This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2408

                          Matthew Thomas Fahey, petitioner,
                                    Appellant,

                                          vs.

                                  State of Minnesota,
                                      Respondent

                             Filed September 8, 2014
                                      Affirmed
                                   Worke, Judge
             Concurring in part, dissenting in part, Cleary, Chief Judge


                             Renville County District Court
                                File No. 65-CR-10-149

Kyle D. White, St. Paul, Minnesota; and

Matthew R. Wasik, Stillwater, Minnesota (for appellant)

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

David Torgelson, Renville County Attorney, Olivia, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Rodenberg, Judge.
                        UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges the denial of his petition for postconviction relief, arguing

that his trial and appellate counsel were ineffective, his sentence should be reviewed

because the district court failed to consider mitigating factors or newly discovered

evidence, and his sentence does not satisfy due-process requirements. We affirm.

                                         FACTS

       On May 4, 2010, appellant Matthew Thomas Fahey abducted and raped a 14-year

old girl and released her in a remote location unknown to her. Fahey was indicted for

criminal sexual predatory conduct, kidnapping, and two counts of first-degree criminal

sexual conduct. The state sought enhanced penalties.

       Two public defenders (trial counsel) represented Fahey.            Trial counsel

contemplated whether to seek a mental competency examination for Fahey under Minn.

R. Crim. P. 20, but “found no basis either in their conversations with [Fahey] or in the

medical records” to suggest the need for an examination. Fahey pleaded guilty to all

charges except for one count of first-degree criminal sexual conduct.

       Before sentencing, Fahey dismissed trial counsel and hired a new attorney

(appellate counsel), who moved for a rule 20 examination. The district court explained

its reasons for denying the rule 20 motion:

              During various hearings in May and June of 2010 (May 6,
              May 13, May 20, June 3, June 10), and July 23, 2010, [trial]
              counsel informed the [c]ourt they were considering the need
              for a Rule 20 evaluation of [Fahey]. [Trial] [c]ounsel
              reviewed all medical records (which, the [c]ourt presumes,


                                              2
            are the same records which accompany the current motion)
            and had multiple opportunities to discuss the case with
            [Fahey]. On July 30, 2010, [trial counsel] informed the
            [c]ourt that [they] . . . found no basis either in their
            conversations with [Fahey] or in the medical records to
            warrant a Rule 20 evaluation. Neither the [c]ourt nor the
            [s]tate was aware of evidence to the contrary.

                    On December 16, 2010, [Fahey] appeared with [trial]
            counsel in a pre-trial [h]earing and waived his right to a jury
            trial. [Trial] counsel inquired of [Fahey] for approximately 8
            minutes and subsequently the [c]ourt inquired of [Fahey] for
            an additional 10 minutes. There is no evidence during this
            [h]earing that [Fahey] was suffering from a mental illness
            such that he was incapable of understanding the proceedings.
            His answers to both direct and leading questions indicated he
            did understand the proceedings and was able to participate
            with his attorneys during the proceedings.

                   On the first day of trial, January 25, 2011, [Fahey]
            entered a plea of guilty to the offense as noted in the record
            with the exception of the heinous element and aggravating
            sentencing factors. During this hearing, the [c]ourt and [trial]
            counsel questioned [Fahey] for approximately 40 minutes.
            [Fahey] answered all questions appropriately and
            understandably.      [Fahey’s] conduct during this hearing
            indicated he was able to understand the proceedings and to
            participate in the proceedings with his attorney[s].

                   [Fahey] has presented no new evidence to indicate
            that, since the January 25, 2011 [h]earing, [he] is now
            suffering from a mental illness or is so mentally deficient
            such that he cannot participate in the sentencing portion of
            this proceeding. All medical evidence pre-dates the filing of
            criminal charges and was available to the [c]ourt and counsel
            from the beginning of this case.

      The district court determined that aggravated sentencing factors existed and

imposed concurrent sentences of 202 months on the criminal sexual predatory conduct




                                           3
offense and 404 months on the first-degree criminal sexual conduct offense, both double

durational departures from the presumptive guidelines sentences.

