author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Dale S. HONKEN, Respondent.
    No. 04-1174.
    Supreme Court of Iowa.
    Nov. 10, 2004.

      Charles L. Harrington and Mark J. Schouten, Des Moines, for complainant.
    Dale S. Honken, Sibley, respondent, pro se.
   WIGGINS, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct (Board) filed a complaint alleging Dale S. Honken had violated numerous rules of the Iowa Code of Professional Responsibility in his handling of six different legal matters. The Grievance Commission (Commission) found the Board had proven the alleged violations and recommends we suspend Honken’s license to practice law for six months. We agree with the Commission that the Board proved Honken’s conduct violated numerous rules of the Iowa Code of Professional Responsibility but conclude the nature of his conduct calls for a longer suspension. We therefore suspend Honk-en’s license to practice law in this state indefinitely with no possibility of reinstatement for two years.

I.Personal Background and Proceedings.

Honken graduated from the University of Iowa College of Law in 1987. Upon graduation, he worked for a law firm in Sioux City. In 1990, he moved to Sibley to work at another law firm, eventually becoming a partner. After working at the firm for about eight years, the firm asked him to resign after his work product began to diminish. On January 1, 1999, Honken started a solo practice in Sibley.

On January 28, 2004, the Board filed its complaint and personally served Honken. Honken never filed an answer to this complaint. On April 9, the Board filed its first amended and substituted complaint. On May 17, Honken accepted service of the amended and substituted complaint, filed a stipulation admitting the allegations of the amended and substituted complaint, and requested the matter proceed to hearing on the issue of the appropriate sanction.

On May 18, the Commission held its hearing on the issue of the appropriate sanction. Honken appeared personally at the hearing. On July 27, the Commission filed its findings of fact, conclusions of law and recommendations.

II. Scope of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 531 (Iowa 2004). The court will “ ‘decide the matter, taking into consideration the factual findings and disciplinary recommendation made by the Commission.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002)). The court will consider the discipline recommended by the Commission but is not bound by it. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001).

III. Factual Findings and Ethical Violations.

Honken admitted all of the factual claims and ethical violations made against him by the Board. Accordingly, we find the facts and make a determination of Honken’s ethical violations as follows.

Matlock Matter. In October 2001, Matlock Electric & Satellite, Inc. (Matlock) hired Honken to represent it after it was sued for indemnification for allegedly performing negligent electrical work on a project. Honken filed an answer on Matlock’s behalf. On December 10, the plaintiff filed a motion for summary judgment. On the day the motion was set for hearing, Honk-en filed a resistance to the motion for summary judgment and moved to continue the hearing. The court continued the hearing until March 8, 2002, so Honken could conduct discovery to prepare a resistance. Honken, however, failed to conduct discovery, failed to file an additional resistance to the motion, and failed to appear at the hearing. As a result, the court entered judgment against Matlock in the sum of $151,088.19.

Honken did not inform Matlock of the entry of judgment against it. Instead, the majority shareholder found out about the judgment when a sheriff delivered a copy of the judgment to his home. When the shareholder met with Honken to discuss the judgment, Honken informed him nothing could be done about the judgment. Ultimately, Matlock was forced to file for bankruptcy.

Honken failed to cooperate with the Board’s investigation into his ethical violations concerning the Matlock matter by failing to respond to the Board’s notices of complaint. For Honken’s actions in the Matlock matter, the Commission concluded and we agree Honken violated Iowa Code of Professional Responsibility DR 1-102(A)(1) (providing a lawyer should not violate a disciplinary rule); DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); and DR 7-101(A)(3) (providing a lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship). The amended and substituted complaint also alleged a violation of DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s matter). The Commission did not make any finding regarding DR 6-101(A)(3). We, however, find his conduct violated DR 6-101(A)(3).

Verdoorn Matter. In December 1997, Honken undertook the representation of the Estate of Cornelius B. Verdoorn. Honken opened the estate. In May 1998, the clerk issued a delinquency notice for failure to file the inventory in the time prescribed by law. Honken cured this delinquency. When Honken presented the final report for the estate to the district court in September 1999, he stated he had applied for a certificate of acquittance for Iowa income tax; when in truth, the fiduciary tax return, which would trigger the issuance of the certificate of acquittance, had not been filed. The district court approved the final report. A few days later, the probate referee issued a report of probate, indicating Honken had not filed the acquittance. The referee faxed this report to Honken. In November 2000, the judge wrote to Honken requesting that he obtain and file the acquittance prior to December 1. When Honken had not filed the acquittance by that date, the clerk issued a notice of delinquency. On January 31, 2001, Honken applied for an order to extend the time for the final settlement of the estate. Paragraph three of the application stated:

The undersigned counsel has initiated contact with the Iowa Department of Revenue and Finance to ascertain why an Iowa Income Tax Certificate of Acquittance has not been provided. A representative of the Department of Revenue and Finance advised the undersigned that a specialist in the Inheritance Tax division of the department should be responding to the inquiry by Friday, February 2, 2001.

On that same day, Honken spoke with the judge and informed him that he had already filed the tax return, and he anticipated hearing later the same week whether the estate owed any fiduciary tax. Suspicious of Honken, the judge contacted the Iowa Department of Revenue, and it informed the judge the tax return was not on file. The judge sent Honken a letter asking him why Honken told him the tax return had been filed with the department of revenue, when in fact it had not been filed, and why the tax return had still not been filed. Honken eventually filed the tax return, and the department of revenue issued an acquittance.

Honken refused to cooperate with the Board’s investigation by not replying to the notices of complaint. The Commission concluded and we agree as a result of the above actions, Honken violated Iowa Code of Professional Responsibility for Lawyers DR 1 — 102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1 — 102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (providing a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); and DR 7-102(A)(5) (providing a lawyer shall not knowingly make a false statement of law or fact).

Hinrichs Matter. In March 1999, Honken undertook the representation of the Estate of Grace W. Hinrichs. He opened the estate. Included in the report and inventory filed with the district court was a parcel of farmland located in Nobles County, Minnesota. In July 1999, the estate sold the farmland at auction. The sale was to close on December 1. Honken told the Minnesota realtor who was handling the transaction and the executor of the estate that a Worthington, Minnesota, attorney was handling the closing on the land and any Minnesota estate proceedings. After the closing date passed, the realtor and executor separately contacted the Minnesota attorney. The Minnesota attorney informed them that Honken had not contacted him about any Minnesota land transaction. Honken finally contacted the Minnesota attorney for the first time in March 2000.

Also in regard to the administration of the estate, the executor repeatedly contacted Honken to request he pay those individuals who prepared for the sale of personal property belonging to the decedent. Honken failed to do so. Honken also failed to respond to a statement of adjustments to inheritance and estate tax issued by the department of revenue against the estate. The executor finally hired another attorney to represent the estate. Honken failed to turn over the estate files to the new attorney, even after a court order commanded him to do so. Eventually, Honken turned over the files but not until after the court-ordered deadline had passed.

Honken failed to cooperate with the Board’s investigation by failing to respond to the notices of complaint. The Commission concluded and we agree Honken violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (providing a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); and DR 7-102(A)(5) (providing a lawyer shall not knowingly make a false statement of law or fact).

Bosma Matter. In May 1999, Honken undertook the representation of the Estate of Frances Bosma. He opened the estate. On November 1, 1999, the clerk issued a delinquency notice when Honken failed to file the inventory within the time period prescribed by law. Honken cured this delinquency. On June 1, 2001, the clerk issued a second delinquency notice for failure to file an interlocutory report. Before Honken could file the report, the executors discharged him as attorney for the estate.

Prior to his discharge, Honken filed an application for allowance and payment of attorney fees in the sum of $6,625.16. The court approved the fees and ordered the estate to pay his fees in accordance with Iowa Supreme Court Probate Rule 2. Sometime before the entry of this order, Honken’s parents purchased a house from the estate. In exchange for a $2500 reduction in the purchase price of the house, Honken agreed to a $2500 reduction in his attorney fees. The reduction of the attorney fees was to be handled in two installments of $1250, with each half to be subtracted from the two payments of attorney fees as they were made. The executor paid the first half of the attorney fees in February 2000.

On the sale of the house, Honken represented both sides of the transaction — the buyer and seller. At no time did Honken advise the executors to seek independent counsel; nor did he inform them whether this arrangement was advisable for them.

