A05-2080

Leonard Mangum, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 3, 2006

Affirmed

Randall, Judge

Hennepin County District Court

File No. 02070295

Leonard Mangum, OID #2131126, MCF Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

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

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

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

RANDALL, Judge

In this appeal from an order denying him postconviction relief, appellant Leonard Mangum challenges his 2003 conviction for and sentence for two counts of first-degree criminal sexual conduct. He argues he should be allowed to withdraw his plea because it was not intelligently made, and because the plea agreement, which left the parties free to argue for sentences of various durations, did not authorize consecutive sentencing. Appellant also argues that he was denied the effective assistance of counsel when his attorney failed to inform him of all the consequences of his plea, failed to explore the possibility of consecutive sentencing, and failed adequately to support appellant’s motion to withdraw the plea or to follow up on exculpatory evidence. Finally, appellant argues that his consecutive sentencing was erroneous and a departure was imposed based on judicial findings in violation of his right to a jury trial.

The record shows that appellant will not suffer a manifest injustice if not allowed to withdraw his plea. He was not deprived of effective assistance of counsel. Consecutive sentencing was not erroneous. Appellant is not entitled to have a jury determine his sentence. We affirm the district court’s denial of appellant’s request for postconviction relief.

FACTS

The state charged appellant Leonard Mangum, by amended complaint, with three counts of first-degree criminal sexual conduct arising from separate incidents involving persons under 13 years old. Appellant was declared incompetent to stand trial after an initial Rule 20 evaluation; then a petition for commitment was filed. The petition was dismissed after reevaluation. Following a third evaluation, requested by appellant’s counsel, the district court found appellant competent to stand trial.

After plea negotiations, appellant pleaded guilty to two counts of first-degree criminal sexual conduct. The plea agreement stated that the maximum penalty that could be imposed for the crime was 30 years “per count,” that the state could argue before the district court for a sentence of no more than 20 years, and that the defense would argue for 16 years. The intent was to leave open a narrow window of years for sentencing. This is analogous to a personal injury trial wherein each party’s counsel makes a private binding court-approved “hi-lo” agreement before closing argument.

At the sentencing, appellant’s attorney now moved for plea withdrawal based on appellant’s statement that at the plea hearing, he had been hearing voices in his head; that interfered with his ability to make judgments. The district court denied the motion and proceeded to impose sentence. The sentence was consecutive sentences of 12 years on one count (presumptive) and 6 years (downward departure) on the other count, for a total of 18 years, with jail credit for 452 days and supervised parole for five years.

Appellant did not file a direct appeal but filed an initial pro se petition for postconviction relief, asserting that his plea was not intelligently made based on his history of mental illness and his failure to take prescribed medications at the time of the plea. The postconviction court denied relief without a hearing. Appellant then filed a second petition for postconviction relief, seeking withdrawal of his plea on the basis that the plea agreement did not contain a provision for consecutive sentencing and that his counsel was ineffective for failing to disclose the consecutive sentencing provision. The postconviction court again denied relief without a hearing. This appeal under Minn. R. Civ. App. P. 142.03 followed.

D E C I S I O N

A person convicted of a crime may seek postconviction relief in order “to vacate and set aside the judgment . . . or grant a new trial . . . or make other disposition as may be appropriate.” Minn. Stat. § 590.01, subd. 1(2) (Supp. 2005). On factual matters, “‘[r]eview of a postconviction proceeding is limited to determining ‘whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.’” Zenanko v. State, 688 N.W.2d 861, 864 (Minn. 2004) (quoting Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001)). This court reviews legal issues raised in a postconviction petition de novo. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). A party seeking postconviction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief. Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005).

Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). The district court, however, retains authority to allow plea withdrawal on proof “that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. Manifest injustice occurs when a defendant can show that a guilty plea was not accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

Appellant argues that his plea was not intelligently made because he was not fully informed by counsel or the district court of the consecutive sentencing provision of his plea. He claims that he was not given adequate time to consider the plea and that the plea agreement did not specifically state the possibility of consecutive sentencing.

The terms of the plea agreement, which appellant signed, specifically state that the maximum penalty for the charged offenses was 30 years “per count.” The plea transcript shows that appellant indicated his understanding that the maximum penalty the court could impose for the charges was “30 years per count.” At the plea hearing, appellant indicated his understanding of the plea negotiation. At sentencing, the defense would have the right to request a 16-year sentence, and the prosecution would have the right to request up to a 20-year sentence. Appellant acknowledged an understanding of the possible years he was exposed to, knew the sentence the state would argue for, and knew the sentence his attorney would argue for. Appellant stated on the record that he had had enough time to discuss the plea with his attorney and his belief that the agreement was “a better action” than proceeding to a jury trial. The sentencing terms of the plea agreement were not violated. We agree with the district court that appellant did not allege sufficient facts to show his plea was not intelligently made.

