014, a fire damaged appellant Thomas Rassmussen's townhouse. After an investigation, the state charged Rassmussen with first-degree arson. A jury found Rassmussen guilty in January 2016, and the district court sentenced Rassmussen to 48 months in prison. Represented by counsel, Rassmussen appealed his judgment of conviction and raised one issue in his principal brief—whether the state's evidence was insufficient to prove his guilt beyond a reasonable doubt. Additionally, Rassmussen filed a pro se supplemental brief arguing that his trial attorney failed to provide effective assistance of counsel.

This court affirmed the judgment. State v. Rassmussen, No. A16-1215, 2017 WL 3013212, at *4 (Minn. App. July 17, 2017) (Rassmussen I), review denied (Sept. 19, 2017). First, we determined that the circumstantial evidence "taken as a whole, is consistent with Rassmussen intentionally setting fire to his townhouse, and insufficient to support any other rational hypothesis as to the cause of the fire." Id. at *3. Second, we rejected his pro se argument that his trial counsel was constitutionally ineffective. Id. at *4. Rassmussen, still represented by appellate counsel, petitioned for further review, which the supreme court denied.

Rassmussen petitioned for postconviction relief in March 2018 and raised a number of issues, including ineffective assistance of trial and appellate counsel as well as insufficiency of the evidence. The district court summarily denied Rassmussen's petition for postconviction relief in April 2018. This appeal follows.

DECISION

I. The district court did not abuse its discretion in determining that Rassmussen's claims of ineffective assistance of trial counsel and insufficiency of the evidence are procedurally barred.

This court reviews a summary denial of a postconviction petition for an abuse of discretion. Anderson v. State, 913 N.W.2d 417, 422 (Minn. 2018). Additionally, we review a postconviction court's decision to deny an evidentiary hearing or a new trial for an abuse of discretion. See Caldwell v. State, 853 N.W.2d 766, 770 (Minn. 2014) (evidentiary hearing); State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000) (new trial). In reviewing the postconviction court's decision to deny relief, we review legal conclusions de novo and underlying factual findings for clear error. Caldwell, 853 N.W.2d at 770.

When a direct appeal is not available, a person convicted of a crime may petition for postconviction relief if he claims a violation of his constitutional rights. Minn. Stat. § 590.01, subd. 1 (2018). But Minnesota caselaw recognizes that some postconviction claims are procedurally barred. For example, all matters raised on direct appeal, and all claims known but not raised, "will not be considered upon a subsequent petition for postconviction relief." State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). The Knaffla bar has two exceptions. First, novel issues will be considered if their legal basis "was not reasonably available at the time of the direct appeal." Quick v. State, 757 N.W.2d 278, 280(Minn. 2008). Second, an issue may be considered "in the interest of justice—when fairness so requires and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal." Id.; see also Minn. Stat. § 590.04, subd. 3 (2018) (providing that a postconviction court may deny "a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided" by an appellate court in "the same case").

Here, the postconviction court determined that Rassmussen's claims of ineffective assistance of trial counsel and insufficient evidence are Knaffla-barred. The postconviction court also concluded that an evidentiary hearing was not warranted. On appeal, Rassmussen relies mainly on the second exception to the Knaffla bar and "requests that his case be reviewed in its entirety in the interests of justice."¹

A. Ineffective assistance of trial counsel

Rassmussen acknowledges that he raised his ineffective-assistance-of-trial-counsel claim in his direct appeal, but argues that this court did not fully consider the issue. In Rassmussen I, this court granted the state's motion to strike evidence in Rassmussen's pro se appendix because it contained documents that were not in the trial record. 2017 WL 3013212, at *4 n.2. Rassmussen contends that he is entitled to a postconviction evidentiary hearing that includes evidence not admitted at trial, including testimony from trial counsel.

The general rule is that ineffective-assistance-of-trial-counsel claims must be raised on direct appeal if the record is sufficiently developed to consider the claim, and, when the same claim is raised in a subsequent postconviction petition, Knaffla bars it. Zornes v. State, 880 N.W.2d 363, 369 (Minn. 2016). An evidentiary hearing in postconviction court is warranted when a petitioner alleges facts that, if proven, would "entitle him to relief under the two-pronged Strickland test." Id. at 370 (citations omitted). First, the defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 687-88; 104 S. Ct. 2052, 2064 (1984)). Second, the defendant must prove that but-for counsel's errors, there is a reasonable probability that the "result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694; 104 S. Ct. at 2068). Tactical decisions to call certain witnesses or present specific evidence at trial are within trial counsel's discretion and "do not prove that counsel's performance fell below an objective standard of reasonableness." State v. Nissalke, 801 N.W.2d 82, 111(Minn. 2011); see also State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (holding that tactical decisions are within trial counsel's discretion).

In his direct appeal, we decided that Rassmussen's claim of ineffective assistance of trial counsel failed under the first Strickland prong. See Rassmussen I, 2017 WL 3013212, at *4. Rassmussen's pro se supplemental brief argued that his trial attorney had failed to contact alibi witnesses, stating that this was not "sound trial strategy" and that trial counsel "should have investigated further." He also argued that trial counsel did not introduce certain evidence, such as phone texts. In Rassmussen I, we concluded these alleged failures "stem from decisions made by his trial counsel about whether to present evidence and witnesses that could confirm Rassmussen's alibi or could rebut the state's evidence about his financial situation at the time of the fire." Id. Because the alleged failures were tactical decisions within trial counsel's discretion, we rejected Rassmussen's claim of ineffective assistance of trial counsel. Id.

In Rassmussen's appeal from the order denying postconviction relief, Rassmussen again argues that his trial attorney "failed to challenge . . . testimony," "failed to call" certain witnesses, and "failed to cross-examine" witnesses in a certain way. Rassmussen's postconviction allegations, which are based entirely on trial counsel's tactical and strategic decisions, cannot support a claim of ineffective assistance of trial counsel. See Jones, 392 N.W.2d at 236 ("Such trial tactics should not be reviewed by an appellate court."). Moreover, all of Rassmussen's allegations were based on the trial record and were raised or known at the time of the direct appeal. Thus, we conclude that the second exception tothe Knaffla bar does not apply, and the postconviction court did not abuse its discretion in summarily denying Rassmussen's claim of ineffective assistance of trial counsel.

B. Insufficiency of the evidence of conviction

Rassmussen generally argues that the state relied on "negative corpus" evidence² to prove his guilt and this is insufficient to sustain for his conviction.³ He claims that "negative corpus" is a novel scientific evidence and he "requests a reversal or a new trial in the interest of justice." By using the terms "novel" and "interest of justice," Rassmussen appears to argue that both Knaffla exceptions apply.

We conclude that neither exception applies for two reasons. First, the "negative corpus" method for determining a fire's ignition source is not a novel legal issue and, in fact, was available and argued in Rassmussen's direct appeal. Second, the interests of justice do not require further review of this issue.

During Rassmussen's jury trial, the prosecutor and...