author: VANDE WALLE, Chief Justice. SANDSTROM, Justice, MARING, Justice,

text:
    2000 ND 179
    STATE of North Dakota, Plaintiff and Appellee, v. Juan Raul MORA, Defendant and Appellant.
    No. 990377.
    Supreme Court of North Dakota.
    Oct. 3, 2000.
    Rehearing Denied Oct. 26, 2000.
    Brett M. Shasky, Assistant State’s Attorney, Fargo, for plaintiff and appellee.
    Mark Anthony Beauchene, Fargo, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Juan Raul Mora appeals from a criminal judgment of conviction upon a plea of guilty to delivery of a controlled substance. We affirm, concluding the district court properly entered sentence.

[¶ 2] Mora was charged with delivering cocaine, a schedule II controlled substance, to an undercover police officer on September 16, 1998. Mora had two prior convictions in Minnesota for delivery of methamphetamine, which is also a schedule II controlled substance.

[II3] Section 19-03.1-23, N.D.C.C., prohibits the delivery of a controlled substance and provides:

1.... Any person who violates this subsection with respect to:
a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony and must be sentenced:
(3) For a third or subsequent offense, to imprisonment for twenty years.
5. A violation of this chapter or a law of another state or the federal government which is equivalent to an offense under this chapter committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsections 1, 3, and 4. The prior offense must be alleged in the complaint, information, or indictment. (Emphasis supplied).

[¶ 4] The issue in this case centers on the underlined portion of the statute because the information charging Mora with this offense does not specifically mention the two prior Minnesota convictions. However, the penalty section at the bottom of the information states:

Penalty Section:

Count 1: 19 — 03.1—23(l)(a)(3)

Class A Felony

(Mandatory Minimum 20 years Imprisonment)

[¶ 5] Mora, with counsel, appeared before the district court and pleaded guilty to the offense. Because Mora speaks Spanish, an interpreter was used at the proceeding. The district court addressed the minimum mandatory sentence numerous times throughout the proceedings. The district court stated, “It is alleged by the State that because of your prior record if you are convicted of this offense there is a minimum mandatory sentence of 20 years imprisonment which the court must impose.” Mora responded that he understood the charge and the maximum and minimum penalty.

[¶ 6] Later, the court stated, “If you plead guilty the court must impose any minimum mandatory sentence required by law.” Mora again indicated that he understood the court’s statements. When the court inquired about a sentence recommendation, the following exchange occurred:

THE COURT: And you understand that the State is alleging that you have two prior delivery offenses which would result in a minimum mandatory penalty? THE DEFENDANT: Yes.
THE COURT: And in this case the minimum mandatory penalty alleged is 20 years in prison, you understand?
THE DEFENDANT: Yes.
THE COURT: To the charge of delivery of a controlled substance, a Class A Felony, alleged to have occurred on September 16,1998, how do you plead?
THE DEFENDANT: Guilty.

[¶ 7] At sentencing, Mora argued the twenty-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a) (3) should not apply because the State had failed to allege the prior offenses in the information as required by N.D.C.C. § 19-03.1-23(5). The district court concluded the twenty-year mandatory minimum sentence applied, and sentenced Mora accordingly.

[¶ 8] On appeal, Mora argues the information must specifically identify the two prior convictions the State is relying upon to satisfy the requirement of N.D.C.C. § 19-03.1-23(5). The' state argues the general reference to the statute and the mandatory minimum sentence in the information’s penalty section was sufficient to put Mora on notice the State was relying on prior convictions. The State, at oral argument, adVised the Court that the penalty provision format used here was not an oversight; rather," the penalty provision format used here is the regular practice in the Cass County State’s Attorney’s office.

[¶ 9] Counsel for Mora conceded Mora was fully aware of the maximum and minimum penalties of the charge. At the plea hearing, Mora acknowledged the State intended to use the prior,convictions to seek the mandatory minimum sentence. Also, the State had provided Mora certified copies of the records related to his prior convictions during discovery. Mora does not contest the voluntariness of his plea but argues the district court erred in imposing a mandatory minimum sentence of twenty years imprisonment.

[¶ 10] The express language of N.D.C.C. § 19-03.1-23(5) is clear: prior offenses must be alleged in the information or indictment. See N.D.C.C. § 1-02-05 (stating, “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”). Unless and until the legislature amends the statute, allegation's of the specific prior convictions must be made in the information.

[¶ 11] We do not believe the Legislature required an allegation in the information as an idle act. Rather, the State must allege and prove that the defendant was convicted of specific prior offenses. The statute requires, in plain language, that the prior offense must be alleged, not that the penalty section must be alleged, which is what the information here does. It is possible for a defendant to be aware the State is alleging commission of prior offenses and seeking a mandatory sentence under the statute without being aware of the specific offenses upon which the State relies. Thus, this is an issue of notice, one with constitutional underpinnings. State v. Gahner, 413 N.W.2d 359 (N.D.1987).

[¶ 12] Although we view the allegation of a former conviction more liberally because it is not the offense for which the defendant is being tried, the time and place of the former conviction should be stated. State v. Bloomdale, 21 N.D. 77, 128 N.W. 682, 684 (1910). This enables the defendant to ascertain the crime which the State claims he was formerly convicted of. Id. A defendant might seek a bill of particulars under N.D.R.Crim.P. (7)(f) or other discovery under N.D.R.Crim.P. 16, but the defendant is not under obligation to do so. The statute places the affirmative burden on the State to allege the prior offense upon which it relies for the imposition of the mandatory sentence. The State does not meet that burden by the penalty format it uses here.

[¶ 13] In State v. Gielen, 54 N.D. 768, 210 N.W. 971, 975 (1926), the Court stated:

It may be said that while the information in this case, under the circumstances presented by the record on this appeal, is held sufficient to sustain the verdict found and the judgment of conviction based thereon, we do not approve of such information as a model pleading, nor do we express any opinion as to whether the allegations, as to the former conviction, would have been sufficient as against a proper and timely objection in the trial court.
The case before us demonstrates that those in charge of criminal prosecutions should exercise the greatest possible care in the preparation of criminal infor-mations. The numerous practice questions which arise in criminal cases are a burden upon the courts which might well be obviated, and which would be obviated if the attorneys for the prosecution exercised that care in the performance of their labors which the importance thereof justifies and requires.

The words remain true today.

