may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Chad Lee Resech, petitioner,
State of Minnesota,
File No. K896287
Chad Lee Resech, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan E. Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.
Chad Lee Resech was charged with first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (1996). Resech pleaded guilty pursuant to State v. Goulette, 258 N.W.2d 758, 760-62 (Minn. 1977), and was sentenced to 48 months' imprisonment. On appeal from an order dismissing Resech's postconviction petition without an evidentiary hearing, Resech argues the trial court abused its discretion by refusing to reduce his sentence. We affirm.
In reviewing a postconviction order, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). In postconviction proceedings, the petitioner bears the burden of establishing facts by a fair preponderance of the evidence. Russell v. State, 562 N.W.2d 670, 674 (Minn. 1997).
In his pro se brief, Resech argues the trial court abused its discretion by denying his request to reduce his 48-month sentence to 44 months because, based on changes in the 1997 Minnesota sentencing guidelines, a 44-month sentence is within the presumptive range for his offense. However, the record demonstrates: (1) Resech pleaded guilty to first-degree aggravated robbery, a severity level 7 offense; (2) at the time of sentencing, Resech had a criminal history score of one; (3) both the pre- and post-1997 sentencing guidelines provide a presumptive range of 54 to 62 months' imprisonment for an individual who has a criminal history score of one and is convicted of a severity level 7 offense; (4) Resech's current sentence of 48 months' imprisonment represents a downward durational departure of 6 months; and (5) Resech failed to allege any mitigating factors that would justify a second downward durational departure to 44 months' imprisonment. See Minn. Sent. Guidelines II.D. (providing court shall utilize presumptive sentence provided in guidelines unless individual case involves substantial and compelling circumstances); see, e.g., Headbird v. State, 375 N.W.2d 90, 92 (Minn. App. 1985) (affirming postconviction court's denial of petition to depart downward because no mitigating factors justified downward departure), review denied (Minn. Dec. 13, 1985).
Because Resech failed to allege any facts that, if proved, would entitle him to a downward durational departure, we conclude the trial court did not abuse its discretion by refusing to reduce Resech's sentence to 44 months' imprisonment and summarily dismissing Resech's petition for postconviction relief. See Russell, 562 N.W.2d at 674 (concluding postconviction evidentiary hearing is not required unless facts are alleged that, if proved, would entitle petitioner to requested relief); Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (concluding postconviction hearing was not required on claim of ineffective assistance of counsel when petitioner did not allege facts that would affirmatively prove his counsel's representation fell below objective standard of reasonableness and there was reasonable probability that but for counsel's errors, result of proceeding would have been different).