This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1631

 

Bruce Willis, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed July 19, 2005

Affirmed

Peterson, Judge

 

Hennepin County District Court

File Nos. 0105667/02025837

 

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from the denial of a postconviction petition, appellant argues that (1) the district court abused its discretion by resolving a fact issue and denying his petition without an evidentiary hearing; and (2) under Blakely v. Washington, his sentence violates his right to a jury trial.  We affirm.

FACTS

            At about 3:50 a.m. on June 27, 2001, police responded to a call from two women who reported that a man with a knife had entered their home and accosted them.  The women reported that they were tied up nude with electrical cord, blindfolded, and held prisoner for three hours; the man struck and cut one of the women with a knife, touched the breasts and vaginal area of one of the women, and demanded money, credit and cash cards, and the PIN numbers for the cards.  The women also told the police that the man wore gloves during much of the attack.  One of the credit cards was used shortly after it was taken, and officers found a latex glove on the lawn outside the home.

            In July 2001, at approximately 4:45 a.m., police responded to a call from a woman who reported that a man had entered her home through a window, threatened her with a knife, tied her up, cut off her clothing, and sexually assaulted her.  The woman’s description of the man was similar to the description provided by the two women in the June 27 incident.  The man also demanded money, credit cards, and directions to the nearest ATM.  One of the cards was used at an ATM shortly after it was taken.  

            Surveillance photos from an ATM and a police sketch of the alleged assailant were released to the public, and the police received calls indicating that the ATM photo resembled appellant Bruce Edward Willis.  Appellant was arrested and charged with two counts of first-degree burglary, three counts of first-degree aggravated robbery, one count of second-degree criminal sexual conduct, one count of first-degree criminal sexual conduct, and three counts of kidnapping.  Appellant was initially represented by the Hennepin County Public Defender’s Office, but because a person whom that office represented on another matter became a jailhouse informant in appellant’s case, an attorney from the conflicts panel was appointed to represent appellant.

            The glove that police found on the lawn while investigating the June 27 incident was sent to the Minnesota Bureau of Criminal Apprehension (BCA) for DNA testing.  An October 2001 report from the BCA indicated that the DNA from the glove did not match the DNA profile obtained from appellant.  The Hennepin County Attorney’s Office disclosed the BCA report to appellant’s attorney in January 2002, but appellant’s attorney did not tell appellant about the report.

            In April 2002, appellant was charged with first-degree burglary in a separate complaint for an incident that occurred on June 8, 2001.  Appellant pleaded guilty to one count of first-degree aggravated robbery and one count of first-degree burglary charged in the first complaint, and to the first-degree-burglary charge in the second complaint.  Pursuant to a plea agreement, the remaining counts were dismissed, and appellant was sentenced to a 59-month prison term for the burglary charged in the second complaint and to consecutive 69-month and 52-month terms for the first-degree burglary and aggravated robbery charged in the first complaint.  The 69-month sentence is a departure from the presumptive 52-month sentence.  

After learning about the BCA report, appellant filed a petition for postconviction relief, seeking to withdraw his guilty plea because his attorney’s failure to disclose the BCA report to him was ineffective assistance that rendered his plea unknowing, involuntary, and not intelligently entered.

            The district court denied appellant’s petition without holding an evidentiary hearing.  The district court determined that it could not say as a matter of law that appellant’s attorney’s failure to inform appellant about the DNA-test results fell below an objective standard of reasonableness, and, therefore, appellant failed to rebut the presumption that his attorney’s performance was within the range of reasonableness.  The district court also determined that the DNA report, which was only one piece of evidence, was not so favorable to appellant that it established that appellant would not have pleaded guilty had he known about the report nor that appellant did not genuinely understand his legal position without knowing about the report.  

D E C I S I O N

I.

The district court may allow a defendant to withdraw a plea of guilty upon “proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”  Minn.  R. Crim. P. 15.05, subd. 1; Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  Manifest injustice results when a defendant’s plea is not entered accurately, voluntarily, and intelligently.  Alanis, 583 N.W.2d at 577.  Appellant contends that because his attorney failed to inform him about the DNA report, he was unable to knowingly and intelligently evaluate his chances of acquittal at trial and if he had known about the report, he would have proceeded to trial instead of pleading guilty.  Appellant argues that his attorney’s failure to inform him about the report constituted ineffective assistance of counsel. 

The Sixth Amendment guarantees a defendant the right to reasonably effective assistance of counsel.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing  Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063 (1984)).

We analyze ineffective assistance of counsel claims under a two-prong test set forth in Strickland.  To prevail on such a claim, an appellant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”

 

Id. (quoting State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998)).  “A reasonable probability means a probability sufficient to undermine confidence in the outcome.”  Id. (quotation omitted).  “Thus, . . . under the prejudice prong, a defendant must show that counsel’s errors actually had an adverse effect in that but for the errors the result of the proceeding probably would have been different.”  Id. (quotation omitted).  To satisfy the prejudice requirement in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”  Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); accord Kaiser v. State, 621 N.W.2d 49, 54 (Minn. App. 2001), aff’d, 641 N.W.2d 900 (Minn. 2002). 

