                          This opinion will be unpublished and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
                                     A15-1870

                              James Donald Dahl, petitioner,
                                      Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed August 15, 2016
                                        Affirmed
                                     Johnson, Judge

                               Stearns County District Court
                                 File No. 73-CR-07-14970

Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota (for appellant)

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

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

         Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Stauber,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         In 2010, a Stearns County jury found James Donald Dahl guilty of criminal sexual

conduct. In 2014, Dahl petitioned for postconviction relief on the ground that he received
ineffective assistance of counsel at trial. The postconviction court denied relief after a

three-day evidentiary hearing. We affirm.

                                          FACTS

       In December 2007, St. Cloud police officers responded to a report of a physical

altercation at Dahl’s home, which he shared with P.M. Officers learned that Dahl was

involved in a fight with R.O., P.M.’s adult son, who was living in the basement of the home

temporarily. During the investigation, police officers interviewed C.L., P.M.’s 14-year-

old daughter, who also was living in Dahl’s home. C.L. told police officers that Dahl, who

at that time was 56 years old, had raped her in August of that year and several other times

since August.

       The state charged Dahl with two counts of first-degree criminal sexual conduct, in

violation of Minn. Stat. § 609.342, subds. 1(g), (h)(iii) (2006), one count of first-degree

criminal sexual conduct with a dangerous weapon, in violation of Minn. Stat. § 609.342,

subd. 1(d), and one count of third-degree criminal sexual conduct, in violation of Minn.

Stat. § 609.344, subd. 1(b) (2006). Dahl retained an attorney to represent him. Before

trial, Dahl twice moved for an in camera review of C.L.’s medical, school, human-services,

and juvenile records. The district court granted the motions seeking in camera review but

later ruled that the records were inadmissible. Dahl also filed a motion in limine in which

he sought 28 rulings concerning evidence that was expected to be offered at trial. The

district court granted relief with respect to most of the requests sought in the motion.

       The case was tried to a jury on three days in January 2010. At the beginning of trial,

Dahl’s trial counsel deferred his opening statement until the defense’s case. The state


                                              2
called five witnesses in its case-in-chief, including R.O. and C.L. R.O. testified that Dahl

had revealed that he was engaging in a sexual relationship with C.L. R.O. testified that he

responded by grabbing Dahl by the neck, pushing him against the wall, and using a knife

to threaten him. C.L. testified that Dahl sexually assaulted her in August 2007 and on more

than ten other occasions between August and November of 2007. Dahl’s trial counsel

cross-examined both R.O. and C.L. and attempted to impeach their credibility. Dahl’s trial

counsel gave an opening statement and then called four witnesses on behalf of Dahl,

including two of Dahl’s relatives and Dahl himself. In Dahl’s testimony, he denied

engaging in any sexual conduct with C.L. The jury found Dahl guilty on all counts.

       In February 2010, Dahl requested a Schwartz hearing to investigate possible juror

misconduct. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104

N.W.2d 301, 303 (1960). The district court conducted a hearing at which it received

testimony and oral arguments but concluded that there was no juror misconduct. Dahl also

moved for a new trial on the grounds that the prosecutor engaged in misconduct and that

the jury’s verdict is not supported by the evidence. See Minn. R. Crim. P. 26.04, subd. 1(1).

The district court denied the motion for a new trial in its entirety.

       In July 2010, the district court sentenced Dahl to 173 months of imprisonment on

count 3. An attorney in the office of the state public defender pursued a direct appeal on

Dahl’s behalf. This court affirmed, and the supreme court denied Dahl’s petition for further

review. See State v. Dahl, 2011 WL 4435325 (Minn. App. Sept. 26, 2011), review denied

(Minn. Dec. 21, 2011).




                                               3
          In March 2014, Dahl petitioned for postconviction relief. His petition, which was

signed by another privately retained attorney, alleged that Dahl had received ineffective

assistance from both his trial counsel and his appellate counsel. At approximately the same

time, Dahl’s trial counsel was appointed to the Seventh Judicial District Court. Dahl

moved to disqualify all Seventh District judges. The chief judge of the Seventh District

granted the motion. A judge of another judicial district was assigned to the postconviction

action.

