Tyrese Thomas, 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This opinion will be unpublished and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
A19-0641

Tyrese Thomas, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 18, 2020
Affirmed
Florey, Judge

Chippewa County District Court
File No. 12-CR-14-79

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

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

Matthew Haugen, Chippewa County Attorney, Chris Reisdorfer, Assistant County
Attorney, Montevideo, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Worke, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this appeal from the order denying his petition for postconviction relief, appellant
Tyrese Thomas argues (1) he received ineffective assistance of counsel fro m the attorney
who represented him at the evidentiary hearing held on his first petition for postconviction

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relief in November 2018; (2) the prosecution committed misconduct during trial by
eliciting false and prejudicial testimony from its witnesse s; (3) he was denied a fair trial
through the suppression of e xculpatory evidence; (4) the district court erred in adm itting
written reports of a law-enforcement witness at the probable-cause hearing and at trial due
to a lack of foundation; (5) the district court erred in denying him relief and in applying the
Knaffla bar; and (6) he received ineffective assistance of trial counsel. We affirm.
FACTS
Appellant Tyrese Thomas was charged with one count of criminal sexual conduct
in the first degree, one count of criminal sexual conduct in the second degree, and one
count of criminal sexual conduct in the third degree in February 2014. The charges were
based on allegations that in 2012, then-34-year-old Thomas engaged in sexual contact with
K.R.P., who was then 12.
A pretrial hearing was held in October 2014. During that hearing, the parties
informed the district court that they had engaged in plea negotiations, and the state made a
settlement offer. Th omas was represented by counsel who requested that the pretrial
hearing be continued so that he could discuss the plea offer with Thomas. Later that month,
at the continued pretrial hearing, the plea offer was placed on the record. In exchange for
a guilty plea to the second -degree cri minal-sexual-conduct charge, the state offered to
recommend the bottom of the presumptive sentencing range , which was 119 months,
concurrent with the time Thomas was then serving for an unrelated offense. Thomas
declined the plea agreement on the record during the pretrial hearing.

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A two-day jury trial was held. Thomas testified at the trial and denied engaging in
any sexual contact with K.R.P. The jury found Thomas guilty of criminal sexual conduct
in the first and second degree, but found him not guilty of criminal sexual conduct in the
third degree. Thomas was sentenced to 306 months in prison for the first-degree criminal-
sexual-conduct conviction. The district court did not impose a separate sentence for the
second-degree conviction, but it did enter a conviction.
In March 2015, Thomas filed a direct appeal to this court to challenge his
convictions. He argued that he was deprived of a fair trial because of a biased juror and
that the district court erred by adjudicating him guilty of the second -degree criminal-
sexual-conduct conviction because it was a lesser-included offense and the same behavior
on which the first -degree c onviction was based. Thom as did no t raise an ineffective -
assistance-of-counsel argument on appeal.
In March 2016, this court affirmed Thomas’s conviction for first -degree criminal
sexual conduct. This court remanded the case to vacate the conviction of second-degree
criminal sexual conduct. The district court vacated Thomas’s conviction for second-degree
criminal sexual conduct in April 2016. Thomas filed a petition for further review of this
court’s decision, which was denied on June 21, 2016.
In June 2017, Thomas filed a postconviction petition arguing ineffective assistance
of both trial and appellate counsel. The postconviction petition was denied in July 2017.
The district court concluded that Thomas’s ineffective-assistance-of-counsel argument was
barred under Knaffla because it was not raised on direct appeal. Regardless, the district
court analyzed Thomas’s claim under the Strickland test and concluded that, even if

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Thomas’s counsel had done what he had claimed, the outcome of the trial would not have
been different.
In August, 2017, Thomas filed an appeal with this court, seeking review of the
denial of his postconviction petition. This court dismissed the appeal on October 5, 2017,
because Thomas failed to file a statement of the case.
Thomas attempted to file a second pos tconviction petition in June 2018, which
consisted of a mere cover sheet. The petition was rejected on June 7, 2018.
In July, 2018, Thomas filed his second postconviction petition alleging ineffective
assistance of counsel. Thomas also requested leave to retroactively accept the plea deal
offered to him during the pretrial proceedings.
The district court held an evidentiary hearing on the petition in November 2018.
The district court denied the postconviction petition on March 27, 2019. Thomas appeals.
D E C I S I O N
“We review the denial of a petition for postconviction rel ief for an abuse of
discretion. A district court abuses its discretion when it has exercised its discretion in an
arbitrary or capricious manner, based its ruling on an errone ous view of the law, or made
clearly erroneous factual findings. Legal issues are reviewed de novo, but our review of
factual issues is limited to whether there is sufficient evidence in the record to sustain the
district court’s findings. Put differentl y, we do not reverse the district court’s findings
unless they are clearly erroneous.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017)
(citation, quotations, and alterations omitted).

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As a preliminary matter, we note that Thomas raises several new iss ues on this
appeal, including ineffective assistance of counsel1 by the attorney who represented him at
the evidentiary hearing held on his first petition for postc onviction relief in November
2018, prosecutorial misconduct, a Brady violation, and that the district court erred in
admitting written reports of a law -enforcement witness at the probable-cause hearing and
at trial due to a lack of foundation. These arguments were not raised in Thomas’s direct
appeal, or in either of his subsequent postconvi ction petitions. Accordingly, they are not
properly before this court, and we deem them forfeited. Additionally, with t he exception
of the ineffective-assistance-of-counsel claim against the attorney representing him at the
evidentiary hearing, these new arguments are Knaffla-barred because they could have been
raised on direct appeal. State v. Knaffla, 243 N.W.2d 737 (Minn. 1976). Similarly, these
arguments are barred pursuant to Minn. Stat. § 590.01, subd. 1 (2019), because they could
have been raised on direct appeal.
The district court noted that Thomas’s ineffective-assistance-of-trial-counsel claims
are likely barred by Knaffla because all of the issues raised could have been brought on
direct appeal. We agree that the ineffective-assistance-of-counsel claims in Thomas’s first
and second petitions are Knaffla-barred because they could be decided solely on the basis
of the trial record. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013) (“When a claim of

1 In one of his postconviction petitions, Thomas asserts that he should be allowed to
retroactively accept the pretrial plea offe r, arguing that he only rejected it due to advice
from counsel, which he now claims was ineffective. Because Thomas has not shown that
he is entitled to postconviction relief on the grounds of ineffective assistance of counsel,
we decline to consider his requested relief.

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ineffective assistance of trial counsel can be determined on the basis of the trial record, the
claim must be brought on direct appeal or it is Knaffla-barred.”).
Finally, Thomas asserts that the district court abused its discretion by denying his
petition for relief on the basis of ineffective assistance of appellate counsel. Thomas argues
that his appellate counsel was ineffective because counsel failed to raise the argument of
ineffective assistance of trial counsel. But appellate attorneys are “not required to raise all
possible claims on dir ect appeal, and counsel need not raise a claim if they ‘could have
legitimately concluded that it would not prevail.’” Arredondo v. State, 754 N.W.2d 566,
571 (Minn. 2008) (citation omitted). Here, it is clear that an appellate attorney could have
legitimately concluded that an ineffective-assistance-of-counsel claim would not succeed.
The district court did not abuse its discretion by concluding that Thomas’s mere assertion
that his appellate counsel was ineffective is not sufficient to overcome the Strickland test.
See Strickland v. Washington , 466 U.S. 668, 688 (1984). Accordingly, w e affirm the
district court’s denial of Thomas’s petitions for postconviction relief.
Affirmed.