[¶ 14] If the record did not reflect actual knowledge on Mora’s part, we would reverse because of the inadequacy of the allegations of the information. But, the transcript does reveal, and his counsel conceded, Mora was aware the State intended to use prior convictions to seek the mandatory minimum sentence and the State provided Mora with certified copies of the record relating to his prior convictions during discovery.

[¶ 15] Under N.D.R.Crim.P. 52, i.e., any “error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Because Mora had notice the State was alleging a prior offense and of the specific offenses it was alleging, no substantial right was affected. State v. Gielen, 210 N.W. at 975 (holding there was no claim and no basis for a claim of surprise concerning allegation of a former conviction); State v. Bloomdale, 21 N.D. 77, 128 N.W. 682 (1910) (holding allegation of former conviction is sufficient if it enables plaintiff to prepare for trial of whether he is the convict).

[¶ 16] The dissent cites several Federal decisions which have reached what appears to be the opposite conclusion. But, we have not adopted a strict compliance standard. Rather, we have interpreted the statute as a notice requirement to which the harmless error analysis applies. Cf. State v. Anderson, 303 N.W.2d 98 (N.D.1981) (holding probationer who did not receive notice of specific offenses she was believed to have committed but had notice of probation terms state’s attorney believed were violated and of the facts constituting violation was not harmed). The analysis in the Federal decisions appears to rest on a special sentencing relationship between the Federal courts and Congress, but that analysis does not supersede our harmless-error jurisprudence.

[¶ 17] The judgment of conviction is affirmed.

[¶ 18] CAROL RONNING KAPSNER, WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring in the result.

[¶ 19] I agree with the majority that any error alleged here is harmless, and therefore I concur in the result. ■ I write separately to suggest the defendant’s tactic of concealing his argument from the district court until sentencing is prohibited by our rules and cases.

[¶ 20] The North Dakota Rules of Criminal Procedure specifically authorize a criminal defendant to enter a conditional guilty plea. N.D.R.Crim.P. 11(a)(2). A defendant who enters a conditional guilty plea may contest an adverse determination of the trial court and may withdraw his guilty plea if he prevails on appeal. Id. Mora did not preserve a right to appeal by entering a conditional guilty plea; rather, he contested the validity of the charging document at the time of sentencing.

[¶ 21] Rule 12(b) of the North Dakota Rules of Criminal Procedure requires that a defendant raise “[a]ny defense, objection, or request which is capable of determination without trial of the general issue.” Certain defenses or objections must be raised prior to trial, including alleged “defects in the indictment, information, or complaint.” N.D.R.Crim.P. 12(b)(2). Failure to raise these defenses or objections constitutes waiver. N.D.R.Crim.P. 12(f). The dissent says at ¶ 31 the information was not defective, but at ¶ 36 says that because the information was not in “strict compliance with the clear and unambiguous requirements,” the trial court lacked authority to apply the mandatory minimum. In City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994), we said, in “considering the sufficiency of a criminal information, technicalities have been abolished.” “Mere defects, inaccuracies, or omissions in an information do not affect the subsequent proceedings, unless as a result, no offense is charged.” Id.

[¶ 22] We have repeatedly held that defendants who voluntarily plead guilty waive the right to challenge defects that occur before the entry of the guilty plea. As stated in State v. Burr, 1999 ND 143, ¶ 29, 598 N.W.2d 147 (citing State v. Kraft, 539 N.W.2d 56, 58 (N.D.1995)):

Persons who voluntarily plead guilty to an offense waive their right to challenge on appeal nonjurisdictional defects that occur before the entry of the guilty plea, including alleged violations of constitutional rights. State v. Slapnicka, 376 N.W.2d 33 (N.D.1985); see Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Under Rule 11(a)(2), N.D.R.Crim.P., a defendant may preserve the right to appeal “the adverse determination of any specified pretrial motion.” A defendant who em ters a conditional plea agreement, but fails to preserve issues for review in the agreement, cannot raise those issues on appeal. See United States v. Ramos, 961 F.2d 1003 (1st Cir.1992); United States v. Ryan, 894 F.2d 355 (10th Cir. 1990).

[¶ 23] Because Mora could have raised his objection prior to entering a plea, he was required to do so. N.D.R.Crim.P. 12(b); Burr, 1999 ND 143, ¶ 29, 598 N.W.2d 147. Mora could have conditionally pled guilty to preserve his sentencing issue. N.D.R.Crim.P. 11(a)(2). By failing to do so, he waived any error. Burr, at ¶ 29.

[¶ 24] Dale V. Sandstrom

MARING, Justice,

dissenting.

[¶ 25] The majority concludes that, although the prosecution failed to properly allege the prior offenses as required by N.D.C.C. § 19-03.1-23(5), any error was harmless under N.D.R.Crim.P. 52(a). Because harmless error analysis is inappropriate in this case, I respectfully dissent.

I

[¶ 26] Initially, I note my agreement with the majority’s conclusion that N.D.C.C. § 19-03.1-23(5) clearly and unambiguously requires the prosecution to allege specific prior offenses in the information.

[¶ 27] Interpretation of a statute is a question of law which is fully reviewable upon appeal. State v. Schlotman, 1998 ND 39, ¶ 10, 575 N.W.2d 208. Our primary purpose is to ascertain the intent of the legislature, and legislative intent must be first sought from the language of the statute itself. State v. Ulmer, 1999 ND 245, ¶ 6, 603 N.W.2d 865; Schlotman, at ¶ 10. Words used in a statute should be construed in their plain, ordinary, and commonly understood sense. N.D.C.C. § 1-02-02; Ulmer, at ¶ 6. Criminal statutes must be strictly construed against the government and in favor of the accused. State v. Rambousek, 479 N.W.2d 832, 834 (N.D.1992).

[¶ 28] Section 19-03.1-23(5), N.D.C.C., requires that the prior offenses “must be alleged” in the charging instrument. The word “must” as ordinarily used indicates a mandatory duty, and is not merely directory. Federal Land Bank of St. Paul v. Waltz, 423 N.W.2d 799, 802 (N.D.1988); see also North Dakota Legislative Drafting Manual 94 (1999). The prosecution concedes it is required to allege the prior offenses, but argues a mere reference to the statute and an indication a mandatory minimum sentence will be sought are sufficient to satisfy the statutory requirement.

