A05-2073

Elroy Thomas, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 16, 2007

Affirmed

Willis, Judge

Beltrami County District Court

File No. K0-03-905

Elroy Thomas, #172402, 7600 525th Street, Rush City, MN 55069 (pro se appellant)

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

David Paul Frank, Beltrami County Attorney, 619 Beltrami Avenue Northwest, #40, Bemidji, MN 56601 (for respondent)

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

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

WILLIS, Judge

Pro se appellant challenges the district court’s order denying his postconviction petition seeking relief from his 2003 conviction of and sentence for first-degree test refusal. Because we conclude that the postconviction court’s findings are supported by the evidence and that the court did not abuse its discretion by denying postconviction relief, we affirm.

FACTS

In July 2003, appellant Elroy Thomas pleaded guilty to first-degree test refusal, which was sentenced as a felony offense because of Thomas’s 2002 conviction of first-degree driving while impaired (DWI). See Minn. Stat. § 169A.20, subd. 2 (2002); Minn. Stat. § 169A.24 (2002). The district court revoked Thomas’s probation on the 2002 offense; ordered the execution of his stayed, 60-month sentence for that offense; and imposed a concurrent, executed 66-month sentence for the current offense.

In July 2005, Thomas filed a pro se petition for postconviction relief, seeking to withdraw his guilty plea, vacate his conviction, and set aside his sentence. He argued, inter alia, that his plea was involuntary and lacked a factual basis; that the district court improperly injected itself into plea negotiations; that he was denied the effective assistance of counsel; that he was convicted under an ex post facto law; that he was improperly convicted of multiple offenses arising from the same behavioral incident; and that the district court erred in calculating his criminal-history score and by imposing concurrent sentences. The district court denied the petition without an evidentiary hearing. This appeal follows.

D E C I S I O N

A defendant may petition for postconviction relief “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 (2004). A petitioner seeking postconviction relief has the burden to establish, by “a fair preponderance of the evidence,” the facts alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2004).

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). We will not disturb the decision of a postconviction court absent an abuse of discretion. Id. But a postconviction court’s legal determinations are reviewed de novo. Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), aff’d, 583 N.W.2d 562 (Minn. 1998).

Thomas first argues that the district court erred by finding that Thomas’s plea-withdrawal request was untimely. Thomas maintains that the postconviction court improperly dismissed his petition by applying retroactively the timeliness requirement of Minn. Stat. § 590.01, subd. 4 (Supp. 2005). But the postconviction court did not dismiss the petition. Rather, the court considered the merits of Thomas’s claim and determined that his delay in seeking to withdraw his plea was one factor in its decision to deny the request. See James v. State, 699 N.W.2d 723, 728 (Minn. 2005) (stating that “the timeliness of a petition to withdraw a guilty plea is a relevant consideration in determining whether that relief should be granted”). The district court, in its substantive review of Thomas’s claims, properly considered the fact that Thomas delayed nearly two years as one factor in its decision to deny Thomas’s request that he be allowed to withdraw his plea.

Thomas argues that his plea was inaccurate because it lacked an adequate factual basis. The district court may allow a defendant to withdraw a guilty plea on “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). A manifest injustice results when a defendant’s plea is not entered accurately, voluntarily, and intelligently. Alanis, 583 N.W.2d at 577. Thomas maintains that the police report and the complaint were inconsistent and that he failed to stipulate to his prior convictions. But a close reading of the complaint and the police report shows that they are not inconsistent. And at the plea hearing Thomas admitted to his prior conviction of felony DWI. He further stated that he was pleading guilty to the current charged offense because he believed that he was guilty. Thus, the record does not contain facts sufficient to require an evidentiary hearing on the accuracy of his plea.

Thomas also contends that the district court’s acceptance of his plea and its imposition of sentence constituted cruel and unusual punishment. This argument appears to relate to Thomas’s claim before the postconviction court that the district court erred by imposing a downward departure in the form of concurrent, rather than consecutive, sentencing, in violation of Minn. Stat. § 169A.28, subd. 1 (2002), which provides for mandatory consecutive sentencing for felony DWI convictions. We agree with the postconviction court that Thomas has failed to show that he was prejudiced by any error in the imposition of concurrent, rather than consecutive, sentences. In determining whether a punishment is cruel and unusual, an appellate court “focuses on the proportionality of the crime to the punishment.” State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998). Thomas’s sentence is not disproportionate to his crime.

