                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0144

                            Steven David Pawliszko, petitioner,
                                       Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                 Filed October 14, 2014
                                        Affirmed
                                     Chutich, Judge

                              Chisago County District Court
                                File No. 13-CR-07-1738

Steven David Pawliszko, Moose Lake, Minnesota (pro se appellant)

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

Janet Reiter, Chisago County Attorney, Beth A. Beaman, Assistant County Attorney,
Center City, Minnesota (for respondent)


         Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Steven Pawliszko appeals the district court’s denial of his notice of

removal in postconviction proceedings, denial of his motion to correct his sentence under
Minnesota Rule of Criminal Procedure 27.03, and summary denial of his petition for

postconviction relief. Because the district court properly acted within its discretion, we

affirm.

                                           FACTS

          The facts and procedural history underlying Pawliszko’s second appeal to this

court are as follows. In July 2007, Pawliszko repeatedly stabbed an ex-girlfriend in her

home. He was charged with one count of attempted first-degree murder, one count of

attempted second-degree murder, one count of first-degree burglary, and one count of

second-degree assault. Pawliszko was offered a plea agreement but decided to go to trial.

A jury convicted him of all counts. The district court then sentenced Pawliszko to 240

months in prison for the attempted first-degree murder conviction.

          Pawliszko appealed his conviction to this court, arguing through counsel that the

district court abused its discretion in failing to give a self-defense instruction, and that it

committed plain error in its jury instructions. State v. Pawliszko, A08-1399, 2009 WL

3255269, at *1–3 (Minn. App. Oct. 13, 2009). In a pro se supplemental brief, Pawliszko

raised claims of witness credibility, prosecutorial misconduct, ineffective assistance of

counsel, and sufficiency of the evidence. Id. at *4–6. We affirmed his convictions. Id.

at *7.

          In December 2012, the Chief Judge of the Tenth Judicial District issued a general

assignment order regarding postconviction proceedings. This order ended the practice of

having the court administrator forward to the Chief Judge all postconviction petitions for




                                              2
assignment.     Instead, the order directed the court administrator to assign all

postconviction petitions to the sentencing judges of the underlying criminal cases.

       In October 2013, Pawliszko filed a motion to correct his sentence under Minnesota

Rule of Criminal Procedure 27.03, subdivision 9, and a petition for postconviction relief.

Two days after these filings, Pawliszko filed a notice to remove the district court judge

under Minnesota Statutes section 542.13 (2012). The district court denied this motion the

same day that it was filed.

       In November 2013, the district court denied Pawliszko relief. It determined that

the sentence was lawful because it was based on Pawliszko’s conduct and was within the

sentencing guidelines. The district court found the postconviction petition untimely

because it was filed more than three years after the Minnesota Supreme Court denied

further appellate review. The district court also concluded that even if the petition was

timely, no relief was warranted: all the claims for postconviction relief were either raised

on direct appeal or known at that time and thus barred by State v. Knaffla, 309 Minn. 246,

243 N.W.2d 737 (1976). This appeal followed.

                                      DECISION

      I.      Assignment of the Motion and Petition and the Notice of Removal

       Pawliszko first contends that he was denied due process of law because the court

administrator did not file his petition with the Chief Judge of the Tenth District for

assignment. He claims that had proper procedure been followed, he would have been

entitled to remove the district court judge.




                                               3
       This argument is without merit. The court administrator did not “fail” to present

the petition to the Chief Judge. Instead, the administrator assigned the petition to the

sentencing judge according to the general assignment order issued by the Chief Judge.

Thus, the petition was properly assigned.

       Pawliszko next argues that had the postconviction petition been assigned in the

traditional manner, he could have removed the judge under Minnesota Rule of Criminal

Procedure 26.04, subdivision 14(4)(a).1 He argues that had the assignment been made, he

would have filed a notice to remove within the seven days required by the rule.

       When a notice to remove has been denied, the appropriate remedy is to seek a writ

of prohibition; appellate review is inappropriate. State v. Grigsby, 806 N.W.2d 101,

107–08 (Minn. App. 2011), aff’d, 818 N.W.2d 511 (Minn. 2012); see also Hooper v.

