This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Jose Luis Mancilla,


Filed January 20, 2004


Wright, Judge


Winona County District Court

File No. K3-00-309, KX-00-310, K1-00-311



Jose Luis Mancilla, MCF/STW, ID# 205325, 970 Pickett Street North, Bayport, MN  55003-1490 (appellant pro se)


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


Charles E. MacLean, Winona County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN  55987 (for respondent)



            Considered and decided by Lansing, Presiding Judge; Wright, Judge; and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N




Appellant challenges the denial of postconviction relief, arguing that the district court abused its discretion by denying his petition without an evidentiary hearing, rejecting his claims of ineffective assistance of counsel, and denying his right to appointment of postconviction counsel.  Appellant also argues that there is insufficient evidence to sustain his conviction and that the district court erred in imposing the sentence.  Because the record is silent as to appellant’s eligibility for appointed counsel, we remand. 


            From December 1999 through February 2000, Winona County Sheriff’s Investigator Jeffrey Mueller conducted an investigation of ongoing cocaine sales in and around Winona, Minnesota.  On December 10, 1999, Mueller met with a confidential reliable informant (CRI) to discuss a controlled buy of cocaine from appellant Jose Luis Mancilla.  The CRI was equipped with a transmitting device, given $250, and instructed to purchase cocaine from Mancilla. 

            The CRI entered Mancilla’s apartment, and Mancilla arrived shortly thereafter.  Investigator Mueller monitored the conversation, and Investigator David Allen conducted videotape surveillance.  After Mancilla informed the CRI that he had only gram quantities of cocaine, the CRI purchased two.  Mancilla told the CRI that he possibly would have “8-balls”[1] or an ounce to sell the next day.  The CRI exited Mancilla’s apartment, gave Mueller two small bags containing cocaine, and reported that he received the bags from Mancilla. 

            On December 11, at approximately 12:46 a.m., a Winona patrol officer stopped Mancilla while driving and arrested Mancilla for an outstanding warrant.  A search of Mancilla produced $940.  Among the currency were both $100 bills used by the CRI to purchase the cocaine the day before.

            The CRI informed Mueller on December 16 that he had arranged to buy cocaine from Mancilla.  The CRI went to a hotel at which Mancilla was staying and asked Mancilla for “8-balls.”  Replying that he had three grams to sell, Mancilla took the baggies out of his pocket.  The CRI exchanged the money for the cocaine.

            On December 17, Mancilla told the CRI on the telephone that he had one ounce of cocaine to sell.  Upon the CRI’s arrival at the arranged location, Mancilla said he only had 15 grams of cocaine.  The CRI purchased the 15 baggies of cocaine.

            The CRI contacted Mueller on January 2, 2000, and advised him of the arrangement to purchase one ounce of cocaine from Mancilla at Mancilla’s residence.  After meeting with Mancilla, the CRI reported giving Mancilla $1,500 in exchange for eight “8-balls” of a white powdery substance.  Laboratory test results established that the white powdery substance that the CRI purchased on January 2 did not contain a controlled substance.

            Mancilla pleaded guilty to controlled substance crime in the third degree (sale of cocaine), in violation of Minn. Stat. § 152.023, subds. 1(1), 3 (1998); conspiracy to commit controlled substance crime in the first degree (sale of cocaine), in violation of Minn. Stat. §§ 152.096,[2] subd. 1, .021, subd. 1(1), 609.175, subd. 2 (1998); and conspiracy to commit controlled substance crime in the second degree (sale of cocaine), in violation of Minn. Stat. §§ 152.022, subds. 1(1), 3(a), 609.175, subd. 2 (1998).  Mancilla was sentenced to serve concurrent sentences of 21 months, 58 months, and 90 months in prison.  The 90-month sentence represented a downward durational departure from the presumptive sentence of 122 months.  Mancilla petitioned the district court for postconviction relief, which the district court denied.  This appeal followed.


            Mancilla argues that he was denied his right to court-appointed counsel during his postconviction proceedings.  A defendant has a statutory right to representation by the public defender during postconviction proceedings under certain circumstances.  Minn. Stat. § 611.18 (2002).  “For a person appealing from a conviction, or a person pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction, the state public defender shall be appointed.”  Id. (emphasis added). 

Mancilla was represented by the public defender’s office during his trial and again in October 2000 when he pursued a direct appeal.  The appeal, however, was dismissed by stipulation on January 16, 2001; and we cannot determine from the record whether the dismissal was in contemplation of postconviction proceedings.  Under Paone v. State, 658 N.W.2d 896, 899 (Minn. App. 2003), a dismissed direct appeal does not exhaust an appellant’s right to representation.  Thus, Mancilla may have retained his statutory right to counsel. 

On receipt of a pro se petition for postconviction relief, the court administrator is required to forward a copy of the petition to the state public defender.  Minn. Stat.           § 590.02, subd. 1(4) (2002) (stating that, “[i]n the event the petitioner is without counsel, the court administrator shall forthwith transmit a copy of the petition to the state public defender and shall advise the petitioner of such referral”).  We also are unable to determine from the record whether the court administrator forwarded a copy of the postconviction petition as required, whether the public defender declined representation, whether Mancilla declined counsel and expressed his intent to proceed pro se, or whether the statutory obligation was simply overlooked. 

We remand to the district court for determination of Mancilla’s eligibility for the assistance of counsel in connection with postconviction proceedings and for such subsequent proceedings as are appropriate.  We express no opinion as to the merits of Mancilla’s other arguments.


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


[1]  An “8-ball” is approximately 3.5 grams of cocaine.

[2]  One year after Mancilla’s conviction, this court determined that this conspiracy statute did not apply to a controlled substance sale involving only two people.  State v. Pinkerton, 628 N.W.2d 159, 162-63 (Minn. App. 2001), review denied (Minn. July 24, 2001).  We express no opinion here on the applicability of the Pinkerton court’s ruling to this case.