This opinion will be unpublished and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

C5-00-306

 

 

Donald Wallace Butler, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed December 5, 2000

Affirmed

Anderson, Judge

 

Ramsey County District Court

File No. K983012

 

 

Donald Wallace Butler, 1799 Selby Avenue Boulevard SE, Apt. 3, St. Paul, MN 55104 (pro se appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

†††††††† Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Harten, Judge.

 

U N P U B L I S H E D†† O P I N I O N

ANDERSON, Judge

†††††††† Appellant Donald Wallace Butler challenges an order denying his petition for postconviction relief and request for an evidentiary hearing.† He claims he is entitled to withdraw his guilty plea due to: (1) coercion by the trial judge; (2) ineffective assistance of counsel; (3) nondisclosure of evidence; and (4) court reporter malfeasance.† Appellant also claims entitlement to an evidentiary hearing.† We affirm.

FACTS

On August 13, 1998, St. Paul police arrested appellant Donald Wallace Butler after Butler approached an undercover police officer and revealed white tissue with plastic cellophane containing what tests later determined to be 1.2 grams of crack cocaine.†††

Butler pleaded guilty to fifth-degree controlled substance possession, a violation of Minn. Stat. ß 152.025, subds. 2(1) and 3(a) (1998).† During the plea hearing, Butler acknowledged that he: (1) read the plea petition; (2) went over every line of the plea petition with his attorney; (3) understood the terms of the plea agreement; and (4) had no questions regarding the plea agreement.† The district court sentenced Butler to 23 months in prison.

Butler filed a petition for postconviction relief, followed by over nine successive pleadings, together alleging entitlement to a vacation of his guilty plea because: (1) the district court judge improperly coerced him into accepting the plea agreement; (2) his defense attorney was ineffective in failing to explore entrapment and selective prosecution defenses, failing to prevent Butlerís acceptance of a coerced plea agreement, and failing to remove an impartial judge; (3) the court reporter failed to include or accurately represent statements; and (4) the prosecutor lost or destroyed exculpatory evidence.

Butler requested an evidentiary hearing.† By order dated December 28, 1999, the district court denied Butlerís petition and request for an evidentiary hearing.† This pro se appeal followed.

D E C I S I O N

This court reviews a postconviction proceeding to determine whether the evidence is sufficient to sustain the findings of the postconviction court.† Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).† Absent an abuse of discretion, a postconviction courtís decision will not be disturbed on appeal.† McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).

Butler first asserts that he was coerced into pleading guilty when the district court judge promised a probationary sentence in return for a guilty plea.† A manifest injustice occurs when a defendant is coerced into pleading guilty and the defendant must be allowed to withdraw his guilty plea in such an instance.† State v. Kaiser, 469 N.W.2d 316, 319-20 (Minn. 1991).

†††††††† †As proof of coercion, Butler contends his private attorney discussed a probationary sentence with Judge Campbell over the phone.† After that conversation, Butler alleges his attorney informed him that the court agreed to a probationary sentence.† Appellant failed to prove that this conversation ever occurred.† In fact, at sentencing, the district court stated, ďProbation would think I had lost my mind if I sent you over there.Ē† Moreover, appellantís failure to object to the sentence based on the earlier, alleged commitment to a probationary disposition undermines his claim.† Appellantís allegations of coercion are without merit.

Butler next contends he was deprived of effective assistance of counsel.† To prove a claim for ineffective assistance of counsel, the petitioner must show:

(1) that the counselís representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counselís errors, the outcome of the proceedings would have been different.

 

King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (citation omitted).† A postconviction court's rulings on a claim for ineffective assistance of counsel are reviewed under an abuse of discretion standard.† State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

†††††††† Butler contends his defense counsel was ineffective for failing to investigate entrapment and selective prosecution defenses.† The failure to investigate various leads is not error by defense counsel absent a showing that significant exculpatory evidence could have been uncovered.† Crisler v. State, 520 N.W.2d 22, 26 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).† Butler states that an audiotape-monitoring device used by the undercover officer would establish both defenses.† The record, however, does not reveal the existence of any audiotape recording of the conversation between Butler and the undercover officer.† Attorneys from the Ramsey County Attorneyís Office reviewed Butlerís file and confirmed that it did not contain any record of an audiotape or a transcript of the conversation, and the police departmentís property log did not indicate the existence of such an audiotape.† Butler did not show what additional exculpatory evidence, if any, could have been uncovered.

†††††††† Butler also asserts that defense counsel was ineffective by failing to stop the judge †from coercing him to sign the plea agreement, and failing to remove the judge from the proceeding.† Strategic decisions should be left to the discretion of counsel, thus allowing for "flexibility" when representing a client.† King, 562 N.W.2d at 795.† Defense counselís decision not to object to the plea agreement or to file a motion to remove the district court judge are strategic decisions that are left to the discretion of counsel.† Moreover, defense counselís advice that Butler accept the plea agreement due to his criminal history fits squarely with the prosecutorís statement that an upward departure would have been requested had the case gone to trial.

†††††††† Butler next argues court reporter malfeasance.† Butler contends that the court reporter left statements out of the court transcripts.† But Butler's allegations must be more than argumentative assertions without factual support.† See Gassler v. State, 590 N.W.2d 769, 772 (Minn. 1999) (holding that, absent factual support, argumentative assertions do not entitle defendant to postconviction relief).† Nothing in the record suggests court reporter misconduct.

†††††††† Butler also argues that the prosecutor lost or destroyed exculpatory evidence.† Butler contends that there was an audiotape recording of the conversation between Butler and the undercover police officer that would establish possible defenses of selective prosecution and entrapment.† A prosecutor must disclose evidence that tends to negate or reduce the guilt of the accused as to the offense charged. Minn. R. Crim. P. 9.01, subd. 1(6); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); State v. Hathaway, 379 N.W.2d 498, 506-07 (Minn. 1985).† The prosecutor made the rule 9.01 disclosure as required, and expressly stated that there was no record of an audiotape or a transcript of the conversation.† Butler offers no evidence to the contrary.†

†††††††† Butlerís final allegation is that the postconviction court erred when it denied him an evidentiary hearing on his petition.† A postconviction evidentiary hearing is not required unless the petitioner alleges facts that, if proven, would entitle a petitioner to relief.† Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).† Butler alleges no specific facts that would warrant an evidentiary hearing and sets forth only unsupported arguments.† This is not enough.

†††††††† After a careful review of the record and the relevant law we conclude that the district court did not clearly abuse its discretion by denying Butlerís requests for postconviction relief and an evidentiary hearing.†

Affirmed.††††††† ††††††††††