This opinion will be unpublished and

may not be cited except as provided by

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







David A. Schoumaker,






State of Minnesota,




Filed April 27, 2004

Klaphake, Judge


Ramsey County District Court

File No. K9-01-2565



John M. Stuart, State Public Defender, Richard Schmitz, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


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


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N


            After pleading guilty to first-degree assault for striking another man several times with a broken beer glass during a bar fight, appellant David A. Schoumaker was sentenced to 93 months in prison, which represents the low end of the presumptive sentence range for an offender with a criminal history score of one who commits a severity level VIII offense.  See Minn. Stat. § 609.221, subd. 1 (2000) (first-degree assault); Minn. Sent. Guidelines IV. (Sentencing Guidelines Grid).  Appellant thereafter filed this petition for postconviction relief, seeking to withdraw his guilty plea under Minn. R. Crim. P. 15.05, subd. 1 (providing for withdrawal of plea after sentencing upon proof that withdrawal is necessary to correct manifest injustice).  He alleges that withdrawal is necessary because at the time he entered his plea, his attorney had erroneously advised him that his criminal history score was zero.

            Because the record shows that the parties agreed to recommend that appellant receive the low end of the presumptive sentence range, based on whatever his criminal history score turned out to be after preparation of the presentence investigation report, and because appellant was fully aware of the terms of the plea agreement and of the fact that the agreement was merely a recommendation that did not bind the district court, we affirm the denial of appellant’s petition for postconviction relief.


            Manifest injustice occurs when a plea is not accurate, voluntary, and intelligent.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998); Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  Appellant specifically alleges that his plea was not intelligent because he did not understand the direct consequences of his plea.  See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  He insists that he was misled by his attorney’s erroneous representation about his criminal history score and that he believed he would receive an 81-month sentence, not the 93-month sentence imposed on him.  The attorney mistakenly assumed that appellant’s 1984 conviction for unauthorized use of a motor vehicle had decayed, when in fact it had not been discharged until 1989, thus giving appellant a criminal history score of one rather than zero.  See Minn. Sent. Guidelines II.B.1.e. (providing that 15-year decay period is measured from date of discharge, not from date of offense).

            If a defendant receives an unqualified promise regarding a specific sentence, either in the form of an express term or due to a mutual mistake among the parties regarding the correct criminal history score, he may be entitled to withdraw a guilty plea.  See State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988) (distinguishing between agreements as to sentence and agreements in which prosecutor merely promises to recommend certain sentence; when trial court merely rejects recommendation, withdrawal of plea is not automatic); Kochevar v. State, 281 N.W.2d 680, 688 (Minn. 1979) (holding that defendant not allowed to withdraw plea where he failed to show that representations constituted unqualified promise).  But if a defendant merely believes that he will receive a lesser sentence than that imposed, he is not entitled to withdraw the plea.  Scherm v. State, 288 Minn. 488, 491, 181 N.W.2d 867, 868 (1970) (“solemn plea of guilty should not be set aside merely because the accused has not achieved an unwarranted hope”); Spann v. State, 368 N.W.2d 377, 379 (Minn. App. 1985) (where district court made no commitment as to sentence and no promise as to probation, defendant was not allowed to withdraw plea when court imposed presumptive sentence based upon correct computation of defendant’s criminal history score).

            Here, the record establishes that the parties agreed to recommend that appellant receive a sentence at the low end of the presumptive sentence range based upon whatever his criminal history score turned out to be after completion and submission of the presentence investigation (PSI).  Appellant’s attorney specifically acknowledged that the plea agreement assumed an 81-month sentence “granted that everything checks out through the PSI,” and the prosecutor immediately followed with an explanation that 81 months was based on a criminal history score of zero and that “if it’s different than that, it’s whatever the guidelines says.”  Appellant did not object to this characterization of the agreement.

            In addition, the district court twice asked appellant if he understood that the court was not bound by the parties’ agreement, that it might impose a different sentence, and that appellant would not be allowed to withdraw his plea.  Each time, appellant indicated that he understood these terms and their consequences.

            Thus, the record fails to support that unqualified promises were made to appellant regarding an 81-month sentence.  Nor does the record show a mutual mistake among all parties regarding appellant’s criminal history score.  Appellant was clearly informed, several times, that the agreement was merely a recommendation to the district court that he receive the low end of the presumptive sentence range and that the sentence ultimately would depend upon what his criminal history score turned out to be after preparation of the PSI.  Appellant was further informed that the district court was not bound by the parties’ agreement and that the court had the discretion to impose another sentence if deemed appropriate.  Appellant has failed to show that there was a mutual mistake concerning the calculation of his sentence that entitles him to now withdraw his plea for manifest injustice.

            Appellant also alleges that his trial attorney was ineffective because he gave appellant incorrect advice about the effect of his prior conviction.  We do not believe that the actions of appellant’s attorney rise to the level of deficient performance required to show ineffective assistance of counsel.  See State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987) (concluding defense attorney not incompetent where defendant was fully informed that his criminal history score was uncertain).  Appellant was fully aware that his criminal history score was uncertain and depended upon preparation and submission of the PSI.  See Trott, 338 N.W.2d at 252-53 (“In a substantial number of cases, the prosecution, the defense counsel and the court must wait until after a pre-sentence investigation report has been prepared before they can accurately determine the presumptive sentence.”).

            Appellant cites two cases in support of his position that plea withdrawal must occur when a defendant is misled regarding his criminal history score.  One of those cases predates the guidelines, from a time when sentences were not calculated using a criminal history score.  The other, State v. Benson, 330 N.W.2d 879, 880-81 (Minn. 1983), is distinguishable.  In Benson, the matter was remanded to allow the defendant to withdraw the plea or to be resentenced, because the district court had represented that it would impose a specific presumptive sentence, which later proved to be inaccurate due to its improper calculation of the defendant’s criminal history score.  Here, the district court made no promises or representations to appellant regarding the length of the sentence he might receive, and appellant received a sentence that was in accord with his plea agreement. 

            Because the record reveals neither an unfulfilled promise of a specific sentence nor any mutual mistake among the parties about the length of the sentence, the postconviction court did not abuse its discretion in denying appellant’s petition for relief.  Scales v. State, 620 N.W.2d 706, 707 (Minn. 2001) (stating appellate court reviews decision of postconviction court under abuse of discretion standard).