Robert Sam Raisch, Jr., 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This opinion will be unpublished and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
A18-0536

Robert Sam Raisch, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 17, 2018
Affirmed
Smith, Tracy M., Judge

Pine County District Court
File No. 58-CR-15-321

Robert Sam Raisch, Jr., Bayport, Minnesota (pro se appellant)

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

Reese Frederickson, Pine County Attorney, Pine City, Minnesota (for respondent)

Considered and decided by Kirk, Pr esiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this pro se appeal from an order de nying postconviction relief, appellant raises
various issues regarding his trial and appellate counsel’s performance. Because appellant
has not shown that his trial or appellate attorneys were ineffective, we affirm.

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FACTS
In 2015, appellant Robert Raisch was ch arged with several crimes following the
discovery of human remains after a trailer fire . During the subsequent ten-day trial, the
jury heard testimony from numerous witnesse s, including A.L. and E.N., who had been
with Raisch at the trailer and who both testified for the state, and Raisch, who testified on
his own behalf. The jury found Raisch guilty of second-degree intentional murder, second-
degree felony murder, and first-degree assault.
In his direct appeal, Raisch challenged his convictions, arguing that the district court
abused its discretion by admitting evidence of his prior bad acts, denying his mistrial
motion, and declining to instruct the jury on accomplice testimony with respect to A.L., in
addition to a number of other claims in his pro se supplemental brief. State v. Raisch, No.
A16-0586, 2017 WL 1134403, at *1 (Minn. App. Mar. 27, 2017), review denied (Minn.
May 30, 2017). This court affirmed the district court in all respects.
In early 2018, Raisch filed a pro se pe tition for postconviction relief. He argued
that his convictions should be vacated on the grounds that his trial counsel was ineffective,
and that appellate counsel was ineffective for failing to argue that trial counsel was
ineffective and for failing to raise other claims. The postconviction court denied Raisch’s
request for relief without a hearing.
Raisch appeals.
D E C I S I O N
An appellate court reviews the “denial of a postconviction pe tition, including the
denial of relief without an evidentiary hearing, for an abuse of discretion.” State v. Nicks,

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831 N.W.2d 493, 503 (Minn. 2013). A defendant may challenge his conviction through a
postconviction petition when direct appellate relief is not available. Minn. Stat. § 590.01,
subd. 1 (2016). However, “where direct appe al has once been taken, all matters raised
therein, and all claims known but not raised, will not be c onsidered upon a subsequent
petition for postconviction relief.” State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976).
But, because they cannot be ra ised on direct appeal, ineffe ctive-assistance-of-appellate-
counsel claims are not barred by Knaffla. Leake v. State , 737 N.W.2d 531, 536 (Minn.
2007).
An ineffective-assistance-of-counsel clai m presents a mixed question of law and
fact subject to de novo review. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). “To
prove ineffective assistance of counsel, a de fendant must show that (1) his attorney’s
performance fell below an obj ective standard of reasonabl eness, and (2) a reasonable
probability exists that the outcome would have been differe nt, but for counsel’s errors.”
State v. Mosley , 895 N.W.2d 585, 591 (Minn. 2017) (quotations omitted); see also
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984).
Raisch argues his appellate counsel was ine ffective, in part, for failing to raise, on
his direct appeal, alleged errors made by his trial attorney. “When an ineffective assistance
of appellate counsel claim is based on appellate counsel’s fa ilure to raise an ineffective
assistance of trial counsel claim, the appella nt must first show that trial counsel was
ineffective.” Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007).
We address in turn each of Raisch’s four arguments as to why his appellate counsel
was ineffective.

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Conceding guilt

Raisch argues that his appellate counsel failed to raise on direct appeal the argument
that trial counsel conceded guilt during closing argument. “When counsel for the defendant
admits a defendant’s guilt without the defendan t’s consent, the counsel’s performance is
deficient and prejudice is presumed.” State v. Prtine , 784 N.W.2d 303, 317-18 (Minn.
2010).
In evaluating whether defense counsel made an improper
concession, we first perform a de novo review of the record to
see if counsel in fact conceded the defendant’s guilt and, if so,
we must proceed to the second prong of the inquiry and
determine whether the defendant acquiesced in that
concession.