After the estate discharged him as the attorney for the estate, Honken failed to turn over the files to the executors or return the $1250 advance he received on his attorney fees, as represented by the reduction in the purchase price of the estate property purchased by his parents. On August 24, 2001, the district court ordered Honken to turn over the original flies to the law firm that was now handling the legal representation of the estate. Honken did not turn over the flies in the time ordered by the court. The estate incurred additional attorney fees of $8,005.50.

Honken failed to cooperate in the Board’s investigation by failing to reply to its notices of complaint. The Commission concluded and we agree Honken’s conduct constituted multiple ethical violations of the Iowa Code of Professional Responsibility for Lawyers. He violated rules DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-1Q2(A)(6) (providing a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 2-106(A) (providing a lawyer shall not enter ipto an agreement for, charge, or collect an illegal or excessive fee); DR 5-104(A) (providing a lawyer shall not enter into a business transaction with a client if they have differing interests, except with the consent of the client after full disclosure); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); DR 7-106(A) (providing a lawyer shall not disregard a ruling of a tribunal); and DR 9-102(B)(4) (providing a lawyer shall promptly pay or deliver to the client as requested by a client the property in possession of the lawyer which the client is entitled to receive). The Board also alleged Honken violated DR 7-101(A)(2) (providing a lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services). The Commission made no finding as to this violation. We conclude Honken’s conduct violated DR 7-101(A)(2).

Davidson Matter. The actions, or probably more correctly, the inaction, taken by Honken regarding this case is perhaps the most egregious matter involved in the disciplinary proceedings. On April 28, 2000, Steve and Linda Davidson, a retired couple in their fifties, were eating in a restaurant in Arnold’s Park, Iowa, when a car driven by an elderly woman crashed through the wall of the restaurant, severely injuring the Davidsons. As a result of their injuries, they allegedly sustained over $100,000 in medical expenses.

The Davidsons hired Honken to represent them in a suit against the driver of the vehicle and others. Honken filed suit just before the statute of limitations expired. He failed, however, to obtain service over the driver of the vehicle. Additionally, he failed to respond to a motion to dismiss and failed to appear at a hearing on the motion. As a result, the court dismissed the lawsuit on March 17, 2003.

To make matters worse, Honken did not inform the Davidsons that the court dismissed their lawsuit. The Davidsons learned the court dismissed the lawsuit when they received a chiropractic bill with a copy of the order dismissing the case attached to it. Obviously upset, they called Honken at home, as it was a weekend. At Honken’s request, the Davidsons faxed him a copy of the dismissal. That was the end of the communication because Honken refused to return their phone calls or answer their emails.

Eventually, the Davidsons obtained other legal counsel, who appealed the dismissal of their case. The court of appeals affirmed the dismissal and this court denied further review. The Davidsons were without a meaningful remedy because Honken did not carry malpractice insurance. The Davidsons fear their injuries will prevent them from obtaining affordable health insurance in the future.

Once again, Honken failed to cooperate in the Board’s investigation by not responding to the notices of complaint. The Commission concluded and we agree Honken violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (providing a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); and DR 7-101(A)(2) (providing a lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services).

Moet Matter. Honken was hired to represent the Estate of Roger L. Moet. Honken opened the estate. On November 1, 2002, the court removed Honken as attorney for the estate and ordered him to provide the new attorney with a full and complete copy of his file in the estate within ten days of the order. Honken failed to turn over the contents of his file to the new attorney within ten days. On December 16, the court held Honken in contempt for failing to obey the court’s order.

For this matter, the Commission concluded and we agree Honken violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (providing a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 7-106(A) (providing a lawyer shall not disregard a ruling of a tribunal); and DR 9-102(B)(4) (providing a lawyer shall promptly pay or deliver to the client as requested by a client the property in possession of the lawyer which the client is entitled to receive).

IV. Sanctions.

In summary, Honken’s conduct consisted of multiple acts of making misrepresentations to the court, disregarding court orders, neglecting client matters, misrepresenting the status of matters to his clients, and failing to respond to the Board’s inquiries. The goal of the Code of Professional Responsibility is “to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.” Committee on Prof'l Ethics & Conduct v. Gill, 479 N.W.2d 303, 306 (Iowa 1991). When deciding on an appropriate sanction for an attorney’s misconduct, we consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 338 (Iowa 2000). We also consider aggravating and mitigating circumstances present in the disciplinary action. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001).

The misrepresentations Honk-en made to the court “constituted a grave and serious breach of professional ethics.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999). In several of the matters, Honken did not comply with court orders. “The violation of a court order by a lawyer constitutes misconduct.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 125 (Iowa 2003). Honken also took an early probate fee payment before he had filed the Iowa inheritance tax return. His lack of respect for court orders and taking a fee in probate without prior court authorization are serious breaches of professional ethics. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Reese, 657 N.W.2d 457, 461 (Iowa 2003).

Honken committed extreme professional neglect in his handling of these legal matters. Professional neglect involves “indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” low a Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 259-60 (Iowa 2004). Professional neglect generally involves more than a single act or omission and usually involves procrastination. Id. at 260. In the Verdoorn, Hinrichs, Bosma, and Moet estate matters, he failed to file reports, inventories, and tax returns in a timely fashion. He failed to contact an out-of-state attorney to handle the closing of the sale of a parcel of land. In the Matlock and Davidson matters, he failed to serve the defendant in a civil action, neglected to conduct discovery, failed to respond to a motion for summary judgment, and failed to appear at hearings. Not only did he neglect these matters, on numerous occasions, he misrepresented the status of these cases to his clients. Misrepresenting the status of a matter to a client typically warrants a more severe sanction. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 646 N.W.2d 111, 114 (Iowa 2002). Further, we have said more severe discipline is needed when the attorney’s actions caused harm to his or her clients or to third parties. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000). Such is the case here, particularly in the Matlock and Davidson cases.

Additionally, Honken’s failure to respond to the Board’s inquiries on six separate occasions also requires a more severe sanction. Attorneys are expected and we demand that they cooperate with disciplinary investigations. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 556 N.W.2d 456, 457 (Iowa 1996).

This is the first disciplinary action taken against Honken. The evidence presented to the Commission indicated Honken’s conduct was not the result of an isolated incident but took place over an extended period. The first violations charged by the Board occurred in 1999 and continued through 2003.

Even though the Board did not charge Honken with any violations prior to 1999, testimony introduced on the issue of the appropriate sanction indicated Honken was having some of these same problems before he left his Sibley law firm. Honken’s partners in his Sibley law firm became concerned about Honken’s ability to practice ethically as early as 1994. While at the law firm, Honken did not return client calls, did not file court papers in a timely manner, and did not pay attention to clients’ files. In one case, a client sued him and the firm for malpractice, and the firm’s insurance company paid the claim. This professional neglect caused the firm to ask him to resign from the partnership.

Finally, Honken claims many of his violations were a product of his depression. He claims he has been treated and most of his health issues are now resolved. Although depression can impact our approach to discipline, we consider depression a personal problem of the lawyer that does not excuse the misconduct. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002).

In assessing the multiple violations, the serious breaches of ethics, the period over which the violations occurred, the harm done to his clients, his failure to cooperate with the Board in its investigation, and his depression, we are convinced the Commission’s recommendation of a six-month suspension minimizes the seriousness of what has occurred. A more appropriate sanction for Honken’s conduct is a two-year suspension. This will serve to deter similar conduct and preserve the integrity of the profession in the eyes of the public.

Y. Disposition.

We suspend Honken’s license to practice law in this state indefinitely with no possibility of reinstatement for two years. This suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Upon any application for reinstatement, Honken must establish that he has not practiced law during the suspension period and that he has in all other ways complied with the requirements of Iowa Court Rules 35.13 (procedure on application for reinstatement) and 35.21 (notification of clients and counsel). Additionally, Honken must show proof of repayment for the advance he received on his attorney fees in the Bosma matter and show proof of legal malpractice insurance. Costs of this action are taxed to Honken pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.

      . The applicable rule is now known as Iowa Rule of Probate Procedure 7.2(4), which provides:
      One half of the fees for ordinary services may be paid when the federal estate tax return, if required, and Iowa inheritance tax return, if required, are prepared. When an inheritance tax return is not required, an inheritance tax clearance must be filed. When a federal estate tax return is not required, the one-half fee may be paid when the Iowa inheritance tax return is prepared or, when it is not required, when the inheritance tax clearance is filed. The remainder of the fees may be paid when the final report is filed and the costs have been paid. The schedule for paying fees may be different when so provided by order of the court for good cause.

      . Perhaps if the firm had reported this conduct to the Board earlier, many of the problems created by Honken in these six matters might not have occurred. See Iowa Code of Professional Responsibility DR 1-103(A) (stating "[a] lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation”).