State, 838 N.W.2d 775, 789 n.4 (Minn. 2013) (noting that failure to seek a writ of

prohibition waives an issue involving peremptory removal in a postconviction context).

A writ of prohibition prevents a judge from proceeding in a matter from which she is

disqualified and avoids the possibility of wasting resources adjudicating the issue. State

v. Dahlin, 753 N.W.2d 300, 303 (Minn. 2008) (quotation omitted). Because Pawliszko

did not seek relief in the appropriate manner, his claim fails.



1
    Pawliszko’s notice sought to remove the district court based on Minnesota Statutes
section 542.13. Section 542.13 states that a judge may not sit in any cause if interested in
its determination or biased. The district court denied the removal based on Hooper v.
State, 680 N.W.2d 89 (Minn. 2004). Hooper involves removal of a district court based
on Minnesota Rule of Criminal Procedure 26.03. Id. at 92. Because both parties argue
removal based on this rule, this issue is analyzed from that perspective and not under
section 542.13.

                                              4
       In addition, even if we were to consider the merits of his claim, Minnesota law

states that “once the parties have already appeared before the judge, there is no automatic

removal as of right in a postconviction proceeding.” Hooper, 680 N.W.2d at 92. Here,

the district court judge who reviewed Pawliszko’s postconviction petition was the same

district court judge who presided over both Pawliszko’s jury trial and his sentencing

hearing. Therefore, Pawliszko did not have an automatic right of removal. See id.

                  II.    Pawliszko’s Motion to Correct His Sentence

       Minnesota Rule of Criminal Procedure 27.03, subdivision 9, permits a court to

correct at any time a sentence not authorized by law. Although the text of the rule does

not expressly authorize it, we have recognized that a party may also invoke this rule by

motion. Washington v. State, 845 N.W.2d 205, 210 (Minn. App. 2014). “On appeal from

the district court’s denial of a rule 27.03 motion, this court will not reevaluate a sentence

if the [district] court’s discretion has been properly exercised and the sentence is

authorized by law.”     Anderson v. State, 794 N.W.2d 137, 139 (Minn. App. 2011)

(alteration in original) (quotation omitted), review denied (Minn. Apr. 27, 2011).

       Pawliszko argues that his sentence was not authorized by law because it was

punishment for rejecting a plea agreement.2 He bases this argument on the district

court’s statement at sentencing that he should have taken the plea deal.


2
   Pawliszko also argues that his sentence was excessive and unwarranted by the facts of
his case. Pawliszko bases this argument on his claims that no evidence of his guilt was
presented at trial and that the prosecution suppressed some evidence and offered perjured
testimony at trial. Although Minnesota Rule of Criminal Procedure 27.03, subdivision 9,
permits a court to correct a sentence not authorized by law, “the plain language of the
rule does not allow a defendant to challenge his conviction.” Johnson v. State, 801

                                             5
       A defendant’s decision to exercise his right to trial must have no bearing on the

sentence imposed. State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976).

Instead, a defendant must be sentenced solely on the facts of his case and his personal

history, and these considerations must be affirmatively shown on the record. Id.

       Here, the district court specifically stated that it was not punishing Pawliszko for

going to trial. The district court explained that the reason for the sentence was that

Pawliszko stabbed the victim six times and yet still blamed her for his act. The district

court added that Pawliszko was “one of the most dangerous people [it had] ever seen in

[its] courtroom.” The district court reiterated this finding in its order denying the motion

to correct the sentence.

       We further note that the sentence Pawliszko received was specifically authorized

by law. Pawliszko was sentenced to 240 months in prison for attempted first-degree

murder. This sentence was authorized by statute, see Minn. Stat. §§ 609.17, subd. 4;

.185(a) (2006), and within the presumptive range of the sentencing guidelines, see Minn.

Sent. Guidelines II.G. (2006 and Supp. 2007).          Because Pawliszko’s sentence was

authorized by law, the district court did not abuse its discretion in denying this motion.

