author: BLATZ, Chief Justice.

text:
    Ryan Michael PEDERSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-63.
    Supreme Court of Minnesota.
    Feb. 24, 2005.

      Deborah Ellis, St. Paul, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, St. Paul, MN, Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Ryan Michael Pederson was convicted in the Tenth Judicial District of aiding and abetting first-degree murder while committing burglary under Minn. Stat. § 609.185(3) (2004) and aiding and abetting second-degree intentional murder under Minn.Stat. § 609.19(1) (2004) and was sentenced to life in prison. Appellant directly appealed to this court, arguing inter alia that the uncorroborated accomplice testimony of Stephen Dean provided the only evidence that appellant participated in the murder. State v. Pederson, 614 N.W.2d 724 (Minn.2000) (“Pederson I ”). This court affirmed appellant’s conviction, concluding that the physical evidence and the testimony of Tony Moses, a key state witness, corroborated the testimony of appellant’s accomplice. Id. at 732-34.

Upon learning that Moses had prepared for trial using a seven-page summary (“Summary”) of his police statement and grand jury testimony compiled by the state but not disclosed to appellant’s counsel, appellant filed a petition for postcon-viction relief claiming he was entitled to a new trial due to newly discovered evidence, prosecutorial misconduct, improper vouching, and subornation of perjury. The postconviction court summarily denied appellant’s request for relief, adopting verbatim the state’s proposed findings, conclusions, and order denying postconviction relief without affording appellant’s counsel the opportunity to review those submissions or to provide alternate versions. Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002). This court reversed and remanded for reconsideration, stating that little deference attached to “a postconviction order exonerating the prosecution of allegations of serious misconduct when that order is predicated ex parte on findings and conclusions drafted by the prosecution.” Id. at 164.

On remand, the case was transferred from the Tenth Judicial District to the Seventh, and a two-day postconviction evi-dentiary hearing was held. The postcon-viction court concluded that appellant’s right to a fair trial was not compromised by the state’s nondisclosure of the Summary and that the state’s conduct did not deny appellant a fair trial. We affirm the postconviction court’s denial of relief.

The victim, Robert Anderson, a 32-year-old man, was found in his home beaten and stabbed to death on August 20, 1997. Pederson I, 614 N.W.2d at 726. On May 14, 1998, a grand jury indicted appellant, Ryan Michael Pederson, and his close friend Stephen Dean on three counts of first-degree murder and aiding and abetting first-degree murder. Id. at 727. Dean subsequently entered into a plea agreement with the state and testified at appellant’s trial. Id. at 727. Appellant was convicted by a jury of first-degree murder committed in the course of a burglary and second-degree murder. Id. at 730.

Tony Moses was a close friend of both Dean and appellant. At the time the murder took place, Dean was 20 years old, Moses was 18, and appellant was 17. Moses was not involved in the killing, but he spoke with both Dean and appellant by telephone shortly after the murder and then again in person at Dean’s house six or seven hours later. Further, Moses saw Dean and appellant frequently in the days following the killing, and he spoke with each man individually about how the killing took place.

Six days after the murder, the police responded to a report that someone was breaking into Anderson’s mobile home. The first officer on the scene observed a man carrying a chair from Anderson’s home to Dean’s mobile home next door. The officer pursued the man into Dean’s home, where he found appellant, Dean, Moses, and three others. All were arrested and taken to the station. Subsequently, Moses gave two recorded statements to the police and testified at the grand jury proceedings.

Moses was uncooperative during his first statement to the police. He then retained an attorney, who negotiated an agreement with the state that provided Moses with “use” immunity during his second police statement and his grand jury testimony. The terms of this immunity were set forth in a letter prepared by the state, which stated that “nothing [Moses] says during the statement could be used against him in any criminal prosecution.” However, the state stipulated that “[o]nce [Moses] has given the statement to law enforcement, whatever information and/or evidence law enforcement obtains as a result of information provided by [Moses] could still potentially be used against [Moses] in any future criminal prosecution.” The state further noted that “[t]he granting of ‘use immunity’ does not, in any manner, limit or prohibit the State’s ability to pursue charges against [Moses] based upon otherwise admissible evidence.”

After agreeing to the terms of the offer of use immunity, Moses gave a second statement to the police and related the details of his interactions with appellant and Dean after the murder.’ The state later asked Moses to waive the immunity granted in the agreement before testifying at the grand jury so that Moses could testify “freely” and “voluntarily.” After consulting with his attorney, Moses agreed to do so, and testified before the grand jury without immunity.

At trial, both Dean and appellant testified that they went together to Anderson’s home, located next door to Dean’s home, on the night of the murder. However, their testimony regarding how the killing occurred differed dramatically. According to Dean, the two devised a plan to steal Anderson’s television, and they discussed the possibility of having to kill him in the process. Dean testified that once they were at Anderson’s home, appellant began physically assaulting him — -progressing from “elbowing” to “stomping” to “kicking.” Dean stated that while appellant beat Anderson, he (Dean) looked through Anderson’s home in search of things to steal, but that at one point during the assault he helped appellant by holding Anderson down. According to Dean, it was appellant who decided it was necessary to kill Anderson, which appellant accomplished by beating him with the stock of a rifle and stabbing him multiple times with a kitchen knife.

