This opinion will be unpublished and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

A06-817

 

Armando Garibay Jaramillo, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed May 22, 2007

Affirmed

Shumaker, Judge

 

Carver County District Court

File No. K3-01-001250

 

 

Kai J. Lahti, P.O. Box 240358, Apple Valley, MN 55124-0358; and

 

Manuel P. Guerrero, 148 Farrington Street, St. Paul, MN 55102 (for appellant)

 

Lori Swanson, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael A. Fahey, Carver County Attorney, Peter A.C. Ivy, Michael D. Wentzell, Assistant Carver County Attorneys, Carver County Courts Building, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant pleaded guilty to murder in the second degree for the benefit of a gang.  He later moved to withdraw his plea on the grounds that the requisite factual basis had not been established in that he never admitted the essential element of intent and that his defense attorney’s assistance was ineffective.  The district court denied the motion.  Because appellant sufficiently acknowledged his intent in committing the crime and because he had the benefit of the effective assistance of counsel, we affirm.

FACTS

            Appellant Armando Garibay Jaramillo was a member of a street gang known as the Latin Kings.  On July 4, 2001, he learned that a fellow gang member, Luis Sifuentes, had been involved in a fight with some Asian gang members and that Sifuentes wanted Jaramillo to meet him and other Latin Kings to “help him try to settle things.”

            The meeting site was a trailer park in Chaska.  Jaramillo went there and brought a loaded .22 caliber pistol with him.  He was familiar with guns, having been around them and shot one once before, and he knew guns could kill people.  When he went to the meeting site, he was prepared to use the gun to kill someone if he had to.

            Jaramillo met Sifuentes and others, and the group went to confront the Asians.  Soon a fight broke out, and Jaramillo drew his gun.  As the fight progressed, Jaramillo shot the gun four to six times into a group of Asians.  One of the Asians was struck with a bullet and later died from the wound.

            The state charged Jaramillo with first-degree murder, first-degree murder for the benefit of a gang, second-degree intentional murder, and second-degree intentional murder for the benefit of a gang.  Ultimately, Jaramillo agreed to plead guilty to second-degree intentional murder for the benefit of a gang in exchange for the dismissal of the other charges.  The district court accepted the plea and sentenced Jaramillo to imprisonment for 318 months.

            In 2005, Jaramillo moved to withdraw his plea of guilty.  He claimed that his plea was not knowingly, voluntarily, and intelligently entered and that his defense attorney’s assistance was ineffective.

            After an evidentiary hearing, the district court denied the motion, ruling that Jaramillo properly entered his plea, admitted the essential elements of the crime of which he was convicted, and received effective and “exemplary” legal representation from his attorney.

            Contending that the district court abused its discretion in denying his motion to withdraw his plea, Jaramillo brought this appeal.

D E C I S I O N

            An appellate court reviews a postconviction petition only to determine whether sufficient evidence sustains the postconviction court’s findings.  Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).  The district court’s decision will not be disturbed absent an abuse of discretion.  Id.  “Determining what the parties agreed to in a plea bargain is a factual inquiry for the postconviction court to resolve.”  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).  However, the interpretation and enforcement of plea agreements involve questions of law, which are reviewed de novo.  Id.

Upon a timely motion, a defendant may withdraw a guilty plea at any time, before or after sentencing, if “withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.”  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  The validity of a guilty plea is a question of law.  See State v. Newcombe, 412 N.W.2d 427, 431 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  A constitutionally valid guilty plea has three requisites; the plea “must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  An accurate plea primarily protects “the defendant from pleading guilty to a more serious offense than he could properly be convicted of at trial.”  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  A plea is voluntary if it is not made in response to improper pressures or inducements.  Alanis,583 N.W.2d at 577.  The intelligently made requirement is designed to insure that the defendant understands the charges, the rights he is waiving, and the consequences of the guilty plea.  Brown, 449 N.W.2d at 182. 

Basis of Plea of Guilty        

            Jaramillo contends that his plea of guilty was defective because it did not contain his admission of the essential element of intent, but rather was a “de facto Alford/Goulette plea.”

