may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Toussaint, Chief Judge
Sherburne County District Court
File No. K999001938
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Walter Kaminsky, Sherburne County Attorney, Sherburne County Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Avenue, Suite 2355, Minneapolis, MN 55402 (for appellant)
Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this appeal from a denial of postconviction relief, appellant Sandra Lea Clark argues that (1) the postconviction court erred in denying an evidentiary hearing on her claim that she was amenable to probation and entitled to a dispositional departure; (2) the sentencing court erred in declining to depart based on Clark’s minimizing of her involvement in the offense when mitigating factors existed; and (3) her attorney was ineffective in failing to move for a dispositional departure based on appellant’s medical condition. Because we conclude the district court did not err in its decisions, nor was there ineffective assistance of counsel, we affirm.
On appeal from summary denial of a petition for postconviction relief, this court determines only whether sufficient evidence exists to support the district court’s findings. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). This court will affirm the district court’s decision absent an abuse of discretion. Id.
Clark entered an Alford plea to a charge of aiding and abetting a first-degree controlled substance crime, the attempt to manufacture methamphetamine. The sentencing court denied Clark’s motion for a dispositional departure and imposed the presumptive sentence, an executed term of 43 months in prison.
Sentencing decisions rest within the broad discretion of the district court and will not be reversed absent a clear abuse of that discretion. State v. Larson, 473 N.W.2d 907, 908 (Minn. App. 1991). “Only in a ‘rare’ case will a reviewing court reverse a district court’s imposition of the presumptive sentence.” State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996) (citation omitted).
Clark argues that, given the nature of her plea, her conduct was significantly less serious than that which is typically involved with aiding and abetting first-degree manufacture of methamphetamine. This argument is contrary to case law. See State v. Winchell, 363 N.W.2d 747, 749 (Minn. 1985) (explaining that “a defendant, by minimizing his guilt in his testimony at the time he pleads guilty, may not thereby bind the court to his version of the facts”).
Clark also cites her lack of a prior record as a basis for a dispositional departure. A defendant’s prior record is a factor that may be considered in determining the defendant’s amenability to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). But amenability to probation does not require a dispositional departure. State v. Kinsky, 348 N.W.2d 319, 326-27 (Minn. 1984).
Clark next contends that the sentencing court erred in denying a dispositional departure based in part on Clark’s minimizing her role in the offense. Citing State v. Cox, 343 N.W.2d 641 (Minn. 1984) and State v. Womack, 319 N.W.2d 17 (Minn. 1982), Clark suggests that, by basing its decision in part on Clark’s minimizing her role, the sentencing court improperly considered the fact that she could have been convicted of a more serious charge in denying a dispositional departure.
The sentencing court, however, did not do that. Rather, the sentencing court found incredible Clark’s testimony that she had only a minor role in the offense for which she was convicted. The court (1) expressly stated that it did not believe Clark’s claim that a funnel in her purse that tested positive for methamphetamine and pseudoephedrine, was in her purse for putting perfume in a bottle; and (2) found that Clark was untruthful about her drug use during the pre-sentence investigation (PSI) when her urine sample tested positive for methamphetamine. Clark claimed that it must have been a false positive due to her use of legal ephedrine tablets, yet she did not seek a confirmatory test. The sentencing court determines the weight and credibility of evidence relevant to sentencing. State v. McCoy, 631 N.W.2d 446, 452 (Minn. App. 2001).
The record shows that the sentencing court considered the grounds asserted by Clark for a sentencing departure. Clark has failed to demonstrate that the sentencing court abused its discretion in declining to grant a downward departure. The facts alleged by Clark in this postconviction proceeding, if proved, would not warrant the modification or reversal of her sentence. Therefore, the postconviction court did not err in denying Clark an evidentiary hearing on her sentencing claim. See State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (holding that a postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity).
2. Ineffective Assistance
When a postconviction petitioner makes a claim of ineffective assistance of counsel, the petitioner must allege facts affirmatively showing that
counsel’s representation “fell below an objective standard of reasonableness” and “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) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
Clark argues that her attorney provided ineffective assistance by failing to assert her medical condition, moderately severe chronic obstructive pulmonary disease, as a ground for a dispositional departure. During the sentencing hearing, Clark’s attorney did advise the court that Clark suffered from emphysema and that incarceration would exacerbate the condition. Clark herself also spoke about her medical condition. Clark cites no authority indicating that it was error for her attorney to refrain from specifically listing her medical condition as a departure ground. See State v. Miller, 374 N.W.2d 529, 532 (Minn. App. 1985) (in rejecting claim that poor physical health compelled alternative sentencing arrangements, court noted that prison had adequate facilities to treat health problems).
Because the facts alleged by Clark are insufficient to establish either ineffective assistance of counsel or resultant prejudice, the postconviction court did not err in denying Clark relief based on her ineffective-assistance-of-counsel claim.