[¶ 29] The primary purpose of the complaint or information is to fairly inform the accused of the charges against him to enable him to prepare for trial. City of Fargo v. Schwagel, 544 N.W.2d 873, 874 (N.D.1996); City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994); State v. Gahner, 413 N.W.2d 359, 361 (N.D.1987). An “allegation,” in the context of a legal pleading, is defined as “a party’s formal statement of a factual matter as being true or provable, without its having yet been proved.” Black’s Law Dictionary 74 (7th ed.1999).

[¶ 30] The legislature, in directing that the prior offenses “must be alleged” in the information, clearly intended to require the State to specifically identify the prior offenses it is relying upon to trigger the mandatary sentencing provisions. If a conclusory reference to the statute in the penalty section of the information was deemed sufficient, the defendant would be left to speculate about which offenses the State intended to rely upon to meet its burden of proving the prior convictions. In order to properly prepare to meet the State’s allegations, the defendant must be informed of the precise instances of conduct the State is raising. The legislature has mandated that these allegations- be included in the charging instrument. I therefore agree with the majority that the information failed to'properly allege the specific prior offenses as required under N.D.C.C. § 19-03.1-23(5).

II

[¶ 31] The transcript of the sentencing hearing suggests that, as part of an informal plea agreement, the State would recommend the twenty-year mandatory minimum but it was agreed Mora could argue for a lesser sentence at the time of sentencing. The error in this case was a sentencing error, not a pleading error. The information was not defective: it properly pleaded all of the requisite elements of the class A felony of delivery of a controlled substance. The information clearly would not have been subject to a motion to dismiss under N.D.R.Crim.P. 12(b). The error in this case did not occur until sentencing, after the guilty plea had been entered, when the trial court actually imposed the mandatory minimum sentence in spite of the prosecution’s failure to comply with N.D.C.C. § 19-03.1-23(5). It was not until sentencing that Mora could challenge imposition of the mandatory minimum.

[¶ 32] The result urged by the majority in practicality shifts the burden to the defendant to raise and challenge such issues before entry of a plea. The burden, however, rests upon the prosecution to ensure proper compliance with N.D.C.C. § 19-03.1-23(5) if it intends to rely upon a mandatory minimum at the time of sentencing. It should not be met by a defendant’s exercise of his right to have a written request for his previous criminal record under N.D.R.Crim.P. 16, (a)(1)(B).

Ill

[¶ 33] The majority concludes that, even if the prosecution’s failure to allege the prior offenses was error, Mora suffered no prejudice and the error was harmless under N.D.R.Crim.P. 52(a) because Mora had actual knowledge of the prior offenses.

[¶ 34] Our Rule 52(a) is identical to Fed. R.Crim.P. 52(a), and we have looked to authorities construing the federal rule to aid in interpretation of our rule. See City of Fargo v. Erickson, 1999 ND 145, ¶ 13, 598 N.W.2d 787; City of Mandan v. Baer, 1998 ND 101, ¶ 21 n. 5, 578 N.W.2d 559. Interestingly, the majority does not cite any federal cases addressing application of the harmless error rule in the context of failure to comply with the federal statute requiring the prosecution to plead prior offenses in an information when an enhanced sentence is sought. See 21 U.S.C. § 851(a). The majority’s failure to cite such cases is understandable, inasmuch as the federal courts. have consistently held that the failure to plead the prior offenses as required by 21 U.S.C.. § 851(a) is not subject to harmless error - analysis, even when the defendant has actual notice of the prior offenses and of the prosecution’s intent to seek an enhanced sentence. See, e.g., United States v. Kennedy, 133 F.3d 53, 59 (D.C.Cir.), cert. denied, 525 U.S. 911, 119 S.Ct. 255, 142 L.Ed.2d 210 (1998); United States v. Romero-Carrion, 54 F.3d 15, 18 (1st Cir.1995); Kelly v. United States, 29 F.3d 1107, 1111 (7th Cir.1994); United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir.1990); United States v. Olson, 716 F.2d 850, 852-53 (11th Cir.1983).

[¶ 35] The rationale for the refusal to apply harmless error analysis was explained in Olson, 716 F.2d at 853:

An enhanced sentence is a special remedy prescribed by the Congress; prosecutorial discretion is vested in the executive branch of the government, and the district court has no authority to exercise it or pretermit it. As we have pointed out, Congress advisedly vested this discretion in the prosecutor. Unless and until prosecutorial discretion is invoked and the government files and serves an information as required by Sec. 851, the district court has no power to act with respect to an enhanced sentence; it can no more enhance the sentence than it could impose imprisonment under a statute that only prescribes a fine. Harmless error cannot give the district court authority that it does not possess.

In accordance with this reasoning, the court in Weaver, 905 F.2d at 1481, explained that strict compliance with 21 U.S.C. § 851 is required:

This circuit has insisted upon strict compliance with the mandatary language of the procedural requirements of section 851(a) and (b). United States v. Noland, 495 F.2d 529, 533 (5th Cir.), cert. denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974); United States v. Cevallos, 538 F.2d 1122, 1126-27 (5th Cir.1976). This is particularly true with respect to the timing of the government’s filing with the court and service on the defendant of an information signifying the government’s intent to rely on a prior drug conviction. Noland, 495 F.2d at 533. Even when the defendant is not surprised by the enhanced sentence, was aware from the outset that his previous conviction could lead to an enhanced sentence, never challenged the validity of the prior conviction, and admitted it at the sentencing hearing, the statute prohibits an enhanced sentence unless the government first seeks it by properly filing an information prior to trial. Id. “Provision for enhanced sentencing is a legislative decision, and the procedure the legislature prescribes to effectuate its purpose must be followed.” Id. Significantly, “[t]he doctrine of harmless error does not apply” with respect to failures to follow the statutory scheme of § 851. United States v. Olson, 716 F.2d 850, 852 (11th Cir.1983).

[¶ 36] I agree with the rationale expressed by the federal courts. Our legislature has enacted a mandatory minimum sentencing provision which places discretion in the State to seek the mandatory minimum sentence by properly pleading prior offenses in the information. Absent strict compliance with the clear and unambiguous requirements of that statute, the trial court is without authority to impose a mandatory minimum sentence, and harmless error analysis cannot confer that authority where it does not otherwise exist. Accordingly, I would refuse to apply harmless error under N.D.R.Crim.P. 52(a) in this case.

[¶ 37] The majority suggests that the analysis of these federal decisions, interpreting the identical federal rule in cases where the prosecution failed to properly plead prior offenses as required by statute, do not supersede our harmless error jurisprudence. The cases cited by the majority as examples of our harmless error jurisprudence do not, however, support reliance upon harmless error to reach the result urged by the majority.

