This opinion will be unpublished and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
Rickey Maddox, petitioner,
Filed October 10, 2006
Olmsted County District Court
File No. 55-CO-02-004659
Michael C. Davis, Special Assistant Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN 55101 (for appellant),
Rickey Maddox, MSDF, Pod # 6A, Bcd – 18 Lower, P.O. Box 05911, Milwaukee, WI 53205-0911 (pro se appellant),
Mike Hatch, State Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent).
Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
an appeal from an order denying appellant’s postconviction petition which
challenged his 2002 sentence for third-degree assault. Appellant has already benefited by two remand
from this court. Appellant argues now
that the district court erred in concluding his 1989
facts are mostly undisputed. On December
11, 2001, appellant Rickey Maddox beat his live-in girlfriend at a park in
In January 2002, Maddox was charged with first-degree robbery under Minn. Stat. § 609.245, subd. 1 (2000); third-degree assault under Minn. Stat. § 609.223, subd. 1 (2000); theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(17) (2000); and fifth-degree assault under Minn. Stat. § 609.224, subd. 1(2) (2000). Maddox entered into a plea agreement with the state. Under the terms of the plea agreement, Maddox pleaded guilty to the third-degree assault charge, the other counts on the complaint were dismissed, and there was a joint recommendation to the court to sentence Maddox to an executed 60-month term. The district court accepted the plea and sentenced Maddox to the 60-month term stating that the reasons for the nearly triple upward departure in sentencing were: Maddox’s two previous violent-crime convictions; that Maddox’s conduct established three aggravating factors; and that he agreed to be sentenced under the career-offender statute, Minn. Stat. § 609.1095, subd. 2 (2000).
Maddox filed a pro se petition for postconviction relief that requested an evidentiary hearing and a reduction in sentence from 60 to 21 months. The postconviction court denied Maddox’s request for an evidentiary hearing and his request for a reduction in sentence.
Maddox appealed the postconviction court’s
denial of his petition. Maddox was
represented by a public defender for the appeal. This court reversed and remanded the district
court’s denial of Maddox’s requests. Maddox
v. State, A03-398, 2004 WL 77845, *3 (
The postconviction court held an
evidentiary hearing regarding the postconviction relief that Maddox had
sought. Maddox’s request for
postconviction relief was again denied.
Maddox appealed, arguing inter alia that he was improperly denied
counsel during this evidentiary hearing.
See Maddox v. State, A04-574,
2005 WL 287533, *1 (Minn. App. Feb. 8, 2005)
This court reversed the postconviction court’s denial of relief and
remanded the issues for an evidentiary hearing at which Maddox was to be
represented by counsel or to put on the record a valid waiver of counsel.
Subsequently, the postconviction court convened a hearing to determine whether Maddox’s criminal-history score had been correctly calculated and whether defendant was properly sentenced under Minn. Stat. § 609.1095; specifically, whether aggravating factors existed to support the upward durational departure. The postconviction court issued its order and memorandum which established Maddox’s criminal history score to be four and found that, regardless of the criminal history score, Maddox was properly sentenced because the career offender statute was justified based on the terms of his guilty plea. The court again denied the petition for postconviction relief. This appeal followed.
D E C I S I O N
1. Is there evidence within the record to support a claim of ineffective assistance of counsel, or prosecutorial or judicial misconduct?
Maddox raised issues of ineffective assistance of counsel and prosecutorial and judicial misconduct in his pro se supplemental brief. Regarding the ineffective assistance of counsel claims, Minn. R. Prof. Conduct 1.6(b)(8) specifically notes that a lawyer may reveal information relating to the representation of a client if that attorney reasonably believes the disclosure of the information is necessary “to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.” When Maddox alleged that his counsel ineffectively represented him before the district court, his former attorney was allowed to, if not required to, disclose information regarding conversations he and Maddox had and his rationale for legal advice given. Maddox’s former attorney testified about conversations he had with Maddox regarding the details of the guilty plea and what it would mean for his sentencing. Maddox’s claims that this violated his ability to receive a fair determination from the postconviction court because the attorney was forced to defend the legal advice given is without merit. Without the claims of ineffective assistance by Maddox, this testimony would not have been given to the postconviction court.
Maddox also argues that the prosecutor and district court judge were guilty of misconduct for failing to inform him of the justification for the 60-month executed sentence until after the plea agreement was accepted. After review of the record, we reject these claims.
The prosecutor expressed to the district court, in the presence of Maddox, that the justification for the 60-month sentence was to avoid the possibility of a longer sentence after trial. The district court inquired whether Maddox had any reservations regarding this justification. In response, Maddox questioned the use of the career offender statute and whether the 60-month sentence he agreed to was the ultimate sentence he would serve. On the record, it was noted that Maddox’s earlier convictions were the justification for the upward departure on the third-degree assault charge and that the 60-month sentence would be the sentence he would serve. Maddox expressed satisfaction with this answer. No further increase in Maddox’s sentence has been sought or received in this matter.
