This opinion will be unpublished and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
Joseph Eugene Davis,
Filed March 22, 2005
Hennepin County District Court
File No. 02042092
Mike Hatch, State Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s denial of his postconviction petition, appellant argues that his guilty plea was not intelligently or knowingly entered, he was denied the effective assistance of counsel, and his case should have been submitted to a jury. We affirm on all issues.
On May 28, 2002 at 12:10 a.m., in Minneapolis, appellant, Joseph Eugene Davis, approached the victim. The victim recognized appellant as an employee of a neighborhood liquor store. Appellant grabbed the victim and threw her to the ground, sat on top of her and began choking her. He forcibly placed his penis in her mouth and put his tongue in her vagina. He later put his penis between her legs although the victim did not know if penetration occurred. In addition to choking her, appellant struck the victim more than 20 times with both his fists and a beer bottle.
Appellant left the scene after the assault. The victim flagged down a motorist. The police were called and arrived within minutes. Appellant was soon arrested a few blocks away, after having been identified by the victim. The victim was taken to the hospital. The complaint described her injuries and prognosis as follows:
facial injuries that included a left blow-out orbital fracture, subconjunctive hemorrhages in both eyes and a nondisplaced nasal bone fracture. Treating doctors also determined that she received spinal compression fractures at T12 and L1. As a result of these injuries the victim had a lengthy period of hospitalization and prolonged rehabilitation. She will undergo reconstructive surgery in the near future to repair her facial fractures.
The victim's spinal injuries have rendered her totally disabled at least for a protracted period of time. She is required to wear a back brace and was wheelchair bound until recently. Her treating doctors have determined that her spinal injuries are permanent and she will likely have permanent chronic pain associated with these fractures.
The state charged appellant with two counts of first-degree criminal sexual conduct and one count of first-degree assault. Appellant pleaded guilty to the first-degree assault charge and in exchange the state agreed to dismiss the two counts of first-degree criminal sexual assault, to dismiss another complaint charging first-degree criminal sexual conduct involving a second victim, and to discontinue proceedings in a third sexual assault case. As part of the plea agreement, appellant agreed to a 144-month sentence, an upward departure from the presumptive sentence of assault of 22 months. The 144-month sentence is the presumptive sentence for first-degree criminal sexual assault.
The district court sentenced appellant to 144 months in prison. The district court cited the plea agreement and the particular cruelty of the crime as reasons for the departure. However, during this proceeding the district court misstated the actual amount of time of imprisonment. Specifically, the court stated,
You are therefore committed to the custody of the Minnesota Department of Corrections for a term not to exceed 144 months or until then discharged by due process of law or competent authority. Your sentence will consist of a minimum term of imprisonment of 81 and one third months, plus a maximum supervised release term of 40 and two-thirds months.
The correct division of a 144-month sentence is 96 months in prison and 48 months of supervised release.
On January 15, 2004, appellant filed a postconviction petition with the court. He requested that the sentence be reduced to 122 months or that he be given the opportunity to withdraw his plea on the ground that his plea was not knowing and intelligent. Specifically, he argued he was led to believe that his 144-month sentence could be served in 122 months. He also argued that he was misinformed about the registration period for predatory offenders, was never advised as to the possibility of civil commitment, and was never told that “[d]ismissed charges are not as effectively vacated as acquitted charges.” Further, he argued that he was denied effective assistance of counsel. The postconviction court denied appellant's petition for relief. This appeal followed.
D E C I S I O N
Petitions for postconviction relief are collateral attacks on judgments that carry presumptions of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). “The scope of our review is limited to ascertaining whether there is sufficient evidence in the record to support the findings of the post-conviction court.” Doughman v. State, 351 M.W.2d 671, 674 (Minn. App. 1984). This court reviews postconviction proceedings to determine whether the evidence is sufficient to sustain the postconviction court's findings and will not overturn the postconviction court's findings absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).
I. Withdrawal of guilty plea
A criminal defendant has no absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn.1994). A defendant may withdraw a guilty plea after sentencing “upon a timely motion and proof to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice.” Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). A manifest injustice occurs if a guilty plea is not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).” Id. at 688.
