Jeffrey Douglas Law, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA IN COURT OF APPEALS

C1-02-1876

 

Jeffrey Douglas Law, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed June 17, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. K5591362

 

Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55102; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

           

            Appellant argues that the postconviction court abused its discretion by denying his motion to withdraw his plea and by failing to consider mitigating factors justifying a durational sentencing departure.  Because the postconviction court did not abuse its discretion in denying the withdrawal of the adequately supported guilty plea and in imposing the presumptive sentence, we affirm.

FACTS

 

Appellant Jeffrey Law attempted to kill his estranged wife, E.N.  He admitted that he came to her home, argued with her, and threatened to kill her.  He strangled her with his hands and with a bathrobe cord.  He then dragged her down the basement stairs and continued to choke her until she lost consciousness.  Law checked to see if E.N. was still alive.  When she regained consciousness, E.N. went to a neighbor's house, and the neighbor called 911.

On December 21, 1999, Law pleaded guilty to attempted second-degree murder.  There was no plea agreement, and the district court made no promises as to the possible sentence.  Rather, Law and the state agreed that Law's attorney "will argue for a sentence on your behalf, and the state is free to argue for what it wants."  The presumptive sentence for this crime was an executed term of 12 years and 9 months.

Law moved for a downward dispositional departure, and the state moved for an upward durational departure.  The court granted both motions and imposed a stayed sentence of 20 years.  The state appealed, and this court reversed and remanded for resentencing.  On remand, the district court imposed an executed sentence of 12 years and 6 months.

Law then petitioned for postconviction relief, contending that his plea of guilty had not been voluntary, intelligent, or accurate; that there was an insufficient factual basis for his plea; that his defense attorney was ineffective; and that the sentencing court denied Law due process by failing to consider factors that justified a downward durational departure from the sentencing guidelines.  The district court denied Law's petition, and Law appealed.

D E C I S I O N

 

The decision to allow an accused to withdraw a guilty plea is left to the district court's sound discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  A reviewing court will reverse the district court's decision only if the district court abused its discretion.  Id.  The scope of this court's review is limited to determining "whether there is sufficient evidence to sustain the postconviction court's findings."  Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995). 

"[A] criminal defendant[] do[es] not have ‘an absolute right' to withdraw a guilty plea" once entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (quotation omitted).  But a criminal defendant may withdraw a guilty plea, even after sentencing, if the defendant shows that "withdrawal of the plea is necessary to correct a manifest injustice."  State v. Ecker, 524 N.W.2d 712, 715-716 (Minn. 1994) (quoting Minn. R. Crim. P. 15.05, subd. 1). 

"A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent."  Alanis, 583 N.W.2d at 577 (citation omitted).  Upon review of a challenged plea, the court must pay attention to the entire record, not just the record of the plea hearing.  See State v. Loyd, 291 Minn. 528, 531, 190 N.W.2d 123, 125 (1971) (holding that a court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless substantial prejudice exists.).

Accuracy

A plea is accurate if it is "one that demonstrates that defendant is guilty of a crime at least as serious as that to which he is pleading."  Vernlund v. State, 589 N.W.2d 307, 310 (Minn. App. 1999) (citation omitted).  And "there must be sufficient facts on the record to support a conclusion that defendant's conduct falls within the charge to which he desires to plead guilty."  Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237 (1974).

Law argues that his plea was not accurate because he did not intend to kill E.N. when he strangled her, which is a necessary element of the crime.  Law was charged with attempted second-degree murder under Minn. Stat. § 609.17, which provides a person is guilty of attempt when that person, "with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime." Minn. Stat. § 609.17, subd. 1 (1998).

Second-degree murder occurs when a person "causes the death of a human being with intent to effect the death of that person or another, but without premeditation."  Minn. Stat. § 609.19 (1998).  "Intent may be proved by circumstantial evidence including the defendant's conduct * * * and the character of the assault" and "may be inferred from events occurring before and after the crime." Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).

            The record shows that Law admitted strangling E.N. with his hands and choking her with a bathrobe cord until she lost consciousness.  At one point he checked her to see if she was still alive.  He admitted that he understood that by choking E.N. he could have killed her.  Considering the nature of Law's physical acts, the physical vulnerability of the area of the body to which he directed his acts, and the degree of force he used, it is a more than reasonable inference that he intended to kill E.N.  Furthermore, he took a substantial step toward carrying out that intent when he squeezed E.N.'s neck until she lost consciousness.  There was a clear factual basis for Law's plea.

