This opinion will be unpublished and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
Rickey Maddox, petitioner,
State of Minnesota,
Filed January 20, 2004
Olmsted County District Court
File No. K8-02-102
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Michael C. Davis, Special Assistant State Public Defender, 46 East Fourth Street, Suite 1042 Minnesota Building, St. Paul, MN 55101 (for appellant)
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, 151-4th Street S.E., Rochester, MN 55904 (for respondent)
Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant Rickey Maddox challenges the district court order denying his request for an evidentiary hearing on his postconviction petition and for postconviction relief. Because appellant has alleged sufficient facts that, if proved, would entitle him to relief, we reverse the district court’s order and remand this matter for an evidentiary hearing on the postconviction petition.
This court reviews the postconviction court’s decision to determine whether there is sufficient evidence to sustain the postconviction court’s findings and whether the court abused its discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). An evidentiary hearing is not required unless the petitioner alleges facts that, if proved, would entitle the petitioner to relief. Id. A hearing is required where material facts are in dispute and must be resolved. Id.
A petitioner may raise the issue of ineffectiveness of counsel in a postconviction petition. Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991). In order to have an evidentiary hearing, the petitioner must allege facts that would “affirmatively prove that his 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.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (quotation omitted).
Although appellant’s pro se postconviction petition is not artfully drafted, he does raise serious questions regarding his criminal history score, the district court’s sentencing departure, and the effectiveness of his trial counsel’s representation.
1. Criminal History Score
Appellant received a criminal history score of four, resulting in a presumptive executed sentence. The criminal history score is based on three Wisconsin convictions, two of which occurred on the same date, raising questions of whether these arose from a single behavioral incident. See Minn. Stat. § 609.035 (2002) (limiting, with certain exceptions, sentencing for multiple offenses to one sentence, if all behavior part of single behavioral incident). Although absent further information, we take no position on what the correct criminal history score should be, we note that had appellant received a criminal history score of three, he would have a presumptive stayed sentence.
The state argues that appellant waived his right to contest his criminal history score by failing to raise the issue before the district court. An error before the district court is usually waived when the defendant fails to object. State v. Roberts, 651 N.W.2d 198, 200 (Minn. App. 2002), review denied (Minn. Dec. 17, 2002) (discussing waiver of jury composition). A reviewing court may still consider a waived issue if the error is plain and affects a defendant’s substantial rights. Id. at 201. If the criminal history score here is indeed an error, appellant’s rights are affected; the greater score is the basis for an executed, rather than stayed, sentence. Further, because he received an executed sentence, he became eligible for sentencing under Minn. Stat. § 609.1095 (2002) (the dangerous offender statute).
A review of this record does not provide enough information to determine if appellant’s criminal history score is correct. A hearing is necessary to resolve these disputed facts.
2. Sentencing Departure
Sentencing under Minn. Stat. § 609.1095 requires an additional finding that the defendant is a danger to public safety. The district court must specify the reason for that finding, which can include an aggravating factor that would justify departure under the sentencing guidelines. Minn. Stat. § 609.1095, subd. 2(2)(ii). Here, the court made this finding for three reasons: (1) the offense also involved a robbery; (2) appellant violated a position of trust, because the victim was his girlfriend with whom he was living; and (3) he left without rendering medical assistance to the victim.
Generally, elements of a dismissed charge may not be used to depart unless the record contains a clear indication that the offender admits to the facts of the dismissed charges. State v. Srey, 400 N.W.2d 722, 723 (Minn. 1987); State v. Larkins, 479 N.W.2d 69, 74 (Minn. App. 1991). During the plea hearing, appellant did not admit to the robbery; the factual basis for the plea is limited to the assault. It is therefore not clear that this is a proper basis for departure.
A violation of a position of trust can be used as a reason to depart. State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988). Appellant argues that the short-term relationship here of boyfriend and girlfriend is not equivalent to other cases where a position of trust was found. See State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992) (finding abuse of trust or authority where defendant used his position of leadership in immigrant community against vulnerable immigrants); State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996), review denied (Minn. July 10, 1996) (finding abuse of trust in criminal sexual conduct between employer and minor employee); cf. Volk, 421 N.W.2d at 366 (finding no abuse of trust where victim had picked up defendant for casual sexual encounter). Appellant’s case falls somewhere among these cases.
The basic standard for departure is whether the criminal conduct varied dramatically from that usually found in commission of the type of crime. State v. Sanchez-Sanchez, 654 N.W.2d 690, 693-94 (Minn. App. 2002). The extent of the victim’s injuries here are not atypical of those found in third-degree assault cases, which requires substantial bodily harm. Minn. Stat. §§ 609.223, subd. 1, .02, subd. 7a (2002) (defining “substantial bodily harm” as “bodily injury which involves a temporary but substantial disfigurement . . . or which causes a fracture of any bodily member.”) The district court’s findings do not suggest that this assault was significantly more serious than the usual third-degree assault and thus may be inadequate to support departure under Minn. Stat. § 609.1095.
3. Ineffective Assistance of Counsel
Appellant, apparently on the advice of trial counsel, entered into a plea agreement, whereby he agreed to plead guilty to third-degree assault and receive an executed sentence of 60 months. Even with a criminal history score of four, the presumptive sentence for third-degree assault is 24 months, executed. The 60-month sentence was based on sentencing under Minn. Stat. § 609.1095, subd. 2. In essence, trial counsel advised appellant to agree to a greater than double upward durational departure. The record does not indicate whether trial counsel explained to appellant the consequences of sentencing under Minn. Stat. § 609.1095, or whether appellant waived sentencing under the guidelines, or understood that the 60-month sentence represented an upward departure. Further, despite the weakness of the aggravating factors relied on for sentencing under Minn. Stat. § 609.1095, defense counsel made no objection or argument, but urged the district court to follow the plea agreement. A criminal defendant must be accurately and fully advised before waiving fundamental trial rights, and must understand the consequences of pleading guilty. State v. Wukawitz, 662 N.W.2d 517, 521-22 (Minn. 2003). Defense counsel may well have thought that appellant would fare worse if he went to trial on all three charges, but the record does not reflect this.
We find the record here inadequate to answer questions raised by appellant’s postconviction petition. In order to determine the merits of appellant’s claim, an evidentiary hearing on his postconviction petition, where appellant’s criminal history can be examined and testimony of conversations between appellant and his trial counsel can be evaluated, must be held. See Dukes v. State, 621 N.W.2d 246, 255 (Minn. 2001).
Reversed and remanded.
 At the sentencing hearing, the court relied only on one factor: the assault occurred during a robbery. The court added the other two factors in making its written departure report. The district court cited no authority for using appellant’s failure to provide immediate medical assistance to the victim as an aggravating factor.