Appellant first argues that he did not intelligently or knowingly enter his plea because the district court misstated his sentence at sentencing. Appellant argues that, but for this misstatement, he never would have pleaded guilty to the charged crime. Respondent argues, on the other hand, that appellant fully understood and accepted the terms of the plea agreement, which included a 144-month sentence. Respondent points out that the terms of the plea agreement were explained to appellant on a number of occasions by the district court and appellant’s counsel. Also, respondent argues, a simple misstatement by the sentencing judge does not automatically require a withdrawal of the plea. We agree.
The Minnesota Supreme Court has held that a district court may correct an unauthorized sentence without violating due process, where a defendant has notice that a correction is required and has not developed “a crystallized expectation” as to the finality of the sentence. State v. Calmes, 632 N.W.2d 641, 648 (Minn. 2001). In Calmes, the sentence was corrected to include a period of conditional release 37 months after the imposition of the sentence. Id at 647. The supreme court affirmed, concluding that “defendant does not automatically acquire a vested interest in an erroneous sentence.” Id. at 647 (citation omitted).
Here, appellant pleaded guilty to first-degree assault as a result of a plea agreement and was sentenced to 144 months. As a result of this plea agreement, the state agreed to dismiss three first-degree criminal sexual conduct charges and promised not to pursue a pending investigation. In addition, appellant agreed to an upward departure of 144 months on the assault charge. At the guilty-plea hearing the following exchange ensued between appellant and his attorney regarding the 144-month sentence:
Q: Should you be convicted at trial of criminal sexual conduct the minimum sentence the Judge would have to give you would be 144 months?
Q: And we have already discussed the potential grounds - - I don't know what the Judge is going to do, but I have advised you that there are grounds here, in this case, for a large upward departure and I advised you of that?
Q: So you understand that by taking the 144 month deal part of the reason you want to do this is that you are looking at potentially a lot of time should you be convicted?
Three weeks later, on April 23, 2004, appellant was again reminded of the 144-month sentence at the sentencing hearing. The sentencing court stated on the record that as a result of the plea agreement and the particular cruelty of the assault that the 144-month upward departure was warranted. Finally, at the end of the hearing the sentencing judge stated:
Joseph Davis, you have been charged with assault in the first degree. Based on your plea of guilty, it is considered and adjudged that you are guilty of assault in the first degree. You are therefore committed to the custody of the Minnesota Department of Corrections for a term not to exceed 144 months or until then discharged by due process of law or competent authority. Your sentence will consist of a minimum term of imprisonment of 81 and one-third months, plus a maximum supervised release term of 40 and two-thirds months.
The breakdown of the sentence was a misstatement, which added up to the presumptive 122-month sentence, not the 144-month agreed upon sentence.
The record reflects that the terms of the plea agreement were reiterated on different occasions throughout both the guilty-plea and sentencing hearings. We conclude appellant was aware of his pending 144-month sentence. We find the postconviction court acted properly in denying appellant’s request for plea withdrawal or sentence reduction.
Appellant next argues that his plea was not knowing and intelligent because he was not made aware of the consequences, namely, potential civil commitment and registration as a predatory offender. The supreme court stated in Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998):
While we have said that for a guilty plea to be intelligent the defendant must be aware of the consequences of pleading guilty, it is the direct consequences of the guilty plea to which we refer. . . .[I]gnorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.
A consequence is direct when it flows definitely, immediately, and, automatically from the guilty plea. Id.
Here, while we understand appellant’s arguments, we are not persuaded. The “collateral effect” of civil commitment may be severe, but previous cases indicate that the plea agreement does not need to include every potential consequence. See Id. At the time of the plea agreement and sentencing there was no way of knowing if appellant would be civilly committed. The possibility of future civil commitment is not a direct consequence that requires a plea withdrawal to avoid injustice.
A person must register as a predatory offender if convicted of criminal sexual conduct in the first degree pursuant to Minn. Stat. § 609.342. Minn. Stat. § 243.166 Subd.1 (2004). Also, a person must register as a predatory offender if convicted of another offense arising out of the same set of circumstances. Id. Predatory offender registration is civil and regulatory. See Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn. 1999). The duty to register as a sex offender is a collateral consequence of a guilty plea, and ignorance of the duty to register does not constitute a “manifest injustice” required for withdrawal of a guilty plea after sentencing. Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002). Failure to inform a defendant of the requirement to register does not constitute a manifest injustice requiring plea withdrawal. See Id., at 907.