       On direct appeal, Fahey argued that the district court erred by refusing to order a

rule 20 examination.     We upheld the district court’s determination that no rule 20

examination was warranted, and concluded that, even if warranted, the rule 20 motion did

not satisfy the requirements of the rule.      State v. Fahey, No. A11-1760, 

, at *3 (Minn. App. July 30, 2012). We noted that “[t]he fatal weakness of

Fahey’s request . . . is that it is simply too late. In essence, Fahey’s [appellate counsel],

who was brought into the case after Fahey’s guilt was determined, is second-guessing the

strategy of Fahey’s [trial counsel].” 

 We also said that “Fahey’s mental-health history

was well known to both his [trial counsel] and to the district court. The record suggests

that Fahey could not develop and present evidence that would satisfy a mental-illness

defense.” Id. at *4. Moreover, we reviewed Fahey’s conduct during the crimes and

concluded that his actions suggested that he “knew that he was committing a wrongful

act.” Id.

       Approximately three years later, on March 20, 2013, Fahey was civilly committed

as mentally ill. He was diagnosed as having “Psychosis NOS, rule out Schizophrenia,

rule out Bipolar disorder,” and demonstrating grossly disturbed behavior or faulty

perceptions when not medicated, including “severe disorganized and delusional

behaviors.”

       Fahey petitioned for postconviction relief on July 19, 2013, seeking to vacate his

conviction or modify his sentence, arguing ineffective assistance of trial and appellate


                                             4
counsel, and newly discovered evidence.         The district court summarily denied the

petition, concluding that trial counsels’ decision not to seek a rule 20 examination was

strategic and did not show ineffective assistance of counsel; that while appellate

counsel’s failure to present mitigating factors related to Fahey’s mental illness for

sentencing purposes may have fallen below the objective standard for attorney

performance, appellate counsel’s failure would not have altered the duration of Fahey’s

sentence; and that the alleged new evidence either came into existence after Fahey was

sentenced or was cumulative of other evidence of Fahey’s mental illness.

                                     DECISION

       An appellate court “review[s] the denial of postconviction relief for an abuse of

discretion,” reviewing legal conclusions de novo and factual findings for clear error.

Greer v. State, 

 (Minn. 2013).           A postconviction petition is

procedurally barred, following direct appeal, for any claim “known but not raised,”

unless the claim should be heard in the interests of justice or because a novel legal issue

is presented. State v. Knaffla, 

, 

 (1976); see

Powers v. State, 

 (Minn. 2007) (listing Knaffla exceptions); see also

, subd. 1 (2012) (“A petition for postconviction relief after a direct

appeal has been completed may not be based on grounds that could have been raised on

direct appeal of the conviction or sentence.”); Quick v. State, 

(Minn. 2005) (“Knaffla also bars claims that should have been known at the time of direct

appeal.”).   The district court must grant an evidentiary hearing on a petition for

postconviction relief “[u]nless the petition and the files and records of the proceeding


                                            5
conclusively show that the petitioner is entitled to no relief[.]” 

,

subd. 1 (2012).

Ineffective-counsel claims

          Appellate courts analyze postconviction ineffective-assistance-of-counsel claims

“under the two-prong test set forth in Strickland v. Washington, 

, 

, [2064] (1984).” Andersen v. State, 

 (Minn. 2013). “[T]o

receive an evidentiary hearing on a postconviction claim of ineffective assistance of . . .

counsel, a defendant is required to allege facts that, if proven by a fair preponderance of

the evidence, would satisfy the two-prong test announced in Strickland.” State v. Nicks,

 (Minn. 2013) (quotation omitted). Under Strickland, “an appellant

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness, and that a reasonable probability exists that the outcome would have

been different but for counsel’s errors.” Dereje v. State, 

 (Minn.

