This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Sean Fitzgerald Pozzi, petitioner,





State of Minnesota,



Filed July 31, 2007


Shumaker, Judge


Scott County District Court

File No. K-04-1324




Barry V. Voss, 527 Marquette Avenue, 527 Marquette Avenue, Suite 2355, Minneapolis, MN 55402 (for appellant)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Patrick Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant Scott County Attorney, Justice Center JC 340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)



            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.



U N P U B L I S H E D   O P I N I O N


            Appealing from a denial of his petition for postconviction relief, Sean Pozzi argues that the district court abused its discretion by dismissing his petition without an evidentiary hearing and finding that his guilty plea for failure to register as a sex offender was accurate and intelligent.  He also alleges that he was denied effective assistance of counsel during pretrial negotiations because his attorney did not tell him that a sentence of 115 to 120 months would constitute an upward departure from the presumptive sentence that would require a finding of aggravating factors and because his attorney failed to tell him that the presumptive sentence would be concurrent and not consecutive.  Turning to the postconviction court’s thorough and clear analysis for guidance, we find that Pozzi’s contentions are without merit because he was clearly informed of the direct consequences of his plea, at no point was he told that he would receive consecutive sentences if he did not plead guilty, and his attorney effectively negotiated an advantageous sentence for Pozzi. 


            When appellant Sean Pozzi appeared for trial for failure to register as a sex offender, he was offered and he accepted a plea bargain as to that charge and other pending and possible charges.  Under the agreement, Pozzi was given the mandatory minimum 24-month executed sentence for the registration charge; concurrent executed sentences of 21 months each on two felony-theft charges; and concurrent executed sentences on various misdemeanor charges.  The state also agreed that it would not seek consecutive sentences for the theft and misdemeanor convictions, would dismiss charges of trespass and driving after revocation of driver’s license, would not prosecute Pozzi for terroristic threats, and would refrain from recommending a consecutive sentence on a theft charge pending in another county.

            The state indicated that if Pozzi did not accept the offer, it would charge terroristic threats and would seek consecutive sentences on the matters unrelated to the registration charge.  The district court informed Pozzi that if he were convicted of all charges, pending or to be brought, he could face imprisonment within the range of 115 to 120 months.

            Pozzi’s attorney conferred with him and explained, on the record, the plea agreement and the nature of concurrent instead of consecutive sentences.  Pozzi stated on the record that he understood the proposed plea agreement and that he was satisfied with his attorney’s representation.

            The court sentenced Pozzi in accordance with the agreement.  A few months later, Pozzi filed a petition for postconviction relief, alleging that his right to concurrent sentences was violated and that he was denied the effective assistance of counsel.  He requested an evidentiary hearing.

            The court granted Pozzi’s request for an evidentiary hearing but, as the court noted in its postconviction order:

Prior to the evidentiary hearing scheduled for March 17, 2006, counsel for both parties indicated that neither intended to call any witnesses or present any additional information beyond the transcripts and memoranda already in the Court’s file.  Therefore, this Court cancelled the hearing and is deciding this matter on its merits based upon the written arguments of counsel and the transcripts and affidavits in the court file.


            The court denied the petition, and Pozzi appealed.


Evidentiary Hearing

            Pozzi contends that his petition and supporting affidavit demonstrated that he was entitled to an evidentiary hearing.  He cites authority that any doubt about whether an evidentiary hearing should be held is to be resolved in the petitioner’s favor.  State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

            The district court had no doubt about Pozzi’s entitlement to an evidentiary hearing and granted his request.  But when the prosecutor and Pozzi’s defense attorney told the court that there was no new evidence to be presented at an evidentiary hearing but rather everything was already part of the court file, the court cancelled the hearing.  The court did not deny Pozzi an opportunity for an evidentiary hearing and clearly did not err or prejudice Pozzi in cancelling a hearing that would have produced nothing not already before the court, as attested by Pozzi’s own lawyer and the prosecutor.