          In January 2015, the postconviction court conducted a three-day evidentiary hearing

on Dahl’s postconviction claims. Dahl called five witnesses: his trial counsel, his appellate

counsel, two expert criminal-defense attorneys, and one of his sisters. Dahl also testified

on his own behalf.        The state called only one witness: Dahl’s trial counsel.         The

postconviction court denied Dahl’s petition on the merits in a 52-page order. Dahl appeals.

                                       DECISION

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

postconviction relief. On appeal, Dahl challenges the postconviction court’s ruling only

with respect to his representation at trial; he does not challenge the postconviction court’s

ruling with respect to his representation by an assistant state public defender on direct

appeal.

          “In all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI; see also Minn. Const. art.

I, § 6. The right to the assistance of counsel includes the right to the effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To


                                               4
prevail on a claim of ineffective assistance of counsel, a petitioner “must affirmatively

prove [1] that his counsel’s representation ‘fell below an objective standard of

reasonableness’ and [2] ‘that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Gates v.

State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104

S. Ct. at 2064, 2068). In general, “there is a strong presumption that counsel’s performance

fell within a wide range of reasonable assistance.” Bruestle v. State, 719 N.W.2d 698, 705

(Minn. 2006) (quotation omitted). “We give trial counsel wide latitude to determine the

best strategy for the client.” State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). Thus, an

attorney’s “strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S. Ct. at

2066.

        When reviewing a postconviction court’s denial of a postconviction petition

alleging ineffective assistance of counsel, this court applies a clear-error standard of review

to the postconviction court’s factual findings, a de novo standard of review to the

postconviction court’s legal conclusions, and an abuse-of-discretion standard of review to

the postconviction court’s ultimate decision whether to grant relief. Nicks, 831 N.W.2d at

503; Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012); Davis v. State, 784 N.W.2d 387,

390 (Minn. 2010).

        Dahl argues that his trial counsel provided him with ineffective assistance in six

different ways, which we will consider and discuss in the manner and order in which he

presents them in his brief.


                                              5
A.     Alleged Failure to Investigate and Present Dahl’s Defense

       Dahl contends that his trial counsel provided him with ineffective assistance of

counsel by not investigating two potentially favorable witnesses and not developing

evidence that Dahl had erectile dysfunction.

       “[Defense] counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.               In any

ineffectiveness case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. A postconviction

court must “assess the evidence that a proper investigation would have discovered and

determine whether that evidence likely would have changed the outcome of the trial.”

Gates, 398 N.W.2d at 562.

       1.     Favorable Witnesses

       Dahl contends that L.B., who was his neighbor, and D.G., who is his sister, would

have been favorable witnesses at trial but that his trial counsel did not do an adequate

investigation on which to base a decision whether to call them as witnesses. Dahl contends

that L.B. and D.G. would have testified at trial that they observed Dahl and C.L. together

and that C.L. did not appear uncomfortable around Dahl.

       The postconviction court found that Dahl’s trial counsel was unaware of D.G.

because Dahl did not give him sufficient information about her. The postconviction court

found that Dahl’s trial counsel knew of L.B. but did not pursue the possibility of calling

him as a witness because he had a prior criminal-sexual-conduct conviction and was facing


                                               6
additional charges of the same type, which might have undermined his credibility. The

postconviction court also noted that Dahl’s trial counsel’s investigator may have actually

interviewed L.B. The postconviction court concluded that Dahl’s trial counsel did not fail

to make a reasonable investigation with respect to these two persons.

       Dahl challenges the postconviction court’s finding that his trial counsel was

unaware of D.G. Dahl also relies on the opinion of his expert witness in contending that

the lack of further investigation into L.B. and D.G. was objectively unreasonable. This

court must defer to the postconviction court’s findings to the extent that they resolve

disputed questions of fact, especially if the factfinder resolves those factual issues based

on the credibility of witnesses. See Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).

Without knowledge that Dahl’s sister might have possessed helpful information, Dahl’s

trial counsel could not have conducted an investigation into whether to call her as a witness.

