This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-389

 

 

Dwayne L. Aron, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed April 10, 2007

Affirmed as modified

Lansing, Judge

 

Hennepin County District Court

File No. 00031039

 

John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

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

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487  (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied Dwayne Aron’s postconviction petition to withdraw his guilty plea, and he appeals.  Because the record as a whole provides a factual basis adequate to establish the accuracy of Aron’s guilty plea, we affirm the denial of relief.  Although we agree that Aron did not withdraw his amended request for postconviction sentencing relief, he has not demonstrated that he is entitled to relief under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). 

F A C T S

            Dwayne Aron pleaded guilty to three of six counts of aiding and abetting second-degree assault with a dangerous weapon under Minn. Stat. §§ 609.05; .222, subd. 1 (1998).  The charges stemmed from a March 2000 altercation in which Aron and Allen Whitehead shot and injured several people at a Minneapolis home.  The six-count complaint alleged that Aron shot AP and AM and pointed his gun at AO and GO.  The complaint also alleged that Whitehead shot FC and pointed his gun at A, a juvenile. 

            Following plea negotiations, the prosecutor and defense attorney told the court that Aron would plead guilty to Count II (assaulting FC), Count III (assaulting AP), and Count IV (assaulting A), and that the remaining counts would be dismissed.  The plea agreement provided that Aron would receive 60-month sentences for each of the three counts and an additional 10 months because of the aggravating conduct of shooting a victim in his own home with children present. 

            During the plea inquiry, the court asked Aron if he had been allowed enough time to consider his plea.  Aron said that he did have enough time.  When questioned by his attorney, Aron testified that he was entering his plea voluntarily and that he understood that he was waiving his right to a jury trial.  In establishing a factual basis for Aron’s guilty plea, his attorney asked him specific questions about the shootings of victims FC (Count II), AP (Count III), and AM (Count I).  In addition to responding to questions that established a factual basis for these counts, Aron affirmatively stated that he intentionally “participated in the assault [on] everybody in the house.”  Neither the prosecutor nor the district court detected that Aron’s attorney had mistakenly questioned Aron about the assault on AM (Count I) rather than A (Count IV).  The district court accepted Aron’s plea to Counts II, III, and IV and, later that month, imposed the negotiated aggregate sentence of 190 months. 

            About three years later, Aron petitioned the district court for postconviction relief, arguing that his plea to Count IV (assaulting A) lacked a sufficient factual basis.  While a decision on the petition was pending, Aron submitted an amended petition alleging that the 10-month upward departure was unconstitutional under Blakely v. Washington,542 U.S. 296, 124 S. Ct. 2531 (2004). 

            The district court denied Aron’s postconviction petition on the grounds that, despite the error in confusing A with AM, no manifest injustice occurred because the record supported a reasonable inference that Aron committed second-degree assault on A, as alleged in Count IV.  Interpreting a letter from Aron’s attorney as a withdrawal of Aron’s Blakely argument, the district court did not address the sentencing issue.  Aron appeals, challenging both his conviction on Count IV and the aggravation of his sentence.

D E C I S I O N

            On appeal from the denial of postconviction relief, Aron argues that the record is insufficient to support the district court’s determination that his guilty plea to Count IV did not result in manifest injustice.  He also submits that the district court erred by interpreting his attorney’s letter as a withdrawal of his claim that the 10-month aggravated segment of his aggregate 190-month sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  

            We review decisions of a postconviction court for abuse of discretion.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  We will sustain the postconviction court’s findings if they are supported by sufficient evidence in the record.  Cuypers v. State, 711 N.W.2d 100, 103 (Minn. 2006).  We review legal issues de novo.  Id. 

I

            Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But a postconviction court may allow a defendant to withdraw a guilty plea if withdrawal is “necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1; Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  “Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent.”  Perkins, 559 N.W.2d at 688.  For a guilty plea to be accurate, “a proper factual basis must be established.”  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). 

            To establish a factual basis, the court, with the assistance of counsel, elicits facts from the defendant that satisfy the elements of the offense to which the defendant is pleading guilty.  Minn. R. Crim. P. 15.02(7).  Usually the defendant expresses “in his own words what happened.”  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  Other ways to establish a factual basis include testimony of witnesses or a summary of evidence.  Id.  On review, we determine whether the district court could have fairly concluded that the defendant’s plea was accurate.  State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988).

            Aron argues that the district court’s reliance on his statement that he “participated in the assault [on] everybody in the house” is too nonspecific to satisfy the factual basis for his plea to Count IV (assaulting A).  The state acknowledges that the factual basis would have been more extensive if Aron’s attorney had not mistakenly questioned Aron about the assault on AM rather than A, but nonetheless contends that the transcript of the plea hearing establishes an adequate basis for the plea.  The state points to the parts of the plea transcript in which Aron told the court that he entered the house at 1526 Oliver Avenue North in Minneapolis on March 29, 2000, with the intention of shooting AP, that he went there with Whitehead and participated with him in the shooting or the pointing of guns at various individuals, and that he “participated in the assault [on] everybody in the house.”

