This opinion will be unpublished and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
Robert A. Shattuck, a/k/a Anthony Love, petitioner,
State of Minnesota,
Filed October 2, 2007
Hennepin County District Court
File No. 92078122
Robert A. Shattuck, OID No. 141481, MCF – Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082-1117 (pro se appellant)
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from an order summarily denying appellant’s request for postconviction relief. We affirm
In 1993, appellant Robert A. Shattuck, a/k/a Anthony Love, pleaded guilty to one count of third-degree criminal sexual conduct, and under the terms of the court-approved plea agreement, he received a 100-month executed prison sentence, which he began serving in February 1993. Because Shattuck received 127 days of jail credit, the expiration date of the 100-month sentence was February 5, 2001. Late in 1998, a records clerk at the Minnesota Department of Corrections informed the district court that Shattuck’s sentence did not include a conditional-release term, and on April 1, 1999, the district court issued an amended sentence order, which added to Shattuck’s sentence a five-year conditional-release term that was to begin when Shattuck was released from prison on July 31, 1999.
After receiving notice of the sentence amendment, on July 7, 1999, Shattuck moved to withdraw his guilty plea because the amended sentence violated his plea agreement. But on July 30, 1999, Shattuck moved to withdraw his motion to withdraw his guilty plea, and he did not withdraw his guilty plea. On March 19, 2001, Shattuck again moved to withdraw his guilty plea, and on September 26, 2001, when Shattuck had returned to Minnesota after being held in custody in another state, a hearing was scheduled for the motion to withdraw. Following a hearing on October 22, 2001, the district court found that the state would be prejudiced in trying the case if Shattuck were allowed to withdraw his guilty plea and denied Shattuck’s motion to withdraw his plea. However, the district court modified Shattuck’s sentence so that the conditional-release term that was added to his sentence was included within the 100-month sentence that Shattuck had agreed to in the plea agreement.
appealed the district court’s October 22, 2001 order modifying his sentence. This court determined that “[b]ecause the
modified sentence did not exceed the upper limit of [Shattuck’s] court-approved
plea agreement, the district court acted within its discretion in denying the
motion for plea withdrawal” and affirmed.
State v. Love, No. C3-01-2064
(Minn. App. July 2, 2002), review granted
D E C I S I O N
“The decisions of a
postconviction court will not be disturbed unless the court abused its
discretion.” Dukes v. State, 621 N.W.2d 246, 251 (
When adding a mandatory conditional-release term to a sentence has the effect of increasing the sentence beyond the upper limit of a court-accepted plea agreement, the sentencing court must either allow the defendant to withdraw his plea or modify his sentence so that the maximum period of incarceration does not exceed the upper limit of the plea agreement. State v. Jumping Eagle, 620 N.W.2d 42, 44-45 (Minn. 2000). In situations where an original sentence did not include a conditional-release term and imposing a mandatory conditional-release term would violate a plea agreement, the district court may, at its discretion, impose a conditional-release term commencing after the defendant is released from prison for a term less than the period mandated by statute. State v. Wukawitz, 662 N.W.2d 517, 528-29 (Minn. 2003). The mandatory conditional-release term may be reduced only when a plea withdrawal would unduly prejudice the state. Id. at 529.
Shattuck argues that he must be allowed to withdraw his guilty plea because when the district court modified his sentence on October 22, 2001, to include the conditional-release term within the 100-month sentence agreed to in the plea agreement, he had already served more than 100 months, and, therefore, his plea agreement was violated. Shattuck contends that the only way to correct the violation of his plea agreement is to permit him to withdraw his plea.
But in making this argument, Shattuck ignores the fact that when the conditional-release term was added to his sentence on April 1, 1999, which was almost two years before the expiration of his 100-month sentence, he did not pursue a motion to either withdraw his plea or reduce the conditional-release term so that it expired when his 100-month sentence expired. Instead, Shattuck waited until after his sentence expired before bringing his motion to withdraw his plea, and at that time, the district court could not reduce the conditional-release term so that it was included within the 100-month sentence.
Had Shattuck pursued his motion to withdraw his plea in 1999 when he learned about the conditional-release term, the district court would have been able to exercise its discretion to either reduce the conditional-release term or allow Shattuck to withdraw his plea. By waiting to bring his motion, Shattuck deprived the district court of the ability to grant effective relief by reducing the conditional-release term. Requiring the district court to permit Shattuck to withdraw his plea because the district court could not otherwise grant effective relief would allow Shattuck to eliminate the district court’s discretion by simply waiting to bring his motion. Under these circumstances, the district court did not abuse its discretion by summarily denying Shattuck’s motion to withdraw his guilty plea.
