This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joseph Jay Zimmer, FKA Joseph Jay Morrow, petitioner,
Filed June 12, 2007
Hennepin County District Court
File No. 95-2020
Robert D. Miller,
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that (1) the district court erred when it dismissed his petition as untimely, and (2) the district court abused its discretion by determining that there was no record evidence to support appellant’s claims that (a) his guilty plea was improperly induced when the Hennepin County Attorney’s Office promised him that his co-defendant would not be offered anything less than two consecutive life sentences, and (b) his sentencing worksheet contained inaccuracies. We affirm.
In 1996, appellant Joseph Jay Zimmer, formerly known as Joseph Jay Morrow, was sentenced to 419 months in prison after pleading guilty to two counts of second-degree intentional murder. Appellant did not directly appeal his conviction, and the conviction became final on May 13, 1996.
On February 23, 2006, appellant filed a petition for postconviction relief, arguing that (1) his sentence was calculated incorrectly due to inaccuracies in his sentencing worksheet, (2) his confession to law enforcement was coerced by threats and physical force in violation of his Sixth Amendment rights, and (3) his guilty plea was improperly induced when the Hennepin County Attorney’s Office promised him, as a condition of the agreement, that his co-defendant would not be offered anything less than two consecutive life sentences. Appellant requested an evidentiary hearing to determine whether the sentence was improperly calculated and to determine whether he should be allowed to withdraw his guilty plea. But the district court denied appellant’s petition in its entirety without holding an evidentiary hearing.
The district court concluded that appellant’s petition was untimely and that there was no evidence in the record to support appellant’s contentions that (1) his sentencing worksheet contained inaccuracies, (2) his statements to law enforcement were coerced, and (3) his guilty plea was conditioned, in part, on the Hennepin County Attorney’s Office’s promise that appellant’s co-defendant would not be offered anything less than two consecutive life sentences.
This appeal follows.
Under Minn. Stat.
§ 590.04, subd. 3 (2004), a petitioner seeking postconviction relief has the
burden of establishing by “a fair preponderance of the evidence” the facts
alleged in the petition. We review “a
postconviction proceeding only to determine 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.” Hodgson
v. State, 540 N.W.2d 515, 517 (
“[w]hen there is no basis on which a postconviction court could grant relief,
the court is not required to conduct an evidentiary hearing before denying
relief.” Sanders v. State, 628 N.W.2d 597, 600 (
argues that the district court erred when it denied his postconviction petition
on the ground that it is untimely. Minn.
Stat. § 590.01, subd. 4(a) (Supp. 2005), provides that “[n]o petition for
postconviction relief may be filed more than two years after the later of: (1)
the entry of judgment of conviction or sentence if no direct appeal is filed;
or (2) an appellate court’s disposition of petitioner’s direct appeal.” But the statute did not become effective
until August 1, 2005, and “[a]ny person whose conviction became final before
August 1, 2005, shall have two years after the effective date . . . to file a
petition for postconviction relief.”
Accordingly, as the state concedes, this statutory provision does not bar appellant’s postconviction petition, as appellant’s conviction in 1996 became final before August 1, 2005, and the postconviction petition was filed on February 23, 2006, well within the two-year period provided for by the statute. But because the district court also reached the merits of appellant’s petition, we do not reverse on this issue. See Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998) (stating that although the postconviction court “erred when it concluded that [appellant’s] petition for postconviction relief was not timely . . . the error [was] harmless because the postconviction court did consider the substantive merits of [appellant’s] claim” and “[appellant’s] rights were not prejudiced”), review denied (Minn. July 16, 1998).
Appellant also argues that his guilty plea was improperly induced when the Hennepin County Attorney’s Office promised him, as a condition of the plea agreement, that his co-defendant would not be offered anything less than two consecutive life sentences, a promise that was allegedly broken when appellant’s co-defendant was sentenced to concurrent terms. Appellant further contends that the district court abused its discretion when it denied an evidentiary hearing to determine whether he should be allowed to withdraw his guilty plea. We disagree.
a guilty plea to be valid, it must be accurate, voluntary, and intelligent
(i.e., knowingly and understandingly made).”
Sykes, 578 N.W.2d at 812
(quotation omitted); see also Alanis v.