“The reviewing court considers the totality of the evidence before the judge or jury in making this determination.  We need not address both the performance and prejudice prongs if one is determinative.”  Rhodes, 657 N.W.2d at 842 (citation omitted).  “As ineffective assistance of counsel claims involve mixed questions of law and fact, our standard of review is de novo.”  Id.  “[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.”  Strickland, 466 U.S. at 698, 104 S. Ct. at 2070.

Appellant argues that because he stated in his affidavit that had he known about the DNA report, he would not have pleaded guilty, the district court improperly resolved a question of fact (whether appellant would have pleaded guilty if he had known about the report) without holding an evidentiary hearing.  But in making this argument, appellant attempts to recast the analysis of an ineffective-assistance-of-counsel claim from one in which the court determines whether a reasonable probability exists that the outcome would have been different but for counsel’s errors into one in which the court determines, as a matter of fact, what the defendant would have done if counsel had not erred.  The Supreme Court explained in Strickland that “[i]neffectiveness is not a question of ‘basic, primary, or historical fac[t].’  Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact.”  466 U.S. at 698, 104 S. Ct. at 2070 (second alteration in original) (quoting Townsend v. Sain, 372 U.S. 293, 309 n.6, 83 S. Ct. 745, 755, n.6 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.  Ct. 1715 (1992)).  The authority cited by the Supreme Court in Strickland explains further that basic, primary, or historical facts are “facts in the sense of a recital of external events and the credibility of their narrators.  So-called mixed questions of fact and law, which require the applications of a legal standard to the historical-fact determinations, are not facts in this sense.”  Townsend, 372 U.S. at 309 n.6, 83 S. Ct. at 755 n.6 (quotation omitted).

 When a motion to withdraw a guilty plea is made in a postconviction proceeding, the burden is on the petitioner “to prove by a preponderance of the evidence the facts which would warrant withdrawal of his guilty plea.”  Doughman v. State, 351 N.W.2d 671, 674 (Minn. App. 1984) (citing Minn. Stat. § 590.04, subd. 3 (Supp. 1983)), review denied (Minn. Oct. 16, 1984).  An evidentiary hearing is required “whenever material facts are in dispute that must be resolved in order to determine the issues raised on the merits.”  Opsahl v. State, 677 N.W.2d 414, 423 (Minn. 2004) (quotation omitted).  A hearing is not required unless facts are alleged that, if proved, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  “Furthermore, a petitioner’s allegations must be more than argumentative assertions without factual support.”  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (quotation omitted).

Appellant’s allegation that if he had known about the DNA report, he would not have pleaded guilty does not assert a disputed fact that needs to be resolved in order to determine appellant’s ineffective-assistance claim on the merits; it simply expresses the mixed question of fact and law in the prejudice prong of the ineffectiveness inquiry as if it were a question of basic fact.  But the disputed basic fact in appellant’s claim is whether his attorney failed to inform him about the DNA report, and in analyzing appellant’s claim, the district court took as true appellant’s allegation that his attorney did not tell him about the report.  There are no other disputed fact issues that needed to be resolved.      

Our review of the totality of the evidence before the district court persuades us that there is not a reasonable probability that, but for appellant’s attorney’s failure to inform appellant about the DNA report, appellant would not have pleaded guilty and would have insisted on going to trial.  As the district court determined, the DNA report was only one piece of evidence, and it did not prove that appellant had not been at the location or that someone else committed the June 27 offenses.[1]  Also, the evidence included photographs of appellant using one of the victim’s credit cards at an ATM shortly after the card was taken, and one of the victims positively identified appellant as her assailant.  In addition, the record contains a notice of the state’s intention to offer Spreigl evidence about similar crimes appellant committed against women between 1975 and 2001, and if appellant had gone to trial, he would have faced the possibility that this “modus operandi” evidence would be admitted.  Furthermore, appellant was charged with eleven counts involving four separate victims, and under his plea agreement, all but three of the counts were dismissed.  These facts indicate that appellant had good reason to plead guilty to obtain a lesser sentence, and considering the totality of the evidence, it is not reasonably probable that appellant would not have pleaded guilty if he had been informed about the DNA report.

II.

            Appellant argues that Blakely v. Washington, 124 S. Ct. 2531 (2004), which was announced after appellant filed his postconviction petition but before the district court issued its order denying the petition, applies to his case because it did not announce a new rule of law.  Appellant concedes that this issue was not raised in the district court, and asks this court, in its discretion, to address the issue, permit appellant to file an additional postconviction petition, or remand to the district court for consideration of the Blakely issue.

Generally, this court will not consider matters that were not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Notwithstanding this general rule, we will consider this issue because this court has already determined that Blakely announced a new constitutional rule.  State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004) (citing Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989)), review denied (Minn. Jan. 20, 2005).  This court has also determined that the new rule does not apply retroactively on collateral review of convictions, such as appellant’s, that became final after the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), was announced and before the decision in Blakely was announced.  State v. Houston, 689 N.W.2d 556, 559-60 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005);[2] see O’Meara v. State, 679 N.W.2d 334, 339 n.2 (Minn. 2004) (stating that new rule benefits defendants only where new rule is announced prior to expiration of defendant’s direct appeal period).  Therefore, appellant’s argument that the rule announced in Blakely applies to his case is without merit. 

            Affirmed.