Earl Anthony Fry, 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This opinion will be unpublished and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
A17-1644

Earl Anthony Fry, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 9, 2018
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-13-34342

Earl A. Fry, Minneapolis, Minnesota (pro se appellant)

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

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

Considered and decided by Bjorkman, Presiding Judge; Reilly, Judge; and Stauber,
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
REILLY, Judge
Appellant Earl Ant hony Fry challenges the district court’s denial of his petition for
postconviction relief, where it determined that appellant’s ineffective-assistance-of-trial-
counsel claim was procedurally barred under Knaffla, and where it determined that
appellant’s ineffective-assistance-of-appell ate-counsel claim failed on the merits . W e
affirm.
FACTS
In 2013, appellant and the victim got in to a fight. Appellant punched the victim,
and the victim fell unconscious. The victim suffered life-threatening bleeding in his brain
that required emergency surgery. Appella nt was initially charged with first-degree
burglary and third-degree assault. The st ate later dismissed the burglary charge and
increased the assault charge to first-degree assault after reviewing medical records and
determining the extent of the victim’s injuries. Appellant pleaded guilty to first-degree
assault. At the sentencing hearing, appella nt moved to withdraw his guilty plea. The
district court denied appellant’s motion and determined that his plea was knowing,
voluntary, and intelligent. On appeal, appellant argued th at his plea was not intelligently
given and that it was not accurate because it la cked proof of the element of causation.
Appellant alleged that the vic tim had a pre-existing condition th at caused bleeding in his
brain and that appellant’s assault was not the cause of the victim’s injuries. This court
affirmed the district court an d determined that the plea wa s intelligently given and that

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causation could be “inferred from the chain of events.” State v. Fry, No. A14-1297, 2015
WL 4450647, *1, 4 (Minn. App. June 29, 2015).
In April 2017, appellant filed a pro se post conviction petition in district court, which
alleged ineffective assistance of trial counse l and ineffective assistance of appellate
counsel. Appellant requested that an expert be appointed “with knowledge of sickness of
bleeding in the brain,” that he be provided with medical records to prove the bleeding in
the victim’s brain was a pre-existing injury, and that he receive complete disclosure of the
state’s evidence used to prepare the case for trial. Appellant argued that his counsel failed
“to make a record that the victim had bleedi ng on the brain prior to the incident in
question,” and that both his trial and appella te attorneys failed to raise the issue of
causation. Appellant also claimed that his trial attorney provided ineffective assistance
when he failed to object when the prosecutor increased the assault charge from third- to
first-degree assault. Appellant submitted an affidavit claiming that the victim told him
about having pre-existing bleeding in his brain.
The district court denied appellant’s petition for postconviction relief. The district
court determined that appellant’s cl aims were procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), and that appellant’s claims failed on the merits.
This appeal follows.
D E C I S I O N
This court reviews a denial of postconviction relief based on the Knaffla procedural
bar for an abuse of discretion. Quick v. State , 692 N.W.2d 438, 439 (Minn. 2005). An
abuse of discretion exists if the denial of po stconviction relief is “based on an erroneous

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view of the law or is against logic and the facts in the record.” Brown v. State, 895 N.W.2d
612, 617 (Minn. 2017) (quotation omitted). There is no abuse of discretion in a denial of
postconviction claims presented “solely as c onclusory, argumentative assertions without
factual support.” Davis v. State, 784 N.W.2d 387, 391 (Mi nn. 2010). When a party has
exhausted the right of a direct appeal, all clai ms raised or known bu t not raised in that
appeal will not be considered upon a subsequent petition for postconviction relief. Knaffla,
309 Minn. at 252, 243 N.W.2d at 741; see also Minn. Stat. § 590.01, subd. 1 (2016).
The district court determined that appella nt’s ineffective-assistance-of-trial-counsel
claims were Knaffla-barred. The district court found that appellant’s direct appeal from
the district court’s denial of his motion to w ithdraw his guilty plea proceeded on a theory
of insufficient causation. The court noted that, although appellant brought an ineffective-
assistance-of-counsel claim in his petition for postconviction relief, he was actually
rearguing the issue of causation. Appellant so ught to elicit expert testimony and gather
further medical evidence to show the victim had a pre-existing injury so he could show that
his actions did not cause the vic tim’s injuries. The district court determined the court of
appeals had already ruled on the issue of causation and therefore the claims were
procedurally barred under Knaffla. The district court noted th at appellant failed to argue
either exception to the Knaffla bar, but that he would have failed under either exception
had the arguments been raised. 1 The district court also determined that appellant’s

1 A claim is not subject to the Knaffla bar: (1) if a novel legal issue is presented; or (2) if
the interests of justice require review. Taylor v. State, 691 N.W.2d 78, 79 (Minn. 2005).
Interests of justice require review if fairness requires it and if appellant did not “deliberately
and inexcusably” fail to raise the issue on direct appeal. Fox v. State , 474 N.W.2d 821,

5
ineffective-assistance-of-appellate-counsel claim failed because he was unable to show his
trial counsel was ineffective.
We agree with the district court’s thor ough analysis. Appellant is attempting to
relitigate the issue of causation in the guise of an ineffectiv e-assistance-of-counsel claim.
Issues raised and addressed on direct a ppeal are procedurally barred from further
consideration in a petition for postconviction relief. Knaffla, 309 Minn. at 252, 243
N.W.2d at 741. Further, the record indicates appellant was aware of his trial attorney’s
conduct on direct appeal and could have raised the issue of ineffective counsel at that time.
Id. “[C]laims known but not raised . . . will not be considered upon a subsequent petition
for postconviction relief.” Id. Appellant’s claims are procedurally barred by Knaffla.
Finally, we note that appellant’s claims fa il on the merits. Defense counsel received
discovery from the state regarding the victim’s medical examination, and she clearly relied
on that evidence during the plea colloquy. Appellant waived certain rights when he pleaded
guilty, which included the right to call witnesses and present evidence to a jury. See State
v. Thompson , 720 N.W.2d 820, 827 (Minn. 2006). Appellant’s own plea of guilty
prevented his trial attorney from arguing the issues he now claims were insufficiently
developed below. Furthermore, even if the matter had proceeded to trial, the decisions of
whether to call an expert witness or use medical evidence are matters of unreviewable trial
strategy. Carridine v. State , 867 N.W.2d 488, 494 (Minn. 2015). Because appellant’s

825 (Minn. 1991). The district court was correct: neither of the exceptions to the Knaffla
bar apply here. Appellant does not present a novel legal issue. Additionally, appellant did
not fail to raise the issue of causation on direct appeal.

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ineffective-assistance-of-counsel claims against his trial counsel fail on the merits, we
determine that his ineffective-assistance claim against his appellate attorney likewise fails.
See Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007) (requiring appellant to “first show
that trial counsel was ineffective” before prevailing on merits against appellate counsel).
Affirmed.