This opinion will be unpublished and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
State of Minnesota,
Connie Lynn Neal, petitioner,
Filed May 21, 2002
Ramsey County District Court
File No. K0971878
Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, Suite 4000, 600 North Robert Street, St. Paul, MN 55146-0600 (for respondent)
Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
Appellant Connie Lynn Neal challenges a district court order denying her petition for postconviction relief stemming from her 1998 conviction on ten counts and sentence for nine counts of theft by swindle under Minn. Stat. § 609.52, subd. 2(4) (1996). The evidence showed that she established a transportation company to needlessly transport mentally ill patients merely to bill for the service and that she defrauded Medicaid by obtaining reimbursement for those services.
Appellant seeks postconviction relief on the following grounds: (1) the evidence was insufficient to prove that she committed theft by swindle; (2) she was prejudiced by the district court’s erroneous admission of irrelevant evidence, including her troubled relationship with co-defendant husband; (3) the prosecutor committed prejudicial misconduct by presenting this evidence; (4) the state improperly manipulated the charging process so as to increase her criminal history score by aggregating bills that her company charged to Medicaid into ten separate counts; (5) because the multiplication of counts against her resulted in an exaggerated, executed presumptive sentence, the district court abused its discretion by sentencing her on nine counts of swindle; and (6) the postconviction court abused its discretion by denying her an evidentiary hearing on her claim of ineffective assistance of counsel. Appellant also filed a pro se brief that essentially challenges the sufficiency of the evidence supporting her convictions. Because the district court did not err or otherwise abuse its discretion by denying appellant’s petition for postconviction relief, we affirm.
Generally, this court reviews a postconviction decision under an abuse of discretion standard of review in which our “scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” State v. Ranier, 502 N.W.2d 784, 787 (Minn. 1993) (citation omitted). Where a petitioner’s direct appeal is dismissed on procedural grounds, as here, the petitioner may raise substantive issues in a postconviction appeal. State v. Olson, 609 N.W.2d 293, 299 (Minn. App. 2000), review denied (Minn. July 25, 2000).
1. Sufficiency of the Evidence and Pro Se Arguments
Appellant argues that the evidence was insufficient to prove that she swindled Medicaid. Our review of a claim of insufficiency of the evidence is limited to determining whether the evidence, viewed in the light most favorable to the conviction, was sufficient to permit reasonable jurors to have reached a guilty verdict. State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996). We must decide “whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.” State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000) (quotation omitted). In a bench trial, the court’s findings are given the same weight as a jury verdict. State v. Bouwman, 354 N.W.2d 1, 4 (Minn. 1984).
Theft by swindle is defined as “swindling, whether by artifice, trick, device, or any other means, [to] obtain property or services from another person.” Minn. Stat. § 609.52, subd. 2(4) (1996). As this court has previously noted,
[t]here is no single definition capable of covering the range of possibilities for “swindle.” Generally, the offense of swindling is cheating and defrauding an individual of his or her property by deliberate artifice.
State v. Ulvestad, 414 N.W.2d 737, 740 (Minn. App. 1987) (citations omitted), review denied (Minn. Jan. 15, 1988).
The evidence established that appellant engaged in the following conduct: (1) appellant, the CEO and sole owner of Special Care Transportation, Inc. (Special Care), expressly stated that her primary purpose in creating the company was to maximize her earnings; (2) because of a prior felony conviction related to her submission of false Medicaid claims, appellant was barred from providing medical assistance services, but she failed to disclose her suspended status when she enrolled her company in the medical assistance program; (3) appellant directed Joe Kanz, Special Care’s transportation coordinator and primary driver, to sign the medical assistance program enrollment forms as the “owner” of the company; (4) appellant determined which patients would be transported daily from their residences to the office or residence of her husband, psychologist Dr. Robert Neal; (5) in order to arrange for the maximum number of patients to be seen in a day, appellant directed a patient at one residence to line up other patients to facilitate a “fast turn around” and ordered that patients be given unnecessary psychological tests, that testing of patients be stopped after expiration of a reimbursable time period under Medicaid rules, and that employees “nab” other patients at their residences whenever possible; (6) during the first four months of her company’s operation, appellant fraudulently billed all patient transports as single transports, even though many were multiple, knowing that Medicaid mandated a lower prorated reimbursement rate for multiple riders; (7) appellant directed non-certified staff, including a housekeeper, to act as company drivers; and (8) appellant ordered that her own non-certified personal vehicle be used to transport patients. From evidence and the inferences that may be drawn, a reasonable factfinder could easily conclude that appellant intended to establish and operate her company so as to wrongfully obtain Medicaid funds. See State v. Saybolt, 461 N.W.2d 729, 735 (Minn. App. 1990) (“Theft by swindle requires the intent to defraud.”), review denied (Minn. Dec. 17, 1990).