[¶ 38] Two of the cases cited by the majority, State v. Gielen, 54 N.D. 768, 210 N.W. 971 (1926), and State v. Bloomdale, 21 N.D. 77, 128 N.W. 682 (1910), were decided decades before the North Dakota Rules of Criminal Procedure, and N.D.R.Crim.P. 52(a), were first adopted in 1973. In Bloomdale, the defendant was charged with a second offense of maintaining a common nuisance, and the information specifically charged that he had been convicted of a prior offense under chapter 63 of the penal code on December 14,1901, in district court in Sargent County. Bloomdale, 128 N.W. at 683. The defendant argued that was insufficient to identify the exact prior offense. This Court concluded the prior offense had been sufficiently pleaded. Id. at 684. There is no discussion of harmless error.

[¶ 39] In Gielen, the basis of this Court’s holding was that the defendant had not challenged at trial the State’s failure to identify the prior conviction in the information. Gielen, 210 N.W. at 975. The Court specifically noted: “nor do we express any opinion as to whether the allegations, as to the former conviction, would have been sufficient as against a proper and timely objection in the trial court.” Id. Gielen therefore does not suggest that failure to sufficiently plead prior offenses is harmless error if the defendant raises the issue at trial, as Mora did in this case.

[¶ 40] The third case cited by the majority, State v. Anderson, 303 N.W.2d 98 (N.D.1981), involved revocation of probation. The trial court found there had been violations of the specific terms of probation, and further stated the evidence showed Anderson’s conduct may have constituted felony child abuse and criminal' attempt or conspiracy. Anderson argued lack of due process notice because the prosecutor’s affidavit in support of revocation did not mention specific criminal violations. This Court held that any lack of notice was harmless because, even excluding consideration of child abuse, conspiracy, or attempt, the trial court had also found other separate probation violations on other grounds. Id. at 101. In this case, there are no “other grounds” which render the State’s failure to plead the prior offenses as required by the statute harmless, and Anderson is wholly inapposite.

[¶ 41] There is nothing in the federal cases which supersedes or conflicts with our prior harmless error jurisprudence, and I would therefore refuse to apply harmless error in this case.

IV

[¶ 42] Because the prosecution failed to comply with the clear requirements of N.D.C.C. § 19-03.1-23(5), I would vacate the sentence and remand for further sentencing proceedings without application of the twenty-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(l)(a)(3). See Neary v. United States, 998 F.2d 563, 565-66 (8th Cir.1993).

[¶ 43] Mary Muehlen Maring


source: Caselaw Access Project

author:
KONENKAMP, Justice.
      SABERS, Justice

license: Public Domain

text:
    2000 SD 129
    STATE of South Dakota, Plaintiff and Appellee, v. Richard Morris STANGA, Sr., Defendant and Appellant.
    No. 21082.
    Supreme Court of South Dakota.
    Argued March 22, 2000.
    Decided Sept. 20, 2000.

      Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plain-, tiff and appellee.
    David R. Gienapp, William H. Dietrich of Arneson, Issenhuth & Gienapp, Madison, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we must decide if the circuit court erred in ruling that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. The interrogating officer repeatedly told the defendant that any statement he gave was “between you and me,” signifying that it would not go beyond the interrogation room. Officers cannot mislead suspects on their constitutional rights. Here, the required Miranda warning that any admission can be used in court was subverted by the suggestion that admissions would not be used against him. Therefore, the confession should have been suppressed. We affirm the conviction, however, because there was immense, independent evidence of guilt, making the failure to suppress the statement harmless error.

A.

[¶2.] Richard Morris Stanga, Sr., and his wife, Judy, divorced in 1988 after thirty years of marriage. Stanga’s long-standing alcoholism factored foremost in the breakdown of their relationship. Judy received the couple’s home in the divorce. Nevertheless, hoping Stanga would eventually find sobriety and they would reconcile, she allowed him to stay at her home occasionally. But after years with no change, Judy “gave up on” reconciliation. She obtained a protection order forbidding Stanga from contacting her or coming to her home. He began living on the street, but stayed at a homeless shelter in Sioux Falls when sober.

[¶ 3.] In November 1998, Stanga spotted Judy with a male acquaintance at church. Upset, he telephoned her numerous times. Although the calls were a violation of the protection order, Judy did not report them to law enforcement. When she did not return his messages, he resorted to more direct contact. On the evening of November 16, Judy was home alone. She heard noises outside at 7:30 p.m. coming from the back porch. When she looked out the window, she saw Stanga with “something shiny in his hand that he took out of his pocket.” She dialed 911 for emergency help.

[¶ 4.] While Judy was on the telephone, Stanga broke the front window with a rock and crawled through into the house. He grabbed the phone from her, threw it to the floor, and hit her repeatedly with his fists. He pulled off her glasses and flung them down. In the struggle, her necklace and earrings were broken off. Then he ordered her upstairs with the threat, “or I’ll kill you right here.” Grabbing the neck of her sweater and twisting it into a tight hold, he began dragging her up the stairs. All the while, the 911 operator remained on the line, recording the unfolding events.

[¶ 5.] In a few minutes the police arrived. They found five or six large landscaping rocks piled against the back door — an apparent attempt by Stanga to block Judy’s escape. The officers entered the house through another door and came upon Stanga and Judy halfway up the stairwell. A belt was wrapped around his wrist. Concerned that he had a weapon, the officers did not attempt to seize him immediately but ordered him to show his hands and let Judy go. Still clutching Judy’s sweater, Stanga would not relent. He kept putting his free hand inside his coat pocket. After a brief standoff, the officers grabbed his legs, dragged him down the stairs with Judy in tow, and pried him away from her. Officers later recovered various items Stanga had brought with him that night: a utility knife, razor blades, needle-nose pliers, a pair of blunt-nose scissors, and a roll of duct tape.

[¶ 6.] Stanga was taken to the Minne-haha County Jail. A blood sample was drawn for testing, which later showed that he had a blood alcohol content of 0.17. At 8:55 p.m. Detective Troy Lubbers began to interrogate him. The interview was recorded with a hidden video camera and microphone. Only Detective Lubbers and Stanga were in the room. At trial, the detective testified that he repeatedly lied to Stanga to induce him to confess. Stan-ga admitted during interrogation that he wanted to kill Judy, but also contradicted himself with remarks that he would “never hurt” her and that he only wanted to “talk” to her.