In contrast, appellant testified that he and Dean went to Anderson’s home to drink and smoke marijuana, but they never discussed stealing anything. According to appellant, in the course of their visit, Dean and Anderson began to argue. The argument escalated into a physical fight between Dean and Anderson. Appellant testified that after the two men “wrestled” on the sofa, Dean got up, leaving Anderson free to walk down the hallway where he could have left through the back door. Instead, according to appellant, Anderson “charged” Dean and the two began wrestling again, stopping only when Anderson’s VCR fell and broke. Dean then kicked Anderson’s small dog down the hallway. Anderson retrieved the dog from the hallway, but did not leave through the back door. Rather, according to appellant, he returned with a rifle from the back room. Dean then wrestled the rifle away from Anderson and proceeded to physically assault him with his fists and the rifle. Appellant stated he did not intervene in the fight, but instead repeatedly asked Dean to leave with him. Appellant then left alone, going next door to Dean’s home to wait for Dean to return.

About 6:00 a.m., Dean returned to his home and paged Moses. Moses called Dean’s number and spoke with Dean, who told Moses he needed help to “get rid of some stuff.” Moses testified that Dean said, “We killed the neighbor.” During this conversation, Moses testified that he could hear appellant in the background “freaking out.” Moses called again and this time spoke with appellant, asking him, “Did you guys really do it?” Appellant answered, “Yeah, the neighbor is dead,” and then told Moses that he and Dean took a VCR and a television from Anderson.

Dean’s testimony regarding the two telephone calls conformed to the substance of Moses’ testimony. Appellant’s testimony regarding the calls, however, differed in two ways from Moses’ account. First, appellant testified that he heard Dean tell Moses that he (Dean) “just killed the neighbor.” Second, appellant denied telling Moses that he and Dean had taken anything from Anderson’s home, although he confirmed that he told Moses “the neighbor is dead.” Immediately after speaking with both Dean and appellant, Moses testified that he told his girlfriend, the “D — heads just killed the neighbor.” She testified that on the morning of the murder she observed Moses on the phone, and that when the call was completed he told her about the conversations he had just had.

Following the early-morning murder, Dean and appellant spent the day together, going to McDonald’s for breakfast, then running multiple errands, including buying new tennis shoes, before returning to Dean’s home. When they returned, Moses and another friend were waiting for them. Dean testified that he and appellant had put their bloody clothes and tennis shoes into a garbage bag and asked Moses to dispose of it. Moses then asked if he could have appellant’s discarded shoes, which were fairly new. After appellant agreed, Moses took the bag and drove to a nearby lake, where he stopped and tried on appellant’s shoes. After finding they were too big, Moses put them back into the bag and threw the bag in a dumpster. Moses testified that the distinctive “dot pattern” on the shoes’ soles matched the bloody footprints left on Anderson’s floor. The coroner testified that this same “dot pattern” was consistent with the pattern found on Anderson’s sweater, specifically testifying that it was “almost certain” that marks on Anderson’s body were caused by the person who was wearing the shoes “stomping” with “violent force” on his back. Dean corroborated that the shoes appellant wore the night of the murder had a dot pattern on the sole.

Moses testified that during the days following the murder, he had separate, private conversations with both Dean and appellant. According to Moses, and confirmed by Dean at appellant’s trial, in one conversation Dean related the details of the killing to Moses. Moses stated that in a subsequent conversation with appellant, appellant’s version of events was generally consistent with Dean’s, but much less detailed. As Moses recalled, appellant “made it seem like he just kicked [Anderson] and [Dean] just kicked him, and that’s about it ... and elbowed him.” Appellant testified that he never said anything to Moses about participating in the killing.

Appellant was found guilty by the jury and his conviction was affirmed on direct appeal to this court. One month after appellant’s direct appeal failed, on August 6, 2000, Moses sent a letter to appellant’s trial counsel. In this letter Moses stated that he could not sleep at night because he was unable to get appellant’s case “off his mind.” He stated:

They interviewed me so much and through the whole thing what came out of whose mouth wasn’t that clear to me to this day. I’m not saying I was lying, but through all of what came out of whose mouth I had to try to remember got twisted I think from my statement. I had to stick to certain things and remember it so I thought it was the truth. * *■ * Things would go on paper and I was asked to remember key things[.] It really was. just too much it really con-fu[sed] me.

In his letter to appellant’s counsel, Moses enclosed a copy of the Summary, a seven-page document that the state had given, him before trial that summarized key parts of his police statement and grand jury testimony. On the cover of the Summary was a post-it note stating, “Tony, Please read this and be VERY familiar with the info. Read it several times. Thank you!” The Summary was written in a “script” format and represented five conversations Moses had with Dean and appellant, individually and together, after the murder.

At the postconviction evidentiary hearing, Moses testified that he met with the prosecutors, Assistant Anoka County Attorneys Alan Pendleton and Sean Gibbs, prior to trial. Specifically, Moses stated that he met with Pendleton two or three times prior to the grand jury hearing and roughly six to twelve times prior to trial, although he had difficulty remembering details from more than five or six of the meetings. Moses stated he was scared during these meetings and felt pressured to cooperate with the state in order to avoid being prosecuted for disposing of evidence after the murder and interfering with a murder investigation. He also believed that the state did not want him to talk with the defense investigator, and that he would “jeopardize” himself if he did so. Moses acknowledged that he chose to waive his immunity after consulting with his attorney and that he agreed to the waiver because he believed if he “cooperated,” he was less likely to be prosecuted.

