This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Diane Marie Sepulvado, petitioner,


State of Minnesota,

Filed August 3, 1999
Schultz, Judge[*]

Stearns County District Court
File No. K8961660

Timothy H. Dodd, Danae L. Weidemann, Davis, Dodd, Levine & Miller, Ltd., 1219 Marquette Avenue South, Suite 200, Minneapolis, MN 55403 (for appellant)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger S. Van Heel, Stearns County Attorney, Mary A. Yunker, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Schultz,


U N P U B L I S H E D   O P I N I O N


Appellant Diane Marie Sepulvado challenges the trial court's denial of her petition for postconviction relief arguing she should be allowed to either withdraw her guilty plea or have her sentence reduced to 108 months because 1) at the time she entered her guilty plea the prosecutor misstated that 108 months was the double upward departure; and 2) she received ineffective assistance of counsel. We affirm.


Appellant Diane Sepulvado was charged with six counts of theft after an investigation revealed that appellant had fraudulently taken $420,424.48 from the Minnesota Department of Human Services Emergency Financial Aid Accounts. At the time appellant was a Stearns County Financial Worker and the emergency financial aid accounts were being managed by Stearns County Social Services. Through her employment at Stearns County Social Services appellant created fictitious computer files, authorized emergency payments for fictitious assistance applicants, and mailed the checks to her post office box for her own use.

Appellant pleaded guilty to the theft charges. The plea petition submitted to the court at the time appellant entered her guilty plea was signed and acknowledged by her, stating:

I have been told by my attorney and I understand: * * * [t]hat the maximum penalty that the court could impose for this crime (taking into consideration any prior conviction or convictions) is imprisonment for [blank] years.

The number "20" was handwritten in the blank. In addition, the plea petition contained the following printed language:

I have been told by my attorney and understand: That my attorney discussed this case with one of the prosecuting attorneys and that my attorney and the prosecuting attorney agreed that if I entered a plea of guilty, the prosecutor will do the following: [blank].

The word "None" was handwritten in the blank. The transcript of appellant's testimony taken at the time she entered her guilty plea states in pertinent part:

Q: You also understand that at paragraph 20, for your plea you are not being promised anything by the State?

A: Yes, I understand.

* * *

Q: I am going to go over the rights that are contained in that Petition. * * *

A: Yes, I understand.

Q: You appear before the Court represented by your attorney, Mr. Michalski. Have you had adequate time to talk to him about this case?

A: Yes, I have.

Q: Do you believe he is fully informed as to the facts of this case?

A: Yes.

Q: And do you believe he is fully and fairly representing your interests before this Court?

A: Yes.

* * *

Q: Do you understand that because you are pleading guilty here this morning you are giving up all of these rights?

A: Yes, I do.

* * *

Q: Do you understand that this decision is likely irrevocable and after today there would not be an opportunity for you to have a trial--

A: Yes.

Q: --absent something highly unusual?

A: Yes.

Q: Do you understand there is no plea agreement in this case?

A: Yes.

Q: Do you understand that it is the State's express intent to ask the Court to double the presumptive guideline sentence and to send you to prison for 108 months in this case?

A: Yes, I do.

Q: Do you understand the presumptive sentence as the case is charged is 54 months in prison?

A: Yes.

Q: You understand it is the anticipation of both parties there will be a sentencing hearing and ultimately the Judge will decide what the appropriate sentence is in this case?

A: Yes.

Q: You understand that that decision is solely hers and that once she makes that decision likely you will not be able to challenge that sentence?

A: Yes.

Q: Any questions about that?

A: No.

Q: Has anyone made you any promises or threats to get you to enter this plea of guilty here today?

A: No.

Q: Are you pleading guilty freely and voluntarily?

A: Yes, I am.

Q: Are you pleading guilty because you believe you are guilty of these offenses?

A: Yes.

* * *

Q: You understand what is going on here today?

A: Yes.

The pre-sentence investigation report filed after appellant entered her guilty plea calculated a presumptive sentence of 65 months and recommended a 130-month sentence.

The State moved for an upward double durational departure requesting a 130-month sentence. Appellant moved for a downward durational departure seeking an 18-month prison term.

At the sentencing hearing appellant informed the court that she had read the State's motion. At the conclusion of the hearing appellant was sentenced to 130 months in prison.

Approximately eighteen months later appellant filed a petition for postconviction relief requesting that the court vacate its 130-month sentence and impose a 108-month sentence or vacate the judgment of conviction and set the matter for trial. Appellant argued that at the time she entered her plea she understood the prosecution sought a double upward durational departure from the original guidelines sentence of 54 months, or 108 months. In reality, however, the original guideline sentence was 65 months for a double upward departure of 130 months. Appellant argued that, because she relied on the prosecutor's representation of 108 months when she entered her plea, 108 months is what she should have to serve. In addition, appellant argued that at the time of sentencing her attorney failed to effectively assist her because he failed to object or notify the court at the sentencing hearing of the misstatement by the prosecutor that the sentence was 108 months.