II. Ineffective assistance of counsel
Appellant in his pro se brief challenges his guilty plea on the basis of a claim of ineffective assistance of counsel, as well as a number of other issues, which were not raised at trial. Issues not raised at trial are generally waived on appeal, State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001). In determining whether to grant a defendant a new trial on the ground of ineffective assistance of counsel, the Minnesota Supreme Court has adopted the Strickland two-part test. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (adopting the two-part Strickland v. Washington analysis, 466 U.S. 668, 104 S. Ct. 2052 (1984)). First, the petitioner has the burden of affirmatively proving that counsel’s representation fell below an objective standard of reasonableness. Id. at 561. “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). “There is a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.” Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).
Second, under Strickland, the defendant must show that counsel’s errors actually had an adverse effect and that but for the errors, there is a reasonable probability that the result of the proceeding would have been different. Gates, 398 N.W.2d at 561. This court may dispose of an ineffective-assistance claim when the appellant fails to prove that there was a reasonable probability the outcome would have been different. Id. at 563; see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069–70.
Appellant argues that his attorney’s representation fell below an objective standard of reasonableness. Specifically, he alleges that his attorney failed to ask questions about a possible witness and failed to follow up on exculpatory DNA and venereal disease evidence. Respondent argues that these allegations fall within the province of trial strategy. Furthermore, any possible error did not result in prejudice. Appellant’s generalized assertion that his attorney was so “overworked” that a fair trial was not possible is incapable of logical analysis, as appellant’s assertion has no factual support in the record. Thus, this appellate argument fails as did not bear his burden of proof.
The postconviction court determined that the issues raised by appellant were within his attorney’s tactical decision-making discretion. See State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that trial tactics lie within the discretion of the attorney and will not be later reviewed for competency). In addition, the court found that appellant failed to prove how his attorney’s performance affected his ultimate decision to plead guilty. The court specifically stated that,
[i]n this case, the tactical decisions made by defense counsel were well within the bounds of competent representation. In any event, [appellant] made no allegations in his petition for relief regarding how the performance of his lawyer affected his decision to plead guilty…In short, [appellant’s] conviction for first degree assault with no conviction for criminal sexual conduct was equal to the best result [he] could have gotten from a jury…[appellant] was not prejudiced by any alleged deficiencies in his lawyer’s performance.
Here, appellant asserts a number of conclusions regarding other possible outcomes. On the record appellant failed to meet the burden necessary to support these conclusory claims. To warrant an evidentiary hearing a petitioner's postconviction allegations must be more than argumentative assertions without factual support. King v. State, 649 N.W.2d 149, 158 (Minn. 2002). As a result of the appellant’s failure to meet his burden to prove ineffective assistance of counsel, the postconviction court properly denied appellant’s claim for ineffective assistance of counsel.
III. Application of Blakely v. Washington
In his pro se brief, appellant, for the first time, challenged his sentence under the United States Supreme Court opinion in Blakely v. Washington, announced on June 24, 2004. ___ U.S. ___, 124 S. Ct. 2531 (2004). Blakely held that upward departures from Washington state’s sentencing guidelines not based solely on facts reflected in a jury verdict or admitted by the defendant, violate the Sixth Amendment to the United States Constitution and are therefore invalid.
We recognize the timing of the release of Blakely made it impossible for appellant to raise a Blakely issue in the district court. Appellant was sentenced on April 23, 2003, fourteen months before the ruling in Blakely. We decline to address the Blakely issue. We affirm the district court’s denial of appellant’s motion for postconviction relief.
Our decision is without prejudice to appellant’s ability to later petition the district court for relief under Blakely. We make no advisory comments on that outcome.
 122 months was the presumptive sentence for the assault charge, the court used the 144-month sentence based on the presumptive sentence for the criminal sexual conduct charge.
 The misstatement appears to be the result of the district court's use of the pretrial sentencing report that calculated the sentence based upon the 122-month guideline sentence for assault in the first degree.