Joseph Harvey Bellanger, 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This opinion will be unpublished and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
A19-0368

Joseph Harvey Bellanger, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 25, 2019
Affirmed
Klaphake, Judge*

Beltrami County District Court
File No. 04-CR-14-801

Christopher J. Perske, Bloomington, Minnesota (for appellant)

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

David L. Hanson, Beltrami County Attorney, David P. Frank, Chief Assistant County
Attorney, Cassidy Villenueve (certified student attorney), Bemidji, Minnesota (for
respondent)

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Klaphake,
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
KLAPHAKE, Judge
In this appeal from the denial of his petition for postconviction relief, appellant
Joseph Harvey Bellanger alleges that his ineffective -assistance-of-counsel claim is not
barred under State v. Knaffla , 243 N.W.2d 737 (Minn. 1976), and that he rec eived
ineffective assistance of trial counsel. Because his claims are Knaffla-barred and they fail
on the merits, we affirm.

D E C I S I O N
The denial of a petition for postconviction relief is reviewed for an abuse of
discretion. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). “A postconviction court
abuses its discretion when it has exercised its discretion in an arbitrary or capricious
manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Id. (quotation omitted).
Bellanger argues that the postconviction court erred when it found that his claims
are Knaffla-barred, did not find any prejudice caused by his trial counsel’s representation,
and denied his motion for postconviction relief. The postconviction court determined that
Bellanger’s claims regarding newly discovered evidence and ineffective assistance of trial
counsel are Knaffla-barred. “Claims that were raised on direct appeal, or were known or
should have been known but were not raised on direct appeal, are procedurally barred.”
Sontoya v. State, 829 N.W.2d 602, 604 (Minn. 2013) (citing Knaffla, 243 N.W.2d at 741);
see also Minn. Stat. § 590.01, subd. 1 (2014) (“A petition for postconviction relief after a

3
direct appeal has been completed may not be based on grounds that could have been raised
on direct appeal of the conviction or sentence.”). A claim is not Knaffla-barred, however,
if “(1) the claim is novel; or (2) the interests of fairness and justice warrant relief.” Sontoya,
829 N.W.2d at 604.
On his first appeal, Bellanger claimed that his trial counsel was ineffective because
he conceded Bellanger’s guilt without his consent. We affirmed his conviction. State v.
Bellanger, No. A15 -0150, 2016 WL 764094 (Minn. App. Feb. 29, 201 6), review denied
(Minn. May 17, 2016). On this, his second appeal, Bellanger claims that he received
ineffective assistance of trial counsel because his attorney either failed to discover or failed
to utilize a full version of a surveillance video and fa iled to completely cross -examine
witnesses.
During Bella nger’s trial, a video exhibit was used that contained portions of a
security video taken at a casino where part of the crime took place. The video that
Bellanger contends is new evidence contains the full security video interface with multiple
views from outside of the casino. Bellanger acknowledges that the full security video was
available to both trial counsel and counsel on his first appeal.1 He argues, however, that it
is “new” evidence, beca use he did not personally know about the information until after
his first appeal. The postconviction court found that his appellate counsel had access to
the video prior to bringing his appeal. Therefore, this evidence is not new, and Bellanger

1 Bellanger does not claim that he received ineffective assistance of appellate counsel.

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had the opportunity during his first appeal to argue that his trial counsel was ineffective
regarding the use of the full security video.
Additionally, Bellanger could have raised the issue of his trial attorney not
completely cross-examining witnesses during his first appeal. Therefore both of his claims
are Knaffla-barred.
Moreover, Bellanger’s ineffective -assistance-of-counsel claim fa ils on the merits.
To prevail on an ineffective-assistance-of-counsel claim, Bellanger must show “(1) that his
counsel’s representation ‘fell below an objective standard of reasonableness’; and (2) ‘there
is a reasonable probability that, but for counsel’ s unprofessional errors, the result of the
proceeding would have been different.’” Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015)
(quoting Strickland v. Washington , 466 U.S. 66 8, 688, 694, 104 S. Ct. 2052, 2064, 2068
(1984)). “We review a district court’s application of the Strickland test de novo because it
involves a mixed question of law and fact. If a claim fails to satisfy one of the Strickland
requirements, we need not consider the other requirement.” State v. Mosley, 895 N.W.2d
585, 591 (Minn. 2017) (citation omitted).
Appellate courts apply “a strong presumption that [an attorney’s] performance falls
within the wide range of ‘reasonable professional assistance.’” State v. Jones, 392 N.W.2d
224, 236 (Minn. 1986) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). A
reviewing court generally “will not review attacks on counsel’s trial strategy.” Opsahl v.
State, 677 N.W.2d 414, 421 (Minn. 2004).
Bellanger claims that he received ineffective assistance of counsel because his trial
attorney did not use the entire security video, and he failed to adequately cross -examine

5
witnesses. “[M]atters of trial strategy, including which witnesses to call, what defenses to
raise at trial, and specifically how to proceed at trial, will not be reviewed later by [a court]
as long as the trial strategy was reasonable.” Ives v. State, 655 N.W.2d 633, 636 (Minn.
2003).
Because the choice to introduce the full video and whether to more thoroughly
cross-examine witnesses is a matter of trial strategy, Bellanger did not receive ineffective
assistance of counsel. We therefore affirm.
Affirmed.