This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-2278

State of Minnesota,

Respondent,

vs.

Bruce Robert Nelson,

Appellant.

 

Filed September 21, 1999

Affirmed

Toussaint, Chief Judge

 

Freeborn County District Court

File No. K895460

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Craig S. Nelson, Freeborn County Attorney, 411 South Broadway, Albert Lea, MN 56007 (for respondent)

Deborah K. Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)

Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Parker, Judge.[*]

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Bruce Robert Nelson appeals the denial of his petition for postconviction relief, claiming he did not knowingly and intelligently waive his right to a jury trial because he was denied effective assistance of counsel. Nelson also challenges the sentencing courtís durational departure. Because Nelson failed to establish that his counselís ineffective assistance prejudiced him, and because the sentencing court did not abuse its discretion in departing durationally, we affirm.

FACTS

In May 1995, Nelson was charged with committing controlled substance crimes in the third and fifth degrees and conspiring to commit controlled substance crimes in the first and fifth degrees. When he appeared for trial in March 1996, Nelson had a written plea offer under which the state would dismiss all charges in exchange for Nelsonís plea to third-degree controlled substance crime. Nelson would have the choice of either agreeing to a joint recommendation for a presumptive sentence or leaving sentencing open to argument by both sides.

After the trial judge ruled Nelsonís co-conspiratorsí statements admissible, the state withdrew its plea offer. During the lunch break, however, the prosecutor told defense counsel he would be willing to dismiss the first-degree charge and submit the third-degree charge on stipulated facts, provided the state was free to seek an upward departure from the presumptive sentence. Nelson rejected the stateís offer.

As jury selection was about to begin, defense counsel moved for a continuance, claiming he was not prepared for trial. Defense counsel told the court his investigator did not have all the paperwork and had not reported to him. Noting the trial had been rescheduled twice before and the matter had been pending for nine months, the court denied a continuance.

Shortly after jury selection began, defense counsel told the court that his client was prepared to submit the case to the court on stipulated facts and waive his right to a jury trial. In the course of this exchange, the prosecutor noted that the waiver agreement included no concessions on sentencing:

Defense counsel: Well, Judge, * * * [my client] just told me that he wants to do that paper trial.

Prosecutor: In view of the offer on the table, at this point we would do a [paper trial] on third degree with no agreement on sentence.

Defense counsel: Thatís right.

(Emphasis added.) The court then recessed and invited Nelson and counsel to continue the proceeding in chambers.

Once in chambers, the court and counsel reviewed the terms of the waiver in Nelsonís presence. In response to defense counselís mischaracterization of the waiver agreement as providing for "a guidelines sentence only," the prosecutor stated clearly on the record that "there was no deal on sentencing":

Defense counsel: Judge, my client and I have discussed * * * the possibility of a court trial on a stipulated set of facts on the third-degree charge only * * *. He has just advised me that he wants to proceed that way. I told him that it would be a guideline sentence only. There are no deals on sentencing under the guidelines. He can bring a motion -

Prosecutor: That is incorrect. The deal is there is no deal on sentencing.

Defense counsel: Thatís what I said.

The Court: You are talking about the possible aggravation?

Prosecutor: We will be free to seek an aggravation * * *.

Defense counsel: Yeah, and we are free to seek * * * a departure.

Prosecutor: Okay.

(Emphasis added.) The court later explained to Nelson on the record that sentence was "up for grabs." After some additional discussion regarding the evidence, Nelson waived his right to trial by jury.

In April 1996, the trial court adjudicated Nelson guilty of controlled substance crime in the third-degree. The state subsequently moved for an upward sentencing departure. In response, Nelson filed a new trial motion, claiming the state had agreed to a guidelines sentence and had violated the waiver agreement by seeking an upward departure. After reviewing the transcript of the waiver hearing, the court denied Nelsonís new trial motion reasoning that despite Nelsonís claim that he misunderstood the waiver agreement, the record clearly reflected that Nelson was advised by the court, the prosecutor, and his own counsel that the waiver agreement included no concessions on sentencing. The court sentenced Nelson to 140 months in prison, a double departure from the guidelines sentence of 60 to 70 months for a severity level VI offense committed in 1995 by one with a criminal history score of 7.

More than two years after sentencing, Nelson petitioned for postconviction relief, claiming he had not knowingly and intelligently waived his right to a jury trial because he had been denied the effective assistance of counsel. Specifically, Nelson claimed his waiver was ineffective because it had been prompted by defense counselís misrepresentation that if he waived his right to a jury he would receive a guidelines sentence of between 40 and 70 months, depending on his criminal history score.

At the postconviction hearing, defense counsel testified that he had indeed advised Nelson that he was waiving his right to a jury trial in exchange for a guidelines sentence of between 40 and 70 months. Three experienced defense attorneys testified that this advice was objectively unreasonable given the discussions that preceded the waiver. In addition, Nelson testified that he would not have waived his right to a jury trial had he known his sentencing exposure was as high as 30 years in prison.