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    In re CANDIDACY OF INDEPENDENCE PARTY CANDIDATES James MOORE, David Allen, and Maureen Peterson, Petitioners, v. Mary KIFFMEYER, as Secretary of State for the State of Minnesota, Respondent.
    No. A04-1775.
    Supreme Court of Minnesota.
    Nov. 10, 2004.

      Michael B. Padden, Padden and Associates, P.A., David A. Schultz, Hamline University, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, Kristine Eiden, Chief Deputy Attorney General, St. Paul, MN, for Respondent.
    Robin Michelle Wolpert, Dorsey and Whitney, Minneapolis, MN, for Amici Curiae.
   OPINION

BLATZ, Chief Justice.

On September 21, 2004, James Moore, David Allen, and Maureen Peterson filed a petition under MinmStat. § 204B.44 (2002) requesting an order directing the respondent Mary Kiffmeyer, as Secretary of State of the State of Minnesota, to place the names of Independence Party nominees for the Minnesota House of Representatives and the United States House of Representatives on the November 2, 2004 general election ballot. The secretary of state had previously notified the Independence Party that its candidates would not appear on the general election ballot because none of the candidates had received the minimum number of votes required by Minn.Stat. § 204D.10, subd. 2 (Supp. 2003), in the September 14, 2004 primary election. After the parties and amicus curiae American Civil Liberties Union of Minnesota (ACLU-Minnesota) filed legal memoranda on an expedited basis, oral argument was heard on September 27, 2004. This opinion follows the order filed on September 27 granting relief to petitioners.

I.

The dispute in this case centers on interpretation and application of MinmStat. § 204D.10, subd. 2, which creates a threshold minimum percentage of votes that must be received in the partisan primary election for a major political party’s candidates to appear as the party’s nominees on the general election ballot. The primary threshold law provides that if any one of the candidates of a major political party receives the required number of votes in the partisan primary, then all of that party’s candidates who received the highest number of votes for an office at the primary are the party’s nominees on the general election ballot. However, if none of the party’s candidates receive the threshold number of votes, then none of the party’s candidates are nominated. The threshold number of votes is defined in the primary threshold law as ten percent of the average number of votes received by that party’s candidates for state constitutional offices in the previous general election. The primary threshold law also provides that if none of the party’s candidates meet the threshold, then the individual candidates of that party may be nominated “by nominating petition as provided in sections 204B.07 to 204B.09.” Minn.Stat. § 204D.10, subd. 2. If the party’s candidates do not qualify as the party’s nominees under section 204D.10, they cannot appear on the general election ballot.

The secretary of state determined that none of the 24 candidates of the Independence Party for the Minnesota or United States House of Representatives satisfied the ten percent threshold of the primary threshold law in the September 14, 2004 partisan primary election. After consultation with, and based on advice from, the Minnesota Attorney General, the 'secretary of state notified the Independence Party on September 17 that all of the Independence Party candidates for the state legislature and for congress would be excluded from the general election ballot based on the primary threshold law. Each of the three other major political parties satisfied the statutory threshold, because at least one of their candidates reached the ten percent mark.

II.

Petitioners make two arguments in support of their request that the Independence Party candidates be placed on the general election ballot despite their failure to satisfy the primary vote threshold of Minn-Stat. § 204D.10, subd. 2. First, petitioners argue that the primary threshold law was repealed in 1996 and therefore cannot be applied in this election. Second, petitioners argue if the primary threshold law was not repealed, its application to prevent Independence Party candidates from appearing on the general election ballot is unconstitutional as a violation of their rights under the United States and Minnesota Constitutions to associate for political purposes and to vote, as well as their rights to equal protection and due process. Although petitioners do not make the argument, the amicus curiae ACLU-Minnesota contends that the post-primary nominating petition process mentioned in the primary threshold law should be available to the Independence Party candidates. The secretary of state disagrees that the primary threshold law was permanently repealed and that the nominating petition process is available after the primary election, but does not dispute petitioners’ constitutional argument.

A. Repeal of the Primary Threshold Law

Petitioners first argue that the primary threshold law is no longer in effect because it was repealed by the 1996 Legislature in Act of Apr. 2, 1996, ch. 419, § 9, 1996 Minn. Laws 982. Section 9 provides: “Minnesota Statutes 1994, section 204D.10, subdivision 2, is repealed.” That section clearly espouses the legislature’s intent to repeal the primary threshold law.

The secretary of state contends that this repeal “expired” by the operation of section 10 of the 1996 Act, so that the primary threshold law remains applicable today. Section 10 of the 1996 Act provided that the “amendments” made by the act would expire if a particular decision of the Eighth Circuit Court of Appeals were reversed. Section 10 provided:

This act is effective for the state primary election in 1996 and thereafter.
The amendments made by this act are suspended during any time that the decision of the eighth circuit court of appeals in Twin Cities Area New Party v. McKenna, No. 94-3417MN, is stayed or the mandate of the court is recalled. If the McKenna decision is reversed, the amendments made by this act expire and the prior law is revived. The purpose of this paragraph is to provide an orderly procedure for complying with the McKenna decision while retaining the prior law prohibiting simultaneous nominations to the extent permitted by the United States Constitution.

1996 Act, § 10, 1996 Minn. Laws at 982 (emphasis added). The Eighth Circuit McKenna decision referenced in section 10 had struck down the Minnesota statute that prohibited candidates from appearing on the ballot as the nominee of more than one party. Sections 2 through 8 of the 1996 Act amended Minnesota election laws to comply with the mandate of the Eighth Circuit decision to allow multi-party candidacies. Id., §§ 2-8, 1996 Minn. Laws at 979-82. At the time the 1996 Act was enacted, the McKenna case was still pending in the United States Supreme Court under the name of Timmons v. Twin Cities Area New Party. In April 1997, the Supreme Court reversed the Eighth Circuit decision, Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), triggering the “expire-and-revive” language of section 10.

Petitioners argue that the repeal of the primary threshold law by the 1996 Act did not “expire” with the reversal of McKenna in Timmons because section 10 states that only the “amendments” made by the Act expire, and section 9 was not an amendment, but a repealer. Petitioners contend that the plain language of the 1996 Act compels this conclusion because sections 2 through 8 each provides that a particular statute “is amended,” whereas section 9 refers only to “repeal.” Further, petitioners argue that section 9 served an entirely different purpose than the preceding sections of the 1996 Act, all of which dealt with the issue of multi-party candidacies, whereas section 204D.10, subd. 2, and its repeal have nothing to do with multi-party candidacies. Petitioners assert that because the primary threshold law had nothing to do with multi-party candidacies, there was no reason to revive it based on the reversal in Timmons, as there was for the statutes amended by the 1996 Act. Petitioners argue that further evidence that the primary threshold law was permanently repealed is (1) that the primary threshold law was not applied in the 2000 elections, (2) that the legislature has made no provision for post-primary nomination by petition, even though the nomination process is expressly mentioned in the primary threshold law, and (3) that the primary threshold law has been preempted by an entirely new “system of campaign financing and regulation of political parties and ballot access.”

The secretary of state argues that the primary threshold law remains in effect because its repeal by the 1996 Act was “expired” by the reversal of McKenna in Timmons. The secretary of state asserts that the section 9 repealer was part of the “amendments” made in the 1996 Act and that the primary threshold law was encompassed in the “revival of the prior law” provided for in section 10 in the event of McKenna’s reversal. The keystone of the secretary of state’s argument that the primary threshold law remains in effect is that the legislature amended the primary threshold law in 2003. See Act of May 27, 2003, ch. 112, art. 2, § 50(a), 2003 Minn. Laws 680. The 2003 amendment deleted the phrase “state treasurer” from the primary threshold law as part of broader legislation eliminating that state office. The secretary of state contends that the 2003 amendment, as well as two previous legislative attempts to amend the primary threshold law after 1996, demonstrate that the legislature did not think the subdivision had been permanently repealed in 1996.

B. Nomination by Post-Primary Nominating Petition

The primary threshold law provides that if none of the candidates of a major party are nominated because of the failure of all of the party’s candidates to meet the ten percent threshold, “all of the candidates of that major political party may be nominated by nominating petition as provided in sections 204B.07 to 204B.09.” Minn.Stat. § 204D.10, subd. 2. The secretary of state asserts that the nominating petition process referenced in the primary threshold law is not available at this time to the candidates of the Independence Party because the deadline for filing nominating petitions is 56 days before the state primary. Minn.Stat. § 204B.09, subd. 1(a) (2002). Petitioners do not disagree with this interpretation. Moreover, at oral argument they appeared to assert that even if a post-primary nominating petition process were made available under the primary threshold law, the law would nonetheless violate their constitutional rights because of the undue burden of obtaining the required signatures in the short time available.

