This opinion will be unpublished and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

A05-1593

 

John J. Blake,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 19, 2006

Affirmed

Ross, Judge

 

Ramsey County District Court

File No. K8-98-4540

 

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

 

Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

John J. Blake, Jr., OID # 133898, MCF—Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

John J. Blake appeals from the district court’s order denying his second petition for postconviction relief.  Blake’s petition challenges his sentence for first-degree controlled-substance crime, arguing that he was subjected to double jeopardy, received ineffective assistance of counsel, and has been denied sentence reductions promised during his plea agreement.  He also contends that the district court inappropriately denied him an evidentiary hearing.  Because the postconviction court did not abuse its discretion by denying Blake’s petition and deciding the matter without an evidentiary hearing, we affirm.

FACTS

The relevant background regarding the forfeiture, plea, and sentencing is undisputed.  Police arrested Blake in December 1998, and they found about a pound of cocaine and $1,590 in cash in his possession.  The state notified Blake of its intent to seize the cash through administrative forfeiture proceedings.  The state prevailed without contest in those proceedings.  Blake retained counsel, pleaded guilty to first-degree controlled-substance crime, and was sentenced.  The district court imposed a sentence pursuant to Blake’s plea agreement, incarcerating him for 120 months, concurrent with a then-undetermined penalty for an extant probation violation.

This appeal concerns Blake’s second postconviction petition.  Blake, represented by counsel, filed his first petition for postconviction relief in 2001, which the district court denied in January 2002.  He did not appeal that denial.  In May 2005, Blake filed another petition for postconviction relief, pro se.  The district court denied the petition and this appeal follows.

D E C I S I O N

Blake challenges the district court’s decision denying his request for postconviction relief.  This court will not disturb the district court’s decision regarding a petition for postconviction relief unless the district court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

Double Jeopardy

Blake argues that the cash forfeiture and criminal conviction represent unconstitutional double jeopardy.  The argument is mistaken.  Blake did not challenge the administrative forfeiture of the cash that police found at the time of his arrest.  He now asserts that the $1,590 had nothing to do with the pound of cocaine that police also seized.  Rather, he claims it was money he had “just inherited” as “sole heir” to his father’s estate.  That may be so, but having failed to timely challenge the forfeiture seven years ago, Blake cannot now prevail by claiming that the forfeiture constitutes punishment to which jeopardy attaches.  State v. Watley, 541 N.W.2d 345, 349 (Minn. App. 1995) (holding that because the defendant failed to timely initiate judicial forfeiture proceedings in a formal challenge, he “did not subject himself to risk of punishment or guilt and, therefore, jeopardy did not attach in the forfeiture proceeding”), review denied (Minn. Feb. 27, 1996).  A challenger cannot establish that a prior forfeiture is punishment for purposes of double jeopardy if he did not follow the procedures outlined in the forfeiture statute and failed to “come forward in the forfeiture proceeding and claim[] that he . . . owned the property.” Id.  Because Blake failed to make the requisite showing for a double-jeopardy claim, the district court properly denied his requested postconviction relief.

Ineffective Assistance of Counsel

Blake attempts to salvage his double-jeopardy claim by maintaining that the reason he did not challenge the forfeiture is that he received ineffective assistance from his retained counsel.  But the timing of his counsel’s representation belies this argument.  The record includes a certificate of counsel’s representation of Blake for the first-degree controlled-substance offense, not for the forfeiture proceeding.  Also, the certificate was filed on March 12, 1999, about two weeks after the 60-day period during which Blake could have filed a challenge to the December 27, 1998, forfeiture notice.  Blake therefore has not shown that he had even retained counsel in time either to advise or to represent him concerning the forfeiture proceeding.  We therefore do not reach the legal issues of whether “his counsel’s representation ‘fell below an objective standard of reasonableness’ and [whether] ‘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).[1]  Blake’s assertion of ineffective assistance of counsel is without merit and cannot save his double-jeopardy claim.

Modification of Sentence

Blake also contends that his sentence is illegal because the state did not satisfy its obligation to place him in the Challenge-to-Incarceration program’s “boot camp” and because he was not credited at sentencing for his alleged substantial assistance to law enforcement.  This argument also lacks factual foundation.  During Blake’s guilty plea hearing, his defense attorney mentioned the Challenge-to-Incarceration program only with regard to a prior conviction for which Blake was on probation when he entered his guilty plea.  Blake testified that he knew at the time that authorities possessed a valid warrant for his arrest for failure to maintain contact with the Challenge-to-Incarceration program.  Although there was obvious uncertainty concerning Blake’s future in the program at the time of his plea, the record shows that the parties agreed that resolving that uncertainty was not necessary to Blake’s agreement to the 120-months’ incarceration for the offense to which he was pleading guilty.  Similarly, the record does not support Blake’s contention that he is entitled to a sentence reduction for assisting law enforcement.  Instead, it demonstrates that any assistance Blake might have provided to authorities was not in consideration of his negotiated sentence.  Blake’s plea agreement does not suggest the existence of any promise by the state concerning a sentence reduction in exchange for Blake’s alleged assistance.  That Blake then agreed to serve a 120-month sentence in exchange for his guilty plea defeats his present contention that his 120-month sentence is illegal by virtue of an alleged separate agreement concerning sentence length.  The district court accurately concluded that Blake’s executed sentence is not unlawful.

Evidentiary Hearing

Blake argues finally that the district court erroneously failed to provide him an evidentiary hearing to address his postconviction claims.  The postconviction-relief statute directs that an evidentiary hearing should be conducted  “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2004).  Here, the postconviction court appropriately decided the matter without an evidentiary hearing.  The court noted that this was Blake’s second postconviction petition and that Blake did not appeal the court’s denial of his first petition.  The court also observed that Blake alleged no new facts upon which relief might be granted.  On this petition and record, no hearing was required.  The district court therefore did not abuse its discretion by providing none.

Affirmed.