This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rickey Maddox, petitioner,
State of Minnesota,
Filed February 8, 2005
Olmsted County District Court
File No. 55-C0-02-4659
John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN 55101 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, 151 Fourth Street SE, Rochester, MN 55904 (for respondent)
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
This is an appeal from an order denying postconviction relief. In an earlier appeal from an order denying postconviction relief to this same appellant, this court reversed and remanded for an evidentiary hearing. Appellant claims that the postconviction court abused its discretion in the conduct of the evidentiary hearing on remand by denying appellant his statutory right to counsel. We reverse and remand.
In December 2001, appellant Rickey Maddox assaulted his girlfriend in a park in Rochester. According to medical records, the girlfriend suffered a fracture of the right orbital socket; her right eye was black and blue and swollen shut; and her nose appeared to have been broken. Maddox left Rochester in his girlfriend’s car and drove it to Memphis, Tennessee, where he was subsequently arrested.
In January 2002, Maddox was charged with first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2000); third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2000); theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (2000); and fifth-degree assault, in violation of Minn. Stat. § 609.224, subd. 1(2) (2000). In June 2002, Maddox entered into a plea agreement with the state, under the terms of which Maddox pleaded guilty to the third-degree assault charge, the other counts were dismissed, and there was a joint recommendation to the court to sentence Maddox to an executed 60-month prison term. The district court accepted the plea and imposed a 60-month executed sentence.
In November 2002, Maddox filed a pro se petition for postconviction relief, raising, inter alia, issues relating to the computation of his criminal-history score and ineffective assistance of counsel. The postconviction court denied relief without an evidentiary hearing. By an opinion filed January 20, 2004, this court reversed and remanded, stating that: “[w]e find the record here inadequate to answer questions raised by appellant’s postconviction petition. . . . [And] 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.” Maddox v. State, No. A03-398, 2004 WL 77845, at *3 (Minn. App. Jan. 20, 2004).
On February 13, 2004, the postconviction court held an evidentiary hearing and subsequently again denied Maddox’s petition. This appeal follows.
D E C I S I O N
A postconviction court’s denial of relief will not be overturned unless it abused its discretion. Paone v. State, 658 N.W.2d 896, 898 (Minn. App. 2003). Maddox argues that this court should reverse the denial of his petition and remand this matter for another evidentiary hearing because, inter alia, the postconviction court “conducted the February 13, 2004 evidentiary hearing without notice to or participation by petitioner’s duly appointed attorney, in violation of petitioner’s statutory right to representation by counsel.”
An indigent person who has not already had a direct appeal has a right to be represented by the state public defender during a post-conviction proceeding. Id.; see also Minn. Stat. § 590.05 (2002). Here, Maddox did not participate in a direct appeal of his criminal conviction, and it is undisputed that the state public defender’s office represented Maddox at the time of the second postconviction hearing. It appears from the record that the postconviction court did not notify the state public defender of the date of the evidentiary hearing, and the hearing, at which Maddox and his trial counsel testified, proceeded without legal representation for Maddox. Further, the record shows that at the hearing the postconviction court did not conduct the comprehensive examination of Maddox necessary to ensure a knowing and intelligent waiver of his right to counsel. See State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990). The state concedes that Maddox did not validly waive his right to counsel at the February 2004 evidentiary hearing and that this court should remand for a new evidentiary hearing. We therefore reverse the postconviction court’s denial of relief on Maddox’s postconviction petition, and we remand for an evidentiary hearing at which Maddox either is represented by counsel or validly waives his right to counsel.
Finally, in our previous opinion remanding for an evidentiary hearing, this court stated that
[i]f 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.
Maddox v. State, No. A03-398, 2004 WL 77845, at *3 (Minn. App. Jan. 20, 2004).
In its findings following the February 2004 evidentiary hearing, the postconviction court, without further explanation, declared that the calculation of Maddox’s criminal-history score was “irrelevant for the purposes of determining whether or not he is entitled to the post-conviction relief he seeks.” On remand, the postconviction court must determine Maddox’s criminal-history score.
Reversed and remanded.
 Because this issue and the issue regarding Maddox’s criminal-history score are determinative here, we do not address the other arguments raised by Maddox.