may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Richard Emery Terry, petitioner,
State of Minnesota,
Filed October 20, 1998
Hennepin County District Court
File No. 95407
Richard Emery Terry, P.O. Box 55, Stillwater, MN 55082 (pro se appellant)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
Appellant Richard E. Terry challenges his sentence after pleading guilty to charges of burglary, robbery, and receiving stolen goods. He contends the district court erred in rejecting his argument that because of a mutual mistake of fact in sentencing, either his sentence should be reduced or he should be allowed to withdraw his guilty plea. We affirm.
This court will not overturn the postconviction decisions of a district court absent an abuse of discretion, and the scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court's findings. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).
Initially, we note that a defendant may not raise issues that have already been decided on appeal or that are known but not raised at the time of the first appeal. State v. Andren, 350 N.W.2d 404, 405 (Minn. App. 1984). Appellant filed a petition for postconviction relief in December of 1996. He appealed a motion denying that relief in August of 1997. Appellant failed to pursue the appeal by not submitting the appropriate papers, and this court dismissed the claim. Appellant requested postconviction relief a second time, and the district court denied it because the case on which appellant relied had been reversed prior to his motion.
In this appeal, appellant raises the same issues contained in his first motion for postconviction relief and appeal. Appellant alleges no additional facts or arguments distinct from the first appeal and its supporting memorandum. Because appellant is not entitled to raise and pursue issues that should have been raised and pursued in his first appeal, we deny appellant's requested relief.
In addition to being procedurally barred, appellant's claims fail on the merits. A guilty plea may be withdrawn if a mutual mistake by the prosecution and defense results in manifest injustice. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). A guilty plea may also be withdrawn if an unqualified promise that is part of a plea arrangement is not honored. Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979). A guilty plea may not be set aside, however, merely because the accused has not achieved an unwarranted hope of a lighter sentence. State v. Ford, 397 N.W.2d 875, 883 (Minn. 1986).
Appellant asserts there was a mutual mistake in his sentencing that justifies setting aside his guilty plea. He states that he believed that he would be given presumptive sentences for each offense charged, and that the sentences would all be served concurrently. Appellant's actual sentence included an upward departure on one of the charges, with two of the sentences to be served consecutively, for a total of 134 months in jail.
In his petition to enter a guilty plea, appellant agreed that the prosecutor would ask for a 144-month sentence. At his felony plea hearing, appellant was asked three different times whether he understood that the judge had the discretion to sentence him up to 144 months, and each time he said he did. Nothing in the record indicates that the prosecution or appellant thought that only presumptive sentences would be applied. Nor is there anything in the record indicating appellant was promised that he would receive presumptive sentences. Thus appellant's sentence was within the restrictions of the plea bargain and his claims of mutual mistake are unsupported. We conclude the district court properly denied appellant postconviction relief.