When testifying at the postconviction ev-identiary hearing, Pendleton and Gibbs both denied ever telling Moses not to meet with the defense investigator. Further, both prosecutors testified that they consistently told Moses to tell the truth, and that they did not imply that- Moses would face prosecution if he did not testify in a particular way.

Pendleton stated that he offered Moses use immunity for his second police statement because the investigators had few leads and it appeared that Moses had critical information. After Moses gave his second statement under use immunity, Pen-dleton met with Moses, his attorney, and his mother to discuss the possibility of Moses waiving his immunity prior to testifying before the grand jury. Pendleton stated that he asked Moses to waive his immunity because it was Pendleton’s “preference * * * to have a witness that was willing to testify at both the grand jury and the trial freely, voluntarily, with no' agreements and no immunity.” Pendle-ton testified that he specifically told Moses, his attorney, and his mother to discuss the waiver and notify him of their decision at their convenience.

Pendleton further testified that he met with Moses two to four times, and never alone. In contrast, Moses testified that just before appellant’s trial he met with Pendleton alone, and that Pendleton told him to pick up a document from Kelly Nicholson, who worked in the Vietim/Witness Assistance Program. Nicholson testified that she gave a document to Moses at Pendleton’s request, and that the post-it note on the front reflected the directions Pendleton gave her. This document was the Summary. Gibbs and Pendleton testified that the Summary had been created by Gibbs as a condensed version of Moses’ grand jury testimony for Pendleton’s use in trial preparation, and that they considered it to be attorney work-product. Gibbs and Pendleton further stated that they were not aware, until after the trial, that Moses had been given the Summary. When pressed by appellant’s counsel, Pen-dleton stated that he did not “deny that Miss Nicholson gave it to Mr. Moses” at his request, but that he “honestly [did not] have a recollection of that.”

At the posteonviction hearing, appellant’s counsel led Gibbs through the Summary in careful detail, and Gibbs correlated its text to Moses’ previous statements to the police and grand jury. Gibbs acknowledged that he used names with colons to condense Moses’ rendition of conversations — e.g.: “Dean: You got to get over here right now.” However, Gibbs asserted that the Summary accurately represented Moses’ statements without adding or deleting material information.

On appeal to this court, appellant claims that the posteonviction court erred in concluding that the state’s failure to disclose the Summary did not prejudice appellant’s right to a fair trial. Appellant also argues the posteonviction court erred in concluding that the state’s conduct was proper, presenting several theories under which he claims prosecutorial misconduct should have been found.

I.

A defendant is permitted to seek posteonviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2004). The defendant has the burden of showing, by a fair preponderance of the evidence, facts warranting a new trial. Minn.Stat. § 590.04, subd. 3 (2004). We will overturn a posteonviction court’s decision only when we find an abuse of discretion, and we will consider only whether sufficient evidence supports the posteonviction court’s conclusions. Woodruff v. State, 608 N.W.2d 881, 884 (Minn.2000). We review a posteonviction court’s determinations of legal issues de novo. See State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000).

We first address appellant’s claim that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he was denied a fair trial because the state erred when it failed to disclose the Summary to appellant’s trial counsel, and that the state compounded the alleged error in its closing argument. In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. The Court has subsequently defined three components necessary for a “true Brady violation.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). First, the evidence at issue must be favorable to the accused, either because it is exculpatory or it is impeaching. Id. Second, the evidence must have been suppressed by the state, either willfully or inadvertently. Id. at 282, 119 S.Ct. 1936. Third, prejudice to the accused must have resulted. Id. All three components must be met in order for a Brady violation to be found. Id.

The first two components of the Brady test are embodied in Rule 9.01 of the Minnesota Rules of Criminal Procedure, which provides that the state must disclose to defense counsel “any relevant written or recorded statements which relate to the case within the possession or control of the prosecution” as well as “any material or information within the prosecuting attorney’s possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.” Minn. R.Crim. P. 9.01, subd. 1(2), (6).

The postconviction court concluded that under the first two Brady components and the disclosure obligations set forth in Minn. R.Crim. P. 9.01, the state should have disclosed the Summary. We agree with the postconviction court. The Supreme Court has stated that “[w]hen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within” the Brady rule. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). Here, Moses’ testimony played a significant role in the state’s case against appellant, and it was based in part on Moses’ review of the Summary. Had appellant’s trial counsel known of the Summary and the use to which Moses put it, he could have used the Summary to impeach Moses’ credibility. Given this, the state’s failure to disclose the Summary was error.

However, the Supreme Court has stated that “[w]e do not * * * automatically require a new trial whenever ‘a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict.” Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting United States v. Keogh, 391 F.2d 138, 148 (2d Cir.1968)); see also United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (stating impeachment evidence falls within the Brady rule). Rather, in order for a new trial to be granted, the evidence must be “material” under the third prong of Brady. Giglio, 405 U.S. at 154, 92 S.Ct. 763 (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194).

Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A “reasonable probability” is one that is “sufficient to undermine confidence in the outcome.” Id. Here, the postconviction court determined the evidence was not material. The standard of review for a lower court’s Brady materiality ruling is an issue of first impression for this court. Sister jurisdictions have concluded that a Brady materiality analysis involves a mixed question of fact and law. See, e.g., United States v. Pelullo, 14 F.3d 881, 886 (3d Cir.1994); United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991); Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir.1987); State v. Rice, 755 A.2d 137, 151 (R.I.2000); Helm v. State, 1 P.3d 635, 639 (Wyo.2000); State v. Marshall, 148 N.J. 89, 690 A.2d 1, 49 (1997). We agree and conclude that, because materiality issues under Brady combine issues of fact and law, the proper standard of review is de novo. See State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003).

Appellant argues that the Summary is material because it could have been used by appellant’s trial counsel to suggest that Moses’ testimony was “scripted” by the state, thereby undermining Moses’ and the state’s credibility in the eyes of the jury. Appellant also argues that if Moses had been limited to relying on his own memory, he would not have been able to recollect accurately what occurred in August 1997. We are not persuaded by appellant’s arguments, however, because they fail to acknowledge that the breadth of information Moses consistently related in his police statement, grand jury testimony, and trial testimony significantly exceeded the scope of the five brief conversations set forth in the Summary.

For example, Moses testified in detail at appellant’s trial about his activities on the' night of the murder, including the party he attended at Dean’s home, the type of shoes appellant was wearing, and the pattern on the soles of the shoes. Moses also recounted details from a party he attended at a hotel, a cut he received on his hand, the subsequent trips to his home, to the emergency room, then back home again. Moses also provided specific details about the circumstances surrounding the early-morning telephone calls he made to Dean’s home after the murder — details corroborated by the testimony of Moses’ girlfriend. After describing the bag into which Dean had put the clothing worn during the murder, Moses then recounted where he took the bag, what the bag contained when he opened it, how he tried on the shoes and found them to be too big, what the soles of the shoes looked like, why he agreed to discard the bag, and where he discarded the bag. This “extra-Summary” testimony demonstrates that Moses’ recollection of the events surrounding the murder went beyond the conversations represented in the Summary, and Moses’ recollection of many details- — -the pattern on the soles of appellant’s shoes, his description of the bag and the bloody clothes it contained, and his statements regarding the size of appellant’s shoes— were all corroborated by Dean’s testimony and incriminated appellant. Importantly, when asked at the postconviction hearing whether he lied during his trial testimony, Moses replied, “[n]o, not at all.”

For the foregoing reasons, we conclude that because there is “no reasonable probability” that the result of the trial would have been different had the state disclosed Moses’ use of the Summary to appellant’s trial counsel the prejudice prong of Brady was not met. We therefore hold that appellant’s right to a fair trial was not compromised by the state’s nondisclosure of the Summary.

II.

We now turn to appellant’s claim that the state improperly allowed false testimony to go uncorrected. Where it is alleged that false testimony was given at trial, the postconviction court evaluates the claim under the three-prong test in State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn.1982). In order for a new trial to be granted, (1) the court must be reasonably satisfied that the trial testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until the trial concluded. Id. at 585; Dukes v. State, 621 N.W.2d 246, 258 (Minn.2001). We review a lower court’s application of the Caldwell test under an abuse of discretion standard. Dukes v. State, 660 N.W.2d 804, 818 (Minn.2003). We will not substitute our view of the evidence when there is adequate evidence to sustain the postconviction court’s findings of fact. State v. Robb, 292 Minn. 409, 412, 195 N.W.2d 587, 589 (1972).

According to appellant, the “most pointedly false” testimony was solicited when Moses testified that he “was never told by Attorney Pendleton what to say or given suggestions of what to say by Attorney Pendleton or his staff.” In appellant’s view, the Summary was a coaching device provided to Moses in order to elicit certain testimony. Appellant’s argument, however, fails to recognize that the Summary was based on Moses’ previous statements and did not omit any exculpatory statements. Further, this argument does not account for Moses’ postconviction eviden-tiary hearing testimony that, despite feeling pressured, he did not lie while testifying at appellant’s trial. Having reviewed the record before us, we hold the postcon-viction court did not abuse its discretion in concluding that because the first prong of Caldwell was not met, appellant’s claim that the state improperly allowed false testimony to go uncorrected failed.

III.

We next consider appellant’s argument that his right to a fair trial was compromised by the manner in which Moses waived his immunity prior to testifying before the grand jury. Specifically, appellant claims that the state improperly pressured Moses to waive the “use immunity” it had granted, and that Moses’ decision to do so created a “charade” which allowed the state to receive the “benefit of a witness testifying without the cloak of immunity” while that witness was, in fact, “protected from prosecution.” The post-conviction court concluded that appellant’s argument that Moses was improperly pressured to waive his immunity was “without legal validity.”

We first observe that Moses’ use immunity was based solely on the narrow terms set forth by the state, and did not receive formal court approval under Minn.Stat. § 609.09, subd. 1. Under this statute, once the district court has ordered a witness to provide otherwise privileged testimony, “no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information may be used against the witness in a criminal case.” Id. In contrast, the use immunity to which Moses agreed with the advice of counsel was much narrower. The state specifically provided that Moses’ use immunity applied only to his second police statement and grand jury testimony, and that “[o]nce [Moses] has given the statement to law enforcement, whatever information and/or evidence law enforcement obtains as a result of information provided by [Moses] could still potentially be used against [him] in any future criminal prosecution.” Thus, although Moses could have refused to waive his use immunity during his grand jury testimony, the immunity his counsel had negotiated did not apply to his trial testimony or eliminate the risk of future prosecution.

