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This opinion will be unpublished and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 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1227

Paul Ronny Barsness, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 17, 2019
Affirmed
Schellhas, Judge

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

Judie Marshall, Kent Marshall, Marshall Law Office, Barrett, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michelle M. Eldien, Otter Tail County Attorney, Sarah Estep-Larson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Tracy M. Smith, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the summary denial of his petition for postconviction relief,
arguing that the postconviction court erred by concluding that his claims of actual

2
innocence, ineffective assistance of counsel, and prosecutorial misconduct, are time-barred
and Knaffla-barred. We affirm.
FACTS
A district court sentenced appellant Paul Barsness to 72 months in prison after a jury
found him guilty of second -degree criminal sexual conduct involving a ten-year-old girl.
Barsness appealed his conviction, and this court affirmed. State v. Barsness, No. A13-2013
(Minn. App. Oct. 27, 2014) ( Barsness I), review denied (Minn. Dec. 30, 2014). Barsness
subsequently filed an 80-plus page pro se petition for postconviction relief, arguing, inter
alia, that he was denied the effective assistance of trial and appellate counsel, and that the
prosecutor committed prejudicial misconduct. The postconviction court denied Barsness’s
postconviction petition, and this court affirmed. Barsness v. State, No. A16-1302 (Minn.
App. May 8, 2017) (Barsness II), review denied (Minn. July 18, 2017).
In January 2018, Barsness filed a second petition for postconviction relief, claiming
“actual innocence” based on newly discovered evidence. Specifically, Barsness alleged
that Investigating Officer Kevin Sonstebo perjured himself by testifying that N.T., a school
mental-health worker, was present during an interview that he conducted with the victim.
Barsness claimed that he has now obtained N.T.’s affidavit, stating that she was not present
during the interview. Barsness also claimed that (1) the prosecutor committed misconduct
in the form of nondisclosure, presenting false testimony, introduction of unnoticed Spreigl
evidence, and misstatement of the burden of proof; and (2) he received ineffective
assistance of trial counsel for failure to conduct a n adequate investigation, pursue an

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alternative perpetrator theory, engage in effective cross-examination, and make additional
trial objections.
The postconviction court concluded that Barsness’s “claims are all Knaffla-barred
on their face” because “[v]irtually all of the claims in this second petition for
postconviction relief were previously raised in some form in [Barsness ]’s first petition for
postconviction relief, which was voluminous and wide-ranging.” The postconviction court
also concluded that Barsness’s postconviction petition was time -barred under Minn. Stat.
§ 590.01, and that no exception applies. The postconviction court therefore denied
Barsness’s petition without an evidentiary hearing.
This appeal follows.
D E C I S I O N
Barsness contends that the postconviction court erred by summarily d enying his
petition on the basis that his three claims are time -barred and Knaffla-barred. This court
reviews a postconviction court’s summary denial of a petition for postconviction relief for
an abuse of discretion. Andersen v. State , 913 N.W.2d 417, 422 (Minn. 2018). “A
postconviction court abuses its discretion when its decision is based on an erroneous view
of the law or is against logic and the facts in the record, or exercises its discretion in an
arbitrary or capricious manner.” Crow v. State, 923 N.W.2d 2, 9 (Minn. 2019) (quotation
omitted).
A postconviction petition may be procedurally barred under State v. Knaffla , 243
N.W.2d 737 (Minn. 1976). Under the Knaffla rule, “once a direct appeal has been taken,
all claims raised in the direct appeal and all claims that were known or should have been

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known but were not raised in the direct appe al are procedurally barred.” Colbert v. State,
870 N.W.2d 616, 626 (Minn. 2015) (emphasis omitted). Claims that were raised, or could
have been raised, in a previous postconviction petition are also procedurally barred. Id. “A
postconviction court does not abuse its discretion when it summarily denies a petition that
is procedurally barred by the Knaffla rule.” Jackson v. State, 919 N.W.2d 470, 473 (Minn.
2018).
A. Actual-innocence claim
Barsness challenges the d enial of his claim of “actual innocence.” Specifically, he
contends that newly discovered evidence in the form of an affidavit of N.T. “supports the
conclusion that Officer Sonstebo offered perjured testimony and that suggestive interview
techniques were used in the investigation of this case.” Barsness argues that if “[g]iven an
opportunity to develop [his] proffer of newly discovered evidence through an evidentiary
hearing, [he] can demonstrate by clear and convincing evidence that [he] is actually
innocent of the offense.” We disagree.
In his fi rst petition for postconviction petition relief, Barsness argued that Officer
Sonstebo “committed perjury while testifying when he claimed that only one interview was
performed with himself and [the victim], and that [N.T.] was present during that interview.”
Barsness II, 2017 WL 1842835, at *2. This is essentially the same argument raised here.
Although Barsness has now filed an affidavit of N.T., the affidavit simply states that N.T.
was not present during the April 2012 interview. As respondent State of Minnesota points
out, the affidavit “does not change the analysis because [Barsness’s] claim —that Officer
Sonstebo lied at trial by indicating that [N.T.] was present at the April 19, 2012 interview—