Appellant argues that her mere violation of Medicaid rules is not synonymous with theft by swindle and that she did not commit theft by swindle because her company “gave value for the money it received.” Appellant also contends that her failure to disclose her suspended Medicaid status “did not prompt DHS to pay for services it otherwise would not have had to pay some other transportation company.”
Case law on swindle does not support appellant’s claims. In order to prove theft by swindle, the state need only prove that by some artifice, trick, or device, appellant swindled Medicaid funds from the state. Minn. Stat. § 609.52, subd. 2(4). In State v. Lone, 361 N.W.2d 854, 860 (Minn. 1985), the supreme court stated that “[i]n theft by swindle, value becomes irrelevant” and declined to balance the harm to the person swindled against the value of what the person received. The Lone court emphasized: “‘[t]he fact that the transaction has the semblance of a legitimate business contract may obscure its true nature, but not prevent it from constituting a swindle.’” Id. at 859 (quoting State v. Wells, 265 Minn. 212, 214, 121 N.W.2d 68, 69 (1963)); see Ulvestad, 414 N.W.2d at 740 (“valuation is irrelevant in convictions for theft by swindle”). Here, the evidence of appellant’s lawless actions and sophisticated scheme demonstrated her intent to swindle Medicaid by seeking reimbursement for transportation services that her company provided to mentally ill patients.
In a lengthy pro se brief that fails to offer any legal support, appellant appears to argue that the evidence is insufficient to support her convictions. We have fully considered this brief and find no merit to appellant’s claims.
2. Evidentiary Errors
Appellant contends that the postconviction court abused its discretion by failing to grant her a new trial based on evidentiary errors. At great length, appellant recounts numerous instances of alleged district court error in the admission of evidence at trial. She claims that the court erred in admitting the following testimony: (1) former employee Cindy Hoffman’s testimony about appellant’s domestic abuse of her husband and her propensity for violence towards others; (2) nursing home administrator Mary Dollerschell’s testimony about events leading up to the termination of Dr. Neal’s contract with Dollerschell’s nursing home, appellant’s conduct following the termination, and the merits of appellant’s custom of encouraging mentally ill patients to agree to therapy with Dr. Neal by offering them gifts of food and cigarettes; (3) former collaborating psychologist Gary Donaldson’s testimony regarding appellant’s prediction about how much money she could earn through Special Care’s transportation services and his “guess” that many patients could have used a bus for transportation rather than using Special Care; and (4) Dr. Neal’s testimony that appellant threatened him and violently assaulted him and his testimony that appellant’s billing practices were fraudulent. However, no objections were raised during trial to the admission of any of this evidence.
Generally, the failure to object to the admission of evidence waives the right to object to the admission on appeal. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). In order to overcome such a waiver, a petitioner must show that the district court erroneously admitted the evidence, that the error was plain, and that the ruling affected the petitioner’s substantial rights and denied her a fair trial. Id.
We conclude that appellant has failed to meet the requirements of Bauer. In her opening statement at trial, appellant portrayed herself as the victim of her husband’s exploitation and as being dependent on him. Some of the evidence appellant now challenges as erroneously admitted was relevant to counter this portrayal and to prove appellant’s intent to swindle. While some testimony appears irrelevant, including an incident in which appellant slapped Dr. Neal’s son in a parking lot, appellant’s substantial rights were not affected, and she was not otherwise denied a fair trial. Because this was a bench trial, it is unlikely that the court was improperly persuaded by any of this irrelevant evidence, and the bulk of the admissible, relevant evidence strongly pointed towards appellant’s guilt. We therefore conclude that the district court did not abuse its discretion by denying appellant’s motion for a new trial due to claimed evidentiary errors.
