This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-341

 

 

Larry Kenneth Karius, petitioner,

Appellant,

 

vs.

State of Minnesota,

Respondent.

 

Filed October 7, 2003

Affirmed

Lansing, Judge

 

Anoka County District Court

File No. K8-01-5957

 

 

Larry Kenneth Karius, OID No. 211538, MCF-St. Cloud, 2305 Minnesota Boulevard Southeast, St. Cloud, MN† 56304-2424 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and

 

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Crippen, Judge.*


U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† Larry Karius appeals from the district courtís denial of his postconviction challenge to the validity of his guilty plea to first-degree burglary.† He also appeals the district courtís denial of an evidentiary hearing on five additional issues raised in his postconviction petition.† The district court did not abuse its discretion in denying the petition or in denying an evidentiary hearing on five of the six issues, and we affirm.

F A C T S

The state charged Larry Karius with first-degree burglary for entering Jean and Douglas Schatzís home and assaulting Douglas Schatz.† The factual basis for Kariusís guilty plea included statements from Jean Schatz, who is Kariusís mother, and Douglas Schatz, who is Kariusís stepfather.† At the plea hearing Karius admitted that on the morning he entered the Schatz home, Jean Schatz told him not to come into the house.† Karius did not reside in the house.† Douglas Schatz went outside and told Karius to leave or he would call the police.† As Douglas Schatz began to close the door, Karius charged through it, causing damage to the door.† Once inside the house he began hitting and punching Douglas Schatz.† Police arrested Karius, and, in a search of his person, found more than forty-two-and-a-half grams of marijuana.

In addition to his guilty plea to first-degree burglary in violation of Minn. Stat. ß 609.582, subd. 1(a) (2000), Karius also pleaded guilty to one count of fifth-degree controlled-substance crime in violation of Minn. Stat. ß 152.025, subd. 2(1) (2000).† In exchange the state dismissed two other counts and agreed that Kariusís two felonies would be reduced to misdemeanors if Karius successfully completed probation.

The court accepted Kariusís guilty plea and stayed imposition of sentence on both counts.† As a condition of the stay of imposition, the court placed Karius on probation for up to twenty years for the felony burglary and up to five years for the controlled-substance crime.† The court also ordered Karius to serve 180 days in jail and to abstain from any mood-altering substances, including alcohol.

Following release from jail, Karius went to the work-release facility to retrieve his belongings.† Because he smelled of alcohol, a breath test was administered.† The test showed a blood alcohol level of 0.127 alcohol concentration.† Karius admitted that he violated probation by using alcohol, and the district court revoked probation.† The court imposed a sentence of twenty-seven months for the burglary conviction and thirteen months for the drug offense but stayed execution.† As a condition of the stay, the court required Karius to serve thirty days in jail and reinstated him to probation on the previous conditions with the added condition that he have a chemical-dependency evaluation and follow the resulting recommendations.

Karius served the thirty days.† Five days later police received a report that he was providing alcohol to minors.† While investigating the report, police administered an alcohol test that registered Kariusís alcohol concentration at 0.117.† The court found that Karius had again violated probation.† As a consequence, the court revoked the stay of execution, revised Kariusís burglary sentence to twenty-one months, and executed the sentence.†

Before disposition on his second probation violation, Karius filed a petition for postconviction relief citing six grounds which included the basis for the plea, the intelligence of the plea, and the duration of probation.† The district court granted Karius an evidentiary hearing on his claim that his plea was invalid because he was misinformed of the duration of his probation.† The court denied an evidentiary hearing on the remaining claims.† Following the evidentiary hearing on the validity of the guilty plea, the district court denied postconviction relief on all grounds stated in the petition, allowing the revocation hearing to proceed.† Karius appeals the denial of postconviction relief.

D E C I S I O N

††††††††††† We review the decision of a postconviction court for abuse of discretion.† Scales v. State, 620 N.W.2d 706, 707 (Minn. 2001).† If the petition, files, and records conclusively show that the petitioner is entitled to no relief, a postconviction court may dismiss the petition without an evidentiary hearing.† Minn. Stat. ß 590.04, subd. 1 (2002); Scales, 620 N.W.2d at 707-08.† Conversely, an evidentiary hearing is necessary when a dispute over material facts must be resolved to determine the issues on the merits.† State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001).

††††††††††† When the district court holds an evidentiary hearing and issues findings, we review its postconviction order to determine whether the evidence is sufficient to sustain the findings.† Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).† A postconviction courtís factual findings will be sustained if they are supported by sufficient evidence, but we independently determine the law as it applies to the facts.† Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

I

A criminal defendant may withdraw a guilty plea if the withdrawal is necessary to correct a manifest injustice.† Minn. R. Crim. P. 15.05, subd. 1.† A guilty plea must be accurate, voluntary, and intelligent to be valid.† Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).† If a guilty plea is inaccurate, involuntary, or unintelligent, a manifest injustice occurs, and a defendant should be allowed to withdraw his plea.† Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).

Karius asserts his plea was unintelligent because his attorney had promised he would be on probation for only five years.† At the evidentiary hearing Karius testified that he was unaware that he would receive twenty yearsí probation because the public defender who was his attorney of record had gone through the plea petition with him and told him he would receive five yearsí probation.† But the two public defenders who represented Karius testified that they had not told him that he would receive only five yearsí probation.† Testimony also indicated that it was the managing attorney of the public defenderís office, not the attorney of record, who went through the plea petition with Karius.† In addition to his attorneysí testimony that directly contradicted Kariusís, Kariusís own testimony was inconsistent.† At the plea hearing he testified that it was the managing attorney who had explained the plea petition to him; at the evidentiary hearing he stated that it was his other attorney, the public defender of record, who had explained the petition.

