This opinion will be unpublished and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

A05-1987

 

State of Minnesota,

Respondent,

 

vs.

 

Maurice Andre Rice,

Appellant.

 

Filed January 2, 2007

Affirmed

Hudson, Judge

 

Ramsey County District Court

File No. KX-05-1062

 

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

 

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

 

John M. Stuart, State Public Defender, Ngoc Nguyen, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Maurice Andre Rice argues that (1) the district court abused its discretion by denying his motion for a downward dispositional departure; (2) statements by his probation officer prior to sentencing induced the district court to overlook various mitigating factors; (3) his guilty plea was invalid; and (4) he should be granted an evidentiary hearing on the charge of kidnapping.  Because appellant’s challenge to the validity of his guilty plea is without merit, and because the district court did not abuse its discretion where appellant failed to establish the necessary substantial and compelling reasons to justify a downward dispositional departure, we affirm.

FACTS

In May 2005, appellant pleaded guilty pursuant to a plea agreement to one count of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004).  Appellant had three prior felony convictions for theft of a motor vehicle, simple robbery, and theft/receiving stolen property. 

As of March 2005, appellant had been dating the victim for approximately one year; she was nine months pregnant with his child.  Appellant had become physically abusive toward her, and she planned to end the relationship.  After they broke up, appellant spent 48 hours at an alcohol-treatment facility.  At approximately 3:00 a.m. on March 21, 2005, appellant entered the victim’s bedroom while she was sleeping.  The victim’s ten-year-old son was sleeping in the next room.  Appellant waived a gun and threatened to “teach her a lesson” for leaving him.  He hit her in the stomach, arms, and face with the gun.  Appellant fired the gun into the walls and floor of the room, leaving bullet holes in the wallboard and dresser.  He ordered her to get dressed, and he threatened to shoot her if she did not hurry; he also threatened to kill her if she did not leave with him.  Appellant reloaded the gun and dragged the victim downstairs and told her again that he was going to “teach her a lesson.” 

            The victim’s ten-year-old son heard the gunshots and also heard appellant say, “[b]itch,” and “[g]et dressed.”  He heard more yelling and he heard people leave the house.  The victim got into a vehicle with appellant because she feared for her safety as well as the safety of her son.  She believed that he was taking her to a remote location to kill her. 

            Around 3:31 a.m. a Minnesota State Patrol trooper noticed a red Ford Explorer weaving as it traveled southbound on the freeway.  The state trooper activated his emergency lights.  Appellant, who was later identified as the driver, alternately slowed down and accelerated while the state trooper followed with lights and sirens activated.  Appellant only stopped when he crashed into a barrier at the end of a dead-end road.

            In the passenger seat of the Explorer, the police found a .38-caliber handgun loaded with five rounds, including one in the chamber.  At the plea hearing, appellant admitted that he had been driving the Explorer when a state trooper attempted to stop the vehicle and that he had fled the officer.  Appellant did not dispute that the crime lab found his fingerprint on one of the bullets in the gun and admitted that he had prior convictions.  He also admitted that he knew he was not supposed to have a weapon while on probation. 

            Appellant was charged with six offenses, including kidnapping in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (2004).  As part of a plea agreement, appellant pleaded guilty to one offense: possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004).  The remaining charges were dismissed.  The district court denied appellant’s motion for a downward dispositional departure and sentenced him to an executed presumptive guidelines sentence of 60 months.  This appeal follows.

DECISION

I

In his pro se reply brief, appellant challenges the validity of his guilty plea, claiming that it was the result of ineffective assistance of counsel. 

A.  Validity of appellant’s guilty plea

Appellant pleaded guilty to possession of a firearm by an ineligible person, and is therefore required to register as a predatory offender because the dismissed kidnapping charge arose out of the same set of circumstances.  Appellant argues that he would not have agreed to the plea agreement had he known he would be required to register as a predatory offender. 

Minn. Stat. § 243.166, subd. (1)(a) (2004), requires registration of predatory offenders and provides that:

A person shall register under this section if:  (1) the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances. . .[including] (ii) kidnapping under section 609.25.

 

(Emphasis added.)

To be valid, a guilty plea “must appear on the record to have been voluntarily and intelligently made.”  Butala v. State, 664 N.W.2d 333, 343 (Minn. 2003) (emphasis omitted).  “The purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.”  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  Direct consequences are those that “flow definitely, immediately, and automatically from the guilty plea—the maximum sentence and any fine to be imposed.”  Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998).

The record indicates that appellant was made aware of the direct consequences of pleading guilty to felon in possession of a firearm.  Here, the direct consequences of appellant’s guilty plea are his 60-month sentence and restitution in the amount of $1,063.10.  Appellant repeatedly acknowledged his understanding of the direct consequences of his guilty plea.  However, the record is silent as to whether appellant knew or was aware that he was required to register as a predatory offender (even though the kidnapping charge was dismissed in exchange for his plea of guilty to possession of a firearm by an ineligible person). 

But the Minnesota Supreme Court held in Kaiser v. State that registration as a predatory offender is a collateral consequence of a guilty plea.  641 N.W.2d 900, 904 (Minn. 2002).  The court reasoned that predatory-offender registration is not a punitive consequence because it “involves no additional incarceration and has no relation to appellant’s punishment” and therefore is collateral in nature.  Id. at 904–05.  Here, the record indicates that appellant had full opportunity to consult with counsel and was aware of the direct consequences of his guilty plea. 

B.        Ineffective assistance of counsel

Appellant argues that he received ineffective assistance of counsel because he was not informed by his attorney that he would have to register as a predatory offender if he accepted the plea agreement.

