                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0386

                         Francisco Vincent Vargas, petitioner,
                                      Appellant,

                                          vs.

                                 State of Minnesota,
                                    Respondent.

                              Filed November 23, 2015
                                     Affirmed
                                  Rodenberg, Judge

                           Redwood County District Court
                              File No. 64-CR-09-142

Cathryn Middlebrook, Chief Appellate Public Defender, Katie Conners, Special Assistant
Public Defender, Carol Comp, Special Assistant Public Defender, St. Paul, Minnesota
(for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Steven S. Collins, Redwood County Attorney, Redwood Falls, Minnesota (for
respondent)

      Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Stoneburner, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

RODENBERG, Judge

       In this appeal from the district court’s denial of his petition for postconviction

relief without an evidentiary hearing, appellant challenges the district court’s conclusion

that the state had no obligation to prove that appellant possessed a controlled substance in

order to convict him of conspiracy and that his claims therefore fail as a matter of law.

We affirm.

                                          FACTS

       Appellant was arrested in July 2008 and charged with first-degree possession of a

controlled substance.    The state later amended the complaint, adding a charge of

conspiracy to commit first-degree possession of a controlled substance.             The state

dismissed the first-degree possession charge on the first day of appellant’s March 2010

jury trial. The jury convicted appellant of the first-degree conspiracy charge.

       This appeal is from the denial of appellant’s second petition for postconviction

relief. In April 2011, appellant filed his first postconviction petition, alleging that he

received ineffective assistance of counsel and challenging the sufficiency of the evidence.

Following an evidentiary hearing, the postconviction court denied appellant’s petition.

On October 1, 2012, we affirmed the denial of that petition for postconviction relief.

State v. Vargas, No. A10-1233, 2012 WL 4475682, at *5 (Minn. App. Oct. 1, 2012). The

facts of this case are set forth in our earlier opinion, and we do not recite them again here.

       As relevant to this appeal, a criminalist from the St. Paul Police Department Crime

Lab (SPPDCL) testified at trial that a substance seized from a vehicle that appellant was


                                              2
driving was cocaine, and that it weighed 52.6 grams. Appellant’s trial counsel cross-

examined the criminalist’s testimony concerning, among other things, the SPPDCL’s

testing procedures, but appellant did not dispute at trial that the substance found in the

vehicle was cocaine. Independent testing of the substance was neither requested nor

performed. After the state rested, appellant moved to dismiss, arguing that he had been

“framed” and that there was no evidence of a conspiracy. The district court denied the

motion, finding that there was sufficient evidence to submit the case to the jury, and the

jury found appellant guilty of conspiracy to commit first-degree possession.

       Appellant now argues that evidence of “massive reliability failures” at the

SPPDCL requires a new trial.        The postconviction court denied appellant’s petition

without conducting an evidentiary hearing because it determined that the state was not

required to prove that the substance received in evidence at trial was actually cocaine and

that appellant’s legal claims therefore failed as a matter of law.

                                      DECISION

       We review the denial of postconviction relief for an abuse of discretion. Reed v.

State, 793 N.W.2d 725, 729 (Minn. 2010). “In doing so, we review the postconviction

court’s legal conclusions de novo, see Davis v. State, 784 N.W.2d 387, 390 (Minn. 2010),

and its findings of fact for clear error, see Doppler v. State, 771 N.W.2d 867, 875 (Minn.

2009).” Greer v. State, 836 N.W.2d 520, 522 (Minn. 2013).




                                              3
I.         Appellant’s conspiracy conviction did not require the state to prove the
           identity of the substance seized when appellant was arrested

           Central to this appeal is whether appellant’s conviction required proof that the

substance seized by police was actually cocaine. The postconviction court held that the

state was not required to so prove, and that the laboratory deficiencies to which appellant

points as entitling him to relief are therefore not materially important to his conviction.

           To prove the crime of conspiracy to possess a controlled substance, the state must

prove that (1) there was an agreement to commit a controlled-substance crime and (2) one

of the parties to that agreement committed an overt act in furtherance of that conspiracy.

See Minn. Stat. §§ 152.096, subd. 1 (2008) (prohibiting conspiracy to commit controlled-

substance crimes), 609.175, subd. 2 (2008) (identifying elements of conspiracy crime);

State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). “[A] conspiracy to commit a crime

is a separate, substantive offense from the crime which is the object of the conspiracy

. . . .”    State v. Burns, 215 Minn. 182, 186, 9 N.W.2d 518, 520 (1943).              Because

conspiracy is an anticipatory crime, the crime that is the object of the conspiracy need not

be completed. See Minn. Stat. § 609.175, subd. 2.

