This opinion will be unpublished and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
Hajji Yamina McReynolds, petitioner,
State of Minnesota,
Filed July 31, 2001
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. 97007821
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant challenges the revocation of his probation for a conviction of first-degree aggravated robbery, contending that he was unable to comprehend and follow the conditions of probation; his sentence was inequitable considering the sentences of his accomplices; the evidence was insufficient to support the conviction for the underlying crime; and his trial attorney’s assistance was ineffective. We affirm.
On January 24, 1997, four men participated in the robbery of a Jubilee Foods store at which appellant Hajii McReynolds used to work. Quaid Crosby, a store employee, unlocked the back door so the other three could enter without being detected by a video camera at the front door. McReynolds, Reginald Whitfield, and Antonio Smith entered the store and hid in the basement until the store closed. Then the three men, all wearing ski masks, went upstairs into the store. Whitfield, who had a gun, and Smith went to the manager’s office to demand money. McReynolds stayed with two store employees. Crosby had already left the store. After obtaining money, McReynolds, Whitfield, and Smith fled in a van.
All four robbers were eventually caught and charged with first-degree aggravated robbery and kidnapping. All entered into plea agreements. McReynolds agreed to plead guilty to first-degree aggravated robbery in exchange for the dismissal of the kidnapping charges and a stay of imposition of sentence with a five-year probationary term. This sentence was a dispositional departure from the presumptively executed sentence of 58 months. The agreement provided that, if McReynolds violated his probation, the district court could impose an executed sentence of 79 months, an upward durational departure.
When McReynolds entered the plea agreement, the court and counsel were aware that he was under a conservatorship as “an incapacitated person.” In appointing McReynolds' parents as co-conservators on December 14, 1995, the district court adopted a referee’s findings that McReynolds suffered from attention deficit disorder, hyperactivity, and cognitive deficits that impaired his ability “to make or communicate responsible decisions” concerning his needs for “medical care, nutrition, clothing, safety, or shelter.” According to the findings, McReynolds was “in need of a conservator to protect his person.” One of McReynolds’ co-conservators agreed with the plea bargain.
Two conditions of McReynolds’ probation were that he not possess any firearms and that he remain law abiding. At a probation revocation hearing on October 7 and 11, 1997, the district court found that McReynolds violated his probation by possessing a firearm on September 25, 1997, which was the day of McReynolds’ sentencing; by possessing a firearm on September 28, 1997; and by threatening his former girlfriend with a gun on September 28, 1997. The court then revoked McReynolds’ probation and imposed an executed sentence of 79 months.
Three years later, McReynolds petitioned for post-conviction relief. The district court denied the petition without an evidentiary hearing. McReynolds appealed to this court.
This court’s review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings. Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999) (citation omitted). Absent an abuse of discretion, appellate courts will not disturb a postconviction court’s decision. Id. (citation omitted). In postconviction proceedings, the petitioner bears the burden of proving by a fair preponderance of the evidence facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (1998).
McReynolds first argues that the plea agreement he entered into is not valid because he was under a conservatorship order. He asserts that
[i]t should have been obvious to the parties involved in the plea negotiations, as well [as] the trial court which ultimately accepted the plea, that [McReynolds] had Buckley’s chance of succeeding on probation.
Because of this, McReynolds asserts that he has a right to withdraw his guilty plea.
A criminal defendant has no absolute right to withdraw a guilty plea once it is entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The district court may, however, allow a defendant to withdraw a guilty plea after sentencing if the defendant proves withdrawal is necessary to correct a manifest injustice. Id. A constitutionally valid plea must be accurate, voluntary, and intelligent, and if it is not, the plea constitutes a manifest injustice. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997); State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). A plea is accurate, voluntary, and intelligent if, considering all the attendant circumstances, the defendant understands the charges, his rights under the law, the consequences of pleading guilty, and has not been improperly induced to enter a plea. See Alanis, 583 N.W.2d at 577 (intelligent plea); State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994) (voluntary plea); Vernlund v. State, 589 N.W.2d 307, 310 (Minn. App. 1999) (accurate plea).
