This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-2199

 

Travis Gregory Kadel,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 3, 2001

Affirmed

Harten, Judge

 

Otter Tail County District Court

File No. KX-99-809

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

David J. Hauser, Otter Tail County Attorney, Karen A. Cooper, Assistant County Attorney, Otter Tail County Courthouse, 121 West Junius Avenue, Fergus Falls, MN 56537 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant Travis Gregory Kadel appeals from an order denying his postconviction petition.  Appellant argues that the postconviction court erred in refusing to reduce the sentences imposed on him for burglary and assault, even though he specifically agreed to the upward durational departures as part of a plea agreement with respondent State of Minnesota.  Appellant also argues that the postconviction court erred in refusing to vacate the restitution order because the criminal damage to property charge was dismissed under the plea agreement.  We affirm.

FACTS

            On September 12, 1998, at approximately 12:30 a.m., appellant Travis Gregory Kadel entered a storage shed attached to the home of Anette Zierke in Pelican Rapids.  Zierke was alone in her home when she heard noises in the storage shed and became frightened.  She ran to her neighbor’s home and informed her neighbor that there was a prowler in the shed.  Zierke, her neighbor’s son, and a third party went to Zierke’s home and inspected the shed with a flashlight.  The door to the shed was open and two bicycles were missing.  The three then saw a man, later identified as appellant, attempting to ride one bicycle while balancing the other bicycle on his shoulders.  They observed appellant fall down and become entangled in the bicycles.  The neighbors restrained appellant until police arrived.  On April 13, 1999, a jury found appellant guilty of burglary in the first degree and burglary in the second degree.  Kadel directly appealed from these convictions.

            On April 29, 1999, while in custody on the burglary convictions, appellant assaulted Detention Officer Al Keller.  Keller sustained a fractured nose, jaw, and cheekbone, as well as a broken front tooth.  Keller also received abrasions and cuts where his glasses were smashed into his face.  Keller was hospitalized and underwent oral surgery to correct his jaw, after which his mouth was wired shut for six weeks.  Keller had to wear braces because his teeth no longer aligned properly.  Keller received stitches in his cheek and still complains of numbness.  Keller also sustained a knee injury.  During this incident, a jail employee observed appellant throw the detention facility’s television set to the floor.  Appellant was charged by complaint with assault in the first degree, assault in the third degree, and criminal damage to property in the third degree.

On March 28, 2000, while his appeal from his burglary convictions was pending, appellant entered into a plea agreement.[1]  He pleaded guilty to burglary in the second degree in violation of Minn. Stat. § 609.582, subd. 2(a) (1998), and assault in the third degree in violation of Minn. Stat. § 609.223, subd. 1 (1998), and also agreed to consecutive executed sentences of 57 months for the burglary conviction and 60 months for the assault conviction.  In exchange for his guilty pleas, the prosecutor dismissed the charges of burglary in the first degree, assault in the first degree, and criminal damage to property in the third degree.  The issue of restitution for the damaged television set was left open for argument.  Appellant signed a petition to enter a plea of guilty for both the burglary and assault charges.  On May 19, 2000, the sentencing court sentenced appellant according to the plea agreement and also ordered appellant to pay $350 restitution to the Otter Tail County Detention Facility for the damaged television set.

Appellant directly appealed from his assault conviction, challenging the ordered restitution.  This court granted appellant’s request to dismiss the direct appeal so he could pursue postconviction relief.  Following a hearing on November 6, 2000, the postconviction court denied appellant’s requests for reduction of his burglary and assault sentences and vacation of the ordered restitution.  Kadel appeals from the order denying his postconviction petition.  

D E C I S I O N

            Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).  “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings * * * .”  Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997) (citations omitted).

1.         Sentences for Burglary and Assault

Appellant contends that the postconviction court erred in refusing to reduce his sentences for burglary and assault, arguing that the sentencing court’s upward departures were not justified.  The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996).  A court may impose an upward departure if the crime involves “substantial and compelling aggravating” factors.  Minn. Sent. Guidelines cmt. II.D.01; see also Garcia, 302 N.W.2d at 647.  In addition, defendants may “agree to a departure as part of a plea bargain with the prosecutor,” and in doing so, “may relinquish their right to be sentenced under the guidelines.”  Givens, 544 N.W.2d at 777.