[¶ 7.] Stanga was charged with two counts of first degree burglary, one count of simple assault, and one count of violating a protection order. A jury found him guilty of all charges. The circuit court sentenced him to twenty-five years in the penitentiary on one of the burglary convictions. He now appeals the denial of his motion to suppress.

B.

[¶ 8.] Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)(standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9thCir.1993); State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603. The volun-tariness of an admission and the validity of a Miranda waiver-of-rights are separate but parallel inquiries. 2 S. Childress & M. Davis, Federal Standards of Review § 11.13, at 11-54, 55 (3d Ed. 1999). The State must prove beyond a reasonable doubt that the defendant’s admissions were voluntary. State v. Faehnrich, 359 N.W.2d 895, 898 (S.D.1984) (citations omitted). The totality of the circumstances surrounding the interrogation must be considered. Id. Although the underlying circumstances surrounding an interrogation are factual determinations, ultimately voluntariness is a legal question, requiring independent judicial review. Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405, 414-15 (1985).

C.

[¶ 9.] Before the interrogation began, Detective Lubbers identified himself as an officer and advised Stanga of his Miranda rights. After a little hesitancy, he agreed to give an interview, acknowledging that he knew he did not have to. Lubbers then began questioning in a conversational tone. Stanga admitted that he had been drinking and Lubbers concluded that Stanga was under the influence: his breath smelled of an alcoholic beverage, his intoxication was apparent by his behavior, and his slurred speech was difficult to understand at times. During the interview, Stanga did not ask for an attorney or for questioning to stop. He was responsive and displayed an awareness of details such as Judy’s street address, the length of his marriage to her, and how long it had been since their divorce.

[¶ 10.] Lubbers said numerous times that he was there to listen, making comments such as “it’s between you and me,” “I’m here to listen to your side,” and “you need to get this off your chest,” all as part of his interrogation technique. Stanga said repeatedly that he went to the house to “talk” to Judy, but he also admitted hitting her, and then divulged having in mind a plan to kill her. Throughout the interview, he sought assurances on whether he could trust the detective — whether he could speak “straight up.” When Stan-ga seemed to forget who he was talking to, Lubbers reminded him, “Well, I am the cop.” At one point, Stanga told the detective, “I know you’re here to get something against me.” But Lubbers responded, “No, I’m here for you and I to talk.” After hearing this, Stanga said, “Okay. I’m going to tell you straight up, and if it goes any further than me and you, then I won’t tell. I don’t know.” Lubbers responded, “You can trust me straight up. Go ahead.”

[¶ 11.] Still needing more assurance, Stanga asked, “What I say to you, suppose it goes to everybody?” As the videotape ran and as other officers watched unseen, Lubbers replied, “Between you and me. There’s nobody else in the room here. It’s between you and me.” Stanga confided again that he was thinking about killing Judy when he broke into her home. Later, seeming to understand that his statement could be used against him, Stanga said, “I’ll tell you the truth and you tell the judge.” Yet at the end of the interview, Stanga repeated his earlier overture, “Don’t tell anybody either.” Lubbers responded, “No, I ain’t telling anybody anything. ...”

[¶ 12.] A voluntary waiver of the Fifth Amendment privilege against self-incrimination depends on the absence of police overreaching. Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 486 (1986) (citing Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986)). The Miranda warning ensures that a waiver of rights is given knowingly and intelligently “by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.” Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 857-58, 93 L.Ed.2d 954, 966 (1987) (emphasis added). The Court in Spring cites several examples, predating Miranda, where police, made affirmative misrepresentations, making a Fifth Amendment waiver invalid. Id. at 576 n.8, 107 S.Ct. at 858, 93 L.Ed.2d at 967 (citing Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (confession rendered involuntary by police officers’ misrepresentation that suspect would be deprived of .state financial aid for her dependant children if. she failed to cooperate with authorities); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959).

[¶ 13.] Miranda imposes “concrete constitutional guidelines for law enforcement agencies and courts to follow.” Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 1611, 16 L.Ed.2d 694, 705 (1966). Specifically, before questioning begins, the custodial suspect must be told among other things, that “anything he says can be used against him in a court of law[.]” Id. at 479, 86 S.Ct. at. 1630, 16 L.Ed.2d at 726. “One of the investigative techniques that Miranda was. designed to guard against was the use by police of various kinds of trickery ... to elicit confessions from suspects.” Berkemer v. McCarty, 468 U.S. 420, 438 n.27, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317, 333 (1984) (citing Miranda, 384 U.S. at 448-55, 86 S.Ct. at 1614-17, 16 L.Ed.2d at 708-12).

[¶ 14.] In United States v. Dohm, 618 F.2d 1169 (5th Cir.1980), the defendant did not knowingly and intelligently waive his right against self-incrimination. A magistrate warned the defendant at. his bail hearing that “you may say something that might hurt you in the future proceedings ... the law says that the testimony here really should be used against you at future proceedings^]” Then the magistrate disclaimed his warning saying, “but I don’t know how it can be done. Technically, they won’t use it[.]” Id. at 1175. This was “misleading and confusing,” the appellate court ruled, and the statements the defendant made at his bail hearing were held inadmissible. Id.

[¶ 15.] Misleading comments made by interrogating officers were discussed in United States v. Beale, 921 F.2d 1412 (11th Cir.1991). There, a suspect signed a waiver of his rights only after the government agent assured him that signing the form “would not hurt him.” Id. at 1435. The court wrote that “by telling Lavin that signing the waiver would not hurt him the agents contradicted the Miranda warning that a defendant’s statements can be used against the defendant in court, thereby misleading Lavin concerning the consequences of relinquishing his right to remain silent.” Id. (citing Dohm, 618 F.2d at 1175).

[¶ 16.] The defendant in People v. Nicholas, 112 Cal.App.3d 249, 169 Cal.Rptr. 497, 507 (1980) asked that two of the three officers interrogating him after his arrest for murder and robbery leave the room so that he could speak with one officer alone. The court held that this request, coupled with the officer’s assurances of total privacy, amounted to an invocation of the privilege. Id. Without a knowing and intelligent waiver of his rights, it was improper to admit the confession given to the sole officer. Id. In explaining its rationale the court wrote:

It is apparent that when the police interview a suspect, they must skate a fine line. They are employed to protect the public, to solve crimes, to discover missing persons, and to determine whether missing persons have been the victims of foul play. They are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.

Id. at 505 (citation omitted).

