                         This opinion will be unpublished and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
                                    A14-0841

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                   Isaiah Triell Hall,
                                       Appellant.

                               Filed November 16, 2015
                                      Affirmed
                                   Rodenberg, Judge

                            Hennepin County District Court
                               File No. 27-CR-13-3230

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      In this combined direct appeal from a conviction of controlled-substance crime

(third degree – sale) and appeal from a denial of postconviction relief, appellant Isaiah
Triell Hall (1) challenges the sufficiency of the evidence; (2) argues that the district court

erred in allowing the state to impeach him using prior convictions; (3) claims his trial

counsel was ineffective both for failing to challenge suggestive identification procedures

and for failing to advocate properly at sentencing; and, (4) argues that the postconviction

court erred in denying his request for an evidentiary hearing. We affirm.

                                          FACTS

       On November 28, 2012, Minneapolis police officers conducted an undercover

narcotics purchase as part of a long-term investigation into narcotics trafficking in and

around Champions Bar. Five officers worked on this buy: Sergeant Sara Metcalf, and

Officers Heather Young (formerly Jorges), Karina Landmesser, Mack Dominguez, and

Christopher Kelley.    Officers Young and Landmesser were the undercover officers.

Sergeant Metcalf and Officer Dominguez were in unmarked squad cars observing the

undercover officers from the street outside the bar. Officer Kelley was in a marked squad

car and was assigned to pull over cars as directed by the other officers.

       At trial, Officer Young stated that she encountered appellant inside Champions

Bar, where he agreed to sell her crack cocaine. Appellant and Officer Young discussed

completing the sale outside. As appellant led Officer Young outside, she electronically

communicated appellant’s description to the other team members, describing him as “a

black male approximately six three, a heavier build, wearing a red and black striped

jacket, a red knit cap with dreadlocks sticking out from underneath.” Appellant then sold

her a substance later identified by the Minnesota Bureau of Criminal Apprehension as 0.1

grams of crack cocaine, and received pre-recorded buy money in exchange for it.


                                              2
       Sergeant Metcalf was able to see Officer Young and appellant in the parking lot

from her unmarked squad car about 150 feet away. Sergeant Metcalf observed the hand-

to-hand transaction, and watched appellant get into a car afterward. She communicated

the license plate number to other police officers so a traffic stop could be initiated.

Officer Kelley, in his marked squad, stopped the car after it ran a red light. Officer

Kelley had appellant get out of the car and stand on the curb. Sergeant Metcalf then

drove by and identified appellant as the person she had observed conducting the hand-to-

hand transaction with Officer Young. Officer Dominguez picked up Officers Young and

Landmesser to drive them past the traffic stop location. Officer Young also positively

identified appellant.

       The officers did not arrest appellant that night because they hoped to preserve their

long-term investigation into drug-dealing in and around Champions. As a result, the

police never collected the pre-recorded buy money that was used to purchase the drugs

from appellant. Although Officer Young wore a recording device, no conversation was

audible because of the poor quality of the recording.

       A jury convicted appellant of controlled substance crime in the third degree.

Sergeant Metcalf, Officers Young, Landmesser, and Dominguez, as well as Rebecca

Willis from the Bureau of Criminal Apprehension testified for the state. Appellant

waived his right to testify and called no witnesses.

       The district court sentenced appellant to 44 months in prison, which was the

“bottom of the box” under the Minnesota Sentencing Guidelines.             Appellant’s trial

counsel argued for a dispositional departure, urging the district court to place appellant on


                                             3
probation.   The district court noted that appellant’s conviction carried a mandatory

minimum sentence, which precluded a probationary sentence.              Appellant directly

appealed from his conviction and sentence.

       Appellant also filed a petition for postconviction relief with the district court,

arguing that his trial counsel was ineffective because trial counsel failed to challenge the

suggestive identification procedure and argued for a dispositional, rather that durational

departure.   The postconviction court denied appellant’s petition for relief without a

hearing. Appellant also appealed the denial of his petition for postconviction relief.

                                     DECISION

I.     Sufficiency of the evidence

       Appellant argues that the evidence was insufficient to prove him guilty of third-

degree sale of a controlled substance. On review of a sufficiency-of-the-evidence claim,

we thoroughly review the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, is sufficient to permit the jurors to reach a guilty

verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume that the jury

believed evidence that supports the verdict and disbelieved conflicting evidence. State v.

Moore, 438 N.W.2d 101, 108 (Minn. 1989).