2013) (quotation omitted). Counsel is held to an objective standard of reasonableness of

“the customary skills and diligence that a reasonably competent attorney would perform

under similar circumstances.” State v. Hokanson, 

 (Minn. 2012)

(quotation omitted), cert. denied, 

 (2013). “Because claims of ineffective

assistance of counsel are mixed questions of law and fact, [appellate courts] review the

postconviction court’s legal conclusions on such questions de novo.” Nicks, 

.

          Normally, counsel is given “wide latitude” in determining trial strategy. 

. “The extent of counsel’s investigation is considered a part of trial strategy.” Opsahl


                                              6
v. State, 

 (Minn. 2004). But a petitioner may establish a claim of

ineffective-assistance of counsel when “counsel’s conduct . . . suggest[s] that [the] failure

to investigate thoroughly resulted from inattention, not reasoned strategic judgment.”

Wiggins v. Smith, 

, 

 (2003) (cited in Nicks, 

).

       As to trial counsel, Fahey asserted only broad allegations that they should have

done more to investigate his mental-health status before deciding not to pursue a rule 20

examination. But trial counsel did investigate whether to advance a rule 20 motion, and

the district court found that

              counsel reviewed all medical records . . . and had multiple
              opportunities to discuss the case with [Fahey]. On July 30,
              2010, one of [trial counsel] informed the [c]ourt that [they]
              found no basis either in their conversations with [Fahey] or in
              the medical records to warrant a rule 20 evaluation. Neither
              the [c]ourt nor the [s]tate was aware of evidence to the
              contrary.

The district court also reviewed the opportunities that trial counsel and the court had to

interact with Fahey during hearings and concluded that Fahey was fully able to

participate in the proceedings. In addition, trial counsel were likely aware that facts

surrounding the crime itself showed evidence of Fahey’s mental competency, including

his stalking the victim, threatening her to gain compliance, completing the crime in

isolation, preventing the victim from knowing her whereabouts or using her cell phone,

and apologizing to the victim after the crime. This record does not demonstrate that trial

counsel’s representation fell below an objective standard of reasonableness or




                                             7
competence under Strickland. Thus, the district court did not abuse its discretion by

summarily denying Fahey’s postconviction petition as to trial counsels’ representation.

       Fahey’s first appellate counsel began representing him posttrial but before

sentencing, through direct appeal. Appellate counsel moved for a rule 20 examination,

but did not seek a reduction in Fahey’s sentence for mental-health reasons or appeal the

aggravated sentence, which, at 404 months, was at the extreme upper end of the

sentencing range for a first-time offender. While the district court found that appellate

counsel’s representation was unreasonable under Strickland, it also found that the second

Strickland prong of was not satisfied because Fahey could not show that but for appellate

counsel’s performance, his sentencing outcome would have been different.

       A district court’s decision to depart from the sentencing guidelines will be

reversed only if the court abused its discretion. State v. Oberg, 

(Minn. App. 2001), review denied (Minn. Aug. 22, 2001). The district court must weigh

the reasons for and against a sentencing departure, State v. Curtiss, 

, 263-

64 (Minn. App. 1984), including the consideration of mental illness as a mitigating

factor. State v. Sanford, 

 (Minn. App. 1990), review granted (Minn.

Feb. 28, 1990), and order granting review vacated (Minn. Mar. 22, 1990). But the

district court is not required to grant a departure just because a mitigating factor exists.

Oberg, 

.

       Further, to be used as a mitigating factor at sentencing, “a defendant’s impairment

must be extreme to the point that it deprives the defendant of control over his actions.”

State v. McLaughlin, 

 (Minn. 2007) (quotation omitted).                In


                                             8
McLaughlin, the supreme court concluded that the defendant’s mental impairment was

not of the severity required for use as a mitigating sentencing factor on multiple homicide

convictions because the mental impairment “was only a subtle form of schizophrenia and

was not an extreme mental illness.” 

 (quotation marks omitted). Likewise, at the time

of sentencing, Fahey’s mental condition, while serious, fell short of demonstrating that he

lacked control over his actions.1 Thus, although appellate counsel should have argued for

a mitigated sentence due to Fahey’s mental condition, the failure to do so did not amount

to ineffective assistance of counsel under Strickland.

