This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Filed July 19, 2005
Hennepin County District Court
File Nos. 0105667/02025837
Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender,
Attorney General, 1800
Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the denial of a postconviction petition, appellant argues that (1) the district court abused its discretion by resolving a fact issue and denying his petition without an evidentiary hearing; and (2) under Blakely v. Washington, his sentence violates his right to a jury trial. We affirm.
At about 3:50 a.m. on June 27, 2001, police responded to a call from two women who reported that a man with a knife had entered their home and accosted them. The women reported that they were tied up nude with electrical cord, blindfolded, and held prisoner for three hours; the man struck and cut one of the women with a knife, touched the breasts and vaginal area of one of the women, and demanded money, credit and cash cards, and the PIN numbers for the cards. The women also told the police that the man wore gloves during much of the attack. One of the credit cards was used shortly after it was taken, and officers found a latex glove on the lawn outside the home.
In July 2001, at approximately 4:45 a.m., police responded to a call from a woman who reported that a man had entered her home through a window, threatened her with a knife, tied her up, cut off her clothing, and sexually assaulted her. The woman’s description of the man was similar to the description provided by the two women in the June 27 incident. The man also demanded money, credit cards, and directions to the nearest ATM. One of the cards was used at an ATM shortly after it was taken.
Surveillance photos from an ATM and a police sketch of the alleged assailant were released to the public, and the police received calls indicating that the ATM photo resembled appellant Bruce Edward Willis. Appellant was arrested and charged with two counts of first-degree burglary, three counts of first-degree aggravated robbery, one count of second-degree criminal sexual conduct, one count of first-degree criminal sexual conduct, and three counts of kidnapping. Appellant was initially represented by the Hennepin County Public Defender’s Office, but because a person whom that office represented on another matter became a jailhouse informant in appellant’s case, an attorney from the conflicts panel was appointed to represent appellant.
The glove that police found on the lawn while investigating the June 27 incident was sent to the Minnesota Bureau of Criminal Apprehension (BCA) for DNA testing. An October 2001 report from the BCA indicated that the DNA from the glove did not match the DNA profile obtained from appellant. The Hennepin County Attorney’s Office disclosed the BCA report to appellant’s attorney in January 2002, but appellant’s attorney did not tell appellant about the report.
In April 2002, appellant was charged with first-degree burglary in a separate complaint for an incident that occurred on June 8, 2001. Appellant pleaded guilty to one count of first-degree aggravated robbery and one count of first-degree burglary charged in the first complaint, and to the first-degree-burglary charge in the second complaint. Pursuant to a plea agreement, the remaining counts were dismissed, and appellant was sentenced to a 59-month prison term for the burglary charged in the second complaint and to consecutive 69-month and 52-month terms for the first-degree burglary and aggravated robbery charged in the first complaint. The 69-month sentence is a departure from the presumptive 52-month sentence.
After learning about the BCA report, appellant filed a petition for postconviction relief, seeking to withdraw his guilty plea because his attorney’s failure to disclose the BCA report to him was ineffective assistance that rendered his plea unknowing, involuntary, and not intelligently entered.
The district court denied appellant’s petition without holding an evidentiary hearing. The district court determined that it could not say as a matter of law that appellant’s attorney’s failure to inform appellant about the DNA-test results fell below an objective standard of reasonableness, and, therefore, appellant failed to rebut the presumption that his attorney’s performance was within the range of reasonableness. The district court also determined that the DNA report, which was only one piece of evidence, was not so favorable to appellant that it established that appellant would not have pleaded guilty had he known about the report nor that appellant did not genuinely understand his legal position without knowing about the report.
The district court may allow a defendant to withdraw a plea of guilty
upon “proof to the satisfaction of the court that withdrawal is necessary to
correct a manifest injustice.”
Amendment guarantees a defendant the right to reasonably effective assistance
of counsel. State v. Rhodes, 657 N.W.2d 823, 842 (
We analyze ineffective assistance of counsel claims under a two-prong test set forth in Strickland. To prevail on such a claim, an appellant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”
court considers the totality of the evidence before the judge or jury in making
this determination. We need not address
both the performance and prejudice prongs if one is determinative.”
Appellant argues that because he stated in his affidavit that had he
known about the DNA report, he would not have pleaded guilty, the district
court improperly resolved a question of fact (whether appellant would have
pleaded guilty if he had known about the report) without holding an evidentiary
hearing. But in making this argument, appellant
attempts to recast the analysis of an ineffective-assistance-of-counsel claim
from one in which the court determines whether a reasonable probability exists
that the outcome would have been different but for counsel’s errors into one in
which the court determines, as a matter of fact, what the defendant would have
done if counsel had not erred. The
Supreme Court explained in Strickland
that “[i]neffectiveness is not a question of ‘basic, primary, or historical
fac[t].’ Rather, like the question
whether multiple representation in a particular case gave rise to a conflict of
interest, it is a mixed question of law and fact.” 466
When a motion to withdraw a guilty
plea is made in a postconviction proceeding, the burden is on the petitioner
“to prove by a preponderance of the evidence the facts which would warrant
withdrawal of his guilty plea.” Doughman v. State, 351 N.W.2d 671, 674 (
Appellant’s allegation that if he had known about the DNA report, he would not have pleaded guilty does not assert a disputed fact that needs to be resolved in order to determine appellant’s ineffective-assistance claim on the merits; it simply expresses the mixed question of fact and law in the prejudice prong of the ineffectiveness inquiry as if it were a question of basic fact. But the disputed basic fact in appellant’s claim is whether his attorney failed to inform him about the DNA report, and in analyzing appellant’s claim, the district court took as true appellant’s allegation that his attorney did not tell him about the report. There are no other disputed fact issues that needed to be resolved.
Our review of the totality of the evidence before the district court persuades us that there is not a reasonable probability that, but for appellant’s attorney’s failure to inform appellant about the DNA report, appellant would not have pleaded guilty and would have insisted on going to trial. As the district court determined, the DNA report was only one piece of evidence, and it did not prove that appellant had not been at the location or that someone else committed the June 27 offenses. Also, the evidence included photographs of appellant using one of the victim’s credit cards at an ATM shortly after the card was taken, and one of the victims positively identified appellant as her assailant. In addition, the record contains a notice of the state’s intention to offer Spreigl evidence about similar crimes appellant committed against women between 1975 and 2001, and if appellant had gone to trial, he would have faced the possibility that this “modus operandi” evidence would be admitted. Furthermore, appellant was charged with eleven counts involving four separate victims, and under his plea agreement, all but three of the counts were dismissed. These facts indicate that appellant had good reason to plead guilty to obtain a lesser sentence, and considering the totality of the evidence, it is not reasonably probable that appellant would not have pleaded guilty if he had been informed about the DNA report.
argues that Blakely v. Washington, 124
court will not consider matters that were not argued and considered in the district
court. Roby v. State, 547 N.W.2d 354, 357 (
 Because the glove from which the DNA sample was taken was found on the lawn outside the home where the June 27 offenses occurred, the DNA report could not demonstrate that the person who wore the glove had been in the house.
Appellant cites to a footnote in Powers
v. State for authority that Blakely
is not a new rule. 688 N.W.2d 559 (