State, 583 N.W.2d 573, 577 (
Here, appellant alleges that, as part of his plea agreement, the Hennepin County Attorney’s Office promised him that it would seek consecutive life sentences for appellant’s co-defendant, Barry M. Dodd, and would not recommend concurrent sentences. Appellant further alleges that, after Dodd received concurrent life sentences, appellant’s counsel met with a representative of the Hennepin County Attorney’s Office and “was assured that the state did not offer [Dodd] concurrent sentences,” but that the district court instead decided to impose concurrent sentences. Appellant claims that, years later, appellant’s counsel was informed by Dodd that he knew that he was going to get concurrent life sentences rather than consecutive sentences prior to pleading guilty. In support of his position, appellant appended an affidavit signed by Dodd, which states:
My lawyers told me that, in exchange for pleading guilty to counts of murder in the first degree, I would receive two concurrent life sentences. It was made very clear to me that I would receive concurrent as opposed to consecutive sentences. I would never have agreed to plead guilty to two first degree murder cases if I thought there was any chance of receiving two consecutive life sentences.
Appellant therefore concludes that the Hennepin County Attorney’s Office broke its agreement with him and that, at the very least, the district court should have held an evidentiary hearing to hear testimony from himself, Dodd, and Dodd’s attorney on the matter.
But the record does not support appellant’s recollection of the plea agreement. At appellant’s felony plea hearing, the prosecutor reported the settlement agreement as follows:
[Appellant] would enter pleas of guilty to the lesser-included charges of Intentional Murder in the Second Degree. These are lesser includeds of Counts 1 and 2 in the Complaint, one for each victim.
As part of our agreement we have provided that [appellant] would serve an actual period of 23 to 24 years incarceration and would, of course, receive credit for time already served subsequent to the day of this charge.
In exchange for allowing [appellant] to plead guilty to these lesser-included charges, we have an agreement whereby [appellant] would agree to testify truthfully against the Co-Defendant in this matter, Barry Dodd.
I may inquire of [appellant]; but specifically what we are referring to is that
[appellant’s] testimony would be truthful testimony as was given in his
statement of June 5th of 1995 to
Appellant’s attorney responded, “Your Honor, I believe that Mr. Harris has fairly set out the negotiated plea in this matter. And we do have a completed Plea Petition and we are ready to proceed as well.” At the same hearing, appellant, himself, testified to the terms of his plea agreement.
Q [Appellant], you understand that part of the negotiation here is that you are required to cooperate in any trial that may occur of Mr. Dodd in connection with this matter?
Q And you also understand that we don’t just want you to come in and testify; we want you to come in and tell the truth?
A I do.
THE COURT: Is that a yes?
[APPELLANT]: I do understand.
We find no mention in the record of a promise made by the Hennepin County Attorney’s Office that they would seek consecutive rather than concurrent sentences for appellant’s co-defendant as a condition of appellant’s plea agreement. In addition, Dodd’s affidavit, which appellant attached to his petition, does not indicate that Dodd himself was a party to any conversations with the Hennepin County Attorney’s Office, but instead simply attests to information that Dodd was allegedly told by his attorneys.
Because there is no factual support in the record for appellant’s allegation that his plea agreement was made in exchange for assurances that the prosecutor would not offer appellant’s co-defendant anything less than two consecutive life sentences, we conclude that appellant’s guilty plea was voluntary and therefore valid. We also conclude that the district court did not abuse its discretion by denying appellant’s request for an evidentiary hearing on this issue, as appellant’s allegations amount to mere “argumentative assertions without factual support.” Hale, 566 N.W.2d at 926; see also King v. State, 649 N.W.2d 149, 158 (Minn. 2002) (concluding that district court did not abuse its discretion in denying appellant relief without a hearing where appellant “offered nothing but his own assertions in support of his theory” and did not offer any factual support); Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (stating that “[t]he facts alleged must be more than bald assertions or conclusory allegations without factual support”), review denied (Minn. May 18, 1987).
Finally, appellant argues that he was entitled to an evidentiary hearing on his claim that he was incorrectly sentenced due to inaccuracies in his sentencing worksheet. The worksheet that was prepared for appellant’s sentencing hearing shows that appellant had a criminal-history score of six, which included one felony point for the offense of unauthorized use of a motor vehicle. But appellant contends that his criminal-history score should not have included a felony point for the offense of unauthorized use of a motor vehicle because he was already incarcerated at the time that the offense was allegedly committed, and, therefore, he could not have been the perpetrator.
The district court found, however, that appellant did not offer any “evidence that his Sentencing Worksheet contained erroneous information” and therefore denied appellant’s request for an evidentiary hearing. We agree. There is no evidence in the record, and appellant offers no additional evidence in his petition, to support his argument that he was incarcerated on the date that the unauthorized-use-of-a-motor-vehicle offense was committed. Accordingly, we conclude that the district court did not abuse its discretion by denying appellant’s request for an evidentiary hearing and by denying appellant any relief on this issue.