This opinion will be unpublished and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

C8-01-617

 

 

Makeba Mahor Boyer,

Petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed November 27, 2001

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 97097921

 

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

 

Mike Hatch, Minnesota 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 Anderson, Presiding Judge, Peterson, Judge and Amundson, Judge


U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            This is an appeal from a district court order denying appellant’s petition for postconviction relief.  The petition was denied without an evidentiary hearing.  Because petitioner provided no factual support for her petition, and because the record conclusively shows that petitioner was not entitled to relief, we affirm.

FACTS

            On October 28, 1997, Ayesha Boyer, appellant’s sister, visited appellant’s residence in Minneapolis to return appellant’s daughter, C.B.  Appellant and her sister began to argue about C.B.’s contact with her father.  Appellant placed C.B. in the apartment, followed her sister out of the apartment building, and continued to argue with her.  Ayesha Boyer cautioned appellant against leaving C.B. alone in the apartment because there were lit candles present.  Appellant ignored her sister’s warnings and continued to argue.  Appellant eventually ended the argument and made her way back to her apartment.  Upon her return, she found that the fire alarm was sounding.  The fire severely burned C.B., and she died later that night.  The state charged appellant with second-degree manslaughter in violation of Minn. Stat. § 609.205(5) (1996).

Appellant pleaded guilty to second-degree manslaughter.  At the plea hearing, appellant acknowledged that by pleading guilty, she was waiving her right to trial, her right to confront witnesses, and her right to remain silent.  Appellant also testified that she attended numerous conferences with her attorney, at which appellant’s attorney explained the consequences of a guilty plea. 

Appellant stated that she had used medications in the past, but that she had not been taking any medications for some time.  Appellant stated that she had enough time to consider her plea and that she understood she could not later change her mind.  The district court accepted her guilty plea, stayed her sentence, and placed her on probation.

            In the following years, appellant violated her probation on several occasions.  In February 2000, appellant was before the district court and admitted that she violated the conditions of her probation by testing positive for drug use and not following through with other probation obligations.  The district court revoked appellant’s probation and executed her sentence. 

            On August 22, 2000, appellant filed a petition for postconviction relief, seeking to withdraw her guilty plea.  The only basis appellant gave was that she was “under extreme emotional distress” at the time of the plea.  The district court denied appellant’s petition without holding an evidentiary hearing.  The district court found that appellant did not assert a factual basis to support her claims, and therefore, denied her request to withdraw her guilty plea.  This appeal followed.

D E C I S I O N

Appellant argues that the postconviction court abused its discretion by denying her the right to an evidentiary hearing in support of her petition for postconviction relief.  A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).  We will reverse a postconviction court’s determination of whether to permit a withdrawal of a guilty plea only if the court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  A postconviction court does not abuse its discretion if the record contains sufficient evidence to sustain the court’s findings.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

            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); see also Hanson v. State, 344 N.W.2d 420, 423 (Minn. App. 1984).  A postconviction court may dismiss a petition for postconviction relief without 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) (holding that an evidentiary hearing is required only when facts are alleged that, if proved, would entitle petitioner to relief); State ex rel. Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967).  Further, there must be some factual support for a petition, not just argumentative assertions.  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).

            Appellant asserts that her guilty plea was not knowing, intelligent, or voluntary because she was suffering from severe emotional distress at the time of her plea.  In reviewing appellant’s petition, there is nothing more than the singular assertion that she was under emotional distress at the time that her plea was entered.  There is at least some indication in the record that appellant suffered from emotional distress at the time of her plea because one of her children had recently died.  We must assume that the facts asserted by appellant can be proved for the purposes of her appeal.  Sutherlin v. State, 574 N.W.2d 428, 436 (Minn. 1998).  Here, appellant’s only asserted “fact” concerns her mental state.  Therefore, we turn to an analysis of appellant’s guilty plea to determine if it is valid.

A guilty plea must meet three basic prerequisites to be valid.  It must be accurate, voluntary, and intelligent.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).

            A psychological evaluation performed on appellant in June 1998, the same month as her plea, concluded that appellant did not exhibit significant cognitive defects.  Appellant also stated that she had obtained her G.E.D., so she had, at least, the equivalent of a high-school education.  Therefore, we conclude that appellant’s plea was intelligent.

            Second, the record suggests that her plea was voluntary.  Both her public defender and the Hennepin County attorney questioned appellant as to her plea.  She affirmatively stated that she understood what was happening, that she had certain rights, and that by pleading guilty she was relinquishing those rights. 

            Third, and finally, we conclude appellant’s plea was accurate.

The main purpose of the accuracy requirement is to protect a defendant from pleading guilty to a more serious offense than [s]he could be convicted of were [s]he to insist on [her] right to trial.

 

Trott, 338 N.W.2d at 251.  The presumptive sentence for second-degree manslaughter, based on appellant’s criminal history score was a 48 month executed sentence.  Minn. Sent. Guidelines §§ IV, V; see also State v. Register, 471 N.W.2d 103, 103 (Minn. 1991) (presumptive sentence determination applies even when sentence is imposed but stayed).  Here, appellant received 120 days in a workhouse and probation, far less than she could have received if she had proceeded to trial.

            Appellant waited more than two years to bring her petition challenging the validity of her plea, after she obtained the benefits of her guilty plea in the form of a stayed sentence, and after her probation was revoked for a second time.  See Jones v. State, 288 Minn. 527, 529, 179 N.W.2d 315, 317 (1970) (holding that delay in bringing petition to withdraw guilty plea is factor to be considered).

            Appellant’s plea was accurate, voluntary and intelligent.  The district court properly denied appellant’s request for an evidentiary hearing because the record, the petition, and the files conclusively showed that petitioner was not entitled to relief.  The postconviction court did not abuse its discretion by denying the petition under Minn. Stat. § 590.04, subd.1.

Affirmed.