Significantly, appellant’s trial counsel aggressively cross-examined Moses regarding his decision to waive immunity, and strongly implied to the jury that Moses did so under pressure from the state. On cross-examination at appellant’s trial, Moses stated that he waived his grant of immunity after consulting with his own attorney, and that he did so without any “promises or guarantees” from the state regarding the possibility that he may face criminal charges. At the postconviction hearing, Moses confirmed that he consented to waiving his immunity with the advice of his attorney.

We acknowledge that Moses’ testimony that he waived his immunity because “it’d be better for me pretty much” lends credence to appellant’s position that the wáiver was a “charade” in which the state was able to present a witness who had waived his immunity but who, in fact, believed he would benefit from his decision to do so. While we are troubled by the unfolding of these events, our concern is allayed by the fact that the jury was well aware of the circumstances surrounding Moses’ decision to waive his immunity. Moreover, the jury knew that, at the discretion of the state, Moses faced the possibility of being criminally charged for his activities after the murder. Thus, the “charade” of which appellant complains was transparent, and the jury was free to draw whatever conclusions — impeaching or otherwise — the circumstances suggested. For these reasons, we hold that the postconviction court did not abuse its discretion when it concluded that appellant’s right to a fair trial was not compromised by the manner in which Moses waived his immunity.

rv.

Finally, we consider appellant’s claims that the state improperly impeded the defense investigator’s access to Moses. The postconviction court concluded that this claim was procedurally barred because appellant was aware of it at the time of his direct appeal, and no new evidence regarding this claim was presented at the postconviction hearing. Once a direct appeal has been taken, any matter raised and any claim known but not raised will not be considered upon a subsequent petition for postconviction relief. Black v. State, 560 N.W.2d 83, 85 (Minn.1997) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). Two exceptions to the Knaffla rule exist: (1) when the claim is so novel that the legal basis was not available on direct appeal; or (2) when fairness requires consideration of a claim that the petitioner did not -deliberately and inexcusably fail to raise on direct appeal. Dukes, 621 N.W.2d at 251 (citing Roby v. State, 531 N.W.2d 482, 484 (Minn.1995)).

The record supports the postconviction court’s conclusion that appellant’s claim— that defense counsel’s investigator’s access to Moses was, impeded — was procedurally barred. Appellant’s trial counsel knew that Moses refused to speak with his investigator and cross-examined Moses on this point. Further, no new evidence regarding Moses’ refusal to talk with defense counsel’s investigator arose after the direct appeal. Thus, the postconviction court did not abuse its discretion in concluding that Knaffla barred appellant from raising this claim.

Affirmed.

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

      . Dean pleaded guilty to burglary in the first degree and to aiding and abetting intentional second-degree murder. Pederson I, 614 N.W.2d at 727.

      . The parties did not seek court approval of immunity under Minn.Stat. § 609.09 (2004), relying instead on the agreement written by the state.

      . In his second police statement, Moses was unclear regarding Dean's and appellant's statements to him during the Moses-Dean/Moses-appellant phope conversations the morning after the killing. Moses made the following statements as he related the details of his phone conversations with Dean and appellant: "[Dean] told me he killed his neighbor”; "They said they killed their neighbor”; "And [Dean] goes I killed my neighbor or something”; "[Appellant said] 'We killed, we killed the neighbor.' ” At the grand jury, Moses testified that Dean said, "We just killed the neighbor” while appellant said, "The neighbor is dead.” When pressed by the state, Moses affirmed that Dean, not appellant, said, "We killed the neighbor.”

      . August 20, 2000, marked the end of the three-year statute of limitations for the state to bring charges against Moses. Moses acknowledged .during his testimony at appellant’s postconviction evidentiary hearing that he knew “it was a period of time they couldn’t charge me with it,” but said he did not specifically know that August 20 marked the expiration of the statute of limitations.

      . We further note that if Moses had not been given the Summary, and his memory had significantly failed him at trial, both the state and defense counsel were free to use Moses’ previous statements to refresh his memory while testifying. See Minn. R. Evid. 612. Certainly, the extent to which a witness must rely on his past recorded statements in order to testify affects that witness’s credibility. In this case, however, at appellant's trial, Moses not only recollected significant details that were not part of the Summary, he also firmly maintained his version of events in the face of aggressive cross-examination regarding the inconsistencies in his past statements.


source: Caselaw Access Project

author: HUDSON, J.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Shane Michael PETSCHL, Appellant.
    No. A031803.
    Court of Appeals of Minnesota.
    Nov. 23, 2004.

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

HUDSON, J.

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 posteonvietion 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 conclude that neither of appellant’s claims constitute ineffective assistance of counsel.

Appellate courts “review a postconviction 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 appellant’s 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 postconviction 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 appellant’s 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 neuropsychological report before sentencing also fails. Again, the postconviction 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 postconviction 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. Neto 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 mthout any additional findings.” Id. at 2587. 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 nonretro-actively 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 post-conviction appeal was not a collateral attack on his conviction because his postcon-viction 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 he filed his postconviction petition long after his conviction became final. See Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000) (holding postconviction petition is collateral attack on the conviction); Minn.Stat. § 590.01, subd. 1 (2002) (providing that postconviction petition may not be filed “when direct appellant relief is available”).