       Further, Fahey cannot satisfy the second prong of Strickland. Even if the district

court had fully realized the extent of Fahey’s mental condition, Fahey cannot show that

this mitigating factor would have altered the district court’s exercise of discretion at

sentencing.   The act of imposing sentence is a pure exercise of a district court’s

discretion, and a court is given great leeway at sentencing, as long as the sentence

imposed is within the ranges provided by the sentencing guidelines and the criminal

statutes. See State v. Olson, 

 (Minn. 1982) (stating that sentencing

“within the limits prescribed by the legislature is purely a judicial function”). Given that

the district court found Fahey’s crimes to be both heinous and aggravated for sentencing

purposes, and given that the district court was apprised of Fahey’s then-mental condition,

we cannot conclude that a deeper awareness of Fahey’s mental condition would have

1
  Fahey’s mental-illness history is documented in his presentence investigation report and
includes an August 2009 diagnosis of psychosis, amphetamine-induced psychosis, and
depression, and notes earlier diagnoses of “rule out bipolar disorder, rule out
schizophreniform disorder, cognitive disorder, . . . personality disorder . . . with antisocial
personality disorder features.”

                                              9
made any difference to the district court in imposing sentence. In the memorandum

attached to its order denying Fahey’s postconviction petition, the district court, the same

judge who sentenced Fahey, suggested that any effort by Fahey to buttress the district

court’s knowledge of Fahey’s mental condition would have made no difference in the

district court’s sentencing decision. Under these circumstances, Fahey cannot meet the

second Strickland prong.      Thus, the district court did not abuse its discretion by

summarily denying Fahey’s postconviction claim of ineffective assistance of counsel.

Sentencing issues

       In a related argument, Fahey asserts that the district court abused its discretion at

sentencing and in denying his postconviction petition by “fully consider[ing] aggravating

factors [at sentencing], [while] wholly disregard[ing] substantial and compelling

mitigating factors.”

       We reject this argument for several reasons. First, Fahey failed to raise any

sentencing issue on direct appeal, and the issue is therefore procedurally barred under

Knaffla. Second, any issues involving Fahey’s mental health were not raised by defense

counsel as a mitigating factor for sentencing purposes. Third, to the extent that Fahey’s

mental health was presented to the district court at the time of sentencing through

consideration of Fahey’s rule 20 motion, the district court rejected the notion that Fahey’s

mental illness entitled him to mitigation of sentence. See McLaughlin, 

 (stating that for mental illness to be used as a mitigating factor in sentencing, “a

defendant’s impairment must be ‘extreme’ to the point that it deprives the defendant of

control over his actions”). As the district court concluded in rejecting Fahey’s rule 20


                                            10
motion, Fahey’s actions during commission of the crimes do not show that any mental

impairment made him unable to control his actions. Rather, Fahey’s conduct shows

presence of mind and intent. And fourth, to the degree that Fahey was mentally impaired

on the date of the offenses, the record includes evidence that his impairment could have

been due to use of a controlled substance and not due to mental illness. Under these

circumstances, the district court did not abuse its discretion by rejecting this

postconviction claim.

Newly discovered evidence

      Fahey also argues that his postconviction civil commitment as a mentally ill

person constitutes newly discovered evidence that entitles him to a new trial. To be

granted a new trial because of newly discovered evidence, a petitioner must show

             (1)    [T]hat the evidence was not known to the defendant or
             his/her counsel at the time of trial; (2) that the evidence could
             not have been discovered through due diligence before trial;
             (3) that the evidence is not cumulative, impeaching, or
             doubtful; and (4) that the evidence would probably produce
             an acquittal or a more favorable result.

Evans v. State, 

 (Minn. 2010); see State v. Rhodes, 

 (Minn. 2003) (describing showing for third newly discovered evidence factor as

requiring the evidence to be “material”).        Each of the four requirements must be

demonstrated in order to receive a new trial. Rainer v. State, 

(Minn. 1997).

