author: LARSON, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Robert CLAUSS, Jr., Appellant.
    No. 05-1133.
    Supreme Court of Iowa.
    Feb. 17, 2006.
    Rehearing Denied March 29, 2006.
    Michael J. Carroll of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellant.
    Charles L. Harrington and Wendell Harms, Des Moines, for appellee.
   LARSON, Justice.

Robert Clauss, Jr., was cited by our attorney disciplinary board for violations of our code of professional ethics in two respects: his notarization of documents without a valid notary commission and attempting to simultaneously represent two clients with potentially adverse interests. The Grievance Commission of this court concluded that the violations were established by the board and recommended suspension of Clauss’s license for not less than ninety days. We affirm the findings of code violations, but increase the suspension to a minimum of six months.

I. The Expired Notary Public Commission.

The board charged that Clauss notarized nine documents between 1996 and 2000 while his notary commission was expired. The commission concluded that the board proved this charge and that this conduct amounted to misrepresentation under DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law). The commission concluded, however, that his conduct was not intentional, that real estate transactions were not involved, and that no party had been harmed. It recommended a public reprimand for this violation. We agree that the board proved this violation and consider that along with the conflict-of-interest violations in imposing discipline.

II. The Conflict-of-interest Issue.

The second count of the board’s complaint involved a tale of two clients— both of them represented by Clauss despite their conflicting interests. The first client was National Management Corporation, which retained Clauss to collect past-due rental payments from Clauss’s second client, Kay Clark.

Clauss called Clark to try to arrange payment of her debt to National. In the course of their conversation, Clark told Clauss she had problems of her own: she had breached a covenant not to compete with a previous employer and had been enjoined from running her competing professional recruitment business. As a result of the conversation, it was decided that Clauss could possibly represent Clark in attempting to get the injunction lifted. That way Clark could operate her business and generate income to apply toward National’s judgment against her.

Although the plan appeared to be beneficial to all involved, Clauss saw, with good reason, that problems could arise from this dual representation. He contacted a lawyer more experienced in ethics cases to inquire about whether to proceed and, if so, how to avoid ethical problems. That attorney advised Clauss that he could, consistently with our ethics rules, represent both Clark and National, provided he obtained waivers from both of them. Clauss wrote a letter to Clark concerning a possible waiver:

I am asking you to waive any conflict I may have in representing you in your covenant not to compete case and National Mgt. Corp. at the same time when you are a debtor of National Mgt. Corp. Ethically, I simply wanted to bring this matter to your attention by way of full disclosure. I spoke with Jerry Woods [acting on behalf of National] and he has no problems under these circumstances. I am sending Jerry an identical letter.

Clauss wrote a similar, but not identical, letter to National, stating:

Per our telephone conversation, I am asking that you waive any conflict I may have in representing you and Kay Clark ... at the same time who is a debtor of National Mgt. Corp. Ethically, I simply wanted to bring this matter to your attention by way of full disclosure. I spoke with Kay Clark and she has no problems under these circumstances. I am sending her an identical letter.

Both National and Clark agreed to waive any conflict, pursuant to Clauss’s suggestion.

Despite Clauss’s efforts to obtain valid waivers, they were insufficient under our rules. Our disciplinary rules are quite clear on a lawyer’s responsibilities under these circumstances:

A lawyer shall decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(D).

DR 5-105(B). A waiver of a conflict of interest is not valid unless the attorney has made a full disclosure of the possible consequences of dual representation.

In the situations covered by DR 5-105(B) ..., a lawyer may represent multiple clients if it is obvious that the lawyer can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of stick representation on the exercise of the lawyer’s independent professional judgment on behalf of each.

DR 5-105(D) (emphasis added).

This is a poster case for the introductory rule to DR 5, which is aimed at preventing a lawyer from accepting employment if it puts his own financial interests in conflict with his client’s. Entitled “Refusing Employment When the Interests of the Lawyer May Impair the Lawyer’s Independent Professional Judgment,” that rule provides:

Except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of the lawyer’s professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s oum financial, business, property, or personal interests.

DR 5-101(A) (emphasis added).

An unconflicted lawyer working on behalf of National would have discovered, perhaps through a debtor’s examination, where Clark had deposits or accounts receivable that could be subjected to payment on National’s judgment. -Clauss did not do that. In fact, as of the time of the commission hearing, he had not remitted any funds to National from Clark, despite the fact he had collected substantial sums for Clark by pursuing claims for her against other parties and had received attorney fees for himself on those collections.

This respondent was required to do more than simply warn his clients that there were potential conflicts and ask them to waive those conflicts. His actions involved conflicts between his clients, prohibited by DR 5-105(B), (C), and (D), and he undertook representation of both clients without making “full disclosure of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment on behalf of each,” as required by DR 5-105(D). We have said,

[i]n a dual representation situation, it is not enough for a lawyer simply to inform the client that the lawyer is representing both sides. Full disclosure under DR 5-105(D) requires the
attorney not only to inform the prospective client of the attorney’s relationship with the [other client], but also to explain in detail the pitfalls that may arise in the course of the transaction which would make it desirable that the [prospective client] obtain independent counsel.

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 728 (Iowa 1999) (quoting In re Dolan, 76 N.J. 1, 384 A.2d 1076, 1080 (1978)).

We conclude the respondent violated DR 5-101(A) (prohibiting acceptance of employment if the lawyer’s professional judgment will reasonably be affected by the lawyer’s own financial, property, or personal interests); DR 5-105(C) (providing that a lawyer shall not continue multiple employment if his exercise of professional judgment is likely to be adversely affected by the representation of another client); and DR 5-105(D) (requiring full disclosure of possible effects of multiple representation).

III. Discipline.

We note, as an aggravating factor in determining the discipline to be imposed, that National was harmed financially because apparently it did not ever get any of the money that Clauss ultimately collected for Clark in other cases in which Clauss represented her. Presumably, National did not obtain another attorney to act for it because Clauss had preempted that responsibility. See Wagner, 599 N.W.2d at 730 (harm to client considered as aggravating factor); Comm. on Prof'l Ethics & Conduct v. Baker, 269 N.W.2d 463, 466 (Iowa 1978) (same).

We also consider prior discipline. Wagner, 599 N.W.2d at 730; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 455 (Iowa 1995). In 1989 Clauss was suspended for six months for income tax violations, making false statements to our client security commission, failing to properly monitor a client’s trust account, and commingling his clients’ money with his office account. Comm. on Prof'l Ethics & Conduct v. Clauss, 445 N.W.2d 758 (Iowa 1989). In 1991 he was reprimanded for obtaining a default judgment, based on a material misrepresentation of fact, against a collection debtor who had already paid the account. Comm. on Prof'l Ethics & Conduct v. Clauss, 468 N.W.2d 213 (Iowa 1991). In 1995 he was suspended for a minimum of three years for falsely signing his wife’s name to a return of service, falsely notarizing it, and for withdrawing a client’s trust funds to pay his own fees, even though the fee was disputed. In that case, we expressed this concern about the future of the respondent’s law practice:

If and when Clauss applies for readmission he should be prepared to convince us he will pose no threat to the public or to the reputation of the legal profession.

Clauss, 530 N.W.2d at 455.

We are, of course, concerned with the maintenance of some degree of consistency in our disciplinary cases as far as sanctions are concerned. See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Howe, 706 N.W.2d 360, 381 (Iowa 2005). Both Howe and Iowa Supreme Court Attorney Disciplinary Board v. Zenor, 707 N.W.2d 176 (Iowa 2005), involved attorneys who were simultaneously acting in their prosecuting capacity and also representing criminal defendants. We imposed minimum suspensions of four months in those cases. In Committee on Professional Ethics & Conduct v. Carty, 515 N.W.2d 32 (Iowa 1994), a lawyer was engaged in a series of transactions with his client without securing independent counsel. We held that a public reprimand was sufficient. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Fay, 619 N.W.2d 321 (Iowa 2000), an attorney entered into a business transaction with his client without advising the client of a possible conflict of interest or the need for independent counsel. We suspended his license for thirty days.

An attorney who had conflicts by borrowing money from ex-clients without advising them of the need for independent counsel and alternatively representing both a husband and wife in a dissolution action was suspended for a period of three months. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 603 N.W.2d 772, 778 (Iowa 1999). In Iowa Supreme Court Board of Professional Ethics & Conduct v. Bisbee, 601 N.W.2d 88, 91 (Iowa 1999), a lawyer who took advantage of an elderly client by entering into a business agreement with her and collecting an exorbitant share of the profits from their joint venture was suspended for a minimum of three years. In Wagner, 599 N.W.2d at 721, the lawyer, who represented both the buyer and seller of property, failed to divulge to the buyer that the attorney had an interest in the transaction and failed to insist that the buyer obtain independent counsel. We suspended his license for a minimum of three months. A lawyer who violated conflict-of-interest rules and who had been disciplined before was suspended for a minimum of two months in Iowa Supreme Court Board of Professional Ethics & Conduct v. Winkel, 599 N.W.2d 456 (Iowa 1999). In a more egregious case, Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stamp, 590 N.W.2d 496 (Iowa 1999), an attorney representing an estate purchased estate assets for considerably less than their value without obtaining court approval and concealed the matter in the estate’s final report. We suspended his license for a minimum of one year. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Isaacson, 565 N.W.2d 315 (Iowa 1997), the lawyer misstated material facts regarding a client’s purchase of property owned by the lawyer and failed to divulge substantial conflicts of interest. We suspended his license for six months.

