This opinion will be unpublished and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,
George Cipriano Chavez,
Filed October 31, 2000
Ramsey County District Court
File No. K2991336
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
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
Appellant George Cipriano Chavez challenges his conviction of first-degree aggravated robbery, arguing that he was denied the right to effective assistance of counsel. Because we conclude that assistance of counsel was not ineffective, we affirm.
On May 9, 1999, after obtaining $40 from an automatic-teller machine, D.K. was beaten and robbed by a male and a female. The attack drew a crowd of about 10 to 15 people. Two of the observers summoned police officers who were at a nearby gas station; the police arrived at the scene “in a matter of seconds.” Bystanders pointed to the female robber, who had blood on her shirt, and reported that she aided in the assault on the victim. The male robber, later identified by two witnesses as Chavez, had already fled, taking D.K.’s cash, keys, and wallet.
Prior to trial, the state offered Chavez a plea bargain pursuant to which it would recommend a presumptive sentence in exchange for a plea of guilty to simple assault. The state indicated that if he declined the offer, it would amend the complaint to include a charge of first-degree aggravated robbery. Chavez’s counsel and, apparently, the prosecutor, believed that Chavez had five or six criminal-history points. Thus, when he was considering the plea agreement, Chavez understood that he had “five or six” criminal history points, which would have resulted in a presumptive sentence of 44 or 48 months, respectively. Chavez initially agreed to the state’s offer and signed a plea petition, but he later withdrew the petition and decided to go to trial. A jury convicted him of both counts.
Before sentencing, it was determined that Chavez’s criminal-history score was, in fact, three because some of his prior convictions had decayed and were too old to be included in the calculation of his score. Thus, the presumptive sentence under the plea agreement would have been 33 months.
Upon learning about the error in the estimation of his score and before sentencing, Chavez wrote a letter to the district court informing it that he was misinformed by the prosecutor and defense counsel that he had six criminal-history points resulting in a 48-month presumptive sentence. Chavez wrote that he would have accepted the plea agreement if he had been given the correct information. Chavez asked the court to vacate his conviction and allow him to accept the plea that was offered, on the ground that he had ineffective assistance of counsel. The district court denied Chavez’s request and sentenced him to 78 months in prison. Chavez appeals.
We must first determine whether Chavez can properly raise an ineffective-assistance-of-counsel claim on direct appeal. In a recent decision, the Minnesota Supreme Court said, “Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (citations omitted); see also State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000) (stating “the preferred method for raising a claim of ineffective assistance of counsel is in a postconviction proceeding before direct appeal”) (citation omitted). In Gustafson, the supreme court stated that a postconviction hearing provides the reviewing court with “additional facts to explain the attorney’s decisions,” which enables the court to properly consider whether the attorney’s performance was deficient. 610 N.W.2d at 321 (citation omitted). Because the record in Gustafson was “devoid of the information needed to explain the attorney’s decisions,” the court declined to reach the merits of the issue and preserved the appellant’s right to pursue a claim of ineffective assistance of counsel in a petition for postconviction relief. Id.
But this case does not require further development of the record. It is uncontested that both defense counsel and the prosecutor thought that Chavez had a criminal history score of five or six and that his presumptive sentence would be based on that score. The record also contains Chavez’s letter to the judge, written after he learned that his criminal-history score was three, raising a claim of ineffective assistance of counsel. And the record contains the transcript of the sentencing hearing at which the judge, defense counsel, and Chavez discussed the erroneous estimate of his criminal-history score. This record provides sufficient information for this court to consider Chavez’s ineffective-assistance-of-counsel claim on direct appeal.
(1) that the counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel’s errors, the outcome of the proceedings would have been different.
King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064-65 (1984)). “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (citation omitted).
In State v. Ferraro, this court held that the failure of defendant’s former counsel to correctly calculate the defendant’s criminal-history score was not a denial of effective assistance of counsel. State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987). In Ferraro, based on advice from his attorney that his criminal-history score was three, the defendant accepted a plea offer. Id. at 846. But the defendant also was told that his criminal-history score was uncertain until the Department of Corrections calculated it. Id. The defendant later learned that his criminal-history score was four and claimed ineffective assistance of counsel. Id. at 847. This court concluded that “[a]lthough this would have been a good case to request a pre-plea sentencing guidelines worksheet, the failure to do so was not incompetence.” Id. at 848.
