Paul Ronny Barsness, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1302

Paul Ronny Barsness, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 8, 2017
Affirmed
Kirk, Judge

Otter Tail County District Court
File No. 56-CR-12-1983

Paul Ronny Barsness, Moose Lake, Minnesota (pro se appellant)

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

David J. Hauser, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Kirk, Judge; and Toussaint,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KIRK, Judge
Pro se appellant challenges the postconviction court’s denial of his petition for relief
on numerous grounds. We affirm.
FACTS
In May 2013, a jury convicted appellant Paul Ronny Barsness of second -degree
criminal sexual conduct for his contact with the 10-year-old daughter of a coworker. State
v. Barsness, No. A13-2013, 2014 WL 5419726, at *1 (Minn. App. Oct. 27, 2014), review
denied (Minn. Dec. 30, 2014 ). The district court sentenced appellant to 72 months in
prison. Id. at *2.
In October 2014, this court affirmed appellant’s conviction, but we declined to
review his ineffective-assistance-of-counsel claims relating to alleged communication
issues and evidence not presented because these claims could not be determined on the
record before this court. Id. at *7. The Minnesota Supreme Court denied review.
On February 19, 2016, acting pro se, appellant petitioned the postconviction court
for relief, and he raised numerous issues in his petition that can be grouped into the
following categories: (1) prosecutorial misconduct that effectively denied him the right to
a fair trial; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of
appellate counsel. In May, appellant moved the postconviction court to compel disclosure
of additional materials and requested various items of disclosure.
The postconviction court denied appellant’s petition without an evidentiary hearing,
reasoning that all of appellant’s prosecutorial-misconduct claims were procedurally barred

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under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), because they
were either raised or could have been raised on direct appeal . It also rejected appellant’s
ineffective-assistance-of-counsel claims relating to evidentiary and discovery matters,
concluding that they were either Knaffla-barred, were a matter of trial strategy , or tha t
appellant failed to demonstrate prejudice at trial . With respect to appellant’s counsel-
related sentencing claims, the postconviction court found that appellant failed to prove that
he was prejudiced because there were no grounds supporting a downward d eparture in
sentencing, and that appellant failed to adequately explain his lack of cooperation with the
presentencing assessment.
The postconviction court denied appellant’s ineffective-assistance-of-counsel claim
that his appellate counsel should have petitioned the Minnesota Supreme Court for review
of this court’s rejection of his Spreigl-evidence1 claim, concluding that appellate counsel
was not required to raise claims on direct appeal that counsel could have legitimately
concluded would not prevail. The postconviction court also rejected appellant’s claim that
appellate counsel did not provide him with disclosure materials from trial, finding that there
was no supporting record evidence. It also denied appellant’s motion to compel discovery.
On Augu st 3, a ppellant filed a motion to correct his sentence and a motion for
reconsideration with the postconviction court , and then filed a pro se notice of appeal the

1 Under State v. Spreigl , 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965), evidence
showing that the defendant committed another crime unrelated to the crime for which he
or she is on trial is generally inadmissible. But evidence of prior c rimes are admissible to
show motive, lack of mistake, identity, or a common plan or scheme. Id. at 491, 139
N.W.2d at 169.

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following day . Appellant then moved this court to stay proceedings and allow the
postconviction court to address his motions for correction and reconsideration. This court
stayed appellant’s appeal and remanded to the postconviction court to consider his motions.
The postconviction court reaffirmed its previous orders denying appella nt’s petition for
postconviction relief and motion to compel discovery.
Appellant next moved the district court for in camera inspection and preservation of
discovery materials under Minn. R. Crim. P. 9.01, subd. 2. Appellant moved this court to
stay proceedings and remand the matter to the district court and to file an enlarged brief.
We denied appellant’s motion s. Appellant renewed his motion to stay the appeal and
remand to allow the district court to “inspect and preserve requested materials” under
Minn. R. Crim. P. 9.01, subd. 2 , but we denied appellant’s motion, concluding that a stay
and remand was not authorized for this purpose. Appellant next moved for summary
judgment, which we denied.
This appeal follows.
D E C I S I O N
Appellate courts review the denial of a petition for postconviction relief, including
a request for an evidentiary heari ng, for an abuse of discretion. Swaney v. State , 88 2
N.W.2d 207, 214 (Minn. 2016). We review legal issues de novo and the postconviction
court’s factual findings for clear error. Id.
A postconviction court may deny a petition without a hearing if the files and records
of the proceedings conclusively establish that the petitioner is not entitled to relief. Brown
v. State, 863 N.W.2d 781, 786 (Minn. 2015); see Minn. Stat. § 590.04, subd. 1 (2014). But

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the court must consider the alleged facts in the light most favorable to the petitioner.
Martin v. State , 825 N .W.2d 734, 740 (Minn. 2013). In order to warrant a hearing,
however, a petitioner ’s allegations must constitute more than argumentative assertions
without factual support. Doppler v. State, 771 N.W.2d 867, 871 (Minn. 2009).
When a petition for postconviction relief follows a direct appeal, all claims that were
raised in the direct appeal are procedurally barred. Knaffla, 309 Minn. at 252, 243 N.W.2d
at 741. “The Knaffla rule also bars all claims that were known or should have been known
at the time of the direct appeal.” Swaney, 882 N.W.2d at 215.
A. Prosecutorial-misconduct claims
In his petition for postconviction relief, appellant raises numerous issues of district
court error. Appellant argues: (1) the investigating officer committed per jury while
testifying when he claimed that only one interview was performed with himself and A.N.,
and that a mental -health employee was present during that interview; (2) the state
concealed the involvement of S.L., another victim; (3) the state deprived appellant of the
ability to prepare a defense; (4) the investigating officer committed many other acts of
perjury and falsely testified on several occasions; (5) the prosecutor committed misconduct
by admitting unsubstantiated and possibly fabricated other-crimes evidence; ( 6) the
prosecutor and her agents concealed interviews with a witness that were exculpatory
evidence; ( 7) the interview techniques used in A.N.’s CornerHouse interview were
suggestive and coercive; and (8) the state failed to disclose evidence that another individual
abused A.N.