            Both the state and Aron focus only on the plea transcript in making their arguments for and against the sufficiency of the factual basis to establish accuracy.  For purposes of determining the accuracy of a plea, however, a factual basis may be drawn from the full record.  Warren, 419 N.W.2d at 799 (relying on specificity in sworn complaint to establish factual basis in collateral attack of misdemeanor conviction for purposes of sentence enhancement); Trott, 338 N.W.2d at 252 (relying on defendant’s admissions to allegations in criminal complaint to establish factual basis for plea); State v. Hoaglund, 307 Minn. 322, 326-27, 240 N.W.2d 4, 6 (1976) (indicating that sworn complaint, transcript of proceedings, and presentence investigation may be reviewed to establish factual basis for plea).  

            In support of Count IV, the complaint against Aron alleges that Aron’s accomplice, Whitehead, “pointed his pistol at [a] juvenile, victim ‘A.’”  At his plea hearing, Aron admitted more than once that he participated in the shooting with Whitehead.  He also stated that he understood the legal principle of aiding and abetting.  And, as the district court noted, Aron affirmatively stated that he “participated in the assault [on] everybody in the house.”  The combination of the allegations in the complaint and Aron’s testimony provides the necessary link for finding a sufficient factual basis for the charge that Aron aided and abetted the assault on A. 

            We reject Aron’s argument relying on the reversal in Bolinger v. State, 647 N.W.2d 16 (Minn. App. 2002).  In Bolinger the defendant pleaded guilty to a second-degree controlled-substance charge but, in providing a factual basis, testified to the events underlying a separate third-degree charge.  647 N.W.2d at 19.  Bolinger was convicted of the second-degree charge because of confusion over the drug quantities involved in each transaction.  Id. at 21-22.  The confusion resulted in Bolinger being convicted of a crime more serious than his admitted conduct, and we accordingly reversed the denial of his plea-withdrawal petition.  Id.at 22.

            Bolinger is consistent with the central purpose of providing a factual basis to ensure a plea’s accuracy, which is to “protect the defendant from pleading guilty to a charge more serious than he or she could be convicted of if the case went to trial.”  Id. at 21.  Stated another way, the accuracy requirement is “to ensure that the defendant is guilty of a crime at least as serious as that to which he is entering his plea.”  Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974).  It is true that by testifying to shooting AM, Aron admitted to a crime with a greater statutory maximum penalty.  See Minn. Stat. § 609.222, subd. 2 (1998) (providing enhanced penalty for second-degree assault with dangerous weapon if great bodily harm results).  But the admission to assaulting AM was of no consequence.  The conviction was entered for Count IV (assaulting A) not Count I (assaulting AM). 

            The record does not support a claim that Aron was convicted of an offense that was more serious than the charge to which he agreed to plead guilty.  Both the assault on A and the assault on AM were charged as second-degree assaults and Aron’s plea was entered to the charge with the lesser statutory maximum penalty, which was, as the district court noted, “precisely the outcome for which [Aron] had bargained.”  Also, Aron has never denied the allegations contained in Count IV.  Even during the postconviction hearing, Aron stated that he “knew [he] was pleading to [A],” and not AM. 

            The record as a whole supports the district court’s postconviction determination that an adequate factual basis existed for Aron’s plea to Count IV (assaulting A).  The confusion at the plea hearing does not undermine the factual basis for Aron’s plea to Count IV, and it does not result in Aron pleading guilty to a more serious charge.  No manifest injustice resulted from the confusion, and the district court did not abuse its discretion by denying Aron’s postconviction petition to withdraw his guilty plea. 

II

            In his second argument Aron contends that the 10-month upward departure based on aggravated factors was unconstitutional because the facts underlying the departure were not determined by a jury beyond a reasonable doubt and, therefore, the aggravation violated his constitutional Blakely rights.  In its postconviction order, the district court concluded that Aron had withdrawn his sentencing argument by acknowledging that State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005), was binding on the court.  In Houston the supreme court held that cases like Aron’s, not on direct appeal at the time Blakely was decided, were not entitled to benefit from the new rule of criminal procedure established, and that Blakely was not a watershed rule to be applied retroactively.  702 N.W.2d at 273.  But Aron’s concession does not constitute a withdrawal because the federal constitutional issues addressed in Houstonhave not yet been finally resolved by the Supreme Court of the United States . 

Aron advances several arguments why Blakely should be applied retroactively or, in the alternative, why Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), should be viewed as the source of the new rule rather than Blakely, thus entitling Aron to its protections.  The supreme court considered and rejected both of these arguments in Houston, which also binds us.  Therefore, under current law, Aron’s upward departure did not violate his constitutional rights.  Although Aron acknowledges the application of Houston, he properly seeks to preserve the issue for future appeal in the event that the Supreme Court of the United States should rule to the contrary.

Affirmed as modified.