IY. Disposition.

We give respectful consideration to the recommendation of the Grievance Commission, but are not bound by it. Bisbee, 601 N.W.2d at 90. We affirm the commission’s findings that the respondent violated DR 1-102(A)(6), by acting as a notary without a valid notary commission, and DR 5-101(A), by accepting employment when the exercise of professional judgment may be affected by his own financial interests. In addition, he violated DR 5-105(C) by failing to avoid multiple-client employment when the exercise of professional judgment may be affected and DR 5-105(D) by failing to make full disclosure of possible effects of multiple-client representation.

Based on these violations, exacerbated by the fact that the respondent benefited financially from his representation of a second client at the expense of the first, and together with his extensive history of disciplinary infractions, we conclude that the ninety-day suspension recommended by the commission is insufficient. Accordingly, we suspend Robert Clauss’s license to practice law in this state indefinitely with no possibility of reinstatement for a period of six months from the date of the filing of this opinion. This suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12(3). Upon application for reinstatement, Clauss shall have the burden to establish that he hafe not practiced during the period of suspension, that he meets all requirements of Iowa Court Rule 35.13, and that he has paid the costs of this proceeding as taxed to him.

LICENSE SUSPENDED.

      . It is not clear who initiated the idea. The board alleged that Clauss had initiated it and charged him with solicitation in violation of DR 2-103(A) and DR 2-104(A). We agree with the commission that the board did not prove its solicitation charge because the record was unclear about who proposed this arrangement.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    KINGSWAY CATHEDRAL, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION and City of Des Moines, Iowa, Appellants.
    No. 03-2066.
    Supreme Court of Iowa.
    March 10, 2006.
    Rehearing Denied March 30, 2006.

      Mark Godwin, Deputy City Attorney, Des Moines, for appellant City of Des Moines.
    Stephen D. Hardy and Lisa R. Perdue of Grefe & Sidney, P.L.C., Des Moines, for appellant Iowa Department of Transportation.
    Theodore F. Sporer and Glenna K. Frank of Sporer & Ilic, P.C., Des Moines, for appellee.
   LAVORATO, Chief Justice.

The defendants, the Iowa Department of Transportation (IDOT) and the City of Des Moines (City), sought interlocutory appeal from a district court ruling denying their motions to dismiss a recasted petition filed by the plaintiff, Kingsway Cathedral (Kingsway), for inverse condemnation. Kingsway alleged that work on two construction projects over which the IDOT and the City have jurisdiction and control produced vibrations that caused damage to Kingsway’s church building resulting in a “taking” under the Federal and Iowa Constitutions. We granted the appeal. Because the recasted petition on its face demonstrates that there was no taking, we reverse the district court ruling and remand for an order granting the defendants’ motions to dismiss the petition.

I. Scope of Review.

Iowa Rule of Civil Procedure 1.421(l)(f) governs motions to dismiss for failure to state a claim upon which any relief may be granted. Our review of a district court ruling on a motion to dismiss is for correction of errors at law. Stotts v. Eveleth, 688 N.W.2d 803, 807 (Iowa 2004). A motion to dismiss a petition should only be granted if there is no state of facts conceivable under which a plaintiff might show a right of recovery. Smith v. Smith, 513 N.W.2d 728, 730 (Iowa 1994). A motion to dismiss admits the well-pleaded facts in the petition, but not the conclusions. Bervid v. Iowa State Tax Comm’n, 247 Iowa 1333, 1339, 78 N.W.2d 812, 816 (1956).

II.Facts and Conclusion.

On April 28, 2003, Kingsway filed a petition naming the IDOT and the City as defendants. Following the district court’s ruling granting Kingsway’s motion to amend, Kingsway filed a recasted petition.

The recasted petition alleges the following facts that we take as true for the purposes of determining whether the district court correctly overruled the motions to dismiss. Kingsway owns a church building and property located at 900 18th Street in Des Moines, Iowa. The IDOT is an agency of the State of Iowa. The City is a municipal corporation in Polk County, Iowa. The IDOT and the State of Iowa, by and through the IDOT, have jurisdiction and control over the 1-235 project in the vicinity of Kingsway. The City and the State of Iowa, by and through the City, have jurisdiction and control over the Martin Luther King Jr. Parkway project in the vicinity of Kingsway.

Work on the two projects produced vibrations that have caused substantial damage to Kingsway’s building. Because of the damage, the City notified Kingsway that the condition of the building was unsafe, creating a hazard that threatened the health and safety of the public. The City further notified Kingsway to vacate immediately all portions of the building and that the building was to remain unoccupied unless repaired.

The fair market value of the building before the damage was $580,000. To restore the building would cost at least $3.9 million, and it is not economically feasible to restore it. Kingsway has permanently lost the substantial use and enjoyment of the building. The IDOT and the City have refused Kingsway’s demand to either repair and restore the building or condemn the property.

The recasted petition concludes that the actions of the IDOT and the City constitute a taking under the Fifth Amendment to the Federal Constitution and article I, section 18 of the Iowa Constitution, a conclusion that is not admitted by the filing of the motions to dismiss. The recasted petition requests the court to enter an order requiring the defendants to institute proceedings to condemn the church building.

III. Issue.

The issue on appeal is whether the district court correctly overruled the defendants’ motions to dismiss. That question turns on whether there is any conceivable state of facts under which Kingsway might show a right of recovery. Ordinarily, under our notice pleading rule, only a rare case will not survive a motion to dismiss for failure to state a claim upon which any relief can be granted. Smith, 513 N.W.2d at 730. However, here, Kingsway has alleged enough facts to enable us to conclude that Kingsway has failed to state such a claim.

IV. Analysis.

The defendants contend, as they did in the district court, that construction damages like Kingsway has suffered do not rise to the level of constitutional takings. In support of this contention, the defendants argue construction projects are temporary in nature, while the intrusions that constitute takings are permanent in nature.

The Fifth Amendment to the Federal Constitution provides in relevant part that “[n]o person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, "without just compensation.” The Fourteenth Amendment to the Federal Constitution makes the Fifth Amendment applicable to the states and their political subdivisions. Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 233-34, 17 S.Ct. 581, 583, 41 L.Ed. 979, 983-84 (1897).

Article I, section 18 of the Iowa Constitution similarly provides in relevant part that “[p]rivate property shall not be taken for public use without just compensation.” Because of this similarity regarding takings, we consider federal cases interpreting the federal provision persuasive in our interpretation of the state provision. Harms v. City of Sibley, 702 N.W.2d 91, 97 (Iowa 2005). Such cases however are not binding on us regarding our interpretation of the state provision. Id. Kingsway has not asserted a basis to distinguish the protections afforded by the Iowa Constitution from those afforded by the Federal Constitution under the facts of this case. Nor have we found such a basis. For those reasons, our analysis applies equally to both the state and federal grounds. See id.

Kingsway’s takings claim is grounded on inverse condemnation. Inverse condemnation is “ ‘a generic description applicable to all actions in which a property owner, in the absence of a formal condemnation proceeding, seeks to recover from a governmental entity for the appropriation of his property interest.’ ” Id. (citation omitted).

We employ the following framework of analysis in determining whether a taking has occurred:

(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998).

We noted in Bormann that “[p]roperty for just compensation purposes means ‘the group of rights inhering in the citizens’ relation to the physical thing, as the right to possess, use and dispose of it.’ ” Id. at 315 (citation omitted). We further noted that state law determines what constitutes a property right. Id. The recasted petition alleges that Kingsway is the owner of the building that was damaged. The petition therefore alleges a property interest for just compensation purposes.

The critical question, however, is whether that property interest has been taken. A taking, we said in Bormann, “ ‘does not necessarily mean the appropriation of the fee. It may be anything which substantially deprives one of the use and enjoyment of his property or a portion thereof.’ ” Id. at 321 (citation omitted).

In Bormann, we recognized the difference between a regulatory taking and one in which the government entity acting in an enterprise capacity has appropriated private property:

“The term ‘regulatory taking’ refers to situations in which the government exercises its ‘police powers’ to restrict the use of land or other forms of property. This is often accomplished through implementation of land use planning, zoning and building codes. In contrast, a governmental entity exercises its eminent domain power or acts in an ‘enterprise capacity, where it takes unto itself private resources and uses them for the common good.’ Where the private landowner will not sell the land, the government entity seeks condemnation of the property and pays a fair purchase price to be determined in court. On the other hand, an inverse condemnation claim is sought by a landowner when the government fails to seek a condemnation action in court.”

Id. at 317 (citation omitted). Here, the recasted petition alleges the defendants were acting in an enterprise capacity when the damage to the building occurred from the vibrations of the two projects.

In either case — regulatory taking or enterprise capacity taking — the government must compensate the owner “without any further inquiry into additional factors” when the action of the governmental entity results in a permanent physical invasion of the property. Id. at 316. Loretto v. Teleprompter Manhattan CATV Corp. is an example of a regulatory taking. 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). In that case, a state law provided that a landlord must permit a cable television company to install its cable facilities upon the landlord’s property. The Court held that a permanent physical invasion authorized by state law constituted a taking. Id. at 421, 432 n. 9, 102 S.Ct. at 3168, 3174 n. 9, .73 L.Ed.2d at 873, 880 n. 9. United States v. Causby is an example of an enterprise capacity taking. 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). In Caus-by, the federal government permitted its airplanes to fly so low over the plaintiffs’ land, which adjoined a municipal airport leased by the federal government, as to deprive the plaintiffs of the use and enjoyment of their land for the purpose of raising chickens. The Court held that such action constituted a taking. Id. at 265-67, 66 S.Ct. at 1068, 90 L.Ed. at 1212-13.