When credibility determinations are crucial to determining whether a guilty plea was accurate, voluntary, and intelligent, a ďreviewing court will give deference to the primary observations and trustworthiness assessments made by the district court.Ē† State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (citation omitted), review denied (Minn. June 11, 1997).† The district court specifically found that it believed the testimony of the attorneys and disbelieved Kariusís testimony.

The plea petition also listed the minimum and maximum penalties for Kariusís convictions.† Nowhere on the document was a five-year probationary period listed.† Karius testified at the evidentiary hearing that he had read the petition and was aware of the maximum sentence listed on the plea petition.† The maximum twenty-year probation period on the burglary conviction and the recommended conditions of probation were also listed in the presentence investigation report.

The testimony, including Kariusís own testimony, provides sufficient evidence to support the district courtís finding that Kariusís attorney did not promise that Karius would receive a five-year probationary period.† The district court did not abuse its discretion in finding Kariusís plea was intelligent.

We also note that Kariusís first probation violation occurred within one year of his probation and the second occurred shortly thereafter.† Although we recognize that this timing does not determine the intelligence of the plea, whether Karius had received a five-year or twenty-year probation would not have made a difference in his ultimate incarceration; in either case Karius would still have been on probation at the time the violation occurred.†

II

 

††††††††††† Karius challenges the district courtís denial of an evidentiary hearing on the five remaining claims:† ineffective assistance of counsel, false inducement to plead guilty, unreasonable prosecutorial and judicial failure to consider views of victims, lack of factual basis for the plea, and excessive and disproportionate sentencing.

Kariusís ineffective-assistance-of-counsel claim was based solely on the alleged five-year probation promise.† Consequently the evidentiary hearing on whether his plea was intelligent encompassed the same facts and testimony that would have been submitted in his ineffective-assistance claim.† The district court rejected Kariusís factual claims and accepted the testimony of his attorneys.† This determination is dispositive of the ineffective-assistance claim.† This is also true of Kariusís claim that his plea was induced by a false promise on the duration of probation.† Karius was not improperly denied an evidentiary hearing on these issues.

To obtain an evidentiary hearing a petition must allege facts that would entitle the petitioner to relief if proven.† Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).† Karius provides no legal basis for his claim of unreasonable prosecutorial and judicial failure to consider the views of the victims, and we are unable to discern one.† The district court did not abuse its discretion by not allowing an evidentiary hearing on this ground.

††††††††††† Karius asserts that he is entitled to relief because his burglary conviction is unsupported by a factual basis showing his entry into the house was without consent.† Minn. Stat. ß 609.582, subd. 1 (2000), provides that ď[w]hoever enters a building without consent and with intent to commit a crime . . . commits burglary in the first degree.Ē† The record of the plea hearing shows that Karius and both the Schatzes stated that Karius was told not to enter the house.

During the evidentiary hearing, the defense made an offer of proof in an additional affidavit from Jean Schatz stating Karius had been allowed to stay at the Schatz home on previous occasions and that, although she told Karius he could not come in and should sleep in the car, she did not lock the door to the house.† But even accepting this slightly modified account of Jean Schatzís lack of consent, the evidence shows that Douglas Schatz told Karius to leave the property.† The forceful method by which Karius obtained entry is a clear confirmation that the entry was without consent.† Karius failed to show facts which would warrant relief on this issue.† See Minn. Stat. ß 590.04, subd. 3 (2002) (noting petitionerís burden of proof to establish facts by fair preponderance of evidence).

Finally, Karius alleges that his twenty-year-probation period is excessive and disproportionate and constitutes cruel and unusual punishment within the framework of the United States and Minnesota Constitutions.† The cruel-and-unusual-punishment clause of the United States Constitution requires that the duration of a sentence not be grossly disproportionate to the severity of the crime.† Ewing v. California, 123 S. Ct. 1179, 1186-87 (2003) (noting the Eighth Amendment has a narrow proportionality principle with respect to noncapital sentences).† Although the Minnesota Supreme Court has not applied the comparable clause of the Minnesota Constitution to guarantee proportionality in sentencing, State v. Christie, 506 N.W.2d 293, 299-300 (Minn. 1993), the court has indicated that any application would also focus on proportionality for which the threshold would be high.† State v. Gutierrez, 667 N.W.2d 426, 438 (Minn. 2003).

The Minnesota legislature has the authority to determine what constitutes a criminal offense and the range of punishment, including probation, confinement, and parole.† See generally State v. Osterloh, 275 N.W.2d 578, 580 (Minn. 1978) (emphasizing that legislature retains the power to define the punishment for criminal acts); Steeves v. State, 287 Minn. 476, 480-81, 178 N.W.2d 723, 725-26 (1970) (holding defendantís sentence was not cruel or unusual when it was limited to one-half of what defendant could lawfully receive under the relevant statute).† The maximum sentence for felony burglary under the charged statute is twenty yearsí imprisonment.† Minn. Stat. ß 609.582, subd. 1.† The initial disposition of the burglary conviction was a stay of imposition of sentence with probation of up to twenty years.† But Kariusís sentence has now been executed, guaranteeing that he will never serve the probationary term.† Therefore, his challenge to that part of his sentence is moot.† See State ex rel. Djonne v. Schoen, 299 Minn. 131, 133, 217 N.W.2d 508, 510 (1974) (reciting standard for determining when criminal appeal is moot).

††††††††††† Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.