The amicus curiae ACLU-Minnesota does, however, argue that the nominating petition process should be available, despite the conflict between the provision for post-primary nominating petitions in the primary threshold law and the pre-pri-mary deadline established for nominating petitions in Minn.Stat. § 204B.09. Amicus contends that as a matter of statutory interpretation the more recent and more specific provision — the primary threshold law allowing post primary nominating petitions — should prevail over the pre-primary deadline provision. See Minn.Stat. § 645.26, subd. 1 (2002). Moreover, ami-cus argues that applying the section 204B.09 deadline to prohibit post-primary nominating petitions would violate the canon of statutory construction that statutes should be read to give effect to all of their provisions. See Minn.Stat. § 645.16 (2002). We conclude that we do not need to decide these preliminary issues because the constitutional issue is determinative.

C. Constitutionality of the Primary Threshold Law

Petitioners argue that by prohibiting access to the general election ballot for Independence Party candidates the primary threshold law violates petitioners’ rights protected under the First and Fourteenth Amendments to the United States Constitution to vote and to associate for the advancement of their political beliefs, as well as their rights to equal protection of the laws and due process. Petitioners also assert analogous rights under the Minnesota Constitution.

Petitioners argue that these constitutional rights are infringed because of the discriminatory impact the primary threshold law has on Independence Party candidates and their supporters. Petitioners point out that the number of votes needed to satisfy the ten percent threshold of the statute is different in each legislative district and is different for each party within a district. According to petitioners, the two “old and well-established” major political parties easily satisfy the threshold, but the statute imposes an unfair burden for less-established major political parties. Disparate treatment is also evidenced, petitioners assert, by the fact that the Green Party was able to satisfy the threshold with only 35 votes, but the Independence Party was required to receive over twice as many votes in the same district. Moreover, petitioners argue minor political party candidates who can use the nominating petition process need not satisfy the ten percent threshold at all. Petitioners assert that the primary threshold law denies access to the ballot to the political parties that have “gained sufficient momentum to threaten the well-established major parties.” Petitioners contend that such burdens must be subjected to strict scrutiny and cannot survive unless they are narrowly tailored to fulfill a compelling state interest.

The secretary of state does not disagree with petitioners’ constitutional arguments. Although pointing out that the United States Supreme Court has recognized the right of states to require candidates and political parties to make some preliminary showing of support in order to qualify for a place on the ballot, citing Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986), the secretary of state explains that the Minnesota primary threshold law imposes a burden on candidates that is significantly different than the statute upheld in Munro, because the number of votes required can be significantly different for different parties in the same election year. The secretary of state concludes “[i]t is, therefore, unclear what the State’s interest is in imposing the voting threshold set forth in section 204D.10, subdivision 2.”

Denial of a candidate’s access to the ballot implicates important constitutional rights that are central to preservation of our democracy: the right to vote and the right to associate in pursuit of common political ends. E.g., Anderson v. Celebrezze, 460 U.S. 780, 787-88, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). It is equally well-established that to maintain fair, honest and orderly elections, states may impose regulations that in some measure burden the rights to vote and associate. Id. at 788. In Timmons, the Supreme Court summarized the analytical approach used to address these competing interests in a challenge to a state’s electoral regulations:

When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the “character and magnitude” of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s “ ‘important regulatory interests’ ” will usually be enough to justify “ ‘reasonable, nondiscriminatory restrictions.’ ” No bright line separates permissible election related regulation from unconstitutional infringements on First Amendment freedoms.

520 U.S. at 358-59, 117 S.Ct. 1364 (citations omitted); see also Clayton v. Kiffmeyer, 688 N.W.2d 117, 128-29 (Minn.2004). Petitioners argue, and respondent agrees, that the discriminatory treatment and denial of access to the ballot effected by the primary threshold law are not justified by any compelling, or even rational, state interest.

The irrationality and arbitrariness of the primary threshold law are evident in several aspects of the statute’s operation. First, there is a different primary vote threshold applicable to different political parties. The result is that Independence Party candidates with more demonstrated voter support than Green Party candidates are nevertheless denied access to the general election ballot. This result supports the conclusion that the primary threshold law cannot be justified as a statute that restricts ballot access to candidates who demonstrate some minimum level of support. Moreover, as petitioners point out, there is the incongruity that the Independence Party has qualified as a major political party based on the strength of the votes it received at the last general election. By statute, it retains that major political party status until it fails to gain the requisite voter support at another general election. Minn.Stat. § 200.02, subd. 7(d) (2002). Nevertheless, the primary threshold law deprives candidates of a major political party access to the general election ballot based on the party’s primary results. Finally, although the primary threshold law purports to provide an alternative process for access to the general election ballot through nominating petitions, the statutory reference is to a petition process that is not available after the primary election.

In light of these characteristics of the challenged law and the unusual circumstance that the state, through respondent secretary of state and her counsel, the Minnesota Attorney General, acknowledges that there is no rational state purpose served by the primary threshold law, we need not engage in the weighing of burdens and state regulatory interests prescribed in Timmons. In the absence of any suggested rational purpose for the law, we have no difficulty concluding that by denying Independence Party candidates access to the general election ballot the primary threshold law violates petitioners’ constitutional rights to vote and to associate for the advancement of political beliefs under the First and Fourteenth Amendments. On that basis, we ordered the secretary of state to certify the candidates of the Independence Party who received the most votes in the primary as the nominees of that party for placement on the general election ballot.

Petition granted.

ANDERSON, G. BARRY, 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.

      . According to the petition, each of the petitioners is a registered voter in Minnesota. In addition, petitioner Moore is the chair of the Minnesota Independence Party. Petitioner Allen is the Independence Party candidate for Minnesota House of Representatives from District 41B and received the most votes for that office in the Independence Party primary on September 14, 2004.

      . Section 204D.10, subd. 2, is referred to in this opinion as the "primary threshold law.”

      . "Major political party” is defined in Minn. Stat. § 200.02, subd. 7 (2002). To qualify as a major political party a party must maintain a party organization and must either have had a candidate for Minnesota constitutional office, presidential elector, or U.S. Senator who received votes in each county in the preceding state general election and received votes from not less than five percent of the total number of individuals who voted in that election. A party can also qualify as a major political party by submitting a petition to the secretary of state containing the signatures of party members equal to at least five percent of the total number of voters in the preceding state general election.

      .Section 204D.10, subd. 2, provides:
      If at the state primary any individual seeking a major political party's nomination for an office receives a number of votes equal to ten percent of the average of the votes cast at the last state general election for state officers of that major political party within the district for which the office is voted, then all candidates of that major political party who receive the highest vote for an office are the nominees of that major political party. If none of the candidates of a major political party receive the required ten percent, then no candidates are nominated, and all the candidates of that major political party may be nominated by nominating petition as provided in sections 204B.07 to 204B.09. For the purposes of this subdivision, "state officers” mean the governor, lieutenant governor, secretary of state, state auditor, and attorney general.

      .Those parties are the Democratic-Farmer-Labor Party, the Green Party, and the Republican Party.

      . The nominees of these parties who did not individually meet the threshold nevertheless benefited from other nominee(s) in their party who met the threshold.

      . Apparently, petitioners do not challenge the secretary of state's determinations that none of the Independence Party candidates received the requisite number of votes in the primary election to satisfy the primary threshold law and that at least one of the candidates of each of the other major political parties did.

      . The amicus curiae did not interject this issue. Rather, in our order for briefing and hearing, the court raised the issue of availability of the nominating petition process referenced in the primary threshold law.

      . Chapter 419 of the 1996 session laws is referred to in this opinion as “the 1996 Act.”

      . The secretary of state explains that the primary threshold law, including the safety net of nominating petition access to the ballot, was originally enacted in 1939, and the same legislation established the deadline for filing nominating petitions as 30 days before the general election. Consequently, when the primary threshold law was first enacted, the deadline for filing nominating petitions was after the primary election, and use of nominating petitions by candidates who failed to satisfy the primary election threshold was feasible. In 1961, the deadline for filing nominating petitions was changed to 56 days before the primary election, eliminating the post-primary nominating petition process, but the primary threshold law’s reference to nominating petitions was not changed. See Act of Apr. 20, 1961, ch. 606, §§ 16, 19, 22, 1961 Minn. Laws 1117-19.

