IN COURT OF APPEALS
Robert Alan Black, petitioner,
Filed January 9, 2007
Hubbard County District Court
File Nos. K0-00-318, K9-01-638
John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant
Lori R. Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Street, Park Rapids, MN 56470 (for respondent)
Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Ross, Judge.
S Y L L A B U S
The threat of great bodily harm or death is not an element of first-degree witness tampering; therefore, it can be used as an aggravating factor in sentencing for first-degree witness-tampering convictions.
O P I N I O N
On appeal from an order denying a postconviction petition, appellant argues that (1) consecutive sentencing was a departure that was not properly supported by offense-related aggravating factors, and (2) his failure to cooperate with the PSI, to appear for sentencing, and to abide by his conditions of release were all offender-related factors that cannot be used to support the departure. We affirm.
In May 2000, appellant Robert Alan Black was charged with first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subd. 2a (1998). In September 2001, appellant was charged with two counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000), after threatening an individual he believed was going to testify against him in the pending drug case. The complaint was amended to first-degree tampering with a witness, in violation of Minn. Stat. § 609.498, subd. 1(a) (2000).
On October 31, 2001, appellant
entered an Alford plea to both
charges. Under the plea agreement,
appellant was to be sentenced to 81 months in prison on the drug charge with
concurrent time on the witness-tampering charge. The presumptive sentences were a commitment
of 86 months (range of 81 to 91 months) in prison on the drug charge, and a
concurrent, stayed sentence of 28 months on the witness-tampering charge. If the sentences were run consecutively (a
departure), the sentence on the witness-tampering charge would be 18 months in
prison. When appellant presented his plea,
the district court explained that it did not accept the plea agreement relative
to the contemplated sentence and would exercise discretion regarding the
sentence. Because a presentence
investigation had not been completed, sentencing was scheduled for a later
date. The district court did not accept
the sentencing terms but stated that it would consider following the negotiated
plea at sentencing if no aggravating circumstance occurred between the date of
the plea agreement and sentencing or that there were no aggravating
circumstances that appellant had not yet disclosed. In receiving the plea, the district court
further stated, “If you proceed with the plea and I do find aggravating
circumstances, then I will not allow you to withdraw your plea at a later
date.” Appellant failed to appear for
the PSI and sentencing, and was arrested in
In September 2002, the district court found aggravating circumstances: appellant failed to cooperate with the PSI, failed to appear for sentencing, and failed to abide by the conditions of release. Appellant was sentenced to 91 months on the drug conviction and 18 months, consecutive, on the witness-tampering conviction. No direct appeal was filed.
In February 2005, appellant filed a pro se petition for postconviction relief seeking to withdraw his plea. In April 2005, the state public defender’s office also filed a petition on appellant’s behalf arguing that appellant’s sentences should run concurrently because the reasons for the departure related to a dispositional departure not a durational departure. Following a hearing, the district court denied both petitions and determined that an additional aggravating factor supported the consecutive sentencing departure. This appeal follows.
I. Did the district court abuse its discretion in not allowing appellant to withdraw his guilty plea?
II. Did the district court abuse its discretion in ordering appellant’s sentence on the drug conviction to run consecutively to the witness-tampering conviction?
criminal defendant may seek postconviction relief under Minn. Stat. § 590.01,
subd. 1 (2004). The petitioner bears the
burden of establishing facts alleged in the petition by a fair preponderance of
Appellant argues that the district
court abused its discretion in not allowing him to withdraw his guilty plea
when he was not sentenced pursuant to the plea agreement. We will “reverse the district
court’s determination of whether to permit withdrawal of a guilty plea only if
the district court abused its discretion.”
Bolinger v. State, 647 N.W.2d
16, 20-21 (
Here, the district court ruled that appellant’s request
was untimely and he failed to show that the withdrawal was necessary to correct
a manifest injustice. While there is no
established time limit barring motions for withdrawal of a guilty plea, such
motions should be “made with due diligence, considering the nature of the
allegations therein.” Chapman v. State, 282
Appellant also argues that the district court abused its
discretion in denying his request because he had an absolute right to withdraw
his guilty plea when the plea agreement was not followed. The district court is vested with broad
discretion in determining whether a defendant is allowed to withdraw his guilty
plea. State v. Kunshier, 410 N.W.2d 377, 379 (
Appellant argues that the district
court abused its discretion in using aggravating factors unrelated to the
crimes to justify consecutive sentencing.
A district court has broad discretion to depart from the presumptive
sentence under the sentencing guidelines.
State v. Gassler, 505 N.W.2d
62, 69 (
“If reasons supporting the departure
are stated, this court will examine the record to determine if the reasons
given justify the departure.”
The reasons articulated by the court at sentencing
to justify the departure were appellant’s failure to (1) cooperate with the
PSI, (2) appear for sentencing, and (3) abide by the conditions of his release. These factors do not relate to appellant’s
offenses, but rather, to his behavior following sentencing. An upward durational departure must focus only on
offense-related factors and may not consider offender-related factors.
Appellant was originally charged with terroristic threats because he threatened to kill the individual he believed was going to testify against him in the pending first-degree drug case. Pursuant to the plea agreement, appellant pleaded guilty to the amended charge of tampering with a witness. Under Minn. Stat. § 609.498, subd. 1(a) (2000), whoever “intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person or property, a person who is or may become a witness from attending or testifying at any trial, proceeding, or inquiry authorized by law” is guilty of first-degree tampering with a witness. A death threat, that is specific and likely to be carried out, is not an element of the crime of first-degree tampering with a witness. The threat of great bodily harm or death is an element of the crime of aggravated first-degree tampering with a witness under Minn. Stat. § 609.498, subd. 1b(a) (2000) (“if the person causes or, by means of an implicit or explicit credible threat, threatens to cause great bodily harm or death to another . . . preventing or dissuading or attempting to prevent or dissuade . . . a witness from attending or testifying at any criminal trial or proceeding”), and terroristic threats, under Minn. Stat. § 609.713, subd. 1 (2000) (“[w]hoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or . . . in a reckless disregard of the risk of causing such terror.”). Appellant did more than intentionally prevent or dissuade or attempt to prevent or dissuade an individual from testifying against him by means of force or threats of injury. Appellant made an implicit credible threat to cause great bodily harm or death to the individual he believed was going to testify against him in the pending drug case. Because the threat of death is not an element of the crime of first-degree tampering with a witness, the district court did not abuse its discretion in using it as an aggravating factor in sentencing appellant. Therefore, the district court’s imposition of consecutive sentencing is affirmed.
D E C I S I O N
The district court’s finding that appellant’s request to withdraw his plea is untimely was not an abuse of discretion, and appellant knowingly and intelligently entered his guilty plea despite the district court’s warning that it did not accept the offered plea agreement relative to the negotiated sentence and that it would not allow him to withdraw his plea at a later date if the plea agreement was not followed. Further, because appellant threatened to cause great bodily harm or death, which are not elements of the crime of first-degree tampering with a witness, the district court did not abuse its discretion in using the death threats as an aggravating factor in sentencing appellant to an upward durational departure.