      The district court found that even if facts surrounding Fahey’s 2013 commitment

constituted newly discovered evidence, Fahey failed to “identif[y] any specific



                                            11
documents, reports, or other information that was knowable in 2011 and used in 2013,

but that were not actually known to the [t]rial and [appellate] [c]ounsels in 2011.” The

district court also found that all parties to 2011 proceedings were “well aware of

[Fahey’s] organic mental condition,” and that even if Fahey could provide new evidence

of that condition, he could not meet the required showing that any such evidence was not

cumulative. In addition to these findings, it also appears that all evidence Fahey wished

to be known about his mental condition could have been discovered through due

diligence before trial. As early as at the time of his plea petition, Fahey stated that he had

been a patient in a mental hospital and had been treated by a psychiatrist, and at his plea

hearing he stated that he was bi-polar, was taking five different medications, and had

been on those medications for five years. Finally, new evidence of Fahey’s mental

condition would not have altered the result of Fahey’s trial because of the high standard

of proof required to excuse his conduct or mitigate his sentence.

       Finally, as a separate issue, Fahey argues that his sentence does not comport with

constitutional due process because it is fundamentally unfair to impose sentence on a

person without knowing the extent of his mental illness. He contends that his sentence

should be vacated or remanded for this reason. He also asserts that 

 (2012), which permits a court to place an offender with a serious and persistent

mental illness on probation rather than commitment to imprisonment, should have

applied in his case.




                                             12
       We reject Fahey’s constitutional argument for the reasons enumerated above. In

addition, we decline to consider constitutional issues that are “raised for the first time on

appeal . . . .” State v. Williams, 

 (Minn. 2011).

       Affirmed.




                                             13
CLEARY, Chief Judge (concurring in part, dissenting in part)

       I concur with the majority opinion that appellant’s trial counsel did not provide

ineffective assistance by declining to pursue a rule 20 evaluation.             The record

demonstrates that a rule 20 evaluation was contemplated but after trial counsel had an

opportunity to investigate appellant’s medical history and after both the attorneys and the

district court had opportunities to interact with appellant, it was determined that an

evaluation was not warranted.      I therefore concur with the majority’s decision that

appellant’s guilty plea should stand.

       But I respectfully dissent from the decision that the district court did not abuse its

discretion by summarily denying postconviction relief on appellant’s claim that his

sentencing and appellate counsel was ineffective. In my opinion, appellant has shown

that he received ineffective assistance from his attorney during sentencing and on direct

appeal. To show ineffective assistance of counsel, a defendant “must affirmatively prove

that his counsel’s representation ‘fell below an objective standard of reasonableness’ and

‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Gates v. State, 

 (Minn. 1987) (quoting Strickland v. Washington, 

, 

 (1984)). The “objective standard of reasonableness” is defined as

“representation by an attorney exercising the customary skills and diligence that a

reasonably competent attorney would perform under similar circumstances.” State v.

Vang, 

 (Minn. 2014) (quotations omitted).                 “A reasonable



                                           C/D-1
probability means a probability sufficient to undermine confidence in the outcome.”

Dereje v. State, 

 (Minn. 2013) (quotations omitted).

       Initially, appellant received ineffective assistance of counsel at the sentencing

hearing. As the district court determined, sentencing counsel’s representation fell below

an objective standard of reasonableness in that he failed to raise or argue any mitigating

sentencing factors to attempt to offset the aggravating sentencing factors. Notably, he

failed to argue that a mental impairment justified a lesser sentence, even though he

claimed during that same hearing that a rule 20 evaluation was appropriate to assess

appellant’s mental condition. See Minn. Sent. Guidelines II.D.2.a.(3) (2009) (stating that

a mitigating factor that may be used as reason for a sentencing departure is that “[t]he

offender, because of physical or mental impairment, lacked substantial capacity for

judgment when the offense was committed”). When it denied the postconviction petition,

the district court stated that any argument on mitigating circumstances would not have

altered appellant’s sentences. This statement was made after the fact, and it is unclear

how this can be known to any degree of certainty. I believe that there is at least a

reasonable probability that appellant’s sentences would have been different if mitigating

circumstances had been presented and argued at sentencing.