The supreme court has also concluded that it is
unwilling to hold that a defendant must be questioned by the trial court at the time he enters his guilty plea to insure that he understands what the presumptive sentence is under the Minnesota Sentencing Guidelines. In a substantial number of cases, the prosecution, the defense counsel and the court must wait until after a pre-sentence investigation report has been prepared before they can accurately determine the presumptive sentence. This is true because frequently defendants do not know their own criminal history scores.
State v. Trott, 338 N.W.2d 248, 252-53 (Minn. 1983) (concluding that even though prosecutor and defense attorney thought that defendant would receive a probationary sentence under plea agreement and were unaware that guidelines called for executed sentence, defendant was not entitled to withdraw plea unless defense counsel “made an unqualified promise of probation” and promise was unfulfilled); see also State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984).
Finally, in State v. DeZeler, the supreme court distinguished “agreements as to sentence [from] agreements in which the prosecutor promises to recommend a certain sentence.” State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988). If the district court rejects an agreement to a particular sentence, the defendant is entitled to withdraw his plea. But if the district court rejects only a recommendation as to sentence, the defendant is not entitled to withdraw the plea absent some other ground for relief. Id. Here, the prosecutor merely agreed to recommend a guidelines sentence. Thus, even if Chavez had known that his presumptive sentence pursuant to the proposed plea agreement was 33 months, there is no guarantee that he would have received that sentence, and he would not have been able to withdraw his plea.
Thus, we conclude that it was not ineffective assistance for counsel to fail to determine precisely Chavez’s criminal-history score for purposes of a proposed plea agreement that included only a recommendation of a presumptive sentence.
Chavez’s pro se supplemental brief raises three additional claims, which are without merit. First, Chavez claims that the evidence was insufficient to sustain his conviction. Where there is a challenge to the sufficiency of the evidence, appellate review is limited to an analysis of the record to determine
whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted); see also State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury “could reasonably conclude that a defendant was proven guilty”). This court must view the evidence in the light most favorable to the state and must assume that the jury believed the state’s witnesses and disbelieved contradictory evidence. State v. Moore,438 N.W.2d 101, 108 (Minn. 1989).
The sole issue for trial was the identity of the robber. Chavez argues that his conviction should be reversed because only one witness was able to make a positive identification. But it is settled that a conviction may be based on the testimony of a single witness. See, e.g., Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984). And the record shows that Chavez was positively identified by two eyewitnesses, Juan Rodriguez and Patrel Wright. Their testimony alone is sufficient to support the conviction.
Second, Chavez argues that the prosecutor committed misconduct by improperly suggesting to the jury, during his opening argument, that “the police spoke with the defendant very briefly before he was arrested,” when in fact Chavez was not arrested the evening that police spoke with him but on the following day. A defendant is entitled to a new trial on the ground of prosecutorial misconduct only if the court determines that the prosecutor’s comments were improper and that those comments played a substantial part in influencing the jury to convict. State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994) (stating test for less serious prosecutorial misconduct). Even if the prosecutor’s statement here is misleading, it makes little difference whether Chavez was arrested the evening the crime was committed or the following day. This statement does not constitute misconduct.
Third, Chavez argues that the district court improperly admitted his alleged accomplice’s bloodstained shirt into evidence without requiring her to testify, thereby violating his Sixth Amendment right to confront his accuser. But Chavez’s counsel failed to object to the admission of the evidence at trial, and it is settled that the admissibility of evidence cannot be questioned for the first time on appeal. State v. Taylor, 270 Minn. 333, 339, 133 N.W.2d 828, 832 (1965); State v. Tahash, 272 Minn. 539, 550, 141 N.W.2d 3, 11 (1965) (stating that admission of evidence, even though prejudicial, does not entitle defendant to new trial where no proper objection was made at trial, even though valid objection to evidence might have been made on constitutional grounds). Therefore, we decline to reach the merits of this issue.
 The district court noted that it was impossible to determine defendant’s criminal-history score at the time of the plea hearing “because of the uncertainty concerning the age of some of the offenses.” Ferraro, 403 N.W.2d at 847.
 Chavez also argues that the prosecutor’s incorrect representations of his criminal-history score constitute misconduct. But these representations were not made during the trial or in front of the jury and, therefore, could not have played any part in influencing the jury to convict.