Voluntary and intelligent

A plea is voluntary if it "is not in response to improper pressures or inducements."  Alanis, 583 N.W.2d at 577 (citation omitted).  A guilty plea may be rendered involuntary due to ineffective assistance of counsel.  Ecker, 524 N.W.2d at 718. 

To prevail on a claim of ineffective assistance of counsel, a claimant must show two things: first, that his counsel's performance "fell below an objective standard of reasonableness[,]" and, second, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

The postconviction court found that Law failed to meet his burden of proving that his lawyer's performance was deficient.  Law argues that his attorney's representation was deficient because he told Law that the district court's statement about sentencing "was as close to a guarantee as you could get" and that he would not go to prison if he pleaded guilty.  The postconviction court found that this language was not absolute or coercive, that there was no evidence that Law's attorney told Law what to do, and that Law was also informed that there was still some risk regarding sentencing.

A plea is intelligent if the defendant knows and understands the charges, the rights he or she is waiving, and the consequences of the plea.  State v. Aviles-Alvarez, 561 N.W.2d 523, 526 (Minn. App. 1997), review denied (Minn. June 11, 1997).

            Here, the record shows that Law entered a plea of guilty on December 21, 1999.  Law signed a plea petition and testified at the plea hearing.  Law indicated on the petition that he "[understood] the charge made against [him] in this case" and that he and his attorney "review[ed] each and every line" of the document entitled "Petition to Enter a Plea of Guilty in a Felony Case."  Law answered affirmatively, "Yes, I do," when asked if he understood the nature of the proceeding. 

The prosecutor asked at the plea hearing if Law understood that he had entered a "straight" plea, that the district court would order a presentence investigation, that the district court would "set a sentencing date," and that there would be a "sentencing hearing further down the road."  Law stated on the record that he understood this; and, when asked if he had any questions at all, he replied, "No, I do not."  Law also responded, "Yes, I understand," when asked:

You understand that because it's a straight plea, that there are no other promises, and that [Law's attorney] will argue for a sentence on your behalf, and the state is free to argue for what it wants?

 

            Law argues that he "certainly did not understand that he would be sentenced to 150 months in prison," but there is nothing in the record that indicates that he was told he would not get 150 months in prison.  By contrast, the record shows that in the plea petition Law signed, he stated that he had

been told by [his] attorney and [that he understood] * * * [t]hat the maximum penalty that the court could impose for this crime * * * is imprisonment for 20 years.

 

            The record also shows: (1) that at the time the plea was entered both the district court and counsel were clear that sentencing was separate from the plea; (2) that at the sentencing hearing, four months after Law's guilty plea was entered, both Law's attorney and the state presented arguments for departures from the presumptive sentence; and (3) that, as evidenced in his signing of the Petition to Enter Plea of Guilty in Felony Case document and by his testimony at the plea hearing, Law stated he knew and understood the charges, the rights he was waiving, and the consequences of his plea.

Law fails to demonstrate how he was improperly induced into entering his plea.  There was no plea agreement; there were only hopes for leniency.  Even though his lawyer guessed correctly that Law would get a favorable disposition with the first sentence, it was clear that the sentence was entirely up to the judge.  The record demonstrates that Law's plea was voluntary and intelligently entered and that his defense counsel effectively assisted him in entering the plea.

Resentencing

Finally, Law argues that the district court denied his right to due process by failing to consider mitigating factors that justified a downward durational departure.  When this court reversed Law's stayed sentence, it ruled that a stayed sentence was not appropriate and that the upward durational departure was explicitly tied to the stay.  State v. Law, 620 N.W.2d 562, 566 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  On remand, the district court was instructed to "impose an executed sentence for a duration to be determined as required by law."  Id. 

Despite Law's speculation as to a myriad of reasons the district court did not depart durationally on resentencing, two things are certain: (1) no criminal defendant has a right to receive a departure from the sentencing guidelines; and (2) the duration the court imposed was presumed to be appropriate for Law's crime.  Even if there might be grounds for a departure, whether to depart is within the sentencing court's broad discretion.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Law has suggested grounds that the district court could have considered in mitigation of the presumptively appropriate duration of the sentence, but Law has failed to show how the court abused its discretion by declining to depart.  This court ordinarily will not interfere with the district court's imposition of a presumptive sentence.  State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).

Affirmed.