author: TERNUS, Justice.

text:
    Dale V. GREENWOOD, Appellant, v. Jason MITCHELL, Appellee.
    No. 99-0644.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Erik A. Luthens of Luthens Law Offices, P.C., West Des Moines, for appellant.
    Edward G. Parker of Morain, Burlin-game & Pugh, P.L.C., West Des Moines, for appellee.
   TERNUS, Justice.

The appellant, Dale Greenwood, was struck by a vehicle being driven by the appellee, Jason Mitchell, as Greenwood was walking on a sidewalk in Des Moines, Iowa. In a subsequent suit filed by Greenwood against Mitchell, the jury found Greenwood to be sixty percent at fault based on his failure to mitigate his damages. Because Greenwood was more than fifty percent at fault, the district court entered judgment in favor of the defendant. See Iowa Code § 668.3(l)(a) (1999) (providing that a plaintiff who “bears a greater percentage of fault” than the defendant is barred from any recovery). The trial court rejected the plaintiffs motion for new trial. We hold there was not sufficient evidence to submit the issue of the plaintiffs failure to mitigate to the jury. Therefore, we reverse and remand for retrial.

I. Background Facts.

On December 12, 1995, a vehicle driven by Mitchell struck Greenwood on his right side as Greenwood attempted to dive out of the way of the Mitchell vehicle as it left the street and careened onto the sidewalk. Greenwood experienced pain in his right arm and shoulder and left leg immediately after the accident. He was examined in the emergency room of a local hospital and conservative treatment was ordered.

When conservative treatment did not alleviate Greenwood’s complaints, he was referred to an orthopedist, Robert Breed-love, M.D. Dr. Breedlove diagnosed Greenwood as having “chronic impingement syndrome, right shoulder secondary to motor vehicle accident.” On May 10, 1996, upon Dr. Breedlove’s recommendation, Greenwood had an “operative ar-throscopy and decompression of his shoulder” on an outpatient basis.

Greenwood’s post-operative course was uneventful and approximately three weeks post-surgery Dr. Breedlove released Greenwood to light duty. He also referred Greenwood to a physical therapist to begin a range-of-motion and strengthening regimen.

At the initial therapy evaluation, the physical therapist concluded that Greenwood suffered from decreased range of motion and strength. He set two goals for Greenwood: (1) equal strength and motion in his shoulders; and (2) a pain-free state. In June 1996, Greenwood’s physical therapist released Greenwood from treatment and advised him to continue with a home exercise program. Dr. Breedlove allowed Greenwood to return to full work duty as of July 1,1996, noting that Greenwood was experiencing only occasional discomfort.

In June 1997, Greenwood returned to Dr. Breedlove for reevaluation of his right shoulder. He complained that for the past six months he had “noticed continued discomfort [when] lifting heavy objects ... and [when] doing push-ups and general physical therapy.” He also complained of occasional arm numbness and weakness. Dr. Breedlove referred Greenwood to a second physical therapist, Thomas Bower, for further testing and an impairment rating.

During Greenwood’s initial visit with Bower, Bower outlined Greenwood’s medical history as it related to the right shoulder problem. In pertinent part, Bower’s records state:

This gentleman did reasonably well following the decompression but apparently was not given any good home program of exercise. Mr. Greenwood is employed by the Iowa National Guard and apparently through some of the physical conditioning requirements had to do a number of push-ups which have inflamed his shoulder once again.

(Emphasis added.) Bower further stated:

We have discussed Mr. Greenwood’s problem and I have given him a couple of exercises that should help decrease some of the discomfort that he is experiencing in the shoulder.... We believe this gentleman has sustained no greater than a 10% impairment to the right upper extremity based on those findings. We are hopeful that through exercise that this pain will reduce, although he is still very likely going to be limited in some activities overhead.

On follow-up with Dr. Breedlove, the doctor “felt that [Greenwood] was significantly better than he was preoperatively, but that he may always have constant irritation with respect to his right shoulder.” Dr. Breedlove did not impose any physical restrictions on Greenwood and advised Greenwood to see him in the future on an as-needed basis.

In August 1998 Greenwood saw his family physician after he strained his left shoulder while lifting some heavy radios at work. The doctor noted that Greenwood “continues to have pain and stiffness in his right shoulder.”

II. Legal Proceedings.

In December 1997 Greenwood filed suit against Mitchell seeking damages for the injuries he sustained in the accident of December 1995. Mitchell answered, claiming that his actions were not a proximate cause of any of Greenwood’s injuries. The case was set for trial on February 1, 1999. On the morning of trial, the defendant admitted fault for the accident, but continued to deny that the accident was a proximate cause of Greenwood’s injuries.

At trial, the defendant sought to establish that Greenwood had failed to follow the home therapy regimen recommended by his first physical therapist. Greenwood testified as follows on cross-examination:

Q. And at that time, [the therapist] discontinued your physical therapy, didn’t he? A. Yes, because he was moving.
Q. And he told you that he was doing that because all of your goals were met, didn’t he? A. What he told me, if I remember right, was you don’t really have to come back, you’re doing good. I’m moving. Just keep up what you can at home.
Q. In other words, he instructed you on a home exercise program, didn’t he? A. Yes.
Q. He told you to follow that, didn’t he? A. Yes.
Q. Now, it’s my understanding that you were given home exercise instructions by the physical therapist. Do you recall that? A. Yes.
Q. And they told you to do that, remember that? A. Yes.
Q. They said if you got any pain or any problems doing your home exercise program, that will help you. Do you recall that? A. Yes.
Q. And in fact, Dr. Breedlove even wrote you a letter after the surgery, didn’t he, told you the same thing? A. Yes.
Q. And he said, I’ll trust that you [will] follow your home exercise program. Do you recall that? A. Yes.
Q. But you haven’t been very consistent about doing that, have you? A. I did it for quite a while and when I felt like it wasn’t doing any good, I quit.
Q. So you haven’t been very consistent with it then, have you? A. No, I haven’t.

(Emphasis added.)

Mitchell also testified at trial. He admitted he was at fault for the accident, but denied actually hitting Greenwood with his car.

The only other witness called by the defendant was Dr. Peter Wirtz, an orthopedic surgeon who had conducted an independent medical examination of Greenwood at the defendant’s request. Dr. Wirtz testified that Greenwood had a “loss of motion of the right shoulder,” but that the strength on both sides of his shoulders was normal. Dr. Wirtz was of the opinion that Greenwood had a four percent impairment of his right upper extremity as a result of the 1995 accident.

In discussing the impingement problem in Greenwood’s right shoulder and the consequences of the decompression surgery, Dr. Wirtz testified:

A. Well, maximum healing time for this type of problem usually runs around six to 12 weeks, and at that point, once you’ve got this type of impairment or problem or you might need to have some medical problems in the future, need some care, and past that point, it really wouldn’t change that much.

(Emphasis added.) As a final direct examination question, defense counsel queried:

Q. Would physical therapy or any other therapy be of assistance to Mr. Greenwood if he has problems in the future? A. Well, at this point, one would say that formal therapy probably isn’t indicated. One would say he do a home exercise program and learn the exercise position and activities and do that if that is needed.

(Emphasis added.)

At the close of evidence, the court submitted proposed instructions to the parties. Greenwood objected to the instructions concerning his alleged failure to mitigate. Greenwood’s counsel asserted there was not substantial evidence in the record to support submission of this issue. The court overruled Greenwood’s objections and the failure-to-mitigate issue was submitted to the jury.

The verdict form to be completed by the jurors contained special interrogatories addressing fault, proximate cause, allocation or percentage of fault, and the amount of damages. Because Mitchell had admitted fault, the interrogatory concerning his fault was answered “yes” prior to the instructions being given to the jury.

Upon completion of their deliberations, the jurors returned a verdict in which it found both parties at fault and found both to be a proximate cause of damage to Greenwood. The jury also determined that Greenwood was sixty percent at fault and that Mitchell was forty percent at fault. Consequently, pursuant to the court’s instructions, the jury did not answer the special interrogatory concerning the amount of the plaintiffs damages. The court then entered a judgment in favor of the defendant.

Greenwood filed a motion for new trial raising two issues pertinent to this appeal. He first contended that the defendant had not introduced substantial evidence to justify submission of the failure-to-mitigate instructions. See Iowa R. Civ. P. 244(h) (permitting a new trial where an error of law occurred in the proceeding “materially affect[ing the] movant’s substantial rights”). The plaintiff argued that medical testimony was necessary to establish that his failure to do home exercises resulted in injury. The defendant responded that it was only necessary to prove that the plaintiff did not follow his health care provider’s recommendations.

The second ground supporting Greenwood’s motion for new trial was his assertion that the jury’s verdict was not reconcilable with the evidence, in that any failure to mitigate on the part of the plaintiff occurred more than six months after the accident. See Iowa R. Civ. P. 244(f) (permitting a new trial where the verdict is not supported by sufficient evidence and the movant’s substantial rights were materially affected). The defendant argued that this result was appropriate under the comparative fault statute because the legislature had included failure to mitigate in the statutory definition of fault. See Iowa Code § 668.1(1) (defining “fault” to include an “unreasonable failure to avoid an injury or to mitigate damages”). Thus, according to the defendant, the plaintiffs failure to mitigate must be compared to the defendant’s fault as to all damages.

The court denied the plaintiffs request for a new trial. It ruled that medical testimony was not needed to support a failure-to-mitigate claim with respect to medical damages. The court also concluded that the comparative fault statute allows for the result the jury reached in this case:

We don’t draw a distinction between what all the damages were and what all the pain and suffering were up until the time [the plaintiff] decides not to do his home exercises. Maybe we should, but that’s not [what] the statute says.

The plaintiff appealed, contending error in the trial court’s denial of his motion for new trial. The case was transferred to the court of appeals, which affirmed the district court. We granted further review. Because we find the alleged instructional error to be dispositive, we do not consider the plaintiffs claim that the verdict was not sustained by sufficient evidence.