            Intentional second-degree murder, to which Jaramillo pleaded guilty, requires proof that the accused caused “the death of a human being with intent to effect the death of that person or another, but without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (2000) (emphasis added).  Intent is proved when it is shown that the accused “either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2000).

            In his postconviction hearing, Jaramillo testified that, had he been asked at the plea hearing if he intended to kill the victim, he would have answered, “No.”

            At the plea hearing, Jaramillo told the court that he intended to plead guilty “to the charge of murder in the second degree, that being an intentional felony committed for the benefit of a gang . . . .”  He gave sworn testimony that he reviewed with his attorney his “Petition to Enter Plea of Guilty” and that he understood the petition, which recited, among other things, “I understand that I have been charged with the crime(s) of Homicide 2nd degree w/intent.”  He testified that he was a gang member and that he went to the site of the shooting to help another gang member.

            Jaramillo testified that he had a gun that he carried for protection, that he knew guns could kill people, and that he “and other members of the gang carried guns and would use them to kill someone . . . ” if they had to.  He knew there would be a confrontation with the Asian gang.  He testified that during the confrontation he took out his loaded gun and he “shot the gun at the group of Asian kids.”

            His attorney then focused on “what it means to commit intentional murder . . . .”  She referred to the evidence, which showed that the gun was fired four to six times, and to what witnesses would say if there were a trial.  Jaramillo testified that he fired the gun because he was afraid, and he acknowledged the likelihood that a jury “would think you intentionally fired the gun trying to kill at least one of those people.”

            Then his attorney asked: “And we’ve talked about the fact that when someone shoots a gun, for 5, 6 times at a group of people, that pretty much indicates that they’re intending, that a person, you in this case, were intending to try to kill someone, right?”  Jaramillo replied, “Yes.”  (Emphasis added.)

            At the postconviction evidentiary hearing, Jaramillo’s expert witness testified that Jaramillo failed to enter a valid Alford plea.  Based on North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), “a trial court may accept a plea of guilty by an accused even though the accused protests that he is innocent” if there is a factual basis upon which a jury could find the accused guilty and his plea is otherwise a rational one. State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977).

            At no time was Jaramillo’s plea offered under Alford or Goulette.  He never stated or intimated that he was not guilty of second-degree murder and, in fact, expressly stated in the plea petition that he signed that “I now make no claim that I am innocent.”  Citing a portion of the plea hearing in which defense counsel reviewed some of the evidence against Jaramillo and how a jury might view that evidence, Jaramillo concluded that his defense counsel was attempting an Alford/Goulette plea.  Although for that type of plea, a review of inculpatory evidence would be essential, such a review is not limited to Alford/Goulette situations.  It is equally appropriate to reveal the inculpatory evidence to provide a context for an admission of guilt.  That is what defense counsel did here.

            It is apparent that defense counsel discussed with Jaramillo the essential element of intent and then called his attention to the discussion when she noted that shooting a gun five or six times into a group of people indicates that “you in this case, were intending to try to kill someone, right?”  Jaramillo agreed that, when he shot five or six times into a group of people, that indicated that he was intending to kill someone.

            The strained reading that Jaramillo gives to this exchange is at odds with the repeated references by the court, counsel, and Jaramillo himself, to the intentional nature of the crime to which he pleaded guilty.  Ideally, he might have been asked if he believed that shooting four to six times into a crowd of people would kill someone.  That question would have more clearly tracked the particular language of the second-degree murder statute.  But his adoption of his attorney’s description of intent, when considered in the entire context of the plea, and not in isolation, was a sufficient admission of the essential element of intent to satisfy the factual basis of his plea of guilty.

Intelligence of Plea

            Jaramillo next argues that his plea was not intelligent because he did not understand the rights he was waiving.  He specifically avers that he was not advised of the defense of self-defense or defense of others.  When a defendant is represented by counsel, it is presumed that he has been informed of the nature of his offense and his alternatives.  State v. Lyle, 409 N.W.2d 549, 552 (Minn. App. 1987).  Jaramillo also argues that he was not aware of the relevant circumstances of the plea, that he was not made aware of the evidence in the case, and that his counsel failed to hire an investigator or to properly question witnesses or to obtain expert forensic testimony. 