Such a waiver, however, must conform to the usual limitations accompanying the waiver of constitutional or statutory rights, that is, it must be knowing, intelligent, and voluntary.  The defendant must have been advised of his or her right to be sentenced under the guidelines, which, of course, includes the possibility of * * * a departure * * *, and have had the opportunity to consult counsel.  In addition, the waiver must be approved by the trial court.  An examination by the sentencing court, consistent with the approach of Minn. R. Crim. P. 15, will meet this requirement.

 

Id. (citations and footnote omitted).

            Defense counsel Tracy Mitchell represented appellant at the plea hearing.  The district court granted Mitchell’s request to conduct the Rule 15 questioning.  Mitchell thoroughly covered the Rule 15 procedural requirements with appellant, asking and receiving affirmative responses to such questions as whether appellant received a copy of the complaint, whether he had enough time to read it over, whether he understood the charges against him, whether he had enough time to talk to his attorney about his case, whether he was satisfied that she had represented his interests and fully advised him, whether he understood that he had the right to plead not guilty and have a jury trial with all of the attendant rights on both charges, and whether he understood that by entering these guilty pleas he was giving up these rights and would not have a trial of any kind.  Appellant and Mitchell engaged in the following specific exchanges:

Mitchell:        “Do you understand the maximum sentence for the assault is five years, and the maximum sentence for the burglary is ten years?”

 

Appellant:       “Yes.”

 

Mitchell:        “And you were in court when the [j]udge was informed as to the plea agreement?”

 

Appellant:       “Yes.”

 

Mitchell:        “Do you understand the plea agreement?”

 

Appellant:       “Yes, I do.”

 

Mitchell:        “Is that acceptable to you?”

 

Appellant:       “Yes.”

 

            * * * *

 

Mitchell:          “And is one of the reasons that you’re entering this guilty plea [to burglary in the second degree] to take advantage of the plea bargain?”

 

Appellant:       “Yes.”

 

            * * * *

 

Mitchell:        “And are you entering this guilty plea [to assault in the third degree], in part, to benefit from the plea bargain?”

 

Appellant:       “Yes.”  

 

Assistant County Attorney Karen Cooper asked this follow-up question of appellant on the record:

Cooper:          “Mr. Kadel, you understand that part of your agreement * * * is that the two jail sentences would be consecutive, that you would be sentenced on the burglary first at 57 months, and then the charge of assault in the third degree would be sentenced second for a total of 60 months for a total of 117 months; do you understand that that is our agreement?

 

Appellant:       “Yes.” 

 

The district court found that there were sufficient facts in the record to establish a factual basis for both guilty pleas and further found that the “pleas in both the instances were made knowingly, intelligently and voluntarily, and they, therefore, form the basis of a conviction for each separate offense.”  In the court-ordered, pre-sentence investigation report, the corrections agent made the following recommendation: 

The offense of Burglary-2nd Degree is weighted with a severity level of five.  With 12 criminal history points, the presumptive guidelines sentence is a commitment to the Commissioner of Corrections for 48 months.

 

The offense of Assault-3rd Degree is weighted with a severity level of four.  With 13 prior criminal history points, the presumptive guidelines sentence is a commitment to the Commissioner of Corrections for 30 months.[2]

 

* * * *

This agent concurs with the proposed plea agreement in this matter and recommends the Court run the sentences consecutive.

 

In sentencing appellant for burglary in the second degree, the district court stated:

This Court has departed from the guidelines for several reasons.  First, the Court has considered your past history, which identifies you as a career offender, and secondly, the Court has considered the nature of the fact that you have, in the past, been involved in other conduct similar to the current offense on numerous prior occasions.  This sentence is the result of a plea agreement between yourself, your attorney, and the County Attorney.

