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Schleicher v. State

July 27, 2006

ROGER LINDBO SCHLEICHER, PETITIONER, APPELLANT,
v.
STATE OF MINNESOTA, RESPONDENT.



Steele County

SYLLABUS BY THE COURT

1. Claims raised for the first time on appeal are not properly before the court and are deemed forfeited for purposes of the appeal.

2. Petitioner's claim of ineffective assistance of post-conviction counsel fails because petitioner does not have a constitutional right to effective assistance of post-conviction counsel.

3. The post-conviction court did not abuse its discretion in denying petitioner's first petition for post-conviction relief because petitioner's claims of ineffective assistance of trial counsel were procedurally barred by the Knaffla rule and petitioner's claim of ineffective assistance of appellate counsel lacked merit because petitioner failed to prove that counsel's performance was objectively unreasonable.

4. The post-conviction court did not abuse its discretion in denying petitioner's second petition for post-conviction relief because petitioner's claims were known or should have been known at the time of direct appeal or at the time of the first post-conviction petition.

Affirmed.

The opinion of the court was delivered by: Anderson, Russell A., Chief Justice.

Dissenting, Page, and Anderson, Paul H., JJ.

Considered and decided by the court en banc without oral argument.

OPINION

Roger Lindbo Schleicher appeals the post-conviction court's denials of his first and second petitions for post-conviction relief from his conviction for first-degree premeditated murder. Because we conclude that all of the claims raised by Schleicher in his post-conviction petitions are either procedurally barred by the Knaffla rule or fail on the merits, we affirm.

Schleicher was indicted in Steele County District Court for first-degree premeditated murder for the shooting death of his friend, Jack Johannsen. State v. Schleicher, 672 N.W.2d 550, 550, 551 (Minn. 2003). Schleicher pleaded not guilty and not guilty by reason of mental illness under Minn. Stat. § 611.026 (2004).*fn1 Schleicher, 672 N.W.2d at 550. Our opinion in response to Schleicher's direct appeal provides a comprehensive statement of the facts of the underlying offense. See id. at 550-53.

Schleicher waived his right to a jury trial, and the district court conducted a bifurcated trial. Id. at 550 n.3, 551. The court rejected Schleicher's defense of not guilty by reason of mental illness, found him guilty of first-degree premeditated murder, and sentenced him to life imprisonment. Id. at 551.

Schleicher appealed, raising a single claim--that the language of Minn. Stat. § 611.026 is unconstitutionally vague. Schleicher, 672 N.W.2d at 555. We affirmed, concluding that we were procedurally barred from considering Schleicher's claim because he had not challenged the constitutionality of the statute at the district court. Id.

After his direct appeal, Schleicher, with the assistance of counsel, filed a petition for post-conviction relief. In the petition and attached memorandum of law, Schleicher claimed that: (1) he was denied effective assistance of trial counsel because trial counsel failed to challenge the constitutionality of Minn. Stat. § 611.026 and failed to elicit expert testimony showing that Schleicher, at the time of the murder, did not know his actions were wrong; and (2) he was denied effective assistance of appellate counsel because appellate counsel failed to request a stay of the direct appeal to pursue post-conviction relief based on ineffective assistance of trial counsel. Schleicher requested a hearing to present evidence showing that his "mental illness affected his ability to process the perceptions that he had of the victim due to his personality disorder and the mental illness affected his ability to respond to those perceptions," evidence that Schleicher claims trial counsel was ineffective for failing to submit at trial.

The post-conviction court held an evidentiary hearing that focused on examining the expert testimony relating to "the interplay between [Schleicher's] personality disorder and [his] mental illness."*fn2 The two expert witnesses who testified at the mental illness phase of the trial again testified at the hearing. At the end of the hearing, the court denied relief, concluding on the record that the testimony presented did not alter the court's conclusion that Schleicher had not met his burden of proving by a preponderance of the evidence that he did not know at the time of the murder that his actions were wrong.*fn3

Schleicher appealed from the post-conviction court's decision and, while his appeal was pending, moved to stay the appeal to permit him to file a second post-conviction petition. We stayed the appeal, and Schleicher filed a pro se petition, claiming that: (1) he was denied his right to testify; (2) he was denied a mental illness evaluation by Dr. Carl Malmquist; (3) he was denied the right to self-representation; (4) he was denied substitute private counsel; (5) he was denied the right to a jury trial; (6) he was not competent to proceed with trial; (7) trial counsel was ineffective; and (8) appellate counsel was ineffective. The post-conviction court denied the petition without a hearing, concluding that Schleicher failed to allege facts that would entitle him to relief and that the Knaffla rule procedurally barred his claims. Schleicher appealed, and we consolidated his appeals.

A defendant may seek post-conviction 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) (amended 2005). Allegations in a post-conviction petition must be "'more than argumentative assertions without factual support.'" Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). A petitioner seeking post-conviction relief has the burden ...


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