III. Scope and Standard of Review.

“A party is entitled to have an adverse decision vacated and a new trial granted if errors of law occurred in the proceedings.” Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 544 (Iowa 1997) (citing Iowa R. Civ. P. 244(h)). Here, the plaintiff claims that the trial court erred in submitting instructions on failure to mitigate. We review this claim for correction of legal error. See id. at 545.

A trial court “must refuse to instruct on ‘an issue having no substantial evidential support or which rests on speculation.’ ” Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997) (quoting Clinton Land Co. v. M/S Assocs., Inc., 340 N.W.2d 232, 234 (Iowa 1983)). “Substantial evidence is that which a reasonable person would find adequate to reach a conclusion.” Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). In determining the sufficiency of the evidence, we give the evidence “the most favorable construction possible in favor of the party urging submission.” Hoekstra v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 108 (Iowa 1986).

IV. Sufficiency of Evidence to Support Submission of Failure to Mitigate.

As noted earlier, Iowa’s comparative fault statute defines “fault” to include an “unreasonable failure to avoid an injury or to mitigate damages.” Iowa Code § 668.1(1). Because much of the Iowa statute is taken directly from the Uniform Comparative Fault Act, this court has held that “[t]he official comments to the Uniform Act have some persuasive influence in determining what our legislature intended by the language in our comparative fault act.” Coker v. Abell-Howe Co., 491 N.W.2d 143, 148 (Iowa 1992). The official comment to the definition-of-fault section refers to the phrase “unreasonable failure to avoid an injury or mitigate damages” as another way of including “the doctrine of avoidable consequences.” Id. at 149 (citing Unif. Comparative Fault Act § 1, cmt., 12 U.L.A. 44, 45 (Supp.1992) (now found at 12 U.L.A. 128 (1996))). Under the avoidable consequences doctrine, “a party cannot recover damages that result from consequences which that party could reasonably have avoided.” Id. (citing 22 Am.Jur.2d Damages § 495, at 579 (1988)). In Coker, we distinguished the avoidable consequences doctrine from the doctrine of contributory negligence as follows:

Like contributory negligence, avoidable consequences is the review of the reasonableness of the plaintiffs conduct as a defense in a negligence action. Both doctrines examine the plaintiffs duty to care for his own interests and require the plaintiff to exercise only the standard of care of the reasonable person under the circumstances. Yet, contributory negligence and avoidable consequences are distinct:
[Contributory negligence is negligence of the plaintiff before any damage, or any invasion of his rights, has occurred.... The rule of avoidable consequences comes into play after a legal wrong has occurred, but while some damage may still be averted, and bars recovery only for such damages.

Id. (emphasis added) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 458 (5th ed.1984) [hereinafter “Prosser on Torts”]).

Having established the nature of a failure-to-mitigate claim, we now turn to a discussion of the proof necessary to support submission of such a claim. Initially, there must be substantial evidence that there was something that the plaintiff could do to mitigate his loss and that requiring the plaintiff to do so was reasonable under the circumstances. See Tanberg v. Ackerman Inv. Co., 473 N.W.2d 193, 196 (Iowa 1991). Furthermore, it must be shown that the plaintiff acted unreasonably in failing to undertake the mitigating activity. See Iowa Code § 668.1(1) (defining “fault” as an “unreasonable failure ... to mitigate damages” (emphasis added)); Shewry v. Heuer, 255 Iowa 147, 155, 121 N.W.2d 529, 534 (1963) (“[A]n injured person is under no absolute obligation to follow the advice of his physician in order to minimize his damages. His duty in this respect is to use ordinary care in the matter of following such advice.”); Kirk v. Union Pac. R.R., 514 N.W.2d 734, 737 (Iowa App.1994) (“[T]he defendant has the burden of demonstrating that the failure to mitigate was unreasonable under the circumstances.”). Finally, there must be proof of a causal connection between the plaintiffs failure to mitigate and his damages. See Iowa Code § 668.1(2) (“The legal requirements of cause in fact and proximate cause apply both to fault as the basis for liability and to contributory fault.”); id. § 668.3(3) (“In determining the percentages of fault, the trier of fact shall consider both the nature of conduct of each party and the extent of the causal relation between the conduct and the damages claimed.” (Emphasis added.)); Fuches v. S.E.S. Co., 459 N.W.2d 642, 643 (Iowa App.1990) (“In order to find a failure to undergo medical treatment was a failure to mitigate damages, there must be a showing that such treatment would in fact have mitigated the damages.”). The burden rests on the defendant to prove the plaintiffs failure to mitigate. See Tanberg, 473 N.W.2d at 196.

Upon our review of¡ the record, we conclude the defendant has failed to introduce substantial evidence to prove that Greenwood’s failure to continue his home exercise program was unreasonable. We also think there is insufficient evidence to establish a causal connection between Greenwood’s failure to mitigate and his damages.

As noted in our review of the factual and legal background of this case, Greenwood’s first physical therapist prescribed a home exercise program upon Greenwood’s completion of physical therapy in June 1996. Greenwood testified he followed the program “for quite a while,” but quit when he felt “it wasn’t doing any good.” The defendant’s expert medical witness testified that at a point between six to twelve weeks post-surgery, Greenwood’s condition “really wouldn’t change that much.” When asked about physical therapy in the future, the expert testified that Greenwood could do a home exercise program “if that is needed.”

Conspicuously absent from the record is any testimony that Greenwood’s failure to continue his home exercise regimen in perpetuity was unreasonable. Nor is there any expert testimony that Greenwood’s continuation of home exercises would have prevented certain damages.

The defendant relies on a letter from physical therapist Bower to Dr. Breedlove in which Bower states he has given Greenwood “a couple of exercises that should help decrease some of the discomfort” and that while he is “hopeful that through exercise ... this pain will reduce, [Greenwood] is still very likely going to be limited in some activities overhead.” We think this testimony is too uncertain to support submission of the defendant’s failure-to-mitigate claim. See Cox v. Keg Restaurants U.S., Inc., 86 Wash.App. 239, 935 P.2d 1377, 1380 (1997) (holding that a mere possibility that physical therapy would benefit the plaintiff ’was not sufficient to support a failure-to-mitigate defense). Under this state of the record, the jury was left to speculate whether any part of Greenwood’s damages was proximately caused by his own inaction and, if so, what portion could have been avoided.

The defendant also relies on an entry in records of the original physical therapist that states the goals of therapy had been accomplished upon Greenwood’s release from physical therapy. Those goals were equal strength and motion in Greenwood’s shoulders and a pain-free state. The defendant argues that the jury could conclude from this evidence that if Greenwood had’ continued his home exercises, he would have had no continuing problems. We do not think this inference can be drawn without the assistance of expert testimony. It is equally possible that the recurrence of shoulder problems is a natural consequence of the plaintiffs injury, or that his subsequent problems were such that home exercise would not have completely alleviated them. Simply stated, the defendant’s case lacked expert testimony that Greenwood’s subsequent symptoms were caused by his failure to follow his home exercise program. See Cox, 935 P.2d at 1380 (holding there was insufficient evidence to submit issue of failure to mitigate based on plaintiffs refusal to begin physical therapy where there was no expert medical testimony based on a reasonable degree of medical certainty that this refusal prolonged the plaintiffs recovery).

In asserting that the evidence in this case was adequate to support submission of the plaintiffs alleged failure to mitigate, the defendant relies on three prior appellate decisions in which the evidence was held to be sufficient to allow the jury to consider whether the plaintiff had failed to mitigate his damages. See Tanberg, 473 N.W.2d at 196; McDonnell v. Chatty, 529 N.W.2d 611, 614 (Iowa App.1994); Miller v. Eichhorn, 426 N.W.2d 641, 643 (Iowa App.1988). The primary focus in Tanberg and McDonnell was whether a failure to lose weight as advised by the plaintiffs treating physician could be the basis for a failure-to-mitigate claim. Tanberg, 473 N.W.2d at 195; McDonnell, 529 N.W.2d at 613. In Miller, the court held without elaboration that “testimony by one of [the plaintiffs] doctors that additional chiropractic treatments would have helped [her] condition” supported submission of the mitigation-of-damage issue. 426 N.W.2d at 643. Although the appellate courts in each case determined that the evidence was sufficient to support submission of the defendant’s claim, the dispute in these cases did not center on the sufficiency of the evidence with respect to the causal connection between the plaintiffs conduct and the plaintiffs damages, the primary matter at issue here.

To the extent these cases are inconsistent with our evaluation of the defendant’s burden of proof on a failure-to-mitigate claim, they are overruled. We see no principled distinction between the defendant’s burden to prove a causal connection between the plaintiffs failure to mitigate and the plaintiffs damages, and the plaintiffs burden to prove that the defendant’s fault was a proximate cause of the plaintiffs damages. If expert medical testimony is required to establish a causal link between fault and damages in one situation, such testimony should be equally required in the other. In other words, the standard of proof is no less exacting when the defendant alleges the plaintiff caused his own damages than it is when the plaintiff alleges that the defendant caused the plaintiffs damages.

Because the defendant did not introduce substantial evidence that the plaintiffs actions were unreasonable or that his actions were a proximate cause of an identifiable portion of his damages, the trial court erred in submitting the instructions on failure to mitigate. This error materially affected the plaintiffs substantial rights as shown by the fact that the adverse verdict rested on the jury’s assessment of fault to the plaintiff. .Therefore, the plaintiff was entitled to a new trial based on this error. The trial court erred in failing to grant the plaintiffs motion for new trial.

V. Issues on Retrial.

It is possible that on retrial the defendant will introduce the necessary testimony to support submission of his failure-to-mitigate defense. Therefore, we briefly address the problem that occurred in the first trial when the jury was allowed to allocate the plaintiffs fault against all of the plaintiffs damages. We initially note our disagreement with the defendant’s position that the legislature intended to change the nature of the failure-to-mitigate defense so as to make it applicable to all of a plaintiffs damages. As our opinion. today makes clear, this defense is based on conduct occurring after the plaintiff has sustained an injury caused by the defendant’s fault. Moreover, the defendant must prove a causal connection between the plaintiffs fault and the plaintiffs damages.

