This opinion will be unpublished and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
Leonard Mangum, petitioner,
Filed October 3, 2006
Hennepin County District Court
File No. 02070295
Leonard Mangum, OID #2131126, MCF Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)
Mike Hatch, Attorney General,
Amy Klobuchar, Hennepin County
Attorney, C-2000 Government Center,
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
In this appeal from an order denying him postconviction relief, appellant Leonard Mangum challenges his 2003 conviction for and sentence for two counts of first-degree criminal sexual conduct. He argues he should be allowed to withdraw his plea because it was not intelligently made, and because the plea agreement, which left the parties free to argue for sentences of various durations, did not authorize consecutive sentencing. Appellant also argues that he was denied the effective assistance of counsel when his attorney failed to inform him of all the consequences of his plea, failed to explore the possibility of consecutive sentencing, and failed adequately to support appellant’s motion to withdraw the plea or to follow up on exculpatory evidence. Finally, appellant argues that his consecutive sentencing was erroneous and a departure was imposed based on judicial findings in violation of his right to a jury trial.
The record shows that appellant will not suffer a manifest injustice if not allowed to withdraw his plea. He was not deprived of effective assistance of counsel. Consecutive sentencing was not erroneous. Appellant is not entitled to have a jury determine his sentence. We affirm the district court’s denial of appellant’s request for postconviction relief.
The state charged appellant Leonard Mangum, by amended complaint, with three counts of first-degree criminal sexual conduct arising from separate incidents involving persons under 13 years old. Appellant was declared incompetent to stand trial after an initial Rule 20 evaluation; then a petition for commitment was filed. The petition was dismissed after reevaluation. Following a third evaluation, requested by appellant’s counsel, the district court found appellant competent to stand trial.
After plea negotiations, appellant pleaded guilty to two counts of first-degree criminal sexual conduct. The plea agreement stated that the maximum penalty that could be imposed for the crime was 30 years “per count,” that the state could argue before the district court for a sentence of no more than 20 years, and that the defense would argue for 16 years. The intent was to leave open a narrow window of years for sentencing. This is analogous to a personal injury trial wherein each party’s counsel makes a private binding court-approved “hi-lo” agreement before closing argument.
At the sentencing, appellant’s attorney now moved for plea withdrawal based on appellant’s statement that at the plea hearing, he had been hearing voices in his head; that interfered with his ability to make judgments. The district court denied the motion and proceeded to impose sentence. The sentence was consecutive sentences of 12 years on one count (presumptive) and 6 years (downward departure) on the other count, for a total of 18 years, with jail credit for 452 days and supervised parole for five years.
Appellant did not file a direct appeal but filed an initial pro se petition for postconviction relief, asserting that his plea was not intelligently made based on his history of mental illness and his failure to take prescribed medications at the time of the plea. The postconviction court denied relief without a hearing. Appellant then filed a second petition for postconviction relief, seeking withdrawal of his plea on the basis that the plea agreement did not contain a provision for consecutive sentencing and that his counsel was ineffective for failing to disclose the consecutive sentencing provision. The postconviction court again denied relief without a hearing. This appeal under Minn. R. Civ. App. P. 142.03 followed.
A person convicted of a crime may
seek postconviction relief in order “to vacate and set aside the judgment . . .
or grant a new trial . . . or make other disposition as may be
appropriate.” Minn. Stat. § 590.01,
subd. 1(2) (Supp. 2005). On factual
matters, “‘[r]eview of a postconviction proceeding is limited to determining
‘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.’” Zenanko v.
State, 688 N.W.2d 861, 864 (
Once a guilty plea has been entered, a defendant does
not have an absolute right to withdraw it.
Kim v. State, 434 N.W.2d 263,
Appellant argues that his plea was not intelligently made because he was not fully informed by counsel or the district court of the consecutive sentencing provision of his plea. He claims that he was not given adequate time to consider the plea and that the plea agreement did not specifically state the possibility of consecutive sentencing.