            During the plea, the district court asked Jaramillo whether he had sufficient time to consult with his attorney.  Jaramillo stated on the record that he had talked several times with his attorney, that they had discussed options and alternatives, and that he had no other questions.  During the plea, the court noted that Jaramillo’s attorney had spent “some considerable time with [him] and [his] family in not only talking about the offense and the rights that [Jaramillo has] concerning the . . . factual basis or what we believe occurred that led to the death of the victim in this case.”  Jaramillo agreed with this assessment, and specifically stated, for the record, that he understood the rights he was waiving, including the right to confront witnesses, the right to remain silent, and the right to a claim of self-defense or defense of other people.  He conceded that he understood the affirmative defenses, that the general public has a different understanding of what self-defense means, and agreed that his attorney and he had discussed the legal requirements of self-defense.  Because Jaramillo stated specifically on record that he understood that by pleading guilty he was giving up affirmative defenses, he cannot now argue that his plea was not intelligent because he was not aware of these defenses.   If a plea of guilty is to have any effect, we must be able later to hold the accused to the clear statements made on the record in support of the plea.

Ineffective Assistance of Counsel

            Jaramillo also claims that he was denied the effective assistance of counsel because his attorney failed to conduct a thorough investigation, and she wrongly advised him about possible defenses as well as his lack of specific intent as to first- and second-degree murder.

            A claim of ineffective assistance of counsel requires that Jaramillo show that (1) his defense counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  “The reviewing court considers the totality of the evidence . . . in making this determination[] [and] need not address both performance and prejudice prongs if one is determinative.”  Rhodes, 657 N.W.2d at 842 (citation omitted).  A strong presumption exists that counsel’s performance “falls within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).  

            Jaramillo alleges that his attorney failed adequately to investigate the incident.  However, he does not show that further investigation would have produced favorable evidence, or that his attorney’s conduct fell below a reasonable standard as a result.   See Gustafson v. State, 477 N.W. 709, 713 (Minn. 1991) (stating it is in trial counsel’s discretion to forgo investigation that is unlikely to produce favorable evidence).  He also makes no argument that the outcome of his case would have been different if an investigation had been conducted, thereby failing to show that he was prejudiced by the lack of investigation.  Rhodes, 657 N.W.2d at 842.

            Jaramillo also argues that his attorney made unreasonable strategic choices and failed to advise him about self-defense and defense of others.  However, at his plea hearing, Jaramillo specifically stated that he had been advised of such defenses.  Having already told the court that he discussed with his attorney self-defense and defense of others, Jaramillo cannot now allege that he would not have pleaded guilty had he known of these defenses.  Moreover, there is a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance, and Jaramillo has failed to counter this presumption by pointing to any specific errors in his attorney’s representation.  See Pierson,637 N.W.2d at 579.  Because the postconviction court was in a better position to assess Jaramillo’s assistance-of-counsel claims and noted that his “representation was not merely effective, it was exemplary,” we find nothing in the record that would justify a different conclusion. 

Manifest Injustice    

            Finally, Jaramillo argues that “[e]ven if no single error rises to the level justifying relief, the cumulative errors created a manifest injustice requiring relief.”   He reiterates the factors discussed previously, and he also states that undue pressure was placed on him to plead guilty without sufficient analysis or investigation of his case and that he feared he would not receive a fair trial.  He presents no new support for these contentions and instead attempts to reemphasize his arguments that there was no factual basis for the plea, that he did not understand the plea, and that the state did not prove the essential elements of the plea beyond a reasonable doubt.  Because Jaramillo’s defense counsel competently represented him and he knowingly, intelligently, and voluntarily pleaded guilty to second-degree murder, we affirm the postconviction court’s denial of his petition for relief. 

            Affirmed.