The record reflects that McReynolds’ plea was accurate, voluntary and intelligent. McReynolds’ mother and co-conservator Nafeeshah McReynolds was present when the terms of the plea agreement were discussed, and she was present during every stage of the proceedings. McReynolds’ attorney and the court explained McReynolds’ rights to him and his conservator-mother. Further, McReynolds acknowledged at the plea hearing that he was aware the presumptive sentence for aggravated robbery was 58 months, and that an executed sentence of 79 months would reflect an upward departure. Nothing in the record suggests that McReynolds could not understand the charges, the plea agreement, the sentence, the probationary conditions, or the consequences of violating his probation. Neither he, his attorney, nor his mother-conservator objected to the plea agreement or raised any issue as to McReynolds’ competency or ability to comprehend the proceedings and their significance. Furthermore, McReynolds’ status as the subject of a conservatorship is not evidence of incompetency. Minn. Stat. § 525.54, subd. 5 (1996).
McReynolds next argues that his sentence should be reduced because he was sentenced more severely than his accomplices. The purpose of the Minnesota Sentencing Guidelines is to create equity in sentencing, which requires that “convicted felons similar with respect to relevant sentencing criteria ought to receive similar sanctions[.]” Minn. Sent Guidelines I.
However, one must bear in mind that equality and fairness in sentencing involve more than comparing the sentence the appealing defendant received with the sentence his accomplices received. It also involves comparing the sentence of the defendant with those of other offenders.
State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983).
This court has the discretion, should it choose to use it, “to reduce a defendant’s sentence in order to make it more equitable with the sentence that a similarly situated codefendant received.” State v. Back, 341 N.W.2d 273, 277 (Minn. 1983). See also State v. McClay, 310 N.W.2d 683, 685-86 (Minn. 1981) (equalizing sentences of co-defendants).
At the time of sentencing, appellant had a criminal history score of one. The presumptive sentence for a person convicted of aggravated robbery in the first degree with a criminal history score of one is 58 months. Whitfield, the accomplice who carried the gun during the commission of the robbery, had a criminal history score of two, and was not offered probation, but in exchange for his guilty plea he was sentenced to 52 months, executed. This sentence reflected a downward durational departure from the presumptive 68-month sentence. Smith, appellant’s other accomplice, had a criminal history score of zero and received probation. If Smith violates his probation, he will receive an executed sentence of 48 months.
McReynolds relies on McClay, 310 N.W.2d at 683, for the proposition that he should have received a sentence no harsher than the sentences given Whitfield and Smith. The McClay court said that “convicted felons similar with respect to relevant sentencing criteria ought to receive similar sanctions.” Id. at 685-86 (quotation omitted).
We first observe that the sentencing criteria for the three men are not the same. Smith had no prior criminal history points; McReynolds had one; and Whitfield had two. Thus, had each person received the presumptive sentence, there would be disparity by virtue of their prior records.
The court sentenced all three to lesser terms than called for in the sentencing guidelines. Whitfield’s sentence was executed, but for a shorter time, which was justifiable by his criminal history points. But his plea agreement provided that he could receive the presumptive sentence or more if he failed to abide by the plea agreement. Smith was given the presumptive sentence but execution was stayed. Even at the successful conclusion of his probation, Smith would have on his record a felony conviction for aggravated robbery. Smith also was required to serve a workhouse term of six months. McReynolds not only received a dispositional departure from the presumptive sentence, but was also given a stay of imposition of sentence with no additional jail time. Only if he violated his probation would he receive a longer prison sentence than that provided in the sentencing guidelines. Upon the successful completion of his probation, the conviction would be recorded as a misdemeanor. Minn. Stat. § 609.13 (1996). Only if it were shown by clear and convincing evidence that he intentionally violated his probation would he be subjected to any incarceration at all. The durational departure that McReynolds faced upon a probation violation justifiably reflected his prior criminal record, and McReynolds did not challenge the durational departure per se. We find no merit in McReynolds’ contention that he was inequitably sentenced for his crime.
In his pro se supplemental brief, McReynolds argues that he received ineffective assistance of counsel because his attorney failed to request a competency hearing.