Dahl’s trial counsel’s reasons for not pursuing the possibility of calling L.B. as a witness

are objectively reasonable. His decision to not call L.B. as a witness is a matter of trial

strategy, which courts will not second-guess so long as the strategy is reasonable. Ives v.

State, 655 N.W.2d 633, 636 (Minn. 2003). In any event, evidence that C.L. did not appear

uncomfortable around Dahl would have limited probative value. The postconviction

court’s findings are not clearly erroneous with respect to the investigation of L.B. and D.G.

as potential defense witnesses.

       2.     Erectile Dysfunction

       Dahl contends that he suffered from erectile dysfunction at the time of his offense

and that he told his trial counsel about the issue but that trial counsel did not conduct an


                                              7
adequate investigation into the issue and did not present extrinsic evidence on the issue at

trial. Dahl contends that such evidence would have shown that he was incapable of

committing the crime of which he was convicted.

       The postconviction court found that Dahl told his trial counsel that he had erectile

dysfunction, that trial counsel told Dahl to obtain the medical records that would

corroborate his claim, and that Dahl never obtained the medical records.                 The

postconviction court found that it was reasonable for trial counsel to ask Dahl to obtain the

records because Dahl had obtained other records. The postconviction court further found

that Dahl’s trial counsel reasonably doubted the truth of Dahl’s claim and appropriately

refrained from further investigation out of concern that extrinsic evidence might undermine

Dahl’s trial testimony that he had erectile dysfunction. The postconviction court concluded

that Dahl’s trial counsel did not fail to make a reasonable investigation with respect to the

issue of erectile dysfunction and that the absence of such evidence likely did not affect the

verdict.

       Dahl relies on the opinion of his expert witness in contending that the lack of an

investigation into erectile dysfunction was objectively unreasonable.         Dahl has not

established that the postconviction court clearly erred by finding that trial counsel

reasonably relied on Dahl to obtain his own medical records and reasonably refrained from

attempting to develop evidence without medical records. The postconviction court noted

that Dahl did not present any new evidence at the postconviction hearing to prove that he

actually had erectile dysfunction or that medical records existed. The postconviction

court’s findings are not clearly erroneous with respect to the issue of erectile dysfunction.


                                              8
B.     Alleged Failure to Subpoena and Call as Witness Victim’s Father

       Dahl contends that his trial counsel provided him with ineffective assistance of

counsel by not serving a subpoena on C.L.’s adoptive father, C.J.L., for purposes of

investigation and by not calling him as a defense witness at trial.

       “Which witnesses to call at trial and what information to present to the jury are

questions that lie within the proper discretion of the trial counsel. Such trial tactics should

not be reviewed by an appellate court, which, unlike the counsel, has the benefit of

hindsight.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). “Generally, we will not

review ineffective assistance of counsel claims based on trial strategy.” Sanchez-Diaz v.

State, 758 N.W.2d 843, 848 (Minn. 2008) (citing Opsahl v. State, 677 N.W.2d 414, 421

(Minn. 2004)).

       The postconviction court found that Dahl’s trial counsel’s investigator contacted

C.J.L. but that he refused to cooperate. The postconviction court also found that Dahl was

aware of C.J.L.’s refusal to cooperate. The postconviction court further found that trial

counsel reasonably did not pursue the investigation further because calling C.J.L. to the

stand was unlikely to be fruitful. The postconviction court also noted that “subpoenaing a

hostile and unwilling witness for the suggested purposes potentially implicates

considerations of abuse of process and violation of the Rules of Professional Conduct.”

The postconviction court noted that Dahl’s expert witness suggested at the postconviction

hearing that, given the circumstances, it was reasonable for Dahl’s trial counsel to not call

C.J.L. as a witness without knowing whether he would give favorable testimony.