Cases in which failure to mitigate is an issue will, therefore, almost always present a situation in which some portion of the plaintiffs damages will not be subject to the failure-to-mitigate claim. The present case is a perfect example. The plaintiffs alleged failure to mitigate did not arise until at least six months after his injury. The only defense offered to this initial period of damages was a denial of proximate cause, an issue resolved by the jury adversely to the defendant. Despite the fact that the plaintiff suffered damages for a minimum of six months that were proximately caused by the defendant’s fault, the plaintiff recovered nothing. Contrary to the district court’s conclusion in its ruling on the plaintiffs motion for new trial, we do not think that the comparative fault statute requires that the jury ignore the distinction between the damages sustained prior to the alleged failure to mitigate and those sustained during the time the plaintiff failed to mitigate his damages. To the contrary, a comment to the definition of “fault” in the Uniform Comparative Fault Act notes that there is a “requirement of a causal relation for the particular damage.” Unif. Comparative Fault Act § 1, cmt., 12 U.L.A. 128 (1996) (emphasis added) (giving as an example the fact that “negligent failure to fasten a seat belt would diminish recovery only for damages in which the lack of a seat belt restraint played a part, and not, for example, to the damage to the car”); see also Iowa Code § 668.3(3) (requiring jury to consider the causal connection between a party’s fault and the plaintiffs damages in determining allocation of fault).

We think the inequitable result of the first trial can be avoided upon retrial by the use of separate verdict forms for the period prior to the plaintiffs alleged failure to mitigate and for the period that includes the plaintiffs alleged failure to mitigate. Nothing in the comparative fault statute requires that an allocation of fault be made in one verdict form in cases such as this, where the failure-to-mitigate claim is easily identifiable to a specific time frame. See generally Prosser on Torts § 65, at 459 (stating in discussion of doctrine of avoidable consequences that “courts have been willing to apportion damages to separate causes when a logical basis may be found” for doing so). We do not suggest that separate verdict forms are necessary in every case in which failure to mitigate is alleged as a defense. The practicality of using separate verdict forms in a particular case and the extent to which separate verdict forms would assist the jury in rendering a verdict consistent with the evidence is best left to the judgment of the trial court.

, VI. Conclusion.

The trial court erred in submitting the defendant’s failure-to-mitigate claim to the jury. The plaintiff is entitled to a new trial. Therefore, we vacate the court of appeals’ contrary decision, reverse the district court’s judgment in favor of the defendant, and remand for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

      . This action was filed in December 1997. The General Assembly amended chapter 668 during the 1997 legislative session, and these amendments were made applicable to claims filed after July 1, 1997. See 1997 Iowa Acts ch. 197, § 16. The amendments were codified in the 1999 Iowa Code. Therefore, all statutory citations are to the 1999 Code.

      . The record also contained evidence that in late 1996 Greenwood aggravated or reinjured his right shoulder during the course of his duties with the Iowa National Guard. Because these incidents are not relevant to the mitigation issue addressed on appeal, we omit any extended discussion of the evidence with respect to them.


source: Caselaw Access Project

license: Public Domain

text:
    Ryan Jon VOSS, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant.
    No. 99-1448.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Kerry Anderson, Assistant Attorney General, for appellant.
    Jeffrey L. Walters and Todd N. Klapa-tauskas of Reynolds <& Kenline, L.L.P., Dubuque, for appellee.
   TERNUS, Justice.

The issue is this case is whether Iowa Code section 321J.8 (1999) requires that the implied consent advisory be reread before the administration of each chemical test when multiple tests are requested. The appellant, Iowa Department of Transportation (DOT), ruled that the advisory need not be given a second time when an, additional test is administered. The district court’s reversal of the agency’s decision was affirmed on appeal by the Iowa Court of Appeals. This court granted further review. Upon our examination of the record and consideration of the arguments of the parties, we vacate the court of appeals’ decision, reverse the judgment of the district court, and remand for entry of an order affirming the agency decision.

I.Background Facts and Proceedings.

On October 31, 1998, an Iowa state trooper arrested the appellee, Ryan Voss, for operating while intoxicated. See Iowa Code § 321J.2 (defining offense of operating while intoxicated). The officer transported Voss to jail and, upon reaching the law enforcement center, made a written request for a breath test. See id. § 321J.6(1) (stating that person operating a motor vehicle under circumstances indicating a violation of section 321J.2 is deemed to have consented to a chemical test to determine alcohol or drug content). The trooper read the implied consent advisory to Voss at 1:21 a.m., and Voss then signed the written consent. A subsequent intoxilyzer test showed an alcohol level of .101.

Shortly after testing Voss’s breath, the trooper was informed that during an inventory search of Voss’s vehicle a marijuana pipe was discovered. Additionally, a search of Voss conducted upon his admission to jail yielded a plastic bag containing greenish-brown material that looked and smelled like marijuana, as well as several small butts or “roaches” from marijuana cigarettes. Believing that Voss may be under the influence of a drug other than alcohol, the trooper requested a urine specimen from Voss at 1:50 a.m. See id. § 321J.6(3) (requiring officer to request a blood or urine test if officer “has reasonable grounds to believe that the person was under the influence of a controlled substance, a drug other than alcohol, or a combination of alcohol and another drug ... even after another type of test has been administered”). The officer did not reread the implied consent advisory to Voss, but did answer Voss’s questions regarding the requested test. Voss consented to the test, and later test results were positive for tetrahydrocannabinol (THC).

Upon receiving the positive test result, the DOT issued a notice revoking Voss’s license for one year. See id. § 321J. 12 (requiring one year revocation for chemical test showing presence of a controlled substance or other drug where person has had a previous revocation under chapter 321J). Voss contested the revocation, in part based on the fact that the advisory had not been reread to him prior to his consent to the urine test. The administrative law judge (ALJ) ruled in favor of Voss on this issue, and rescinded the department’s revocation of Voss’s driver’s license. The DOT filed an internal appeal, resulting in a reversal of the ALJ’s decision and a reinstatement of Voss’s revocation.

Voss sought judicial review in the district court. The district court ruled that the trooper was required to readvise Voss of the consequences of refusing to consent to the urine test and the officer’s failure to do so required rescission of the revocation. This decision was affirmed by the court of appeals. We granted further review.

II. Scope of Review.

Our review of the DOT’S decision to revoke a driver’s license is governed by Iowa’s Administrative Procedure Act, chapter 17A. See Scott v. Iowa Dep’t of Transp., 604 N.W.2d 617, 619 (Iowa 2000).

Applying the standards for review of agency action found in section 17A.19(8), we determine whether our conclusions are the same as those made by the district court. If they are, we affirm. If our conclusions are not the same, and we decide the district court has incorrectly applied the law, we must reverse.

Id.

III. Discussion.

The implied consent advisory is required by Iowa Code section 321J.8, which states:

A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following:
1. If the person refuses to submit to the test, the person’s driver’s license ... will be revoked by the department as required by and for the applicable period specified under section 321J.9.
2. If the person submits to the test and the results indicate the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited by section 321J.2 or 321J.2A, the person’s driver’s license ... will be revoked by the department as required by and for the applicable period specified under section 321J.12.

Iowa Code § 321J.8. Our task in this appeal is to determine whether the legislature intended that this advisory be repeated with each alternate test requested. See State v. Green, 470 N.W.2d 15, 18 (Iowa 1991) (in construing statutes, the court “tr[ies] to find and give effect to legislative intent”).

“If the statutory language is plain and the meaning is clear, we do not search for the legislative intent beyond the express terms of the statute.” Horsman v. Wahl, 551 N.W.2d 619, 620-21 (Iowa 1996). If a statute is ambiguous, however, the court will resort to rules of statutory interpretation to ascertain the meaning of the statute. See Green, 470 N.W.2d at 18. “Ambiguity exists if reasonable minds may differ or may be uncertain as to the meaning of the statute.” Id. In those cases,

[t]o resolve ambiguity and ultimately determine legislative intent, [the court] eonsider[s] (1) the language of the statute; (2) the objects sought to be accomplished; (3) the evils sought to be remedied; and (4) a reasonable construction that will effectuate the statute’s purpose rather than one that will defeat it.

Id. (citations omitted).

Voss contends that the language used in the statute clearly indicates that the advisory must be given before each test. He relies on the language, “[a] person who has been requested to submit to a chemical test shall be advised by a peace officer of the following.” Iowa Code § 321J.8 (emphasis added). Voss argues that the article “a” in the phrase “a chemical test,” because of its “singular” connotation, expressly reveals the legislature’s intent that each request for a chemical test be immediately preceded by a reading of the advisory.

The use of the article “a” is not, however, as limited as Voss would have it.

The word “a” has varying meanings and uses. “A” means “one” or “any,” but less emphatically than either. It may mean one where only one is intended, or it may mean any one of a great number. It is placed before nouns of the singular number, denoting an individual object or quality individualized.
The article “a” is not necessarily a singular term; it is often used in the sense of “any” and is then applied to more than one individual object.... [T]he meaning depends on context.

Black’s Law Dictionary 1 (6th ed.1990) (emphasis added) (citations omitted). Thus, contrary to Voss’s argument, the use of the article “a” does not necessarily mean the implied consent advisory must be readministered with each test requested.

We think the meaning of the statute is unclear because, in reviewing the statutory language, we are uncertain whether the advisory must be read only once, or whether it must be repeated with each request for a chemical test. Therefore, we look to the purpose of the statute and seek a reasonable construction that will advance that purpose.