Thomas next argues that he was denied the effective assistance of counsel because his attorney failed to ask for an updated presentence investigation or to move for a rule 20 evaluation of Thomas’s mental competency. 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 v. Washington, 466 U.S. 668, 688-694, 104 S. Ct. 2052, 2064, 2068 (1984)). “The reviewing court considers the totality of the evidence . . . in making this determination[, and] need not address both the performance and prejudice prongs if one is determinative.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citation omitted). The postconviction court did not abuse its discretion by denying Thomas’s ineffective-assistance-of-counsel claim on the ground that Thomas failed to satisfy the prejudice prong of the Strickland test. Nothing in the record suggests that an updated presentence investigation might have affected Thomas’s decision to plead guilty. And Thomas has failed to demonstrate the existence of facts to support an order for a rule 20 hearing. Further, Thomas did not challenge the factual basis for the district court’s revocation of the stay of execution of the sentence for Thomas’s 2002 offense: that he violated probation by the continued use of controlled substances and failed to attend recommended chemical-dependency treatment.

Thomas also alleges that his court-appointed attorney made false statements to the district court. But to meet the burden of establishing facts alleged in the postconviction petition by a fair preponderance of the evidence, “a petitioner’s allegations must be supported by more than mere argumentative assertions that lack factual support.” Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). Because Thomas has failed to cite anything in the record that supports his allegation, we reject this argument.

Thomas argues that enhancing his violation based on his prior convictions constituted the application of an ex post facto law. An ex post facto law is one that applies to events that occur before the law’s enactment and disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981). But it is not an ex post facto violation to enhance the punishment for an offense committed after the enactment of a statute that provides an increased penalty for the current offense if there are qualifying prior offenses. Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948); State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983). The district court did not err by enhancing Thomas’s violation to a felony based on the application of Minn. Stat. § 169A.24 (2002), which provides that a person is guilty of a felony when he (1) commits a DWI violation under Minn. Stat. § 169A.20 (2002) within ten years of three or more qualified prior impaired-driving incidents, or (2) has previously been convicted of felony DWI.

Thomas argues that his conviction was prohibited by Minn. Stat. § 609.04 (2002) (stating that a person “may be convicted of either the crime charged or an included offense, but not both”) and Minn. Stat. § 609.035 (2002) (providing that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses”). He contends that he was improperly convicted under both Minn. Stat. § 169A.20, subd. 1 (defining driving while impaired) and Minn. Stat. § 169A.20, subd. 2 (defining refusal to submit to a chemical test). But the record shows that Thomas was charged with, pleaded guilty to, and was convicted of only one crime arising out of the 2003 incident: refusal to submit to chemical testing. Therefore, the postconviction court properly rejected this claim.

Thomas finally maintains that the district court incorrectly calculated his criminal-history score. He argues that because of this error, his sentencing constituted an upward departure, and he was entitled to have a jury determine his sentence under the principles of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). In Blakely, the United States Supreme Court held that the longest sentence that a district court can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at 2537 (emphasis omitted). Although in Booker, the Supreme Court clarified that Blakely does not apply to advisory sentencing guidelines, Booker, 543 U.S. at 233, 125 S. Ct. at 750, the Minnesota Supreme Court has held that Blakely applies to upward durational departures from presumptive sentences under the Minnesota sentencing guidelines. State v. Shattuck, 704 N.W.2d 131, 142 (Minn. 2005).

But Thomas has failed to allege any specific error in his criminal-history score or to challenge the accuracy of the statement of his prior convictions in the worksheet used in sentencing. Therefore, the record does not show that he received an upward departure under the sentencing guidelines, and his sentencing did not violate Blakely principles. Further, Thomas did not file a direct appeal of his sentence, which became final before the effective date of Blakely, and any relief under Blakely is unavailable to him on collateral review. See State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).

Affirmed.