The district court issued an order denying appellant's petition, stating, among other things, that the record demonstrated appellant was fully advised of the possible consequences of her guilty plea and that appellant's professed reliance on the prosecutor's original misstatement of the presumptive Guidelines sentence, in the absence of a plea agreement, could be no more than an unwarranted hope for a sentence concession, and, if unfulfilled, insufficient to constitute manifest injustice permitting plea withdrawal. This appeal followed.


This court reviews a postconviction proceeding only to determine 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. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

On appeal appellant argues that she should be allowed to withdraw her guilty plea or alternatively have her sentence reduced to 108 months because 1) at the time the plea was entered the prosecutor stated the presumptive sentence for the crime was 54 months when in reality it was 65 months; and 2) her counsel failed to effectively assist her by alerting her and the court to the discrepancy.[1]

Withdrawal of Guilty Plea

A district court has discretion in deciding whether to grant a motion to withdraw a guilty plea, and we will not reverse absent the abuse of that discretion. See State v. Aviles-Alvarez, 561 N.W.2d 523, 525 (Minn. App. 1997), review denied (Minn. June 11, 1997). Our review is limited to a determination of whether sufficient evidence exists to sustain the district court's findings. Id.

1. Mistake

Appellant claims that she should be allowed to withdraw her guilty plea because she was mistakenly informed by the prosecutor that the presumptive sentence for her crimes was 54 months when in reality the presumptive sentence was 65 months.

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 states that she believed she would be given double a presumptive sentence of 54-months (108 months). Appellant's actual presumptive sentence was 65-months for a total sentence of 130-months.

In State v. Trott, 338 N.W.2d 248 (Minn. 1983), the defendant contended that he should be allowed to withdraw his plea because all the parties, himself included, mistakenly believed that the presumptive sentence was 21 months stayed, not 21 months executed. The supreme court upheld the trial court's refusal to let the defendant withdraw his plea, reasoning that the defendant, who knew by the time of sentencing what the correct presumptive sentence was, did not move to withdraw his plea before the trial court sentenced the defendant. Id. at 252. Furthermore, the court noted that it was clear that if the plea was withdrawn, "most assuredly" the defendant would be convicted of the same offense at trial. Id. at 253.

It is undisputed that appellant's petition to enter a guilty plea contained no agreements or promises and stated a possible 20-year maximum penalty. Furthermore, appellant, on the record, stated she understood that 1) there was no plea agreement; 2) she was not being promised anything in return for her guilty plea; 3) the maximum penalty for her crimes was a sentence of 20 years; and 4) the ultimate sentencing decision was solely up to the trial court judge. In addition, nothing in the record indicates that appellant's decision to plead guilty was the result of any promises or that her decision to plead guilty would have changed had she known at the time she entered her plea that the correct presumptive sentence was 65 months. Moreover, appellant was aware of the correct presumptive sentence before the sentencing hearing and made no request to withdraw her plea at that time. Based on those facts no manifest injustice exists to warrant appellant's plea withdrawal.

2. Ineffective Assistance of Counsel

Appellant further argues that her attorney's failure to object to the change in the presumptive sentence resulted in ineffective representation by her attorney and she should therefore be allowed to withdraw her guilty plea.

To succeed on the issue of ineffective assistance of counsel, a defendant must affirmatively demonstrate 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, 2064, 2068 (1984)). Furthermore, "[t]here is a strong presumption that a counsel's performance falls within the wide range of `reasonable professional assistance.'" State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). A reviewing court applies an abuse of discretion standard to a district court's findings on a postconviction claim of ineffective assistance of counsel. State v. Rainer, 502 N.W.2d 784, 787-88 (Minn. 1993).

Appellant's ineffective assistance argument is without merit. When the trial court asked appellant if she had read the State's motion for departure she stated that she had. If she read the motion as she said then she was aware of the change. Furthermore, appellant fails to cite any legal authority supporting her contention that her attorney's failure to object fell below an objective standard of reasonableness. See State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).

As for appellant's claim that she was entitled to an evidentiary hearing, a postconviction court must hold an evidentiary hearing where there are disputed material facts that must be resolved in order to get to the merits of the postconviction claim. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). The petitioner also bears the burden of establishing those disputed facts. King v. State, 562 N.W.2d 791, 794 (Minn. 1997). If there is sufficient evidence to sustain the post-conviction court's findings, we will not overturn those findings absent an abuse of discretion. Id. Here, appellant fails to present any disputed material facts and therefore is not entitled to an evidentiary hearing.


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

[1] Appellant fails to cite any legal authority supporting her claim that her sentence should be reduced to 108 months. Courts decline to address allegations unsupported by legal analysis or citation. Ganguli v. University of Minnesota, 512 N.W.2d 918, 919-20 n.1 (Minn. App. 1994).