When a person has been asked to submit to a chemical test, section 321J.8 requires that the officer must advise the person of the consequences of refusing to take the test and the consequences of a positive test result, including the potential periods of revocation. Although the rationale for ⅛⅛ requirement is not stated in the statute, and no case directly addresses this issue, the district court in this case clearly stated the obvious reason behind the requirement:

The clear intent of section 321J.8 is to provide a person who has been required to submit [to] a chemical test a basis for evaluation and decision-making in regard to either submitting or not submitting to the test. This involve[s] a weighing of the consequences if the test is refused against the consequences if the test reflects a controlled substance, drug, or alcohol concentration in excess of the “legal” limit. This is a determination that will frequently be made without benefit of counsel by the person of whom [the] request is made....

The question that must be answered then is whether this intent was thwarted by the officer’s failure to repeat the advisory when a second test was requested of Voss. The district court determined that the statutory purpose was not accomplished in the absence of rereading the advisory because the additional test requested by the officer was “a totally different test, differently administered, and for a different substance.” Under these circumstances, the court reasoned, “a layman would not know the periods of revocation are the same for the urine test as for the breath test unless reconfirmed or read-vised of the revocation period by the officer.”

A review of the implied consent advisory given to Voss, however, undermines the validity of the court’s reasoning. The following advisory was read to Voss:

Refusal to submit to the withdrawal of a body specimen for chemical testing will result in revocation of your privilege to operate a motor vehicle for one year if you have not previously been revoked within the previous twelve years under the implied consent or drunk driving laws of this state, or for two years if you have one or more revocations within the previous twelve years. If you are under age 18, the revocation will be for the above periods, or until you reach age 18, whichever is longer.
Refusal to submit to a blood or urine test for drugs other than alcohol or a combination of alcohol and another drug constitutes a refusal and the above mentioned revocation periods apply.
If you consent to chemical testing and the test results indicate an alcohol concentration of ten hundredths or more, or if the test results indicate the presence of a controlled substance or other drug or a combination of alcohol and another drug in violation of 321J.2, the department shall revoke your privilege to operate a motor vehicle for a period of 180 days if you have no revocation within the previous twelve years under the drunk driving or implied consent law, or for one year if you have one or more previous revocations under those provisions.

(Emphasis added). The advisory given to Voss clearly informed him of the applicable periods of revocation for any kind of chemical test, whether the test was to detect the presence of alcohol, a controlled substance or other drug, or some combination of alcohol and another drug. Thus, Voss was, in fact, advised of the consequences of a refusal to submit to a urine test for drugs and the consequences of a test result indicating the presence of drugs. Moreover, the trooper answered Voss’s specific questions concerning the second request for a chemical test, and there is no evidence in the record that Voss was confused about the consequences of his decision.

Under these circumstances, we think the statutory purpose was accomplished without the necessity of repeating the same information prior to the trooper’s request for a second test. Cf. Green, 470 N.W.2d at 18 (stating that “when the purpose of the requirement [of the implied consent law] has been substantially met,” evidence of test results has been allowed). No useful purpose would be served by a rigid requirement that the implied consent advisory be reread when multiple chemical tests are requested.

We hold, therefore, that the agency correctly ruled that the trooper had complied with the procedural requirements of section 321J.8. Cf. State v. Fortman, 493 N.W.2d 599, 601 (Minn.Ct.App.1992) (holding that officer was “not required to reread the entire implied consent advisory when an alternative test is necessary” where approximately one hour had elapsed since the first reading of the advisory); Hansen v. Comm’r of Pub. Safety, 393 N.W.2d 702, 705 (Minn.Ct.App.1986) (same). Consequently, Voss’s license was properly revoked. Accordingly, we vacate the court of appeals’ contrary decision and reverse the district court’s judgment rescinding the revocation. We remand for entry of an order affirming the agency’s decision.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

      . Voss’s offense occurred in late 1998. In the 1998 session of the Iowa General Assembly, several significant changes were made to chapter 321J. See 1998 Iowa Acts ch. 1138, §§ 10-23. These amendments went into effect prior to the commission of Voss’s crime. See Iowa Code § 3.7 (“All Acts ... passed at regular sessions ... shall lake effect on the first day of July following their passage.... ”). They were codified in the 1999 Iowa Code. Therefore, to simplify our citation of the relevant statutes, all references will be to the 1999 Code.


author: PER CURIAM

text:
    In re ADMONITION ISSUED IN PANEL FILE NO. 99-42.
    No. C6-00-623.
    Supreme Court of Minnesota.
    Jan. 25, 2001.
    Allen I. Saeks, Leonard, Street and Dei-nard, Minneapolis, for appellant.
    Edward J. Cleary, Director, Martin A. Cole, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for respondent.
   OPINION

PER CURIAM

This appeal arises because appellant challenges a private admonition issued by the Director of the Office of Lawyers Professional Responsibility. The Director admonished appellant for violating Minn. R. Prof. Conduct 5.3(c) and Lawyers Professional Responsibility Board (“Board”) Opinion 13 by allowing a nonlawyer in his firm to withhold a deposition transcript from a client until the client reimbursed the firm for the transcript’s expense. A Board Panel affirmed the admonition, and appellant appealed to this court.

After reviewing the parties’ briefs, this court noted that Rule 5.3(c) does not state an independent ground for disciplining an attorney and that the parties did not discuss whether it was proper for the Director to admonish appellant solely for violating Opinion 13. Consequently, we issued an order asking the parties to address by supplemental brief “whether an attorney may be disciplined based solely on a violation of an Opinion of the Lawyers Professional Responsibility Board.” We now answer this question in the negative and reverse.

The facts of this case are undisputed. Appellant was admitted to practice law in 1988 and has no prior disciplinary record. Beginning in May 1996, appellant represented a client in a dispute with the Minnesota Department of Revenue. When the client terminated appellant’s representation and obtained new counsel in September 1997, the client owed appellant approximately $9,000 in legal fees and $740.86 in costs, including $445.80 for a deposition transcript. Because the client disputed the amount owed, appellant gave the client’s file to a nonlawyer “credit specialist” in his firm for the purpose of seeking payment from the client.

Appellant furnished the client with various documents and information from the file throughout 1998 even though the disputed legal fees and costs remained unpaid. In January 1999, the client sent appellant two facsimile requests for a deposition transcript that he needed to resolve his ongoing dispute with the Department of Revenue. Because the client still had neither paid his legal bill nor reimbursed appellant’s firm for the cost of the deposition transcript, appellant forwarded the Ghent’s requests to the credit specialist.

The credit specialist informed appellant that the law firm was not compelled to provide the transcript because the client had not reimbursed the firm for its cost. Appellant accepted this recommendation, and the credit specialist notified the client that the transcript would not be released until the firm was reimbursed for its $445 cost.

The client then filed a complaint with the Board, claiming that appellant wrongfully withheld the transcript. In a letter dated January 21, 1999, the Board notified appellant of the complaint and told him that his failure to provide the transcript was a possible violation of Board Opinions 11 and 13. Appellant received this notice on Friday, January 22, 1999. Appellant and the credit specialist met with internal legal counsel at appellant’s firm on the following Monday and sent the transcript to the client that afternoon.

After investigating the complaint, a panel of the district ethics committee recommended that appellant be privately admonished for violating Opinion 13 and Minn. R. Prof. Conduct 5.3(c). The Director agreed with the recommendation and issued the private admonition. Appellant then sought.de novo review of his admonition by a panel of the Board pursuant to Rules 8(d)(2)(iii) and 8(e), Rules on Lawyers Professional Responsibility (RLPR). On appeal, appellant acknowledged his responsibility for the credit specialist’s actions but argued that neither he nor his credit specialist violated Opinion 13 by withholding the transcript.

The Panel affirmed the admonition. Although only Opinion 13 and Minn. R. Prof. Conduct 5.3(c) formed the bases for the admonition, the Panel’s memorandum explained that Opinion 13 and Minn. R. Prof. Conduct 1.16(d), taken together, define deposition transcripts as client papers that must be returned to the client at the end of the representation regardless of whether the client paid for them. The Panel further concluded that appellant’s argument was “clearly inconsistent with the spirit of Rule 1.16(d) and Opinion 13, and the tenor found in other Opinions, most notably Opinions 11 and 14, which also relate to liens on client property.” Appellant appealed to this court pursuant to Rule 9(m), RLPR.

As a threshold matter, we must determine the force and effect of opinions of the Board and whether an attorney may be disciplined solely for violating such opinions. Although appellant was admonished for violating Minn. R. Prof. Conduct 5.3(c) as well as Opinion 13, Rule 5.3(c) merely sets forth the conditions under which a lawyer is responsible for a nonlaw-yer’s violation of the Minnesota Rules of Professional Conduct, and provides no independent substantive basis for disciplining an attorney. In addition, although the Board Panel and the parties both recognize that Opinion 13 was designed to interpret Rule 1.16(d), neither the Director nor the Board Panel cited Rule 1.16(d) as a foundation for appellant’s admonition. Opinion 13 therefore provides the only ground for the admonition. Because appellant was admonished solely for violating a Board opinion and Board opinions do not have the force and effect of our rules, we reverse the Board Panel’s affirmance of the admonition.

Rule 4(c), RLPR allows the Board to, “from time to time, issue opinions on questions of professional conduct.” Rule 4(c) is the only court rule that references the Board’s authority to issue opinions; thus, no rule explicitly explains the force and effect of Board opinions or whether an attorney may be disciplined solely for violating an opinion. Nonetheless, the Director asserts that his office has always maintained the authority to enforce Board opinions and rules of professional conduct by admonishing attorneys for violating either one.

The Director first relies on Board Opinion 1 as a source of this authority. According to Opinion 1:

It is the policy of the State Board of Professional Responsibility to issue, from time to time, advisory opinions as to the professional conduct of lawyers, whether as a result of a specific request or its own initiative, on matters deemed important by the Board.
The Board considers these opinions to be guidelines for the conduct of lawyers in the State of Minnesota. Failure to comply with the standards set forth in these opinions may subject the lawyer to discipline. See, e.g., In re Pearson, 352 N.W.2d 415 (Minn.1984).