      . We are less convinced that the primary threshold law discriminates in favor of long-established major political parties. Petitioners speculate that it is easier for such parties to satisfy the primary voting requirement, but those parties must reach a higher vote threshold in the primary if they received greater support in the previous general election. Logic suggests that the ability to meet the primary threshold may be more a factor of general voter turnout at the primary and the existence of intraparty contests in the primary, which would likely draw more voter interest.

      . We noted in Erlandson v. Kiffmeyer, 659 N.W.2d 724, 732 n. 7 (Minn.2003), that our general practice is to avoid a constitutional ruling if another basis is available on which to decide the case. Nevertheless, as we did in Erlandson, we again address the constitutional issue presented without resolving statutory claims. This approach is appropriate where, as here, the unconstitutionality of the challenged law is conceded by the state, but resolution of contested statutory claims, which must occur on an expedited basis, could affect future issues of statutory interpretation. Cf. id.


author: MEYER, Justice.

text:
    Scott P. ZENANKO, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-219.
    Supreme Court of Minnesota.
    Nov. 24, 2004.
   OPINION

MEYER, Justice.

Scott P. Zenanko appeals from the post-conviction court’s summary denial of his second petition for postconviction relief. On May 12, 1995, a Crow Wing County jury found Zenanko guilty of the crimes of first-degree premeditated murder, first-degree intentional murder while committing a burglary, attempted murder, and first-degree burglary. He was sentenced to consecutive terms of life in prison for each murder conviction, a consecutive term of 180 months in prison for the attempted murder conviction, and a concurrent term of 48 months for the burglary conviction. On direct appeal, we affirmed his conviction. State v. Zenanko, 552 N.W.2d 541 (Minn.1996) (Zenanko I). We subsequently affirmed the denial of Zenanko’s first petition for postconviction relief. Zenanko v. State, 587 N.W.2d 642, 645 (Minn.1998) (Zenanko II). On August 4, 2003, Zenan-ko filed a second petition for postconviction relief. The postconviction court summarily denied Zenanko’s second petition for postconviction relief. We affirm.

A full statement of the underlying facts in this case is contained in our decision on direct appeal. Zenanko I, 552 N.W.2d at 541. In the direct appeal, we affirmed Zenanko’s conviction and denied claims of evidentiary insufficiency as to burglary and felony murder, improper admission of evidence, and prosecutorial misconduct. Id. We also denied Zenanko’s pro se claims of prejudicial security measures and excessive bail. Id.

The first postconviction court summarily denied Zenanko’s first petition, concluding that his claims of prosecutorial misconduct, nondisclosure of evidence, ineffective assistance of trial counsel, improper sentencing, and improper jury instructions were procedurally barred under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn.1976), and the ineffective assistance of appellate counsel claim was “without merit.” Zenanko II, 587 N.W.2d at 645. This court affirmed the postconviction court’s denial of Zenanko’s first petition for post-conviction relief. Id.

Zenanko’s second postconviction petition, at issue in this appeal, was denied. The postconviction court ruled that Zenan-ko’s claims based on ineffective assistance of trial counsel, denial of his constitutional right to discovery of exculpatory evidence, denial of a fair trial and due process, and denial of his right to confront accusers and be present at all stages of trial were procedurally barred under Knaffla. As to his claim of ineffective assistance of appellate counsel, the postconviction court concluded that this claim was without merit.

Postconviction relief may be sought in Minnesota pursuant to Minn. Stat. § 590.01, subd. 1 (2002). Review of a postconviction 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.” Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001) (citing Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)). A petitioner seeking postconviction relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the particular petition. Minn.Stat. § 590.04, subd. 3 (2002); see also Sanders, 628 N.W.2d at 600. In addition, a petitioner’s allegations must be “more than argumentative assertions without factual support.” Hodgson, 540 N.W.2d at 517 (citing Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).

The first issue in this appeal is whether the postconviction court abused its discretion when it concluded that Zen-anko’s claims of ineffective assistance of trial counsel, denial of his constitutional right to discovery of exculpatory evidence, denial of a fair trial and due process of law, and denial of his constitutional right to confront accusers and to be present at all stages of trial were barred by Knaffla. 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 post-conviction relief.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. There are two exceptions to Knaffla: (1) if a novel legal issue is presented, or (2) if the interests of justice require relief. 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. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991). In addition, the court has stated that though a claim of ineffective assistance of trial counsel is generally barred if not raised on direct appeal, an exception exists when the court needs to conduct additional fact-finding to consider the claim on its merits. Ives, 655 N.W.2d at 636.

Zenanko argues that under the interests of justice exception to Knaffla, fairness requires substantive review of his claims because of: (1) the refusal to grant petitioner a complete set of trial transcripts, (2) the bias of the postconviction judge, (3) the “improper procedural default” caused by appellate counsel’s advice, (4) the uneonstitutionality of Knaffla, (5) the retroactive application of the rules created in Black v. State, 560 N.W.2d 83 (Minn.1997), and (6) the improper procedural default of Zenanko’s ineffective assistance of counsel issue. Having carefully reviewed Zenanko’s arguments, we conclude that they are without legal merit and factual support. Therefore, we hold that no exception to Knaffla applies in this case and the postconviction court did not abuse its discretion in summarily denying Zenan-ko’s claims of ineffective assistance of trial counsel, denial of his constitutional right to discovery of exculpatory evidence, denial of his constitutional right to a fair trial and due process of law, and denial of his constitutional right to confront accusers and to be present at all stages of trial.

The remaining issue is whether the post-conviction court abused its discretion when it denied Zenanko’s ineffective assistance of appellate counsel claim. Zenanko argues that his appellate counsel in his direct appeal incorrectly informed him that he would be able to raise a claim of ineffective assistance of trial counsel in a postconviction petition. In essence, Zenanko claims that had he known that his ineffective assistance of trial counsel claims would be Knaffla-b&rred in a postconviction hearing, he would have brought those claims in his direct appeal. In the instant appeal, Knaffla does not bar Zenanko’s ineffective assistance of appellate counsel claim because the claim could not have been known until after his ineffective assistance of trial counsel claim was denied in his first petition for postconviction relief.

To prove ineffective assistance of counsel, Zenanko must show that his counsel’s representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” Boitnott v. State, 631 N.W.2d 362, 370 (Minn.2001) (citing State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption that counsel’s performance was reasonable. Boitnott, 631 N.W.2d at 370 (citing State v. Jones, 392 N.W.2d 224, 236 (Minn.1986)). Courts may first address the prejudice prong of the ineffective assistance of counsel analysis and in instances where there is no actual prejudice, courts can avoid evaluating the performance of counsel. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; see also Dukes v. State, 621 N.W.2d 246, 254 (Minn.2001). Accordingly, we begin by analyzing whether Zenanko suffered any prejudice.

To succeed on his ineffective assistance of appellate counsel claim, Zen-anko must first show that trial counsel was ineffective. See Sullivan v. State, 585 N.W.2d 782, 784 (Minn.1998) (stating if defendant “cannot establish a claim of ineffective assistance of trial counsel, his appellate counsel claim automatically fails”). After careful review of the record, we conclude that Zenanko’s claims of ineffective assistance of trial counsel are not supported by the facts and are entirely without merit. Accordingly, Zenanko has failed to establish the prejudice prong of his ineffective assistance of appellate counsel claim. Therefore, it is not necessary to reach the question of whether counsel’s representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Dukes, 621 N.W.2d at 254. We affirm the post-conviction court’s denial of Zenanko’s claim of ineffective assistance of appellate counsel.

In conclusion, we hold that the postcon-viction court did not abuse its discretion when it summarily denied Zenanko’s second petition for postconviction relief.

Affirmed.

ANDERSON, G. BARRY, J., not having been a member of the court at the time of submission, took no part in the consideration or decision of this case.

      . Zenanko also filed a motion for change of venue, a motion for court-authorized funding for voir dire transcripts, and a motion to extend the time for ruling on his second post-conviction petition. These motions were denied and were not included in Zenanko's notice of appeal.

      . Zenanko also included in his petition a claim of "other constitutional grounds as may arise.” We will not consider this claim because a petitioner's allegations must be "more than argumentative assertions without factual support.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995).