Voluntary and Intelligent Plea

            Pozzi also argues that he should be allowed to withdraw his plea as it was not intelligently or voluntarily entered.  We will “reverse the district court's determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.”  Bolinger v. State, 647 N.W.2d 16, 20-21 (Minn. App. 2002).  A criminal defendant does not have an absolute right to withdraw a guilty plea once entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But a criminal defendant may withdraw a guilty plea, even after sentencing, if the defendant shows that “withdrawal of the plea is necessary to correct a manifest injustice.”  State v. Ecker, 524 N.W.2d 712, 715-16 (Minn. 1994) (quoting Minn. R. Crim. P. 15.05, subd. 1).  “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.”  Alanis, 583 N.W.2d at 577.

            In its thorough and clearly presented memorandum, the district court explained that no one misled Pozzi as to the potential consequences he could face if he were found guilty of all charges, including terroristic threats.  Although Pozzi claims that it was represented to him that he would receive consecutive sentences if he went to trial, the record shows that all language by the court, the prosecutor, and defense counsel referred to possible sentences.  No one suggested that there would be presumptive consecutive sentencing.  When the prosecutor stated that he would “request” or “recommend” consecutive sentences and when the court indicated the “potential” range of consecutive sentences, Pozzi could not reasonably have understood anything other than the fact that these were possibilities if he had trials and if he were found guilty of the various charges.  The court noted that it would have to depart from the sentencing guidelines to impose consecutive sentences and acknowledged that departures were not discussed.  But the court said, “it was not possible to do so since [Pozzi] had not yet been convicted of any of the charges against him.”  As is frequently done in plea agreements, the court and counsel informed the accused of the “worst-case scenario” if he elected to have trials on the charges.  There was neither a promise nor an intimation that the worst-case scenario was a certainty.

            The court did not err in concluding that Pozzi’s plea was intelligent, accurate, and voluntary.

Blakely Violation

            Pozzi also alleges that consecutive sentences would violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), in that in order to arrive at the sentence range of 115 to 120 months, the court would have to depart from the presumptive sentence and would need  substantial and compelling reasons to justify a departure. This argument is entirely irrelevant because there can be no alleged Blakely violation for a consecutive sentence if there was no consecutive sentence imposed.  Furthermore, Blakely does not apply to consecutive sentences.  State v. Senske, 692 N.W.2d 743 (Minn. App. 2005), review denied (Minn. May 17, 2005).

Ineffective Assistance of Counsel

            Pozzi argues that he was denied effective assistance of counsel when his attorney failed to tell him that the presumptive sentences were concurrent and not consecutive.  He also alleges that his attorney failed to correct the court and the prosecuting attorney about his presumptive sentences.  

The defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

            In an affidavit supporting his petition, Pozzi states that his defense attorney told him that he would receive consecutive sentences and never informed him that the felony-theft offenses and terroristic threats were given a presumptive concurrent sentence.  Pozzi alleges that, but for this misunderstanding, he would have been in a more advantageous position to negotiate his plea.  We disagree. 

            In order to prevail on his claim, Pozzi must establish that his counsel’s representation fell below an objective standard of reasonableness.  An attorney acts within this standard when the attorney exercises the customary skills and diligence that a reasonably competent attorney could provide under the circumstances.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  First, the record shows that Pozzi’s attorney did not tell him he would receive consecutive sentences, but merely that it was possible, and clearly informed him of the direct consequences of the plea.  The record shows that his attorney diligently negotiated the agreement, inasmuch as bargaining for a longer period of time for Pozzi to surrender himself so that he could celebrate his birthday with his mother, and Pozzi told the court he was satisfied with his representation.  Pozzi ultimately received the mandatory minimum sentence for his failure-to-register conviction, a clearly advantageous sentence given that he also pleaded guilty to two felony thefts and several misdemeanors, and other pending charges were dropped. 

            Because Pozzi cannot establish the first Strickland prong, we need not address whether the alleged errors prejudiced his plea.  But we agree with the postconviction court’s conclusion that “[g]iven [Pozzi’s] past record and the number and severity of the various charges wrapped into this proceeding, there is a strong possibility that some or all of [Pozzi’s] sentences could have been consecutive” had he proceeded to trial and been convicted.  

          Pozzi also argues that he could have negotiated a dismissal of the Dakota County felony-theft file, but his dissatisfaction with his Dakota County sentencing should be brought through a complaint in that county.  See Minn. Stat. § 590.02, subd. 3 (2004) (the petition “shall be addressed to the district court of the judicial district in the county where the conviction took place”).