                            This opinion will be unpublished and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
                                       A15-0692

                              Izell Wright Robinson, petitioner,
                                         Appellant,

                                              vs.

                                     State of Minnesota,
                                        Respondent.

                                      Filed May 9, 2016
                                          Affirmed
                                        Reyes, Judge

                               Hennepin County District Court
                                  File No. 24CR1123965

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Izell Wright Robinson, Bayport, Minnesota (pro se appellant)

         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Tracy Smith,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         Appellant challenges the postconviction court’s denial of his petition for

postconviction relief, raising numerous issues. Because the postconviction court did not

abuse its discretion by determining that appellant is not entitled to relief, we affirm.
                                          FACTS

       In 2012, a jury found appellant Izell Wright Robinson guilty of two counts of first-

degree criminal sexual conduct and one count of kidnapping. The district court sentenced

appellant to 202 months in prison. Appellant filed a direct appeal, arguing that the

district court erred by admitting evidence of a threatening voicemail, by allowing

improper in-court jury deliberations, and by ordering restitution when there was an

insufficient factual basis supporting the award. State v. Robinson, No. A12-1638, 2013

WL 5508141 (Minn. App. 2013), review denied (Minn. Dec. 17, 2013). Appellant also

filed a pro se brief in which he asserted several arguments, including that the police

destroyed exculpatory evidence by auctioning off his car. This court affirmed appellant’s

convictions but reversed and remanded on the issue of the restitution award. Id.

       On May 19, 2014, appellant filed a petition for postconviction relief, to which he

filed an addendum on June 16, 2014. On September 2, 2014, the postconviction court

issued an order concluding that appellant’s claims lacked merit and denying

postconviction relief. The postconviction court subsequently became aware that

appellant filed an addendum to his postconviction petition raising additional issues. On

February 23, 2015, the postconviction court issued a second order concluding that

appellant’s ineffective-assistance-of-appellate-counsel claim lacked merit, denying

appellant an evidentiary hearing, and reducing the amount of the restitution award. This

appeal follows.




                                             2
                                       DECISION

       A person convicted of a crime who claims that the conviction violates his rights

under the Constitution or laws of the United States or Minnesota may petition for

postconviction relief unless direct appellate relief is available. Minn. Stat. § 590.01,

subd. 1 (2014).

              Unless the petition and the files and records of the proceeding
              conclusively show that the petitioner is entitled to no relief, the
              court shall promptly set an early hearing on the petition and
              response thereto, and promptly determine the issues, make
              findings of fact and conclusions of law with respect thereto,
              and either deny the petition or enter an order granting
              appropriate relief.

Minn. Stat. § 590.04, subd. 1 (2014). “[W]here direct appeal has once been taken, all

matters raised therein, and all claims known but not raised, will not be considered upon a

subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243

N.W.2d 737, 741 (1976); see also Minn. Stat. § 590.04, subd. 3 (2014) (“The court may

summarily deny a second or successive petition for similar relief on behalf of the same

petitioner and may summarily deny a petition when the issues raised in it have previously

been decided by [an appellate court] in the same case.”). The Knaffla rule “precludes

consideration of all claims which appellant should have known but did not raise at the

time of an earlier review.” Quick v. State, 757 N.W.2d 278, 280 (Minn. 2008). “There

are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the

interests of justice require review.” Schleicher v. State, 718 N.W.2d 440, 447 (Minn.

2006) (quotation omitted).




                                               3
       “We review the denial of postconviction relief for abuse of discretion.” Wayne v.

State, 860 N.W.2d 702, 704 (Minn. 2015). “[A] matter will not be reversed unless the

postconviction court exercised its discretion in an arbitrary or capricious manner, based

its ruling on an erroneous view of the law, or made clearly erroneous factual findings.”

Id. (quotation omitted).

       Appellant asserts that the postconviction court erred by denying him

postconviction relief. We address each of the six arguments appellant raised in turn.1

                                             I.

       Appellant first argues that a trial witness was impermissibly allowed to testify

about a voicemail without proper foundation first having been laid. We disagree.