The district court sentenced appellant on December 11, 1997. Appellant perfected a direct appeal but stipulated to a voluntary dismissal of that appeal. Appellant’s conviction became final on April 1, 1998, when the direct appeal was dismissed pursuant to that stipulation. See Hutchinson v. State, 679 N.W.2d 160, 162 (Minn.2004) (holding that appeal suspends a judgment but dismissal of appeal makes judgment final).

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 when the dismissal of his appeal exhausted the availability of a direct appeal.

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 minority 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 case. 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 Appren-di 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 pri- or 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.(l); 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 postcon-viction 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 postconviction court’s conclusion that the district court did not abuse its discretion.

IV

Finally, appellant argues that he was denied due process because “[a]ppel-lant 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.

ORDER

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:

1. Our published opinion in this matter was filed on November 23, 2004.

2. The opinion indicated that appellant claimed to have filed a direct appeal from his conviction in 1998. A search of archived files confirms that a direct appeal was filed and indicates the nature of the dismissal of that appeal.

3. The opinion has been modified to reflect the result of the archival search and add necessary corrections.

IT IS HEREBY ORDERED: that the opinion filed November 23, 2004 is withdrawn and the attached opinion is substituted.


author: NEUMANN, Justice. MARING, Justice,

text:
    2005 ND 33
    In the Matter of the Claim of Troy BECKLER for compensation from the North Dakota Workforce Safety and Insurance Fund. Troy Beckler, Claimant and Appellant v. Workforce Safety and Insurance, Appellee.
    No. 20040130.
    Supreme Court of North Dakota.
    Feb. 16, 2005.

      Steven L. Latham, Wheeler Wolf, Bismarck, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   NEUMANN, Justice.

[¶ 1] Troy Beckler has appealed from a district court judgment affirming the order of Workforce Safety and Insurance (“WSI”) denying his reapplication for disability benefits. We affirm, concluding that the district court did not abuse its discretion when it denied Beckler’s motion to supplement the record and that WSI’s finding that Beckler had not sustained an actual wage loss caused by a significant change in his medical condition was supported by a preponderance of the evidence.

I

[¶ 2] Beckler suffered a work-related injury to his right wrist in 1983. The injury has resulted in continuing medical problems for Beckler, including numerous surgeries to his right arm and wrist. In addition, Beckler alleges he developed problems with his left arm resulting from his need to compensate for the injured right arm, necessitating surgery on his left arm.

[¶ 3] At the time of his injury in 1983, Beckler applied for and received workers compensation benefits, including disability benefits. In 1991, Beckler was released to return to work and his disability benefits were terminated after he completed a vocational training program in hotel/motel management. Since 1991, Beckler has held a variety of jobs, each time ending the employment when pain from repetitive arm, wrist, and hand movements became too severe to continue working. At various times through the intervening years Beckler has received additional temporary disability benefits.

[¶ 4] Beckler’s last employment was as a telemarketer from October 2001 to January 2002. Beckler initially worked full-time, but after a few days went to part-time. Beckler contends that the repetitive motion requirements of the job were causing excessive pain in his arms, and he quit his employment in January 2002.

[¶ 5] Beckler filed a reapplication for disability benefits on June 6, 2002. WSI initially denied Beckler’s reapplication, and he requested a hearing before an administrative law judge (“ALJ”). Following the hearing, the ALJ issued her recommended findings of fact, conclusions of law, and order. The ALJ found Beckler had failed to prove that he had suffered a significant change in his medical condition or that he had incurred an actual wage loss caused by a change in his medical condition, and recommended WSI’s order denying benefits be affirmed. WSI accepted the ALJ’s recommendations and issued a final order denying the reapplication.

[¶ 6] Beckler appealed to the district court, and moved to supplement the record in the district court with additional medical records from an earlier administrative hearing on a prior reapplication for benefits. The district court denied the motion to supplement the record, noting there was no justifiable reason for Beckler’s failure to provide the additional medical records to the AL J in this case. The court further concluded Beckler had failed to establish an actual wage loss caused by a significant change in his medical condition and therefore affirmed WSI’s final order denying Beckler’s reapplication.

II

[¶ 7] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On an appeal from the district court’s ruling on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32-49; Miller v. Workforce Safety and Ins., 2004 ND 155, ¶ 6, 684 N.W.2d 641; Zander v. Workforce Safety and Ins., 2003 ND 194, ¶ 6, 672 N.W.2d 668.

[¶ 8] We have clarified our scope of review in appeals from decisions of administrative agencies:

We review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. We exercise restraint in deciding whether the agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.

Paul v. Workforce Safety and Ins., 2003 ND 188, ¶ 11, 671 N.W.2d 795 (citations omitted).

