Minn. Stat. 480A.08, subd. 3 (1996).
Jeffrey Allen Lisburg, petitioner,
State of Minnesota,
Renville County District Court
File No. K895824
Jon E. Mack, Mack & Daby, P.O. Box 302, New London, MN 56273 (for appellant)
Hubert H. Humphrey III, Attorney General, Alison E. Colton, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Thomas J. Simmons, Renville County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Foley, Judge.*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Lisburg pleaded guilty to one count each of second-degree assault and gross-misdemeanor driving with an alcohol concentration of .10 or greater. He admitted shoving a 9mm Glock pistol in his supervisor's face. Under Minn. Stat. § 609.11, subd. 5 (1994), the mandatory minimum sentence for a second-degree assault conviction when defendant used or possessed a firearm is an executed term of 36 months imprisonment. The plea agreement states that Lisburg understood that if he pleaded guilty to second-degree assault, "the court waives the mandatory minimum." At the plea hearing, the court asked Lisburg:
Q. * * * [Y]ou understand that the, ah, agreement, if I accept the plea, would be that you would be sentenced without regard to the mandatory minimum. In other words which would normally require prison sentence, but instead the Court would impose a sentence no greater than a year in jail. Do you understand that?
A. Yes, Your Honor.
The district court sentenced Lisburg on the assault conviction to a stayed term of 36 months imprisonment, 180 days in jail, and seven years probation.
At the hearing on his petition for postconviction relief, Lisburg testified that he felt it was important to have an omnibus hearing in this case and that he did not learn until about an hour before trial was scheduled to begin that his attorney had waived the omnibus hearing. Lisburg also testified that he had told his attorney about three witnesses whom he wanted to testify on his behalf at trial and that the witnesses were not present on the scheduled trial date. Lisburg testified that all three witness would have testified that they were present at the scene of the alleged assault and did not see an assault occur. Finally, Lisburg testified that his attorney incorrectly explained the plea agreement to him. Lisburg testified that his attorney said that Lisburg would be placed on probation for one to two years, that the felony conviction would probably be removed from Lisburg's record after he completed probation, and that, although the maximum jail term would be six months, Lisburg would probably be required to serve only 30 to 90 days in jail in light of his prior record and cooperation during the court proceeding.
"[A] petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case." Our review of postconviction proceedings is limited to whether there is sufficient evidence in the record to sustain the findings of the postconviction court. Absent an abuse of discretion, a postconviction court's decision will not be disturbed.
State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995) (quoting State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993)) (citations omitted).
To be valid, a guilty "plea must be accurate, voluntary and intelligent (i.e., knowingly and understandingly made)." State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). Lisburg argues that his plea was invalid because, as a result of ineffective assistance of counsel, he was coerced into pleading guilty.
When seeking reversal of a conviction based on ineffective assistance of counsel, a
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."
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, 2068 (1984)). A defendant who pleaded guilty must show that "there is a reasonable probabilty that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." State v. Wiley, 420 N.W.2d 234, 237 (Minn. App. 1988), review denied (Minn. Apr. 26, 1988). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome'" Gates, 398 N.W.2d at 561 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
Lisburg argues that his plea was not knowingly and understandingly made because his attorney incorrectly explained the sentencing agreement to him. Lisburg claims that he understood the sentencing agreement to be that he would receive only 30 to 90 days in jail and two years of probation and that the felony conviction would be removed from his record if he successfully completed probation. Even if Lisburg's attorney incorrectly explained the sentencing agreement to Lisburg, at the plea hearing, before Lisburg entered his plea, the district court explained the sentencing agreement to Lisburg. The court stated that the sentencing agreement was that Lisburg would be sentenced without regard to the mandatory minimum prison sentence and that he would be required to serve up to one year in jail. The court did not state that Lisburg's probation term would be limited to a maximum of two years or that the felony conviction would be removed from Lisburg's record if he successfully completed probabion. If Lisburg understood that the sentencing agreement differed from the agreement explained by the court or contained terms other than those stated by the court, he could have chosen at that time not to plead guilty.
Lisburg also argues that his attorney's waiver of the omnibus hearing constituted ineffective assistance of counsel. A defendant may waive an omnibus hearing on evidentiary issues. Minn. R. Crim. P. 8.03. An omnibus hearing to resolve other issues may be held at a party's request or at the court's discretion. Minn. R. Crim. P. 11.03; 11.04 & cmt. Although Lisburg claims there were issues that could have been resolved at an omnibus hearing, he did not present evidence showing that he was prejudiced by the waiver of the omnibus hearing.
Finally, Lisburg contends that he received ineffective assistance of counsel because the three witnesses who would have testified in his favor were not present on the scheduled trial date. But a decision regarding the presentation of evidence at trial is a matter of trial strategy. See Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995) (trial counsel's failure to present evidence was a matter of trial strategy, not an error in professional performance). According to Lisburg, the witnesses would have testified only that they did not see Lisburg assault his supervisor, not that Lisburg did not assault his supervisor. Under these circumstances, we cannot conclude that Lisburg was prejudiced by the absence of the three witnesses on the scheduled trial date.
In sum, the evidence against Lisburg was very strong. Lisburg's testimony at the postconviction hearing indicated that his supervisor was present to testify on the scheduled trial date. Lisburg admitted shoving a 9mm Glock pistol in his supervisor's face. A short time after the assault occurred, a state trooper stopped Lisburg's truck and arrested him. In the truck, officers found a 9mm Glock handgun loaded with nine rounds of ammunition in the magazine, a 12-gauge shotgun, and a box of 12-gauge shotgun shells. Lisburg failed to present evidence showing that he was prejudiced by the claimed ineffective assistance of counsel. Absent such evidence, we cannot conclude that, but for any ineffective assistance of counsel, a reasonable probability exists that Lisburg would have chosen not to plead guilty. The district court did not abuse its discretion in denying Lisburg's petition for postconviction relief.