       The postconviction court appropriately exercised its discretion in determining that

this claim lacks merit. Because appellant raised this issue in his previous direct appeal,

this argument is barred by Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Appellant

asserts, however, that his argument falls under one of the Knaffla exceptions because it is

based on new legal principles set forth in State v. Yoeun, No. A12-1987, 2013 WL



1
  In addition to his primary arguments, throughout his brief, appellant takes issue with the
sufficiency of the evidence underlying his conviction. Appellant raised this issue as part
of his previous appeal, and we will not undertake that analysis again. Similarly, appellant
challenges the postconviction court’s credibility determinations. We give great deference
to the postconviction court’s credibility determinations. See Doppler v. State, 771
N.W.2d 867, 875 (Minn. 2009). Finally, appellant argues in his reply brief that, as a pro
se party, he should not be held to the same standard as an attorney. But this argument is
belied by appellant’s well-organized, well-supported principal brief. Therefore, we
decline to depart from the general rule that pro se parties are held to the same standard as
attorneys in presenting their case on appeal. Francis v. State, 781 N.W.2d 892, 896
(Minn. 2010).

                                             4
6196553 (Minn. App. Nov. 25, 2013). But Yoeun is unpublished and therefore not

binding. Minn. Stat. § 480A.08, subd. 3 (2014). Furthermore, Yoeun did not establish a

new legal principle; it applied long-standing legal precedent. Appellant implicitly

acknowledges this by citing Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse,

Inc., 325 N.W.2d 20, 27 n. 9 (Minn. 1982), and Turnage v. State, 708 N.W.2d 535, 542

(Minn. 2006), both of which were cited in Yoeun. Therefore, no Knaffla exception

applies, and appellant’s claim is precluded on that basis.

       Moreover, Yoeun has no bearing on appellant’s case. Yoeun addresses the

foundational requirements for a recording that is played for the jury and admitted into

evidence. Here, the complained-of voicemail was neither played for the jury nor

admitted into evidence. One witness testified about the voicemail for the purpose of

illustrating its impact on the witness’s mental state. Accordingly, as the postconviction

court correctly determined, the foundational requirements discussed in Yoeun are

inapplicable.

                                             II.

       Appellant next argues that this court applied the wrong harmless-error standard to

his previous appeal. Appellant’s argument is misguided. The issues appellant raised in

his prior appeal were not raised at trial. As such, this court correctly applied the plain-

error standard of review. Minn. R. Crim. P. 31.02. Moreover, the postconviction court

did not have the authority to correct any alleged errors in this court’s opinion. The proper

forum for appellant to seek relief from an erroneous decision of this court was with the

state Minnesota Supreme Court, which appellant did, and the supreme court denied his


                                              5
petition for review. Minn. Const. art. VI, § 2; Minn. R. Civ. App. P. 117; Minn. R. Crim.

P. 29.04.

                                             III.

       Appellant argues that he was denied the opportunity to present a complete defense

because the state disposed of his vehicle, a key piece of exculpatory evidence according

to appellant. The postconviction court correctly determined that this argument is Knaffla-

barred. Appellant raised this issue in his previous appeal, and we determined it lacked

merit. Robinson, 2013 WL 5508141, at *6. Appellant is now precluded from asserting

the same argument.

                                             IV.

       Appellant next contends that the postconviction court erred by excluding relevant

evidence of a prior relationship between himself and the victim. The postconviction

court correctly determined that this claim is Knaffla-barred. Appellant was aware of the

facts supporting this argument at the time of his previous direct appeal and did not allege

that either Knaffla exception applies. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

                                              V.

       Appellant alleges that the postconviction court erred by allowing the jury to

deliberate in the courtroom while watching a video replay. In support of this argument,

appellant submitted a letter from an individual who was in the courtroom during

appellant’s trial and avers that he heard the jurors deliberating.

       Appellant raised this issue in his first direct appeal. Because appellant failed to

object to the alleged improper jury deliberations at trial, we reviewed appellant’s


                                              6
argument for plain error. Robinson, 2013 WL 5508141, at *5. We concluded that

appellant was not prejudiced by the improper jury deliberations. Id. Accordingly, this

argument is Knaffla-barred and we decline to undertake this analysis again.