Id. at 318.
A review of the record shows that trial counsel did not concede guilt. Raisch claims
that, while his counsel, throughout the trial, employed the theory of the case that Raisch
“had nothing to do with the crimes he was charged with a nd that A.L. & E.N. were the
perpetrators,” during closing argument, his a ttorney “abandoned this strategy . . . for the
absurd argument that defendan t thought he had killed [the] victim during the assault so
there could be no intent to kill with fire.” We consider the attorney’s statements in the
context of the entire record. See Prtine, 784 N.W.2d at 318. When read as a whole, the
transcript makes clear that, rather than admitting guilt, Ra isch’s attorney was simply
arguing that the state had not met its burden on the specific-intent element of second-degree
murder, even if the jury chose to believe the state’s witnesses. Accordingly, it was not an

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abuse of discretion for the postc onviction court to conclude Ra isch’s claim that his trial
counsel conceded guilt lacked merit and could not serve as a basis for postconviction relief.
Accomplice jury instruction

Raisch next argues that his appellate counsel failed to competently argue on appeal
that trial counsel was ineffective in seekin g to procure an accomp lice jury instruction
because trial counsel (1) did not effectively introduce evidence that would have shown
A.L. to be an accomplice, (2) did not effec tively cross-examine A.L., and (3) failed to
interview or call another witness.
We note that appellate counsel raised the issue of the district court’s refusal to give
an accomplice instruction regarding A.L. in Raisch’s direct appeal and this court rejected
that argument. Raisch, 2017 WL 1134403 at *6. Raisch now argues that appellate counsel
was nevertheless ineffective in not arguing that trial counsel was ineffective because trial
counsel failed to sufficiently establish the factual predicate that A.L. was an accomplice in
order to entitle him to an instruction.
Any decision by appellate counsel not to make this argument about trial counsel was
well founded, since it would have constituted a challenge to trial strategy, and such
strategic decisions are not subject to review for ineffective-assistance-of-counsel claims.
“Which witnesses to call at trial and what information to present to the jury are questions
that lie within the proper discretion of tria l counsel. Such trial tactics should not be
reviewed by an appellate court, which, unlik e the counsel, has the benefit of hindsight.”
State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Thus, Raisch’s complaints about trial
strategy cannot serve as the basis for an ineffective-assistance-of-counsel claim.

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Fingerprint evidence

Raisch also argues that his appellate counsel failed to raise the argument that trial
counsel was ineffective by failing to sufficiently present facts concerning forensic evidence
of his fingerprint on A.L.’s truck and other facts that, acco rding to Raisch, would have
undermined A.L.’s testimony at trial.
This, again, is a challenge to trial stra tegy. “Trial counsel’s performance is
presumed to be reasonable.” State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014). And this
court will “not generally review a claim for ineffective assistance of counsel based on trial
strategy.” State v. Robertson, 884 N.W.2d 864, 877 (Minn. 2016). Trial strategy includes
“the extent of counsel’s investigation and the selection of evidence presented to the jury.”
Vang, 847 N.W.2d at 267. The evidence Raisch ’s attorney chose to present at trial and
question witnesses about is a matter of trial strategy, and as discussed in the prior section,
is not a matter this court will second guess on appeal.
Sufficiency of evidence

Finally, Raisch argues that his appellate counsel failed to raise the argument that the
evidence presented at trial was insufficient to support his convictions. It is well established
that appellate counsel “need not raise a ll possible claims on direct appeal.” Leake, 737
N.W.2d at 536. “[A] claim need not be raised if appellate counsel could have legitimately
concluded that it would not prevail.” Id. (quotations omitted).
On direct appeal, appellate counsel did not challenge the sufficiency of the evidence
but Raisch raised the claim in his supplemental brief. We rejected the claim. See Raisch,
2017 WL 1134403, at *6. Ou r rejection demonstrates that appellate counsel exercised

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sound judgment within her prerogative. See Schneider v. State , 725 N.W.2d 516, 523
(Minn. 2007) (explaining that appellate co unsel is “permitted to argue only the most
meritorious claims”). It further demonstrates that Raisch suffered no prejudice. See Roby
v. State, 547 N.W.2d 354, 356-57 (Minn. 1996) (noting that a defendant must be prejudiced
by appellate counsel’s failure to raise a claim). Raisch asse rts that our rejection of the
sufficiency-of-the-evidence argument demons trates that his appellate counsel was
ineffective in not pursuing and briefing it, but he provides no basis for claiming ineffective
assistance of appellate counsel other than his disagreement with the merits of the decision.
In sum, Raisch’s arguments of ineffective assistance of appellate counsel fail either
because he fails to establish that his trial counsel was ineffective, see Fields, 733 N.W.2d
at 468, or because he challenges strategic decisions of his appellate counsel, see Leake, 737
N.W.2d at 536. The postconviction court did not abuse its discretion in summarily denying
Raisch’s petition for postconviction relief.
Affirmed.