To establish a claim of ineffective assistance of counsel, McReynolds must affirmatively show that his counsel’s representation (1) fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). A petitioner challenging the validity of a guilty plea satisfies the second prong by establishing that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty. Berkow v. State, 573 N.W.2d 91, 96 (Minn. App. 1997), aff'd, 583 N.W.2d 562 (Minn.1998).
McReynolds argues that his attorney should have requested a competency hearing.
A defendant shall not be permitted to * * * be tried or sentenced for any offense if the defendant
(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or
(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.
McReynolds also alleges that his attorney separated him from his conservator during the plea hearing. This is an assertion without factual support. See Beltowski v. State, 289 Minn. 215, 216-17, 183 N.W.2d 563, 564 (1971) (stating that facts alleged must be more than bald assertions or conclusory allegations without factual support). The record reflects that McReynolds’ mother was present during the plea hearing. When asked whether he reviewed the plea agreement with his mother, he answered affirmatively. Neither McReynolds nor his mother suggested that defense counsel coerced McReynolds into the plea agreement.
Because there is no evidence in the record that would trigger a competency hearing, and there is no evidence that McReynolds was separated from his conservator during the plea hearing, we hold that the district court did not err in rejecting McReynolds’ claim of ineffective assistance of counsel.
McReynolds argues that there was insufficient evidence to revoke his probation. Setting the conditions of probation is within the discretion of the trial court. State v. Kaquatosh, 600 N.W.2d 153, 156 (Minn. App. 1999) (citation omitted), review denied (Minn. Dec. 14, 1999).
The trial court [also] has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.
State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). In order to revoke probation, a trial court must make three findings:
the specific condition or conditions that were violated; * * * the violation was intentional or inexcusable; and * * * [the] need for confinement outweighs the policies favoring probation.
Id. at 250.
At the revocation hearing, McReynolds’ former girlfriend, Teresa Lemke, testified that she saw McReynolds in possession of a gun on September 25, the same day as his sentencing. Lemke’s friend, Alanna Hanson, also testified that she saw McReynolds in possession of a gun on September 25.
Lemke further testified that McReynolds was in possession of a gun on September 28. According to Lemke, while she was at his house, McReynolds “cocked the gun, put it in his pants * * * and walked around to the front [of the house] and started yelling that he was going to kill me.” When Lemke got into a car to leave McReynolds' house, he grabbed her by the hair and said, “[b]itch, get out of the car now or I’ll pop you right here.” Lemke called the police. When the police arrived, McReynolds fled his house on his bicycle. At some point, McReynolds got off the bike and began to run through his neighbors’ backyards. Police officers detained McReynolds a short time later.
McReynolds testified at the revocation hearing and denied ever possessing a gun or assaulting Lemke. McReynolds’ grandmother also testified that she never saw McReynolds with a gun. The grandmother thought McReynolds had a straightening comb in his pants pocket. Finally, the grandmother testified that McReynolds was not fleeing the police, but rather got on his bike so that Lemke would leave his house.
Following the evidentiary hearing, the district court concluded that there was clear and convincing evidence
that on September 25, Mr. McReynolds possessed a firearm; that on September 28, he possessed a firearm; and that on September 28, he threatened Ms. Lemke by saying that he would pop her.
Upon these findings, the district court revoked McReynolds’ probation, and imposed an executed sentence of 79 months. In its order, the district court expressly stated that it found Hanson’s testimony credible and Lemke’s story believable.
The court found that McReynolds’ possession of a gun on the very day this condition was made reflected a “serious, intentional, and a substantial violation,” and that the need for confinement outweighed the policies favoring probation, because McReynolds had returned to a “lifestyle involving violence that is represented by the possession of the gun, whether he used it or not.” Given that the court made the required findings, and that there is evidence in the record to support those findings, we hold that the district court did not err in revoking McReynolds’ probation.
McReynolds lastly argues that there was insufficient evidence to sustain the original robbery charge, because he did not possess a weapon during the commission of the crime. McReynolds was sentenced under Minn. Stat. § 609.11, subd. 5 (1996), which provides that
any defendant convicted of an offense * * * in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law.