      . Zenanko claims that his trial counsel was ineffective because he: (1) did not present the affirmative defense of self-defense, (2) failed to conduct pretrial investigations or review the state’s discovery, (3) did not introduce two pieces of evidence that were favorable to the defense, (4) failed to use impeachment evidence against three of the state's witnesses, (5) failed to object or have placed on the record the extraordinary security measures used throughout trial, (6) failed to object to prosecutorial misconduct in the state's opening statement and closing argument to the jury, (7) lied to Zenanko about his rights, (8) operated under a conflict of interest, (9) waived Zenanko's right to an omnibus hearing, and (10) admitted his guilt to lesser-included offenses.


author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Shane Michael PETSCHL, Appellant.
    No. A03-1803.
    Court of Appeals of Minnesota.
    Nov. 23, 2004.

      Mike Hatch, Attorney General, St. Paul, MN and Donald F. Ryan, Crow Wing County Attorney, John Sausen, Assistant County Attorney, Brainerd, MN, for respondent.
    Rachael Goldberger, Strauss & Goldber-ger, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; PETERSON, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant argues that (1) his counsel was ineffective for not clearly explaining to appellant that the district court could impose an upward departure regardless of the state’s agreement not to seek an upward departure; (2) the district court erred in sentencing appellant without considering the results from a court-ordered neuropsychological examination; (3) the district court abused its discretion in granting a double upward departure; and (4) he was denied due process. The post-conviction court rejected appellant’s claims. At oral argument, the parties were granted leave, at appellant’s counsel’s request, to file supplemental briefs addressing the impact of Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and specifically whether Blakely applies retroactively to appellant’s conviction. Because Blakely does not apply retroactively in this case, and because the postconviction court did not abuse its discretion in denying appellant’s postconviction petition, we affirm.

FACTS

Appellant Shane Michael Petschl was charged with first-degree assault for putting a blanket over his three-week old son’s head and punching him. Petschl pleaded guilty to first-degree assault in exchange for the state’s agreement not to seek an upward departure. At the plea hearing, the district court judge asked appellant if he understood that the district court could still depart upward from the sentencing guidelines, even though the state had agreed not to seek an upward departure. Appellant acknowledged that the decision to upwardly depart was the district court’s sole prerogative.

The district court ordered a presentence investigation and a psychological evaluation, and the presentence investigation recommended an upward departure. On July 21, 1997, the district court sent a notice to the county attorney and appellant’s counsel informing them that it was considering a departure from the sentencing guidelines. Appellant contends, however, that his counsel never informed him of the court’s notice.

After receiving the results of the psychological exam on October 30, 1997, the district court ordered an additional independent neuropsychological examination to determine whether a 1991 head injury suffered by Petschl had resulted in his diminished capacity. The order stated that the examination was to be completed within 30 days. The examination was performed on November 17, and December 5, 1997, but the results were not filed with the district court until December 18, 1997, a week after sentencing. The district court sentenced appellant without reviewing the examination report. Appellant’s attorney did not object to the district court’s decision to proceed with sentencing without reviewing the report.

On December 11, 1997, the district court sentenced appellant to a 196-month commitment; a double upward departure from the presumptive 98-month sentence. In support of the departure, the district court discussed philosophical reasons for sending people to prison, stating that someone should be incarcerated for criminal conduct: as a deterrent to others, to punish the offender, for rehabilitation of the offender, and for public safety. The district court stated that all of these factors applied to appellant. Further, the district court noted that appellant had a prior record and that the victim was vulnerable. The district court concluded by stating that it accepted the rationale and recommendations of the presentence investigation.

On January 24, 2003, appellant filed a petition for postconviction relief. At the postconviction evidentiary hearing, appellant’s trial attorney, Charles Halverson, testified that he did not believe it was likely that appellant would get an upward departure, and that this was his only case where the judge indicated that he was considering a departure, and then actually departed. Halverson testified that he did not remember if the judge ordered a neu-ropsychological examination. After the hearing, Halverson submitted an affidavit stating that after he listened to the entire postconviction hearing, he recalled that the sentencing judge had ordered an independent neuropsychological examination. Halverson also stated in the affidavit that he should have objected when the judge decided to proceed with sentencing without the report and that his failure to object constituted ineffective assistance of counsel.

Appellant testified at the postconviction hearing that he believed he was going to get the presumptive sentence of 98 months or maybe a downward departure with a “slight possibility” of an upward departure. Appellant further testified that he gave up his right to trial in order to avoid an upward departure; he knew an upward departure was possible, but his counsel led him to believe that the court would not upwardly depart. Appellant testified that he did not see the notice from the judge stating that he was considering seeking an upward departure.

The district court denied appellant’s petition for postconviction relief. This appeal follows.

ISSUES

I. Was appellant denied effective assistance of counsel?

II. Does Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) apply retroactively on collateral review of appellant’s conviction?

III. Did the district court abuse its discretion in granting a double upward departure from the presumptive sentencing guidelines?

IV. Was appellant denied due process?

ANALYSIS

I

First, appellant argues that his counsel was ineffective because his counsel advised him to enter into the plea agreement without a guarantee that the district court would not upwardly depart at sentencing. Appellant argues that his counsel “should have made it part of the deal that there would not be an upward departure or appellant could withdraw the plea.” Additionally, appellant contends that his counsel’s failure to object to the district court’s decision to sentence without the results of the neuropsychological report constitutes ineffective assistance of counsel. We con-elude that neither of appellant’s claims constitute ineffective assistance of counsel.

Appellate courts “review a post-conviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous. The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. (citation omitted).

In determining whether to grant a defendant a new trial on the ground of ineffective assistance of counsel, the Minnesota Supreme Court adopted the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gates v. State, 398 N.W.2d 558, 561 (Minn.1987). First, the burden is on the petitioner to affirmatively prove that counsel’s representation fell below an objective standard of reasonableness. Id at 561. “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (quotation omitted). “There is a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.” Pierson v. State, 637 N.W.2d 571, 579 (Minn.2002) (quotation omitted).

Second, for a claim of ineffective assistance of counsel to stand under Strickland, the defendant must show that counsel’s errors actually had an adverse effect and that but for the errors, there is a reasonable probability that the result of the proceeding would have been different. Gates, 398 N.W.2d at 561. This court may dispose of an ineffective-assistance claim when the appellant fails to prove that there was a reasonable probability the outcome would have been different. Id. at 563; see also Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70.

The postconviction court concluded that appellant was aware at the time of his plea that the plea agreement did not bind the district court at sentencing and, therefore, the district court could upwardly depart from the guidelines. Further, the district court concluded that its July 21, 1997 notice that it may depart upward did not contain any new information. Thus, as the postconviction court correctly noted, even if appellant’s counsel failed to show him the notice, it “was not an omission outside the wide range of professionally competent assistance, since [appellant] was already aware that the Court could consider an upward departure.”

Moreover, at the guilty-plea hearing, the district court asked appellant: “[although the agreement has been that the State would not ask for an upward departure, you still realize that a court can upward depart from the Sentencing Guidelines?” Appellant replied affirmatively. The court asked appellant three follow-up questions, ensuring that he understood the court could depart. Appellant again replied affirmatively, and the court accepted appellants guilty plea. Appellant testified at the postconviction hearing, and argues to this court, that had he known the district court would upwardly depart, he would not have pleaded guilty. But the exchange appellant had with the court directly contradicts that testimony. Further, at the postcon-viction hearing, he admitted that he knew there was a “slight chance” that the court could upwardly depart. Therefore, we conclude that the second Strickland prong disposes of appellants claim of ineffective assistance of counsel because appellant knew he might face an upward departure when he pleaded guilty, and thus has failed to show that there is a reasonable probability that the outcome would have been different.

Likewise, appellant was not prejudiced by the district court’s failure to review the neuropsychological report before sentencing appellant. At sentencing, the district court had before it a nine-page psychosocial assessment, a three-page neu-ropsychological report, and the testimony of appellant’s treating psychologist; thus the sentencing court was well-informed of appellant’s psychological condition. Second, the postconviction court noted the report concluded that appellant was not “afflicted by brain injury entailing diminished capacity,” and that the “crime is not attributed to brain dysfunction.” Our independent review of the report confirms that it contained no findings to support appellant’s diminished-capacity claim. Indeed, the evaluator stated that there was no current indication of brain dysfunction, and “no reason to suppose otherwise respecting his status at the time of his crime.” On these facts, we conclude that appellant was not prejudiced by his attorney’s failure to object to the district court’s failure to review the report prior to sentencing. Therefore, we affirm the post-conviction court’s conclusion that appellant was not denied effective assistance of counsel.

