                          This opinion will be unpublished and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
                                     A14-0115

                                 Steven White, petitioner,
                                        Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed September 15, 2014
                                        Affirmed
                                      Larkin, Judge

                             Hennepin County District Court
                               File No. 27-CR-10-46189


Steven White, Rush City, Minnesota (pro se appellant)

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

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


         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

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

postconviction relief, arguing that his appellate counsel was ineffective for failing to raise

a claim of ineffective assistance of trial counsel. We affirm.

                                          FACTS

       A jury found appellant Steven White guilty of first-degree aggravated robbery,

kidnapping, and prohibited possession of a firearm. The district court sentenced White to

serve 108 months in prison. This court affirmed White’s convictions on appeal, but we

remanded for resentencing. State v. White, A11-1030, 2012 WL 2077300, at *1 (Minn.

App. June 11, 2012), review denied (Minn. Aug. 21, 2012).

       After resentencing, White filed a petition for postconviction relief, contending that

he was denied his right to effective appellate counsel. White argued that his appellate

counsel rendered ineffective assistance by failing to seek a stay of the direct appeal in

order to file a petition for postconviction relief based on ineffective assistance of trial

counsel. White argued that his trial counsel was ineffective for several reasons. The

postconviction court concluded that White failed to allege sufficient facts to support a

claim of ineffective assistance of trial counsel.        The postconviction court further

concluded that because White failed to establish ineffective assistance of trial counsel, his

claim of ineffective assistance of appellate counsel failed. The postconviction court

denied White’s petition for postconviction relief without a hearing. White appeals.




                                              2
                                     DECISION

       A postconviction court must hold an evidentiary hearing on a petition for relief

“[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 (2012). To obtain a

hearing, a petitioner must allege facts that, if proved by a fair preponderance of the

evidence, would entitle him or her to relief. King v. State, 649 N.W.2d 149, 156 (Minn.

2002). An evidentiary hearing is required when disputed material facts must be resolved

to determine the postconviction issues on the merits. Opsahl v. State, 677 N.W.2d 414,

423 (Minn. 2004). A summary denial of a postconviction petition is reviewed for an

abuse of discretion. Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).

       “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.” Fields v. State, 733 N.W.2d 465, 468

(Minn. 2007). To receive an evidentiary hearing on a postconviction claim of ineffective

assistance of counsel, a petitioner must allege facts that, if proved by a fair preponderance

of the evidence, would satisfy the two-prong test of Strickland v. Washington, 466 U.S.

668, 687-88, 104 S. Ct. 2052, 2064 (1984). Bobo v. State, 820 N.W.2d 511, 516 (Minn.

2012). “The two prongs of the Strickland test are: (1) the defendant must prove that

counsel’s representation fell below an objective standard of reasonableness; and (2) the

defendant must prove there was a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.” State v. Nicks, 831 N.W.2d 493, 504

(Minn. 2013).    A defendant must overcome the “strong presumption that counsel’s


                                             3
performance fell within a wide range of reasonable assistance.”        Gail v. State, 732

N.W.2d 243, 248 (Minn. 2007); see also Strickland, 466 U.S. at 689, 104 S. Ct. at 2065

(observing that judicial review should be “highly deferential” to counsel’s performance).

And an appellate court “need not address both the performance and prejudice prongs if

one is determinative.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

       The state argues that White’s “ineffective assistance of trial counsel claims are

procedurally barred.” See State v. Knaffla, 309 Minn. 246, 246, 243 N.W.2d 737, 738

(1976) (“Where direct appeal has once been taken, all matters raised therein, or all claims

known but not raised will not be considered upon a subsequent petition for

postconviction relief.”). But White raised his claim of ineffective assistance of trial

counsel within the context of his ineffective-assistance-of-appellate-counsel claim in the

postconviction court. And the only issue that the postconviction court addressed and

decided was White’s ineffective-assistance-of-appellate-counsel claim.       We therefore

construe White’s arguments on appeal as addressing the ineffective-assistance-of-

appellate-counsel claim, which is not procedurally barred. See Schneider v. State, 725

N.W.2d 516, 521 (Minn. 2007) (concluding that an ineffective-assistance-of-appellate-

counsel claim premised upon an appellate counsel’s failure to raise an ineffective-

assistance-of-trial-counsel claim “is not barred by Knaffla because Schneider could not

have known of ineffective assistance of his appellate counsel at the time of his direct

appeal”).