The terms of the plea agreement, which appellant signed, specifically state that the maximum penalty for the charged offenses was 30 years “per count.” The plea transcript shows that appellant indicated his understanding that the maximum penalty the court could impose for the charges was “30 years per count.” At the plea hearing, appellant indicated his understanding of the plea negotiation. At sentencing, the defense would have the right to request a 16-year sentence, and the prosecution would have the right to request up to a 20-year sentence. Appellant acknowledged an understanding of the possible years he was exposed to, knew the sentence the state would argue for, and knew the sentence his attorney would argue for. Appellant stated on the record that he had had enough time to discuss the plea with his attorney and his belief that the agreement was “a better action” than proceeding to a jury trial. The sentencing terms of the plea agreement were not violated. We agree with the district court that appellant did not allege sufficient facts to show his plea was not intelligently made.
Appellant also argues that the terms of the plea agreement “formed a contract,” which was breached by the imposition of consecutive sentencing. An examination of the plea agreement shows that it is not susceptible to appellant’s interpretation. The terms of the agreement were clear. They were presented to the district court, appellant acknowledged them, and the district court approved them.
Appellant argues that he was denied
his constitutional right to effective assistance of counsel. The Sixth Amendment to the United States Constitution
guarantees the right to a fair trial, and the right to effective assistance of
counsel is an integral part of that right. State v. Powell, 578 N.W.2d 727, 731 (
Appellant argues that counsel’s representation was constitutionally defective because his attorney failed to inform him that his plea agreement contained consecutive sentencing. Appellant signed the plea agreement, which indicated that he had been told by his attorney and he understood that the maximum penalty that could be imposed was 30 years “per count.” Appellant knew the state could argue for up to 20 years. Appellant knew his attorney could argue for just 16 years. Appellant received a sentence of 18 years. It is difficult to find fault with that.
Appellant maintains that his attorney improperly failed to present to the district court evidence of his mental state and medical history that would have revealed his inability to make an intelligent plea. The record does not support appellant’s claim. Appellant’s counsel did move for plea withdrawal on the basis of appellant’s assertion that at the time of the plea hearing, he was suffering from delusions. The district court agreed at the plea hearing that appellant had a history of mental illness and was currently taking medication for a psychiatric condition. Appellant agreed that he did not claim that he did not understand the proceedings. The record shows that appellant’s competence to stand trial was evaluated three times, with consideration of his past medical history. The last time the district court found that he was competent to stand trial, and the plea negotiations followed.
Appellant now argues, for the first
time on appeal, that his attorney’s performance was defective because defense counsel
(1) did not argue for the admission of statements from the complainants that he
asserts would have exculpated him and (2) failed to conduct discovery to show
that one of the complainants was unduly influenced to change her statement,
resulting in prejudice to him. Appellant
did not raise this theory in his postconviction petition. Consequently, we need not consider it. See
Appellant argues that the district court erred by
imposing consecutive sentencing, which he claims is unauthorized for his
convictions. A district court has discretion
to impose consecutive sentencing for convictions of multiple felonies with multiple victims. State
pleaded guilty to two counts of first-degree criminal sexual conduct with two
separate persons; under these circumstances, consecutive sentencing is not a departure from the sentencing
guidelines. See O’Meara v. State, 679 N.W.2d 334, 341 (
appellant states his belief that the district court’s sentencing constituted an
upward departure, entitling him to have a jury determine his sentence under Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004). His argument fails
for three reasons. First, appellant is incorrect that there was
an upward sentencing departure: appellant received the presumptive sentence for
first-degree criminal sexual conduct, 144 months, on the first count, and a
downward departure on the second count. See Minn. Stat. §609.342, subd. 2
(2002). Second, the Minnesota Supreme
Court has held that while Blakely created
a new rule, it was not a watershed rule and will not be applied retroactively
to cases that were final prior to Blakely’s
effective date of June 24, 2004. State v.