For the same reason, appellant’s related argument that the district court erred by failing to review his neuropsycho-logical report before sentencing also fails. Again, the postconvietion court concluded that it was not error for the district court to sentence appellant without reviewing the report because the report concluded that appellant was not “afflicted by brain injury entailing diminished capacity” and that the “crime is not attributed to brain dysfunction.” Thus, the district court’s failure to review the report prior to sentencing appellant was, at most, harmless error. Accordingly, we affirm the postcon-viction court’s denial of appellant’s petition.

II

Next appellant argues that the district court erred by imposing a double durational departure of 196 months in violation of Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

After briefing in this appeal was completed, the United States Supreme Court issued an opinion in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court applied the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), which states that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Blakely, 124 S.Ct. at 2536. Under Blakely, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 2537. Therefore, any sentencing departures that are based on the judge’s findings, rather than those of the jury, are invalid under the Sixth Amendment. Id. at 2538. In addition, this court has recently held that durational departures under the Minnesota Sentencing Guidelines are subject to Blakely’s holding that the Sixth Amendment requires the jury to make the findings supporting an increase in sentence. State v. Conger, 687 N.W.2d 639, 644 (Minn.App. Oct.12, 2004).

Like the sentencing departure in Blakely, the upward departure in appellant’s sentence is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court’s determination that the evidence proved several specific aggravating factors. Thus, at oral argument in this matter, appellant’s counsel requested leave to submit a supplemental brief addressing the impact of Blakely. But, given that appellant was convicted and sentenced in 1997, this court questioned whether Blakely applies retroactively to appellant’s 1997 sentence, and instructed the parties to submit supplemental briefs on that issue. After reviewing the parties’ supplemental briefs, we conclude that Blakely does not apply retroactively in this case.

The determination of whether a decision applies retroactively or nonret-roactively is a legal question that we review de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002). Here, we first note that a petition for postconviction relief is a collateral attack on a conviction. Meemken v. State, 662 N.W.2d 146, 148 (Minn.App.2003). The Meemken court made clear that the rule announced in Apprendi does not retroactively apply to collateral challenges. Id. at 150.

But appellant argues that his postconviction appeal was not a collateral attack on his conviction because his post-conviction appeal was his first challenge to the upward durational departure. Thus, appellant claims, he is entitled to benefit from Apprendi and Blakely. But appellant’s argument is misplaced because his time to appeal expired 90 days after entry of final judgment in his case. See Minn.R.Crim. P. 28.02, subd. 4(3) (providing defendant must appeal from final judgment in 90 days). Here, the district court sentenced appellant on December 11, 1997. Appellant did not perfect a direct appeal by March 11, 1998. As such, appellant’s conviction was final on March 11, 1998.

It is axiomatic that a case is final when a “judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Conversely, a case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed, or a petition for certiorari with the supreme court has been filed and finally denied. Id. Therefore, appellant’s conviction was final in 1998, whether he appealed or not, and his postconviction petition is a collateral attack on that conviction.

Alternatively, appellant argues that even if his conviction was final in 1998 and his present postconviction petition is a collateral attack on that conviction, he is entitled to relief under Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989), because Blakely constitutes a “watershed rule of criminal procedure” which may be retroactively applied on collateral review. Teague, 489 U.S. at 311, 109 S.Ct. at 1076.

As a general matter, subject to two exceptions, if a defendant’s conviction is already final at the time the new rule of law is announced, then the defendant may not avail himself of the new rule. Teague, 489 U.S. at 310-11, 109 S.Ct. at 1061; O’Meara, 679 N.W.2d at 339. Thus, to evaluate appellant’s claim we must first determine whether Blakely announced a new constitutional rule.

Pursuant to Teague, a court’s decision enunciates a “new rule of law” when the decision was not “dictated ” by precedent existing at the time the defendant’s conviction became final. Teague, 489 U.S. at 301, 109 S.Ct. at 1070; O’Meara, 679 N.W.2d at 339.

In O’Meara, the Minnesota Supreme Court addressed the retroactivity of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and held, inter alia, that because “Apprendi unmistakably altered the legal landscape [it] is easily categorized as a new rule.” O’Meara, 679 N.W.2d at 339, quoting United States v. Moss, 252 F.3d 993, 998 (8th Cir.2001), cert. denied, 534 U.S. 1097, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002). Blakely similarly announced a new constitutional rule at least for purposes of this appeal as the parties agree, because it was not dictated by precedent existing when appellant’s conviction became final, which was before the release of Apprendi.

At the time appellant’s conviction became final in 1998, the Supreme Court still approved statutory sentencing schemes under which certain facts affecting the sentence were treated as sentencing factors only, not elements of the crime to be found by the jury. See McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67 (1986). The Court had “rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed.” Monge v. California, 524 U.S. 721, 729, 118 S.Ct. 2246, 2250-51, 141 L.Ed.2d 615 (1998). The most that a mi nority of the Court would have asserted at the time is that a fact that increases the maximum possible sentence must be considered an element of the offense, to be proven beyond a reasonable doubt. See id. at 738, 118 S.Ct. at 2255 (Scalia, J., dissenting). It appears that no member of the Court had advanced the idea adopted in Blakely that a fact that merely increased the sentence above a fixed presumptive term but still below the statutory maximum, must be found by a jury.

As a new constitutional rule, Blakely may only be applied retroactively to cases on collateral review if it: (1) places certain kinds of individual conduct beyond the power of the government to criminally proscribe; or (2) requires the observance of procedures that are “implicit in the concept of ordered liberty,” meaning a “watershed rule[] of criminal procedure” that alters the understanding of the basic procedures essential to the fairness of a criminal conviction. Teague, 489 U.S. at 307, 311, 109 S.Ct. at 1073, 1076 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)). Appellant does not claim that the first Teag-ue exception is applicable to his ease. Rather, appellant argues that Blakely is a “watershed rule of criminal procedure” because it increases the accuracy of the underlying criminal proceeding by requiring a jury determination — beyond a reasonable doubt — of any facts used to support an upward durational departure. We disagree.

This court has previously held that the right to a jury determination of facts relevant only to sentencing does not fall within either of the Teague exceptions. See Meemken v. State, 662 N.W.2d 146, 150 (Minn.App.2003). In holding that Ap-prendi was not of watershed magnitude, this court in Meemken, stated that: “[w]e recognize that the Apprendi rule improves the accuracy of a sentence.” However, the rule does not increase the reliability of the determination of guilt; it only limits the sentencing exposure of those who have already been validly convicted. Id. (citing Moss, 252 F.3d at 997). Blakely has the same procedural effect as Apprendi, increasing the accuracy of the sentence but not the conviction. Because the Blakely rule does not improve the accuracy or fairness of a trial, we conclude that it is not a watershed rule subject to retroactive application on collateral review. Accordingly, we now analyze the propriety of the district court’s upward durational departure independent of Blakely.

Ill

If a trial court decides to depart, it must state its reasons for departure on the record, and the reasons must justify the departure. Williams v. State, 361 N.W.2d 840, 843 (Minn.1985); Minn. Sent. Guidelines II.D. The sentencing commission has produced a nonexclusive list of appropriate aggravating and mitigating factors to assist a trial court considering departure in its analysis. See Minn. Sent. Guidelines II.D.2. While there are only “a small number of cases where substantial and compelling aggravating ... factors” militate towards departing from the guidelines, the decision to depart is one for the trial court. Minn. Sent. Guidelines II.D.01 cmt. The reviewing court shall not overturn the exercise of that discretion without clear evidence of its abuse. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).

Appellant argues that the district court abused its discretion by not clearly identifying, on the record, its reasons for upwardly departing. Further, appellant contends that, even if this court finds that the district court did sufficiently identify appropriate aggravating factors on the record, it abused its discretion by upwardly departing because the factors it cited were not substantial and compelling. Here, the district court referenced appellant’s prior charge of criminal sexual conduct and stated that the current offense was unconscionable and inexcusable. But appellant argues that the cruelty of the crime was no different from the cruelty typically associated with a first-degree assault. Moreover, appellant claimed (presumably as mitigating factors) that the victim suffered no permanent injury and that he covered the infant with a blanket to shield the blow. In addition, appellant testified that he took the infant to the hospital when he noticed swelling.

