This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






James Mark Vogel, petitioner,


State of Minnesota,


Filed March 7, 2006


Minge, Judge


Becker County District Court

File No. K4-03-1157



James Mark Vogel, MCF – Lino Lakes, 7525 Fourth Avenue, Lino Lakes, MN 55014 (pro se appellant)


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


Joseph A. Evans, Becker County Attorney’s Office, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the denial of postconviction relief.  Because we find that appellant’s counsel adequately presented information regarding appellant’s mental health, and because appellant’s nolo contendere pleas could be considered for sentencing purposes, appellant has not sustained his burden of demonstrating that he was provided ineffective assistance of counsel.  We affirm.


            The wife of appellant James Mark Vogel called law enforcement, reporting that he made terroristic threats.  Vogel was arrested shortly after fleeing from police.  When the police stopped Vogel, the officer smelled alcohol and appellant’s eyes were bloodshot and watery.  Subsequently, Vogel provided a breath sample, which showed an alcohol concentration of 0.15.

            The six-count complaint charged appellant with several offenses, including felony first-degree driving while impaired (“DWI”), in violation of Minn. Stat. §§ 169A.20, subd. 1(5), .24, subds. 1, 2 (2002).  The DWI was charged as a felony because of prior offenses.  The parties agree that Vogel has two prior Minnesota DWI convictions which may be used for enhancement purposes.  Because two DWI convictions in Alaska were based on nolo contendre pleas, Vogel moved to exclude them and to dismiss the felony count.  After a contested omnibus hearing, the district court ruled that the Alaska DWI convictions could be used to enhance the charge.  Thus, Vogel had a total of four prior DWI convictions, three of which were used for enhancement purposes, and one was used in calculating Vogel’s criminal-history score.[1]  Subsequently, Vogel entered into a negotiated plea agreement under which all counts would be dismissed except felony first-degree DWI, to which he pleaded guilty.  Vogel was sentenced to 51 months with credit for time served. 

            In November and December 2004, Vogel wrote two letters to the district court, which he requested be treated as petitions for postconviction relief, alleging ineffective assistance of counsel.  Vogel claimed that his counsel failed to communicate his bipolar disorder to the court and failed to fully challenge the use of the prior Alaska DWI convictions.  The district court summarily denied Vogel’s petitions without a hearing.  Vogel now appeals the denial of postconviction relief.


            The issue in this case is whether the district court abused its discretion when it denied Vogel’s petition for postconviction relief.  The petitioner seeking postconviction relief must prove the facts in the petition by a “fair preponderance of the evidence.”  Minn. Stat. § 590.04, subd. 3 (2004).  To meet that burden, the petition “must be supported by more than mere argumentative assertions that lack factual support.”  Henderson v. State, 675 N.W.2d 318, 322 (Minn. 2004).  “We review the postconviction court’s proceedings only to determine whether there is sufficient evidence to sustain the postconviction court’s findings.”  State v. Doppler, 590 N.W.2d 627, 632 (Minn. 1999).  Postconviction rulings on ineffective-assistance-of-counsel claims are reviewed for abuse of discretion.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).


            Preliminarily, Vogel claims that the district court erred by failing to conduct an evidentiary hearing before denying postconviction relief.  A postconviction court need not conduct an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.”  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000) (quotation omitted).  In addition, a postconviction hearing is necessary only when the record is not sufficient to allow review of the ineffective-assistance-of-counsel claim.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  Here, the record contained motion papers from the contested omnibus hearing, as well as the plea-hearing transcript.  The record alone was sufficient for review, and the district court did not abuse its discretion by denying relief without a hearing.


            Vogel claims that his trial counsel provided him with ineffective assistance of counsel.  Vogel bears the burden of proof on such a claim.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  This court applies a two-prong test when evaluating claims of ineffective assistance of counsel.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)).  To prevail, Vogel “must allege facts that demonstrate (1) that his trial counsel’s performance fell below an objective standard of reasonableness” and also “(2) that there is a reasonable probability that, but for counsel’s errors,” the result would be different.  Patterson v. State, 670 N.W.2d 439, 442 (Minn. 2003).

            “Where a guilty plea is concerned, a defendant meets the prejudice prong of the Gates test by establishing a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, but rather would have proceeded to trial.”  Berkow v. State, 573 N.W.2d 91, 96 (Minn. App. 1997), aff’d, 583 N.W.2d 562 (Minn. 1998).  This court will decide “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.”  Dukes v. State, 660 N.W.2d 804, 810 (Minn. 2003) (quotation omitted).  There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment.  Id. at 810-11.

            1.         Failure to Raise Mental Health Issue

            Vogel alleges that his counsel failed to provide adequate assistance because the court was not informed of his bipolar condition and that he was under a doctor’s care when he pleaded guilty.  Vogel contends that either his counsel or the prosecuting attorney had a duty to bring this condition to the attention of the district court and that his plea and sentence would have been different if this had been done.

