IN COURT OF APPEALS
Byron Kendall Lewis,
State of Minnesota,
Reversed and remanded
Washington County District Court
File No. K1-99-3806
John M. Stuart, State Public Defender, Ngoc Nguyen,
Assistant Public Defender,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Doug Johnson, Washington County Attorney, Heather Pipenhagen, Assistant County Attorney, 14949 - 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)
Considered and decided by Randall, Presiding Judge; Minge, Judge; and Crippen, Judge.*
1. Possession of a firearm by a felon under Minn. Stat. § 624.713, subd. 1(b) (2000) is not a crime against a person that would allow for the permissive imposition of consecutive sentences under the guidelines.
2. When a pro se petitioner initiating a postconviction proceeding has a right to be represented by the public defender, petitioner’s right to counsel is violated when the court fails to notify the petitioner of his possible right to a public defender.
Appellant challenges the denial of his pro se petition for postconviction relief. Because appellant’s consecutive sentences were a departure from the sentencing guidelines entitling him to representation by a public defender and because the postconviction court violated appellant’s right to counsel by not properly informing appellant of the existence of this right, we reverse and remand.
In November 1999,appellant Byron Lewis was charged with two counts of first degree aggravated robbery, ten counts of second degree assault, ten counts of kidnapping, two counts of theft over $2500, and two counts of felon in possession of a pistol. These charges arose from multiple robberies of movie theaters with a handgun.
On January 18, 2000,
appellant pleaded guilty to one count of first degree aggravated robbery in
violation of Minn. Stat. §609.245, subd. 1 (2000) and one count of felon in
possession of a firearm in violation of Minn. Stat. §§ 609.11 (2000) and
624.713, subd. 1(b) (2000). As part of
the plea agreement all other charges in
Appellant filed a pro se petition for postconviction relief on March 26, 2004, seeking to withdraw his guilty plea. A copy of this petition was sent to the state public defender’s office. On June 7, 2004, the postconviction court filed an order denying appellant’s petition without a hearing. The order held that appellant had been represented by counsel at all times and the record clearly showed that appellant understood the sentences were to be consecutive and therefore waived his right to be sentenced under the guidelines. On June 17, 2004 (after the hearing), the state public defender’s office sent a letter to the court requesting to file a supplemental memorandum in the matter. On June 21, 2004, the postconviction court denied the request because an order had already been filed disposing of the matter. The denial of the petition for postconviction relief was appealed to this court.
I. Did the district court depart from the sentencing guidelines by imposing consecutive sentences?
II. Did the district court err in failing to notify appellant of his right to a public defender before denying his petition for postconviction relief?
A postconviction court’s findings are reviewed to determine
whether there is sufficient evidence in the record to support them. Dukes v. State, 621 N.W.2d 246, 251 (
The first issue is whether imposing
appellant’s sentences consecutively was a departure from the sentencing
guidelines. Unless it falls into one of
the exceptions, the imposition of consecutive sentences is a departure from the
Minnesota Sentencing Guidelines do not define what constitutes a crime against
a person. Under
The state contends that possession of a firearm by a felon is a crime against a person. While it is true that an individual must have been convicted of a crime of violence to be restricted from possessing a firearm under Minn. Stat. 624.713, subd. 1(b) (2000), and that possession of a weapon by a felon is considered a violent crime for purposes of increased sentences under Minn. Stat. §609.1095, subd. 1(d) (2000), classification of possession of a firearm as a violent crime does not necessarily make it a crime against a person. Here, the use of the weapon during the commission of the crime is included in the elements of appellant’s aggravated first-degree robbery conviction. See Minn. Stat. §609.245, subd.1 (2000). Unlike Myers or Notch,the separate charge for possession of a firearm by a felon does not include any threat to a person and is not directed against a person. The underlying crime is just possession of a firearm. There is no requirement that it be “used.” Possession of a firearm by a felon, by itself, is not automatically a crime against a person. For this reason, sentencing appellant to consecutive sentences constituted a departure from the sentencing guidelines.
Notice of Public Defender
The next issue is whether the district court erred by denying appellant’s petition for postconviction relief without notifying appellant of his potential right to a public defender.
A person who is financially unable to obtain
counsel may apply for representation with the public defender.
In Paone v. State,
the petitioner for postconviction relief did not request a public defender, but
the court administrator neglected to forward a copy of the petition to the
state public defender’s office. 658
N.W.2d 896, 899 (
Here appellant is
entitled to be represented by a public defender because he did not have a
direct appeal and his guilty plea resulted in a sentence that was not the presumptive
sentence or a downward departure. See
The question, therefore, is whether appellant
had the right to have the court inform him of his right to have counsel
appointed for the postconviction petition.
The decision in Paone is consistent with a finding that appellant
has a right to be informed of the right to counsel. Paone
states that the right to counsel is an important right and concludes that the
court’s failure to notify counsel of
the case violated that right. 658 N.W.2d at 899-90. Importantly, our supreme court has stated
district court has a statutory duty to inform a petitioner that the petition
has been forwarded to the state public defender’s office.
We conclude the failure to communicate to appellant the possibility of representation by the public defender violated appellant’s right to counsel in the same way that the district court’s failure in Paone to forward the petition to the public defender’s office violated that petitioner’s right to counsel. Both kept a postconviction petitioner from becoming aware of his right to the assistance of counsel. See 658 N.W.2d 899-90.
Appellant also challenges his sentence on the
grounds that his waiver of his right to be sentenced under the sentencing
guidelines was not knowing, intelligent and voluntary as required by State
v. Givens. 544 N.W.2d 774, 777 (
We reverse and remand to allow appellant to start over in his postconviction proceeding, this time represented by the state public defender. We make no determination on the underlying merits of appellant’s case.
Imposing appellant’s sentences consecutively represented a departure from the guidelines. Appellant’s crime of possession of a firearm as a felon, was not a crime against a person.
Appellant was entitled to representation by a public defender on his petition for postconviction relief because he met the standard. The postconviction court did not communicate to appellant his right to court-appointed counsel. Thus, it became error for the district court to deny appellant’s unrepresented petition for postconviction relief. We therefore reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 It is not contested that aggravated first-degree robbery is a crime against a person.
 The rule
stated in Givens was modified by a later decision in State v.
Misquadace. 644 N.W. 2d 65 (