                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A16-0323

Hennepin County                                                                Chutich, J.

Derrick Trevor Griffin,

                      Appellant,

vs.                                                                Filed: August 3, 2016
                                                               Office of Appellate Courts
State of Minnesota,

                      Respondent.

                                   ______________________

Derrick Trevor Griffin, Rush City, Minnesota, pro se.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant
Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

                                   ______________________

                                       SYLLABUS

       The postconviction court did not err by denying appellant’s claim of ineffective

assistance of counsel because the performance of appellant’s trial counsel was objectively

reasonable.

       Affirmed.

       Considered and decided by the court without oral argument.




                                             1
                                         OPINION

CHUTICH, Justice.

          In 2012, a Hennepin County jury found appellant Derrick Trevor Griffin guilty of

two first-degree murder offenses for the shooting death of one victim. See Minn. Stat.

§§ 609.185(a)(1) (premeditated murder), .185(a)(3) (drive-by shooting) (2014).             The

district court sentenced Griffin to life imprisonment without the possibility of release on

the conviction of first-degree premeditated murder. See Minn. Stat. § 609.185(a)(1);

Minn. Stat. § 609.106, subd. 2(1) (2014). On direct appeal, we affirmed. State v. Griffin

(Griffin I), 834 N.W.2d 688 (Minn. 2013).

          On July 31, 2015, Griffin filed a timely petition for postconviction relief, claiming

that he received ineffective assistance of trial and appellate counsel. The postconviction

court summarily denied relief, that is, it denied relief without holding a hearing. Griffin

now appeals the postconviction court’s denial of relief. For the reasons stated below, we

affirm.

          We review the denial of a petition for postconviction relief for an abuse of

discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). A postconviction court

abuses its discretion when it has “ ‘exercised its discretion in an arbitrary or capricious

manner, based its ruling on an erroneous view of the law, or made clearly erroneous

factual findings.’ ” Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015) (quoting Reed v.

State, 793 N.W.2d 725, 729 (2010)).            We review the postconviction court’s legal

conclusions de novo and its findings of fact for clear error. Greer v. State, 836 N.W.2d

520, 522 (Minn. 2013). A petition for postconviction relief may be summarily denied if

                                                2
the petition, the files, and the records of the proceeding conclusively show that the

petitioner is entitled to no relief. Minn. Stat. § 590.04, subd. 1 (2014). In determining

whether to summarily deny a petition, the postconviction court presumes the facts alleged

in the petition to be true. Bobo v. State, 820 N.W.2d 511, 517 (Minn. 2012).

       Griffin’s claims on appeal can be grouped into four categories. First, Griffin

alleges that his trial counsel was ineffective for failing to object to the district court’s

admission of an out-of-court statement made by Griffin’s wife, K.G., who identified

Griffin near a bar shortly before the murder occurred.

       Second, Griffin asserts violations of Minn. Stat. § 609.035 (2014) and the Double

Jeopardy Clauses of the United States and Minnesota Constitutions,1 which protect

defendants from multiple prosecutions or multiple sentences for the same offense, see

State v. Chavarria-Cruz, 839 N.W.2d 515, 520 (Minn. 2013); State v. Schmidt, 612

N.W.2d 871, 876 (Minn. 2000). He further argues that his trial counsel was ineffective

for failing to raise those alleged violations.




1
       The Double Jeopardy Clauses of the United States Constitution and the Minnesota
Constitution provide that no person shall “be twice put in jeopardy” of punishment for the
same offense. U.S. Const. amend. V; Minn. Const. art. I, § 7. Similarly, under section
609.035, subdivision 1, “if a person’s conduct constitutes more than one offense . . . the
person may be punished for only one of the offenses and a conviction or acquittal of any
one of them is a bar to prosecution for any other of them.” Section 609.035 “ ‘broaden[s]
the protection afforded by our constitutional provisions against double jeopardy.’ ” State
v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (quoting State v. Johnson, 273 Minn. 394,
400, 141 N.W.2d 517, 521 (1966)).



                                                 3
       Third, Griffin contends that his two first-degree murder convictions, for the

murder of one victim, violate Minn. Stat. § 609.04 (2014).2 See State v. Fort, 768

N.W.2d 335, 344 (Minn. 2009); State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000).