Ill

[¶ 9] A claimant seeking workers compensation benefits has the burden of proving by a preponderance of the evidence that he is entitled to benefits. N.D.C.C. § 65-01-11; Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290; Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶ 11, 660 N.W.2d 217; Lesmeister v. North Dakota Workers Comp. Bureau, 2003 ND 60, ¶ 22, 659 N.W.2d 350; Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶ 6, 658 N.W.2d 337. When a claimant’s disability benefits have been discontinued and he subsequently sustains a significant change in his medical condition that causes further wage loss, the claimant may file a reapplication under N.D.C.C. § 65-05-08(1) seeking further disability benefits. Bachmeier, at ¶ 11; Lesmeister, at ¶ 22; Gronfur, at ¶ 6. Section 65-05-08(1) provides:

When disability benefits are discontinued, the organization may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the organization. In case of reapplieation, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and
e. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

Claimants reapplying for disability benefits under N.D.C.C. § 65-05-08(1) must show both a significant change in their compensable medical condition and an actual wage loss caused by the significant change in medical condition. Lesmeister, at ¶ 22.

[¶ 10] In Bachmeier and Gronfur, a majority of this Court held that the term “actual wage loss” in N.D.C.C. § 65-05-08(l)(b) is clear and unambiguous, and in order to show an actual loss of wages as a result of a change in his compensable medical condition the claimant must demonstrate that he was earning wages from employment when the significant change in his medical condition occurred and that the change caused at least a partial loss of those wages. Bachmeier, 2003 ND 63, ¶ 13, 660 N.W.2d 217; Gronfur, 2003 ND 42, ¶¶ 11-12, 658 N.W.2d 337; see also Lesmeister, 2003 ND 60, ¶ 22, 659 N.W.2d 350. The majority in Bachmeier and Gronfur noted the distinction between actual wage loss and loss of earning capacity:

Although the legislature has not defined the term “actual wage loss,” the term wages is defined under N.D.C.C. § 65-01-02(31):
“Wages” means an employee’s remuneration from all employment reportable to the internal revenue service as earned income for federal income tax purposes.
Using that definition of wages in the context of “actual wage loss” under N.D.C.C. § 65-05-08(l)(b), the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the internal revenue service as earned income for federal income tax purposes. The requirement is clear. To demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages.
Gronfur’s attempt to equate actual wages with earning capacity is misplaced. The distinction between those terms is clearly recognized in workers compensation law....
We conclude the Bureau interpreted and applied N.D.C.C. § 65-05-08(1) in accordance with the law. Gronfur, by choosing not to seek employment and by not earning employment wages when he sustained a change in his compensable medical condition, failed to incur an actual wage loss as a result of the change in his medical condition. Gronfur was unable, therefore, to prove the actual wage loss which is a prerequisite to reinstating discontinued disability benefits under the statute.

Bachmeier, at ¶ 13 (quoting Gronfur, at ¶¶ 12-15). Under Bachmeier and Gron-fur, the claimant is required to show that he suffered a significant change in com-pensable medical condition at the time he was employed and earning wages, and that the change in his medical condition caused an actual loss of those wages.

[¶ 11] WSI adopted the ALJ’s findings of fact that Beckler did not experience an actual wage loss in January 2002 caused by a significant change in his medical condition, and that Beckler voluntarily left his employment as a telemarketer in January 2002. Those findings are supported by the evidence in the record. Beckler presented no evidence that any of his doctors had rendered an opinion stating he had suffered a significant change in his medical condition requiring him to leave his employment. None of the contemporaneous medical records presented at the hearing showed that any doctor had told Beckler he should leave his employment as a telemarketer.

[¶ 12] The only evidence in the record of a significant change in Beckler’s com-pensable medical condition affecting his ability to work is contained in a July 31, 2002, letter from one of Beckler’s doctors indicating that, “[a]t this time,” Beckler was totally disabled from any gainful employment because of his inability to use his arms in a functional manner. The letter expressly limits the doctor’s opinion on Beckler’s medical condition to “[a]t this time,” i.e. July 2002, and the letter did not address Beckler’s medical condition or ability to work in January 2002. Under Bachmeier and Gronfur, the change in compensable medical condition must be contemporaneous with and tied to the alleged actual loss of wages. The doctor’s opinion that Beckler was totally disabled from working in July 2002 does not prove that he was similarly disabled six months earlier when he quit his job in January 2002, or that a change in his medical condition caused him to leave his employment.

[¶ 13] On the record in this case, we conclude Bachmeier and Gronfur are controlling. Beckler failed to present evidence to meet his burden of showing he suffered a significant change in his com-pensable medical condition in January 2002 which caused him to leave his employment and suffer an actual wage loss. Accordingly, WSI’s finding that Beckler did not sustain an actual wage loss under N.D.C.C. § 65 — 05—08(l)(b) was supported by a preponderance of the evidence.

IV

[¶ 14] While his appeal to the district court was pending, Beckler filed a motion, contemporaneous with the filing of his brief to the district court, seeking to supplement the record with additional medical records which had been introduced at an earlier administrative hearing. Beckler included references to these medical records in his district court brief. Beckler contends the district court abused its discretion when it denied the motion to supplement the record.

[¶ 15] Supplementation of the record after an appeal has been taken from an administrative order is governed by N.D.C.C. § 28-32-45 (formerly codified at N.D.C.C. § 28-32-18):

If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject its findings of fact, conclusions of law, and order and shall file with the court a transcript of the additional evidence with its new or amended findings of fact, conclusions of law, and order, if any, which constitute a part of the record with the court.

