No Abuse of Discretion To Deny Post Conviction Petition Without Evidentiary Hearing

Morrow v. State, Minn.S.Ct., 9/21/2016.  Mr. Morrow filed this post conviction action, on time, challenging the representation that he received from his appellate counsel.  He said that appellate counsel had rendered ineffective assistance of counsel by failing to raise these five issues:

(1) the sufficiency of the evidence; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel; (4) instructional error on the driveby-shooting counts; and (5) the possible violation of a statute prohibiting multiple overlapping convictions, Minn. Stat. § 609.04 (2014).

The post conviction court denied the petition in its entirety without holding an evidentiary hearing.

To get a hearing, Mr. Morrow had to allege facts which if proved would satisfy the two requirements of Strickland v. Washington, 466 U.S. 668 (1984): counsel's performance fell below an objective standard of reasonableness, and absence appellate counsel's shoddy performance the outcome of his direct appeal would have been different.  Justice Stras jumps straight to this second requirement to affirm the summary dismissal of the petition.

Mr. Morrow had raised both a sufficiency and prosecutorial misconduct challenge in his pro se supplemental brief on his direct appeal. Appellate counsel was not obliged to take up either of those causes absent a showing that this failure "fell below an objective standard of reasonableness," which Justice Stras didn't address.  

Because the trial court did not sentence Mr. Morrow on the drive-by shooting conviction, there could be no prejudice to him as a result of any error in the court's instructions on that count.  See State v. Jackson, 773 N.W.2d 111 (Minn. 2009).

Finally, Mr. Morrow's argument that Minn.Stat. 609.04 required the trial court to convict and sentence him on the lowest degree of the offenses charged just didn't square with the language of the statute. Rather, all that the statute says is that the trial court could not have convicted Mr. Morrow of both the first and second degree murder counts for the same victim.