           Appellant cites Kuhnau for the proposition that the state is required to prove all of

the elements of the underlying drug offense in addition to the elements of conspiracy,

including possession of a controlled substance. See 622 N.W.2d at 556 (stating that “[a]

conscious and intentional purpose to break the law is an essential element of the crime of

conspiracy and consists of two distinct crimes: the conspiracy and the substantive crime,

which is the object of the conspiracy”). In Kuhnau, the Minnesota Supreme Court held



                                                 4
that the district court erred by failing to include the language “whether Kuhnau knew or

believed that the substance sold was methamphetamine under the facts presented” in the

otherwise appropriate jury instructions. Id. at 557. Nothing in Kuhnau required the

actual sale of a controlled substance. Rather, the state must prove that the accused

conspired to commit the crime and intended to sell a controlled substance. Id.

      Here, the first-degree possession charged was dismissed before trial, and appellant

was tried only on the conspiracy charge. Appellant did not challenge at trial that the

substance at issue was cocaine. Rather, he maintained that he was not part of any

conspiracy concerning it and that he had been “framed.” As required by Kuhnau, the

district court instructed the jury that it was required to find that the state had proven

appellant’s agreement to commit a controlled-substance crime in order to convict.

      In State v. Deshay, we noted that “[t]he conspiracy statute does not require that the

state prove DeShay personally sold ten or more grams of cocaine within a 90-day period;

only that he participated in an agreement to sell ten or more grams of cocaine within a

90-day period.” 645 N.W.2d 185, 190-91 (Minn. App. 2002), aff’d, 669 N.W.2d 878

(Minn. 2003). Similarly, the state was not required to prove here that appellant actually

possessed more than 25 grams of cocaine.         Rather, the state needed to prove that

appellant participated in an agreement to possess more than 25 grams of cocaine. We

determined in an earlier appeal that the evidence was sufficient to sustain his conviction.

Vargas, 2012 WL 4475682, at *9. Consequently, the postconviction court did not err in

determining that the state was not required to prove that appellant possessed cocaine

under Minn. Stat. § 152.096, subd. 1.


                                            5
II.    Denial of appellant’s petition for postconviction relief

       Appellant, as the petitioner for postconviction relief, has the burden to prove his

entitlement to postconviction relief by a fair preponderance of the evidence. Minn. Stat.

§ 590.04, subd. 3 (2014). “To meet that burden, a petitioner’s allegations must be

supported by more than mere argumentative assertions that lack factual support.” Powers

v. State, 695 N.W.2d 371, 374 (Minn. 2005). A postconviction court may summarily

deny a petition for relief without an evidentiary hearing if the files and records

conclusively show that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd.

1 (2014). We review such a denial for abuse of discretion. Chambers v. State, 831

N.W.2d 311, 318 (Minn. 2013).

       A.     Newly discovered evidence and false or misleading testimony

       Appellant’s first two arguments rely on the premise that his claims concerning

problems at the SPPDCL qualify as newly discovered evidence. To qualify as newly

discovered evidence warranting a new trial, the information must (1) not have been

known to the defendant at the time of trial; (2) not have been discoverable through due

diligence before trial; (3) not be cumulative, impeaching, or doubtful; and (4) be likely to

have produced a more favorable result at trial. Rainer v. State, 566 N.W.2d 692, 695

(Minn. 1997).

       Here, even if all of appellant’s allegations concerning SPPDCL problems are true,

the outcome of his trial would not have been any different. There was no argument at

trial concerning whether the substance found in the vehicle was cocaine.            Rather,

appellant argued that there was no evidence of his involvement in a conspiracy. As


                                             6
discussed above, the state was required to prove that appellant participated in an

agreement to possess more than 25 grams of a controlled substance, but was not obligated

to prove that he possessed cocaine. See Minn. Stat. § 152.021, subd. 2(1) (2008).

       Further, appellant asserts that evidence of SPPDCL problems shows that the

criminalist gave false testimony. Appellant cites State v. Caldwell, 322 N.W.2d 574, 585

(1982), to support his claim that he need only show that evidence of SPPDCL problems

might have caused the jury to reach a different conclusion. But Caldwell involves a

situation where false testimony was relied on concerning the issue of identity. Id. at 585-

86. There, the false or misleading testimony was critical to the conviction. Id. Here, the

testimony concerning identification of the substance was not necessary to the conviction.

As such, the SPPDCL irregularities would, at most, have had impeachment value on a

subject not required to be proven as an element of the charged crime. See Sentinel Mgmt.

Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 824-25 (Minn. 2000) (holding that

alleged deficiencies in expert witness’s methodology “went to the weight, rather than to

the admissibility of his testimony”). Even if the jury had known of the claimed SPPDCL

testing problems, its verdict would not have been different. The issue here was whether

appellant was part of a conspiracy to possess cocaine, and not whether he completed that

conspiracy by actually possessing cocaine.

       B.     Brady violation

       Appellant argues that the state’s failure to disclose SPPDCL’s testing deficiencies

before trial was a violation of its obligation to disclose exculpatory or impeaching

evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). To warrant relief


                                             7
under Brady, a petitioner must establish that (1) the evidence not disclosed was favorable

to him as exculpatory or impeaching; (2) the evidence was suppressed by the prosecution;

and (3) the evidence was material, resulting in prejudice to the petitioner. Walen v. State,

777 N.W.2d 213, 216 (Minn. 2010). The state’s suppression of evidence results in

prejudice if “there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Id. (quotation omitted).

