A05-582

Victor Fidel Hawkins, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed April 4, 2006

Affirmed

Hudson, Judge

Anoka County District Court

File No. K8-99-7187

Michael C. Davis, Special Assistant State Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, Minnesota 55101 (for appellant)

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

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, Minnesota 55303 (for respondent)

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

This is an appeal from an order denying appellant’s postconviction petition challenging a 1999 Washington County conviction for false imprisonment. Appellant argues that he was denied his right to counsel in the Washington County case where he pleaded guilty without a knowing and intelligent waiver of his right to counsel as part of a resolution of an Anoka County prosecution on more serious offenses. Because the record demonstrates that appellant was represented by counsel when he entered his plea on the Washington County case, we affirm the district court’s order denying appellant’s postconviction petition.

FACTS

In May 1996, appellant Victor Hawkins was sentenced in Hennepin County to 98 months following convictions of first-degree assault, in violation of Minn. Stat. § 609.221 (1994); and harassment/stalking, in violation of Minn. Stat. § 609.749, subd. 2(4) (1994). Execution was stayed, and Hawkins was ordered to serve one year in the Hennepin County workhouse. In February 1999, Hawkins was charged in Washington County with false imprisonment, in violation of Minn. Stat. § 609.255, subd. 2 (1998). In August 1999, while released from Washington County on bail, Hawkins was involved in a separate incident in Anoka County resulting in charges of first-degree attempted murder, in violation of Minn. Stat. § 609.185, subd. 1 (1998); first-degree assault, in violation of § 609.221, subd. 1 (1998); and kidnapping, in violation of § 609.25, subd. 1(2) (1998). Hawkins was held in custody for a probation violation during the pendency of the Anoka County proceedings.

On August 11, 1999, Hawkins requested that the Washington County district court appoint a public defender to represent him on the false-imprisonment charge. The district court denied this request. On August 23, at Hawkins’s first appearance in Anoka County, the Anoka County district court appointed the Anoka Public Defender to represent Hawkins on the three felony counts in that county. Stephen R. Nicol was assigned as Hawkins’s counsel. Attorney Nicol met with Hawkins at the Anoka County jail during his representation of Hawkins. Attorney Nicol was aware from their discussions that Hawkins had a pending charge in Washington County district court. Attorney Nicol spoke at least once with an assistant Washington County attorney about that pending charge and received some discovery documents as well. Attorney Nicol did not, however, appear before the Washington County district court on that charge, and the Washington County district court never formally appointed counsel to represent Hawkins on that charge. Attorney Nicol informed appellant that the Anoka County Attorney and the Washington County Attorney were contemplating some form of a “joint plea.”

On December 6, 1999, Hawkins entered two petitions to plead guilty; one in the Washington County charge and one in the Anoka County charges. Assistant Anoka County Attorney Norman represented the State of Minnesota with respect to negotiations on both files. Attorney Nicol drafted both petitions and reviewed each one with Hawkins, who indicated that he understood the rights he was giving up by entering his guilty pleas. Although it appears Hawkins may have had some reservations about the strength of the charges in Washington County, Hawkins negotiated a plea for concurrent sentencing in exchange for not exercising his right to a trial in Washington County.[1]

The Petition to Enter Plea of Guilty for the Washington County file indicates: “I am represented by an attorney whose name is Stephen R. Nicol,” and:

a. I feel that I have had sufficient time to discuss my case with my attorney.

b. I am satisfied that my attorney is fully informed as to the facts of this case.

c. My attorney has discussed possible defenses to the crime that I might have.

d. I am satisfied that my attorney has represented my interests and has fully advised me.

(Emphasis added.)

On December 13, 1999, the matter came before the Anoka County district court for a plea and sentencing hearing. Hawkins appeared with counsel, Stephen R. Nicol. Attorney Nicol laid foundation for the plea petitions and inquired as to the facts on both files. During the plea hearing, neither Hawkins nor his counsel inquired about appointment of counsel on the Washington County charge. Hawkins indicated that he was entering his guilty plea voluntarily. Hawkins pleaded guilty first to the Washington County false-imprisonment charge and then to the Anoka County attempted-murder charge. Hawkins was sentenced contemporaneously with the pleas. The first sentence was an executed sentence of 17 months for the Washington County conviction for false imprisonment. The first plea resulted in an additional criminal history point for Hawkins for sentencing on the second plea. The second sentence was an executed sentence of 230 months for the Anoka County conviction for attempted murder in the first degree. The district court also executed the balance of the previously stayed sentence of 98 months from the Hennepin County case. All sentences were concurrent.

Hawkins filed no immediate appeals. Later, Hawkins came to believe that his convictions violated his constitutional right to counsel. In February 2004, Hawkins filed a pro se petition for postconviction relief. Following an evidentiary hearing, the Anoka County district court denied the petition. This appeal follows.