Even though Opinion 1 notifies attorneys that failure to comply with Board opinions may result in discipline, the opinion only states the Board’s authority to issue advisory opinions and to set guidelines for attorney conduct on matters the Board deems important. It does not give attorneys definitive notice that Board opinions are binding. Furthermore, even if we interpreted the words “may,” “advisory,” and “guidelines” to mean “shall” and “binding,” Opinion 1 was, like all Board opinions, independently adopted by the Board without this court’s explicit approval. We are therefore unwilling to base the Director’s authority to discipline attorneys for opinion violations on the Board’s own opinion.

The Director also argues that this court has disciplined attorneys in a number of cases for at least one count of misconduct that violated only a Board opinion. In In re Pearson, this court held that an attorney’s refusal to honor a fee arbitration award violated Opinion 5 and multiple rules of professional conduct. 352 N.W.2d 415, 418 (Minn.1984). In In re Barta, an attorney was disciplined for, among other things, permitting nonlawyer employees to sign checks from client trust accounts in violation of Opinion 12. 461 N.W.2d 382, 383 (Minn.1990). Although Barta violated several rules of professional conduct relative to client trust accounts, no corresponding rule was cited for the Opinion 12 violations. See id. In In re Nyquist, this court noted that “[t]he Director alleges three separate counts of misconduct in his petition * * * which describe[] violations of one or more rules of professional conduct,” but the counts themselves did not expressly cite any rules of professional conduct. 454 N.W.2d 261, 262 (Minn.1990). One count did, however, cite a violation of a Board opinion. See id. In a fourth case, this court accepted a stipulation that an attorney’s failure to pay court reporters for transcripts violated former Opinion 7. See In re Cohen, 354 N.W.2d 429, 430 (Minn.1984).

The cases on which the Director relies are not persuasive authority for the proposition that this court has disciplined attorneys solely for violating Board opinions. First, this court has never held that an attorney is subject to discipline solely for violating a Board opinion. Second, each of the four cases cited involved multiple acts violating multiple rules of professional conduct, and the basis for discipline in Pearson, Nyquist, and Cohen was not in question because the attorneys did not dispute that they had committed misconduct. See Barta, 461 N.W.2d at 383-85; Nyquist, 454 N.W.2d at 262-63; Cohen, 354 N.W.2d at 430-31; Pearson, 352 N.W.2d at 417-19. In contrast, the instant case involves an attorney who did not stipulate to wrongdoing and faces discipline for a single alleged violation of an opinion. As a result, we have never been directly presented with the question now before us, and neither this court’s precedent nor Board Opinion 1 supports the claim that an attorney may be disciplined solely for an opinion violation.

We do, however, find some implicit guidance as to the force and effect of Board opinions in the definitions of “unprofessional conduct” and “professional misconduct” set forth in Minnesota’s Rules on Lawyers Professional Responsibility and Rules of Professional Conduct. Rules 8(d)(2) and 8(d)(3), RLPR allow an admonition or stipulated probation only where “the Director concludes that a lawyer’s conduct was unprofessional.” Furthermore, Rules 9(a) and 9(j)(l)(iii), RLPR together require the Director to “prepare charges of unprofessional conduct” where a Board Panel will hear the matter, and require the panel to “state the facts and conclusions constituting unprofessional conduct and issue an admonition” for isolated and nonserious conduct. Although the Rules on Lawyers Professional Responsibility do not define “unprofessional conduct,” Minn. R. Prof. Conduct 8.4 states in part that it is “professional misconduct” “for a lawyer to * * * violate or attempt to violate the Rules of Professional Conduct” (emphasis added). Rule 8.4 does not include violation of Board opinions in this definition. As used here, we see no difference between “professional misconduct” and “unprofessional conduct.” We therefore conclude that violation of a Board opinion does not constitute the “unprofessional conduct” that is a prerequisite for the issuance of an admonition.

Furthermore, Board opinions, unlike the Rules on Lawyers Professional Responsibility and Rules of Professional Conduct, are neither drafted nor approved by this court. Only this court has authority to adopt rules of professional conduct. See In re Integration of Bar of Minn., 216 Minn. 195, 199, 12 N.W.2d 515, 518 (1943). The court generally adopts its rules only after solicitation of comments, oral arguments, public hearings, and deliberation. In contrast, the Board drafts its opinions on any matter it deems important, but does not seek advice from this court and often does not seek public comment. See Opinion No. 1; cf. Alice Sherren Brommer, Ethics Board Listens to Bar, Opts Not to Issue Opinion, Minn. Law., May 29, 2000, at 1, 11 (stating that, according to the Board chair, the Board’s policy is to seek public input “when the regulatory effect of an opinion may have a disproportionate impact on a particular section of the bar.”). Because the important responsibility for the regulation and discipline of attorneys is exclusive to this court, we cannot delegate to the Board the authority to issue opinions that proscribe attorney conduct and therefore become the functional equivalent of rules of professional conduct.

Having established that the Board’s position on this matter exceeds the limit of its authority, we still must determine the force and effect of Board opinions. We note that the attorney general and several state boards and agencies issue advisory opinions on a variety of legal and public policy questions. See, e.g., Minn.Stat. §§ 8.05, 8.07 (2000) (stating that the attorney general may issue written opinions on questions of law and public policy); Minn. Stat. § 10A.02, subd. 12(a) (2000) (allowing Campaign Finance and Public Disclosure Board to issue advisory opinions regarding ethics in government); Minn.Stat. § 13.072, subd. 1(a) (2000) (permitting commissioner of the Department of Administration to issue written advisory opinions on questions about public access to government data and other related topics). Although statutory language authorizing the various types of advisory opinions is not identical, a common thread is that the opinions are not binding on courts. See, e.g., Billigmeier v. Hennepin County, 428 N.W.2d 79, 81-82 (Minn.1988) (stating that attorney general opinions are entitled to careful consideration, especially when long-standing, but are not binding on the courts); Minn.Stat. § 13.072, subd. 2 (stating that data practices opinions are entitled to deference, but are not binding). Board opinions should be accorded similar status.

We therefore recognize Board opinions as rule interpretations that guide attorneys’ professional conduct even though they are not binding on this court. Pursuant to Rule 4(c), RLPR, Board opinions that interpret pre-existing rules without either effectively creating new rules of professional conduct or exceeding the scope or plain meaning of the rules are entitled to careful consideration. However, an attorney will not be subject to discipline unless there is clear and convincing evidence of conduct that violates the Minnesota Rules of Professional Conduct.

We hold that the Panel erred in basing its admonition on an advisory opinion rather than a rule of professional conduct. There are no other grounds on which to affirm the admonition because Minn. R. Prof. Conduct 5.3(c) does not by itself proscribe any particular conduct and Minn. R. Prof. Conduct 1.16(d) was not an explicit basis for the admonition. For these reasons, the Panel’s decision to affirm the admonition is reversed.

Reversed.

      . Minnesota Rule of Professional Conduct 1.16(d) states in relevant part that "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as * * * surrendering papers and property to which the client is entitled.” Opinion 13 defines "client files, papers and property” to include unpaid deposition transcripts, but does not explicitly state that a client is unconditionally entitled to his or her files, papers, and property under Rule 1.16(d). Rather, Opinion 13 states that "[a] lawyer may not condition the return of client files, papers and property on payment of copying costs. Nor may the lawyer condition return of client files, papers or property upon payment of the lawyer’s fee.”

      . Minnesota Rule of Professional Conduct 5.3(c) states:
      A lawyer shall be responsible for conduct of [a nonlawyer employed by or associated with the lawyer] that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
      (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
      (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

      . The Board's own procedural manual also requires violation of a professional rule to warrant an admonition. In January 1989, the Board adopted a manual designed to promote consistency in panel procedures and explain panel procedures to the public and bar by summarizing how panels handle matters before them. See Lawyers Professional Responsibility Board Panel Manual at 1, 2 (2000). The manual states that ''[i]n order to issue * * * an admonition, the Panel must conclude that there * * * was a violation of the Rules of Professional Conduct.” Id. at 53. The manual does not indicate that violation of a Board opinion alone will also warrant such discipline.

      . In some limited and carefully delineated situations, the legislature has by statute expressly given attorney general opinions the force of law unless and until this court overrules them. See Northern States Power Co. v. Williams, 343 N.W.2d 627, 632 (Minn.1984). The few statutes regulating attorney general opinions in areas such as school and tax matters state, for example, that the opinions "shall be decisive until the question involved shall be decided otherwise by a court of competent jurisdiction,” or "shall have the force and effect of law unless and until overruled by a decision of * * * a court of competent jurisdiction.” Minn.Stat. §§ 8.07, 270.09 (2000). In contrast, this court has never issued a rule stating that a particular Board opinion should have the same force and effect as the Minnesota Rules of Professional Conduct.

      . Although we do not decide whether Opinion 13 is a proper interpretation of Rule 1.16(d), we have some concerns about whether Opinion 13 exceeds the scope of an advisory opinion. Opinion 13 is apparently intended to define the papers to which Rule 1.16(d) makes a client entitled upon termination of the representation. When the Code of Professional Responsibility was in effect, it required an attorney to give the client “all papers and property to which the client is entitled” when the representation ended. DR 2-110(A)(2), Minn.Code. Prof. Resp. (1985). The 1983 Director of the Office of Lawyers. Professional Responsibility, Michael Hoover, opined that DR 2-110(A)(2) did not entitle a client to deposition transcripts until he or she paid for them. See Michael J. Hoover, What is a Client Entitled to Receive Upon Conclusion of the Representation?, Bench & Bar of Minn., Nov. 1983, at 34. When this court replaced the Code with the Minnesota Rules of Professional Conduct in 1985, Rule 1.16(d) still required an attorney to "surrender!] papers and property to which the client is entitled.” Upon the issuance of Opinion 13, however, William Wernz, the 1989 Director, stated that Opinion 13 made clients entitled to all file contents, including unpaid deposition transcripts. See William J. Wernz, Opinion 13: Copying Costs ..., Bench & Bar of Minn., Aug. 1989, at 11. While not critical to our analysis set forth above, we note that these are opposing interpretations of Rule 1.16(d) based on essentially unchanged language.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Alberto O. MIERA Jr., an Attorney at Law of the State of Minnesota.
    No. C3-97-2009.
    Supreme Court of Minnesota.
    Jan. 25, 2001.
   ORDER

On November 2, 2000, this court suspended petitioner from the practice of law for a period of 30 days commencing November 12, 2000. Petitioner has filed an affidavit stating that he has fully complied with the terms of the suspension order and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that petitioner Alberto O. Miera, Jr., is reinstated to the practice of law in the State of Minnesota effective immediately. Petitioner shall be on unsupervised probation for two years from the date of this order subject to the terms and conditions set forth in this court’s November 2, 2000, order.

