State of Minnesota, Respondent, vs. Heriberto Cuellar Jr., Appellant.

State of Minnesota, Respondent, vs. Heriberto Cuellar Jr., Appellant. A05-2456, Court of Appeals Unpublished, November 7, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2456

 

 

State of Minnesota,

Respondent,

 

vs.

 

Heriberto Cuellar Jr.,

Appellant.

 

 

Filed November 7, 2006

Affirmed
Crippen, Judge*

 

Steele County District Court

File No. K0-05-35

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Douglas L. Ruth, Steele County Attorney, Daniel A. McIntosh, Assistant County Attorney, 303 South Cedar, Owatonna, MN  55060 (for respondent)

 

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

 

 

            Considered and decided by Ross, Presiding Judge, Dietzen, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant Heriberto Cuellar Jr. pleaded guilty to first-degree conspiracy to commit sale of a controlled substance.  He contends that the district court erred when it refused to grant a downward dispositional departure from the Minnesota Sentencing Guidelines presumptive sentence, asserting that the "overwhelming evidence of his amenability to probation" required such a departure.  We affirm.   

FACTS

            Appellant was charged with first-degree conspiracy to commit a controlled-substance crime in violation of Minn. Stat. §§ 152.021, subd. 1(1), 152.096 (2004), and additional offenses of unlawfully possessing a firearm and possessing a controlled substance.  At a June 1, 2005 settlement conference, appellant agreed to plead guilty to the conspiracy charge in exchange for dismissal of the three other charges against him.  Appellant fully executed and signed a petition to enter a plea of guilty.  On the record at the plea hearing, defense counsel discussed with appellant the constitutional rights he was waiving, his plea petition, whether he felt he had had adequate time to discuss his plea with defense counsel, and the likely 98-month presumptive sentence. 

            Appellant argues that this court should reverse the district court's imposition of the presumptive sentence and failure to grant a downward dispositional departure because there was overwhelming evidence of his amenability to probation that the district court failed to adequately consider.  On his amenability, he points to evidence of his minimal criminal history; his cooperation and remorseful attitude since his arrest; the fact that his mother relocated from Texas to Minnesota to support him in his efforts at rehabilitation; his successful participation in Alcoholics Anonymous, Narcotics Anonymous, and anger management and parenting classes during his eight months in jail while awaiting sentencing; and his willingness and ability to accept further treatment for his addictions.  Appellant also points to the absence of aggravating circumstances, noting that his crime was non-gang related, nonviolent, victimless, and committed only out of financial necessity.  The district court heard these arguments from defense counsel at the sentencing hearing.  Then, without articulating its reasons for doing so, the district court rejected appellant's arguments and required execution of the 98-month presumptive sentence.

D E C I S I O N

1.

The district court must order the presumptive sentence unless the case involves "substantial and compelling circumstances" that warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  And only in a "rare" case will a reviewing court reverse a district court's imposition of the presumptive sentence.  Id. 

There are no compelling circumstances in this case that permit us to interfere with the district court's exercise of its discretion.  Although there are factors on which the district court could have chosen to base a downward departure, the record also supports imposition of the presumptive sentence.  The district court did not abuse its discretion in imposing that sentence.  See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) ("The fact that a mitigating factor was clearly present did not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.  We have indicated in numerous cases that we generally will not interfere with a trial court's refusal to depart downward . . . .").

Although the district court would have been required to comment or make findings if it had departedfrom the presumptive sentence, "an explanation is not required when the court considers reasons for departure but elects to impose the presumptive sentence."  State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985); State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).  The district court convened a sentencing hearing and heard arguments from the prosecution and from the defense.  There is no evidence that the court failed to give due consideration to potential mitigating factors before ordering the presumptive sentence.       

2.

Appellant raises several issues in his pro se supplemental brief, none of which affect our disposition.  Thus, he argues that his plea is invalid because he was under the impression that he was to receive a downward departure.  Althoughhe may have believed that he would be granted a downward departure, there is nothing in the record suggesting that he was promised a departure by defense counsel, the prosecution, the district court, or others connected to the proceedings.  And the fact that appellant had an opportunity to consult with counsel about his case, his plea, and his plea petition raises a presumption that he was fully informed of his rights.  See State v. Propotnik, 299 Minn. 56, 5758, 216 N.W.2d 637, 638 (1974); State v. Doughman, 340 N.W.2d 348, 353 (Minn. App. 1983), review denied (Minn. Mar. 15, 1984); see also State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983)("[D]efendant's claim that he was promised probation by defense counsel was negated by the petition he signed [and] by the statements he made at the time he entered his plea . . . .").  Appellant has provided no reason to question his declaration in his plea petition or his acknowledgment on the record that he submitted his plea knowingly and voluntarily.   

Appellant also makes a number of assertions regarding the legality of the search of his apartment and of his arrest, all of which were waived by his knowing and voluntary plea.  See State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986) (stating that a defendant who pleads guilty generally waives all nonjurisdictional defects arising before the entry of the plea, including Fourth Amendment claims).  We have no occasion to consider them on appeal. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.