This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-2093

 

James Churcher Scott, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed August 22, 2000

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K4-95-2933

 

 

Mark D. Nyvold, Attorney at Law, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

 

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

 

Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 600, St. Paul, MN 55102 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges the denial of his petition for postconviction relief, arguing ineffective assistance of counsel.  Because we conclude that the district court did not abuse its discretion or err as a matter of law, we affirm. 

FACTS

Appellant James Churcher Scott was charged with selling cocaine on four separate occasions.  In Ramsey County, he committed a first-degree offense on November 28, 1994, and a third-degree offense on May 30, 1995.  In Washington County, he committed both second-degree and fourth-degree offenses on August 2, 1995.  On September 12, 1995, Scott pleaded guilty to the Ramsey County charges and on October 5, 1995, he pleaded guilty to the Washington County charges.  Both pleas were in exchange for guideline sentences. 

On October 23, 1995, Scott was sentenced in Washington County to concurrent terms of 58 and 21 months, the presumptive sentences based on the severity level of the offenses and his criminal history score.  On November 2, 1995, he was sentenced in Ramsey County to concurrent terms of 134 and 65 months, the presumptive sentences based on the severity level of the offenses and his criminal history score, which had increased by two and one-half points following his Washington County convictions.  All four sentences were to run concurrently.  The parties agree that if Scott had been sentenced in Ramsey County first, he would have received a presumptive sentence of only 98 months and that because Scott was first sentenced in Washington County, he received an additional 36 months.^[1]

            On May 21, 1998, Scott petitioned for postconviction relief in Ramsey County, arguing that his counsel had been ineffective by not trying to have him first sentenced in Ramsey County.  After an evidentiary hearing, the postconviction court denied Scott’s petition, and this appeal followed. 

D E C I S I O N

When reviewing a postconviction proceeding, we are limited to determining whether the evidence is sufficient to support the postconviction court’s findings and will not disturb a postconviction court’s decision absent an abuse of discretion.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). 

I.          Ineffective Assistance of Counsel

Scott contends that his counsel were ineffective because they failed to have him sentenced in the most advantageous order.  To prove a claim for ineffective assistance of counsel, a petitioner must show

(1) that the counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel’s errors, the outcome of the proceedings would have been different.

 

King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)) (other citation omitted).

At least five different public defenders, all representing Scott at various times, collectively failed to have him sentenced in a sequence that would minimize the length of his aggregate sentence.  The issue before this court is whether their action (or inaction) was tantamount to ineffective assistance of counsel.  We conclude that it was not. 

            To prove the first prong of the Strickland test, Scott relies on, ironically, the testimony of the attorneys responsible for the scheduling mishap.  At the evidentiary hearing, they testified that the applicable standard of representation in criminal defense cases where a client has charges pending in more than one county is to coordinate with the client’s counsel in the other county or counties to minimize the impact of criminal-history points through a particular sentencing order.  

In hindsight, Scott’s counsel did not coordinate all efforts.  But we cannot conclude that failure to perfectly coordinate sentencing dates to maximize possible sentence benefits falls below a reasonable standard of performance such that reversal is warranted.  When you have a criminal defendant who has pleaded guilty to multiple offenses, in multiple counties, using multiple attorneys, obtaining sentencing in the order most advantageous to the defendant requires tactical decision-making by counsel.  Defense counsel’s tactical decisions, deemed inadequate through the prism of hindsight, are generally insufficient to support a claim of ineffective assistance of counsel.  See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, but holding deference given to attorney’s decisions on trial strategy).  “‘Such * * * tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.’”  State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993) (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986)). Accordingly, the district court did not abuse its discretion by finding that Scott’s defense counsel acted reasonably under the circumstances. ^[2] 

II.        Minnesota Sentencing Guidelines

Scott committed the Ramsey County offenses before he committed the Washington County offenses; yet, he was first sentenced in Washington County.  Minn. Sent. Guidelines cmt. II.A.02, provides that “the date of offense determines the order of sentencing with multiple convictions.”  We asked both parties to submit supplemental briefs regarding the applicability of this comment. 

            Both parties responded that the comment applies only to fact situations where a single judge in one county is pronouncing sentences for multiple convictions in that
county.  To arrive at this result, the parties extrapolated from comment II.B.101, which provides:

When multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred.

 

Comment II.B.101 is more specific than comment II.A.02.  Extending II.A.02’s “same day before the same judge” restriction to comment II.A.02 is not unwarranted.  We appreciate the parties’ concern with the impact a broader interpretation could have on future defendants and the criminal justice system as a whole.  We invite the Minnesota Sentencing Guidelines Commission to clarify the proper order of sentencing when more than one county is involved because, unfortunately, others are likely to fall through the same crack that has caused Scott to do an additional three years in a state prison.

Requiring Scott to spend 36 additional months in prison, not for reasons of punishment, but rather because of the fortuitous scheduling of his sentencing hearings runs contrary to the stated purpose of the sentencing guidelines, i.e.,

to establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history. 

 

Minn. Sent. Guidelines I. 

However, we are forced to conclude that the sentence Scott received was legal, was not the result of intentional manipulation by the state, and was not the result of incompetency by his defense team.  It just happened.  But it should not happen again.

Affirmed.