BY THE COURT

Alan C. Page Associate Justice


author: PAUL H. ANDERSON, Justice.

text:
    Derrick Ramon DUKES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C7-00-808.
    Supreme Court of Minnesota.
    Feb. 1, 2001.
   OPINION

PAUL H. ANDERSON, Justice.

In 1994, Derrick Dukes was convicted of first-degree murder, first-degree attempted murder, and attempted aggravated robbery and sentenced to life in prison plus 180 months. Dukes appealed and we affirmed his conviction. Dukes subsequently filed a petition for postconviction relief alleging denial of his Sixth Amendment Confrontation Clause rights, erroneous admission of an accomplice’s guilty plea, erroneous evidentiary rulings, ineffective assistance of trial and appellate counsel, improper sentencing, and discovery of falsified evidence. The postconviction court denied relief, finding that some claims were procedurally barred because they either were raised and decided or should have been raised on direct appeal and that Dukes’ other claims lacked merit. We affirm the postconviction court on all but two claims; however, we remand Dukes’ ineffective assistance of trial counsel claim and his newly-discovered falsified evidence claim for further proceedings.

A detailed statement of the facts can be found in State v. Dukes, 544 N.W.2d 13 (Minn.1996); therefore, we will set out only the facts relevant to this appeal. On the afternoon of April 1, 1994, Derrick Dukes, Steve Morrison, and Kevin Lewis drove to Saint Paul in Dukes’ car. Dukes was driving the car. In two separate incidents, Morrison and Lewis attempted to rob Bennie Chaney and Joe McKinney. During the attempted robberies, Morrison fired a gun at Chaney, who was not injured, and Morrison and Lewis each fired a gun at McKinney, who was killed by a gunshot wound to the back of his head. Dukes claims that he was unaware of the criminal intentions of Morrison and Lewis.

Eyewitnesses reported Dukes’ license plate number to the police and the police tracked him to Gatsby’s bar in Saint Paul, where he, Morrison, and Lewis worked as bouncers. The police arrested Dukes and impounded his car. Later that evening, the manager of Gatsby’s notified the police that Dukes’ jacket was still at the bar. The police then returned to Gatsby’s to retrieve the jacket and in the pocket they found a .32 caliber pistol, which was later determined to be the gun used to kill McKinney. There is some evidence that Morrison and Lewis were present at Gatsby’s when Dukes was arrested, but Morrison and Lewis were not arrested at that time. Dukes asserts that this sequence of events gave either Morrison or Lewis or both the opportunity to place the gun in his jacket.

Lewis confessed to his involvement in the crimes and pleaded guilty to first-degree attempted murder and second-degree intentional murder. The first-degree murder and aggravated robbery charges against Lewis were then dropped in exchange for his testimony against Dukes and Morrison. At his plea hearing, Lewis implicated both Dukes and Morrison in the murder, attempted murder, and robbery.

Dukes and Morrison were indicted on charges of murder in the first degree, attempted murder in the first degree, and attempted aggravated robbery in violation of Minn.Stat. §§ 609.185(3) (1994), 609.17 (2000), 609.245 (2000), 609.11 (1994), and 609.05 (2000). At the beginning of Dukes’ trial, Lewis withdrew his guilty plea and refused to testify. A redacted version of Lewis’ plea testimony was then admitted against Dukes. The jury found Dukes guilty of all charges and he was sentenced to a life term for first-degree murder plus 180 months for first-degree attempted murder, to be served consecutively. The court did not sentence Dukes for aggravated robbery because the robbery arose out of the same behavioral incident as the attempted murder. Lewis also was convicted of the same offenses, but was sentenced to life without parole for first-degree murder to be served concurrently with 230 months for attempted murder. Morrison was subsequently acquitted of all charges. At Morrison’s trial, the court denied the admission of much of Lewis’ plea testimony.

On his direct appeal, Dukes challenged four of the district court’s rulings: the admission of Lewis’ withdrawn guilty plea testimony; the refusal to instruct the jury on the lesser-included offense of second-degree murder; the refusal to sever the offenses into two trials; and the imposition of consecutive, rather than concurrent, sentences. Dukes, 544 N.W.2d at 15. We affirmed Dukes’ convictions in a unanimous opinion. Id.

Dukes subsequently filed a petition for postconviction relief. In his petition, Dukes raised six arguments: (1) denial of Sixth Amendment Confrontation Clause rights by the admission of Lewis’ plea testimony; (2) denial of his right to a fair trial by the admission of Lewis’ guilty plea; (3) denial of equal protection when the same court made inconsistent evidentiary determinations on the admissibility of Lewis’ testimony in Dukes’ and Morrison’s trials; (4) denial of effective assistance of trial and appellate counsel; (5) denial of equal protection and due process because the district court sentenced Lewis and Dukes differently for the same crimes; and (6) that he was entitled to a new trial due to the recent discovery of falsified trial evidence.

The postconviction court held an eviden-tiary hearing at which Dukes and an expert testified about Dukes’ ineffective assistance of counsel claims. Dukes testified that he did not give his consent to his counsel to admit guilt to any of the charged offenses, but neither Dukes nor the state elicited the testimony of Dukes’ trial counsel. After the evidentiary hearing, the postconviction court denied Dukes’ petition and he appealed. On appeal, Dukes raises essentially the same arguments, together with a claim that the post-conviction court abdicated its duties by adopting verbatim the state’s proposed findings and order.

I.

We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous. State v. Bradford, 618 N.W.2d 782, 794 (Minn.2000). The decisions of a postconviction court will not be disturbed unless the court abused its discretion. Perry v. State, 595 N.W.2d 197, 200 (Minn.1999). Each of Dukes’ claims of error in the postconviction court’s findings must be reviewed under this standard.

Dukes argues that the admission of Lewis’ plea testimony violated his Sixth Amendment right of confrontation and that the admission of Lewis’ guilty plea as the statement of an accomplice required a limiting instruction. The postconviction court held that these two claims were raised on direct appeal, so Dukes was not entitled to a second review. Once a party takes a direct appeal, any claim raised in that appeal will not be considered in a petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, 741 (1976). Not only are claims previously raised barred from consideration, but consideration of claims known, but not raised, at the time of the direct appeal is also barred. See id. The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal or (2) a claim that the petitioner did not “deliberately and inexcusably” fail to raise on direct appeal when fairness requires its consideration. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). In Dukes’ direct appeal, he raised the issue of whether the court improperly admitted Lewis’ plea testimony. We affirmed the use of Lewis’ plea testimony. State v. Dukes, 544 N.W.2d 13, 19 (Minn.1996) (distinguished by State v. Profit, 591 N.W.2d 451 (Minn.1999), cert. denied, 528 U.S. 862, 120 S.Ct. 153, 145 L.Ed.2d 130 (1999)). We specifically stated that the Lewis plea testimony “contained sufficient indicia of reliability to avoid violating the Confrontation Clause.” Id. Therefore, we conclude the postconviction court did not abuse its discretion in finding that this claim was procedurally barred.

The claim of the admission of Lewis’ plea as the statement of an accomplice is slightly different. Dukes relies on State v. Cermak for the proposition that evidence of a guilty plea of an accomplice may not be used as substantive evidence against the defendant and that, at a minimum, a limiting instruction should have been given to the jury. 365 N.W.2d 243, 247 (Minn.1985). We did not consider on direct appeal the use of Lewis’ plea as the statement of an accomplice because Dukes did not raise this claim at that time. However, the legal basis for this claim was available at the time of Dukes’ direct appeal and he has not provided any theory as to why fairness now dictates its consideration. Therefore, Dukes waived consideration of the use of Lewis’ plea as the statement of an accomplice. Knaffla, 243 N.W.2d at 741.

Likewise, if Dukes wanted to challenge the lack of a jury instruction, he should have raised this claim on direct appeal. Roby, 531 N.W.2d at 484. Here, Dukes has provided no reason why we should take exception to the general rule barring postconviction review. The record reflects that Dukes knew at the time of his direct appeal that Lewis’ plea was introduced against him and that no jury instruction was given. We conclude Dukes has waived consideration of the lack of a jury instruction because this claim was known, but not raised, on his direct appeal. Accordingly, we hold that the postconviction court did not abuse its discretion when it found these claims procedurally barred.

II.

Dukes next asserts that his Sixth Amendment rights were violated because his trial and appellate counsel were ineffective. Thp Sixth Amendment guarantees the right to assistance of counsel in order to ensure that a criminal defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Sixth Amendment has been interpreted to guarantee the criminal defendant “effective” assistance of counsel. Id. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 4, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

In order for an ineffective assistance claim to warrant a reversal of a conviction, the defendant must meet a two-pronged test evaluating deficiency and prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999). First, the defendant must show by a preponderance of the evidence that his counsel’s performance was so deficient that it fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. We have further explained this standard, concluding that “[i]n Minnesota, an attorney acts within the objective standard of reasonableness when he provides his client with ‘the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.’ ” Doppler, 590 N.W.2d at 633. There is a strong presumption that an attorney acted competently. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Under the second prong, the defendant must show by a preponderance of the evidence that his counsel’s error “so prejudiced the defendant at trial that a different outcome would have resulted but for the error.” Doppler, 590 N.W.2d at 633 (explaining Strickland, 466 U.S. at 687, 691, 104 S.Ct. 2052).