He further argues that his trial counsel was ineffective for failing to raise this alleged

violation.

       Fourth, Griffin asserts that his appellate counsel was ineffective for failing to raise

an ineffective-assistance-of-trial-counsel claim on direct appeal. But to establish that

appellate counsel was ineffective for failing to raise a claim of ineffective assistance of

trial counsel, “the appellant must first show that trial counsel was ineffective.” Fields v.

State, 733 N.W.2d 465, 468 (Minn. 2007); see Sullivan v. State, 585 N.W.2d 782, 784

(Minn. 1998) (“Sullivan’s ineffective assistance of appellate counsel claim is predicated

on the underlying claim against his trial counsel. If he cannot establish a claim of

ineffective assistance of trial counsel, his appellate counsel claim automatically fails.”).

Accordingly, if Griffin cannot establish that his trial counsel was ineffective, his claim

that appellate counsel was ineffective for failing to raise a claim of ineffective assistance

of trial counsel necessarily fails.

       Griffin’s claim that his two first-degree murder convictions violate section 609.04

and that his trial counsel was ineffective for failing to raise this alleged violation was not


2
        Under section 609.04, a defendant “may be convicted of either the crime charged
or an included offense, but not both,” and a “conviction or acquittal of a crime is a bar to
further prosecution of any included offense, or other degree of the same crime.” This
statute “prevents multiple convictions based on the same conduct committed against the
same victim.” State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000).


                                              4
raised in his petition for postconviction relief. Nor did the postconviction court consider

Griffin’s arguments regarding this claim.         Consequently, these arguments are not

properly before us, and we decline to review them. Brocks v. State, 753 N.W.2d 672, 676

(Minn. 2008) (“Brocks did not raise this issue in his [postconviction] petition . . .

therefore, the postconviction court did not consider it. It is well settled that claims raised

for the first time on appeal ‘are forfeited for purposes of the appeal.’ ” (quoting

Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006))).

       Given the above, our analysis of the ineffective-trial-counsel claims addresses

only Griffin’s claims that (1) his trial counsel was ineffective for failing to object to the

admission of K.G.’s out-of-court statement and (2) his convictions violate section

609.035 and the Double Jeopardy Clauses, and that his trial counsel was ineffective for

failing to raise those alleged violations.3 Before turning to the merits, however, we

address the State’s assertion that petitioner’s claims are procedurally barred by the rule

announced in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

       Under the Knaffla rule, if a postconviction claim was raised, known, or should

have been known when a direct appeal was filed, that claim is procedurally barred and

will not be considered in a later petition for postconviction relief. Leake v. State, 737

N.W.2d 531, 535 (Minn. 2007) (citing Knaffla, 309 Minn. at 252, 243 N.W.2d at 741).

An unraised claim is not Knaffla-barred, however, “if (1) the claim is novel or (2) the

3
       We address Griffin’s claim of double punishment under section 609.035 and the
Double Jeopardy Clauses, even though it was not raised before the postconviction court.
See State v. White, 300 Minn. 99, 106, 219 N.W.2d 89, 93 (1974) (“[T]he prohibition
against double punishment cannot be waived . . . .” (citing Minn. Stat. § 609.035)).


                                              5
interests of fairness and justice warrant relief.” Andersen v. State, 830 N.W.2d 1, 8

(Minn. 2013).

      Whether these exceptions to Knaffla, including the interests-of-justice exception,

are still available after enactment of section 590.01, subdivision 1 (2014), is an open

question. As we have explained:

      In 2005, the Legislature amended section 590.01, subdivision 1, to provide
      that “[a] petition for postconviction relief after a direct appeal has been
      completed may not be based on grounds that could have been raised on
      direct appeal of the conviction or sentence.” . . . Based upon the 2005
      amendments to the statute, it is unclear whether the Knaffla exceptions
      remain applicable to petitions for postconviction relief. Because that issue
      has not been raised by the State, we decline to reach it.

Andersen, 830 N.W.2d at 8 n.3 (citations omitted).

      Even assuming that the interests-of-justice exception remains applicable to this

petition, however, a viable claim “must have substantive merit and must be asserted

without deliberate or inexcusable delay.”        Id. at 8. Griffin contends, and the

postconviction court concluded, that the interests-of-justice exception applies to

overcome the Knaffla rule regarding Griffin’s ineffective-assistance-of-counsel claims

because Griffin’s appellate counsel (on his direct appeal in Griffin I) and trial counsel

were the same person.