                           III.   Pawliszko’s Postconviction Claims

       Pawliszko argues that he was entitled to postconviction relief because of newly

discovered evidence, including ineffective assistance of trial and appellate counsel,


N.W.2d 173, 176 (Minn. 2011). The district court analyzed this claim with Pawliszko’s
other arguments for postconviction relief, and we do the same here. See Orozco v. State,
841 N.W.2d 632, 637 (Minn. App. 2014), review granted and stayed (Minn. Mar. 18,
2014).

                                              6
prosecutorial misconduct, sufficiency of the evidence, erroneous jury instructions, and

bias by the district court. The district court summarily denied the petition as untimely

without any exception to the time bar, barred by the Knaffla rule, and frivolous and

without merit.

       Minnesota law permits a person convicted of a crime to file a petition in district

court to vacate the judgment, resentence the petitioner, or grant a new trial. Minn. Stat.

§ 590.01, subd. 1 (2012).        This relief is available if the petitioner claims that the

conviction or sentence violated his or her rights under the laws or Constitution of the

United States or the state. Id., subd. 1(1). In general, a petition for postconviction relief

may not be filed more than two years after the entry of judgment or an appellate court’s

disposition of the petitioner’s direct appeal. Id., subd. 4(a). This two-year time bar does

not apply if:

                        (1) the petitioner establishes that a physical disability
                or mental disease precluded a timely assertion of the claim;
                        (2) the petitioner alleges the existence of newly
                discovered evidence, including scientific evidence, that could
                not have been ascertained by the exercise of due diligence by
                the petitioner or petitioner’s attorney within the two-year time
                period for filing a postconviction petition, and the evidence is
                not cumulative to evidence presented at trial, is not for
                impeachment purposes, and establishes by a clear and
                convincing standard that the petitioner is innocent of the
                offense or offenses for which the petitioner was convicted;
                        ***
                        (5) the petitioner establishes to the satisfaction of the
                court that the petition is not frivolous and is in the interests of
                justice.

Id., subd. 4(b). A summary denial of a postconviction petition is reviewed for abuse of

discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).


                                                7
       A.        Time Bar

       We issued our decision in Pawliszko’s direct appeal on October 13, 2009. See

Pawliszko, 2009 WL 3255269, at *1. The Minnesota Supreme Court denied review on

December 23, 2009. Pawliszko filed his petition for postconviction relief on October 7,

2013—almost four years after the final disposition of his direct appeal. The district court

determined that Pawliszko’s petition was therefore untimely under Minnesota Statutes

section 590.01, subdivision 4.

       Pawliszko contends that his claims are not time barred because of (1) mental

defect, (2) newly discovered evidence, and (3) the interests of justice. These arguments

are meritless.

       Pawliszko claims that he suffers from an “inherited mental defect” and that his

time in prison caused his mental capacity to deteriorate. According to Pawliszko, he was

only recently able to complete and submit his postconviction petition.          Pawliszko

supports this claim by pointing to a statement in a mental examination report. But this

claim is belied by other evidence in the record, and Pawliszko presents no further

evidence that demonstrates he suffers from a mental defect that would satisfy the

exception in Minnesota Statutes section 590.01, subdivision 4(b)(1).3




3
   Pawliszko’s alleged mental deficiency was also not persuasive to the federal district
court, which did not grant him equitable tolling on his late-filed federal habeas corpus
petition. See Pawliszko v. Smith, Civil No. 12-985 (ADM/AJB), 2012 WL 4815609,
at * 3–4 (D. Minn. Sept. 11, 2012), adopted by 2012 WL 4815597 (D. Minn. Oct. 10,
2012).

                                            8
       Pawliszko also contends that he is exempt from the time bar because his claims

fall within the “newly discovered evidence” exception of the statute. Pawliszko’s newly

discovered evidence includes: (1) suppressed statements of the victim; (2) suppressed

police reports; (3) suppressed toxicology reports; (4) and the prosecution’s claim that

Pawliszko had been evicted was false.

       When a petitioner offers newly discovered evidence, that evidence is considered

only if four requirements are satisfied: “(1) the new evidence was not known to the

petitioner or his or her counsel at the time of trial; (2) the new evidence could not have

been discovered through due diligence prior to trial; (3) the new evidence is not

cumulative, impeaching, or doubtful; and (4) the new evidence would probably produce

an acquittal or a more favorable result.” Fort v. State, 829 N.W.2d 78, 82 (Minn. 2013)

(citing Rainer v. State, 556 N.W.2d 692, 695 (Minn. 1997)).