“If some physical invasion is in fact demonstrated, there is no de minimis rule.” Fitzgarrald v. City of Iowa City, 492 N.W.2d 659, 664 (Iowa 1992); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798, 812 (1992) (“[N]o matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation [for physical invasion].”). What must be compensated is diminishment of the value of the land. Fitzgarrald, 492 N.W.2d at 663. Such takings are referred to as “per se” takings. Bormann, 584 N.W.2d at 316.

Whether a taking has occurred is determined by the character of the invasion and not by the amount of damages. See, e.g., Schaller v. State, 537 N.W.2d 738, 743 (Iowa 1995). For example, some acts done by government agencies that could be deemed nuisances and which affected but did not destroy or prevent all use of the affected property have been held to be takings under the Fifth Amendment to the Federal Constitution. The continuance or permanency of the government action sufficient to support the finding of a creation of a servitude has been the determining factor for a finding of a taking. See Causby, 328 U.S. at 265-67, 66 S.Ct. at 1068, 90 L.Ed. at 1212-13 (holding that repeated flights of military planes so low as to destroy use of land for chicken farm constituted a servitude on the land requiring just compensation, and diminution in value of property was the basis for compensation); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329-30, 43 S.Ct. 135, 136-37, 67 L.Ed. 287, 289-90 (1922) (holding that firing, and imminent threat of firing, of navy coastal guns over plaintiffs property imposed a servitude upon the plaintiffs land and thus amounted to a taking of some interest for public use). A servitude has been defined as “a right to the limited use of a piece of land or other immovable property without the possession of it.” Black’s Law Dictionary 1400 (8th ed.2004). Servitudes include, among other things, easements. Id.; see Causby, 328 U.S. at 265-67, 66 S.Ct. at 1068, 90 L.Ed. at 1212-13; Portsmouth Harbor, 260 U.S. at 329-30, 43 S.Ct. at 136-37, 67 L.Ed. at 289-90.

Absence of such continuance or permanency leaves the property owner with nothing but an action in tort. Sullivan v. Com., 335 Mass. 619, 142 N.E.2d 347, 352-53 (1957) (holding that damages to petitioners’ house resulting from rock blasting in construction of aqueduct for metropolitan water district provided no eminent domain remedy for taking ánd was nothing more than a tort). In rejecting the inverse condemnation claim, the court in Sullivan said:

Even though here the risk of injury by blasting to some property was necessary to the improvement and the possibility of injury to some property located on the rock stratum might have been foreseen, there was no deliberate act in respect of the petitioners’ property, and no basis for inferring an actual intention to withdraw the property from their use for any length of time. There was no act with known result from which, and the repetition of like acts thereafter, an implication of such intention could arise. There is no basis for a claim under [the state constitutional takings provision] that a servitude has been imposed on the petitioners’ land.

Id. at 353 (emphasis added) (citation omitted) (footnote omitted); accord Ohio ex rel. Fejes v. City of Akron, 5 Ohio St.2d 47, 213 N.E.2d 353, 354 (1966) (trial court sustained a demurrer (motion to dismiss) to a petition in which the plaintiff alleged that earth tremors caused by use of heavy equipment by a municipality in nearby construction work damaged her residence and thereby constituted a taking; upholding ruling on appeal, court noted that it was apparent from the petition that “there was no direct or immediate physical contact with relator’s property in the construction work, but that vibrations of temporary duration originating off the property incident to the construction were responsible for the claimed damages”); Arvo Van Alstyne, Inverse Condemnation: Unintended Physical Damage, 20 Hastings L.J. 431, 478 (1969) (“In jurisdictions that recognize inverse liability only for a ‘taking,’ structural damage as the result of vibrations from heavy equipment (e.g., a pile driver) or from shock waves caused by blasting, ordinarily is held to be non-compensable.” (Footnotes omitted.)); cf. Kelley v. Story County Sheriff, 611 N.W.2d 475, 477, 482 (Iowa 2000) (holding that damage to private property that occurred when officers made forcible entry in order to execute an arrest warrant was in the nature of a tort rather than a permanent deprivation of property or creation of a permanent property interest and for that reason was not a taking).

A better understanding of the necessity for permanency of the invasion is found in this discussion of “consequential damages” in Nichols on Eminent Domain:

“Consequential damage” has become a term of art in addressing an issue rather than a term of accurate definition. Whatever occurs to a remainder after a taking that factually would not have been likely to occur but for the taking, is logically in consequence of the taking. Such a factual linkage does not always provide the right to a damage claim against the taking authority. The term “consequential damage” has justly been described as ambiguous, irrelevant, equivocal and a deterrent to any hope of a clear understanding of the issue at hand. It is often used as an exclusionary term, particularly in cases where flood follows a “taking” upon completion of the project. A clearer understanding of the term is found by analyzing these “flooding” cases.
When the flooding results from a sovereign project, the flooding has been held compensable if there is “a permanent condition of continual overflow” or a permanent “liability to intermittent but inevitably recurring overflows.” This is true even if substantial enjoyment remains in the owner, in which case there is a “partial instead of a total divesting.”
If the invasion does not reach this level and is “but a temporary invasion of the land” and merely “the consequential result of or incidental to” the sovereign activities, the invasion is recoverable only upon principles of tort, not as a Fifth Amendment taking. This is the only view where “consequential damages are generally not compensable.”

4A Julius L. Sackman, Nichols on Eminent Domain § 14.01[2], at 14-4 to 14-7 (rev.3d ed.2005) (footnotes omitted); accord Dugan v. Rank, 372 U.S. 609, 625-26, 83 S.Ct. 999, 1009, 10 L.Ed.2d 15, 26-27 (1963) (characterizing government’s action of subordinating rights of riparian owners to beneficial use of waters of a river to uses of a water reclamation project, whenever the government saw fit, as an imposition of such a servitude as constituting a taking); Phelps v. Bd. of Supervisors, 211 N.W.2d 274, 276 (Iowa 1973) (holding that the character of the invasion at issue was the increased flooding to plaintiffs land caused by a road construction project which flooding was certain and inevitable to occur).

Here, the recasted petition alleges that the damage to the building was caused by vibrations from the demolition and construction activities. We agree with the defendants that the only reasonable inference from this allegation is that the damage was done because of vibrations that were of a temporary nature. Obviously, the construction projects have a beginning and an end. Unlike the invasion from continual overflow in the flooding cases, the vibrations will not reoccur once the construction activities have ceased. Therefore, no servitude results from these activities. In these circumstances, any damages resulting from the construction activities is nothing more than “ ‘the consequential result of or incidental' to’ ” the defendants’ activities. See 4A Sackman, Nichols on Eminent Domain § 14.01[2], at 14-6 (citation omitted). Therefore, Kingsway’s recovery, if any, must be based on tort and not on a constitutional taking.

V. Disposition.

The recasted petition on its face demonstrates that Kingsway’s private property interest has not been taken for public use. Therefore, we conclude there is no state of facts conceivable under which Kingsway might show a right of recovery based on a takings claim. Rather, Kingsway’s recovery, if any, must be based on tort. Consequently, the district court erred in overruling the defendants’ motions to dismiss. We therefore reverse and remand the case to the district court for an order granting the defendants’ motions to dismiss.

REVERSED AND CASE REMANDED.


author: HANSON, Justice. ANDERSON, G. Barry, Justice

text:
    Daniel DEEGAN, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-24.
    Supreme Court of Minnesota.
    March 23, 2006.

      Mark D. Nyvold, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, John S. Garry, Assistant Attorney General, St. Paul, MN, Alan L. Mitchell, St. Louis County Attorney, Duluth, MN, for respondent.
   OPINION

HANSON, Justice.

We review the question of whether MinmStat. § 590.05 (2004) violates the United States or Minnesota Constitutions because it provides that a petitioner who pleaded guilty, received no greater than the presumptive sentence, and did not pursue a direct appeal is not entitled to representation by the state public defender in a posteonvietion petition if the state public defender reviews the case and determines that there is no basis to appeal the conviction or sentence. Specifically, our review focuses on the 2003 amendment to section 590.05, which added the following:

If, however, the person pled guilty and received a presumptive sentence or a downward departure in sentence, and the state public defender reviewed the person’s case and determined that there was no basis for an appeal of the conviction or of the sentence, then the state public defender may decline to represent the person in a postconviction remedy case.

Act of May 28, 2003, ch. 2, art. 3, § 2, 2003 Minn. Laws 1st Spec. Sess. 1400, 1401.

Appellant Daniel Deegan argues that the Minnesota Constitution ensures the right to one appellate review of a criminal conviction — through either a direct appeal or postconviction petition — and that the right to counsel is also constitutionally required because counsel is necessary for the review to be meaningful. In the alternative, Deegan argues that section 590.05 as amended violates the Equal Protection Clause of the United States Constitution because there is no rational basis to provide counsel to indigent postconviction petitioners who either went to trial, or pleaded guilty and received upward departures, but deny counsel to indigent postconviction petitioners who pleaded guilty and received the presumptive sentence or less. The district court and court of appeals held, on the basis of Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), that there is no constitutional right to counsel for a postconviction proceeding. We reverse.

