This opinion will be unpublished and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

A06-1032

 

 

George Wilson Overturf, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed ­­­May 8, 2007

Affirmed

Dietzen, Judge

 

Ramsey County District Court

File No. K2-96-0009

 

John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard, Suite 315, St. Paul, MN 55102; and

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Hudson, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the denial of his petition for postconviction relief, arguing that he did not knowingly, intelligently, and voluntarily waive his right to be sentenced under the guidelines and did not receive effective assistance of counsel.  We affirm.

FACTS

In December 1995, appellant George Wilson Overturf had dinner with two of his brothers at a local restaurant.  Following dinner, the three brothers walked to the parking lot, and entered separate cars.  Spontaneously, appellant expressed anger at one of his brothers for having an alleged affair with his ex-wife 13 years previously.  Appellant then retrieved a gun from his car and shot his brother in the back, which seriously injured him.  After his arrest, appellant stated that he was angry at his brother over the alleged affair and had planned to kill his brother and then himself.   

Appellant was charged with second-degree attempted murder, which carried a presumptive sentence of 153 months, but the charge was later amended to first-degree attempted murder, with a presumptive sentence of 180 months.

In March 1996, appellant and the state entered into an agreement in which appellant agreed to plead guilty to first-degree assault, and in exchange the state agreed that appellant be sentenced to 150 months, which was an upward departure.  At the hearing, the following exchange occurred:

[Defense counsel]: [Y]ou heard me state to the judge what the plea agreement was in this case, and that was to amend the charge to assault in the first degree and that there was going to be an upward departure in terms of sentencing in this matter to something that looks like approximately 150 months; is that your understanding of what’s happening here?

 

[Appellant]:  Oh, I thought it would be less than that, but I’m not sure.

 

[Defense counsel]:  Well, 150 months is the actual sentence, and then we talked about the issue of good time when you’re actually incarcerated, and to – in terms of what we figured out for time to serve, it’s about eight years, maybe a few months more.

 

[Appellant]:  Um-hum.  But it could be less than that, couldn’t it?

 

[Defense counsel]:  No, we’re not expecting it to be less than that.  Now, you and I talked about trying to get an agreement for seven years, but I indicated to you that neither the state is open to that nor the judge at this time, so this is the agreement that they’re willing to offer.  And it’s my understanding also that you understood that, if you continued, you should ask any questions about it right now, because it looks like the sentence is going to go to be about 150 months, which, with good time, will be about 80 months to serve; do you understand that?

 

[Appellant]: Okay.  Yeah.

 

Appellant pleaded guilty to first-degree assault and received an executed sentence of 150 months. 

Appellant did not file a direct appeal. In October 2005, appellant filed a postconviction petition, challenging his sentence.  The district court denied the petition in April 2006.  This appeal followed.

D E C I S I O N

I.

Appellant challenges the postconviction court’s conclusion that he knowingly, intelligently, and voluntarily entered a plea waiving his right to be sentenced under the sentencing guidelines.  A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000).  This court reviews the postconviction court’s decision only to determine whether sufficient evidence supports the court’s findings and overturns the decision only if the court abused its discretion.  Id. 

            At the time of appellant’s guilty plea, a defendant could waive his right to be sentenced under the sentencing guidelines if the waiver was “knowing, intelligent, and voluntary.”  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  Subsequently, our supreme court held that a plea agreement, standing alone, was not a sufficient basis to depart from the sentencing guidelines.  State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002).  But Misquadace was not applied retroactively and by its own terms applies only to “pending and future cases.”  Id.  Appellant’s 1996 conviction became final well before Misquadace was decided. 

            The district court found that appellant made a knowing, intelligent, and voluntary waiver of his rights.  It found that “[u]nder the circumstances presented in this case, there is no question but that the defendant was fully advised of all his rights, knew that the sentence imposed was an upward departure from the sentencing guidelines, and knew what his sentence would be.” 

            Appellant argues that the exchange with his attorney at the plea hearing supports his contention that he was confused about his sentence.  But the record shows that appellant’s attorney stated to him that “[n]o, we’re not expecting it to be less than that,” and that although appellant had sought a lower sentence, it was not accepted by the prosecutor.  The district court found that appellant’s statements demonstrated a “hope[] that he might serve less time” rather than any confusion about his sentence.  On this record, the district court was within its discretion to find that the waiver was knowing, intelligent, and voluntary.

Essentially, appellant traded a 180-month sentence (if convicted) for a 150-month sentence under the plea agreement.  And given his admission that he intended to kill his brother, conviction seemed likely.  Thus, although the 150-month sentence is an upward departure from the presumptive 86-month sentence for first-degree assault under the guidelines at the time, it is less than the 180-month sentence he would have received if convicted of attempted murder.

II.

Appellant argues that he was deprived of the effective assistance of counsel.  A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).  There is a strong presumption that counsel’s performance falls within the range of reasonableness, and a defendant cannot prevail on a claim of ineffective assistance of counsel unless the defendant was prejudiced as a result of the errors.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).    

            In order to support a claim of ineffective assistance of counsel, petitioner must allege facts that demonstrate “(1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s errors, the result of the . . . trial would have been different.”  Hummel, 617 N.W.2d at 564 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).  In denying appellant’s postconviction petition, the court held that appellant failed to set forth any facts in support of his argument and that he was not entitled to relief. 

            Appellant argues that he was deprived of the effective assistance of counsel because he was not advised that a presumptive sentence for first-degree assault is 86 months and his plea agreement was 150 months.  The crux of his argument is that he would have never agreed to 150 months if he had known that the presumptive sentence for first-degree assault was 86 months.

            But appellant’s argument misconstrues the plea agreement.  Specifically, the plea agreement provided that the state would reduce the charge from attempted first-degree murder to first-degree assault in exchange for his agreement to plead guilty to the charge and receive a sentence of 150 months.  Thus, the proper comparison is the presumptive sentence for attempted first-degree murder, not first-degree assault.  If appellant had rejected the plea agreement and been convicted of attempted first-degree murder, the presumptive sentence was 180 months.  Consequently, appellant received a significant benefit by agreeing to plead guilty to a lesser charge.

            Appellant also argues that his counsel missed an appointment with him prior to the guilty plea hearing.  But as his brief concedes, they did meet before the hearing.  And appellant has not demonstrated any prejudice as the result of the delayed meeting that affected the quality of his representation.  Cf. Clark v. State, 698 N.W.2d 173, 178 (Minn. App. 2005) (affirming denial of motion to substitute counsel where defendant alleged that attorney “never” came to see him, but was present at appearance two months before the trial, noting “[a]t a minimum, Clark and his appointed attorney had an opportunity to discuss his case at that appearance”).

            Appellant also alleges that counsel’s assistance was ineffective because she did not object to the prosecutor’s attempt to “try to extend [his] guilty plea to other charges.”  But neither the guilty-plea transcript nor the sentencing transcript reflects an attempt by the prosecutor to charge appellant with additional crimes. 

On this record, appellant has not shown that counsel’s performance fell below an objective standard of reasonableness or that the result would have been more favorable had counsel acted differently.  Therefore, the district court’s rejection of appellant’s postconviction petition was not an abuse of discretion.

Affirmed.