Dukes has raised four ineffective assistance of counsel claims, each of which will be dealt with separately.

Admission of Guilt

Dukes first argues that he received ineffective assistance of trial counsel because counsel admitted Dukes’ guilt without his permission. Dukes argues that in closing arguments counsel admitted Dukes’ guilt to the aggravated robbery charge. In support of his argument, Dukes cites to the following remarks by counsel about Count 1, the aggravated robbery charge.

Now we get to the weakest evidence in the case. It’s Dukes’ car, with two guys who pull up to a guy, and one of the men in the car say, “Give me your money”, or try to rob him, Bennie Chaney. Clearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney. Can you make the leap to him aiding and abetting an attempted intentional killing of Bennie Chaney during an attempted aggravated robbery? This gets complicated. Well, you may say there was an attempted aggravated robbery. And you may say there was an aiding and abetting. But what evidence do you have that Steve Morrison intended to kill him? * * * Count 1, both Lewis’ plea and Lewis’ explanation to McConnon put Derrick Dukes right into it right up to his hips. You know it. I know it. He’s in deep trouble on Count 1.

Dukes’ counsel went on to point out the evidence that would counter Dukes’ guilt on Count 1, but he qualified his explanation by stating that the evidence was “[p]erhaps not as persuasive, and I wouldn’t want to insult your intelligence on that issue, but there should be extreme doubt in your mind regarding the intent to kill of Chaney, and the intent to kill McKinney, perhaps not so much as Count 1.” It appears that Dukes’ counsel was arguing to the jury that even if they found Dukes guilty of aggravated robbery, they should not find him guilty of murder and attempted murder. However, when making this argument, counsel made a number of statements that could be interpreted as conceding Dukes’ guilt to the aggravated robbery charge.

The aggravated robbery charge and the attempted murder charge are based on the incident involving Chaney, while the murder charge is based on the incident involving McKinney. Both the murder and attempted murder charges are felony-murder charges under Minn.Stat. § 609.185(3). This section provides, “[wjhoever does any of the following is guilty of murder in the first degree * * * (3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit burglary, aggravated robbery * * *.” Minn.Stat. § 609.185(3). Therefore, a concession of guilt to aggravated robbery essentially concedes most of the elements necessary to convict Dukes of the murder and attempted murder charges. Dukes was indicted under the aiding and abetting statute, § 609.05, which makes an individual liable for the crimes committed by those he intentionally assists. “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” MinmStat. § 609.05, subd. 1. To obtain a conviction under this statute, the state did not need to prove that Dukes committed any of the underlying crimes. Instead, the state needed to prove that someone committed the underlying crimes and Dukes intentionally assisted the person committing the crime.

Finally, Dukes was charged under the attempt statute for the attack on Chaney. Minn.Stat. § 609.17. This charge requires only that the state prove that a “substantial step” toward the completed crime of first-degree murder was taken for Dukes to be found guilty. Minn.Stat. § 609.17. Therefore, if Dukes conceded guilt to the aggravated robbery charge, the only additional element the state needed to prove for 'the attempted murder was that one of Dukes’ accomplices took a substantial step toward intentionally killing Chaney — that Morrison acted intentionally when he fired at Chaney.

With respect to the charge of murdering McKinney, a concession of guilt to aggravated robbery undermines Dukes’ defense that although he was present, he was unaware of the intentions of Morrison and Lewis. Once Dukes conceded that he participated in the aggravated robbery, he would no longer be able to claim that he unknowingly assisted Morrison and Lewis by driving them to Saint Paul. Arguably the state would not have to prove any further involvement by Dukes, but only would have to show that either Morrison or Lewis intentionally shot at McKinney during the commission of the robbery, which element was proven by Lewis’ admission in his plea testimony. Therefore, if Dukes’ counsel conceded guilt to the aggravated robbery charge, this concession arguably relieved the state of proving any of the other elements of the attempted murder and murder charges that were specific to Dukes’ conduct.

When asserting an ineffective assistance of counsel claim, a defendant must generally prove prejudice under Strickland, but there are some Sixth Amendment right to counsel violations in which prejudice to the defendant will be presumed. Strickland, 466 U.S. at 692, 104 S.Ct. 2052. One such instance is when counsel admits a defendant’s guilt without the consent of the defendant. State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984). The decision to admit guilt is the defendant’s decision to make. State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991). In situations when counsel admits guilt without the consent of the defendant, the defendant is entitled to a new trial, regardless of whether he would have been convicted without the admission. Wiplinger, 343 N.W.2d at 861. In State v. Moore, the defendant’s counsel argued that the defendant should be found guilty of a lesser-included offense. 458 N.W.2d 90, 95-96 (Minn.1990). We concluded that although this concession was a valid trial strategy, it could not be done without the defendant’s consent. Id. at 96. In Wip-linger, we stated that it was improper for counsel to impliedly admit guilt through his cross-examination questions. 343 N.W.2d at 861. We then concluded that defense counsel was attempting to indirectly concede guilt so that his client could receive leniency in sentencing. Id.

Even if counsel admits guilt without the defendant’s permission, no error will be found if the defendant acquiesced in the strategy. State v. Provost, 490 N.W.2d 93, 97 (Minn.1992). In Provost, we concluded that the defendant acquiesced in the admission because his counsel used the same strategy throughout trial and the defendant never objected. Id. In Pilcher, we concluded that the defendant acquiesced in the admission because counsel used the same strategy from beginning to end of trial, the defendant admitted that he understood the tactic, but he did not object. 472 N.W.2d at 337. At the other end of the spectrum, the defendants in both Moore and Wiplinger objected to the admission made by counsel before their cases were given to the juries. Moore, 458 N.W.2d at 96; Wiplinger, 343 N.W.2d at 861.

Here, unlike in Pilcher and Provost, Dukes’ counsel did not use the same strategy throughout trial. In his opening statement, counsel stated that Dukes was an unknowing participant who was present only because he had agreed to drive Lewis and Morrison to someone’s house in Saint Paul. Midtrial, counsel confirmed to the court that the defense strategy was to argue that Dukes was present, but not aware of Lewis’ and Morrison’s intentions to commit the crimes. More specifically, when discussing the admissibility of Spriegl evidence, the court inquired, “my understanding of the defense’s case at this point is that Mr. Dukes was there, he was in the car when both incidents happened, that he was not aware of what Mr. Morrison and Mr. Lewis were going to do. He did not participate. He could not have known what their intentions were. If things change * * ⅜.” Counsel for Dukes then responded, stating “It is not going to change, Your Honor.” But in his closing argument, counsel argued to the jury only that they should not find that the murder and attempted murders were intentional. With respect to the aggravated robbery charge, counsel made statements that Dukes asserts were a concession of guilt. We note that Dukes did not object prior to the jury receiving the case as the defendant did in Wiplinger, but, unlike the defendants in Pilcher or Provost, Dukes did not listen to admissions of guilt throughout trial without objection.

The postconviction court did not address the merits of Dukes’ ineffective assistance of counsel claim, holding that Dukes had waived the claim because it was not raised in his direct appeal. As noted earlier, the general rule is that claims raised or known at the time of direct appeal will not be considered on a petition for postconviction relief. Knaffla, 243 N.W.2d at 741. However, we have recognized that claims that require a court to explore conversations between attorney and client are best handled on a petition for postconviction relief. Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997). In Robinson, we explained, “[i]n order to evaluate such a claim, a court needs to hear testimony from the defendant, his or her trial attorney, and any other witnesses who have knowledge of conversations between the client and the attorney.” Id. We juxtaposed claims requiring evidence of attorney-client communications with other ineffective assistance of counsel claims that could “be evaluated by an appellate court on direct appeal based on the briefs and trial court transcript and without any additional factfinding.” Id. We held that ineffective assistance of counsel claims that require additional factfinding are properly raised in a postconviction petition, even if they were known at the time of the defendant’s direct appeal. Id.

The claim of whether Dukes consented to his counsel’s admission of Dukes’ guilt to aggravated robbery is exactly the type of claim that needs additional factfinding before it can be resolved. Here, the post-conviction court did not weigh the merits of Dukes’ claim, but instead concluded that the claim was proeedurally barred. We conclude that the postconviction court needs to consider testimony from Dukes and his counsel in addition to reviewing the trial record before it can decide the merits of this claim. Therefore, we remand to the postconviction court for further proceedings regarding Dukes’ claim that he was denied effective assistance of counsel because his counsel conceded his guilt to aggravated robbery.

Lewis’plea testimony

Dukes also argues that his trial counsel was ineffective because counsel requested admission of the entire Lewis plea transcript. Dukes asserts that the admission of the most incriminating statements was the result of a request by his counsel. Dukes misstates the record. Dukes’ attorney objected to the admission of statements implicating Dukes. Once it became clear that the incriminating statements would be admitted, then, and only then, did Dukes’ counsel request admission of Lewis’ complete plea testimony so that the statements could be heard in context. Even if Dukes’ argument had merit, this claim was known, but not raised, on direct appeal. Robinson, 567 N.W.2d at 495. Unlike the admission of guilt claim, this claim could have been decided based on the record without an evidentiary hearing. There is no need for the court to inquire into the conversations between attorney and client to determine whether Dukes’ attorney was ineffective in his handling of the Lewis plea testimony. We conclude that the postconviction court correctly found that Dukes was proeedurally barred from raising the claim that his trial counsel was ineffective in his advocacy relating to the admission of the Lewis plea testimony.