On March 13, 1999, Daniel Deegan, K.B. and S.M. were drinking together at the Red Lion Bar. F.A.W. was also at the Red Lion Bar that night. F.A.W. left the bar with S.M., Deegan and K.B. “to go get high.” F.A.W.’s body was discovered the following day at a construction site. Dee-gan, K.B. and S.M. were each indicted for first-degree premeditated murder and first-degree murder while committing kidnapping. K.B. went to trial and was convicted on both counts. Deegan entered guilty pleas to second-degree murder and kidnapping just before jury selection was to begin in his own trial.

In exchange for his guilty pleas to second-degree murder and kidnapping, Dee-gan received a 360-month sentence' for second-degree murder — a downward dura-tional departure from the presumptive sentence of 386 months. The court did not impose a sentence for kidnapping-because the offense was part of the same behaviorJ al incident. Deegan was represented by two public -defenders through his guilty pleas on November 28, 2000, and at sentencing.

Deegan did not pursue a direct appeal. In October 2003, Deegan requested the assistance of the state public defender in filing a petition for postconviction relief. The state public defender informed Dee-gan that counsel would not, |je appointed. Acting pro se, Deegan filed a petition for postconviction relief along with, a motion for appointment of counsel. .

After receiving a letter from the -state public defender, explaining-that the state public defender was declining to. represent Deegan because Deegan pleaded guilty and received less than the presumptive sentence, the district court denied Dee-gan’s motion for appointment of counsel on the basis of Finley, 481 U.S. at 557, 107 S.Ct. 1990 (holding that there is- no Fourteenth Amendment right to,counsel for a state postconviction action) and section 590.05. The court also denied Deegan’s petition for postconviction relief.

Deegan appealed the denial of his petition to the court of appeals. Deegan filed a motion for the court of-appeals to accept his papers “as is,” which the court denied. The order denying Deegan’s motion to accept nonconforming papers noted that because Deegan had. not pursued a direct appeal or previous postconviction petition, “[Deegan’s] eligibility for representation by the State Public Defender’s Office is unclear.” A copy of this order was sent to the state public defender. The state public defender wrote to the court of appeals, providing the same explanation given to the district court: under section 590.05, as amended, Deegan was not entitled to representation by the state public defender. Deegan then filed with the court of appeals a motion for appointment of counsel,- a second motion to accept nonconforming appeal papers, and a memorandum explaining his inability to submit papers conforming to the rules of criminal and appellate procedure. The court of appeals granted Deegan’s second motion for acceptance of nonconforming appeal papers, but denied his motion for appointed counsel on the same basis as the district court.

Deegan filed a petition for review of the court of appeals’ denial of his motion for appointment of counsel. We granted Deegan’s ‘ petition to review the constitutionality of the 2003 amendment to section 590.05. We review the constitutionality of a statute de novo. State v. Benniefield, 678 N.W.2d 42, 45 (Minn.2004). A person claiming a statute is unconstitutional bears the burden of showing that the statute is unconstitutional beyond a reasonable doubt. Id. Unless a fundamental right or suspect class is involved, statutes 'are presumed to be constitutional. Id.

I.

A. Minnesota’s Postconviction Remedy

We begin our analysis with an overview of the postconviction remedy. The substance of Minnesota’s postconviction remedy has been fashioned over the last four decades by judicial decisions that express our understanding of the United States Supreme Court’s decision in Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), and interpret the Minnesota Postconviction Remedy Act.

In the 1960’s, when federal courts were experiencing dramatic increases in habeas filings, the Supreme Court granted certio-rari to decide whether the Fourteenth Amendment requires states to provide state prisoners with "some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.” Case v. Nebraska, 381 U.S. at 337, 85 S.Ct. 1486; Christopher Flood, Closing the Circle: Case v. Nebraska and the Future of Habeas Reform, 27 N.Y.U. Rev. L. & Soc. Change 633, 634 (2001-02). But the Court never issued a decision on the issue for which it granted certiorari because, in the intervening months, the Nebraska legislature enacted a statute providing a state postconviction remedy. Case, 381 U.S. at 337, 85 S.Ct. 1486. The Court remanded the matter to the Nebraska Supreme Court for reconsideration in light of the newly enacted statute. Id. Because of the procedural posture of that decision, and because subsequent Supreme' Court decisions have not revisited the issue directly, it is not clear whether the federal constitution requires states to provide state prisoners with some judicial review processes for claimed violations of the federal constitution.

Lacking clear direction from the Supreme Court, the Minnesota legislature nevertheless enacted the Postconviction Remedy Act in 1967. As originally enacted, this statute provided: .

Except at a time when direct appellate relief is available, a person convicted of a 'crime, who claims that the conviction was obtained, or that the-sentence or other disposition made violated his rights under the constitution or laws of the United States or of the state, may commence a proceeding to secure relief therefrom * * ⅜.

Minn.Stat. § 590.01, subd. 1 (1967). Nine years later, we noted that the Postconviction Remedy Act was enacted “as a legislative response to the United States Supreme Court’s pronouncement in Case v. Nebraska.” State v. Knaffla, 309 Minn. 246, 251, 243 N.W.2d 737, 740 (1976). We said that the “implication” of Case v. Nebraska was that “a convicted defendant is entitled to at least one state corrective process to determine a claim' of violation of Federal constitutional rights.” Id. We also observed that the Postconviction Remedy Act provides broader grounds for relief than is required by Case.v. Nebraska because the Postconviction Remedy Act provides relief from state law violations in addition to federal and state constitutional violations. Id. We concluded that “[t]he salient feature of Minn. St. c. 590 in coordination with Case v. Nebraska, supra, is that a convicted defendant is entitled to at least, one right of review by an appellate or postconviction court.” Id. at 251, 243 N.W.2d 737, 243 N.W.2d at 740-41.

In Knaffla, we considered the scope of postconviction relief available ⅛ Minnesota- in two circumstances: where the petitioner did pursue a direct appeal and where -the petitioner did not pursue a direct appeal. Where a postconviction petitioner has first taken a direct appeal, we held that all claims raised — or known but not raised — are barred from further consideration in a postconviction action. Id. at 252, 243 N.W.2d at 741.

Two exceptions to the Knaffla rule allow for postconviction relief despite the fact that the claims could have been raised on direct appeal: (1) where a novel legal issue is presented; or (2) where the interests of fairness and justice require relief. To justify a hearing on a novel legal issue, the claim must be so novel that its legal basis was not reasonably available to counsel at the time the direct appeal was taken.

Powers v. State, 688 N.W.2d 559, 561 (Minn.2004) (internal citations omitted). “Claims decided in the interests of justice require that the claims have substantive merit,” id., and “that the defendant did not deliberately and inexcusably fail to raise the issue on direct appeal,” Fox v. State, 474 N.W.2d 821, 825 (Minn.1991). Because these exceptions are quite narrow, the grounds for postconviction relief are substantially limited once a direct appeal has been taken.

But where a postconviction petitioner did not take a direct appeal from the conviction, but seeks review of a claimed violation of the United States or Minnesota Constitutions or of state law for the first time by a postconviction petition (hereinafter referred to as a “first review by postconviction proceeding”), we held that a postconviction petitioner is entitled to raise nearly the same breadth of claims that could have been brought in a direct appeal, so long as the postconviction claims are in compliance with the procedural requirements of the Postconviction Remedy Act. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. There are no specific limitations in the Postconviction Remedy Act for first review by postconviction proceeding. See Minn.Stat. § 590.01-04 (2004). Thus, a first review by postconviction proceeding is substantially similar in scope to a direct appeal.

Postconviction remedies in other jurisdictions appear to be more limited. In contrast to Minnesota’s broad right of review in a first review by postconviction proceeding, in federal postconviction proceedings (section 2255 actions) and in many states’ postconviction proceedings, the failure to pursue a direct appeal bars all claims that were known and should have been raised on direct appeal, absent cause for failing to raise the issue previously and resulting prejudice. E.g., United States v. Pipitone, 67 F.3d 34, 38-39 (2d Cir.1995) (holding that failure to take a direct appeal bars claims in a section 2255 proceeding that could have been raised on direct appeal); Worthen v. Meachum, 842 F.2d 1179, 1181 (10th Cir.1988) (“Under Oklahoma law, post-conviction relief is not available to a defendant who has not perfected a timely direct appeal unless he articulates special circumstances showing ‘sufficient reason’ for his failure.”), overruled on other grounds by Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Coplen v. State, 298 Ark. 272, 766 S.W.2d 612, 613 (1989) (holding that when petitioner did not pursue a timely direct appeal, no relief was available because the postconviction remedy is “not meant to be a substitute for direct appeal and is not designed for review of a mere error that occurred at trial”); Thomas v. State, 316 N.W.2d 182, 184 (Iowa App.1981) (“[F]ailure to appeal bars relief in a postconviction action as to factual and legal contentions which were known at the time of the original trial court proceeding but which petitioner inexcusably failed to pursue on appeal.”); State v. Osborne, 329 Mont. 95, 124 P.3d 1085, 1088 (2005) (holding that when petitioner did not pursue direct appeal, postconviction claim was barred because “[t]he plain language of these provisions. establishes that the courts lack any authority to consider * * * or decide * * * legal and factual issues that could reasonably have been raised on direct appeal if an adequate remedy of appeal was available to the petitioner”); State v. Perry, 268 Neb. 179, 681 N.W.2d 729, 735 (2004) (holding that when petitioner’s direct appeal was dismissed for failure to meet a procedural deadline, “[a] motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal”).