       Sentencing counsel’s representation also fell below that of a reasonably competent

attorney when he apparently confused a civil commitment for sex-offender treatment

with a civil commitment for treatment of a mental illness. Sentencing counsel argued

that, because of appellant’s mental illness, the district court should follow the suggestion

in the presentence-investigation report that a commitment referral be made. That report

                                          C/D-2
discussed a potential referral under 

 (2010), for commitment to the

Minnesota Sex Offender Program.

      Appellant’s counsel’s representation on appeal also fell below an objective

standard of reasonableness in two ways. First, appellate counsel made inconsistent and

ineffective arguments on appeal. As indicated in this court’s opinion from the direct

appeal, appellant argued in his appellate brief that the district court erred by not

permitting him to withdraw his guilty plea, even though he had propounded an entirely

different argument in district court, where he claimed that a rule 20 examination should

be ordered to ensure that he understood the sentencing proceedings. See State v. Fahey,

No. A11-1760, 

, at *2 (Minn. App. July 30, 2012). Appellant then

suggested during oral argument on appeal that a rule 20 examination should have been

ordered to explore a defense of mental illness or deficiency. 

 This court characterized

appellant’s arguments as “a moving target.” 

      Second, and perhaps most egregiously, appellate counsel’s representation fell

below an objective standard of reasonableness when he failed to appeal appellant’s

sentences, which were double durational departures from the presumptive guideline

sentences on top of a life sentence. Appellant received a life sentence for first-degree

criminal sexual conduct due to the district court’s finding that the crime involved a

“heinous element” in that appellant “without the [victim’s] consent, removed [her] from

one place to another and did not release [her] in a safe place.”         See 

, subds. 1(d)(8), 3(a) (2010). The district court then imposed a sentence for

criminal sexual predatory conduct that was a double departure from the sentencing

                                         C/D-3
guidelines and imposed a minimum term of imprisonment for first-degree criminal sexual

conduct that was also a double departure from the sentencing guidelines. The district

court’s justification for departure relied on factors similar to those considered when the

court determined that appellant committed a crime that involved a “heinous element,”

namely that appellant took the victim by force and that he released her in an unknown

location that was not a safe place. Thus appellant’s sentence for first-degree criminal

sexual conduct was enhanced twice based on very similar aggravating factors. Had

appellate counsel challenged the sentences on direct appeal, there is a reasonable

probability that this court would have held that the extreme sentences were

disproportional to the offenses and would have ordered modification of the sentences.

See, e.g., State v. Smallwood, 

 (Minn. 1999) (stating that an

appellate court’s decision whether to modify a sentence is based on its “collective

collegial experience in reviewing a large number of criminal appeals from all the judicial

districts”) (quotation omitted); State v. Goulette, 

 (Minn. 1989)

(modifying a sentence that unfairly exaggerated the criminality of the defendant’s

conduct); State v. Schantzen, 

 (Minn. 1981) (stating that an

appellate court may modify a departure if it has a strong feeling that the sentence

imposed is disproportional to the severity of the offense and the extent of the offender’s

criminal history). Instead, appellate counsel’s failure to appeal the sentences barred a

postconviction challenge to the sentences. See 

, subd. 1 (2012) (“A

petition for postconviction relief after a direct appeal has been completed may not be

based on grounds that could have been raised on direct appeal of the conviction or

                                         C/D-4
sentence.”); State v. Knaffla, 

, 

 (1976) (holding

that “where direct appeal has once been taken, all matters raised therein, and all claims

known but not raised, will not be considered upon a subsequent petition for

postconviction relief”).

       Appellant’s counsel’s representation fell below that of a reasonably competent

attorney in crucial ways during sentencing and on direct appeal. Because I believe that

appellant’s sentences would have been different absent counsel’s errors, I would reverse

and remand for resentencing.




                                         C/D-5