Shattuck argues that because 104 months was the maximum presumptive sentence that the district court could impose, the district court’s modification of his sentence, which he contends resulted in an actual sentence of 111 months, was an upward durational departure that violated his right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because the departure was not based on any fact found by a jury. But even if we assume that Shattuck’s modified sentence was 111 months, the district court modified the sentence before the United States Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the Minnesota Supreme court has explained:
Apprendi held that any fact, other than the fact of a prior conviction, that increases the penalty for an offense beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Prior to Blakely, “statutory maximum” was generally thought to mean the heaviest penalty a court could impose on a defendant—the ceiling of the relevant statutory sentencing range. Blakely altered this understanding, holding that the maximum punishment for Apprendi purposes is the maximum sentence the judge may impose based solely upon those facts either reflected in the jury verdict or admitted by the defendant, which meant the presumptive sentence under the Washington state sentencing guidelines.
State v. Houston, 702 N.W.2d 268, 271 (Minn. 2005) (citations omitted).
Because a 15-year prison term was the heaviest penalty that a court could have imposed under Minn. Stat. § 609.344, subd. 2 (1992), for Shattuck’s third-degree criminal-sexual-conduct conviction, a 111-month sentence was not above the ceiling of the relevant statutory sentencing range, and did not violate Apprendi as it was understood before Blakely. Shattuck does not argue that Blakely applies retroactively to the sentence modification.
Shattuck argues that he must receive a new trial because he received ineffective assistance of counsel when his trial and appellate counsel failed to inform the trial and appellate courts that after his 100-month sentence had expired, it was improper and illegal to modify the sentence so that the conditional-release term was included within the sentence
The Sixth Amendment guarantees a defendant the right to reasonably effective assistance of counsel. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052 (1984)).
We analyze ineffective assistance of counsel claims under a two-prong test set forth in Strickland. To prevail on such a claim, an appellant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”
Id. (quoting State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998)). “A reasonable probability means a probability sufficient to undermine confidence in the outcome.” Id. (quotation omitted). “Thus, . . . under the prejudice prong, a defendant must show that counsel’s errors actually had an adverse effect in that but for the errors the result of the proceeding probably would have been different.” Id. (quotation omitted).
“The reviewing court considers the totality of the evidence before the judge or jury in making this determination. We need not address both the performance and prejudice prongs if one is determinative.” Id. (citation omitted). “As ineffective assistance of counsel claims involve mixed questions of law and fact, our standard of review is de novo.” Id. “[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” Strickland, 466 U.S. at 698, 104 S. Ct. at 2070.
Shattuck’s ineffective-assistance-of-counsel claim is that his counsel’s failure to discover and inform the court that his 100-month sentence had expired before the hearing on his motion to withdraw his plea occurred on October 22, 2001, was performance that fell below an objective standard of reasonableness, and there is a reasonable probability that, but for this failure, his motion to withdraw his guilty plea would have been granted. The transcript of the October 22, 2001 hearing demonstrates that Shattuck’s counsel was not aware that Shattuck’s sentence had expired before the hearing. But even if we assume that counsel’s failure to inform the court that the sentence had expired fell below an objective standard of reasonableness, we are not persuaded that, but for this failure, it is reasonably probable that the district court would have allowed Shattuck to withdraw his guilty plea.
As we have already explained, Shattuck waited until after his sentence expired before bringing his motion to withdraw his plea, and at that time, the district court could not reduce the conditional-release term so that it was included within the 100-month sentence. The district court was not informed that the sentence had already expired, and nothing in the record indicates that the district court considered whether it was required to allow Shattuck to withdraw his plea because the plea agreement had already been violated when the conditional-release term extended beyond the expiration of the original 100-month sentence.
But even if the district court had been informed at the hearing that the sentence had already expired, it would have been apparent to the district court that it could not grant effective relief by reducing the conditional-release term because Shattuck had already served more than 100 months. It would also have been apparent to the district court that the reason why it could not grant effective relief by reducing the conditional-release term was that Shattuck did not bring his motion until after it was impossible to grant that relief. We are not persuaded that it is reasonably probable that under those circumstances, the district court would have concluded that its inability to grant effective relief by reducing the conditional-release term meant that it must grant the motion to withdraw. Nor are we persuaded that an appellate court would have concluded that the district court erred by not granting the motion to withdraw. Therefore, Shattuck has not satisfied the prejudice prong of his ineffective-assistance-of-counsel claim.
The district court did not abuse its discretion when it summarily denied Shattuck’s requests for postconviction relief.