The postconviction court denied Nelsonís petition. The court concluded that (a) Nelsonís waiver was knowing and intelligent because he was correctly informed of the terms of the waiver on the record by the court, the prosecutor, and his own counsel; (b) defense counselís advice did not fall below an objective standard of reasonableness because he accurately stated the terms of the agreement on the record in Nelsonís presence; and (c) Nelson could not show prejudice because the trial court cured any misinformation given by defense counsel and because, had Nelson not taken the stateís offer, he would have been subject to trial for first-degree controlled substance crime, which has a higher presumptive sentence and is subject to the same aggravating factors as the third-degree charge. This appeal followed.

D E C I S I O N

I.

Nelson first argues that the waiver of his right to trial by jury was not knowing and intelligent because he was denied effective assistance of counsel. Specifically, he claims that the waiver of his right to a jury trial was induced by defense counselís misrepresentation that he would receive a guidelines sentence of between 40 and 70 months, depending on his criminal history score. We disagree.

A petitioner seeking postconviction relief has the burden of establishing by a fair preponderance of the evidence facts that warrant reopening the case. Minn. Stat. ß 590.04, subd. 3 (1998). On appeal, the postconviction courtís decision is reviewed under an abuse of discretion standard. The scope of the review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction courtís findings. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).

To receive postconviction relief on a claim of ineffective assistance of counsel, a convicted defendant must affirmatively show that counselís performance (a) fell below an objective standard of reasonableness; and (b) so prejudiced him or her that a different outcome would have resulted but for counselís error. Id. at 633.

a. Reasonableness

First, Nelson correctly argues that defense counselís performance fell below an objective standard of reasonableness because he misrepresented the nature of the proposed plea agreement in explaining it to him. Defense counselís performance is presumed to be reasonably effective. State v. Powell, 578 N.W.2d 727, 731 (Minn. 1998). An attorneyís performance is deemed effective if it justifies reliance on the outcome of the proceeding at issue. Id. Reliance is justified if counsel exercises "the customary skills and diligence that a reasonably competent attorney would [exercise] under the circumstances." Doppler, 590 N.W.2d at 633 (citation omitted).

Defense counsel did not exhibit the skills a reasonably competent criminal defense attorney would have exhibited under similar circumstances. He admitted advising his client that his sentencing exposure was limited to between 40 and 70 months in prison. Three experienced criminal defense attorneys testified that no reasonably competent criminal defense attorney could have misunderstood the prosecutorís statement that the state would be free to seek an upward departure or the courtís statement that Nelsonís sentence was "up for grabs." Defense counselís misrepresentations were patently erroneous and, standing alone, do not justify reliance in the outcome of the proceeding. His performance, therefore, fell outside the wide range of professionally competent assistance required by the Sixth Amendment, even applying the strong presumption of competency.

b. Prejudice

Though defense counselís performance was deficient, Nelsonís ineffectiveness claim fails because he is unable to establish prejudice. In determining prejudice, the reviewing court considers the totality of the circumstances. King v. State, 562 N.W.2d 791, 796 (Minn. 1997). To establish prejudice, a criminal defendant must affirmatively show "a reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different." State v. Marhoun, 451 N.W.2d 323, 328 (Minn. 1990) (citation omitted). A reasonable probability is one sufficient to undermine confidence in the outcome of a proceeding. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984). An error by counsel, even if professionally unreasonable, does not undermine confidence in the outcome of a proceeding if it has no effect on the outcome. Id. at 692, 104 S.Ct. at 2066.

The totality of circumstances in this case suggests that defense counselís deficient performance had no effect on Nelsonís ultimate decision to waive a jury. First, Nelson understood the terms of the waiver despite defense counselís misrepresentations. He was told on the record that there was no deal on sentencing, that his sentence was "up for grabs," and that the prosecutor was free to seek an upward departure. He was sufficiently familiar with the criminal justice system as a result of previous felony charges and convictions to have understood that he was not limiting his sentencing exposure other than by securing the dismissal of the first-degree charge. The postconviction court did not abuse its discretion, therefore, in concluding, "there was no misunderstanding at that point in time."

Second, it is not at all clear that Nelson would have proceeded with a jury trial were it not for defense counselís misrepresentations. By waiving a jury trial, Nelson secured the dismissal of the first-degree charge and protected himself from a presumptive sentence more than double the sentence he faced on the third-degree charge. This was a significant benefit. Moreover, Nelson was not prepared for trial. There is no reasonable probability, therefore, that, but for defense counselís ineffective assistance, Nelson would have elected not to waive a jury trial.