 

In sentencing appellant for assault in the third degree, the district court stated:

This sentence is an upward durational departure from the Minnesota [S]entencing [G]uidelines, and the basis for that upward departure is the severity of the assault, the fact that the assault was upon a law enforcement officer, your prior history, which indicates that you have a criminal propensity that is dangerous to the public safety and that you have been involved in other conduct, other assaultive conduct that is similar to the current offense.  This sentence is the result of a plea agreement between yourself, your attorney, and the County Attorney.

 

Appellant contends that his waiver of his right to be sentenced under the guidelines was not “knowing and intelligent” because, at the time he was sentenced, he had twelve prior felony convictions and believed he qualified as a career offender under Minn. Stat. § 609.1095 (1998).  Appellant argues that because he could not anticipate this court’s decision in State v. Huston, 616 N.W.2d 282, 284 (Minn. App. 2000), he “should not be bound to his agreement under the rationale set forth in Givens.”  But the postconviction court held that:

The mere fact that [appellant] does not qualify as a career offender under the recent decision of State v. Huston, * * * does not alter the fact that [he] voluntarily and intelligently agreed to the durational departures in both plea agreements.

 

The district court did not abuse its discretion in sentencing appellant because appellant waived his right to be sentenced under the guidelines when he agreed to consecutive executed sentences of 57 months for burglary and 60 months for assault. The postconviction court found that “[i]n both cases, the Court based its departure from the guidelines primarily upon the plea agreement between the parties.”  Because, under Givens, 544 N.W.2d at 777, it was proper for the district court to base the departures upon the plea agreement, the postconviction court’s decision was not an abuse of discretion. 

2.         Restitution

“The court has wide discretion in ordering restitution and determining the appropriate amount of restitution.”  State v. Anderson, 507 N.W.2d 245, 246 (Minn. App. 1993) (citations omitted), review denied (Minn. Dec. 22, 1993).

Absent a specific agreement concerning restitution, a plea agreement as to charge and sentence neither precludes restitution nor limits the district court in its consideration of the amount of restitution and defendant’s ability to pay.

 

Id. at 245.  Appellant argues that, because the plea agreement did not require him to pay restitution and because the charge of criminal damage to property in the third degree was dismissed, the postconviction court erred in refusing to vacate the restitution order.  However, in the plea hearing, Mitchell acknowledged that while restitution was not required by the plea agreement, she “understood that [respondent would] be asking for restitution at the time of sentencing, and [appellant would] be opposing that.”  The district court determined that “the broken television set arose directly out of the assault,” and because the person assaulted was an employee of the law enforcement agency that owned the television set, the court ordered appellant to pay restitution in the amount of $350 to the Otter Tail County Sheriff’s Department.

The postconviction court found that the Keller affidavit established that the detention facility’s television set was damaged beyond repair, that the set was originally purchased in 1997 for $350.39, and that the cost of replacement would exceed the original purchase price.  Minn. Stat. § 609.10, subd. 2(a) (1998), provides that restitution “includes payment of compensation to a government entity that incurs loss as a direct result of a crime.”  Accordingly, the postconviction court found that the detention facility “sustained a ‘loss’ in the sum of $350.39 as a direct result of [appellant’s] crime.”  We conclude that the postconviction court properly refused to vacate the $350 restitution order.

Because there is sufficient evidence to sustain the findings of the postconviction court, and because the postconviction court’s decision was not an abuse of discretion, we affirm the postconviction order.

            Affirmed.



[1] The plea agreement was somewhat unusual in that it covered the burglary convictions that Kadel was in the process of appealing and the new charges of assault and criminal damage to property.

[2] Under Minnesota Sentencing Guideline II.F:

            For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration.

Because the assault offense was sentenced consecutive to the burglary offense, if appellant were sentenced under the guidelines, a zero criminal history score would be used, making the presumptive sentence 12 months.  See State v. Collins, 580 N.W.2d 36, 44 (Minn. App. 1998) (citation omitted) (in “permissive consecutive sentencing, a criminal history score of zero is used in determining the duration of the sentence for a second or subsequent offense”), review denied (Minn. July 16, 1998).