This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).







Willie Arthur Mosby, Jr., petitioner,





State of Minnesota,



Filed December 31, 2002


Robert H. Schumacher, Judge


Hennepin County District Court

File No. 98017267




John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)



Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.




Appellant Willie Arthur Mosby contends the postconviction court erred in denying his request for relief from his sentence for kidnapping. Initially, Mosby claims that the postconviction court denied him due process by refusing to hold a hearing on his petition. Mosby also alleges the postconviction court erred in refusing to modify the sentence he received in 1998 in light of the subsequent decision of this court and the supreme court in State v. Misquadace, 629 N.W.2d 487 (Minn. App. 2001), affd, 644 N.W.2d 65 (Minn. 2002), because the sentencing court relied on the parties' plea agreement as the sole basis for departing from the presumptive sentence. We affirm.


On June 15, 1998, Mosby pleaded guilty to kidnapping. Pursuant to a plea agreement, the state dropped two counts of criminal sexual conduct, and Mosby agreed to a sentence for the kidnapping charge of 90 months in prison and a fine of $10,500. Although Mosby's criminal history was substantial, the sentence was an upward departure from the presumptive sentence for the kidnapping charge. The district court accepted the plea agreement pursuant to State v. Givens, 544 N.W.2d 774 (Minn. 1996).

Then, in 2001, this court issued its opinion in Misquadace, holding that the legislature's pronouncement in 1997 (either a clarification of the law or an amendment to the law) regarding plea agreements and the sentencing guidelines effectively overruled Givens. This court decided that the legislature prohibited a district court from relying exclusively on a plea agreement as the basis for a departure from the presumptive sentence for a given crime. Mosby, relying upon this court's opinion in Misquadace, filed a petition for postconviction relief while supreme court review of Misquadace was pending, requesting that his sentence by reduced to the presumptive sentence because the sentencing court had relied exclusively on the plea agreement as the grounds for departure.

On April 12, 2002, the postconviction court denied Mosby's request for an evidentiary hearing, deciding that Mosby's request presented no issue of material fact requiring a hearing. Instead, the postconviction court found that the record supported Mosby's sentence because aggravating factors specifically the presence of the victim's minor child justified the departure irrespective of the plea agreement. The postconviction court also decided that the sentencing court had not committed an error of law because that court had sentenced Mosby in compliance with the law in effect at that time as per Givens. Accordingly, the postconviction court denied Mosby's request for relief. On May 9, 2002, the supreme court issued its opinion in Misquadace, affirming the court of appeals.


Appellate courts "review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record." Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). The court's findings will not be disturbed unless they are clearly erroneous. Id. "The decisions of a postconviction court will not be disturbed unless the court abused its discretion." Id. (citation omitted).


1. Mosby claims he was denied due process when the postconviction court refused to grant a hearing on his petition. The postconviction court did not grant a hearing because Mosby's allegations regarded questions of law as opposed to questions of material fact. See Krominga v. State, 311 N.W.2d 858, 859 (Minn. 1981) (holding that no evidentiary hearing is required when petition for postconviction relief raises no issue of material fact). When the petition and the record "conclusively show that the petitioner is entitled to no relief," the postconviction court is not required to grant a hearing on the petition. Minn. Stat. 590.04 (2000).

Moreover, as the postconviction court noted, Mosby did not raise questions of fact in his petition. Instead, Mosby made legal arguments that could be, and were, adequately addressed in writing. An evidentiary hearing would have served no useful purpose. The postconviction court's refusal to grant a hearing is not reversible error.

2. The postconviction court found that the record contained aggravating circumstances on which the sentencing court could have relied to justify the departure outside of Mosby's plea agreement. The record shows that the victim's two-year old was in the home at the time of the incident. The sentencing guidelines and case law indicate that this is an appropriate basis for a sentencing court to depart. See Minn. Sent. Guidelines II.D.2(b)(1); State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), (presence of victim's child in home during attack increases victim's vulnerability and compromises victim's ability to flee, even when children are asleep in another room), review denied (Minn. Jan. 16, 1992); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), (presence of child in adjoining room during violent crime "is analogous to a reduced physical capacity"), review denied (Minn. Oct. 13, 1989).

Moreover, under Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985), the sentencing departure should be affirmed if alternative grounds exist in the record that would justify the departure even if the reasons given for the departure are not valid. This is the situation in the present case. The sentencing court's reason for the departure was the plea agreement. Under the law at that time this was appropriate. This is no longer valid as the sole reason. The aggravating circumstance in the record, however, would provide alternative grounds to justify the departure. According to Williams, then, the departure should be affirmed. Accordingly, we need not determine whether or not Mosby's case was "pending" when the supreme court filed its opinion in Misquadace.