This opinion will be unpublished and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
Jerome Dahlen, petitioner,
State of Minnesota,
Filed July 5, 2005
Clay County District Court
File No. K3-01-1316
John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 870 North 11th Street, Moorhead, MN 56561 (for respondent)
Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Jerome Dahlen challenges the district court’s order denying his petition for postconviction relief. Appellant contends that the district court imposed a sentence that was unconstitutional because Blakely v. Washington, 124 S. Ct. 2531 (2004), applies retroactively to his case. In a pro se brief appellant also argues that (1) he was denied effective assistance of counsel; (2) he was subjected to double jeopardy; (3) the district court failed to rule on an objection to the constitutionality of the plea agreement; and (4) the prosecutor engaged in misconduct. We affirm.
D E C I S I O N
Whether or not a decision applies
retroactively is a legal question subject to de novo review. O’Meara
v. State, 679 N.W.2d 334, 338 (
On August 31, 2001, pursuant to a
plea agreement, appellant pleaded guilty to first-degree criminal sexual
conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii)
(2000); second-degree criminal sexual conduct in violation of
Appellant contends that the district
court’s departure from the sentencing guidelines was unconstitutional under
retroactive application of Blakely v.
Washington, 124 S. Ct. 2531 (2004).
Appellant argues that Blakely is
subject to retroactive application because it did not announce a new rule of
law, but merely applied the rule set forth in Apprendi v.
In a pro se supplemental brief, appellant contends that the postconviction court erred in denying the following claims for relief: (1) appellant was denied effective assistance of counsel because counsel failed to object to insufficient time to consider a proposed plea agreement; (2) appellant was subject to double jeopardy; (3) the district court failed to rule on the constitutionality of the plea; and (4) the prosecutor threatened appellant while negotiating the plea agreement.
Appellate courts review “a
postconviction proceeding only to determine whether there is sufficient
evidence to sustain the postconviction court’s findings, and a postconviction
court’s decision will not be disturbed absent an abuse of discretion.” Hodgson
v. State, 540 N.W.2d 515, 517 (
1. Effective assistance of counsel
To succeed on his claim of
ineffective assistance of counsel, appellant “must affirmatively prove that his
counsel’s representation ‘fell below an objective standard of reasonableness’
and ‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
. . . A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Gates
v. State, 398 N.W.2d 558, 561 (
Appellant makes general assertions
that his counsel was ineffective for failing to object to the time allowed to
accept the plea offer, failing to request an evidentiary hearing, and failing
to act in appellant’s best interest. In
support of this position, appellant presented evidence that he was given only
five days to accept or reject the plea agreement in violation of “LR 83.10 (G)
pleading deadline of the sentencing reform act of 1984, 18 U.S.C. 3551, et
seq.” But the postconviction court held
that appellant’s “interpretation of the rule is incorrect and the rule has no
impact on his argument that counsel’s representation was ineffective.” And appellant presents no argument to the
The postconviction court also held that appellant
fails to prove that at the time of the plea hearing, counsel’s representation fell below the objective standard of reasonableness and that a reasonable probability exists that the outcome would have been different but for counsel’s errors. A review of the file indicates that the plea agreement was reasonable and fair to the defendant.
The state points out that the evidence against appellant was overwhelming and that appellant’s counsel had no control over the timing of the state’s plea offer. On review of the record, we cannot say that appellant established that his counsel’s representation fell below an objective standard of reasonableness.
2. Double jeopardy
Appellant claims that he was
subjected to double jeopardy under the plea agreement because of counsel’s
“failure to object to double punishment/multiple punishments which caused
double jeopardy under the plea agreement in accordance to Blockburger v. United States.”
“The double jeopardy clauses of the
federal and state constitutions include a protection from multiple punishments
for the same offense. In
Appellant asserts that he was
subjected to double jeopardy under the Blockburger
test because “the same evidence was used to convict” appellant of
first-degree criminal sexual conduct and second-degree criminal sexual
conduct. We construe appellant’s
argument to be that he was convicted and sentenced for the same offense twice. “Whether two offenses are the ‘same offense’
for purposes of double jeopardy is determined under the Blockburger test, which asks whether each offense requires proof of an act that the other does
not.” State v. Bowen, 560 N.W.2d 709, 711 (
Here, although appellant’s offenses did involve the same victim, his convictions for first-degree and second-degree criminal sexual conduct resulted from different actions occurring at different times. Appellant was convicted of (1) second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(h)(iii) (2000), for engaging in sexual contact with the victim on or between September 1, 1996 and May 7, 2000; and (2) first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2000), for engaging in sexual penetration with the victim on or between May 8, 2000 and June 10, 2001. These offenses occurred at different times, and one required sexual contact while the other required sexual penetration. Therefore, appellant was not subjected to double jeopardy.
3. Failure to rule on constitutionality of appellant’s plea
Appellant contends that the district court failed to rule on an objection made at the plea hearing. Appellant states that whether the objection was made formally or informally, his counsel expressed concern as to whether the upward departure was appropriate. At the plea hearing, appellant’s counsel stated:
Assuming the court accepts the plea, which we expect the court will, we’ll review the facts to determine whether it’s correctly offered. Normally, your honor, from the defendant’s perspective a plea agreement is desirable to limit the upward exposure and in this instance I have to concede that that was a concern for us. And I also have to express concern that the court consider whether the upward departure is appropriate. So I do ask the court to be mindful of that.
In denying appellant’s claim, the postconviction court stated that “[a] review of the transcript of the plea hearing indicates that no formal objection by counsel was raised.” The record does not support appellant’s assertion that he raised a constitutional issue or objection at the plea hearing. Thus, we cannot say that the postconviction court erred in denying relief on this claim.
4. Prosecutorial misconduct
Appellant claims that the prosecutor threatened appellant “at the bottom of plea agreement with stacking of charges and other counts.” The postconviction court held that the record provides no basis for this claim, and we find no evidence to the contrary. Moreover, appellant indicated at the plea hearing that he fully understood the terms and conditions of the plea agreement and that no one made any threats or promises to induce a guilty plea. Therefore, we cannot say that the postconviction court erred in denying appellant’s postconviction claim of prosecutorial misconduct.