                                            4
       We address each of White’s seven assignments of error in turn.

       Trial counsel’s waiver of White’s right to confront the DNA expert

       During trial, White’s attorney stipulated—with White’s knowledge—that a police

officer could testify that White’s DNA matched DNA found on a hat recovered from the

crime scene, without requiring testimony from the forensic scientist who examined the

DNA.

       The postconviction court concluded that White’s attorney’s stipulation did not

render him ineffective because a “criminal defense lawyer’s stipulation to the admission

of a forensic scientist’s report, made with the defendant’s knowledge, does not require a

defendant’s personal waiver of the right to confrontation in order for the waiver to be

valid” and that White had “failed to allege sufficient facts to prove that there is a

reasonable probability that cross examination of the DNA technician would have changed

the outcome of the trial.”

       White fails to establish a reasonable probability that, but for the stipulation, the

result of the trial would have been different. See Nicks, 831 N.W.2d at 504. White

argues that the police officer’s testimony regarding the DNA results “served to . . .

corroborate the other witnesses purported testimony, that [he] is the individual who

[wore] the baseball hat during the alleged offense . . . [and] that [he] is the hat’s owner.”

White further argues that the testimony “erroneously place[d] [him] at the crime scene,

and inside of the alleged victim’s vehicle.” Although the DNA testimony bolstered the

state’s case, White does not explain how the result would have been any different if the

forensic scientist had testified about the DNA results rather than the police officer. For


                                             5
example, White does not allege any additional facts that could have been brought to light

through cross-examination of the forensic scientist that would have cast doubt on the

results of the DNA analysis. See Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007)

(requiring postconviction petitioner to allege facts that if established would show that,

“but for [trial counsel’s] errors, the result would have been different” (quotation

omitted)). And because White does not establish a reasonable probability that the result

of the trial would have been different, he has not satisfied the Strickland test.

       Jury Instructions

       White challenges the postconviction court’s conclusion that his trial counsel was

not ineffective for failing to request an adequate jury instruction defining “possession”

and “firearm.”

       With regard to prohibited possession of a firearm, the district court instructed the

jury based on 10A Minnesota Practice, CRIMJIG 32.42 (2006), as follows:

                     First, the defendant knowingly possessed a firearm. A
              person possesses a firearm if it is on his person. A person also
              possesses a firearm if it was in a place under his or her
              exclusive control, to which other people did not normally have
              access or, if found in a place to which others had access, he or
              she knowingly exercised dominion and control over it.

       White argues that the jury should only have been instructed on actual possession

because “the trial record reflects there was no firearm found; therefore the constructive

possession doctrine would not possibly apply.” White further argues that the jury should

have been given an instruction “defining the term ‘firearm.’” But White does not allege

that his trial counsel’s actions fell below an objectively reasonable standard or that the



                                              6
result would have been different but for counsel’s actions. See Leake, 737 N.W.2d at 536

(requiring postconviction petitioner to allege facts that if established would show

counsel’s representation fell below an objective standard of reasonableness and that, “but

for the errors, the result would have been different”) (quotations omitted)).

       Trial counsel’s concession of guilt during closing argument

       White argues that the postconviction court erred “when it ruled the defense

counsel’s concession that [his] nickname is ‘Zo’ was not a concession of [his] guilt.”

       “When counsel for the defendant admits a defendant’s guilt without the

defendant’s consent, the counsel’s performance is deficient and prejudice is presumed.”

State v. Prtine, 784 N.W.2d 303, 317-18 (Minn. 2010). “The decision whether or not to

admit guilt at trial belongs to the defendant, and a new trial will be granted where defense

counsel, explicitly or implicitly, admits a defendant’s guilt without permission or

acquiescence.” State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991).

              In evaluating whether defense counsel made an improper
              concession, we first perform a de novo review of the record to
              see if counsel in fact conceded the defendant’s guilt and, if so,
              we must proceed to the second prong of the inquiry and
              determine whether the defendant acquiesced in that
              concession.

Prtine, 784 N.W.2d at 318. “[E]ven implied concessions require client consent.” Dukes

v. State, 660 N.W.2d 804, 812 (Minn. 2003). This court “will find an implied concession

only where a reasonable person viewing the totality of the circumstances would conclude

that counsel conceded the defendant[’]s guilt.” Torres v. State, 688 N.W.2d 569, 573

(Minn. 2004) (quotations omitted).



