This opinion will be unpublished and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
Joel Delano Powell, Jr.,
State of Minnesota,
Filed October 9, 2001
Hennepin County District Court
File No. 98122017
Mark D. Nyvold, 46 East Fourth Street, Suite 1030, St. Paul, MN 55102 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that he was entitled to an evidentiary hearing regarding his understanding that his guilty plea in this case was conditioned on his receiving a sentence of more than 88 months in a companion case. Because this argument is contradicted by the record, we conclude that the district court did not abuse its discretion in denying appellant’s petition without an evidentiary hearing.
Appellant Joel Delano Powell, Jr., was charged with promoting prostitution in this case and in a companion case. This case was assigned to the Honorable Roberta K. Levy. The companion case was assigned to the Honorable Stephen D. Swanson and went to trial. On March 29, 1999, the jury returned a guilty verdict in the case before Judge Swanson, and sentencing was scheduled for April 29.
On April 7, Powell entered a guilty plea before Judge Levy in this case. The transcript of the hearing at which he entered his plea provides, in relevant part:
MR. NOLEN [for the state]: The matter was scheduled for trial yesterday. It’s my understanding that at this time we have reached a settlement under which Mr. Powell will plead guilty to the charge of promoting prostitution that was charged in the complaint. That would be with the understanding that this would be a straight plea to the Court.
We did discuss this matter in chambers yesterday, and the Court indicated that the Court would be willing to sentence Mr. Powell to 88 months concurrent with a sentence that will be imposed by Judge Swanson, I believe, on April 29th of this year. The 88-month sentence would be an upward departure from the sentencing guidelines, and I believe the basis for that would be Mr. Powell’s extensive criminal history that qualifies him as a career offender under the statutes.
MR. MARSDEN [for the defense]: That’s substantially my understanding, Your Honor. Mr. Powell will be entering this plea with that understanding. I believe it would be Judge Swanson imposing sentence on the 29th. If he declines to impose the sentence, Mr. Powell would be free to withdraw his guilty plea. Based upon that, we are prepared to proceed.
Judge Levy accepted Powell’s plea. Because a presentence investigation had already been ordered in the companion case, she deferred sentencing so that Judge Swanson could sentence Powell in this case when he sentenced him in the companion case.
Judge Swanson sentenced Powell to 102 months in prison on the jury’s guilty verdict, an upward double-durational departure. The proceedings then turned to sentencing on Powell’s guilty plea in this case:
MR. MARSDEN: Judge, I would simply ask that you sentence in accordance with the plea reached with Judge Levy. Judge Levy did indicate at the time the plea was entered that if the Court weren’t to follow the 88-month sentence, that the plea – Mr. Powell would be entitled to proceed to trial on that.
* * * *
The Court: Mr. Powell, is there anything you want to tell me before I sentence you on the case you pled guilty to before Judge Levy?
THE DEFENDANT: No, just that we’re going to have to withdraw, because she said that if you didn’t go along with that plea that I’ll have an opportunity to do that, so that’s all.
Just that we’re going to withdraw that plea because there’s no deal there.
THE COURT: Your request to withdraw the plea is denied.
My understanding is that the commitment from Judge Levy is, * * * that there would be a maximum of 88 months on that sentence, and it would be served concurrently and I plan to sentence it concurrent, so it won’t be a consecutive sentence.
THE DEFENDANT: No, he said if they exceeded – isn’t this what you told me?
MR. MARSDEN: No, the negotiation with Judge Levy was 88 months concurrent on that sentence. We had no power over the sentence just imposed by Judge Swanson by virtue of the jury’s verdict.
THE DEFENDANT: Did you tell me that if she (sic) exceeds the sentence that we can withdraw the plea, or am I making this up now?
MR. MARSDEN: No, the court advised that if the plea agreement weren’t followed –
THE DEFENDANT: No, my question to you, did you not tell me that I can withdraw the plea if they exceeded the 88 months?
MR. MARSDEN: On this particular case?
THE DEFENDANT: No.
Judge Swanson then sentenced Powell to 88 months in prison on his guilty plea in this case to be served concurrently with his sentence in the companion case.
Powell appealed his conviction and sentence on the jury’s guilty verdict. This court affirmed his conviction but remanded for resentencing. Powell ultimately received a 51-month sentence in that case. He then filed a petition for postconviction relief, asserting that the plea he entered before Judge Levy was conditioned on his being able to withdraw that plea if he received a sentence of less than 88 months in the companion case. He requested an evidentiary hearing so that he could “put on the record what his understanding of the agreement was.”
The district court, in a thorough and well-reasoned memorandum incorporated into its order, concluded that Powell’s argument was not supported by the record. The court denied Powell’s request for an evidentiary hearing and dismissed his petition for postconviction relief. This appeal follows.
A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (2000). A postconviction court may dismiss a petition for postconviction relief without holding an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2000); see also Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (explaining that evidentiary hearing “is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief”). Furthermore, a petitioner’s allegations must be “more than argumentative assertions without factual support.” Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (quotation omitted). The district court’s decision not to grant an evidentiary hearing to resolve a petition for postconviction relief is reviewed for abuse of discretion. Fratzke, 450 N.W.2d at 102.
Powell argues that the plea he entered before Judge Levy was conditioned on his being able to withdraw that plea if he received a sentence of less than 88 months in the companion case. A criminal defendant is permitted to withdraw a guilty plea after sentencing only upon “proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05.
There is nothing in the transcript of the plea hearing before Judge Levy to suggest that Powell was confused about the plea agreement. The only condition discussed was that if Judge Swanson did not impose an 88-month sentence on Powell’s plea, to be served concurrently with his sentence in the companion case, Powell would be allowed to withdraw his plea. There was no suggestion that his plea agreement was in any way linked to the sentence he might receive in the companion case. Further, while at the sentencing hearing Powell expressed some confusion about his plea agreement, the argument he made there was that he should be able to withdraw his plea in this case because he received a sentence of more than 88 months in the companion case. To argue now that his understanding was that he could withdraw his plea if he received a sentence of less than 88 months in that case is inconsistent with the record.
Powell’s allegation that his guilty plea was conditioned on his receiving a sentence of more than 88 months in the companion case is contradicted by the record. As a result, this allegation does not create a factual dispute as to whether withdrawal of his plea is necessary to correct a manifest injustice, and the postconviction court did not abuse its discretion in denying him an evidentiary hearing. See Minn. Stat. § 590.04, subd. 1; Hummel v. State, 617 N.W.2d 561, 566 (Minn. 2000).
 State v. Powell, No. C4-99-1357 (Minn. App. June 20, 2000).