This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Tom D. Stinson, petitioner,
Filed October 9, 2007
Hennepin County District Court
File No. 04054361
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that (1) he was denied effective assistance of counsel; (2) the district court erred by allowing withdrawal of his guilty plea when he personally objected to such withdrawal; (3) the district court erred by not inquiring into his concerns regarding his representation; and (4) the district court erred in instructing the jury regarding his stipulation to an element of the state’s case. We affirm.
August 17, 2004,
Because of a prior conviction of fourth-degree assault, Stinson was ineligible to possess a handgun. He was charged with being a prohibited person in possession of a firearm, in violation of Minn. Stat. §§ 624.713, subd. 1(b), 2(b), 609.11, subd. 5(b) (2004); and with committing a crime while wearing a bullet-resistant vest, in violation of Minn. Stat. § 609.486 (2004). He pleaded guilty to an amended count of attempted possession of a firearm by a prohibited person, agreeing to a 36-month sentence.
At the sentencing hearing, the district court learned from a probation officer’s report that it could not impose a 36-month sentence for Stinson’s plea. The plea agreement was not accepted, the case proceeded to trial, and a jury found Stinson guilty of both of the original charges against him. He was sentenced to 60 months in prison for being a prohibited person in possession of a firearm and a concurrent 13 months for wearing a bullet-resistant vest while committing a crime. Stinson filed a petition for postconviction relief, and the district court denied the petition. This appeal follows.
D E C I S I O N
decisions of a postconviction court will not be disturbed unless the court
abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (
I. Ineffective assistance of counsel.
Stinson was represented by a public defender in the district court and argues on appeal, represented by a different public defender, that the postconviction court erred by concluding that his trial counsel was not ineffective.
establish that he received ineffective assistance of counsel, a defendant must
affirmatively prove (1) that his counsel’s representation “fell below an
objective standard of reasonableness” and (2) “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.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052,
2064, 2068 (1984), quoted in Gates v.
State, 398 N.W.2d 558, 561 (
The postconviction court concluded that defense counsel “correctly advised Stinson to withdraw his plea when it was determined that the negotiated sentence of 36 months was not an option because Judge Karasov would not give that sentence. Thus, his performance did not fall below an objective standard of reasonableness.” The court further concluded that “there was no reasonable probability of a different outcome” because “[i]mposing a sentence less than the mandatory minimum of 60 months would have been a downward departure and there must be ‘substantial and compelling’ reasons [for] such a sentence. Stinson provides no such reasons that the court should have departed in this case.”
Stinson argues that his counsel’s performance fell below an objective standard of reasonableness, satisfying the first prong of the Strickland test because his counsel was not aware that, contrary to the probation officer’s report, the district court could lawfully impose a 36-month sentence and because his counsel did not “zealously advocate for that result.” Stinson asserts that there were at least two “options” under which defense counsel should have argued for a 36-month sentence. First, Stinson asserts, he could have pleaded guilty to being a prohibited person in possession of a firearm and defense counsel could have argued for a downward departure from the 60-month presumptive sentence. Second, as the parties initially agreed, Stinson could have pleaded guilty to an attempt to be a prohibited person in possession of a firearm, and the district court could have departed upwardly from the presumptive sentence for the attempt crime, which, according to Stinson, is 30 months (half of the 60-month presumptive sentence for the completed crime), resulting in a 36-month sentence.
parties disagree on whether the presumptive sentence for Stinson’s attempt plea
is 30 months or 60 months, which is the issue that prompted the withdrawal of
his plea. The guidelines provide that
“[f]or persons convicted of attempted offenses . . . with a mandatory minimum
of a year and a day or more, the presumptive duration is the mandatory minimum
or one-half the duration specified in the applicable Sentencing Guidelines Grid
cell, whichever is greater.”
