                          This opinion will be unpublished and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
                                     A15-0894

                           John Christian Richmond, petitioner,
                                        Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed March 14, 2016
                                        Affirmed
                                      Hooten, Judge

                              Hennepin County District Court
                                File No. 27-CR-11-18537

John Christian Richmond, Moose Lake, Minnesota (pro se appellant)

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

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

         Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

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

postconviction relief, arguing that he was entitled to an evidentiary hearing on his claim

that he was denied effective assistance of counsel. We affirm.
                                         FACTS

       In June 2011, appellant John Christian Richmond was charged with two counts of

first-degree aggravated robbery. Richmond was appointed a public defender, but fired her

and hired a private attorney before trial. Following a jury trial, Richmond was found guilty

of both counts. Represented by a third attorney, Richmond appealed, and this court

affirmed his convictions on May 13, 2013. State v. Richmond, No. A12-0899, 2013 WL

1942995 (Minn. App. May 13, 2013), review denied (Minn. July 16, 2013). On November

13, 2014, Richmond filed a pro se petition for postconviction relief, and the postconviction

court dismissed the petition without holding an evidentiary hearing. This appeal followed.

                                     DECISION

       Absent an abuse of discretion, a postconviction court’s decision will not be

disturbed. Wayne v. State, 860 N.W.2d 702, 704 (Minn. 2015). Appellate courts “review

a postconviction court’s legal conclusions de novo,” but “will not reverse the court’s

factual findings unless they are clearly erroneous.” Andersen v. State, 830 N.W.2d 1, 6

(Minn. 2013).

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

may file a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1 (2014). A

postconviction court is required to hold an evidentiary hearing “[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). “To warrant an evidentiary hearing a

petitioner’s postconviction allegations must be more than argumentative assertions without

factual support.” King v. State, 649 N.W.2d 149, 158 (Minn. 2002) (quotation omitted).


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       Richmond argues that the district court erred by denying his petition for

postconviction relief without ordering an evidentiary hearing on his claims that all three of

his attorneys provided ineffective assistance of counsel. To show ineffective assistance of

counsel, a “defendant must affirmatively prove that his counsel’s representation ‘fell below

an objective standard of reasonableness’ and ‘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 v.

Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2068 (1984)).

Ineffective Assistance of Court-Appointed Trial Counsel

       Although Richmond argued in his postconviction petition that his court-appointed

trial counsel provided ineffective assistance of counsel, he claims for the first time on

appeal that she did so by failing to apprise him of the state’s plea offer and by failing to

negotiate a better plea with the state. “It is well settled that a party may not raise issues for

the first time on appeal from denial of postconviction relief.” Azure v. State, 700 N.W.2d

443, 447 (Minn. 2005) (quotation omitted). Therefore, these claims are not properly before

this court.

       Richmond also argues that his court-appointed counsel provided ineffective

assistance of counsel because she took actions that deprived him of his right to a speedy

trial. “[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, 43 N.W.2d 737, 741 (1976). While

Richmond failed to raise this claim at the time of his direct appeal, he contends that the


                                               3
claim is not Knaffla-barred because it requires additional fact-finding. See Andersen, 830

N.W.2d at 10 (stating that an ineffective assistance of counsel claim “is not Knaffla-barred

when the claim requires examination of evidence outside the trial record or additional fact-

finding by the postconviction court, because the claim is not based solely on the briefs and

trial court transcript”). Richmond argues that it is impossible to ascertain his court-

appointed counsel’s rationale for waiving his initial speedy trial demand without an

evidentiary hearing, but we conclude, as the postconviction court did, that “the record

suggests [Richmond’s court-appointed counsel] did consult with her client about delaying

the trial” and sought a continuance in order to have “more time to address pretrial

suppression issues and have all proceedings in front of the same judge.” Because no further

fact-finding is needed on this issue, this claim is Knaffla-barred.

Ineffective Assistance of Private Trial Counsel

       Richmond argues that his private trial counsel provided ineffective assistance of

counsel, pointing out numerous instances of allegedly deficient performance. Although

these claims could have been brought at the time of his direct appeal, Richmond argues

that these claims are not barred by Knaffla because additional fact-finding is needed.

       Richmond’s claim that private counsel did not inform him of the plea offer that was

put on the record at a July 26, 2011 court hearing does not warrant an evidentiary hearing

because Richmond was present with court-appointed counsel at the hearing. Likewise,

Richmond’s complaint that private counsel did not favor plea deals and did not negotiate a

more favorable plea deal does not warrant an evidentiary hearing because he cites no law

requiring an attorney to negotiate a particular plea deal for a client. See State v. Wembley,


                                              4
712 N.W.2d 783, 795 (Minn. App. 2006) (“An assignment of error in a brief based on mere

assertion and not supported by argument or authority is waived unless prejudicial error is

obvious on mere inspection.” (quotation omitted)), aff’d, 728 N.W.2d 243 (Minn. 2007).

       Richmond complains that his attorney told him, “I don’t see how we can lose this

case,” and then lost the case, but does not allege that the opinion of his private counsel was

based on a misunderstanding of the law. See Leake v. State, 737 N.W.2d 531, 540–41

(Minn. 2007) (concluding that a hearing was necessary to determine whether defense

counsel’s representation was objectively unreasonable where he misstated defendant’s

potential sentence if convicted). Because Richmond cites no law stating that an attorney

provides ineffective assistance of counsel by providing an opinion about the likely outcome

of the trial that ultimately proves to be incorrect, this claim does not merit an evidentiary

hearing. See Wembley, 712 N.W.2d at 795.

       Richmond argues that his private counsel misinformed him regarding the sentence

that could be imposed if he were convicted, but makes no specific allegations of how his

counsel misinformed him. Because Richmond’s argument is merely an “argumentative

assertion[] without factual support,” it does not warrant an evidentiary hearing. King, 649

N.W.2d at 158 (quotation omitted).

       Finally, Richmond argues that his private counsel did not adequately investigate the

case and prepare for trial. Richmond does not assert what his counsel did incorrectly, what

should have been done, or how the result would have been any different but for any errors

his private counsel allegedly committed. Moreover, the record reveals evidence of a

vigorous representation by Richmond’s private counsel during trial. Because Richmond


                                              5
has not alleged facts that would entitle him to relief, this claim does not warrant an

evidentiary hearing.

       As Richmond has not shown the need for additional fact-finding with regard to any

of his claims of ineffective assistance of trial counsel, the district court did not abuse its

discretion by concluding that they are procedurally barred under Knaffla.

Ineffective Assistance of Appellate Counsel

       Richmond argues that the district court erred by denying his postconviction claim

of ineffective assistance of appellate counsel. Richmond argues that appellate counsel

provided ineffective assistance of counsel by not arguing on direct appeal that trial counsel

provided ineffective assistance. In his postconviction petition, however, Richmond did not

argue that appellate counsel provided ineffective assistance of counsel by failing to argue

that trial counsel provided ineffective assistance. Therefore, this claim is not properly

before this court. Azure, 700 N.W.2d at 447.

       In sum, the postconviction court did not abuse its discretion by summarily denying

Richmond’s petition for postconviction relief.

       Affirmed.




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