                                              9
       Dahl contends that his trial counsel unreasonably declined to subpoena C.J.L. and

that C.J.L. would have assisted the defense by testifying that C.L. is prone to lying and

stealing. Dahl’s contention fails to address the fact that C.J.L. refused to cooperate with

his trial counsel’s investigator, which caused trial counsel to believe that C.J.L. would not

have testified favorably to the defense. Dahl’s contention also fails to overcome the

postconviction court’s observation that subpoenaing a hostile witness solely for purposes

of investigation might be improper. Dahl’s contention further fails to acknowledge that his

own expert witness suggested that it was reasonable for his trial counsel to not call C.J.L.

as a witness without knowing whether he would give favorable testimony.               A trial

attorney’s reasoned decision about whom to call as witnesses is the type of strategic

decision that cannot be second-guessed in postconviction proceedings. See Ives, 655

N.W.2d at 636. The postconviction court’s findings are not clearly erroneous with respect

to the issue of subpoenaing C.J.L. and calling him as a witness.

C.     Alleged Failure to Effectively Cross-Examine Accusers

       Dahl contends that his trial counsel provided him with ineffective assistance of

counsel by not effectively cross-examining C.L. and R.O.

       “[M]atters of trial strategy, including which witnesses to call, what defenses to raise

at trial, and specifically how to proceed at trial, will not be reviewed later by an appellate

court as long as the trial strategy was reasonable.” Id. Trial strategy includes decisions

about whether and how to introduce impeachment evidence in cross-examination. See

Reed v. State, 793 N.W.2d 725, 736 (Minn. 2010) (considering argument that trial counsel

should have impeached witnesses with certain evidence).


                                             10
       Dahl contends that his trial counsel should have cross-examined C.L. more

extensively by questioning her about her improper use of Dahl’s credit card, threats she

had made against Dahl, and her juvenile-delinquency record. The postconviction court

found that C.L. used Dahl’s credit card to purchase music but that the total amount was

relatively small (approximately $25) and that Dahl had made similar purchases for C.L.,

which the state might have characterized as “grooming.” The postconviction court found

that Dahl’s trial counsel reasonably refrained from cross-examining C.L. about her music

purchases because she likely would have denied it and because the total value of the

purchases was insignificant. The postconviction court also found that Dahl had told his

trial counsel that C.L. had said to Dahl, “I can get you in big trouble, buddy-boy.” But the

postconviction court found that Dahl’s trial counsel reasonably refrained from questioning

C.L. about the statement because it could be understood in a way that would further

incriminate Dahl. The postconviction court also found that C.L. had no record of juvenile

delinquency adjudications or criminal convictions and that the trial court likely would not

have admitted evidence that C.L. had driven her mother’s vehicle without permission.

After examining the record, we conclude that the postconviction court did not clearly err

in its findings of fact that Dahl’s trial counsel made reasonable strategy decisions when

cross-examining C.L. and that the more extensive cross-examination suggested by Dahl

likely would not have affected the verdict.

       Dahl also contends that his trial counsel should have cross-examined R.O. more

extensively by questioning him about his plea agreement in a related case, the fact that he

was on probation, his involvement in a hit-and-run accident while on probation, and


                                              11
whether he was engaged in a sexual relationship with C.L. The postconviction court found

that Dahl’s trial counsel reasonably did not cross-examine R.O. about his plea to second-

degree assault for fighting with Dahl because the prosecutor already had questioned R.O.

about the subject on direct examination, and the postconviction court found that further

cross-examination would not have affected the verdict. The postconviction court found

that Dahl’s trial counsel reasonably did not cross-examine R.O. about being on probation

for DWI because it was relatively insignificant and would not have affected the verdict.

The postconviction court found that Dahl’s trial counsel reasonably did not cross-examine

R.O. about the alleged hit-and-run for similar reasons. And the postconviction court found

that Dahl’s trial counsel reasonably did not cross-examine R.O. as to whether he and C.L.

had a sexual relationship because the prosecutor already had asked the question on

direction examination and R.O. had denied it and because Dahl’s trial counsel had planned

to address the issue only briefly during the state’s case and to introduce the counter-

accusation more extensively in Dahl’s testimony. The postconviction court found that all

of these decisions were reasonable decisions of trial strategy. After examining the record,

we conclude that the postconviction court did not clearly err in its finding of fact that Dahl’s

trial counsel made reasonable strategy decisions when cross-examining R.O.