The state asserts that because the mandatory minimum sentence for being a prohibited person in possession of a firearm is more than a year and a day, and because the mandatory minimum sentence for that offense is greater than one-half of the duration specified in the sentencing guidelines, the presumptive sentence for an attempt is the same as the mandatory minimum sentence for the completed crime, or 60 months.
asserts that he “is not subject to the true ‘mandatory minimum’ 60-month
sentence for prohibited-person because his predicate offense is not a
triggering offense under section 609.11, subd. 9. Therefore, this limitation does not
apply.” Section 609.11, subdivision 9,
provides a list of offenses for which a district court may not disregard the
mandatory sentencing provisions of section 609.11.
Even if defense counsel’s
performance had fallen below an objective standard of reasonableness, for
Stinson’s argument to succeed, he must establish that there is a “reasonable
probability” that he would have succeeded by means of his guilty plea in
securing a 36-month sentence. Under the
guidelines and the sentencing statute, a 36-month sentence for an attempt to be
a prohibited person in possession of a firearm is possible only if the district
court departs downwardly from the presumptive sentence, which it does only if
there are “substantial and compelling” reasons to do so—a plea agreement is not
a sufficient reason to depart. State v. Misquadace, 644 N.W.2d 65, 72 (
Even if Stinson is correct that his defense counsel had an obligation to argue for any necessary mitigating factors, he must articulate those factors on appeal to establish that there is a reasonable probability that the outcome would have been different if defense counsel had made such an argument. We agree with the state that the mitigating factor to which Stinson points is insufficient to establish that there is a reasonable probability that he would have received a 36-month sentence had his defense counsel argued for it.
Stinson has not established that the postconviction court erred when it rejected his argument that he was denied effective assistance of counsel.
II. Withdrawal of guilty plea.
reviewing court will reverse the district court’s determination of whether to
permit withdrawal of a guilty plea only if the district court abused its
discretion. Barragan v. State, 583 N.W.2d 571, 572 (
Stinson argues that the postconviction court erred by failing to conclude that the district court erred by allowing withdrawal of his guilty plea when he personally objected to his counsel’s decision to withdraw the plea. He asserts that even if the district court was preparing to reject the plea, he was not required to withdraw it, and the district court erred by not doing as he asked.
The postconviction court dismissed Stinson’s argument based on its conclusion that the district court “never accepted Stinson’s guilty plea.” Although Stinson entered his plea, the postconviction court noted, the district court deferred its decision regarding the plea until after a presentence investigation had been completed. The district court then rejected the plea at the sentencing hearing and, as required, gave Stinson an opportunity to withdraw the plea or reaffirm it. We agree with the postconviction court’s analysis of the record.
A district court may reject a plea agreement and must then advise the parties that it has done so and allow the defendant to either affirm or withdraw the plea. Minn. R. Crim. P. 15.04, subd. 3(1). Here, the parties were operating under a mistake of law in the plea agreement, and the district court did not accept the agreement. The court allowed Stinson to affirm or withdraw the plea when it rejected the agreement, Stinson’s defense counsel withdrew the plea, and although Stinson expressed some objection to the withdrawal, it appears from the transcript that his objection was to the fact that he was promised a 36-month sentence and wanted the district court to impose that sentence. When the district court explained that he would not get a 36-month sentence, Stinson did not continue to affirm his plea but moved on to discuss firing his attorney. Therefore, the postconviction court did not abuse its discretion when it concluded that the district court rejected the plea agreement and allowed Stinson an opportunity to withdraw his plea, which he did through his lawyer; he did not persist with his objection after the circumstances were explained to him.
Because we agree with the postconviction court that Stinson’s plea was never accepted by the district court and that the district court gave Stinson an adequate opportunity to respond to its rejection of the plea, we do not address the state’s additional arguments for the invalidity of the plea.
III. District court’s failure to appoint substitute counsel.
Stinson argues next that his right to counsel was violated because, after Stinson asked whether he could fire his attorney, the district court “failed to conduct a searching inquiry into appellant’s concerns and failed to exercise its discretion to . . . appoint a new public defender for appellant.” He argues that “exceptional circumstances” required such an inquiry because he “had a legitimate concern that his attorney was not acting in his best interests.”