Deegan suggests that Minnesota’s provision of broad review in a first review by postconviction proceeding derives from the right to at least one review of a criminal conviction that is guaranteed by the Minnesota Constitution. Whatever the federal constitutional requirements may be for postconviction remedies, they do not appear to be as broad as the grounds for relief available in Minnesota for a first review by postconviction proceeding. We infer this conclusion from the longstanding lack of such grounds for relief in federal postconviction proceedings and similar proceedings in other states, and the Supreme Court’s pronouncement in Finley that “[sjtates have no obligation to provide [postconviction] relief.” Finley, 481 U.S. at 557, 107 S.Ct. 1990.

It is true that state constitutions are “a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 491 (1977). As a general rule we favor uniformity with the federal constitution, but our state constitution may in some narrow circumstances provide greater protection for individual rights based on “language, concerns, and traditions unique to Minnesota.” Kahn v. Griffin, 701 N.W.2d 815, 825 (Minn.2005) (citing State v. Harris, 590 N.W.2d 90, 97-98 (Minn.1999)). Because a first review by postcon-viction proceeding in Minnesota is substantially similar to a direct appeal, and appears to differ from first review by post-conviction proceedings in other jurisdictions, it may well be that the right to one review — through either direct appeal or postconviction proceeding — is a “tradition unique to Minnesota.” And because traditions unique to Minnesota may reflect a guarantee in the Minnesota Constitution, the right to one review of a criminal conviction may arguably be grounded in the Minnesota Constitution. But, because the resolution of that question is not necessary to our ultimate holding in this case, we defer until another day the question of whether the right to one review of a criminal conviction, which is recognized in Knaffla, is derived from the Minnesota Constitution.

B. The Right to Counsel under the United States Constitution

Deegan argues that Minnesota’s first review by postconviction proceeding is more akin to a direct appeal as of right than to other postconviction proceedings. This argument suggests that a Minnesota petitioner, proceeding on a first review by postconviction proceeding, may be entitled, under the United States Constitution, to the same right to counsel afforded to defendants on direct appeal as of right.

Deegan acknowledges that there is no right to counsel in “collateral review” proceedings under the Equal Protection or Due Process Clauses of the United States Constitution. Finley, 481 U.S. at 555-57, 107 S.Ct. 1990. In Finley, the Court held that the right to counsel in state proceedings “extends to the first appeal of right, and no further.” Id. at 555, 107 S.Ct. 1990. The Court’s rationale for guaranteeing the right to counsel in a first appeal as of right but not in a “collateral review,” postconviction petition is that (1) postconviction proceedings are even more removed from trial than direct discretionary review, for which the right to counsel is not guaranteed, (2) postconviction proceedings are considered civil in nature, (3) states are not required to provide postcon-viction remedies, and (4) when states do provide this remedy, the Due Process Clause does not require the provision of counsel as well. Finley, 481 U.S. at 556-57, 107 S.Ct. 1990. Deegan contends that in Minnesota, a first review by postconviction proceeding is not a “collateral review,” as described in Finley, but is similar to a direct appeal and should be governed by the decision of the Supreme Court in Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In Douglas, the Court reasoned that absent a constitutional right to counsel in an appeal as of right, indigent appellants would not have the same access to counsel as appellants with the financial means to retain private counsel. Douglas, 372 U.S. at 355, 83 S.Ct. 814. The Douglas Court concluded that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Id. at 357, 83 S.Ct. 814 (emphasis added).

Although Douglas was expressly limited to a direct appeal, id. at 356, 83 S.Ct. 814 (“We are dealing only with the first appeal, granted as a matter of right to rich and poor alike * * *.”), it may well be that the Supreme Court would extend the rationale of Douglas to hold that Minnesota’s unique procedure for first review by post-conviction proceeding qualifies as a “direct appeal as of right” under Finley and Douglas. This conclusion finds some support in the Supreme Court’s recent decision in Halbert v. Michigan, — U.S. -, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). In Halbert, the Court held that the Due Process and Equal Protection Clauses of the United States Constitution require appointment of counsel for indigent defendants seeking leave to obtain first tier, error-correcting review in the Michigan Court of Appeals, even though the first-tier appeal is discretionary, not as of right. Id. at 2592. Under Knajfla, Deegan’s right to review is greater than the defendant’s right in Halbert because it is as of right, not discretionary.

Ultimately, we are hesitant to predict how the Supreme Court would view Minnesota’s postconviction remedy in the context of a first review by postconviction proceeding. Accordingly, we defer the question of whether the United States Constitution guarantees the right to counsel for an indigent defendant’s first review by postconviction proceeding in Minnesota.

C. The Right to Counsel under the Minnesota Constitution

We next address whether the Minnesota Constitution guarantees the right to counsel for a first review by postconviction proceeding, irrespective of whether this right to counsel is protected by the United States Constitution. Although we have not determined whether the right to one review in a first review by postconviction proceeding is guaranteed by the Minnesota Constitution, this is not a prerequisite to a constitutional guarantee of the right to counsel in that proceeding. As we have seen in Douglas and Halbert, the right to counsel on appeal may be constitutionally guaranteed even where the right to appellate review is not. See Douglas, 372 U.S. at 355-56, 83 S.Ct. 814; Halbert, 125 S.Ct. at 2586-87. Having determined by examination of Minnesota statutes and case law that a criminal defendant in Minnesota has the right to one review of his or her conviction, the question before us is whether the Minnesota Constitution requires the assistance of counsel to make that one review meaningful.

Until 2003, a defendant seeking a first review by postconviction proceeding was provided the assistance of counsel by section 590.05. And the right to counsel in a direct appeal as of right has always been grounded in the United States Constitution. See Douglas, 372 U.S. at 357-58, 83 S.Ct. 814 (citing U.S. Const. amend. XIV). Thus, we have not previously needed to answer the question of whether the right to counsel for one review is required by our state constitution.

Section 590.05 was originally enacted in 1967 as part of the Postconviction Remedy Act. For over two decades, this statute provided representation by the state public defender for all postconviction petitioners who were financially unable to obtain counsel. Minn.Stat. § 590.05 (1990). A 1991 amendment excluded the appointment of counsel to petitioners who had already had a direct appeal. Act of June 4, 1991, ch. 345, art. 3, § 1, 1991 Minn. Laws 2575, 2684. The 2003 amendment, the one at issue in this case, further restricted representation by the state public defender of a subset of postconviction petitioners who had not pursued a direct appeal: those who had pleaded guilty and received no greater than the presumptive sentence. Act of May 28, 2003, ch. 2, art. 3, § 2, 2003 Minn. Laws 1st Spec. Sess. 1400, 1401. The 1991 amendment continued the assurance that a defendant would have assistance of counsel for at least one review. The 2003 amendment eliminates that assurance for a subset of postconviction petitioners.

We have previously demonstrated a willingness to interpret the right to counsel under the Minnesota Constitution independently of the United States Constitution. In Friedman v. Commissioner of Public Safety we held that “because of Minnesota’s lengthy and historic recognition of human rights, human dignity, and the procedural protection for the rights of the criminally accused,” implied consent procedures are a critical stage of criminal proceedings to which the right to counsel attaches. 473 N.W.2d 828, 836 (Minn.1991) (citing Minn. Const. art. I, § ,6 (“The accused shall enjoy the right * * * to have the assistance of counsel in his defense.”)). And in State v. Risk we held that because Minnesota has a “long tradition of assuring the right to counsel,” the Minnesota Constitution requires police to cease interrogating an accused who has made an ambiguous or equivocal statement that could be construed as invoking the right to counsel. 598 N.W.2d 642, 648-49 (Minn.1999). Although these cases address the right to counsel for defendants during the investigative stages of a criminal proceeding, which are not at issue here, they demonstrate our view, under the Minnesota Constitution, that a defendant’s access to the other protections afforded in criminal proceedings cannot be meaningful without the assistance of counsel.

We are also persuaded by the rationale underlying the Supreme Court’s Douglas decision that the quality of a defendant’s one review as of right of a criminal conviction should not hinge on whether a person can pay for the assistance of counsel. Douglas, 372 U.S. at 355-56, 83 S.Ct. 814. As the Court noted, “[t]he indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.” Douglas, 372 U.S. at 358, 83 S.Ct. 814. Although we recognize the salutary purpose of the 2003 amendment — to direct the limited public defender resources to the cases that will likely present the greatest need — we nevertheless conclude that the 2003 amendment deprives some defendants of meaningful access to one review of a criminal conviction, in violation of their right to the assistance of counsel under Article I, section 6 of the Minnesota Constitution. We hold that a defendant’s right to the assistance of counsel under Article I, section 6 of the Minnesota Constitution extends to one review of a criminal conviction, whether by direct appeal or a first review by postconviction proceeding. We therefore hold that section 590.05, as amended by Act of May 28, 2003, ch. 2, art. 3, § 2, 2003 Minn. Laws 1st Spec. Sess. 1400, 1401, is unconstitutional.

II.

Having determined that section 590.05 as amended in 2003 is unconstitutional, we turn to the question of the appropriate remedy. When a court determines that a law is unconstitutional, it must invalidate only as much of the law as is necessary to eliminate the unconstitutionality. State v. Shattuck, 704 N.W.2d 131, 143 (Minn.2005) (citing Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 836 (Minn.2002)). Minnesota Statutes § 645.20 (2004) provides that a court may sever any unconstitutional provision from a statute and leave the remaining language intact, unless the legislature has specified that the provision is not severable or it is apparent that the legislature would not have enacted the remaining provisions without those that are to be severed. See also Chapman, 651 N.W.2d at 835-36.