       Minn. Stat. § 152.023, subd. 1(1) (2012), provides that “[a] person is guilty of

controlled substance crime in the third degree if . . . the person unlawfully sells one or

more mixtures containing a narcotic drug.” Minn. Stat. § 152.01, subds. 3a and 10

(2012), define cocaine as a narcotic drug. In order to prove the crime, the state must

prove that appellant sold the narcotic drug that tested positive for of cocaine. Minn. Stat.


                                             4
§ 152.023, subd. 1(1). Appellant argues that the state’s evidence failed to prove beyond a

reasonable doubt that he was the person who made the sale to Officer Young. He does

not dispute that someone sold crack cocaine to Officer Young. The only issue in dispute

at trial was identity.

       At trial, Sergeant Metcalf, Officers Young, Landmesser, and Dominguez, and

Rebecca Willis from the Bureau of Criminal Apprehension testified for the state. Officer

Young testified that (1) she was with appellant for a substantial period of time in close

proximity; (2) appellant sold her the crack cocaine; (3) she accurately described appellant

over the radio during the undercover operation; and (4) she identified him as the seller

both during the show-up on the night of the sale and in-court. Sergeant Metcalf testified

that she observed the hand-to-hand transaction between appellant and Officer Young, and

that she identified appellant as the seller during the show-up.       Officer Landmesser

testified that she observed the events at the bar, corroborated Officer Young’s version of

events, and also identified appellant as the man who sold cocaine to Officer Young.

Officer Dominguez testified that Officer Young identified appellant during the show-up

identification. This testimony, which the jury necessarily believed, amply supports the

jury’s conclusion that appellant was the person who made the sale.

       Appellant also argues that the absence of other corroborating evidence makes the

state’s case insufficient to prove guilt beyond a reasonable doubt. He points out that the

state produced no audible recording of the drug buy. But Sergeant Metcalf and Officer

Young testified that recording devices used in undercover operations occasionally

produce poor recordings. Appellant also argues that the police never recovered any of


                                            5
the pre-recorded buy money. But Sergeant Metcalf explained that the team did not arrest

or search appellant that night because doing so would have revealed the long-term

narcotics investigation.

       Appellant also argues that the police never recovered any fingerprints or DNA and

failed to conduct a photographic or in-person line-up to identify appellant. But appellant

cites no authority for the proposition that DNA or fingerprint evidence is necessary where

the state proves identity by eyewitness testimony.

       The evidence identifying appellant as the seller amply supports the jury’s verdict.

II.    Admission of prior conviction as impeachment evidence

       Appellant next argues that we should reverse and remand for a new trial because

the district court failed to make a ruling concerning whether the state could impeach

appellant with a prior conviction if he chose to testify, and that this, in turn, chilled his

right to testify in his own defense.

       Generally, we review evidentiary rulings for abuse of discretion. State v. Amos,

658 N.W.2d 201, 203 (Minn. 2003). But when trial counsel fails to “seek clarification”

on a matter on which the district court has “reserved its ruling,” we review only for plain

error. State v. Word, 755 N.W.2d 776, 783 (Minn. App. 2008) (citing Minn. R. Evid.

103(a), Fed. R. Evid. 103 2000 advisory comm. note, and federal decisions to support

requiring counsel to renew objections when a district court reserves its ruling). Plain

error requires that the appellant show “(1) error; (2) that was plain; and (3) that affected

substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).




                                             6
       In response to the state’s motion to impeach appellant with prior felony

convictions for soliciting a juvenile and violating orders for protection, the district court

stated, “The motion to impeach the defendant using his prior convictions of solicitation of

a juvenile—and I believe the others were felony violation of orders for protection[.] . . .

That I will reserve at this time. I need to look more into that.” Then, immediately before

opening statements, the district court followed-up concerning the issue, stating, “I know

that I reserved the ruling, the defendant’s prior convictions, and I have not made that

ruling as of yet, so I will prefer to have that not be mentioned in opening.” Appellant’s

trial counsel responded, “Oh, sure.”       The record does not reflect that counsel ever

followed-up on the motion or that the district court ever made a final ruling on the issue.

When appellant waived his right to testify in his own defense, reference was made to the

possibility of his being impeached:

              DEFENSE COUNSEL:            And you also understand that if
              you do choose to testify, as we have discussed, the State of
              Minnesota could seek to impeach you, make you look like
              you are something less than dishonest because they may bring
              up the fact that you have been involved with law enforcement
              before? Do you understand that?
              APPELLANT:                  Yes.