The postconviction court concluded that the circumstances supporting the upward departure were compelling and substantial and supported by the record. We agree. The district court relied on appellant’s prior conviction and the victim’s vulnerability to depart. Minnesota Sentencing Guidelines II.D.2.b.(3) states that if the defendant’s conviction is for “an offense in which the victim was otherwise injured, and there is a prior felony conviction for a Criminal Sexual Conduct offense or an offense in which the victim was injured,” this prior conviction is an aggravating factor supporting upward departure. In addition, this court has held that an appellant’s prior conviction for a crime involving injury to a victim alone may be sufficient to justify an upward durational departure. State v. Peake, 366 N.W.2d 299, 301 (Minn.1985). “This is so because repeated crimes against persons pose a greater threat to society than repeated property crimes.” State v. Larson, 379 N.W.2d 165, 167 (Minn.App.1985).

The particular vulnerability of the victim is also an aggravating factor supporting an upward departure. Minn. Sent. Guidelines II.D.2.b.(1); State v. Wickstrom, 405 N.W.2d 1, 6 (Minn.App.1987). Appellant contends that the cruelty of his actions was encompassed in the first-degree assault charge. In support of his argument, appellant cites State v. Lindsey, 654 N.W.2d 718, 726 (Minn.App.2002), where this court modified the appellant’s sentence to the presumptive sentence. But the posteonviction court properly distinguished Lindsey, which involved an adult male assaulting a correctional officer by punching and kicking him. Id. Here, appellant punched his three-week-old son in the head two times, fracturing his skull. Appellant then waited until the next day to take his son to the hospital. This was an extremely cruel and vicious assault, and it is difficult to conceive of a victim more vulnerable than a three-week-old infant. Therefore, we conclude that the evidence in the record supports the district court’s decision to depart, and affirm the postcon-viction court’s conclusion that the district court did not abuse its discretion.

IV

Finally, appellant argues that he was denied due process because “Appellant had the unfortunate luck of being in a system where everyone involved wanted to close his file.” Appellant contends that his attorney wanted to “close his file” because he was handling more than 100 felonies. Further, appellant speculates that the reason the sentencing court did not wait to review the neuropsychological report was because the judge was a visiting judge who was not at court very often, and granting a continuance could take months.

Appellant’s due-process argument is not supported by the record. Appellant agreed to plead guilty, and the district court thoroughly reviewed the consequences of his plea with appellant before accepting his plea. Moreover, the court rescheduled appellant’s sentencing hearing approximately three times, apparently in an attempt to have a complete record for sentencing. And, in fact, the district court ordered a psychosocial assessment, which it was not required to do, and then, upon recommendation of the psychosocial assessment, ordered the additional neuropsy-chological examination. Based on these facts, the record reflects that appellant received all the process he was due. Therefore, we conclude that the district court did not deny appellant due process and affirm the denial of appellant’s post-conviction petition.

DECISION

Because Blakely established a new constitutional rule that does not fall within either of the Teague exceptions, Blakely does not apply retroactively to collateral review of appellant’s 1998 conviction. In addition, appellant was not denied effective assistance of counsel; the district court did not abuse its discretion in granting a double upward departure; and appellant was not denied due process. Accordingly, we affirm the postconviction court’s denial of appellant’s postconviction petition.

Affirmed.

      . In his principle appellate brief, appellant stated that he was represented by the state public defender's office and that he previously filed an appeal with this court. According to appellant, the appeal was dismissed prior to a decision on the merits.


author: PER CURIAM.

text:
    2004 ND 206
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Bruce L. MADLOM, a Member of the Bar of the State of North Dakota Disciplinary Board of the Supreme Court of North Dakota, Petitioner v. Bruce L. Madlom, Respondent.
    No. 20040280.
    Supreme Court of North Dakota.
    Nov. 4, 2004.
   PER CURIAM.

[¶ 1] On May 4, 2004, Bruce L. Mad-lom admitted service of the Summons and Petition for Discipline. The Petition for Discipline asserts that Madlom was admitted to practice law in the State of North Dakota on September 25, 1989, and has been an attorney at law since that time.

[¶2] The Petition further asserts in May of 2003, Bonnie Bell retained Madlom for the purpose of filing a Chapter 7 Bankruptcy, and Bell agreed to pay $750 for Madlom to prepare and file the bankruptcy petition and represent her at the first meeting of creditors. Bell also agreed to pay the $200 filing fee for filing the bankruptcy petition. The fee agreement provided “all fees paid are non-refundable and are considered as earned attorneys fees regardless whether or not you proceed with the completion of the bankruptcy process.” (Emphasis in original.) Bell also agreed to assume full responsibility for the remaining balance of Heather Bell’s (Bell’s adult daughter) bill for attorney fees in the amount of $1,157.90. Bell and Madlom agreed to an initial payment of $350 for the filing fee and initial installment, to be followed by monthly installments of $150 until Bell’s “account is paid in full.” The retainer agreement also provided that if Bell fell behind in her payments, the bankruptcy petition would not be filed.

[¶ 3] The Petition further asserts that when Bell inquired why her bankruptcy petition had not been filed, she was told that the bankruptcy petition would be filed when she paid her attorney’s fees and filing fee. Bell understood this included that her daughter’s bill would also have to paid in full. Madlom’s statement of account dated December 19, 2003, reflects attorneys fees of $750, plus a balance of $1,157.90 from Heather Bell’s bankruptcy, less payments totaling $630, leaving a balance of $1,227.50.

[¶ 4] By letter dated January 2, 2004, Bell discharged Madlom as her attorney, and requested the return of any monies paid to Madlom. Madlom did not file a bankruptcy petition on Bell’s behalf, nor did he refund any monies to Bell or agree to relieve her of her promise to assume her daughter’s prior legal bill.

[¶ 5] The Petition alleges that Madlom violated N.D.R. Prof. Conduct 1.4, (Communication), N.D.R. Prof. Conduct 1.5(a) and (b) (Fees), N.D.R. Prof Conduct 1.16(e) (Declining or Terminating Representation). The Petition further alleges that N.D. Stds. Imposing Lawyer Sanctions 9.22 is an aggravating factor. See Disciplinary Board v. Madlom, 549 N.W.2d 196 (N.D.1996).

[¶ 6] On October 8, 2004, Madlom along with Brent J. Edison, Assistant Disciplinary Counsel, filed a Stipulation and Consent to Discipline. Madlom stipulated that he violated N.D.R. Prof. Conduct 1.4, (Communication), N.D.R. Prof. Conduct 1.5(a) and (b) (Fees), and N.D.R. Prof Conduct 1.16(e) (Declining or Terminating Representation), and consented to a reprimand by the Supreme Court. Madlom also consented to an order of restitution to Bonnie Bell in the amount of $630, that Bell be released from any obligation to pay her daughter’s legal bill, and to pay costs in the amount of $250.

[¶ 7] The Hearing Panel filed its Report on October 8, 2004, accepting the Stipulation and Consent to Discipline, and concluding Madlom did not adequately explain the terms of his engagement and the requirements of his fee agreement in violation of N.D.R. Prof. Conduct 1.4; Madlom charged a “non-refundable” $750 fee to prepare and file a Chapter 7 bankruptcy petition and represent Bell in the first meeting of creditors, but failed to make a refund of fees when representation was terminated before the bankruptcy petition was filed in violation of N.D.R. Prof. Conduct 1.5(a); Madlom failed to adequately communicate the terms of his engagement and the requirements of his fee agreements in violation of N.D.R. Prof. Conduct 1.5(b); and Madlom did not refund fees upon termination of representation in violation of N.D.R. Prof. Conduct 1.16(e). The Hearing Panel recommended Madlom be reprimanded by the Supreme Court, pay restitution to Bell in the amount of $630 and relieve her of her obligation to pay her daughter’s legal bill, and pay the costs of the disciplinary proceedings in the amount of $250.

[¶ 8] The matter was submitted to the Court under N.D.R. Lawyer Discipl. 3.1(F)(2). Objections to the Report of the Hearing Panel were due October 31, 2004; no objections were filed. The Court considered the matter, and

[¶ 9] ORDERED, the Report of the Hearing Panel of the Disciplinary Board is accepted.

[¶ 10] FURTHER ORDERED, Bruce L. Madlom is reprimanded for violation of N.D.R. Prof. Conduct 1.4, (Communication), N.D.R. Prof. Conduct 1.5(a) and (b) (Fees), N.D.R. Prof Conduct 1.16(e) (Declining or Terminating Representation).

[¶11] FURTHER ORDERED, Bruce L. Madlom pay restitution in the amount of $630 to Bonnie Bell, and release Bonnie Bell from any obligation to pay her daughter’s bill.

[¶ 12] FURTHER ORDERED, Bruce L. Madlom pay the costs of the disciplinary proceedings in the amount of $250.

[¶ 13] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.