This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-03-274

 

 

Daniel Elmer Pella, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 23, 2003

Affirmed

Robert H. Schumacher, Judge

 

Todd County District Court

File No. K500717

 

 

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Steven H. Alpert, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Gaylord Saetre, Todd County Attorney, Todd County Government Center, 221 First Avenue South, Long Prairie, MN 56347 (for respondent)

 

 

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Daniel Elmer Pella challenges the denial of his petition for postconviction relief, arguing his sentence was the result of prosecutorial vindictiveness. We affirm.

FACTS

Pella was charged with four counts of controlled-substance crime in the first degree, possession and sale of methamphetamine, in violation of Minn. Stat. 152.021, subds. 1(1), 2(1), 3 (2000); two counts of controlled-substance crime in the second-degree, possession and sale of LSD, in violation of Minn. Stat. 152.022, subds. 1(3), 2(3), 3, .02, subd. 2(3) (2000); one count of controlled-substance crime in the third-degree, sale of opium, in violation of Minn. Stat. 152.023, subds. 1(1), 3, .01, subd. 10 (2000); and one count of controlled-substance crime in the fifth-degree, possession of marijuana, in violation of Minn. Stat. 152.025, subds. 2(1), 3 (2000).

After a contested omnibus hearing, the district court denied all of Pella's pretrial motions raising various procedural and substantive issues. The parties entered into a plea agreement whereby Pella pleaded guilty to one count of first-degree controlled-substance crime and the state dropped the remaining charges and recommended a 105-month sentence, the presumptive sentence under the Minnesota Sentencing Guidelines. Before sentencing, Pella filed a motion to withdraw his guilty plea, which the district court granted. Pella then filed a motion to reopen his omnibus hearing, which the district court denied.

The parties entered into a second plea agreement whereby Pella pleaded guilty to two counts of first-degree controlled-substance crime and the state dropped the remaining charges and recommended Pella serve concurrent sentences of 130 months on one charge and 110 months on the other. The presumptive guidelines sentence range for the more serious charge was between 129 and 139 months. The district court sentenced Pella to 130 months in prison.

Pella then filed a petition for postconviction relief, arguing he was entitled to reopen the omnibus hearing and the increased sentence recommended by the state pursuant to the second plea agreement was the result of prosecutorial vindictiveness. The claim of vindictiveness was supported by an affidavit from Pella's attorney, alleging that in negotiating the second plea agreement, the prosecutor announced he would recommend a longer sentence to "punish [Pella] due to the fact that he had exercised his right to have his earlier plea withdrawn." The district court denied the petition and Pella's request for an evidentiary hearing. Pella now appeals.

D E C I S I O N

This court reviews a postconviction proceeding to determine whether there is sufficient evidence to sustain the postconviction court's findings, and will not disturb a postconviction court's decision absent an abuse of discretion. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).

A district court must grant a hearing on the issues raised in a petition for postconviction relief "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. 590.04, subd. 1 (2002). A district court must grant an evidentiary hearing if the petitioner alleges material facts which, if proved beyond a fair preponderance of the evidence, would entitle him to the requested relief. Flournoy v. State, 583 N.W.2d 564, 568 (Minn. 1998).

Generally, a guilty plea by a counseled defendant waives all nonjurisdictional defects. State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986). Entry of a guilty plea therefore precludes a defendant from raising "'independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.'" State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608 (1973)).

At oral argument, Pella's counsel conceded the omnibus issues were waived by the guilty plea, but argued the allegation of prosecutorial vindictiveness, if proved, raises a nonwaivable constitutional claim entitling Pella to an evidentiary hearing. We disagree.

First, the supreme court has specifically held a claim of prosecutorial vindictiveness is nonjurisdictional and therefore "is waived by [a defendant's] guilty plea." State v. Murphy, 545 N.W.2d 909, 918 (Minn. 1996). We deny Pella's request to reject Murphy as "just plain wrong." See St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn. App. 1989) (stating that only in absence of statutory or judicial precedents will this court make new law), review denied (Minn. Mar. 29, 1989).

Second, the prosecutor's alleged statement does not present a violation that might warrant this court's review despite the waiver. See Minn. R. Crim. P. 28.02, subd. 4 (providing appellate court "may review any other matter as the interests of justice may require"). Pella correctly argues due process forbids the state to retaliate against a defendant who lawfully attacks a conviction. See Blackledge v. Perry, 417 U.S. 21, 26, 28, 94 S. Ct. 2098, 2102 (1974) (holding prosecutor acted with unconstitutional vindictiveness by bringing more serious charge in response to defendant's exercise of his absolute right to appeal conviction); North Carolina v. Pearce, 395 U.S. 711, 726, 89 S. Ct. 2072, 2081 (1969) (finding vindictiveness applies judge imposed increased sentence after defendant exercised right to appeal).

But the Supreme Court has held the State's unilateral retaliation against a defendant as occurred in Blackledge and Pearce presents

a situation very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, . . . [where] there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.

 

Bordenkircher v. Hayes, 434 U.S. 357, 362, 363, 98 S. Ct. 663, 667, 668 (1978) (quotation omitted). Under Bordenkircher, the prosecutor's intent to punish Pella by offering an increased sentence as part of the plea negotiation, even if proved, could not substantiate a claim of prosecutorial vindictiveness so long as Pella remained free to accept or reject the offer.

We conclude that even had Pella preserved this issue for review, the district court did not abuse its discretion by denying Pella's request for an evidentiary hearing on the issue of prosecutorial vindictiveness.

Affirmed.