But no ruling on the issue was ever made by the district court, and there was no further

definition of the state’s right to “seek to impeach” appellant if he testified.

       In Word, we held that “evidentiary objections should be renewed at trial when an

in limine or other evidentiary ruling is not definitive but rather provisional or unclear.”

755 N.W.2d at 783. “[A]ttorneys have an obligation to seek clarification regarding

whether an in limine ruling is definitive when there is doubt on that point.”             Id.


                                               7
Appellant should have obtained a “definitive ruling” from the district court. But he never

did. Instead, appellant waived his right to testify on his behalf. Because the district court

never made a final ruling on the state’s motion to impeach and appellant never opened

himself to impeachment by testifying, the district court did not err, much less plainly err,

concerning whether appellant could be impeached by his prior convictions.

III. Ineffective assistance of counsel

       Appellant challenges the postconviction court’s denial of relief, arguing that his

trial counsel was ineffective by failing to (1) challenge the show-up identification and

(2) argue for a durational departure at sentencing. “When a defendant initially files a

direct appeal and then moves for a stay to pursue postconviction relief, we review the

postconviction court’s decisions using the same standard that we apply on direct appeal.”

State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012).

       To prevail on a claim of ineffective assistance of counsel, an appellant must show

“(1) that 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 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 objective standard of

reasonableness is defined as representation by an attorney exercising the customary skills

and diligence that a reasonably competent attorney would perform under similar

circumstances.” State v. Vang, 847 N.W.2d 248, 266-67 (Minn. 2014) (internal quotes

omitted) (noting that “counsel’s performance is presumed to be reasonable”).               A


                                             8
reviewing court need not address both elements of the Strickland test if one is dispositive.

Hawes v. State, 826 N.W.2d 775, 783 (Minn. 2013).

          A.     Failure to challenge the show-up identification

          Appellant first argues that his trial counsel was ineffective for failing to challenge

a suggestive pretrial identification procedure. Appellant’s principal trial tactic was to

argue that this was a case of mistaken identity and that he was not the crack-cocaine

seller.

                 1.     First Strickland element – objective standard of reasonableness

          Under the first Strickland element, generally an appellate court “will not review

ineffective assistance of counsel claims based on trial strategy . . . includ[ing] the

selection of evidence presented to the jury.” Sanchez-Diaz v. State, 758 N.W.2d 843, 848

(Minn. 2008). “[T]here are valid strategic reasons for counsel’s failure to object to . . .

identification evidence.” State v. Heinkel, 322 N.W.2d 322, 326 (Minn. 1982).

          Here, counsel’s trial strategy was to argue that the police mistakenly identified

appellant as the seller. Appellant was identified as the seller by in-court police testimony.

Counsel cross-examined the officers concerning the reliability of the show-up

identification procedure, arguing that the show-up identification rendered the in-court

identification untrustworthy. Trial counsel also used the officers’ narratives, including

the show-up identification and the decision not to arrest appellant that night, to call into

question the state’s motive in pursuing the case. Counsel vigorously maintained that the

principal objective of the undercover operation was to close down Champions Bar rather

than to precisely identify this particular crack-cocaine seller.          Although ultimately


                                                9
unsuccessful, trial counsel’s decision not to challenge the show-up identification was part

of his trial strategy.   We conclude that it did not fall below Strickland’s objective

standard of reasonableness.

              2.     Second Strickland element – prejudice

       Appellant’s argument also fails under the second Strickland element, as appellant

has not demonstrated prejudice. He does not argue on appeal that a successful challenge

to the show-up identification would have resulted in exclusion of Officer Young’s in-

court identification of appellant. The district court admitted the in-court identification

testimony over appellant’s objection, but, on appeal, appellant fails to advance any

argument that the in-court identification should have been excluded because of the earlier

show-up evidence. We assume the jury believed all of the state’s evidence. Moore, 438

N.W.2d at 108.     Under these circumstances, Officer Young’s in-court identification

sufficed to support the jury’s guilty verdict. Therefore, even if the district court had

suppressed the show-up identification testimony, the trial result would doubtless have

been the same.

       B.     Failure to argue for a durational departure

       Appellant also argues that trial counsel was ineffective for failing to argue for a

durational departure from the sentencing guidelines. Appellant’s trial counsel instead

argued for a dispositional departure, urging the district court to place appellant on

probation rather than sending him to prison.




