This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1314
Thomas Ardell Gentry, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed May 9, 2016
Affirmed
Schellhas, Judge
St. Louis County District Court
File No. 69DU-CR-13-545
Thomas Ardell Gentry, Red Wing, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Gary W. Bjorklund, Assistant County Attorney,
Duluth, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Schellhas,
Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges the denial of his postconviction petition in which he asserted
claims of prosecutorial misconduct and ineffective assistance of trial counsel. We affirm.
FACTS
Appellant Thomas Ardell Gentry was present in J.H.’s apartment when law
enforcement executed a warrant to search the apartment and discovered numerous
packages of cocaine. Respondent State of Minnesota charged Gentry with second-degree
controlled-substance crime (sale), and a jury found Gentry guilty. Gentry challenged his
conviction on direct appeal on the grounds of insufficient evidence and prosecutorial
misconduct. He argued in part that the prosecutor committed plain error that affected his
substantial rights by stating during closing argument: “[J.H.] is not the type of person who
is going to be selling thousands and thousands of dollars of crack cocaine from his
apartment. It’s consistent with someone who is allowing other people to do it to support
his [drug] habit.” We determined that this statement was an improper comment on
character and was error. See State v. Gentry, No. A14-0262, 2015 WL 1013561, at *5–6
(Minn. App. Mar. 9, 2015), review denied (Minn. May 19, 2015). But we concluded that
the prosecutor’s statement was not plain error because the statement was brief and defense
counsel and the prosecutor later informed the jury that character was not in question. Id. at
*6. We also concluded that the error did not affect Gentry’s substantial rights because the
evidence against him was sufficient, the prosecutor’s statement was brief in the context of
the entire trial, and defense counsel reminded the jury during closing argument that
Gentry’s character was not on trial. Id. We addressed Gentry’s remaining appellate
arguments and affirmed his conviction. Id. at *2–4, 7.
Gentry then filed a petition for postconviction relief, again challenging the
prosecutor’s statement about character and arguing that trial counsel provided ineffective
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assistance by failing to object to the statement. The district court determined that Gentry’s
postconviction claims were procedurally barred and denied his petition without a hearing.
This appeal follows.
DECISION
A summary denial of a petition for postconviction relief is reviewed for an abuse of
discretion. Carridine v. State, 867 N.W.2d 488, 492 (Minn. 2015). “A postconviction court
abuses its discretion when its decision is based on an erroneous application of the law or is
against logic and the facts in the record.” Nunn v. State, 868 N.W.2d 230, 232 (Minn.
2015).
“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.” Minn. Stat. § 590.01, subd. 1 (2014); see also Colbert v. State, 870 N.W.2d 616,
626 (Minn. 2015) (stating that under 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
known but were not raised in the direct appeal are procedurally barred” (emphasis
omitted)). Gentry argues again in this appeal that the prosecutor’s statement about character
was plain error that affected his substantial rights. This argument was raised, addressed,
and rejected on direct appeal, Gentry, 2015 WL 1013561, at *5–7, and is procedurally
barred.
Gentry also contends that defense counsel provided ineffective assistance by failing
to object to the prosecutor’s statement about character. “If a claim of ineffective assistance
of trial counsel can be determined on the basis of the trial record, the claim must be brought
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on direct appeal or it is Knaffla-barred.” Nissalke v. State, 861 N.W.2d 88, 93 (Minn. 2015).
“If, however, such a claim requires examination of evidence outside the trial record or
additional fact-finding by the postconviction court, such a claim is not Knaffla-barred
because the claim is not based solely on the briefs and trial court transcript.” Id. Gentry’s
ineffective-assistance-of-counsel claim involves only facts within the trial record, and the
claim is therefore procedurally barred. Even if the claim were not barred, “[g]enerally, [an
appellate court] will not review an ineffective-assistance-of-counsel claim that is based on
trial strategy,” State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014), and “[d]ecisions about
objections at trial are matters of trial strategy,” Leake v. State, 737 N.W.2d 531, 542 (Minn.
2007). We noted on direct appeal that defense counsel chose to address the statement about
character at the start of his closing argument rather than to object immediately. See Gentry,
2015 WL 1013561, at *5 (“Instead of objecting, Gentry’s defense counsel opened his
closing argument by stating . . . .”).
We conclude that the district court did not abuse its discretion by summarily denying
Gentry’s postconviction petition.
Affirmed.
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