This opinion will be unpublished and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
Michael Gerald Gamboa, petitioner,
Filed May 16, 2006
Polk County District Court
File No. K7-96-795
Michael Gerald Gamboa, Inmate Number 06940-059, U.S. Penitentiary - Florence, P.O Box 7000, Florence, CO 81226 (pro se appellant)
Mike Hatch, Attorney General, 1800
Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
In this postconviction
appeal, Michael Gamboa raises three issues on which he contends that the
district court abused its discretion by summarily denying relief: the denial of right to counsel on his request
to execute his stayed sentence, the breach of his plea agreement because of
insufficient jail credit, and the improper calculation of jail credit. Because his request to execute his sentence
is not a critical-stage proceeding in which he has a right to counsel, his plea
agreement did not include any terms relating to jail credit, and he is not
entitled to jail credit for his incarceration outside
F A C T S
Michael Gamboa pleaded guilty in August 1996 to charges of first-degree conspiracy to commit a controlled-substance crime and fifth-degree controlled-substance crime. Under the terms of the plea agreement, the state agreed to recommend a thirty-year stay of the presumptive eighty-six-month executed sentence for the first-degree offense in exchange for Gamboa’s providing information about his codefendants, accomplices, and coconspirators. For the fifth-degree offense, the plea agreement provided that the state would recommend that Gamboa serve thirty-six months. In addition, the plea agreement provided that any further violations of law would result in executing the stayed sentence. At the hearing on the entry of the plea, the state listed the terms of the plea agreement and confirmed on the record that these terms stated the entire plea agreement. Gamboa also confirmed the terms of the plea agreement on the record and stated that no additional promises had been made to him.
district court accepted the plea agreement and the recommendations for
sentencing. At the time of the state court
sentencing, Gamboa had been sentenced on three unrelated federal charges and
was awaiting sentencing on a
his release from prison on these convictions, Gamboa was arrested on new
drug-related charges. In January 2003 a federal
jury convicted Gamboa of eight federal charges involving drug-related
activity. A federal district court
sentenced him to two consecutive life sentences, which he is currently serving
in a federal prison in
filed a petition for postconviction relief in March 2003, seeking to withdraw
his 1996 guilty plea. The district court
summarily denied his petition. In May 2004
Gamboa petitioned the district court to execute the stayed sentence on his
first-degree controlled-substance conviction.
The district court executed his sentence and granted him 217 days of
jail credit for time served in
In January 2005 Gamboa filed a second petition for postconviction relief, asserting that he was denied effective assistance of counsel because he was unrepresented on his 2004 request to execute his sentence, that failure to credit him for time he served in prison in North Dakota violated his 1996 plea agreement, and that the district court erred in its calculation of jail credit. The district court denied Gamboa’s postconviction petition without a hearing, and he appeals.
D E C I S I O N
In a postconviction proceeding, the
petitioner has the burden of proving, by a fair preponderance of the evidence,
facts that warrant relief. Minn. Stat.
§ 590.04, subd. 3 (2004). We
review a summary denial of a postconviction petition under an
abuse-of-discretion standard. Powers v. State,695 N.W.2d 371, 374 (
Gamboa analogizes his sentence-execution request to a probation revocation. At a probation-revocation hearing, a defendant has both a constitutional and a statutory right to counsel. Kouba, 709 N.W.2d at 304; see also Minn. Stat. § 609.14, subd. 2 (2004) (stating that defendant is entitled to be represented by counsel at probation-revocation hearing); Minn. R. Crim. P. 27.04, subd. 2(1)a (requiring defendant in probation-revocation proceeding be advised of right to counsel).
Although we recognize that a petition to execute a sentence effectively revokes a defendant’s probation, we are not persuaded that a sentence-execution request equates to a probation-revocation proceeding. Unlike a probation-revocation proceeding, a defendant initiates a petition to execute his sentence. And, if granted, the execution of his sentence operates to the defendant’s benefit by allowing him to complete his sentence simultaneously with his incarceration on a separate offense. Additionally, consideration of a sentence-execution request is not adversarial in nature because, unlike a probation-revocation hearing, the state ordinarily does not oppose a defendant’s request. Finally, a defendant’s request to execute a sentence is limited to the single issue of whether to grant the request and differs from a probation-revocation hearing, which characteristically addresses both the grounds for revocation and whether to execute the sentence.
The reasoning in
Gamboa’s second contention is that the postconviction court abused its discretion by summarily denying relief on his allegation that the jail-credit determination resulted in a breach of his plea agreement.
determine whether a plea agreement has been breached, we examine what the
parties to the agreement reasonably understood as its terms. State
v. Brown, 606 N.W.2d 670, 674 (
Gamboa essentially argues that the sentencing court’s failure to credit him for a specific amount of jail time constitutes a breach of the plea agreement. The record provides no support for his claim that the plea agreement contemplated a specified amount of jail credit. The plea agreement, stated on the record at the plea hearing, contains no agreement on jail credit, and the transcript of the entire hearing is devoid of a reference to a specific amount of jail credit that Gamboa would receive in the event his sentence was executed. Gamboa specifically acknowledged the accuracy of the agreement stated on the record at the plea hearing and confirmed that the state had made no other promises. The postconviction court did not abuse its discretion by summarily denying Gamboa’s allegation that the determination of jail credit resulted in a breach of his plea agreement.
A defendant is entitled to jail credit for all
time spent in custody following arrest, including time spent in custody on
other charges, beginning when the prosecution has probable cause to charge the
defendant with the current offense. State v. Fritzke, 521 N.W.2d 859, 862 (
When calculating jail credit for time served
in another state, the district court is required to credit only that amount of
time for which the defendant was incarcerated “solely in connection” with a
Minnesota offense. State v. Akbar, 419 N.W.2d 648, 650 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.