Use of Williamson v. United States

Dukes’ third ineffective assistance of counsel claim relates to his appellate counsel. Dukes asserts that his appellate counsel did not discuss Williamson v. United States in her brief to us on direct appeal. 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Williamson is a leading Supreme Court case discussing the admissibility of statements under the “statement against interest” exception to the hearsay rule. Id. at 596, 114 S.Ct. 2431. At Dukes’ trial, the court considered Williamson and both defense counsel and the state argued at length about its meaning when the court was determining the admissibility of Lewis’ plea testimony. Despite Williamson’s importance, appellate counsel failed to mention Williamson in her brief, let alone discuss how it should apply to Lewis’ plea testimony.

The Supreme Court has indicated that courts may proceed directly to the second prong of the ineffective assistance analysis and first analyze whether the defendant was prejudiced. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Thus, in instances where there is no actual prejudice, courts can avoid evaluating the performance of counsel. Id. The Supreme Court also has encouraged courts to “strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” Id. Therefore, we will first consider whether Dukes was prejudiced by any potential error by counsel. To prove prejudice, Dukes must be able to show that absent his appellate counsel’s error, the outcome of his direct appeal would have been different. See id. Even though Dukes’ counsel did not discuss or cite to Williamson, the state did raise Williamson and we addressed the ease when deciding the direct appeal. Further, we fully analyzed Williamson and concluded that the admission of Lewis’ plea testimony conformed to the Supreme Court’s requirements in Williamson. Dukes, 544 N.W.2d at 18-19. Dukes cannot show that he was prejudiced by counsel’s omission. Therefore, we conclude that the postconviction court did not abuse its discretion in denying relief on this claim.

Failure to advise of ineffective assistance of trial counsel claims

Dukes’ final ineffective assistance of counsel claim is that his appellate counsel failed to advise him of any potential ineffective assistance of trial counsel claims and that such claims needed to be raised in his direct appeal. The postconviction court concluded that Dukes did not prove appellaté counsel’s performance fell below an objective standard of reasonableness and that Dukes did not prove prejudice. The court did not make any factual findings on these claims.

As with the previous claims, Dukes must show that he was prejudiced by any potential error made by his appellate counsel. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Dukes maintains that if we conclude his ineffective assistance of trial counsel claims are waived because they were not raised on direct appeal, then he was prejudiced by the failure of his appellate counsel to advise him of the proper procedure to raise the claims. The first ineffective assistance of trial counsel claim that the postconviction court found Dukes had waived is that his counsel was deficient because he admitted Dukes’ guilt without Dukes’ consent. Because we have decided to remand this claim, Dukes cannot show he was prejudiced by his appellate counsel’s failure to advise him on this claim. On remand, he will have the claim heard on the merits.

The second ineffective assistance of trial counsel claim that Dukes may have waived is that trial counsel did not prevent the admission of the incriminating parts of Lewis’ plea testimony. We have concluded that Dukes’ claim relating to his trial counsel’s handling of the Lewis plea testimony is barred because the claim was known, but not raised, on direct appeal. Knaffla, 243 N.W.2d at 741. However, the fact that the claim is now barred is not enough to show prejudice. Dukes also must show that absent his appellate counsel’s failure to advise him of the proper procedure for raising the claim, there was a reasonable probability that the outcome of his direct appeal would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Dukes cannot make such a showing.

We concluded on direct appeal that the plea testimony admitted against Dukes was proper under both the exception to the hearsay rule and the Confrontation Clause. Dukes, 544 N.W.2d at 19. It is highly unlikely that we would have reached that conclusion on direct appeal and in the same opinion concluded that his trial counsel’s representation fell below the “objective standard of reasonableness” in his attempts to limit the admission of the same statements. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. It is incongruous to conclude that counsel’s advocacy was unreasonably deficient because he failed to prevent the admission of evidence that we concluded was properly admitted. Therefore, regardless of whether his appellate counsel’s representation fell below an objective standard of reasonableness on this claim, Dukes cannot show that he was prejudiced by her failure to advise him of this claim. Accordingly, we conclude that the postconviction court did not abuse its discretion in denying relief on this ineffective assistance of appellate counsel claim.

III.

Dukes’ next argument is that the postconviction court abused its discretion when it failed to consider the merits of his equal protection and due process claim that his sentence is improper relative to the sentence imposed on Lewis. Dukes claims that disparate levels of culpability— blameworthiness — cannot explain the difference between the two sentences and therefore the sentence imposed on him violates his right to equal protection and due process. Dukes’ argument is essentially an equal protection argument.

Dukes was sentenced to consecutive terms for first-degree murder and first-degree attempted murder. However, after being found guilty on the same charges, Lewis was sentenced to concurrent terms for the same two convictions. State v. Lewis, 547 N.W.2d 360, 361 (Minn.1996). Dukes asserts that he is less blameworthy because the evidence presented at both trials established that Lewis was the one who actually shot McKinney, while Dukes drove the car used to commit the crime.

In Dukes’ direct appeal, we concluded that the district court did not abuse its discretion in imposing consecutive sentences on Dukes because his participation in the crime was not so passive that the imposition of consecutive sentences exaggerated his culpability. Dukes, 544 N.W.2d at 20. Because the issue was not raised, we did not consider whether the imposition of different sentences on fellow defendants by the same judge violated Dukes’ right to equal protection. Id. However, Lewis was sentenced prior to Dukes’ direct appeal. Claims known but not raised on direct appeal will not be considered on a subsequent petition for postcon-viction relief. Knaffla, 243 N.W.2d at 741. Accordingly, we hold that the postconviction court’s conclusion that Dukes was procedurally barred from raising this claim is not clearly erroneous.

IV.

Dukes’ next claim relates to newly-discovered falsified testimony by Lewis. As an attachment to his postconviction petition, Dukes submitted an affidavit by Kevin Lewis, n/k/a Hannabal Shaddai, in which Lewis stated that he lied in his plea testimony because he was trying to obtain the benefit of the plea. The postconviction court denied Dukes relief on this claim, concluding that the new evidence was “cumulative, impeaching, doubtful, and would probably not produce an acquittal * * The language used by the court suggests that the court was following the test for determining when to grant a new trial based on newly-discovered evidence. Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). This test requires that a defendant must prove four elements before he will be entitled to a new trial: (1) that the evidence was not known to the defendant or his counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result. Id.

Although the four-prong Rain-er test is the correct test for newly-discovered evidence, it is not the correct test when a court reviews an allegation that false testimony was given at trial. See Sutherlin v. State, 574 N.W.2d 428, 433 (Minn.1998). When it is alleged that false testimony was given at trial, the court must evaluate the claim under the three-prong test articulated by the 7th Circuit in Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Sutherlin, 574 N.W.2d. at 433. We have previously examined the differences between these two tests. In State v. Caldwell, we concluded that analysis of newly-discovered evidence in cases involving witness recantation should not be an analysis of the impact of the recantation, but should be an analysis of the effect that the absence of the false testimony would have had on the result in the original trial. 322 N.W.2d 574, 585 (Minn.1982). The test for newly-discovered falsified testimony provides that in order to grant a new trial: (1) the court must be ‘reasonably well satisfied’ that the [trial] testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial. Sutherlin, 574 N.W.2d at 433 (citing Caldwell, 322 N.W.2d at 584-85).

The postconviction court did not conduct an analysis or make any findings on any of the Larrison criteria, although there is evidence in the record that would support either the grant or the denial of relief. Lewis’ affidavit directly contradicts his plea testimony, which was substantially referenced by both the state and Dukes. However, there is other evidence in the record in support of Dukes’ participation. Although Dukes was not surprised in the sense that he did not know what Lewis had stated in his plea testimony, he was surprised that the plea testimony would be used in place of live testimony by Lewis, because Lewis withdrew his plea and refused to testify after Dukes’ trial had already begun. These factual disputes are the type that a postconviction court must resolve when evaluating a claim of newly-discovered falsified trail testimony. We conclude that there are factual disputes on this claim and that the postconviction court did not apply the correct test in evaluating the recanted testimony. Therefore, we remand this claim for an application of the three-prong Lanison test and for findings as to whether a new trial is warranted by the newly-discovered falsified testimony.

V.

The final question we address is Dukes’ argument that the postconviction court abdicated its duties as a “neutral arbitrator” when it “promptly” and verbatim adopted the proposed findings submitted by the state. He argues that this action by the postconviction court prejudiced him because none of the evidence he presented at the hearing, particularly the testimony of his expert witness, is reflected in the court’s findings. Dukes asserts that he was denied procedural due process because the court “relinquished [its] duty to conduct an independent review * * *."

Dukes relies on Anderson v. City of Bessemer City for the proposition that appellate courts should be “extremely leery and circumspect” of findings prepared by one party and accepted without change by the court. 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). In Anderson, the United States Supreme Court criticized the practice of courts adopting verbatim the findings prepared by the prevailing party, particularly if the findings “have taken the form of concluso-ry statements unsupported by citation to the record.” Id. As the Eighth Circuit explained in Bradley v. Maryland Casualty Co., the problem with verbatim adoption of one party’s findings is that it can make it more difficult to determine whether a court exercised its “own careful consideration of the evidence, of the witnesses, and of the entire case.” 382 F.2d 415, 423 (8th Circuit 1967). We agree that it is preferable for a court to independently develop its own findings. Therefore, when we review a court’s verbatim adoption of one party’s proposed findings, we will heed how the findings were prepared when we conduct a careful and searching review of the record. We will devote special care “not in the test that we apply to a particular finding of fact — individual findings will only be reversed if clearly erroneous — but in the volume of evidence we sift in judging the correctness of such findings * * *." Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1408 (D.C.Cir.1988) (emphasis removed). However, if after such a review we conclude that the findings are not clearly erroneous, the verbatim adoption, standing alone, will not be insufficient grounds for reversal.

Here, as a result of the postconviction court having adopted verbatim the state’s proposed findings, we have devoted special care in our review of the record. After such review, we conclude that with the exception of the findings on the two remanded claims, the findings are not clearly erroneous; therefore, we hold that the postconviction court’s verbatim adoption of the state’s proposed findings, standing alone, does not constitute grounds for reversal.

Affirmed in part and remanded in part.