Appellant also argues that the terms of the plea agreement “formed a contract,” which was breached by the imposition of consecutive sentencing. An examination of the plea agreement shows that it is not susceptible to appellant’s interpretation. The terms of the agreement were clear. They were presented to the district court, appellant acknowledged them, and the district court approved them.

II.

Appellant argues that he was denied his constitutional right to effective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees the right to a fair trial, and the right to effective assistance of counsel is an integral part of that right. State v. Powell, 578 N.W.2d 727, 731 (Minn. 1998), (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64 (1984)). A party alleging ineffective assistance of counsel must show that counsel’s performance “‘fell below an objective standard of reasonableness’ and ‘that 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) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). The reviewing court applies a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 694-95 S. Ct. at 2068.

Appellant argues that counsel’s representation was constitutionally defective because his attorney failed to inform him that his plea agreement contained consecutive sentencing. Appellant signed the plea agreement, which indicated that he had been told by his attorney and he understood that the maximum penalty that could be imposed was 30 years “per count.” Appellant knew the state could argue for up to 20 years. Appellant knew his attorney could argue for just 16 years. Appellant received a sentence of 18 years. It is difficult to find fault with that.

Appellant maintains that his attorney improperly failed to present to the district court evidence of his mental state and medical history that would have revealed his inability to make an intelligent plea. The record does not support appellant’s claim. Appellant’s counsel did move for plea withdrawal on the basis of appellant’s assertion that at the time of the plea hearing, he was suffering from delusions. The district court agreed at the plea hearing that appellant had a history of mental illness and was currently taking medication for a psychiatric condition. Appellant agreed that he did not claim that he did not understand the proceedings. The record shows that appellant’s competence to stand trial was evaluated three times, with consideration of his past medical history. The last time the district court found that he was competent to stand trial, and the plea negotiations followed.

Appellant now argues, for the first time on appeal, that his attorney’s performance was defective because defense counsel (1) did not argue for the admission of statements from the complainants that he asserts would have exculpated him and (2) failed to conduct discovery to show that one of the complainants was unduly influenced to change her statement, resulting in prejudice to him. Appellant did not raise this theory in his postconviction petition. Consequently, we need not consider it. See Ferguson v. State, 645 N.W.2d 437, 448-49 (Minn. 2002) (refusing to review claim of ineffective assistance of counsel when issue was not raised in postconviction petition and postconviction court did not make findings on issue). Even if we were to address appellant’s argument, the record shows that appellant’s attorney requested a continuance to obtain the aid of an investigator or medical expert and that appellant was not prejudiced by a lack of further discovery when medical evidence obtained by the state was consistent with sexual abuse.

III.

Appellant argues that the district court erred by imposing consecutive sentencing, which he claims is unauthorized for his convictions. A district court has discretion to impose consecutive sentencing for convictions of multiple felonies with multiple victims. State v. Richardson, 670 N.W.2d 267, 284 (Minn. 2003). A district court’s sentencing decision on permissive consecutive sentencing will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct. State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).

Appellant pleaded guilty to two counts of first-degree criminal sexual conduct with two separate persons; under these circumstances, consecutive sentencing is not a departure from the sentencing guidelines. See O’Meara v. State, 679 N.W.2d 334, 341 (Minn. 2004); Minn. Sent. Guidelines II.F.2. On this record, when appellant pleaded guilty to first-degree sexual criminal sexual conduct with two underage persons, the district court’s imposition of consecutive sentences of 144 months on the first count and 72 months for the second count did not unfairly exaggerate the criminality of appellant’s conduct.

Finally, appellant states his belief that the district court’s sentencing constituted an upward departure, entitling him to have a jury determine his sentence under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). His argument fails for three reasons. First, appellant is incorrect that there was an upward sentencing departure: appellant received the presumptive sentence for first-degree criminal sexual conduct, 144 months, on the first count, and a downward departure on the second count. See Minn. Stat. §609.342, subd. 2 (2002). Second, the Minnesota Supreme Court has held that while Blakely created a new rule, it was not a watershed rule and will not be applied retroactively to cases that were final prior to Blakely’s effective date of June 24, 2004. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). Since appellant did not file a direct appeal of his sentence, which became final before the effective date of Blakely, the rule in Blakely is unavailable to him retroactively on collateral review. Finally, this court has held that Blakely does not extend to permissive, consecutive sentencing. State v. Senske, 692 N.W. 2d 743, 748 (Minn. App. 2005), review denied (Minn. May 17, 2005); State v. Rannow, 703 N.W.2d 575, 581 (Minn. App. 2005).

Affirmed.