      In so ruling, the postconviction court relied on a decision by the court of appeals,

Jama v. State, 756 N.W.2d 107 (Minn. App. 2008). In Jama, the court of appeals stated:

      [N]o Minnesota cases have squarely considered whether the Knaffla bar
      applies when the same attorney represented the petitioner at trial and on
      direct appeal. . . . [C]onsiderations of fairness are implicated. Counsel may
      have an inherent conflict of interest because counsel cannot be expected to
      allege his or her own incompetence as an aspect of appellate representation.

                                           6
       For this reason, a petitioner’s failure to raise an ineffective-assistance-of-
       trial-counsel claim on direct appeal cannot be considered inexcusable.
       Courts in other jurisdictions have reached this conclusion . . . . In sum, in
       these settings . . . failure to raise claims of ineffective assistance of trial
       counsel is presumptively neither deliberate nor inexcusable and that, in
       fairness, further review should not be barred.

Id. at 112 (citations omitted).

       We have not yet addressed whether the Knaffla interests-of-justice exception

applies when trial counsel and appellate counsel are the same person. We need not

decide this question here, however, because even if we assume that the Knaffla interests-

of-justice exception applies and that Griffin satisfies it, his underlying ineffective-

assistance claims lack merit, as shown below.

       Griffin argues that his trial counsel should have objected to the district court’s

admission of an out-of-court statement by his wife, K.G.4 Under Strickland, a claim of

ineffective assistance of counsel is established if “ ‘counsel’s representation fell below an

objective standard of reasonableness’ ” and “ ‘there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’ ” Fields, 733 N.W.2d at 468 (quoting Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984)).




4
       While K.G. was leaving a bar with friends, including the murder victim with
whom K.G. had an extramarital relationship, she saw a white Cadillac outside and said,
“Look at my husband over there, stalking me again.” Griffin I, 834 N.W.2d at 689-90.
Additional facts and analysis underlying this hearsay claim are not repeated here, as they
are provided in our decision on Griffin’s direct appeal. Id. at 690-95.



                                             7
       Because the application of the Strickland test involves a mixed question of law

and fact, our standard of review is de novo. State v. Rhodes, 657 N.W.2d 823, 842

(Minn. 2003); see Strickland, 466 U.S. at 698. There is a “strong presumption” that

counsel’s performance was objectively reasonable. King v. State, 562 N.W.2d 791, 795

(Minn. 1997).

       Applying these principles here, we conclude that the lack of an objection by

Griffin’s trial counsel was objectively reasonable. We held on Griffin’s direct appeal that

the district court’s admission of K.G.’s out-of-court statement was not an abuse of

discretion under the applicable evidentiary rule. Griffin I, 834 N.W.2d at 695 (“Given

that the [district] court applied the correct legal test and based on its overall analysis of

the relevant factors under [Minn. R. Evid.] 807, we hold that the [district] court did not

abuse its discretion in admitting the statement.”). An attorney’s failure to make an

objection that would have been properly denied is not objectively unreasonable under the

Strickland test. See State v. Rainer, 502 N.W.2d 784, 789 (Minn. 1993); State v. Tahash,

275 Minn. 242, 244-45, 146 N.W.2d 174, 176 (1966).

       Similarly, Griffin’s claim that his convictions violate section 609.035 and the

Double Jeopardy Clauses lacks merit. Our careful review of the record shows that

section 609.035 and the Double Jeopardy Clauses are not applicable because Griffin was

subject to only one prosecution and received only one sentence. See Chavarria-Cruz,

839 N.W.2d at 520; Schmidt, 612 N.W.2d at 876-78. Therefore, Griffin is not entitled to

relief on this ground. And his contention that his trial counsel was ineffective for failing

to raise these alleged violations accordingly fails.

                                              8
         Finally, Griffin’s claim of ineffective assistance of appellate counsel is predicated

on his underlying claims against his trial counsel. Because he cannot establish that his

trial counsel was ineffective, his claim that appellate counsel was ineffective necessarily

fails.

         Affirmed.




                                               9