                                            10
             1.     First Strickland element – objective standard of reasonableness

      “The Minnesota Sentencing Guidelines promote uniformity, proportionality, and

predictability in sentencing.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). A

guidelines sentence is presumed to be appropriate, and the district court must impose it

absent “identifiable, substantial, and compelling circumstances” that support a different

sentence.    Minn. Sent. Guidelines 2.D.1 (2014).           Substantial and compelling

circumstances to support a durational departure include whether the offense of conviction

was significantly more or less serious than the typical conduct for that crime. State v.

Peter, 825 N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn. Feb. 27, 2013).

“[O]ffender-related factors do not support durational departures.” Id.

      Minn. Stat. § 152.023, subd. 1(1), provides that “[a] person is guilty of controlled

substance crime in the third degree if . . . the person unlawfully sells one or more

mixtures containing a narcotic drug.” Minn. Stat. § 152.01, subds. 3a and 10, define

cocaine as a narcotic drug. When the “[l]egislature’s intent is clear from the statute’s

plain and unambiguous language,” as it is here, “we interpret the statute according to its

plain meaning.” Meeker v. IDS Prop. Cas. Ins. Co., 862 N.W.2d 43, 46 (Minn. 2015).

      Here, appellant sold a $20 rock of crack cocaine. His conduct falls squarely

within the plain and unambiguous language of the controlled substance crime third

degree – sale statute.    The pre-sentence investigation report did not identify any

mitigating circumstances and recommended sentencing appellant to 51 months under the

guidelines. And this was a sale of crack cocaine to a complete stranger, not a favor

between friends or anything of the sort. The sale took place in a bar parking lot. There


                                            11
was nothing remotely compelling about the circumstances that would have justified a

downward durational departure. Appellant has not demonstrated that trial counsel’s

decision to refrain from advancing an unsupported argument for a dispositional departure

amounts to objectively unreasonable representation.

               2.    Second Strickland element – prejudice

       Appellant also fails to demonstrate that his trial counsel’s decision regarding

sentencing arguments prejudiced him.         As discussed, there were no substantial or

compelling circumstances here to support a durational departure.              Although trial

counsel’s decision to point out offender-related factors in support of an argument for a

dispositional departure was ultimately unsuccessful because of appellant’s mandatory

minimum sentence, appellant was sentenced at the “bottom of the box.” See State v.

Turck, 728 N.W.2d 544, 548 (Minn. App. 2007) (holding that “mandatory sentences for

repeat controlled-substance offenders . . . must prevail over the provision for departures

generally”).   This appears to us to have been the most favorable sentence legally

available to appellant under the facts of this case. The district court noted that appellant’s

conviction carried a mandatory minimum sentence, which precluded the court from

sentencing appellant to probation. The district court then took into consideration the

presumptive guideline sentence of 51 months, with a sentencing range of 44 months to 61

months. But instead of sentencing appellant to the presumptive 51 months, the district

court sentenced appellant to 44 months in prison. Absent counsel’s choice to argue

offender-related factors, the district court may have imposed the presumptive sentence,




                                             12
rather than one at the “bottom of the box.” Counsel’s strategic choice may well have

shaved seven months off appellant’s sentence.

       Appellant fails to show on appeal that trial counsel’s performance fell below an

objective standard of reasonableness or that he was prejudiced.

IV.    Postconviction evidentiary hearing

       Appellant argues that the postconviction court erred by summarily denying his

request for relief without an evidentiary hearing. We review a summary denial of a

postconviction petition for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503

(Minn. 2013). A district court must hold a hearing on a postconviction petition “[u]nless

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 v. State, 695 N.W.2d 371, 374

(Minn. 2005). Doubts about whether an evidentiary hearing is necessary should be

resolved in favor of the petitioner. Nicks, 831 N.W.2d at 504.

       The very experienced trial judge in this case concluded that there were no disputed

material facts to be resolved by an evidentiary hearing and that the record conclusively

showed that appellant is not entitled to postconviction relief. We agree. Appellant

sought an evidentiary hearing for the purpose of determining his trial counsel’s reasons

for (1) failing to challenge the show-up identification and (2) arguing in favor of a

dispositional, rather than durational departure. But there are no material and disputed

fact issues. As discussed, even if the evidentiary hearing had somehow demonstrated that


                                            13
trial counsel’s representation fell below an objective standard of reasonableness,

appellant would be unable to prove that the result of the proceeding would have been

different. The existing record is sufficient to demonstrate that appellant’s ineffective-

assistance claims fail the second element of the Strickland test. In short, the “record[] of

the proceeding conclusively show[s] that the petitioner is entitled to no relief.” Minn.

Stat. § 590.04, subd. 1.

       Affirmed.




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