            Minn. R. Crim. P. 20.01 requires defense counsel or the prosecuting attorney to raise an issue about the defendant’s mental health if either has “reason to doubt the competency of the defendant.”  Thus, it is not the existence of a treated mental disorder that triggers the provisions of rule 20.01, but rather a question as to the competency of the defendant.  Here, a letter from the nurse practitioner treating Vogel acknowledged his disorder, but also stated, “[o]n his medications his bipolar disorder is well controlled.”  There was no evidence from Vogel, the nurse practitioner, or anyone else that Vogel was not taking his medications at the time of the DWI offenses, his plea negotiations, or the plea hearing in this case.  Nor does Vogel claim he told his attorney that he was not taking his medications.  Absent evidence that he was not taking his medications, the nurse practitioner’s opinion supports a conclusion that he was competent to enter the plea.  We conclude that appellant’s counsel was not ineffective in failing to raise this issue with the district court. 

            We also note that Vogel, personally, had an opportunity to bring any mental-health condition to the attention of the district court.  Vogel explicitly stated during his own sworn testimony that he was not suffering from any mental problems or under the influence of any mood-altering drugs.  Based on his statement, the district court found that the plea was knowingly and freely entered and that there was a knowledgeable waiver of rights.  Under such circumstances, Vogel cannot demonstrate prejudice resulting from his counsel’s failure to bring such issues before the district court.[2]

            Finally, we note that Vogel received a 51-month sentence under the terms of a plea agreement.  Felony DWI is considered a severity level VII offense, and with Vogel’s criminal-history score of 3, the presumptive sentence was 54 months.  Vogel acknowledges that when his counsel shared the information regarding his bipolar disorder, the prosecutor offered, and Vogel accepted, a three-month downward durational departure, which resulted in a 51-month sentence.  Therefore, while his mental health was not a mitigating factor, Vogel did receive a benefit from communicating his disorder to the prosecuting attorney.

2.                  Failure to Seek Judicial Review of Alaska DWI Convictions

Vogel also claims that his counsel was ineffective because he did not adequately challenge the admissibility of the two prior Alaska DWI convictions.  Vogel asserts they were inadmissible because they resulted from pleas of nolo contendere and that Minnesota does not recognize such pleas.  See Minn. R. Crim. P. 14.01.    

Minnesota’s criminal code defines “conviction” as including “(1) [a] plea of guilty; or (2) [a] verdict of guilty by a jury or a finding of guilty by the court.”  Minn. Stat. § 609.02, subd. 5 (2002).  The sentencing guidelines provide that “[o]ut-of-state convictions include convictions under the laws of any other state.”  Minn. Sent. Guidelines cmt. II.B.501.  This court has held that appellant’s no-contest plea to a felony charge in Wisconsin could be considered when calculating his criminal-history score.  State v. Edmison, 398 N.W.2d 584, 588 (Minn. App. 1986).  We concluded that, because Edmison did not allege his Wisconsin conviction was invalid, “[t]he distinction between pleading guilty and no contest is therefore irrelevant in this context.”  Id.  Vogel’s claim that the nolo contendere plea cannot be used for enhancement purposes fails.

Vogel’s counsel did challenge the use of the nolo contendere Alaska DWI convictions at the contested omnibus hearing.  The district court found that there was an adequate factual basis and allowed those convictions to be used.  Vogel also claims that failure to appeal the denial of the motion to exclude the Alaska convictions constituted ineffective assistance of counsel.  But Vogel did not have a right to judicial review of the district court’s order because he did not have a final judgment at that time.  See Minn. R. Crim. P. 28.02, subd. 2(2).  Furthermore, matters of trial strategy, such as whether or when to appeal, will not be reviewed for competence, even if they are deemed inadequate in hindsight.  Voorhees, 627 N.W.2d at 651. 

In sum, Vogel’s ineffective-assistance-of-counsel claim fails because he did not establish that his attorney’s performance fell below objectively reasonable standards or that he was prejudiced by such performance.  See Gates, 398 N.W.2d at 561.


[1] See Minn. Sent. Guidelines cmt. II.B.601 (Prior DWIs that elevate an offense to the felony level are excluded from the criminal history score.); see also State v. Zeimet, 696 N.W.2d 791, 798 (Minn. 2005) (prior convictions are first used for enhancements, remaining convictions may be used in computing the criminal-history score; the same prior convictions may not be used for both).

[2]Vogel argues in his supplemental brief that he committed perjury during the plea hearing and that his attorney advised him to lie and deny the existence of any mental-health issues.  There is no evidence in the record, including the postconviction proceeding, to support such a claim, and Vogel’s sworn testimony reflects a knowing and voluntary plea.  See Coolen v. State, 288 Minn. 44, 50-51, 179 N.W.2d 81, 86 (1970) (denying postconviction relief when defendant asserted that he only pleaded guilty because he was promised a reduced sentence; nothing in the record supported defendant’s assertions on appeal, and they directly contradicted his sworn testimony at the plea hearing); State v. Hamilton, 280 Minn. 21, 23-24, 157 N.W.2d 528, 529 (1968).  We also note that even sworn statements made in an affidavit appended to a brief will not be considered on appeal if not presented to the district court.  Losoya v. Richardson, 584 N.W.2d 425, 430 (Minn. App. 1998).  Thus, this claim lacks a factual basis for consideration on appeal, and the record is devoid of evidence which might support such a claim.