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has not changed.” Moreover, even if Barsness’s argument i s somehow distinct from the
one he made in his previous postconviction petition, Barsness asserts no reason that the
affidavit could not have been obtained during earlier proceedings. Rather, the basis for this
claim was previously known to Barsness throug h pre-trial discovery and the trial record.
In fact, this court previously determined that Barsness’s claim was Knaffla-barred because
it was known or should have been known at the time of his direct appeal. Id. Because
Barsness’s claim of “actual innocence” was raised or could have been raised in his previous
postconviction petition, the postconviction court did not err by concluding that this claim
was Knaffla-barred. See Colbert, 870 N.W.2d at 626 (stating that claims that were raised,
or could have been raised, in a previous postconviction petition are procedurally barred
under the Knaffla rule).
Moreover, the alleged newly discovered evidence does not establish that Barsness
is innocent of the offense. “‘[A]ctual innocence’ requires the petitioner to prove it is more
likely than not that no reasonable jury would convict.” Brown v. State, 863 N.W.2d 781,
788 (Minn. 2015) (quotation omitted). To satisfy the actual -innocence criterion, the
“proffered evidence must be unequivocal, intrinsically probable, and free from frailties.”
Rhodes v. State, 875 N.W.2d 779, 788 (Minn. 2016).
Here, N.T.’s affidavit states that despite Officer Sonstebo’s trial testimony to the
contrary, she is “confident I was not present during [the] interview” with the victim on
April 19, 2012. Nowhere does the affidavit indicate that Barsness is innocent of the crime
of which he was convicted. Instead, the affidavit simply casts doubt on the truthfulness of
Officer Sonstebo’s testimony , and i t does not weaken the other evidence offered by the

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state at trial, which as this court has previously noted “was strong.” Barsness I, 2014 WL
5419726, at *6. And, as the postconviction court acknowledged, the affidavit “addresses
only a secondary issue at trial , and so [it] falls short of offering evidence of actual
innocence.” Barsness therefore cannot establish that the alleged newly discovered evidence
demonstrates actual innocence.
B. Ineffective-assistance-of-counsel claim
Barsness also challenges the postconviction court’s determination that his
ineffective-assistance-of-counsel claim is Knaffla-barred. To prove ineffective ass istance
of counsel, a petitioner must show that (1) counsel’s representation fell below an objective
standard of reasonableness and (2) there is a reasonable pr obability 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. 668, 688, 694, 104 S.
Ct. 2052, 2064, 2068 (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 confidence in the outcome of the case.”
Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
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.

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Here, Barsness alleges that his trial counsel provided deficient performance by
failing to (1) “conduct an adequate investigation into the allegations made by [the victim]”;
(2) discover “the identity of [N.T.], and the fact that Officer Sonstebo was claiming she
assisted with coordinating and was present at the [April 19, 2012] interview” with the
victim; (3) “investigate the interview techniques that were used, and the possibility of
suggestive interview techniques leading to falsely implanted memories”; and (4) “object to
the elicitation of inadmissible character evidence, Spreigl evidence . . . without prior notice,
and the prosecutor’s misstatement of the burden of proof.” But as the postconviction court
found, Barsness’s “claims were either raised or avail able in prior proceedings.” For
example, in his direct appeal, Barsness claimed that he was denied effective assistance of
counsel based on his trial counsel’s failure “to object to . . . instances of alleged
prosecutorial misconduct,” and “present certain evidence and call witnesses in his
defense.” Barsness I, 2014 WL 5419726, at *7. And in his first petition for postconviction
relief, Barsness alleged that his trial counsel was ineffective because he “failed to impeach
the state’s witnesses,” “failed to interview a witness whose testimony would have been
material,” “failed to object to prosecutorial misconduct by wrongfully admitting Spreigl
evidence at trial,” and failed to challenge the interview techniques used on the victim.
Barsness II, 2017 WL 18428 35, at *3. Finally, to the extent that Barsness’s ineffective -
assistance-of-counsel claims differ from the claims raised in previous proceedings, they
could have been raised at the time of the direct appeal because they are based on the trial
record alone. See Sontoya , 829 N.W.2d at 604 (stating that Knaffla bars ineffective -
assistance-of-counsel claims that can be reviewed on basis of trial record when known

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claim is not brought on direct appeal ). The postconviction court therefore properly
concluded that Barsness’s ineffective-assistance-of-counsel claim is Knaffla barred.
C. Prosecutorial-misconduct claim
Finally, Barsness alleged prosecutorial misconduct based on the prosecutor’s
alleged “failure to disclose exculpatory evidence,” and “correct the false and/or perjured
testimony of Officer Sonstebo.” But again, Barsness raised these issues in his previous
petition for postconviction relief. Barsness II, 2017 WL 1842835, at *2. Barsness cannot
raise the same claim in a second petition for postconviction relief. See Colbert, 870 N.W.2d
at 626 (stating that c laims that were raised, or could have been raised, in previous
postconviction petition are procedurally barred). Moreover, to the extent that Barsness did
not raise the issues in his previous postconviction petition, the claims were known or should
have been known at the time of his direct appeal. Accordingly, the postconviction court
did not err by concluding that Barsness’s prosecutorial -misconduct claims are Knaffla
barred.
Affirmed.