This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed September 5, 2000
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
U N P U B L I S H E D O P I N I O N
Appellant Joseph Anthony Favors challenges the district court's denial of his motion for postconviction relief, raising in his pro se brief allegations of error in his conviction and sentence. His appellate counsel requests an independent review of the record. We affirm.
An October 1996 complaint charged Favors with third-degree criminal sexual conduct, solicitation of a minor to engage in prostitution, false imprisonment and terroristic threats. The case was set for trial on March 31, 1997, at which time Favors requested a continuance in order to subpoena witnesses. At that time, Favors initially requested a different lawyer but dropped this request when told by the district court that if the public defender were discharged Favors would not be entitled to another public defender. The district court continued the trial date to April 7, 1997, but scheduled a hearing on April 1, 1997 for the sole purpose of getting a status report with respect to plea negotiations.
Favors appeared with counsel at the April 1, 1997 hearing and the parties presented a plea agreement. Favors would plead guilty to third-degree criminal sexual conduct and to solicitation of a minor, and the remaining counts would be dismissed. He would be sentenced to a total term of 90 months, and on completion of the executed sentence he would be placed on conditional release for 10 years. Prior to entering his pleas, Favors told the district court that he understood the plea negotiation, had sufficient time to discuss the plea negotiation with his attorney, and was satisfied with the advice and representation of his attorney. On June 3, 1997, Favors was sentenced pursuant to the terms of the plea agreement.
On January 25, 2000, Favors filed a pro se petition for postconviction relief, claiming that the trial court erred in sentencing and that the court violated his right to call witnesses by coercing him into accepting the plea agreement. On February 1, 2000, the district court denied Favors' petition for postconviction relief. On March 30, 2000, Favors, through counsel, filed a notice of appeal.
A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).
This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.
Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Favors' counsel requests that we independently review the record for any arguable issues that may support the appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967) (describing approved procedure when counsel concludes appeal would be non-meritorious).
In his pro se petition, Favors argued that the trial court erred in granting the one-week trial continuance and coerced him into accepting the plea agreement by threatening to force him to go to trial without an attorney. Favors' assertion that the trial court threatened to discharge his attorney and force him to trial without the assistance of counsel is not borne out in the record. Rather, the trial court explained that if it granted his request to discharge his public defender he would not be afforded another public defender. The trial court then granted Favors' motion for a continuance. There was no error by the trial court.
In his postconviction petition, Favors argued that the trial court erred in sentencing, challenging the 15-month upward departure and the 10-year conditional release. Favors asserts that two of the four grounds for the upward departure—that the victim became pregnant and that he had given juvenile victims marijuana for sex—were incorrect and inappropriate. Favors also complains that a fellow inmate in the Dakota County Jail received a lesser sentence for two counts of first-degree criminal sexual conduct. But the upward durational departure was agreed to by Favors as part of the plea negotiation and was based on grounds to which neither Favors nor his trial counsel stated any objection either at the time of the plea or at sentencing. The trial court imposed the 10-year conditional release as required by statute. There was no error in sentencing.
The district court did not err in accepting Favors' plea or in imposing the sentence as set out in the plea agreement. Other allegations of error are likewise without legal merit. We conclude that the denial of postconviction relief was not an abuse of discretion.