This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Stafford NMN Lipscomb,
Hennepin County District Court
File No. 99124108
Michael A. Hatch, Minnesota Attorney General, Suite 500 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, Suite 600, 2829 University Avenue, Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
Appellant Stafford Lipscomb argues that he should be re-sentenced because the sentencing court did not require a psychological examination as part of the pre-sentence investigation and thereby deprived him of the opportunity to present mitigating factors regarding his mental condition at sentencing. In his pro se brief, appellant also alleges ineffective assistance of counsel. Because appellant entered into a plea agreement that specifically provided for a guideline sentence with no departure and because he has failed to establish ineffective assistance of counsel, we affirm.
Appellant was charged with burglary in the first degree and with felony violation of an order for protection after he broke into his ex-wife’s home in December 1999 and threw gasoline on and attempted to set fire to a man he found in bed with his ex-wife. At a pretrial appearance in March 2000, appellant’s counsel orally moved for a Rule 20.01 examination. No factual basis for the motion was made on the record and no medical documentation was presented to support the motion. Questioning by the district court elicited from appellant that he had been knocked unconscious during a mugging more than a year before the hearing and that he suffered from some numbness on the left side of his body and had impaired speech. Appellant was able to tell the court what he had been charged with and stated that he needed to talk to his attorney before he decided whether or not he wanted a jury trial. After an unrecorded bench conference with counsel, the district court determined that there was no basis for a competency evaluation and denied the motion.
Five days later, appellant appeared before a different district court judge and entered a plea agreement and plea on the record. Appellant agreed to plead guilty to burglary in the first degree and receive the presumptive guideline sentence based on his criminal history and the state agreed to dismiss the felony order-for-protection-violation charge as well as another violation of an order-for-protection charge contained in a separate file. Appellant was examined under oath on the voluntariness of and the factual basis for the plea.
Competency was not mentioned at the plea hearing, but appellant’s counsel noted that the sentencing date allowed enough time for court services to complete an in-custody evaluation and a psychological evaluation. The district court did not order a psychological evaluation as part of the pre-sentence investigation, but noted that if the probation officer thought such an evaluation would be appropriate, she could make a request and the court would order an evaluation.
Appellant appeared for sentencing approximately one month later, at which time his attorney told the court that appellant wanted to withdraw his plea. Counsel told the court he was unable to determine what basis there would be for withdrawing the plea and for that reason was concerned about appellant’s competency. The court noted that the probation officer had interviewed appellant, reviewed his medical records, and met with the staff psychologist to review the medical records and her interview notes. The staff psychologist wrote to the court stating that on the basis of the information presented, he saw no reason that a competency evaluation should be ordered. Based on the lack of evidence to suggest incompetence, the district court did not order an evaluation prior to sentencing.
Appellant’s counsel stated on the record at sentencing that he had presented appellant with choices and appellant made choices on the basis of his intellect and “his understanding of what’s going on. He has at times shown and availed of himself of the plea negotiation and we went through the Petition and he signed the Petition and we put in the plea.” The district court proceeded with sentencing in accordance with the plea agreement. This appeal followed, challenging only the district court’s failure to order a psychological evaluation as part of the pre-sentence investigation to provide appellant an opportunity to present mitigating circumstances at sentencing.
Failure to object or raise an issue in the district court waives consideration on review. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). At sentencing, counsel for appellant questioned the failure of the court to order a Rule 20.01 competency examination, not failure to order a psychological evaluation for the purpose of developing mitigation factors. Appellant specifically agreed to a guideline sentence for burglary in the first degree with no departure, in exchange for dismissal of two felony order-for-protection-violation charges against him. He received the sentence he bargained for and has waived the right to complain about an inability to present mitigating circumstances at sentencing. See generally State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996) (holding that defendant may waive right to a guideline sentence).
In reviewing competency determinations, appellate courts independently review the evidence to determine if the district court drew proper inferences from evidence bearing on defendant’s competence. See In re D.D.N., 582 N.W.2d 278, 281 (Minn. App. 1998). Here, appellant does not argue that the district court had any evidence of incompetence before it, rather, appellant complains that the district court committed reversible error by delegating the decision concerning a psychological evaluation to court services. The record does not support appellant’s claim that such authority was delegated. As the district court explained at the sentencing hearing, there was no evidence before the court to support ordering a competency evaluation. The district court, nonetheless, was receptive to reconsideration of the issue if additional information came to light during the pre-sentence investigation. The district court did not receive any additional information that supported reconsideration of the denial of the request for a competency hearing and did not err by concluding such an evaluation was unwarranted.
In his pro se briefs (there are two), appellant argues that his rights were violated by ineffective assistance of counsel because he was “talked into signing a plea for 78 months without fully understanding the consequences.” Appellant, however, testified otherwise at his plea hearing. The two-prong test for reversing a conviction for ineffective assistance of counsel requires an appellant to show that (1) defense counsel’s performance was deficient, and (2) but for such deficiency, there is a reasonable probability that the result would have been different. State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000). Where a guilty plea is concerned, a defendant meets the second prong of the test by establishing a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, but rather would have proceeded to trial.” Berkow v. State, 573 N.W.2d 91, 96 (Minn. App. 1997), aff’d (Minn. Aug. 6, 1998). Appellant testified that he reviewed the plea petition with counsel and signed each page to indicate his understanding of the rights he was giving up and the “deal” he was entering into. Appellant has failed to establish ineffective assistance of counsel.