The postconviction court noted that although the state must provide counsel for defendants who cannot afford to hire an attorney, defendants do not have a right to counsel of their choosing and must accept any “capable attorney” whom the state provides. The postconviction court concluded that Stinson’s defense counsel was a capable attorney and that the district court was justified in denying Stinson’s request for new counsel. The postconviction court further concluded that there were no “exceptional circumstances”—those affecting a defense counsel’s “ability or competence” to represent his client—requiring the district court to appoint a new attorney.
The “exceptional circumstances” to which Stinson points are his defense counsel’s acquiescence to the state’s assertion that the agreed-to sentence was improper under the sentencing guidelines and defense counsel’s failure to “put up a fight” on his behalf. As discussed above, the state, the district court, and the postconviction court correctly determined that the crime to which Stinson pleaded guilty carried a presumptive sentence of 60 months and that the plea agreement had misstated the presumptive sentence. Because the assertion to which defense counsel agreed was accurate, Stinson did not present “serious allegations of inadequate representation” that would have required a “searching inquiry.”
For the same reason, the district court was
not faced with “exceptional circumstances” affecting “a court-appointed
attorney’s ability or competence to represent the client” that would have
required the district court to appoint different counsel. State
v. Gillam, 629 N.W.2d 440, 449 (
The postconviction court did not abuse its discretion by concluding that the district court appropriately declined to appoint substitute counsel for Stinson.
IV. Stipulation that Stinson is prohibited from possessing a firearm.
Finally, Stinson argues that the postconviction court erred by failing to recognize that there were two errors regarding his stipulation to the fact that he is a person who is prohibited from possessing a firearm. The district court instructed the jury that the state and Stinson had stipulated that Stinson was prohibited from possessing a handgun at the time of the offense and that the jury was not to speculate as to why that was so. Then, in its final instructions to the jury regarding the elements of being a prohibited person in possession of a firearm, the district court instructed the jury that as to the element of being a prohibited person, “the court instructs you that you are bound by the Stipulation agreed to by the parties that Tom Stinson was barred under Minnesota law from possessing a firearm.”
Stinson asserts that it was improper for the district court to read the
stipulation to the jury because he never personally waived his right to a jury
trial on that element. The
postconviction court found that “Stinson did waive his right to a jury trial on
that element of the offense orally on the record.” We agree with the postconviction court and
find no merit to Stinson’s argument.
Stinson agreed to the stipulation on the record after it was explained
to him that the stipulation would prevent the jury from hearing the details of
his prior convictions. See State v. Dettman, 719 N.W.2d 644,
653 n.6 (
Second, Stinson asserts that the district court improperly instructed the jury regarding the stipulation, thereby “directing a verdict” for the state on the element of whether Stinson was a person prohibited from possessing a firearm. He argues that a stipulation is “a piece of evidence” that the “jury must be free to reject” if it sees fit and that the district court prevented the jury from considering the issue when it instructed the jury that it was bound by the stipulation.
Stinson did not object to the jury instruction at trial, we review it only for
plain error affecting substantial rights.
State v. Baird, 654 N.W.2d 105,
The postconviction court concluded that the district court’s language was permissible, noting that later in the same instruction, the district court reminded the jury that it had to find that all three elements had been proved beyond a reasonable doubt. Further, the postconviction court concluded that any error was surely harmless given the fact that Stinson stipulated to the fact that he was prohibited from possessing a gun.
The district court’s language in its jury instruction regarding the stipulation was not plain error—it did not direct a partial verdict, as Stinson contends. Rather, the instruction reflected the purpose of a stipulation, which is to remove the stipulated fact from the jury’s consideration. Further, Stinson has not established that any error was prejudicial. It is highly unlikely that the jury would have found that the state failed to prove that Stinson was prohibited from possessing a gun when Stinson stipulated to that fact.
The postconviction court did not abuse its discretion by concluding that there was no error in the district court’s handling of Stinson’s stipulation to the fact that he was ineligible to possess a handgun.