We have previously held that if an amendment is unconstitutional, only the amendment is severed and any previous version found constitutional remains in full force and effect. Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 349 (Minn.2005). There is no constitutional challenge to section 590.05 as it existed before the 2003 amendment. We hold that the 2003 amendment to Minn.Stat. § 590.05 (2004) is severed and the version that existed immediately prior to the 2003 amendment is revived.

Accordingly, we reverse the decision of the court of appeals denying Deegan’s motion for the appointment of counsel and remand to the district court for appointment of counsel and postconviction proceedings consistent with this opinion.

Reversed and remanded.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, G. Barry, Justice

The majority strikes down Minn.Stat. § 590.05 (2004) on the basis that Article I, § 6 of the Minnesota Constitution guarantees a convicted defendant appointed counsel on a petition for postconviction relief when that petition is the first review of the conviction. Because I do not read the Minnesota Constitution to include this right, I respectfully dissent.

As the majority notes, when interpreting our state constitution, we generally favor uniformity with the federal constitution and do not independently apply the Minnesota Constitution absent “language, concerns, and traditions unique to Minnesota.” Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn.2005). Because the “tradition” of providing counsel on postconviction review — and indeed of providing “a right to one review” when a petitioner has not taken a direct appeal — is of statutory origin, the right to counsel on a postconviction petition does not meet this stringent standard.

As acknowledged by the majority, Minnesota’s history of providing appointed counsel to postconviction petitioners who have not pursued a direct appeal has always been based on statute. In addition, while the majority states that “the right to one review of a criminal conviction may arguably be grounded in the Minnesota Constitution,” there is strong evidence that the right to appeal is itself statutory. This court recently stated that “a convicted defendant does not have a constitutional right to appeal under either the United States Constitution or Minnesota Constitution.” Spann v. State, 704 N.W.2d 486, 491 (Minn.2005). While “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court,” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), the majority acknowledges that Knaffla, while it interpreted the Postconviction Remedy Act, did not reference the Minnesota Constitution.

Looking beyond these statutory guarantees, there is little additional basis for the conclusion that the Minnesota Constitution guarantees the right the majority finds today. The majority reads our prior decisions in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn.1991), and State v. Risk, 598 N.W.2d 642 (Minn.1999), as support for the view that “a defendant’s access to the other protections afforded in criminal proceedings cannot be meaningful without the assistance of counsel.” While this may be true as a matter of policy, I do not agree that these two decisions, which the majority acknowledges dealt with investigative stages of criminal proceedings, create a “tradition” warranting reading the Minnesota Constitution to guarantee the right to counsel in a postconviction proceeding.

Finally, the majority finds support for its holding in the reasoning of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). As the majority notes, however, Douglas dealt with appointment of counsel on direct appeal — a factor that appears to have been significant in the Supreme Court’s decision. See id. at 356-57, 83 S.Ct. 814 (“But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”) (emphasis added). The case before this court today does not involve a situation in which a defendant is forced to undertake his only appeal as of right without the benefit of counsel. Dee-gan had the opportunity to appeal his conviction and sentence with the benefit of counsel via a direct appeal, an opportunity he chose not to pursue.

As a matter of policy, there is more than a little room to criticize the legislative decision to give the public defender discretion to decline representation to defendants in the procedural posture found here. The number of defendants affected by this amendment is small, the budgetary import insignificant, and the importance of counsel in an effective appeal is obvious.

But neither traditions based in statute nor poor policy choices by the legislature are sufficient to make an entitlement to counsel constitutionally mandated. Accordingly, I respectfully dissent.

      . A more comprehensive statement of the facts underlying this case can be found in our opinion affirming K.B.'s conviction, State v. Budreau, 641 N.W.2d 919 (Minn.2002).

      . S.M. also pleaded guilty to second-degree ' murder and kidnapping.

        . Deegan explained that he was confined to disciplinary segregation where he had no access to a typewriter or word processor, that the prison commissary did not sell 8-½. x 11 inch paper, and that he could not afford to buy enough paper to submit the required number of copies. - .

      . It is difficult to determine with certainty the breadth of the issues that may be raised in a first review by postconviction proceeding in other states. First review by postconviction proceedings are far less common than post-conviction proceedings that follow a direct appeal. Moreover, many opinions holding that issues are barred for failure to raise them in a direct appeal do not specify whether a direct appeal was pursued. See, e.g., Simmons v. State, 264 S.C. 417, 215 S.E.2d 883, 885 (1975) ("Errors in a petitioner’s trial which could have been reviewed on appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings.”) (internal citations omitted).

      . We note, as counter arguments, that we have previously held that the right to pursue a direct appeal of a criminal conviction is not required by the Minnesota Constitution. Spann v. State, 704 N.W.2d 486, 491 (Minn.2005). Moreover, our decision in Knaffla referenced the Postconviction Remedy Act and our understanding of the requirements of
        Case v. Nebraska, but not the Minnesota Constitution.

      . We do not reach Deegan's argument that Minn.Stat. § 590.05 violates the federal or state Equal Protection Clauses because there is no rational basis to provide counsel to indigent postconviction petitioners who either went to trial, or pleaded guilty and received upward departures, but deny counsel to indigent postconviction petitioners who pleaded guilty and received the presumptive sentence or less.


author: ANDERSON, RUSSELL A., Chief Justice.

text:
    Eugene Francis CUYPERS, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-644.
    Supreme Court of Minnesota.
    March 23, 2006.

      Eugene Francis Cuypers, pro se.
    Mike Hatch, Atty. Gen., Mark S. Rubin, Asst. County Atty., for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

In 1990, appellant Eugene Francis Cuy-pers was found guilty by a St. Louis County jury of first-degree premeditated murder and burglary. He was sentenced to a mandatory term of life imprisonment for the murder conviction and a concurrent term of 108 months for the burglary. On appeal from the judgment, we affirmed. State v. Cuypers, 481 N.W.2d 553 (Minn.1992). Thereafter, on February 2, 2005, and proceeding pro se, Cuypers brought a petition for postconviction relief. The postconviction court denied the petition without an evidentiary hearing. We affirm.

On Sunday, November 26, 1989, Cuy-pers, then age 20, and two friends drove to a nearby residence in rural St. Louis County to obtain some guns. They understood the homeowners were gone for the weekend but unexpectedly encountered Larry Sullivan who had been asked to watch over the property. While his two friends stayed with Sullivan, Cuypers entered the home and took two guns. Cuy-pers and his friends then drove Sullivan about 5 miles down Fox Farm Road and into the woods, yelling at him to scare him. About 3 weeks before this, Cuypers learned that Sullivan had sexually molested Cuypers’ girlfriend 5 years earlier when she was 11 or 12 years old. After stopping the car, Cuypers and one of his friends walked Sullivan into the woods; Cuypers continued screaming at Sullivan about what he had done to Cuypers’ girlfriend; and when Sullivan turned to walk away, Cuypers pulled up his rifle and fired, striking Sullivan in the back of the head and killing him. Cuypers later confessed to the shooting, providing a more complete account after visiting with his priest. He said that he was only trying to get Sullivan’s admission to the abuse of his girlfriend; but when Sullivan turned to walk away, he got “madder and madder” and fired his gun.

Cuypers was indicted on charges of first-degree premeditated murder; first-degree felony murder; kidnapping; and first-degree burglary. The jury found him guilty as charged. In affirming on appeal, we held that the admission of letters seized by jailers pursuant to valid jail regulations did not violate Cuypers’ state and federal constitutional rights against unreasonable searches and seizures and that there was no error in the denial of a heat-of-passion manslaughter jury instruction. Cuypers, 481 N.W.2d at 557.

Cuypers brought this petition for post-conviction relief in February 2005, seeking a new trial on grounds of judicial bias, vindictive prosecution, ineffective assistance of counsel, and newly discovered evidence; challenging the validity of the indictment; and, in the alternative, requesting a reduction of the murder conviction to manslaughter and sentencing relief. Following a review of the record, including the trial transcripts, trial court minute sheets, pleadings, documents on file and this court’s decision on appeal from the judgment, the postconviction court denied the petition, concluding that Cuypers had not alleged any facts requiring an evidentiary hearing and that his claims failed on the merits.

I.

A person convicted of a crime may seek postconviction relief “to vacate and set aside the judgment * * * or grant a new trial or correct the sentence or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2004) (amended 2005). As a general rule, once a direct appeal has been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). A petition for postconviction relief may be denied in the absence of an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2004); Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990) (stating that an evidentia-ry “hearing is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.”).

On review of postconviction decisions, we have an “ ‘obligation to extend a broad review of both questions of law and fact * ⅜ *.’ ” Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (quoting State ex rel. Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)), We review legal issues de novo. Butala, 664 N.W.2d at 338. Our review of factual matters, however, is limited to “whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id.

II.

Judicial Bias, Vindictive Prosecution, Ineffective Assistance of Counsel and Newly Discovered Evidence. Cuy-pers argues that he is entitled to a new trial based on judicial bias, as evidenced by a review of the trial proceedings. Criminal defendants have a constitutional right to be tried before a fair and impartial judge. Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Our independent review of the record satisfies us that Cuypers had a fair trial in a fair tribunal before an impartial judge. The record reflects that the trial court carefully considered the various motions and objections made by both sides, ruling in Cuypers’ favor on numerous occasions and taking the initiative to place limitations on certain evidence to avert any potential for undue prejudice.