In order to prove ineffective assistance of counsel,

[t]he defendant must affirmatively prove that his counsel’s representation “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.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct 2052, 2064, 2068 (1984)).  Furthermore, 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 688, 104 S. Ct. at 2065.

Nothing in this record indicates that the result of the proceeding would have been different if appellant’s counsel had acted differently.  On the contrary, the record demonstrates that appellant’s counsel’s representation did not fall “below an objective standard of reasonableness.”  Appellant was made aware of the direct consequences of his guilty plea, and his attorney advocated zealously on his behalf.  His attorney obtained a dismissal of five of the six charges against him.  Furthermore, the record contains testimony that appellant’s counsel fully informed him of the plea bargain and of the constitutional rights he would be waiving upon pleading guilty.

We conclude that appellant’s guilty plea is valid and that he did not prove ineffective assistance of counsel.

II

Appellant argues that the district court abused its discretion in denying his motion for a downward dispositional departure because there are mitigating factors that make prison an inappropriate sanction.  The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances,” which warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (applying abuse-of-discretion standard in evaluating downward departure), review denied (Minn. Jan. 14, 1991).

The Minnesota Sentencing Guidelines provide that when substantial and compelling circumstances are present, the judge “may,” but is not required to, depart.  Kindem, 313 N.W.2d at 7.  “This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.”  Id.  “We afford the trial court great discretion in the imposition of sentences and we cannot simply substitute our judgment for that of the trial court.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The fact that a mitigating circumstance is present does not obligate the district court to impose a shorter term than the presumptive sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Aug. 22, 2001).  The purposes of the sentencing guidelines will not be served if the trial courts “fail to follow the Guidelines in the ‘general’ case.”  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

Appellant argues that he established the necessary “substantial and compelling reasons” to justify a downward dispositional departure, including amenability to probation and to continued chemical-health treatment.  Appellant argued to the district court that alcoholism was the cause of his actions, and in an effort to demonstrate his amenability to treatment and probation, noted his initiative in contacting several treatment facilities and his acceptance into long-term treatment at the Salvation Army Residential Treatment Program.

When assessing a defendant’s amenability to treatment, the sentencing court may consider the defendant’s age, remorse, cooperation, his or her attitude in court, and family support.  State v. Wright, 310 N.W.2d 461, 462–63 (Minn. 1981).  However, Minnesota sentencing guidelines list nonexclusive factors that may be used as reasons for a dispositional departure.  “The voluntary use of intoxicants (drugs or alcohol) does not fall within the purview of this factor.”  Minn. Sent. Guidelines II.D.2.a.(3).  Further, the district court considered appellant’s involvement in chemical-health treatment, but nevertheless determined that it did not constitute a substantial and compelling reason justifying a downward dispositional departure.  Significantly, the district court noted that prior to the current offense, appellant had “not been cooperating with probation on a prior matter,” “continue[s] to use,” and has “had opportunities for chemical dependency treatment in the past.”  Accordingly, the district court concluded that there was “insufficient evidence . . . to justify a departure of any kind.”

Appellant also attested to his desire to be a good, sober father to his son.  He further asserts that he has remorse for what he did.  But the state presented uncontested transcripts of jail telephone conversations between appellant and the victim during which he attempted to recreate a version of the facts which minimized his responsibility.  On this record, the district court did not abuse its discretion in refusing to grant appellant a downward dispositional departure.

III

            In his pro se reply brief, appellant argues that his probation officer cancelled his alcohol treatment on the assumption that appellant would be serving time in prison.  Appellant asserts that as a result, the district court rejected appellant’s alcohol treatment as a mitigating factor supporting a dispositional departure.  Nothing in the record supports his assertion.  But even if appellant’s allegation is true, he admits he had only been in treatment for 48 hours before the instant offense occurred.

IV

Finally, in his pro se reply brief, appellant requests an evidentiary hearing on the dismissed kidnapping charge.  He bases this request on his contention that he “never admitted on [the] record to forcing the victim to go[ ] with him.” 

Although appellant has a right to an evidentiary hearing upon a withdrawal of his guilty plea (pursuant to Minn. R. Crim. P. 15.05, subd. 1), whether withdrawal is necessary to correct manifest injustice is a judicial decision.  Minn. R. Crim. P. 15 cmt.  The exact nature of appellant’s claim is unclear, but he appears to argue that were he afforded an evidentiary hearing on the dismissed kidnapping charge and subsequently acquitted, the acquittal would absolve him of his duty to register as a predatory offender.  Appellant’s claim fails for two reasons.  First, he cites no authority for his entitlement to an evidentiary hearing on a dismissed charge.  Moreover, such a hearing would likely run afoul of double-jeopardy considerations.  See State v. Lewis, 656 N.W.2d 535, 539, n.3 (Minn. 2003); State v. Rhines, 435 N.W.2d 542, 544 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).  Second, he misunderstands the predatory-offender statute.  The statute provides that a person must register as a predatory offender if he is charged with a felony violation (such as kidnapping), which arises out of the same set of circumstances as the felony violation for which he is convicted.  Minn. Stat. § 243.166, subd. (1)(a).

Here, appellant was charged with kidnapping and it arose out of the same set of circumstances as the felony for which he was convicted (possession of a firearm by an ineligible person).  It is irrelevant that he never admitted on the record to forcing the victim to go with him. 

The record indicates that appellant entered a valid guilty plea and received effective assistance of counsel.  We conclude that the district court did not abuse its discretion when it denied appellant’s motion for a downward dispositional departure.   

Affirmed.