                                             7
       In this case, the victim testified on cross-examination that White’s accomplice

referred to White as “Zo” during the robbery. During closing argument, White’s trial

counsel presented the theory that the victim fabricated the robbery, feared prosecution for

making a false crime report, and felt pressured to pick a person who looked familiar from

a photo lineup. It was part of White’s defense theory that the victim picked White

because he knew White and therefore knew White’s nickname. No reasonable person

viewing the totality of the circumstance would conclude that White’s trial counsel

conceded guilt by stating that White’s nickname was “Zo.” On the contrary, White’s

attorney elicited evidence of White’s nickname and used it to advance White’s defense

theory.

       Trial counsel’s failure to move to suppress a photographic lineup

       White argues that the postconviction court erred “when it ruled trial counsel’s

decision not to suppress the identification evidence was a reasonable trial strategy and

that [he] failed to allege sufficient facts that a motion to suppress would have been

successful or otherwise changed the trial outcome.”

       “[T]here are valid strategic reasons for [a trial] counsel’s failure to object to . . .

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

And “[g]enerally, [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) (citations omitted).

Because the decision to move for suppression of a photo-lineup identification procedure

is part of trial strategy, we decline to review this claim.


                                               8
       Trial counsel’s failure to object to prosecutorial vouching

       White argues that the postconviction court erred “when it ruled that trial counsel’s

failure to object to the prosecutor’s vouching for [a police officer] was a matter of trial

strategy.”

       During closing argument, the prosecutor stated the following:

              Let me just be frank. If you believe that Sergeant Larson,
              despite his testimony, circled the number four underneath . . .
              White’s photograph before he presented it to [the victim], I
              am beyond in deep trouble. Annie, bar the door. That would
              taint this. Does – any inference that Sergeant Larson did
              anything but what he told you, if that’s reasonable to assume,
              then I apologize. I have wasted 30 minutes of your time.

       White’s trial counsel did not object to this statement. But White does not allege

that his trial counsel’s performance fell below an objectively reasonable standard because

counsel failed to object or that the result would have been different if he had objected.

See Leake, 737 N.W.2d at 536.

       Trial counsel’s failure to properly cross-examine the victim

       White contends that his trial counsel “erred in his attempt to impeach [the victim]

about there being no tattoos on [his] hands, when [the victim] had told the police . . . that

the perpetrator had tattoos on his upper right arm.” White further complains that his trial

counsel did not have him display his bare arms to show the jury that he “unequivocally”

had “no tattoos, scars or markings.” White did not provide evidentiary support for his

claim in the form of an affidavit showing that his attorney’s cross-examination fell below

an objective standard of reasonableness. See Bruestle v. State, 719 N.W.2d 698, 705

(Minn. 2006) (stating that a “petitioner bears the burden of proof on an ineffective


                                             9
assistance of counsel claim, and there is a strong presumption that counsel’s performance

fell within a wide range of reasonable assistance” and noting that “[t]here are no

affidavits from unaffiliated defense attorney experts to the effect that counsel’s

representation of Bruestle fell below an objective standard of reasonableness” (quotations

omitted)). And the decision to offer evidence of the lack of tattoos or markings on

White’s arms is trial strategy, which this court does not review. See State v. Voorhees,

596 N.W.2d 241, 255 (Minn. 1999) (“What evidence to present to the jury . . .

represent[s] an attorney’s decision regarding trial tactics which lie within the proper

discretion of trial counsel and will not be reviewed later for competence.”).

       Trial counsel’s failure to object to a jailhouse informant’s testimony

       White argues that the postconviction court erred “when it ruled the jailhouse

informant’s testimony was relevant to [his] identity and based on personal knowledge and

that [he] failed to show that an objection to informant’s testimony would have been

successful.” White once again fails to allege that his trial counsel’s actions fell below an

objectively reasonable standard or that the result would have been different but for

counsel’s actions. See Leake, 737 N.W.2d at 536.

       In conclusion, none of White’s arguments has merit. White did not allege facts

that, if proved, would entitle him to relief on his ineffective-assistance-of-trial-counsel

claims. And because those claims fail, his ineffective-assistance-of-appellate-counsel

claim necessarily fails. See Fields, 733 N.W.2d at 468 (“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


                                            10
ineffective.”). Thus, the postconviction court did not abuse its discretion by denying

White’s petition without an evidentiary hearing. We therefore affirm.

      Affirmed.




                                           11