[¶ 17.] The United States Supreme Court in the recent case of Dickerson v. United States, — U.S. -, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), clarified some of its prior decisions on the Miranda rule and held that the warnings are a “constitutional” requirement. — U.S. at -, 120 S.Ct. at 2329, 147 L.Ed.2d at 411. The Miranda decision recognized the “compelling pressures” inherent in a custodial police interrogation: “to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” Id. at-, 120 S.Ct. at 2335, 147 L.Ed.2d at 417 (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719).

[¶ 18.] Here, the videotape shows Stanga struggling with whether to admit his true purpose that night. Plying on Stanga’s indecision, Lubbers assured him that whatever he said was between them, in effect, suggesting that what Stanga said would not be used in court. After giving the Miranda warning to Stanga, Lubbers repeatedly contradicted the admonition that anything Stanga said could be used against him. Lubbers told Stanga twelve times that what was said during the interrogation was between the two of them. In the suppression hearing and in the trial, Lubbers admitted that he lied to Stanga when he told him that what he said would not go any further than the interview room.

[¶ 19.] Some of the detective’s comments were equivocal and might fairly be characterized as sympathetic colloquialisms (to use the trial court’s words), but several of the assurances clearly crossed the line. When Stanga said that he knew that Lubbers was there to get something against him and Lubbers responded “No, I’m here for you and I to talk,” that and comments like it nullified the Miranda warnings. Although trickery is sometimes a legitimate "interrogation technique, Miranda warnings are a “concrete” prerequisite to custodial interrogation and may not be manipulated through deception. These warnings would be senseless if interrogating officers can deceive suspects into believing their admissions will not go beyond the interrogation room. As the warnings are constitutionally required, Dickerson, — U.S. at -, 120 S.Ct. at 2333, 147 L.Ed.2d at 416, interrogation techniques designed to mislead suspects about those warnings are impermissible. After viewing the videotape of the interview and considering the totality of the circumstances, we conclude that the trial court erred in not suppressing the statement.

D.

[¶ 20.] Erroneous admission of statements obtained in violation of Miranda may constitute harmless error when there remains overwhelming independent evidence of guilt. Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302, 329 (1991); SDCL 15-6-61; SDCL 23A-44-14 (Rule 52(a)). Even constitutional error can be harmless if the State shows beyond a reasonable doubt that the error was not prejudicial. Id.; State v. Schuster, 502 N.W.2d 565, 570 (S.D.1993). See Harrington v. California, 395 U.S. 250, 251-52, 89 S.Ct. 1726, 1727-28, 23 L.Ed.2d 284, 286-87 (1969); Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710 (1967). The primary value of Stanga’s statement to the prosecution’s case was his admission that he had a violent intent when he broke into his ex-wife’s home. Both first degree burglary charges against him required proof of intent to commit assault. The court instructed the jury that to establish the offense of first degree burglary, the State had to prove beyond a reasonable doubt that during the nighttime Stanga unlawfully entered an occupied structure with the intent to commit the crime of assault.

[¶ 21.] That Stanga preplanned and carried into execution a physical attack on his ex-wife was clearly established with the following facts presented to the jury. Before the break-in, he left angry messages on her answering machine. He came equipped with razor blades, pliers, a knife, scissors, and duct tape. He piled rocks against the door to block her escape as he-entered through a window. The moment he reached her, he began assaulting her. As recorded on the 911 police tape, he ordered her upstairs threatening “or I’ll kill you right here.” Even when the police commanded him to stop, he would not release her. “Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 471 (1986). These circumstances establish beyond a reasonable doubt the intent to assault with evidence independent of Stan-ga’s admission.

[¶ 22.] Affirmed.

[¶ 23.] MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur.

[¶ 24.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 25.] The actions of this Sioux Falls detective clearly cross the line of permissible interrogation. Unfortunately, these overreaching interrogations are not new to the Sioux Falls Detective Bureau. Justice Henderson’s concurrence in Dickey, decided over ten years ago, still rings true:

I vote hereby to affirm this conviction but with a singular warning to the Sioux Falls Detective Bureau that there is a limit to which it can proceed, in order to obtain incriminating statements. I truly hope that this affirmance does not spawn further similar practices.

Dickey, 459 N.W.2d at 450.

[¶ 26.] The actions by Detective Lubbers demonstrate this warning went unnoticed here. It would seem that the Sioux Falls Detective Bureau is as well versed in our harmless error analysis as we are. Apparently, the trampling of a suspect’s rights is of little concern to some members of law enforcement as long as a conviction will be upheld. However, more harm than good may come from such practice.

[¶ 27.] In State v. Oltmanns, this Court affirmed the suppression of incriminating statements obtained through coercion. 519 N.W.2d 602, 606 (S.D.1994). “Maybe they will persist in their present practice. If so, it won’t be long before the results necessarily required in Oltmanns will revisit them.” State v. Darby, 1996 SD 127, ¶ 52, 556 N.W.2d 311, 323 (Sabers, J., dissenting).

      . Stanga also asserts error in the court's failure to suppress because there was an unexplained thirty-three second gap in the videotape. In view of our ruling we need not reach that question. He also contends that the trial court erred in failing to strike for cause four potential jurors on the panel who had served as jurors in another trial during the current term of court. Under the statute in effect at the time (SDCL 23A-20-13(9)), potential jurors were not disqualified from serving on more than one trial within a term. They were only disqualified if they served on a trial within two years before the opening day of the term of court during which they were summoned as jurors.

      . Stanga was indicted on two misdemeanors and two first degree burglary counts. The jury found him guilty on all four counts. The court entered judgment on both misdemeanors, but on only one of the burglary convictions: the one charged in count one. That count alleged that he entered the home with intent to commit assault in violation of SDCL 22-33-1(3). The first degree burglary charge in count two alleged intent to commit assault under SDCL 22-32-1(1), and in addition alleged that Stanga “then and there did inflict or attempt or threaten to inflict physical harm on another, namely, Judy Stanga.”


author: Joan E. Lancaster Associate Justice

text:
    James MIDDLETON, deceased employee, by Arlene MIDDLETON, Relator, v. NORTHWEST AIRLINES, et al., Respondents.
    No. C0-00-1105.
    Supreme Court of Minnesota.
    Oct. 3, 2000.
    John H. Guthmann, Wayne P. Dordell, Hansen, Dordell, Bradt, Odlaug <& Bradt, P.L.L.P., St. Paul, for relator.
    Michael D. Aafedt, Krista L. Twesme, Aafedt, Forde, Gray & Monson, P.A., Minneapolis, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed May 31, 2000, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. Kb).