       Here, the postconviction court correctly concluded that appellant was not

prejudiced by the evidence, regardless of the other Brady requirements, because whether

the substance was actually cocaine was not material to the conspiracy charge. Appellant

did not allege facts demonstrating that evidence of the testing deficiencies, if admitted,

would have changed the result of the proceeding given the nature of his conviction.

Appellant is therefore not entitled to relief under Brady.

       C.     Due process violation

       Both the United States and Minnesota constitutions require that an individual

receive “adequate notice and an opportunity to be heard before being deprived of life,

liberty, or property.” Christopher v. Windom Area Sch. Bd., 781 N.W.2d 904, 911

(Minn. App. 2010). “This court reviews the procedural due process afforded a party de

novo.” Staeheli v. City of St. Paul, 732 N.W.2d 298, 304 (Minn. App. 2007). “To

determine whether an individual’s right to procedural due process has been violated, a

reviewing court must first determine whether a protected liberty or property interest is

implicated and then determine what process is due by applying a balancing test.” State v.

Ness, 819 N.W.2d 219, 225 (Minn. App. 2012), aff’d, 834 N.W.2d 177 (Minn. 2013).


                                              8
       Appellant argues that he is entitled to a new trial because the state violated his due

process right by using unreliable scientific evidence from the SPPDCL. He relies on

State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989), to argue that the use of unreliable

scientific evidence implicates a liberty interest that must be afforded due process.

Schwartz addressed due process concerns regarding the reliability of DNA testing and its

use at trial. 447 N.W.2d at 427. In order to ensure a fair trial, the “test data and

methodology must be available for independent review by the opposing party.” Id. at

423.

       Here, appellant was able to review the SPPDCL’s test results and cross-examine

the criminalist regarding the details of the testing procedures.       He did not conduct

independent testing and does not allege on appeal that he was deprived of an opportunity

to do so. And because the state was not required to prove that the substance was actually

cocaine, any such independent testing or attach on the SPPDCL’s processes would not

have had any bearing on the conspiracy charge of which appellant was convicted.

Appellant was not denied due process of law under Schwartz.

       D.     Ineffective assistance of counsel

       Appellant argues that the postconviction court erred by denying his petition for

postconviction relief because his trial counsel was ineffective for failing to investigate

SPPDCL’s testing procedures and protocols.         To prevail on a claim of ineffective

assistance of counsel, appellant must demonstrate that “(1) . . . his counsel’s

representation ‘fell below an objective standard of reasonableness’; and (2) ‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the


                                             9
proceeding would have been different.’” Nissalke v. State, 861 N.W.2d 88, 94 (Minn.

2015) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064,

2068 (1984)).    “The extent of counsel’s investigation is considered a part of trial

strategy,” which we generally do not review. Opsahl v. State, 677 N.W.2d 414, 421

(Minn. 2004).

       Appellant argues in mercurial fashion both that the evidence concerning the

SPPDCL could not have been discovered through due diligence and that his defense

counsel erred in not properly investigating the lab results, its procedures, or the

criminalist’s credentials, the very things that he claims could not have been discovered

through due diligence. Appellant’s clear trial strategy was that he was not part of any

conspiracy concerning cocaine, but had instead been framed. In that context, and given

that the state was not required to prove that the seized substance was cocaine, counsel’s

performance was not deficient, nor would revelations of the SPPDCL problems have

made any difference at trial. The postconviction court correctly concluded that appellant

failed to satisfy the requirements of Strickland.

III.   Denial of appellant’s request for an evidentiary hearing

       Finally, appellant argues that the postconviction court erred when it denied his

petition without holding an evidentiary hearing. “On appeal from a summary denial of

postconviction relief, we examine whether sufficient evidence exists to support the

postconviction court’s findings and will reverse those findings only upon proof that the

postconviction court abused its discretion.” Ives v. State, 655 N.W.2d 633, 635 (Minn.

2003); see also Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). When a petition for


                                             10
postconviction relief is filed, “the court shall promptly set an early hearing on the petition

and response thereto, and promptly determine the issues” unless the “petition and the files

and records of the proceeding conclusively show that the petitioner is entitled to no

relief.” Minn. Stat. § 590.04, subd. 1. (2014). An evidentiary hearing is not required

unless there are material facts in dispute that must be resolved to determine the

postconviction claim on its merits. Powers, 695 N.W.2d at 374.

       The record conclusively shows that appellant is not entitled to relief.            His

conviction for conspiracy to commit first-degree possession of a controlled substance

does not depend on proof of the identification of the substance seized, but instead on

whether appellant was a participant in a conspiracy to commit the crime coupled with an

overt act in furtherance of that crime. Kuhnau, 622 N.W.2d at 556. The postconviction

court did not err in denying appellant’s petition without an evidentiary hearing.

       Affirmed.




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