This opinion will be unpublished and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

C1-01-1205

 

James Earl Williams, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed January 29, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. K2962889

 

 

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

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Blvd., St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellant James Earl Williams challenges the district court’s denial of his petition for postconviction relief, requests the withdrawal of his guilty plea, and challenges the reasons cited in support of his sentencing departure.  Appellant also argues that the prosecutor wrongfully withheld exculpatory evidence.  Because the district court did not abuse its discretion in denying appellant’s petition, and the prosecutor did not wrongfully withhold exculpatory evidence, we affirm.

FACTS

On September 9, 1996, D.B., a 38-year-old female, reported to the police that she had been raped in a vacant lot.  She later identified appellant James Earl Williams as her assailant.

D.B. stated that she had gone to the vicinity of the rape to buy drugs and had met Williams in an apartment.  When they left the apartment to go to another location, they walked past a vacant lot.  Williams then grabbed D.B. by the arm, told her to be quiet or he would kill her, and said he had a gun.  He then forced her to have oral and vaginal sex.

The state charged Williams with criminal sexual conduct in the third degree, but agreed to reduce the charge to fourth degree if Williams pleaded guilty.  He did so and acknowledged that, if the case were tried, D.B. would testify consistently with her report to the police.

As part of the plea agreement, the district court sentenced Williams to a term of 68 months in prison, an upward durational departure from the presumptive sentence of 44 months, but departed downward dispositionally, and placed Williams on probation for ten years.  One condition of Williams’ probation was inpatient sex-offender treatment.

When Williams was not able to find a treatment program, the district court held a probation-revocation hearing.  At that hearing, the state disclosed that it had received DNA results four months earlier that showed no evidence of Williams’ semen on D.B.’s person or clothing.

Williams stated on the record that he had discussed the DNA results with his attorney and had decided not to move for leave to withdraw his plea.  The court deleted the treatment requirement from the conditions of probation, and Williams remained on probation.

Three years later, the district court revoked Williams’ probation for various violations and executed his sentence.  Williams then petitioned for postconviction relief, and the court denied his petition.  He appealed, contending that the district court erred in accepting his guilty plea without an adequate factual basis, and that there were no substantial and compelling circumstances justifying a durational departure from the presumptive sentence.  In his pro se supplemental brief, Williams also contends that the state improperly withheld exculpatory DNA evidence from him.

 

D E C I S I O N

Williams appeals from the district court’s denial of his petition for postconviction relief.  This court’s review of a postconviction proceeding is limited to an examination of whether there is sufficient evidence in the record to sustain the district court’s findings.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The postconviction court’s decision will not be disturbed absent an abuse of discretion.  Id. 

1.         Withdrawal of Guilty Plea

            Williams argues that the district court erred in denying his request to withdraw his guilty plea, because there are no facts showing that he coerced the victim into performing a sex act.  Williams does not have an absolute right to withdraw his guilty plea.  State v. Washburn, 602 N.W.2d 244, 245 (Minn. App. 1999).  He may do so after sentencing only on a timely motion and with proof that withdrawal of his plea is necessary to correct a manifest injustice.  Smith v. State, 596 N.W.2d 661, 663 (Minn. App. 1999), review denied (Minn. Aug. 27, 1999). 

“Coercion” is defined in Minn. Stat. § 609.341, subd. 14 (1996), as

words or circumstances that cause the [victim] reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the [victim] or another, or force the [victim] to submit the sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.

 

As a factual basis for his guilty plea, Williams admitted that he coerced D.B. into having sex with him, but he said the form of the coercion was his promise to give her drugs in exchange for sex.  Such a promise does not fit the statutory definition of coercion.  But Williams entered a Goulette plea, and, in doing so, he admitted that D.B. would testify at trial consistently with her report to the police.  He thus admitted that the evidence would show that he told D.B. that he had a gun and that he threatened to kill her.  These words and the circumstances surrounding the rape provide a basis for concluding that Williams coerced D.B. into having sex with him.

Therefore, there was an adequate factual basis for Williams’ guilty plea and a withdrawal of that plea is not necessary to correct a manifest injustice.

2.         Durational Sentencing Departure

Williams argues that none of the reasons the district court gave justifies the durational sentencing departure.  In the presence of aggravating or mitigating circumstances, the district court has broad discretion to depart from the presumptive sentence.  State v. Behl, II, 573 N.W.2d 711, 714 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998).  However, in order to depart, the district court must find that the conduct involved was more or less serious than that typically involved in the commission of that crime.  Id.