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All of these claims are Knaffla-barred because they were known or should have been
known at the time of the direct appeal. Swaney, 882 N.W.2d at 215. Moreover, while
appellant cites caselaw in support of h is claims, his allegations are no more than
“argumentative assertions without factual support. ” Doppler, 771 N.W.2d at 871. The
postconviction court properly concluded that the record demonstrates that appellant was
aware of all of the trial evidence, in cluding all existing CornerHouse videos. The record
also established that there was another CornerHouse video, but it had nothing to do with
alleged sexual misconduct between appellant and A.N. The video concerns appellant’s
alleged sexual misconduct with another victim that was not shown to the jury or admitted
at trial.
B. Ineffective-assistance-of-trial-counsel claims
Knaffla bars ineffective -assistance-of-counsel claims that can be reviewed on the
basis of the trial record when the known claim is not brought on direct appeal. Sontoya v.
State, 829 N.W.2d 602, 604 (Minn. 2013). But “an ineffective-assistance-of-counsel claim
is not Knaffla-barred when the claim requires examination of evidence outside the record
and additional fact-finding by the postconviction court because it cannot be resolved solely
on the basis of the record and the briefs.” Swaney, 882 N.W.2d at 216.
To prove ineffective assistance of counsel, the petitioner must show that
(1) counsel’s representation fell below an objectiv e standard of reasonableness and
(2) there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. Lussier v. State, 853 N.W.2d 149, 154 (Minn. 2014)
(citing Strickland v. Washington , 466 U.S. 66 8, 688, 694, 104 S. Ct. 2052 , 2064, 2068

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(1984)). The second part of the Strickland test is referred to as the prejudice prong.
Patterson v. State , 670 N.W.2d 439, 442 (Minn. 2003). “A ‘reasonable probability’ is a
probability sufficient to undermine co nfidence in the outcome of the case.” Swaney, 882
N.W.2d at 217.
Appellant asserts that his trial counsel committed the following errors: (1) failed to
keep in contact with appellant; (2) raised his voice at appellant within earshot of the jury;
(3) i nformed appellant that he would not continue to represent appellant after the
conclusion of trial; (4) failed to call witnesses that could have relieved confusion in the
proceedings; (5) failed to impeach the state’s witnesses; (6) failed to interview a wi tness
whose testimony would have been material; (7) failed to object to prosecutorial misconduct
by wrongfully admitting Spreigl evidence at trial; (8) denied him access to the contents of
his file, thereby impeding his ability to raise issues in his direc t appeal; (9) failed to seek
expert testimony to impeach the interviewing techniques used on A.N.; and (10) did not
try to exclude A.N.’s testimony on the ground that it was tainted by the interviewing
techniques.
Appellant’s first three claims fail beca use appellant fails to show prejudice.
Patterson, 670 N.W.2d at 442 . Appellant’s remaining claims fail because they involve
trial strategy. Strategic choices made by an attorney after a thorough investigation of the
facts and law are “virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S. Ct. at
2066. Moreover, appellant cannot demonstrate prejudice on the remaining claims. There
is also no reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been dif ferent. Swaney, 882 N.W.2d at 2 17. As this court found on direct

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appeal, the state’s case against appellant was strong. Barsness, 2014 WL 5419726, at *6.
A.N. gave testimony detailing the sexual contact between herself and appellant that was
largely consistent with her interview at CornerHouse. Id. A.N. voluntarily spoke about
the sexual contact to investigators without prompting, and her mother and stepfather also
testified about their concerns over appellant’s relationship with A.N. Id.
C. Ineffective-assistance-of-appellate-counsel claims
Appellant argues that his appellate counsel erred by failing to petition for review to
the Minnesota Supreme Court, thereby failing to preserve the issues for federal review in
a habeas corpus petition. It appears that appellant wanted appellate counsel to request that
the Minnesota Supreme Court change the law to permit reversal for Spreigl violations
without conducting a plain -error analysis. But appellate counsel is not required to raise
unmeritorious claims. Reed v. State, 793 N.W.2d 725, 736 (Minn. 2010). Accordingly,
the postconviction court did not abuse its discretion in denying appellant’s petition for
relief.
D. Motion-to-compel claims
“[T]he [district court] judge has wide discretion to iss ue discovery orders and,
absent clear abuse of that discretion, normally its order with respect thereto will not be
disturbed.” Shetka v. Kueppers, Kueppers, Von Feldt & Salmen , 454 N.W.2d 916, 921
(Minn. 1990). To receive a new trial based on newly disco vered evidence, a petitioner
must prove, by a preponderance of the evidence:
(1) that the evidence was not known to the defendant or his/her
counsel at the time of the trial; (2) that the evidence could not
have been discovered through due diligence befor e trial;

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(3) that the evidence is not cumulative, impeaching, or
doubtful; and (4) that the evidence would probably produce an
acquittal or a more favorable result.

Carridine v. State , 867 N.W.2d 488, 496 (Minn. 2015) (quotation omitted) . Here, the
record confirms that the postconviction court did not abuse its discretion in denying
appellant’s motion to compel because appellant failed to de monstrate that his request was
nothing more than a “fishing expedition” for any potential evidence that mig ht impeach
witness testimony at trial.
Affirmed.