2. Were Maddox’s sexual assault convictions properly determined to be separate behavioral incidents to qualify as separate criminal history index points?
the postconviction court determined Maddox’s criminal history score, it held
that there was sufficient evidence of intervening activity between the first
two criminal sexual contacts (one criminal history point) and the third
criminal sexual contact (one criminal history point) to conclude that there was
no unity of time and that the last sexual assault was a separate crime from the
two previous assaults the evening before.
Specifically, the postconviction court held that the length of time
between the first two sexual assaults, meaning Maddox’s departure from the room
with his victim so she could make a phone call, the return of Maddox’s roommate
to the room, and Maddox’s overnight sleep between the sexual assaults was
sufficient intervening activity to justify a finding that the sexual assault
the next morning was a separate behavioral incident. Maddox argues that the district court and
postconviction court erred when it considered his sexual assault convictions in
This issue is controlled by Minn. Stat. § 609.035, subd. 1 (2000), which states that: “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.” This court has explained that
This statute, known for its “single behavioral incident” rule, contains two prohibitions; one against double punishment and one against serialized prosecutions. The statute is designed to preclude multiple prosecutions for offenses resulting from a single behavioral incident so that double punishment is prohibited, but punishment for a “multiplicity of violations will be commensurate with the criminality of defendant’s misconduct.”
State v. Secrest, 437
N.W.2d 683, 684 (Minn. App. 1989) (citations omitted), review denied (Minn. May 24, 1989).
Whether offenses are part of a single behavioral incident is a fact
determination for the sentencing court that will not be reversed by an
appellate court unless clearly erroneous.
Effinger v. State, 380 N.W.2d 483, 489 (
This court has stated
that in criminal sexual conduct cases, two criteria have been applied, (1) “the
conduct involved must be motivated by a desire to obtain a single criminal
objective,” and (2) “the offenses must occur at substantially the same time and
place, arise in a continuous and uninterrupted course of conduct and manifest
an indivisible state of mind. Secrest,
437 N.W.2d at 685. In Secrest, the
criminal sexual conduct occurred over a total of three years, approximately
once per month.
The facts of Maddox’s criminal sexual conduct in
Maddox appears to assert that because the
Maddox was properly sentenced under
Maddox argues that the postconviction
court abused its discretion by “upholding the nearly triple durational
departure” and asserts
that under the sentencing guidelines, a 21-month stayed sentence was
appropriate. The postconviction court
found that “a legally sufficient basis was established by the record to support
the agreed upon aggravated upward durational departure . . . as is more fully
set forth in [the] departure report” and upheld the 60-month executed
sentence The departure report provides
that the court used section 609.1095, subdivision 2, to support the
departure. This report provides that
Maddox “violated a position of trust with the victim, brutally beat her during
the course of a robbery, and then left without rendering her medical
assistance.” The postconviction court affirmed
the district court’s findings, but only cited the violation of a position of
trust and leaving without rendering medical treatment as the rationale for
upholding the upward departure. This
court reviews a postconviction court’s proceedings to determine if there is
sufficient evidence to support the findings and whether the district court
abused its discretion with its decision.
Hodgson v. State, 540 N.W.2d 515, 517 (
Minn. Stat. § 609.1095, subd. 2 (2000) (emphasis added), provides:
Whenever a person is convicted of a violent crime that is a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:
(i) the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity including juvenile adjudications; or
(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.
the district court may depart upwards from the sentencing guidelines, the
defendant’s conduct must be more serious than that typically involved in that
crime. State v. Broten, 343
N.W.2d 38, 41 (
The district court stated that three aggravating factors and the career-offender statute justified the upward departure in sentencing. Because of Maddox’s past criminal conduct, the postconviction court determined that he was eligible to be considered for sentencing under section 609.1095, subd. 2. Under section 609.1095, subd. 2(2)(i), the postconviction court properly considered Maddox’s past criminal history, which shows a propensity towards violence. Similarly, the postconviction court also considered aggravating factors involved with the assault charge to which Maddox pleaded guilty under section 609.1095, subd. 2(2)(i).
An abuse of a trust relationship between the victim and the perpetrator is a proper aggravating factor. State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) (finding no abuse of a trust relationship between a john and a prostitute), review denied (Minn. May 18, 1988); see State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996) (finding an abuse of a trust relationship between an employer and an employee), review denied (Minn. July 10, 1996). Here, Maddox abused a trust relationship with his victim, his girlfriend who lived with him.
Maddox was originally charged with a number of violent felonies. In part, the prosecutor agreed to drop those charges if Maddox pleaded guilty to the third-degree assault charge. Maddox agreed to accept a sentence of 60-months, which would be justified under Minn. Stat. § 609.1095, subd. 2. Ultimately, Maddox knowingly and voluntarily accepted this plea agreement with the state to avoid a trial on even more serious charges that the state could have brought against him.
Maddox’s criminal history score was correctly calculated and his sentence was presumptively executed.
 Because of the date of appellant’s offenses
and the dates of his court hearings, Blakely
is not an issue. Appellant does not
assert a Blakely issue and we
consider none. Blakely v. Washington, 542
 During Mattox’s first appeal, the state conceded that the elements of the dismissed robbery charge should not have been used as a departure factor.