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UNPUBLISHED CRIMINAL OPINIONS FROM THE MINNESOTA COURT OF APPEALSA07-2039Krishaun Andrew Harris, petitioner, Appellant, vs. State of Minnesota, Respondent. HUSPENI, Judge Appellant challenges the denial of postconviction relief, arguing that Blakely v. Washington should be applied retroactively to his 1998 sentence, which was not appealed. Because appellant's case was no longer pending on direct review when Blakely was decided, and Blakely is also inapplicable to appellant's postconviction collateral attack, we affirm. = = = = A07-1633 Linroy Nathaniel Jones, petitioner, Appellant, vs. State of Minnesota, Respondent. JOHNSON, Judge The question in this case is whether a person may bring a postconviction action to challenge district court proceedings on a felony charge that resulted in a stay of adjudication for one year and then dismissal of the charge. The district court denied the postconviction petition on the ground that, because the charge was dismissed without adjudication of guilt, there was no conviction on which a postconviction action could be based. In light of intervening caselaw, we conclude that the stay of Jones's adjudication of guilt may be the subject of a postconviction action. Therefore, we reverse and remand. = = = = A07-1464 Russel John Martinez, petitioner, Appellant, vs. State of Minnesota, Respondent. HALBROOKS, Judge Appellant challenges the district court's order denying his postconviction motion seeking to void a five-year conditional-release term that he argues was not part of his plea agreement. Alternatively, appellant asks this court to modify his conditional-release term. Because the postconviction court did not abuse its discretion, we affirm. = = = = A07-1269 State of Minnesota, Respondent, vs. Sandra Gail Tusow, Appellant. PETERSON, Judge In this appeal from a conviction of second-degree refusal to submit to chemical testing, appellant argues that (1) her limited right to counsel was not vindicated by the opportunity to use a telephone and a telephone book because she could not read the telephone book without her glasses, which were in police custody; and (2) the evidence does not support the district court's finding that appellant's final indication was that she did not wish to contact an attorney. We affirm. = = = = A07-1185 State of Minnesota, Respondent, vs. Weldon K. Welch, Appellant. WORKE, Judge On appeal from his convictions of aiding and abetting third-degree burglary and receiving stolen property, appellant argues that (1) the district court committed plain error affecting his right to a fair trial by permitting the prosecutor to impeach him with his pre-release investigation report, in violation of Minn. R. Crim. P. 6.02; (2) the prosecutor committed misconduct by asking "were they lying" questions and by vouching for the police officer's testimony; and (3) the district court erred by imposing a sentence for the receiving stolen property conviction. We affirm in part and reverse in part, vacating the sentence imposed for the receiving-stolen-property conviction. = = = = A07-1113 State of Minnesota, Respondent, vs. Eddie Delk, Appellant. STONEBURNER, Judge Appellant challenges his conviction of first-degree controlled-substance crime, arguing ineffective assistance of counsel due to counsel's concession that appellant was present at five out of the six controlled-substance sales that made up the charge against him. Because the record demonstrates that appellant explicitly consented to counsel's strategy of conceding appellant's presence at sales in which the total amount of controlled substance sold did not meet the elements of a first-degree offense, and acquiesced in continuation of that strategy after the district court granted the state's request to instruct the jury on the lesser-included offense of second-degree controlled-substance crime, we affirm. = = = = A07-0893 State of Minnesota, Respondent, vs. Howard B. Simmons, Appellant. WILLIS, Judge Appellant challenges his conviction of felony domestic assault, arguing that the district court abused its discretion by allowing certain testimony and that the prosecutor committed misconduct. We affirm. = = = = A07-0868 State of Minnesota, Respondent, vs. Jeff L. Johnson, Appellant. STONEBURNER, Judge On appeal from his conviction of second-degree assault, appellant argues that the district court committed reversible error by exempting the investigating officer from the sequestration order and allowing him to assist the prosecutor during trial. Appellant also argues that the prosecutor committed misconduct entitling him to a new trial. We affirm. = = = = A07-0794 State of Minnesota, Respondent, vs. Donovan L. Davis, Jr., Appellant. TOUSSAINT, Chief Judge Appellant Donovan L. Davis, Jr. challenges the sufficiency of the evidence upholding his conviction of second-degree assault, arguing that the baseball bat he used to commit the assault did not constitute a "dangerous weapon" as defined by statute. Because we conclude that appellant used a "dangerous weapon" and the evidence was therefore sufficient to support his conviction of second-degree assault, we affirm. = = = = A07-0772 State of Minnesota, Respondent, vs. James Evans Johnson, Appellant. MINGE, Judge Appellant challenges his conviction of murder in the second degree, arguing that the prosecutor committed misconduct by shifting the burden of proof during closing argument. Because we find that the prosecutor did not commit misconduct, we affirm. = = = = A07-0489 State of Minnesota, Respondent, vs. Jon Lorne Lindberg, Appellant. MINGE, Judge Appellant challenges his conviction of first-degree burglary, claiming that the prosecutor committed misconduct by knowingly presenting false testimony, disparaging the defense theory during closing argument, and improperly commenting on defense counsel's closing statements during rebuttal. Because we conclude that the prosecutor did not commit misconduct or knowingly elicit false testimony, we affirm. = = = = A07-2132 Frank Edward Johnson, petitioner, Appellant, vs. Joan Fabian, Commissioner of Corrections, Respondent. HARTEN, Judge Pro se appellant Frank Edward Johnson challenges the district court's denial of his habeas corpus petition and the denial of his motion to remove the district court judge based on claims of bias. We affirm. = = = = A07-1209 In the Matter of the Welfare of: J.T.S. MINGE, Judge Appellant challenges his juvenile disposition, arguing that the district court abused its discretion by ordering out-of-home residential placement following his first adjudication as a juvenile delinquent. We affirm. |
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