BY THE COURT:

Joan E. Lancaster Associate Justice


author: LANCASTER, Justice.

text:
    Jimmy Robert HUMMEL, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C1-00-139.
    Supreme Court of Minnesota.
    Oct. 12, 2000.

      Barry V. Voss, Voss & Hickman, P.A., Minneapolis, for appellant.
    Michael Hatch, Attorney General, Robert A. Stanich, Asst. Attorney General, St. Paul, Donald F. Ryan, Crow Wing County Attorney, Brainerd, for respondent.
   OPINION

LANCASTER, Justice.

This case comes before the court on appellant Jimmy Robert Hummel’s appeal from a district court order dismissing his petition for postconviction relief. In his petition, appellant requested a new trial based on allegations of ineffective assistance of trial and appellate counsel in connection with his 1990 first-degree murder conviction. The facts underlying that conviction are set out in State v. Hummel, 483 N.W.2d 68, 70-71 (Minn.1992). The district court dismissed appellant’s petition without conducting an evidentiary hearing, finding appellant’s petition to be both time-barred and procedurally-barred. Appellant contends that the court abused its discretion in dismissing his petition without an evidentiary hearing. Because we conclude that the petition, files, and record demonstrate that appellant is entitled to no relief, we affirm the district court’s decision.

On September 21, 1990, a jury found appellant guilty of first-degree murder and he was subsequently sentenced to life in prison. This court affirmed that conviction on April 17,1992.

On October 6, 1999, nearly seven and one-half years after this court affirmed his conviction, appellant petitioned for post-conviction relief based on allegations of ineffective assistance of trial and appellate counsel. Appellant raises three arguments in support of his petition. First, appellant complains that, during his murder trial, he and his family witnessed the trial judge sleeping and brought this to the attention of counsel, who failed to take any curative action with regard to the judge’s alleged sleeping. Second, appellant complains that during voir dire and opening and closing statements his attorney conceded that appellant committed the murder without first obtaining appellant’s consent to make the admission. Third, appellant argues that his privately-retained appellate counsel, the same counsel at both trial and appeal, failed to raise any of the above arguments or an ineffective assistance of trial counsel claim on direct appeal. Accordingly, appellant requested a new trial.

On November 24, 1999, the postconviction court dismissed appellant’s petition without an evidentiary hearing. The court held that appellant failed to pursue his claim with due diligence because he waited to petition for more than nine years after his conviction and approximately seven and one-half years after the conviction was affirmed. Therefore, the court held that appellant’s petition was time-barred. Alternatively, the court found appellant was procedurally-barred from bringing the petition because he knew of the facts underlying his ineffective assistance claims during his direct appeal and therefore he should have raised the claims at that time. Because he failed to do so, the court found that appellant’s petition was procedurally-barred under the rule of State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Appellant argues that the district court abused its discretion when it dismissed his petition without an evidentiary hearing and asks us to reverse that decision. We affirm the district court’s decision, but on alternative grounds.

A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity. See State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968). This court reviews a postconviction court’s decision only to determine whether sufficient evidence supports the court’s findings. See Sutherlin v. State, 574 N.W.2d 428, 432 (Minn.1998); Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992). We’ overturn a postconviction court’s decision only if the court abused its discretion. See Wilson v. State, 582 N.W.2d 882, 884 (Minn.1998); Scruggs, 484 N.W.2d at 25.

Postconviction relief may be sought in Minnesota pursuant to Minn. Stat. § 590.01, subd. 1 (Supp.1999). A postconviction proceeding may require an evidentiary hearing. See Minn.Stat. § 590.04, subd. 1 (1998). At the hearing, a petitioner bears the burden of establishing by a fair preponderance of the evidence facts that warrant a reopening of his case. See Hale, 566 N.W.2d at 926. In order to meet that burden, a petitioner’s allegations must be supported with more than mere argumentative assertions that lack factual support. See id. However, if the petition, files, and record “conclusively show that the petitioner is entitled to no relief,” a court need not conduct an eviden-tiary hearing. Minn.Stat. § 590.04, subd. 1; see Zenanko v. State, 587 N.W.2d 642, 644 (Minn.1998); Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990). In order to support his ineffective assistance claims, appellant must allege facts that demonstrate (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s errors, the result of the murder trial would have been different. See Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We consider each of appellant’s ineffective assistance allegations in turn.

First, appellant claims that the trial judge slept during portions of his trial and complains that his attorney failed to object. Appellant fails to point to any specific errors that occurred as a result of his attorney’s lack of objection. On direct appeal from his murder conviction, appellant attacked, specific evidentiary rulings that, he argued to no avail, violated his constitutional rights. See Hummel, 483 N.W.2d at 71. Now, however, he has not explained how counsel’s failure to object to the sleeping judge, if indeed the judge was sleeping, prejudiced his case. As a result, this allegation fails to support appellant’s ineffective assistance claim, which requires him to allege facts that show a reasonable probability that but for the alleged error the outcome of his murder trial would have been different. The Eighth Circuit Court of Appeals addressed a similar ineffective assistance case involving an allegedly sleeping judge. See Martin v. United States, No. 93-2054, 1993 WL 265072, at *2 (8th Cir. July 20, 1993). The court stated that the petitioner did “not speciffy] any trial error that occurred as a result of the judge’s alleged sleeping during parts of his jury trial,” and therefore the petitioner had “not shown how he was prejudiced by counsel’s failure to raise this issue on appeal.” Id. Likewise, we find that appellant failed to specify how the allegedly sleeping judge prejudiced the outcome of his trial.

Further weighing against appellant is the fact that he and his family knew of the alleged sleeping the moment it occurred, yet he did not file his petition for postcon-viction relief until nine years after the trial. Petitioner offers no explanation or excuse for his delay. Cf. Black, 560 N.W.2d at 85. As each year passes, it becomes more difficult to address a claim like appellant’s. Witnesses, if they are still available, have fading memories. In this case, the judge that appellant complains of has since retired. For all these reasons, we conclude that the postconviction court did not abuse its discretion when it did not grant appellant an evidentiary hearing based on this allegation.