D.     Alleged Failure to Present Evidence Favorable to Dahl

       Dahl contends that his trial counsel provided him with ineffective assistance of

counsel by not presenting evidence that would have portrayed him in a positive or

sympathetic light, such as evidence that he was injured in an automobile accident in 2006

and that he paid some of C.L.’s living expenses.


                                              12
       The postconviction court found that Dahl’s trial counsel elicited evidence about

Dahl’s occupation and family, a brief mention of Dahl’s automobile accident, and the fact

that Dahl paid the bills incurred by the persons living in his house. The postconviction

court also found that Dahl’s trial counsel did not fail to introduce favorable evidence of the

type that might “humanize” Dahl. The postconviction court noted that Dahl’s trial counsel

called J.D., one of Dahl’s sisters, to “describe [Dahl’s] personality and generous nature”

and that trial counsel elicited testimony that Dahl made purchases for R.O. because he is a

“nice guy.” The postconviction court also noted that Dahl’s claims go to matters of trial

strategy. Dahl’s appellate brief does not challenge the postconviction court’s findings and

does not identify any other evidence of this type that Dahl’s trial counsel failed to introduce.

We agree that the issues raised by Dahl are classic matters of trial strategy. See State v.

Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Thus, the postconviction court did not

clearly err in its finding that Dahl’s trial counsel was not deficient in his presentation of

evidence favorable to Dahl.

E.     Alleged Failure to Seek Remedy for Juror Misconduct

       Dahl contends that his trial counsel provided him with ineffective assistance of

counsel by not promptly notifying the district court of potential juror misconduct during

the trial. Dahl contends that he and two of his sisters overheard a group of jurors talking

about his case at a restaurant on the second day of trial, that they told trial counsel about it,

and that trial counsel took no action at that time.

       A defendant may pursue a motion for a mistrial based on juror misconduct by

requesting a Schwartz hearing. See Schwartz, 258 Minn. at 328, 104 N.W.2d at 303. To


                                               13
establish juror misconduct, a party must make a prima facie showing of juror misconduct.

State v. Pederson, 614 N.W.2d 724, 730 (Minn. 2000). To make a prima facie showing,

“a defendant must submit sufficient evidence which, standing alone and unchallenged,

would warrant the conclusion of jury misconduct.” Id. (quoting State v. Larson, 281

N.W.2d 481, 484 (Minn. 1979)).

       The postconviction court found that Dahl and two sisters, J.D. and C.J., returned

from lunch on the second day of trial and told Dahl’s trial counsel that they saw jurors at

the restaurant where they ate. The postconviction court found that Dahl and his sisters

informed Dahl’s trial counsel of the incident, that trial counsel explained to Dahl the

opportunity to request a Schwartz hearing, that Dahl said that he had not heard the

substance of the jurors’ conversations, and that Dahl said that he did not want a different

jury. The postconviction court also found that, after the guilty verdict, Dahl told his trial

counsel that one of his sisters had heard the jurors talking about him and the allegation that

he had possessed a gun. The postconviction court further found that trial counsel then

telephoned Dahl’s sisters, who informed trial counsel that they had not heard anything in

particular. The postconviction court further found trial counsel nonetheless requested a

Schwartz hearing, at which Dahl testified that his sisters did not hear the jurors’

conversation. The postconviction court rejected Dahl’s postconviction claim that, contrary

to his earlier testimony, one of his sisters did hear the jurors’ conversation.          The

postconviction court expressly determined that trial counsel was more credible, in part

because Dahl admitted during trial that he has a poor memory.              Accordingly, the

postconviction court found that trial counsel properly did not file a Schwartz motion on the


                                             14
second day of trial because he could not have established a prima facie case of juror

misconduct.

       On appeal, Dahl contends that his trial counsel unreasonably failed to move for a

Schwartz hearing on the second day of trial. His argument is based on the evidence that he

introduced at the postconviction hearing. But the postconviction court specifically found

Dahl’s testimony to be less credible than trial counsel’s testimony. Given the information

available to trial counsel on the second day of trial, as found by the postconviction court,

there is no clear error in the postconviction court’s finding that trial counsel reasonably

refrained from moving for a Schwartz hearing on the second day of trial.

