This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-300

Richard Gambino, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 21, 1997

Affirmed

Crippen, Judge

Ramsey County District Court

File No. K1942992

Bradford W. Colbert, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan E. Gaertner, Ramsey County Attorney, Jill E. Fedje, Assistant Ramsey County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.

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

CRIPPEN, Judge

Appellant asserts there are facts in dispute that would entitle him to a postconviction evidentiary hearing. We affirm.

FACTS

Following a plea of guilty, appellant was convicted of second degree and fifth degree controlled substance violations. The longer of his concurrent sentences was for 88 months, based on a criminal history score of four. Nearly two years later, appellant initiated postconviction proceedings, contending that he was entitled to withdraw his plea because of promises made to him by his attorney and the state that were unfulfilled in sentencing. He contends that (a) his attorney promised him a maximum 78-month sentence, based on a criminal history score of three and (b) his attorney promised to submit a motion for a downward departure. The postconviction court denied appellant's petition without conducting an evidentiary hearing.

D E C I S I O N

An appellate court reviews a postconviction proceeding only to determine whether the postconviction court has abused its discretion or made findings that are not supported by sufficient evidence. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The governing statute provides that "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition * * *." Minn. Stat. § 590.04, subd. 1 (1996). But "[i]n the discretion of the court, it may receive evidence in the form of affidavit, deposition, or oral testimony." Id., subd. 3 (1996). "An evidentiary hearing is required only when the post-conviction pleadings place material facts in dispute." Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (citation omitted), review denied (Minn. May 18, 1987).

1. Presumptive sentence. Appellant states in an affidavit that his attorney promised him a 78-month sentence, with advice that he "had a criminal history record under the Minnesota Sentencing Guidelines of three (3) points." He was given four criminal history points in his pre-sentence investigation.

There is no assertion that appellant gave sufficient information to enable his attorney to determine appellant's correct criminal history points. And there is no indication that the attorney suggested a 78-month sentence without tying that result to a determination that appellant had three criminal history points. It was evident both to appellant and to his attorney that a criminal history score was yet to be determined in a pre-sentence investigation. Additionally, appellant signed a plea petition that indicated a maximum penalty of up to 25 years. Finally, at the sentencing hearing appellant testified that he understood that "the Judge hasn't promised you you're going to get anything but the guideline sentence * * * ."

As the postconviction court found, appellant was promised a presumptive sentence and that is what the sentencing court imposed. Appellant has failed to show disputed facts that would require an evidentiary hearing.

2. Downward departure; effectiveness of counsel. In his affidavit, appellant also states that his attorney promised, provided that appellant would enter into a plea bargain agreement with the state and be debriefed by law enforcement authorities, that "the State would join in and agree to a motion for a downward departure in sentencing by 12-to-18 months." Such a motion proceeding never occurred. Appellant does not dispute that he did not furnish information to law enforcement. Rather, he asserts that he has been willing to give that information but was never asked. And appellant acknowledges in the trial transcript that he was only given assurances that the court would "consider" a downward departure.

Appellant contends that the trial court never considered a downward departure because his attorney failed to act. But any deficient conduct by appellant's attorney is pertinent only if "the result of the proceeding would have been different" if the attorney had acted on alleged promises. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068 (1985)). As the postconviction court found, because appellant stated (a) the trial court only promised consideration of the downward departure, and (b) there was no disclosure of information to the state, appellant has failed to show facts sufficient to support a finding that a downward departure motion would have produced a different result.

Affirmed.