This opinion will be unpublished and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
James Mark Vogel,
State of Minnesota,
Becker County District Court
File No. K4-03-1157
James Mark Vogel, MCF –
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Joseph A. Evans, Becker County Attorney’s Office,
Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and 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.
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
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.
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.”
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 (
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 (
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 (
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.
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.
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.
Seek Judicial Review of
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
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
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.
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.