Cuypers argues that he was subject to vindictive prosecution. “To punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ ” United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). Typically, a presumption of vindictiveness arises when a defendant’s exercise of a procedural right causes a “complete retrial after he had been once tried and convicted.” Goodwin, 457 U.S. at 376, 102 S.Ct. 2485. In the area of pretrial prosecutorial decisions, however, there is generally no presumption of vindictiveness. Id. at 384, 102 S.Ct. 2485. As the postcon-viction court concluded, the allegations of vindictive prosecution in this case lack merit.

Cuypers asserts ineffective assistance of trial counsel resulting from conflicts of interest. A Sixth Amendment violation can be demonstrated by showing that an actual conflict of interest adversely affected counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim.” Id. at 350, 100 S.Ct. 1708. Cuypers alleges conflicts with trial counsel over trial strategy, but disagreements over trial strategy generally will not establish the requisite predicate for the claim. State v. Brocks, 587 N.W.2d 37, 43 (Minn.1998) (citing State v. Berry, 309 N.W.2d 777, 785 (Minn.1981)). Cuypers alleges conflicts with appellate counsel in seeking certiorari review in the United States Supreme Court; but the constitutional right to court-appointed counsel for indigent defendants on their appeal of right does not extend to discretionary appeals in the state’s highest court or in petitioning for review in the Supreme Court. Halbert v. Michigan, — U.S. -, 125 S.Ct. 2582, 2587, 162 L.Ed.2d 552 (2005) (citing Ross v. Moffitt, 417 U.S. 600, 610-12, 615-18, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)). Cuypers was not denied effective assistance of counsel at trial or on appeal.

Cuypers requests a new trial based upon newly discovered evidence. To gain a new trial based on newly discovered evidence, the petitioner must establish (1) that the newly discovered evidence was not within petitioner’s or his counsel’s knowledge before trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that it is not cumulative, impeaching, or doubtful evidence; and (4) that the evidence would probably produce a different or more favorable result. Wieland v. State, 457 N.W.2d 712, 714 (Minn.1990) (citing Berry v. State, 364 N.W.2d 795, 796 (Minn.1985)). As the postconviction court noted, Cuypers provided no substantive basis for this claim.

Invalid Indictment. Cuypers challenges the validity of the indictment, asserting the indictment lacked specificity and was multiplicitous. An indictment “must fairly apprise the defendant of the charge brought against him, * * ⅜ [so] that he might properly prepare . his defense, and so that he is protected from subsequent prosecution for the same offense.” State v. Mullen, 577 N.W.2d 505, 510 n. 6 (Minn.1998) (quoting State v. Wurdemann, 265 Minn. 92, 94, 120 N.W.2d 317, 318 (1963) (alterations in original)). When conduct constitutes more than one offense, “each such offense may be charged in the same indictment or complaint in a separate count.” Minn. R.Crim. P. 17.03, subd. 1. The indictment in this case conformed to the specificity requirements and properly charged each offense.

Diminished Capacity. Cuypers argues he was denied the right to present a diminished capacity defense for purposes of reducing the first-degree murder offense to manslaughter. The trial court granted defense counsel’s motion for competency and mental illness evaluations. The results of the medical evaluations, done on December 8, 1989 and on March 20, 1990, were that Cuypers was competent to proceed to trial and that at the time of the commission of the offenses for which he had been indicted, he was not laboring under such a defect of reason caused by mental illness as not to know the nature of the acts constituting the offenses or that said acts were wrong. Given the medical evaluations, the postcon-viction court concluded that Cuypers had no grounds upon which to interpose a diminished capacity defense.

Diminished capacity permits the fact finder to consider a sane defendant’s mental abnormality when determining the degree of criminal liability and is separate and distinct from the defense of insanity. Peter Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum. L.Rev. 827, 828 (1977). It is considered a partial defense because it does not completely exonerate the defendant but merely reduces the degree or nature of the crime. Id.; 2 Wayne R. LaFave, Substantive Criminal Law § 9.2(a) (2d ed.2003). Minnesota has not approved the diminished capacity doctrine. State v. Schreiber, 558 N.W.2d 474, 480 (Minn.1997).

Sentencing Relief. Cuypers seeks relief under the rule of Blakely v. Washington, requiring that “ ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury, and proved beyond a reasonable doubt.’ ” 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The “presumptive sentence prescribed by the Minnesota Sentencing Guidelines is ‘the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.’ ” State v. Shattuck, 704 N.W.2d 131, 141 (Minn.2005) (quoting Blakely, 542 U.S. at 303, 124 S.Ct. 2531). But Blakely has no application here because Cuypers was sentenced to the mandatory life term for the murder and a concurrent presumptive term for the burglary.

In summary, the postconviction court’s denial of relief without an evidentiary hearing was not improper where the record clearly and conclusively supported the denial.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the submission, took no part in the consideration or decision of this matter.

      . A more complete recitation of the facts can be found in State v. Cuypers, 481 N.W.2d 553 (Minn.1992).

      . To ensure that a defendant is competent to understand and participate in criminal proceedings, the rules require a medical evaluation when competency is in doubt. Minn. R.Crim. P. 20.01, subd. 2. The rules also require that a defendant who chooses to put his sanity in issue submit to an evaluation by a court-appointed medical examiner. Minn. R.Crim. P. 20.02, subd. 2.

      . Minnesota Statutes § 611.026 (2004) provides that a defendant is not guilty by reason of mental illness if, at the time of the criminal act, the defendant did not know the nature of the act or did not know that it was wrong because of a defect of reason caused by a mental illness or deficiency.


author: ANDERSON, PAUL H., Justice.

text:
    Tyrone James WHITE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-1169.
    Supreme Court of Minnesota.
    March 23, 2006.

      Tyrone J. White, Bayport, for Appellant.
    Mike Hatch, Atty. Gen., Alan L. Mitchell, St. Louis County Atty., John E. De-Santo, Asst. St. Louis County Atty., for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

Petitioner Tyrone James White appeals the denial of his petition for postconviction relief, alleging six claims of error. We affirm the postconviction court’s denial of White’s petition.

On January 31, 2003, petitioner Tyrone White was convicted in Saint Louis County District Court of first-degree felony murder and attempted first-degree premeditated murder. Our opinion issued in response to White’s direct appeal provides a comprehensive statement of the facts of this case. State v. White, 684 N.W.2d 500, 502-04 (Minn.2004). The district court sentenced White to life imprisonment for murder and a consecutive 180-month sentence for attempted murder. White appealed his convictions, arguing that (1) the court erred by denying his Batson objection to the state’s peremptory challenge of a prospective juror; (2) Minnesota’s accomplice liability statute, Minn.Stat. § 609.05 (2004), is unconstitutional; (3) the court erred in its instruction to the jury regarding accomplice liability; and (4) the evidence was insufficient to support the convictions. White, 684 N.W.2d at 502. We affirmed.

White subsequently filed this petition for postconviction relief, alleging that (1) the district court erred in admitting uncorroborated accomplice testimony; (2) racial discrimination in the Saint Louis County grand jury selection process violated the equal protection clause of the Fourteenth Amendment; (3) the court erred when it engaged in improper ex parte communication with a juror; (4) the court erred when it failed to excuse a juror who was unable to be impartial; (5) his trial counsel provided ineffective assistance; and (6) his appellate counsel provided ineffective assistance. The postconviction court denied White’s petition, concluding that White had already raised a majority of the claims in his direct appeal and that he failed to establish the facts alleged in the petition by a fair preponderance of the evidence. White now appeals all of the issues raised in his postconviction petition. The state declined to file a brief in response to White’s postconviction appeal.

A defendant may seek postcon-viction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2004). “A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case.” Mckenzie v. State, 687 N.W.2d 902, 905 (Minn.2004) (quoting State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993)). Review of a postconvietion proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion. Zenanko v. State, 587 N.W.2d 642, 644 (Minn.1998).

Once a direct appeal has been taken, all claims that were raised in the direct appeal and all claims that were known or should have been known but were not raised will not be considered upon a subsequent petition for postconviction relief. See Hanley v. State, 534 N.W.2d 277, 279 (Minn.1995); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (“Knaffla rule”). There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review. Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005) (citing Ives v. State, 655 N.W.2d 633, 636 (Minn.2003)). The second exception may be applied if fairness requires it and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Taylor, 691 N.W.2d at 79 (quoting Fox v. State, 474 N.W.2d 821, 825 (Minn.1991)).

We have previously rejected, in a somewhat different form, White’s first claim that the district court erred in admitting uncorroborated accomplice testimony. In essence, this claim is a rechar-acterization of White’s previously rejected claims that (1) Minnesota’s accomplice liability statute, Minn.Stat. § 609.05, and the jury instructions based on it, impermissi-bly and unconstitutionally alleviated the state’s burden of proving the elements of the charged crime, and (2) the evidence was insufficient to support his convictions. White, 684 N.W.2d at 508-09. Because this claim has already been raised and addressed, we conclude that the postcon-viction court did not abuse its discretion when it denied White relief on this claim. See Black v. State, 560 N.W.2d 83, 86 (Minn.1997). Furthermore, we conclude that White’s claims of racial discrimination in the selection of the grand jury, improper ex parte communication between the judge and a juror, and failure to excuse a juror who was unable to be impartial are also barred by the Knaffla rule because White knew or should have known of these claims at the time of his direct appeal.

