IN COURT OF APPEALS
State of Minnesota,
Jordan S. Kushner, Sexton Building, Suite 636, 529 South 7th Street, Minneapolis, MN 55415 (for appellant)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Diane Odeen, Certified Student Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.
Appellant challenges the postconviction court's order denying his petition for resentencing or, alternatively, a withdrawal of his four guilty pleas. We affirm.
On January 7 and 9, 1987, appellant George Stillday entered stores, held two or more people at gunpoint, and demanded and received the stores' money. On January 27, 1987, appellant entered a private home, held the two residents at gunpoint, and took money from them. A jury convicted appellant of two counts of aggravated robbery for the January 7 incident. The district court sentenced him to consecutive terms of 107 months on the first count and 36 months on the second.
On December 4, 1987, appellant pleaded guilty to four counts of aggravated robbery, two for each of the incidents on January 9 and 27. The court sentenced appellant to four consecutive terms of 60 months each, the mandatory minimum sentence for a second or subsequent felony offense involving a firearm under Minn. Stat. § 609.11, subd. 5 (1986). In 1989, appellant moved for resentencing on the ground that he could not be sentenced for a second or subsequent offense when he had not been convicted of a similar violation before commission of the current offense. The court granted appellant's petition and reduced his four consecutive terms of 60 months each to 36 months each.
Appellant filed a petition for postconviction relief in September 1996, contending that the district court erred in ordering consecutive sentences. He requested that the postconviction court reduce his sentences arising from the first incident by a total of 39 months or more. He also requested that the court reduce by 36 months his sentences arising from each of the later two incidents or, alternatively, allow him to withdraw his guilty pleas. After a hearing, the postconviction court denied appellant's petition. This appeal followed.
D E C I S I O N
The scope of appellate review for a postconviction proceeding is
limited to determining whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.
Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).
Appellant contends that the postconviction court abused its discretion in denying his request for resentencing because the sentencing court erred in imposing multiple consecutive sentences. Minnesota law bars multiple sentencing where there are multiple offenses committed as part of the same behavioral incident. Minn. Stat. § 609.035, subd. 1 (1996); State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983) (stating that to impose multiple sentences under section 609.035, state must prove facts establishing divisibility of defendant's course of conduct). But consecutive sentences are permissible where an offender is convicted of multiple current felony convictions for crimes against different persons. Minn. Sent. Guidelines II.F. (1996); see State v. Wallace, 327 N.W.2d 85, 87 (Minn. 1982) (allowing multiple sentencing even where two offenses might "otherwise be deemed to have been committed during a single course of conduct" because there were two victims). Multiple sentences must not "unfairly exaggerate the criminality of the defendant's conduct." Wallace, 327 N.W.2d at 87.
The supreme court has upheld consecutive sentences for aggravated robbery convictions where there have been multiple victims. See e.g., State v. Kennedy, 342 N.W.2d 631, 631 (Minn. 1984) (upholding four consecutive sentences of which three were for aggravated robbery of three victims during the same behavioral incident); State v. Burgess, 319 N.W.2d 418, 420-21 (Minn. 1982) (upholding two consecutive sentences where defendant was convicted of aggravated robbery against two victims because he drove getaway car and furnished guns to two men who committed robbery). Here there were two or more victims in each of the robberies appellant committed. The court sentenced him to the statutory minimums for five of the six convictions. We conclude that consecutive sentencing was appropriate under the multiple victim rule and did not unfairly exaggerate the criminality of appellant's conduct. The postconviction court did not abuse its discretion in denying appellant's petition for resentencing.
2. Withdrawal of Guilty Pleas
Appellant argues that the postconviction court abused its discretion in denying his petition to withdraw his guilty pleas on the ground that the pleas were based on his misapprehension that he was subject to the dangerous repeat offender act. A court should grant an application to withdraw a guilty plea whenever necessary to correct a manifest injustice, but this determination is within the sound discretion of the postconviction court. Coolen v. State, 288 Minn. 44, 48, 179 N.W.2d 81, 84 (1970). A petitioner's delay in seeking relief is a relevant consideration in determining whether the court should grant the relief. Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (holding that four-year delay in petitioning for postconviction relief weighed against appellant). Appellant requested withdrawal of his guilty pleas nine years after they were entered. Furthermore, he filed a petition for resentencing in 1989 and has provided no reason for failing to petition then for withdrawal of his pleas. The prosecution would suffer substantial prejudice if it were required to try this case eleven years after entry of appellant's guilty pleas and nine years after the district court corrected the sentencing error. See State v. Lopez, 379 N.W.2d 633, 637 (Minn. App. 1986) (stating that court must consider what prejudice granting of motion to withdraw guilty plea would cause prosecution "as a result of defendant's untimely request to stand trial" (quoting United States v. Russell, 686 F.2d 35, 39 (D.C. Cir. 1982))), review denied (Minn. Feb. 14, 1986). We therefore conclude that because appellant's request to withdraw his guilty pleas was not timely and would cause substantial prejudice to the state, the postconviction court did not abuse its discretion in denying appellant's request.
 In his postconviction petition, appellant argued that the sentencing court erred in sentencing him to 107 months on the first count because the sentencing guidelines provided for a range of 90 to 104 months for an individual with appellant's criminal history score. Appellant does not raise this issue on appeal, and we do not address it.