[¶ 16] Beckler’s argument on appeal suggests the district court should have granted his motion and considered the additional medical records. Beckler’s inclusion of references to these medical records in his district court brief further suggests Beckler had misconstrued the proper procedure for supplementing the record under N.D.C.C. § 28-32-45. An appeal of an administrative agency decision to the district court invokes that court’s appellate jurisdiction. Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 18, 676 N.W.2d 799; Lewis v. North Dakota Workers Comp. Bureau, 2000 ND 77, ¶ 8, 609 N.W.2d 445. When an agency decision is appealed, the agency must prepare and file with the district court an original or certified copy of the entire record of proceedings before the agency, N.D.C.C. § 28-32-44(2), and, unless otherwise provided by statute, “the agency record constitutes the exclusive basis for administrative agency action and judicial review of an administrative agency action.” N.D.C.C. § 28-32-44(5); see Sprunk v. North Dakota Workers Comp. Bureau, 1998 ND 93, ¶ 7, 576 N.W.2d 861. The district court “must review an appeal from the determination of an administrative agency based only on the record filed with the court.” N.D.C.C. § 28-32-46; see Sprunk, at ¶ 7.

[¶ 17] The proper procedure for supplementation of the record is explained in Lewis, 2000 ND 77, ¶ 9, 609 N.W.2d 445 (citation omitted) (construing the earlier codification of N.D.C.C. § 28-32-45):

Although N.D.C.C. § 28-32-18 allows a party to apply to the court in which an administrative appeal is pending for leave to adduce additional evidence, if leave is granted the court does not consider the additional evidence, but may only remand to the agency for the agency to consider the evidence. The district court is forbidden from considering evidence which has not been presented to the administrative agency.

See also Otto v. North Dakota Workers Comp. Bureau, 533 N.W.2d 703, 705 (N.D.1995) (“the district court ... may not consider evidence which has not been presented to the bureau”).

[¶ 18] Even if we treat Beckler’s motion to the district court as properly requesting a remand to WSI for consideration of the additional medical records, the district court expressly found that Beckler had given no justifiable reason for the failure to present this evidence at the administrative hearing. Section 28-32-45, N.D.C.C., allows supplementation of the record only if the proponent shows that the additional evidence is relevant and “that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding.” The medical records at issue had been introduced at an administrative hearing predating the administrative hearing in this case. The records were known to and available to Beck-ler at the time of the hearing before the ALJ in this case. Under these circumstances, the district court did not abuse its discretion when it denied Beckler’s motion to supplement the record.

V

[¶ 19] The judgment affirming WSI’s order denying Beckler’s reapplication for disability benefits is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

dissenting.

[¶ 21] I respectfully dissent and adhere to my dissents in Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶¶ 19-23, 660 N.W.2d 217 and Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶¶ 17-20, 658 N.W.2d 337.

[¶ 22] In the instant case, there is a preponderance of evidence that establishes Beckler has suffered a significant change in his compensable medical condition. The medical records and reports show that Beckler has increased pain, is using increased pain medication, has the early stages of ulnar neuropathy of his left upper extremity, and has carpal tunnel syndrome. These conditions are all documented since he left work at Contact America on January 29, 2002.

[¶ 23] The second prong of the inquiry into whether Beckler is entitled to disability benefits upon reapplication, is whether he has proven actual wage loss due to his significant change in his compensable medical condition. The majority of our Court has concluded that to satisfy this test, the claimant must establish that the significant change in medical condition must result in an inability to continue working at a currently held job. See Bachmeier, 2003 ND 63, ¶ 13, 660 N.W.2d 217; Gronfur, 2003 ND 42, ¶ 14, 658 N.W.2d 337. Therefore, because it was not until July 31, 2002, that Dr. Martire concluded Beckler was unable to work due to the worsening of his com-pensable medical condition and there was no opinion Beckler was unable to work on January 29, 2002, when he quit at Contact America, he failed to establish his significant change in his medical condition caused actual wage loss. I continue to be of the opinion that “actual wage loss” can be established by showing an inability to obtain employment, which can be proven by medical evidence that the employee is totally disabled from any work as a result of his work injury. See Gronfur, at ¶ 17 (Maring, J., dissenting). In the present case, Dr. Martire prepared a report dated July 31, 2002, in which he concluded Beck-ler was “disabled from gainful employment due to ulnar neuropathy of his left upper extremity, carpal tunnel syndrome, bilateral wrist tendinitis, and bilateral elbow pain status post multiple upper extremity surgeries.” He noted that Beckler is unable to use his arms on any repetitive basis or in a functional manner for any type of job. In a letter dated April 3, 2003, Dr. Martire indicated that his review of the job as a hotel/motel manager indicated it involves repetitive use of the hands and that Beck-ler would not be able to do it. Even the IME doctor, Dr. Starzinski, agreed that Beckler has various “sensory symptoms that suggest several peripheral nerve syndromes, which could relate to some degree of scarring from the several procedures that he has had in the upper extremities, particularly on the right side.” Although Dr. Starzinski concludes Beckler could work in a sedentary position as a hotel/motel manager, he could only do so “if he does not have any demands to use his hands repetitively and is allowed to vary his posture and activities.”

[¶ 24] I, therefore, ^dissent and would reverse the denial of disability benefits.

[¶ 25] Mary Muehlen Maring