       Pawliszko’s argument fails because he does not articulate how this evidence was

not known to him or counsel at trial, or how his acquisition of this evidence did not and

could not occur before his trial.       The “newly discovered evidence” exception of

Minnesota Statutes section 590.01, subd 4(b)(2) does not apply.

       Pawliszko also asserts that he should be exempt from the statutory time bar under

the “interests-of-justice” exception in the statute. See Minn. Stat. § 590.01, subd. 4(b)(5).

He claims that the prosecutor suppressed and falsified evidence, that the trial court

refused to give a self-defense instruction, gave an erroneous jury instruction, and that he

is innocent of all charges.     “[T]he interests-of-justice exception is triggered by an

injustice that caused the petitioner to miss the primary deadline in subdivision 4(a), not


                                             9
the substance of the petition.” Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012).

Pawliszko’s claims here merely repeat the substance of his petition, and thus this

argument must fail.

       Because he filed his petition beyond the two-year time bar of Minnesota Statutes

section 590.01, subdivision 4, and no exception exists, the district court properly

exercised its discretion in denying Pawliszko’s petition for postconviction relief.

       B.     Knaffla Bar

       In addition to being time barred, the district court also denied an evidentiary

hearing because all of Pawliszko’s claims were known or should have been known at the

time of direct appeal and were therefore barred under State v. Knaffla, 309 Minn. 246,

243 N.W.2d 737 (1976).4

       Once a direct appeal has been taken, all claims raised in the appeal, and all claims

known at the time of appeal or that should have been known at that time, will not be

considered in a subsequent petition for postconviction relief. Leake, 737 N.W.2d at 535

(citing Black v. State, 560 N.W.2d 83, 85 (Minn. 1997); Knaffla, 309 Minn. at 252, 243

N.W.2d at 741). The Knaffla rule contains two exceptions. A claim known but not

raised on direct appeal is not barred “if the claim’s novelty was so great that its legal

basis was not reasonably available when direct appeal was taken.” Id. (citing Roby v.



4
   The district court was incorrect in stating that all of Pawliszko’s claims were barred by
Knaffla. An ineffective assistance of appellate counsel claim is not barred by Knaffla in a
first postconviction petition because it could not have been raised at an earlier time.
Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007). But this claim is still barred by the
two-year time limit to file a postconviction petition.

                                             10
State, 531 N.W.2d 482, 484 (Minn. 1995)). A claim is also not barred by Knaffla and

“substantive review may be allowed when fairness so requires and when the petitioner

did not deliberately and inexcusably fail to raise the issue on direct appeal.”          Id.

(quotation omitted).

        Pawliszko’s claims of insufficient evidence, prosecutorial misconduct, and

ineffective assistance of trial counsel were known at the time of direct appeal, and

Pawliszko raised those issues in his pro se supplemental brief. Pawliszko, 2009 WL

3255269, at *4-7. Pawliszko also apparently knew then of the “suppressed” police

reports and victim statements because they factor into this court’s analysis of his witness

credibility argument on direct appeal. See id. at *4 (“Appellant argues pro se that

statements [the victim] made to police during the incident contradict her statements at

trial.”).

        Pawliszko does not argue that his claims are so novel as to fit within the first

exception to the Knaffla rule. Instead he claims that because the issues in his pro se brief

on direct appeal were inadequate and incomplete, he has not received a review on the

merits. But this argument does not satisfy the second exception to Knaffla: “The interests

of justice exception to the Knaffla bar does not apply when a party simply believes an

argument actually raised on direct appeal could have been more complete.” Reed v.

State, 793 N.W.2d 725, 730 (Minn. 2010).

        Because Pawliszko’s arguments regarding the sufficiency of the evidence,

prosecutorial misconduct, suppressed statements and reports, and ineffective assistance of




                                            11
trial counsel were both known and raised on direct appeal, the district court did not abuse

its discretion in holding that these claims were barred by Knaffla.

       Affirmed.




                                            12