D E C I S I O N

Hawkins argues that the district court abused its discretion in denying his postconviction petition, asserting that when he pleaded guilty to the Washington County charge he was unconstitutionally denied his right to counsel.

Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). We will “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Id. (citation omitted). The decisions of a postconviction court will not be disturbed absent an abuse of discretion. Id.

The Sixth Amendment guarantees as a fundamental right that counsel be appointed to a criminal defendant who cannot otherwise afford it. See U.S. Const. amends. VI, XIV; see also Minn. Const. art. I, §§ 6, 7; Gideon v. Wainwright, 372 U.S. 335, 343–45, 83 S. Ct. 792, 795–97 (1963). The Minnesota Constitution has been interpreted to establish a broad-based right to counsel that exceeds that guaranteed by the United States Constitution. State v. Nordstrom, 331 N.W.2d 901, 904–05 (Minn. 1983). Pursuant to Minnesota Rules of Criminal Procedure, “if a defendant . . . appears without counsel” the district court must “advise the defendant of the right to counsel and the appointment of the district public defender if the defendant has been determined to be financially unable to afford counsel.” Minn. R. Crim. P. 5.02, subd. 1(1) (emphasis added). The denial of either the right to counsel or the right to self-representation does not require a showing of prejudice to obtain reversal. State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997).

Hawkins argues that because the Washington County district court denied him the appointment of counsel on the Washington County charge, he was unconstitutionally required to represent himself in the plea hearing in Anoka County concerning that charge. Hawkins relies on the postconviction hearing testimony and affidavits of Attorney Nicol, who stated that he understood Hawkins to be representing himself on the Washington County charge.

The postconviction court found that “[a]lthough Attorney Nicol was not specifically appointed to represent [Hawkins] on the Washington County case, Attorney Nicol’s actions and [Hawkins’s] response during the [December 13, 1999] proceeding establish that Attorney Nicol did represent [Hawkins] for the limited purpose of entering a guilty plea on the Washington County case.”

The record reflects that Hawkins appeared at the December 13, 1999 plea hearing with his counsel, Mr. Nicol. Attorney Nicol had been involved in the plea negotiations regarding the Anoka County and the Washington County charges. Both Hawkins and Nicol understood that the plea agreement encompassed the Anoka County and the Washington County files. Attorney Nicol understood the Washington County file sufficiently to advise Hawkins concerning the plea. Attorney Nicol drafted the two separate plea agreements—one for each county—in accordance with rule 15 of the Minnesota Rules of Criminal Procedure. Both petitions list Attorney Nicol as representing Hawkins. Attorney Nicol reviewed each petition with Hawkins, who signed both petitions. Attorney Nicol separately presented the facts to the district court, first on the Washington County charge, and then on the Anoka County charges. Hawkins pleaded guilty to each charge separately, stating to the district court that he understood the terms of the pleas and the rights that he was giving up in pleading guilty, and that he was voluntarily entering the pleas. Attorney Nicol separately presented each petition to be entered.

Although Attorney Nicol was not specifically appointed to the Washington County file, several factors demonstrate this to have been a mere insignificant oversight: (1) Washington and Anoka counties are adjacent and are part of the Tenth Judicial District, thus Attorney Nicol was assigned to represent Hawkins by a district court of the Tenth Judicial District; (2) at the plea hearing, Attorney Nicol presented himself to the Anoka County district court as Hawkins’s attorney on both matters, without objection by Hawkins, and giving no indication that his representation was limited in any way; and (3) Hawkins likewise represented to the district court that Nicol was his attorney and never told the district court that he felt he was representing himself in regard to the Washington County file.

Based upon the transcripts of the December 13, 1999 plea hearing and the petition to enter a plea of guilty on the Washington County file, the postconviction court had sufficient evidence to find that during the plea hearing on the Washington County file Hawkins was represented by Attorney Nicol. Accordingly, the district court properly denied Hawkins’s petition for postconviction relief.

Because Hawkins was represented by counsel when he entered a guilty plea on the Washington County file, we do not address Hawkins’s argument that the district court failed to obtain a formal waiver of his right to counsel.

Affirmed.

[1] If Hawkins had pleaded to the attempted first-degree murder charge in Anoka County without regard to the Washington County charge, his guidelines sentence permitted a sentence consecutive to the 98-month Hennepin County sentence. This would have resulted in a sentence of 180 months for the attempted-murder charge plus the 98 months in Hennepin County for a total of 278 months. Rather, Hawkins agreed to a 6-month upward durational departure from the high end of the sentencing range to 230 months on the attempted-murder charge in exchange for concurrent sentencing. The end result of the plea reduced Hawkins’s probable consecutive sentence by four years in exchange for a guilty plea on the Washington County charge, which raised Hawkins’s criminal history score by one point. Because this plea bargain occurred prior to the decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and Blakely does not apply retroactively, State v. Houston, 702 N.W.2d 268 (Minn. 2005), we do not address the upward durational departure.