Five of White’s eight ineffective assistance of trial counsel claims are also Knafflarbwxe&. We have held that an ineffective assistance of trial counsel claim is generally Nwajia-barred in a postcon-viction petition if the claim can be decided on the basis of the trial record and the briefs. Carney v. State, 692 N.W.2d 888, 891 (Minn.2005). “A claim of ineffective assistance of trial counsel that can be decided on the basis of the trial court record must be brought on direct appeal and is procedurally barred when raised in a post-conviction petition.” Id. (quoting Torres v. State, 688 N.W.2d 569, 572 (Minn.2004)). White argues that his trial counsel was ineffective because counsel failed to (1) object to or move for a mistrial based on the district court’s communication with juror number four, (2) move for a mistrial based on a witness’s admission at trial that the witness was not fully truthful when he testified before the grand jury, (3) object to uncorroborated accomplice testimony, (4) object to the jury instruction on accomplice liability, and (5) that trial counsel “admitted [White’s] guilt during closing argument without [White’s] permission.” All of these claims can be decided on the basis of the district court record and are therefore Knaffla-barred on this postconviction review. See Carney, 692 N.W.2d at 891.

Even if we were to address the five foregoing ineffective assistance of counsel claims, White would not prevail because the claims lack merit. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his attorney’s performance “fell below an objective standard of reasonableness and that he [or she] was prejudiced as a result.” Sessions v. State, 666 N.W.2d 718, 722 (Minn.2003) (quoting Ives, 655 N.W.2d at 637). To allow counsel “flexibility to represent a client to the fullest extent possible,” our review of trial counsel’s performance does not include reviewing attacks on trial strategy. Opsahl v. State, 677 N.W.2d 414, 421 (Minn.2004) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn.1986)). We have previously rejected ineffective assistance of counsel claims where counsel failed to move for a mistrial or object to alleged errors at trial because these actions are trial strategy decisions. State v. Vick, 632 N.W.2d 676, 689 (Minn.2001); State ex rel. Black v. Tahash, 280 Minn. 155, 158, 158 N.W.2d 504, 506 (1968).

White asserts that his trial counsel was ineffective because counsel conceded in closing argument that White was a “robber” and a “drug dealer.” This assertion is not supported by the record. White’s counsel did note that the state’s theory was that White and an accomplice in this murder committed robberies together. Counsel also appears to have conceded that White was a drug dealer when counsel stated that White and the murder victim were “slinging a little dope.” Here it is important to note that White was not on trial for a drug offense and that counsel’s admission appears to be the result of a trial strategy of admitting obvious facts while continuing to challenge the key elements of the charged offenses.

Furthermore, we conclude that the post-conviction court did not abuse its discretion when it declined to apply the two Knaffla rule exceptions to White’s claims. White does not argue that either Knaffla exception applies to his claims of improper ex parte communication between the judge and a juror, failure to excuse a juror who was unable to be impartial, or his ineffective assistance of trial counsel claims, nor does he argue that his claim of racial discrimination in the grand jury selection process is novel.

White’s assertion that he made reasonable' — yet unsuccessful — efforts to gather data to raise his racial discrimination claim on direct appeal can be construed as an argument that the interests of justice require review of this claim. We have previously held that an alleged error in the composition of the grand jury is not properly and timely raised on direct appeal absent an objection to the indictment to the district court. State v. Whittaker, 568 N.W.2d 440, 448 (Minn.1997) (holding that due process claim based on grand jurors’ acquaintance with the murder victim and/or a grand jury witness was improperly and untimely raised on direct appeal) (citing Minn. R.Crim. P. 10.03, 10.04, 17.06). Before his trial, White moved to dismiss count one of the indictment based on lack of probable cause. In this motion, White did not raise any issue relating to the grand jury selection process. Because White did not raise to the district court the issue of racial discrimination in the grand jury selection process, we conclude that White’s efforts after trial to gather data to support this claim do not require us to address the claim on posteonviction appeal in the interests of justice.

We next address White’s claims that he received ineffective assistance of trial counsel when his trial counsel failed to challenge the grand jury indictment on the basis of racial discrimination in the grand jury, call a witness favorable to the defense, and request a Schwartz hearing regarding the jury foreperson. Our review of the record leads us to the conclusion that these claims are not Knajfta-b&rred because they cannot be decided solely based on the district court record. See Carney, 692 N.W.2d at 891. Additionally, White’s claim of ineffective assistance of appellate counsel is not Knaffla-barred. Therefore, we will address the merits of these claims.

White claims that his trial counsel was ineffective when counsel failed to challenge the grand jury indictment on the basis of racial discrimination in the selection of the grand jury. Minn. R.Crim. P. 18.01, subd. 2, provides:

In St. Louis County a grand jury list shall be selected at random from a fair cross-section of the residents of each of the 3 districts of the St. Louis County Court district as defined by Minn.Stat. § 487.01, subd. 5(1) who are qualified by law to serve as jurors. The grand jury list shall otherwise be selected and the grand jurors shall be drawn from the list as provided by law.

Saint Louis County grand juries are selected by geographic district from a list which contains the names of residents who are registered to vote, licensed to drive, and/or who hold a Minnesota state identification card. We have previously held that a grand jury selection process that selects jurors from lists of registered voters, driver’s licenses, and registered Minnesota identification card holders is constitutional. Hennepin County v. Perry, 561 N.W.2d at 895-96; State v. Roan, 532 N.W.2d 563, 569 (Minn.1995). Because it appears that the grand jury that indicted White was selected in conformance with established law, we conclude that White has not established that his trial counsel’s performance “fell below an objective standard of reasonableness” due to his counsel’s failure to challenge the indictment on this basis. Sessions, 666 N.W.2d at 722.

As stated previously, our review of trial counsel’s performance does not include reviewing trial strategy. Opsahl, 677 N.W.2d at 421. Trial strategy includes decisions about what evidence to present to the jury. State v. Miller, 666 N.W.2d 703, 716 (Minn.2003). Specifically, this court has held that “[w]hich witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel.” Jones, 392 N.W.2d at 236. When viewed in this light, we conclude that White’s claim that his trial counsel was ineffective for failure to call a particular witness who might have contradicted the testimony of a state’s witness is without merit.

White’s claim that his trial counsel should have requested a Schwartz hearing regarding the jury foreperson is similarly without merit. White claims that the jury foreperson was unable to be impartial because (1) the prosecutor in this case previously prosecuted the men charged with the murder of the foreperson’s brother, and (2) the foreperson had a working relationship with the roommate of one of the victims. Voir dire of the foreperson comprised 55 pages of transcript, including extensive questioning regarding the prosecution of her brother’s murderers. Because of the extensive voir dire regarding the prosecutor’s previous prosecution of the men charged with the foreperson’s brother’s murder, White knew or should have known of this claim at the time of his direct appeal. Moreover, we find nothing in the foreperson’s answers to extensive questioning about the prosecution of her brother’s murderers that indicates that she would be unable to be impai-tial in this case. The foreperson stated that she never communicated with the prosecutor during the previous prosecution, and she did not appear to have any predisposed views toward White’s case based on her experience with her brother’s murder.

Voir dire of the foreperson also addressed her place of employment, whether she knew any of the people on a list provided to her (presumably potential witnesses), and whether she had any previous knowledge “about this case.” There was no specific discussion during voir dire of any working relationship between the foreperson and the victim’s roommate, but the foreperson apparently indicated that she did not know anyone on the list. The victim’s roommate’s name was on the witness list filed with the court on December 27, 2002, but it is unclear if this same list was shown to the foreperson on January 9, 2003. White acknowledges that the victim’s roommate was not a witness to the shootings, that investigators concluded that she “was not involved in the incident,” and that she was not called to testify at trial.

White asserts that the victim’s roommate was a blackjack dealer at a casino where the foreperson was employed as a supervisor. White bases this claim on a statement allegedly made by the victim’s roommate to an investigator with the Duluth Police Department, in which the victim’s roommate said she was at work at the casino at the time of the shooting. We can find no statement or report mentioning such a statement in the district court record, and White did not attach any such statement or report to his petition. If the victim’s roommate was in fact employed at the casino and the foreperson knew her, it is possible that the foreperson had previous knowledge about the case that prevented her from being impartial. Nevertheless, because White failed to provide evidence to support his claim that the foreperson was unable to be- impartial, we cannot conclude that White’s trial counsel was ineffective for failing to request a Schwartz hearing.

White’s claim that he received ineffective assistance of appellate counsel when appellate counsel failed to raise racial discrimination in the grand jury selection process is also without merit. We have held that an alleged error in the composition of the grand jury is not properly and timely raised on direct appeal absent an objection to the indictment to the district court. Whittaker, 568 N.W.2d at 448. In light of this rule, we conclude that White’s claim that his appellate counsel’s performance “fell below an objective standard of reasonableness,” Sessions, 666 N.W.2d at 722, by failing to challenge the grand jury indictment for the first time on appeal lacks merit.

Finally, we address White’s claim that he received ineffective assistance of appellate counsel when counsel failed to challenge “uncorroborated accomplice testimony.” As previously noted, White’s argument about uncorroborated accomplice testimony is merely a recharacteri-zation of his claims that we rejected on direct appeal that the accomplice liability statute and accompanying jury instructions are unconstitutional and the evidence was insufficient to sustain a conviction. See White, 684 N.W.2d at 508-10 (concluding that the jury instructions on accomplice liability did not confuse or mislead the jury or materially misstate the law, and evidence was sufficient to support White’s convictions). In essence, appellate counsel did raise this claim, and therefore White’s claim is without merit.

Affirmed.