Finally, Nelson waited two years from the time he was sentenced to file for postconviction relief. Unexcused delays in filing for postconviction relief, while not determinative, raise questions about the legitimacy of a petitionerís claim, Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984) and weigh against the granting of relief, Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991); Whelan v. State, 298 Minn. 545, 545, 214 N.W.2d 344, 345 (Minn. 1974) (two-year delay). Here, Nelsonís lack of due diligence in filing for postconviction relief raises doubts about the legitimacy of his claims and weighs against the granting of relief.

Thus, although defense counselís performance fell below the level of competence required of criminal defense attorneys, the postconviction court did not abuse its discretion in denying Nelsonís petition. The record supports a finding that he understood the terms of the waiver and its consequences and would have proceeded with the waiver with or without the misrepresentations.

II.

Nelson also challenges the trial courtís double durational departure. Nelson claims the court abused its discretion by relying on evidence that points to Nelsonís guilt of a first-degree controlled substance crime but does not establish that Nelsonís conduct was more serious than that typically involved in the commission of a third-degree offense. We disagree.

A sentencing court may depart from the presumptive sentence under the guidelines when "substantial and compelling" circumstances exist. Minn. Sent. Guidelines II.D. In deciding whether to depart, the court must consider whether defendantís conduct was "significantly more or less serious than that typically involved in the commission of the crime in question." Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (quoting State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)). In making this determination, the court may take into account the course of conduct underlying the offense. State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984). It may not consider, however, evidence that points to defendantís guilt of some other offense but does not support the conclusion that defendant committed the offense of conviction in a particularly serious way. Id. The reviewing court will not upset the sentencing courtís decision to depart where the reasons for departure are adequate and the record supports the decision to depart. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

In this case, the trial court convicted Nelson of conspiring to commit a controlled substance crime in the third-degree. It then sentenced Nelson to 140 months in prison, double the upper limit of the applicable presumptive sentence of 60 to 70 months. In departing upward, the court relied on two aggravating factors expressly permitted under the guidelines: (a) the offense was a major controlled substance offense; and (b) Nelson committed the offense as part of a group of three or more persons who all actively participated in the crime. Minn. Sent. Guidelines II.D.2.b.(5), (8).

a. Major Controlled Substance Offense

The sentencing guidelines allow an upward durational departure for a "major controlled substance offense" if two of seven listed aggravating circumstances are present. Minn. Sent. Guidelines II.D.2.b.(5). The record supports the trial courtís finding that at least two of the seven aggravating circumstances were present.

First, the trial court found that Nelsonís trafficking involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to sell. The videotaped statements of Nelsonís co-conspirators establish that Nelson transferred heroin and marijuana from Arizona to Minnesota on at least three separate occasions. Contrary to Nelsonís claim, his co-conspiratorsí statements do not point to his guilt of a greater controlled substance offense. They merely suggest, appropriately, that Nelsonís conduct was more serious than that typically involved in a third-degree offense. See State v. Gould, 562 N.W.2d 518, 520 (Minn. 1997) (stating the controlled substance statutes do not presume that the offender is involved in the ongoing business of selling drugs). Thus, the trial court properly relied on this aggravating factor in departing upward.

Second, the trial court found that the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use. The evidence establishes that Nelson was in possession of chunks of heroin the size of a king-size candy bar and a golf ball. These quantities far exceed what one would need for personal use and make the crime more serious than the typical third-degree controlled substance crime. They do not, however, necessarily point to Nelsonís guilt of a greater offense. Under the circumstances, therefore, the trial court did not abuse its discretion in relying on this factor. See State v. Marshall, 411 N.W.2d 276, 281 (Minn. App. 1987) (upholding upward departure in case involving conviction of third-degree controlled substance crime where offense involved quantities substantially larger than for personal use); accord State v. Zeigler, 356 N.W.2d 736, 738 (Minn. App. 1984).

Additionally, the trial court found that Nelsonís offense involved a high degree of sophistication or planning. The record shows that the transfer of heroin from Arizona required many trips, different points of departure, phone calls, transfers of money, special packaging, numerous mailings through different mailing companies, and, on one occasion, traveling under a false name. Nelsonís conduct, therefore, was considerably more sophisticated than that typically involved in the sale of a narcotic drug. Because the sophistication of Nelsonís offense points to the seriousness of the offense but not necessarily to Nelsonís guilt of a more serious offense, the trial court properly considered this factor in departing upward.

Because the record supports the courtís conclusion that Nelson committed a major controlled substance offense in a particularly serious way, and at least two of the aggravating factors on which the court relied in departing do not point to Nelsonís guilt of a greater offense, the court did not abuse its discretion in sentencing Nelson to double the presumptive sentence for third-degree controlled substance crime.

b. Offense Committed as Part of a Group of Three

Because in departing from the presumptive sentence the court properly relied on the fact that Nelson committed a major controlled substance offense in a particularly serious manner, we need not consider Nelsonís additional argument that the court abused its discretion in relying also on the fact that Nelson committed the offense as part of a group of three or more.

Affirmed.

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