The district court based its durational departure on the plea bargain, the fact that Williams forced two types of sexual penetration, and Williams’ lack of remorse for his crime.

a.         Sexual penetration

Williams argues that there was no evidence of multiple forms of penetration.  However, the record shows that he admitted that he engaged in fellatio and sexual intercourse with the victim.  Thus, the district court’s findings of multiple acts of penetration are supported by the record.

b.         Lack of remorse

Williams contends that his lack of remorse is an improper basis to support an upward durational departure.  However, at the time that he was sentenced, it had been established that lack of remorse may be used “as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based.”  State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996) (quoting State v. McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984), review denied (Minn. July 10, 1996).  The district court’s use of Williams’ lack of remorse was a proper basis supporting the upward durational departure.

c.         Agreement of the parties

The district court’s third basis for departure was the agreement of the parties.  It is questionable whether the district court can depart from the presumptive sentence based upon the plea agreement alone.  See State v. Misquadace, 629 N.W.2d 487, 492 (Minn. App. 2001) (district court cannot rely solely on defendant’s agreement to depart from the presumptive sentence; must also recite substantial and compelling circumstances warranting departure), review granted (Minn. Sept. 25, 2001).  But Williams’ sentencing took place in 1997, and the law did not clearly prohibit departures based on the plea agreement alone.  See State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996) (allowing defendant to agree to a sentencing departure as part of a plea bargain).  Furthermore, the district court found aggravating factors beyond the plea agreement in support of appellant’s departure, and, thus, Misquadace does not control.

Williams also argues that the court did not follow the requirements in Givens for a knowing, voluntary, and intelligent plea.  Givens held that, when a defendant agrees to a durational departure, he must have been advised of his right to be sentenced under the guidelines, have the opportunity to consult counsel, and have the waiver approved by the district court.  Id. at 777.  There is nothing on the record, either at the time Williams entered his guilty plea or at the sentencing hearing, indicating that these requirements were met.

Even if the district court erred in departing upon the agreement of the parties without ensuring that the Givens requirements were clearly met, the durational departure is justified nevertheless upon the other aggravating factors.

3.         Withholding of Evidence

In his pro se brief, Williams argues that the prosecutor improperly withheld evidence showing that his DNA was not found in D.B’s body or on her clothing.  In determining whether the prosecutor improperly withheld exculpatory evidence, we look at whether the evidence was material exculpatory evidence, meaning whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the [case] would have been different.”  State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).  At the entry of Williams’ guilty plea, the prosecutor asked Williams whether he was aware that the hospital records showed no evidence of semen inside D.B., and Williams said he was.

New defense counsel appeared at the first probation revocation hearing and noted that, when she received the file, she discovered that DNA documents excluding Williams as a contributor were mailed to the county attorney’s office about one-and-one-half months after the entry of his guilty plea:

[D]ocuments that were mailed to the county attorney’s office on [December] 23, 1996, so approximately a month and a half or ‑ yeah, approximately about a month after the plea of guilty from the BCA, the blood, semen was found on * * * the panties, blood was taken from [appellant] and from the victim and was submitted to the BCA for testing.  When [appellant] entered his plea of guilty, I had informed them they could quit the testing procedures.  I received the fax * * * [which states that the BCA] must have finished this test or gone ahead because then we have these results, which I have disclosed to counsel yesterday.  But the results * * * indicate that a mixture was consistent with DNA from two or more individuals * * * [which eliminates appellant] as being a contributor to this mixture.

 

Defense counsel stated that “I think for the record I have discussed this with Mr. Williams this morning * * * .”  Williams agreed and then affirmed on the record that, despite that information, he had decided that he would rather be put on probation than move to withdraw his plea and have a trial.

Because Williams decided to abide by the plea bargain rather than risk a trial on the charges even after receiving the additional exculpatory evidence, we do not believe that the outcome of the case would have been different had Williams received the exculpatory evidence any earlier.  Thus, the exculpatory evidence was not wrongfully withheld.

The district court did not abuse its discretion in denying Williams’ petition for postconviction relief.  The state did not wrongfully withhold exculpatory evidence.

Affirmed.