This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-879

 

 

Lorenzo (NMN) Johnson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed October 31, 2000

Affirmed

Peterson, Judge

 

 

†Ramsey County District Court

File No. K895831

 

 

Lorenzo Johnson, 1101 Linden Lane, Faribault, MN† 55021 (pro se appellant)

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN† 55103-2106; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN† 55102-1657 (for respondent)

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Willis, Judge.

U N P U B L I S H E D†† O P I N I O N

 

PETERSON, Judge

††††††††††† Appellant Lorenzo (NMN) Johnson pleaded guilty to second-degree felony murder and first-degree assault and was sentenced pursuant to a plea agreement to consecutive sentences.† In his third petition for postconviction relief, Johnson, acting pro se, asserted that (1) his sentence should be modified because the trial court erred by imposing consecutive sentences without making sufficient findings supporting the departure; and (2) he should be allowed to withdraw his guilty plea because it was not knowingly and intelligently entered due to his failure to understand the difference between consecutive and concurrent sentencing.† The district court summarily denied Johnsonís petition.† We affirm.

FACTS

††††††††††† In March 1995, Johnson stabbed two men, killing one and seriously wounding the other.† Johnson pleaded guilty to second-degree felony murder in violation of Minn. Stat. ß 609.19(2) (1994) and first-degree assault in violation of Minn. Stat. ß 609.221 (1994).† Pursuant to the plea agreement, Johnson was sentenced to executed consecutive terms of 150 months and 86 months (a total of 19 years, 8 months) and ordered to pay restitution.

††††††††††† In October 1995, Johnson, with the assistance of counsel, petitioned for postconviction relief, seeking to withdraw his plea on the basis of ineffective assistance of trial counsel.† He also challenged the consecutive sentences on the ground that they unfairly exaggerated the criminality of his conduct.† Following an evidentiary hearing, the postconviction court denied relief on both grounds.† This court affirmed.† Johnson v. State, C6-96-597 (Minn. App. Sept. 3, 1996), review denied (Minn. Oct. 15, 1996).

††††††††††† In December 1996, Johnson, acting pro se, brought a second petition for postconviction relief in which he requested that his convictions and sentences be vacated on grounds that (1) in the first postconviction proceeding, he had been denied effective assistance of counsel; and (2) restitution was not part of the plea agreement.† The district court summarily denied relief and Johnson appealed.† This court affirmed.† Johnson v. State, C6-97-559 (Minn. App. Sept. 9, 1997), review denied (Minn. Oct. 31, 1997).

††††††††††† In December 1999, Johnson, again acting pro se, brought a third petition for postconviction relief, arguing that (1) his sentence should be modified because the trial court erred in sentencing him to a consecutive sentence without making sufficient findings supporting the departure; and (2) he should be allowed to withdraw his guilty plea because he did not understand the consequences of the plea agreement regarding the differences between consecutive and concurrent sentences.† The district court summarily denied relief.† The court found that Johnsonís petition was nothing more than a rewording of his previous petitions, which had both been denied, and that the denials had been affirmed by the court of appeals.


D E C I S I O N

††††††††††† This courtís scope of review of a postconviction proceeding is limited to determining whether the evidence is sufficient to sustain the findings of the postconviction court.† Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991).† Absent an abuse of discretion, the reviewing court will not disturb the postconviction courtís decision.† Id.

The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.

 

Minn. Stat. ß 590.04, subd. 3 (1998); see also Crisler v. State, 520 N.W.2d 22, 24 (Minn. App. 1994) (where postconviction petitioner brings second or successive petition for similar relief, district court may summarily deny relief), review denied (Minn. Sept. 28, 1994).

††††††††††† Johnson first argues that the district court erred by summarily dismissing his petition because the petition asserts that he was denied his constitutional rights and he has not waived the rights he claims were violated.† Therefore, he contends, the petition could not be summarily dismissed without affording him his due process right to have the petition adequately heard.† Johnson does not state what procedure would have ensured that his petition was adequately heard.† However, because a hearing in the postconviction court is the only procedure available in a postconviction proceeding that was not provided to Johnson, we presume that his claim is that the district court erred by denying his petition without conducting a hearing on the petition.

††††††††††† An evidentiary hearing is not required unless facts are alleged that, if proven, would entitle the petitioner to relief.† Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).† Johnson has not identified facts alleged in his petition that, if proven, would entitle him to relief.† The district court did not abuse its discretion by not conducting a hearing on Johnsonís petition.

1.   Consecutive Sentencing

††††††††††† Johnson argues that he was denied due process of law and fair notice as guaranteed by the Minnesota and United States Constitutions when the sentencing court made an upward departure from the sentencing guidelines by imposing consecutive sentences without making findings demonstrating that substantial and compelling circumstances existed to justify the departure.† Johnson claims that consecutive sentences arising from a single course of conduct, even with two victims, is a departure from the guidelines.†

††††††††††† In Johnsonís appeal from the first order that denied him postconviction relief, he argued that consecutive sentences unfairly exaggerated the criminality of his conduct and that the sentencing court improperly failed to consider his belief that he was acting in self-defense.† Johnson v. State, No. C6-97-597, 1996 WL 495061, at *1 (Minn. App. Sept. 3, 1996), review denied (Minn. Oct. 15, 1996).† In this case, Johnson again challenges the validity of the consecutive sentences, arguing that they are a durational departure, which required the sentencing court to make findings of fact and provide written reasons that support the departure.†

††††††††††† Although Johnson now argues that he has a constitutional right to be sentenced according to with the sentencing guidelines, his argument is simply another presentation of an issue that was decided by this court in his first postconviction appeal.† In the first postconviction appeal, this court concluded that under the sentencing guidelines, consecutive sentences are permissive when a defendant is convicted of multiple felonies committed against different persons. Id. at *2.† Because Johnson requested the same relief in the current proceeding that was requested in his first postconviction petition, and this court decided in the first postconviction proceeding that ď[t]he postconviction court here was within its discretion in affirming imposition of the consecutive sentences,Ē the trial court did not abuse its discretion by summarily denying Johnsonís renewed challenge to the propriety of the consecutive sentences.

2.   Validity of Guilty Plea

††††††††††† Johnson argues that his guilty plea was constitutionally invalid because he made it without intelligent knowledge of its consequences.† Johnson contends that he failed to understand the consequences of the plea agreement because no one informed him about the difference between consecutive and concurrent sentences.

††††††††††† This argument is a restatement of the ineffective assistance of counsel argument raised in Johnsonís first petition for postconviction relief.† In his first petition, Johnson alleged that his attorney failed to explain his rights and options thoroughly and failed to explain the plea agreement to him properly.† Id. at *1.† Johnsonís argument in this appeal merely focuses on one element of the plea agreement that Johnson claims he did not understand.†† On appeal in the first postconviction proceeding, this court concluded:

†††† The record in this case amply supports the postconviction courtís finding that [Johnson] was adequately represented.† Perhaps most notable is the undisputed fact that [Johnson] signed the petition and acknowledged on the record that he understood it and its finality.† Contrary to his claims, he was given the opportunity to ask questions and he declined to do so.† The postconviction court was also well within its discretion in crediting [Johnsonís] counselís testimony indicating that [Johnson] has been adequately represented throughout the proceedings.

 

Id. at *2.

††††††††††† Because this court has previously decided that Johnson was adequately represented by counsel, the district court did not abuse its discretion by summarily denying Johnsonís petition for postconviction relief based on his assertion that his attorney failed to explain the difference between consecutive and concurrent sentencing.†

††††††††††† Affirmed.