3. Prosecutorial Misconduct
Appellant also argues that the prosecutor committed misconduct by offering this irrelevant evidence. Generally, the failure to object to a prosecutor’s statement at trial operates as a waiver of the issue on appeal. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). Only where the error is grave may the defendant overcome her failure to object to prosecutorial misconduct occurring at trial. State v. Ives, 568 N.W.2d 710, 713-14 (Minn. 1997). Because any misconduct on the prosecutor’s part was not “inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied,” the district court did not abuse its discretion in denying appellant’s motion for postconviction relief due to prosecutorial misconduct. See State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).
4. Prosecutorial Abuse of Charging Process
Appellant claims that the prosecutor abused his discretion in charging her with multiple counts of swindle, rather than aggregating the counts by grouping her conduct into three types of swindle or into one count to cover all of her actions. She alleges that the charging decision made here caused her to receive an executed sentence of 41 months, rather than a presumptively stayed sentence. She also alleges that the prosecutor’s charging decision violated her due process and equal protection rights.
The counts as charged were aggregated by date and type, with the first eight counts relating to the fraudulent transportation charges and the last two counts relating to aiding and abetting fraudulent psychotherapy and related psychological services and fraudulent psychological testing. The offense amounts for each count ranged from $757.60 to $9,754.40.
Prosecutors generally have broad discretion when charging criminal offenses. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978); see State v. Richardson, 633 N.W.2d 879, 884 (Minn. App. 2001) (“in the absence of any limiting statutory language, we give deference to the prosecutor’s discretion to evaluate the facts of a case, which may lead to various combinations of charges, and to select the particular charges best suited to achieve justice”). Minnesota theft statutes give a prosecutor the discretion to “either prosecute seriatum or aggregate the offenses.” State v. Hanson, 285 N.W.2d 483, 485 (Minn. 1979). There is a presumption that prosecutors initiate criminal charges in good faith and without discrimination. State v. Jones, 451 N.W.2d 55, 58 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). To show impermissible, discriminatory enforcement in violation of the Equal Protection Clause, a defendant must show that
while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and * * * that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitional right.
State v. Hyland, 431 N.W.2d 868, 872-73 (Minn. App. 1988) (quoting State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984)).
In support of her claim that the prosecutor should have aggregated the charges against her, appellant relies on Minn. Stat. § 609.52, subd. 3(5) (1996). This statute states that the charges for conduct that occurred “within any six-month period may be aggregated.” The language of the statute is permissive rather than mandatory, however, and does not provide a basis for showing that the prosecutor’s charging decision was improper. See Minn. Stat. § 645.44, subd. 15 (1996) (use of “may” in Minnesota statutes is permissive). Further, appellant has not shown that the charging decision was based on any constitutionally impermissible considerations such as race or religion. Finally, the fact that the multiple counts against appellant resulted in an executed sentence rather than a stayed sentence is not a basis for granting a new trial or resentencing. See State v. Soto, 562 N.W.2d 299, 304-05 (Minn. 1997) (supreme court declines to adopt doctrines of sentencing entrapment or manipulation as basis for downward sentencing departure in drug case where multiple offenses charged).
Nevertheless, we note that the incremental increase of prison time a defendant serves as a result of the Hernandez method of sentencing might unduly exaggerate the criminality of a defendant’s conduct where the defendant was initially charged serially rather than in an aggregate charge. We also note that case law on selective prosecutorial enforcement predates adoption of the Minnesota Sentencing Guidelines, which have the purpose of “reduc[ing] sentencing disparity” and ensuring proportional sentences. Minn. Sent. Guidelines I. Although the ultimate effect of the charging process here led to a presumptive commitment to prison rather than a stayed sentence, appellant was sentenced to concurrent sentences. Therefore, we conclude that the criminality of her conduct was not improperly exaggerated.