         Appellant appears to argue that the letter constitutes newly discovered evidence

but does not allege that one of the Knaffla exceptions applies. Laine v. State, 786

N.W.2d 635, 638 (Minn. 2010). Nevertheless, even if we were to address this argument

under the interests-of-justice exception, it is without merit. The interests-of-justice

exception “applies if fairness requires it and the petitioner did not deliberately and

inexcusably fail to raise the claim on direct appeal.” Perry v. State, 731 N.W.2d 143, 146

(Minn. 2007). When determining whether to grant a new trial based on newly discovered

evidence, a defendant must prove that the evidence: (1) was not known to appellant or his

counsel during trial; (2) could not have been discovered through due diligence before

trial; (3) is not cumulative, impeaching, or doubtful; and (4) would probably produce an

acquittal or more favorable result. Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015).

Appellant cannot satisfy the fourth factor.

         The letter alleges nothing more than that the jurors made brief comments about

what they were seeing on the video.2 The district court judge immediately ordered the

jurors to stop talking, which the letter acknowledges. Importantly, the letter provides no

new evidence as to the events which gave rise to appellant’s conviction. Appellant

therefore did not provide new evidence that would have produced an acquittal or more



2
    The letter alleges that one juror said to another juror, “There is something in his hand.”

                                                7
favorable result. As such, the postconviction court correctly determined that the letter

does not provide a basis for granting appellant postconviction relief.

                                             VI.

       Lastly, appellant argues that he received ineffective assistance of counsel.3 We are

not persuaded.

       The postconviction court concluded that appellant’s ineffective-assistance-of-

appellate-counsel claim, which was based on his appellate counsel’s failure to argue that

appellant received ineffective assistance of trial counsel, failed because appellant did not

prove that his trial counsel was ineffective. Fields v. State, 733 N.W.2d 465, 468 (Minn.

2007) (“When an ineffective assistance of appellate counsel claim is based on appellate

counsel’s failure to raise an ineffective assistance of trial counsel claim, the appellant

must first show that trial counsel was ineffective.”). On appeal, appellant appears to be

arguing that he received ineffective assistance of trial counsel. We construe appellant’s

arguments regarding his trial counsel as disputing the postconviction court’s conclusion

that he failed to allege a viable ineffective-assistance-of-appellate-counsel claim.4




3
  Appellant included this argument in his addendum because his principal brief exceeded
the word and page count limitations set forth in Minn. R. Civ. App. P. 132.01, subd. 3.
We therefore need not consider this argument. Nevertheless, appellant’s argument is
meritless.
4
  On appeal, appellant does not explicitly dispute the postconviction court’s
determination regarding his ineffective-assistance-of-appellate-counsel claim.
Nevertheless, appellant did raise such a claim in his postconviction petition. Therefore,
we construe appellant’s assertions regarding his trial counsel as supporting his
ineffective-assistance-of-appellate-counsel argument.

                                              8
       When asserting a claim of ineffective assistance of counsel, an appellant must

satisfy a two-prong test: “(1) that trial counsel’s performance fell below an objective

standard of reasonableness; and (2) that a reasonable probability exists that, but for

counsel’s errors, the outcome . . . would have been different.” State v. Radke, 821

N.W.2d 316, 323 (Minn. 2012) (citing Strickland v. Washington, 466 U.S. 668, 694, 104

S. Ct. 2052, 2068 (1984)). We review ineffective-assistance-of-counsel claims de novo.

State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). Appellant has the burden of

demonstrating both prongs of the Strickland test. Id. at 844. We need not address both

prongs if one is dispositive. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).

       Appellant cannot establish that his trial counsel’s performance fell below an

objective standard of reasonableness. Appellant takes issue with his trial counsel’s

failure to investigate, interview, and call certain witnesses. But these arguments all

address counsel’s trial strategy. We give great deference to counsel’s selected trial

strategy and generally do not review ineffective-assistance-of-counsel claims based on

trial strategy. See id. at 10; see also State v. Opsahl, 677 N.W.2d 414, 421 (Minn. 2004)

(“Our reluctance to scrutinize trial tactics is grounded in the public policy of allowing

counsel to have the flexibility to represent a client to the fullest extent possible.”

(quotation omitted)). We decline to depart from the general rule in this instance and

therefore conclude that the postconviction court correctly dismissed appellant’s

ineffective-assistance-of-counsel claims as lacking merit.

       Affirmed.




                                               9