Second, appellant complains that he did not consent to his attorney’s admission of guilt during trial and therefore he received ineffective assistance of counsel. Appellant states in his brief that he “was neither aware of, nor agreed or consented to, counsel’s admission that appellant killed without justification.” Appellant cites various pages in the trial transcript on which his attorney allegedly conceded his guilt without consent. The state responds by pointing to several portions of the transcript that demonstrate that counsel’s admission was part of his ultimate defense strategy, namely to argue that appellant did not commit first-degree murder but rather some lesser offense. The state further argues that appellant never expressed dissatisfaction with counsel’s strategy during trial or during the next nine years.

This court recognizes the “basic principle that a criminal defense attorney cannot admit his client’s guilt to the jury without first obtaining the client’s consent to this strategy.” State v. Wiplinger, 343 N.W.2d 858, 860 (Minn.1984); see State v. Moore, 458 N.W.2d 90, 96 (Minn.1990). The result of such attorney misconduct is a new trial for the petitioner. See Moore, 458 N.W.2d at 96. In this case, the record clearly demonstrates that appellant’s attorney admitted that appellant killed Pesh-eck. But the record also reveals that this admission was part of counsel’s strategy to prove that appellant did not premeditate but instead acted out of passion, rendering him not guilty of first-degree murder but of some lesser offense. This court acknowledges such an approach as a valid trial strategy. See Moore, 458 N.W.2d at 96; Wiplinger, 343 N.W.2d at 861. Nonetheless, without the defendant’s consent to the admission, even this type of strategy may result in a new trial. See Moore, 458 N.W.2d at 96; Wiplinger, 343 N.W.2d at 861. Despite appellant’s assertion in his petition that “prior to opening statement, [his attorney] did not seek consent, or disclose, that he was going to admit [appellant’s] killing of his former girlfriend and, in fact, [appellant] specifically forbade his lawyer from doing so,” our own review of the trial transcript reveals that appellant did in fact consent to the strategy during voir dire.

[State’s Attorney:] Your Honor, I have asked that we have a discussion out of the presence of the jury.
In view of the defense counsel’s voir dire in which he has admitted on behalf of his client that some of the material elements of the offense, namely that the defendant did it, I thought, pursuant to the decision in State v. Moore and the supreme court’s admonishment in that case, the consent of the defendant should be obtained on the record.
[Appellant’s Attorney:] Your Honor, I have also read that opinion and I think that [the state’s attorney] is correct in pointing that out and I have talked to my client at length as well as his family and Jimmy [addressing appellant], you understand what we are putting on the record at this point, do you not?
[Appellant Hummel:] Yes.
[Appellant’s Attorney:] You understand what we are admitting to is that Shana died of stab wounds?
[Appellant Hummel:] Yes.
[Appellant’s Attorney:] And that you caused those stab wounds?
[Appellant Hummel:] Yes.
[Appellant’s Attorney:] But what this trial is about is not who did it, it is, we are admitting you did it, what we are talking about is what your state of mind was at the time.
[Appellant Hummel:] Yah.
[Appellant’s Attorney:] That is what this case is about, right?
[Appellant Hummel:] Yah.
[Appellant’s Attorney:] And you have given me permission to present this case in this particular way?
[Appellant Hummel:] Yes.
[Appellant’s Attorney:] Thank you, I have nothing further to add on the record at this time.
[The Court:] We stand in recess.

Appellant’s allegation that he never consented to counsel’s admission is contradicted by the record. As a result, this allegation does not lead to a factual dispute that entitles appellant to an evidentiary hearing. See Minn.Stat. § 590.04, subd. 1.

Finally, appellant complains that on his appeal the pame counsel failed to raise the above issues or claim ineffective assistance of trial counsel. At the outset we note that appellate counsel has no duty to raise all possible issues on appeal, but may exclude those that detract from more meritorious issues. See Wilson, 582 N.W.2d at 886. Further, because we have determined that the allegations underlying appellant’s claim of ineffective assistance of trial counsel lack merit and thus do not entitle him to an evidentiary hearing, appellate counsel did not provide ineffective assistance by not pursuing an ineffective assistance of trial counsel claim. See Sutherlin, 574 N.W.2d at 435. This allegation does not entitle appellant to an evi-dentiary hearing.

Because the petition, files, and record demonstrate that appellant is not entitled to relief, we affirm the district court’s dismissal of appellant’s petition for postcon-viction relief.

Affirmed.

GILBERT, J., took no part in the consideration or decision of this case.

      . The Knaffla court held:
      [I]n a postconviction proceeding, relief is to be predicated, not upon a determination as to whether direct appeal from the conviction was taken within the prescribed time limitations, but rather upon compliance with the procedural requirements of Minn. St. c. 590. It must be emphasized, however, that where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.

        Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. This court has held that the Knaffla bar applies to ineffective assistance of trial counsel claims. See Hale v. State, 566 N.W.2d 923, 926 (Minn.1997); Black v. State, 560 N.W.2d 83, 85 (Minn.1997).

      . Minnesota Statutes § 590.01, subd. 1, reads:
      Except at a time when direct appellate relief is available, a person convicted of a crime, who claims that:
      (1) the conviction obtained or the sentence or other disposition made violated the person’s rights under the Constitution or laws of the United States or of the state; or,
      (2) scientific evidence not available at trial, obtained pursuant to a motion granted under subdivision la, establishes the petitioner's actual innocence; may commence a proceeding to secure relief by filing a petition in the district court in the county in which the conviction was had to vacate and set aside the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate. Nothing contained herein shall prevent the supreme court or the court of appeals, upon application by a party, from granting a stay of a case on appeal for the purpose of allowing an appellant to apply to the district court for an evidentiary hearing under the provisions of this chapter. The proceeding shall conform with sections 590.01 to 590.06.

      . Minnesota Statutes § 590.04, subd. 1, reads:
      Unless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition and response thereto, and promptly determine the issues, make findings of fact and conclusions of law with respect thereto, and either deny the petition or enter an order granting appropriate relief.

      . In Wiplinger and Moore, the defendants’ attorneys conceded the defendants' guilt, and in both cases the respective defendant voiced his objection to the trial court. See Moore, 458 N.W.2d at 95; Wiplinger, 343 N.W.2d at 860. In both cases, this court held that the admission necessitated a new trial. See Moore, 458 N.W.2d at 96; Wiplinger, 343 N.W.2d at 861.
      On the contrary, in State v. Provost, this court found that where the record was totally devoid of any objection to or dissatisfaction with counsel’s unilateral admission, the defendant effectively acquiesced in his counsel’s strategy and therefore was not entitled to a new trial. See State v. Provost, 490 N.W.2d 93, 97 (Minn.1992).