Relying on the same argument that she urges this court to adopt in the previous issue, appellant claims that the district court abused its discretion in sentencing her. She claims that she should have received only one sentence for her conduct because the multiple count charging resulted in a sentence that unfairly and unconstitutionally enhanced her criminal history score and increased her punishment. She also claims that her offenses arose from only one behavioral incident and that she should have been sentenced accordingly.
A district court has broad discretion in sentencing, and this court will not reverse absent a clear abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). A sentencing court, with certain exceptions, may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996). “In determining whether two convictions arose from a single behavioral incident, this court must examine the offenses to see whether they were motivated by a desire to obtain a single criminal objective.” Richardson, 633 N.W.2d at 888 (citation omitted). Other factors to consider are “the unity of time and of place of the behavior.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995) (quotation omitted).
Even where the defendant’s criminal objective is to “swindle as much as possible,” the supreme court has held that multiple offenses arising out of this objective are “too broad to be a single criminal goal within the meaning of section 609.035.” State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980). Further, “[m]aking deceptive billings a continuing business practice does not transform [those billings] into a single behavioral incident.” State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn. App. 1992) (citation omitted), review denied (Minn. Mar. 19, 1992).
We conclude that the district court did not abuse its discretion in sentencing appellant for multiple counts that included three separate types of swindle, where appellant made hundreds of fraudulent billings to recover Medicaid funds and aided and abetted Dr. Neal in providing fraudulent psychotherapy and testing to mentally ill persons. In addition, the offenses occurred over a six-month period and included a total theft amount of more than $50,000. State v. Pittel, 518 N.W.2d 606, 607-08 (Minn. 1994) (six instances of defrauding travel agency over five-month period not a single behavioral incident); State v. Moore, 340 N.W.2d 671, 673 (Minn. 1983) (eight forgeries involving same victim and committed over three-month period not a single behavioral incident).
6. Denial of Hearing on Ineffective Assistance of Counsel Claim
Appellant also claims that the postconviction court abused its discretion by denying her request for an evidentiary hearing to establish a record for her claim of ineffective assistance of counsel. A postconviction court may dismiss a petition for postconviction relief without holding an evidentiary hearing if the record and petition “conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2000). To merit an evidentiary hearing, a petitioner “must allege facts that would, if proven by a fair preponderance of the evidence, entitle him to relief.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001) (citation omitted). Any doubt as to the necessity for a hearing must be resolved in favor of the petitioner. Id.
Appellant claims that her attorney’s representation was ineffective because he repeatedly failed to object to the admission of irrelevant and prejudicial evidence, failed to present documentary evidence in the form of a DHS worksheet that would have supported her decision not to sign her name as owner of Special Care on the enrollment application to become a transportation provider, and improperly called Dr. Neal as a defense witness before interviewing him.
To prevail on an ineffective assistance of counsel claim, an appellant must show that trial counsel’s representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”
Id. (quoting State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998)); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “There is a strong presumption that counsels’ performance was reasonable.” Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (citation omitted).
In light of the volume of evidence, both testamentary and documentary, that supported appellant’s guilt, and the fact that the case was tried to the court, we conclude that appellant cannot meet the standard of proof required to hold a hearing on her ineffective assistance of counsel claim. A review of the trial transcript shows that her counsel made timely objections and that his failure to make more objections could have been a proper trial tactic designed to avoid alienating the court. Further, the fact that appellant’s counsel may have failed to offer one piece of evidence explaining appellant’s failure to personally sign the transportation provider enrollment application was of little consequence because any such evidence was duplicative of appellant’s trial testimony. Finally, although an attorney’s failure to interview a witness before trial is troublesome, we are not convinced that it influenced the result in this case. At various times, Dr. Neal’s testimony assisted appellant’s defense. Thus, we conclude that the district court did not abuse its discretion in denying appellant’s petition for a hearing to establish a record for her ineffective assistance of counsel claim.
 At sentencing, upon the state’s request, the court upheld the conviction on Count VIII, but declined to sentence appellant on that count.
 The Medicaid funds were paid by the Department of Human Services (DHS), which receives public funds from Medicaid to provide funding for certain services to qualified Medicaid recipients.