This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1363

Richard Allen Fuller, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent

Filed January 14, 1997

Affirming

Lansing, Judge

Crow Wing County District Court

File No. KX941022

John M. Stuart, State Public Defender, Sharon E. Jacks, Cathryn Young Middlebrook, Assistant State Public Defenders, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey III, Attorney General, Thomas Erik Bailey, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Donald F. Ryan, Crow Wing County Attorney, Courthouse, 326 Laurel Street, Brainerd, MN 56401 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Lansing, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This is an appeal from a district court order dismissing a petition for postconviction relief. We conclude that the court administrator's failure to refer the pro se petition to the state public defender did not result in reversible error and that the district court acted within its discretion by denying the petition. We affirm.

FACTS

Richard Fuller pleaded guilty to the charge of second-degree criminal sexual conduct, Minn. Stat. § 609.343, subd. 1(h) (1992), in September 1994. As part of the plea, the prosecution agreed that it would "[n]ot seek any sentencing guideline departures." The district court accepted Fuller's plea and imposed the presumptive sentence of 48 months, 16 of which were designated as time to be spent on supervised release. The district court also ordered Fuller to serve five additional years of conditional release time.

Fuller filed a pro se petition for postconviction relief on March 1, 1996, in which he requested that the district court "stay the remainder of the executed sentence, pursuant to the provisions of Minn. Stat. § 609.343, [s]ubd. 3." In support of his motion, Fuller submitted an evaluation of a social worker who concluded, prior to Fuller's sentencing in 1994, that Fuller should be "held legally accountable" and that he also was an appropriate subject for an outpatient sexual offender's treatment program. Fuller submitted a letter from a second social worker who also recommended that Fuller participate in therapy.

The county moved to dismiss Fuller's petition for failure to state a claim upon which postconviction relief could be granted, and the district court granted the motion. Fuller appeals.

D E C I S I O N

I

Fuller filed his postconviction petition pro se and contends that the court administrator erred by not referring it to the state public defender pursuant to Minn. Stat. § 590.02, subd. 1(4) (1994), of the postconviction remedy statutes. That provision requires that

[i]n the event the petitioner is without counsel, the court administrator shall forthwith transmit a copy of the petition to the state public defender and shall advise the petitioner of such referral.

Id.

The record lacks any documentation to verify that the court administrator complied with this referral requirement. In addition the state public defender's office asserts that it did not receive a copy of the petition while it was pending in the district court. We accept as a basis for our analysis that the court administrator did not refer Fuller's petition to the state public defender before its dismissal by the district court.

Because Fuller submitted his postconviction petition without counsel, the court administrator's failure to promptly transmit a copy of the petition to the state public defender violated Minn. Stat. § 590.02, subd. 1(4). Fuller did not take a direct appeal from his conviction, and the court administrator's failure to comply with the statute denied Fuller the opportunity for legal representation in the postconviction proceedings. See Minn. Stat. § 590.05 (1994) (providing that state public defender shall represent indigent petitioner who has not directly appealed conviction). Because this procedure may affect substantive rights, a reversal and remand would ordinarily be the appropriate remedy. See Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (reversing and remanding when district court failed to appoint counsel pursuant to Minn. Stat. § 590.05 (1990)); cf. 1991 Minn. Laws ch. 345, art. 3, § 1 (amending Minn. Stat. § 590.05 (1990), but retaining availability of public representation for indigent petitioners who have not taken direct appeals).

For three reasons we conclude, however, that a reversal and remand is not required in this case. First, Fuller has requested that his petitioned modification of sentence be considered on the merits rather than remanded. Second, Fuller is represented on appeal by the state public defender's office and has not raised any argument or ground for reversal that substantially differs from those presented to the district court. And third, for reasons discussed in the next section, the ground for the petition can adequately be addressed on the current record.

II

Fuller argues that the court abused its discretion by concluding that his petition failed to state a claim upon which postconviction relief could be granted. See Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) ("[A] postconviction court's decision will not be disturbed absent an abuse of discretion."). Although the statute does not specifically provide for this type of dismissal, it permits the district court to proceed without a hearing if the record "conclusively show[s] that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1994).

The relief requested in Fuller's postconviction petition was a stay of the remainder of his sentence "pursuant to the provisions of Minn. Stat. § 609.343, [s]ubd. 3." That subdivision provides that a court may stay imposition or execution of a sentence under certain circumstances "if a person is convicted under subdivision 1, clause (g)." Minn. Stat. § 609.343, subd. 3 (1992). Fuller was not convicted under subdivision 1, clause (g), but rather under subdivision 1, clause (h). Consequently, the stay of sentence option provided under Minn. Stat. § 609.343, subd. 3, does not apply to him.

Fuller asserts on appeal that, apart from the statute, there were adequate grounds for the district court to have allowed a dispositional departure at the time of his sentencing. In support of this assertion, he cites several cases in which appellate courts have affirmed dispositional sentencing departures imposed by the district court on the ground that the evidence showed that the defendant was amenable to treatment or probation. See, e.g., State v. Clemmer, 328 N.W.2d 739, 740 (Minn. 1983); State v. Trog, 323 N.W.2d 28 (Minn. 1982). But we have also affirmed the denial of a dispositional sentencing departure sought by a defendant who claimed a departure was warranted by his alleged amenability to treatment in a program for sexual offenders. State v. Olson, 359 N.W.2d 53, 54 (Minn. App. 1984).

The decisions cited by Fuller do not stand for the proposition that the district court is required to allow dispositional sentencing departures whenever a defendant claims to be amenable to treatment. Rather, they reflect the principle that the district court has broad discretion in sentencing and, absent an abuse of that discretion, the reviewing court will not disturb a sentence that is within the presumptive range. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) ("[I]t would be a rare case which would warrant reversal of the refusal to depart."); cf. Minn. Sent. Guidelines II.D. (requiring sentencing court to "utilize the presumptive sentence * * * unless the individual case involves substantial and compelling circumstances").

Fuller contends that his case presents sufficiently compelling circumstances for a dispositional sentencing departure, primarily because an evaluation by social worker Philip Tange noted that Fuller had "expressed regret" for his past behavior and that he appeared "appropriate for an outpatient sexual offender's treatment program." See Trog, 323 N.W.2d at 31 (noting that factors relevant to defendant's amenability in such cases include his "age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family"). But Tange also recommended that Fuller should "be held legally accountable for his actions." The district court ultimately imposed the presumptive sentence under the guidelines as recommended by the probation agent who prepared Fuller's presentence investigation report. Imposing the presumptive sentence was also consistent with the court's understanding that, as part of Fuller's plea agreement, the parties would not seek a sentencing departure.

The sentencing court did not abuse its discretion by imposing the presumptive guidelines sentence, and no adequate basis has been presented for postconviction relief. See Minn. Stat. § 590.01 (permitting claims for violation of rights under Constitution or laws of United States and Minnesota). Failing to refer Fuller's postconviction petition to the state public defender under these circumstances did not result in reversible error, and the district court acted within its discretion by denying the petition without a hearing.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.