F.     Alleged Failure to Zealously Represent Dahl

       Dahl contends that his trial counsel provided him with ineffective assistance of

counsel by not zealously representing him at trial. Specifically, Dahl contends that his trial

counsel’s performance was deficient because he reserved his opening statement until after

the state rested its case and then made an opening statement that was too brief, because he

made a poor closing argument, because he did not adequately prepare Dahl for his trial

testimony, and because he generally did not present a theory of the case.

       The postconviction court found that Dahl’s trial counsel initially reserved his

opening statement and, after the state rested, made an opening statement consisting of four

sentences. The postconviction court found that trial counsel’s strategy with respect to his

opening statement was reasonable in light of uncertainty about what evidence the state

would introduce and uncertainty as to whether Dahl would testify and, if so, the extent of

his testimony.


                                             15
       The postconviction court found that trial counsel’s strategy with respect to his

closing argument was reasonable in that he attacked the state’s evidence of the firearm and

attempted to show that doubts about the firearm raised doubts about the entire case. The

postconviction court also found that trial counsel made a reasonable effort to attack the

credibility of both C.L. and R.O. The postconviction court further found that trial counsel

argued that Dahl got into trouble because of a “big heart” and that he was physically

incapable of the alleged conduct. Dahl’s contentions on appeal do not undermine the

postconviction court’s finding that his trial counsel’s strategy decisions with respect to his

closing argument were reasonable. See Sanderson v. State, 601 N.W.2d 219, 226 (Minn.

App. 1999) (stating that counsel’s strategic decisions concerning opening statement and

closing argument “should not be second-guessed”), review granted (Minn. Jan. 18, 2000)

and review denied (Minn. Mar. 28, 2000).

       The postconviction court found that Dahl’s trial counsel and Dahl met in person at

least 15 times and spoke by telephone at least 30 times before trial. The postconviction

court found that trial counsel began preparing Dahl for trial approximately eight months

before trial, to the point that Dahl wrote a letter to his trial counsel complaining about a

practice session. The postconviction court also found that trial counsel met with Dahl at

trial counsel’s office at 6:30 a.m. on the third day of trial, the day of Dahl’s testimony. The

record corroborates these findings of historical fact, which support the postconviction

court’s finding that trial counsel did not fail to prepare Dahl for trial.

       The postconviction court found that Dahl’s trial counsel’s overall presentation of a

theory of the defense was reasonable in light of the circumstances. The postconviction


                                               16
court recited trial counsel’s testimony that he was planning on introducing the defense

theory primarily through Dahl’s testimony but that when he met with Dahl in the early

morning of the third day of trial, he observed that Dahl was not as “loquacious, confident,

and articulate” as he had been in the past but, rather, “was a completely different person”

in that he was a “‘bundle’ (of nerves)” and no longer wanted to testify. The postconviction

court noted that Dahl eventually decided to testify but that trial counsel wanted to avoid

problems by limiting his testimony as much as possible. Dahl contradicted his trial

counsel’s testimony at the postconviction hearing by testifying that his trial counsel was

not fully engaged on that particular day. But the postconviction court ultimately found that

trial counsel was unable to fully present the defense theory that had been prepared because

of Dahl’s state of mind and that “it was reasonable [for trial counsel] to limit [Dahl’s] time

on the witness stand.” Again, this court must defer to the postconviction court’s findings

to the extent that they resolve disputed questions of fact, especially if the factfinder resolves

those factual issues based on the credibility of witnesses. See Miles, 840 N.W.2d at 201.

Dahl’s contention that his trial counsel failed to present a reasonable theory of the defense

does not overcome our standard of review. In any event, because the Sixth Amendment is

not concerned with the selection of one among several reasonable strategies, Dahl cannot

establish that his trial counsel rendered ineffective assistance by not developing and

presenting a theory of the defense. See Voorhees, 596 N.W.2d at 255 (stating that strategic

decisions concerning theory of the case are entitled to great deference).




                                               17
       In sum, the postconviction court did not err by denying Dahl’s petition for

postconviction relief.

       Affirmed.




                                        18
