State of Minnesota, Respondent, vs. Juan Garcia, petitioner, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1184

State of Minnesota,

Respondent,

vs.

Juan Garcia, petitioner,

Appellant.

Filed March 6, 2001

Amundson, Judge

Ramsey County District Court

File No. K6971996

Mike Hatch, Minnesota Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent).

Juan Garcia, Minnesota Correctional Facility, 970 Pickett St. N., Bayport, MN 55003 (pro se appellant).

            Considered and decided by Klaphake, Presiding Judge, Amundson Judge, and Willis, Judge.

AMUNDSON, Judge

            This appeal is from an order denying appellant Juan Garcia's pro se postconviction petition challenging his 1997 sentence for second-degree felony murder.  Because Garcia's claim of vindictive sentencing was known at the time of direct appeal and because it lacks substantive merit, we affirm.

            Appellant Juan Garcia was indicted for first-degree murder and second-degree intentional murder in the February 27, 1997 death of Jorge Martinez.  The state alleged that Garcia, then 19 years old, and a group of friends were executing a plan to rob Martinez.  Garcia's co-defendants pleaded guilty, but Garcia rejected the state's offer of a plea to second-degree intentional murder, insisting that he did not intend to kill Martinez and had committed only second-degree felony murder.

            At Garcia's trial, the court dismissed the count charging second-degree intentional murder.  At Garcia's request, but without opposition from the state, the court submitted a lesser-included offense instruction on second-degree felony murder.  After lengthy deliberations, the jury reported that it was unanimous on one of the counts, but split evenly on the other.  The parties agreed that the court should accept the jury verdict on the one count and suspend deliberations on the other.  The jury then returned a verdict of guilty of second-degree felony murder.

            The state moved for an upward departure from the 180-month presumptive sentence for second-degree felony murder.  The district court sentenced Garcia to 240 months, an upward departure of 60 months.  The court noted that, although "this was an unintentional killing, according to the jury verdict," it was committed with particular cruelty and the victim was particularly vulnerable, adopting the prosecutor's arguments on those two aggravating factors.  The court cited two additional reasons for the departure.  The court also noted the unusual nature of the trial, in which everything "worked to [Garcia's] benefit," but concluded that a longer sentence would not respect the jury's verdict.

            On direct appeal, Garcia challenged the sentencing departure.  This court affirmed, agreeing that the offense was particularly cruel and the victim particularly vulnerable.  State v. Garcia, No. C1-97-2218 (Minn. App. June 30, 1998), review denied (Minn. July 30, 1998)

            Garcia filed a pro se postconviction petition arguing that the upward departure had been imposed to penalize Garcia for exercising his right to a jury trial.  The district court summarily dismissed the petition, ruling that the issues raised had already been considered and decided in this court's opinion in the direct appeal.  This appeal followed.

            This court's scope of review of a denial of postconviction relief is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  The postconviction court's decision will not be disturbed absent an abuse of discretion.  Id.

            The general rule is that issues known or raised at the time of direct appeal will not be considered in a postconviction proceeding.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Although Garcia did not raise the issue of vindictive sentencing in his direct appeal, the issue was certainly known to him.  First, the district court's comments at sentencing, which he now claims exhibited vindictiveness, were known to him.  Second, on direct appeal, Garcia raised the claim that his sentence was "disparate" when compared to those of his co-defendants.  Since Garcia's co-defendants pleaded guilty, this necessarily suggests the claim that Garcia might have been punished for going to trial or for something that occurred at trial.  Finally, at sentencing, the trial court disavowed any intent to circumvent the verdict by imposing a greater departure.  Thus, the question of whether the sentence was a response to the verdict was explicitly raised at sentencing and was therefore known to Garcia and his attorney at the time of the appeal.

            Even if Knaffla did not bar the claim of vindictive sentencing, it fails on its merits.  A presumption of vindictiveness may be appropriate when a longer sentence is imposed following a second trial.[1]   In that situation, the sentencing judge, having been reversed by an appellate court, perhaps has a motive to penalize the defendant.  See Id. (recognizing possible motivation to deter appellate review by lengthening sentence on re-conviction).  But the judge in this case had no motive to retaliate against Garcia for a conviction of a lesser charge.  In fact, the prosecutor did not oppose Garcia's request for an instruction on that lesser charge.

            The court's upward departure was not so great as to disregard the jury's deadlock on the greater offense.  And the court was certainly within its discretion in sentencing Garcia more severely because he shot the decedent.  See State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983) (stating that the risk that the evidence adduced at trial will impact the eventual sentence is a risk that a defendant must be deemed to have accepted).  There is no merit in Garcia's claim of vindictive sentencing.

            Affirmed.

[1]North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S. Ct. 2072, 2080-81 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989)  The Pearce presumption only applies when there is a "reasonable likelihood" that the sentence increase is the product of actual vindictiveness.  Smith, 490 U.S. at 799, 109 S. Ct. at 2205 (1989)