Douglas Welch, 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This opinion will be unpublished and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

A03-111

 

 

Douglas Welch,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed August 26, 2003

Affirmed
Forsberg, Judge*

 

Hennepin County District Court

File No. 97096972

 

 

Douglas Welch, #185149, MCF/Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Judith Hawley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            In challenging an order denying postconviction relief stemming from his 1998 conviction and sentence for second-degree intentional murder, appellant argues that (1) his guilty plea was invalid because he stated on the record that it was not voluntarily and intelligently entered; (2) he was denied the effective assistance of counsel; (3) the court erred in imposing the agreed-upon upward departure without providing written reasons for the departure; and (4) the state public defender rendered ineffective postconviction assistance.  Because we find no error, we affirm.

FACTS

            Appellant Douglas Welch, a/k/a Al-Hakim Shakur, shot and killed Ilka Mondane on September 29, 1997.  He was indicted on one count of first-degree murder and one count of second-degree murder and entered a plea of guilty to second-degree murder under a plea agreement.  At his guilty plea hearing, appellant testified that he had traveled to Mondane's residence that evening accompanied by two women and was followed by another vehicle driven by Tammy Ewing.  Upon arriving in the alley near Mondane's residence, appellant and Mondane engaged in an argument.  Ewing left her vehicle and gave appellant a handgun.  With the handgun in his possession, appellant continued to argue with Mondane.  As appellant turned to leave, Mondane said something that angered him and he turned, pointed the gun at her head, and shot her.  Appellant admitted that he intended to kill Mondane. 

            Pursuant to the plea agreement, appellant agreed to an upward departure to 468 months (39 years).  During the plea hearing, counsel for appellant inquired as to the details of the negotiation.  Throughout the inquiry, appellant testified that he understood the terms of the negotiation, including the fact that the negotiated sentence constituted an upward departure and that he would be required to serve two-thirds of the 39-year sentence.

            Before accepting the guilty plea, the district court inquired as to whether appellant was "doing this voluntarily."  Appellant responded "No," and later asked, "What you mean, voluntarily?"  The judge responded:

Well, I understand you wish you were not charged with a crime, and I understand that you, you know, would rather not be here, but in light of the situation you're in, do you think

 

* * * *

 

---- you're doing the best thing?

 

Appellant responded "yes."  After briefly inquiring further, the judge asked a second time whether appellant's plea was voluntary, and appellant responded that it was.

            Following a presentence investigation, the district court imposed a sentence of 468 months in prison pursuant to the negotiated plea agreement, and directed appellant to serve a minimum of 312 months.  In December 2002, Welch petitioned for postconviction relief asserting that (1) the sentence is invalid because it exceeds the guidelines for second-degree murder, and (2) he did not receive effective assistance of counsel.  Without an evidentiary hearing, the district court denied the petition for postconviction relief, and this appeal followed.

D E C I S I O N

            Appellant argues that the decision of the postconviction court was in error.  On review, "[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).

            First, appellant's argument that his plea was not entered into voluntarily contradicts his own testimony at the plea hearing.  A plea is voluntary if not in response to improper pressures or inducements.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  Although appellant initially responded that he was not entering his plea voluntarily, the record demonstrates that he was unclear as to the meaning of the word "voluntary" as used by the court.  The court clarified the question and asked appellant if he was threatened into entering the plea.  Appellant responded "no."  Furthermore, appellant responded that he understood everything that was happening at the hearing.  After this inquiry, appellant was asked a second time if his plea was voluntary, and he responded that it was.

            Second, appellant states that his plea was not intelligently entered into, but fails to offer an argument to support this contention.  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 from the guilty plea hearing shows that appellant entered a plea of guilty on February 23, 1998.  Appellant indicates both on the plea petition and in his testimony at the plea hearing that he and his attorney reviewed each and every line item of the document entitled "A Petition to Enter Plea of Guilty" in a felony case.  The document contained specific language whereby appellant admitted that he understood the charges against him, his rights, and the consequences of his signing the document.  Additionally, the record shows that at the hearing, appellant understood the nature of the proceedings.  Nothing in the record indicates that the plea was not intelligently entered.

Third, an attorney's performance is presumed to be effective unless "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."  State v. Powell, 578 N.W.2d 727, 731-32 (Minn. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984)). The Strickland standard applies to pleas as well as trials.  Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369-70 (1985).

A postconviction court's rulings on a claim for ineffective assistance of counsel are reviewed under an abuse of discretion standard.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  To prevail on a claim of ineffective assistance of counsel, a claimant must show two things: first, that counsel's performance fell below an objective standard of reasonableness and, second, that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

Appellant bases his argument, in part, on claims that he notified counsel that he did not intend to kill the victim and that this was not brought to the court's attention.  However, at the guilty plea hearing, when asked if he intended to kill the victim, appellant's response was "Yes."  Furthermore, the record indicates that counsel fully explained the plea agreement, the negotiated sentence, and the upward departure from the normal second-degree murder sentence.  There is nothing in the record that indicates appellant received ineffective assistance of counsel.

Fourth, appellant argues that the sentence was improper because the record did not include an explanation or reasoning for the departure.  There is authority in Minnesota for the proposition that an upward durational departure must be supported by aggravating circumstances present in the record.  See State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (holding that without aggravating circumstances, district court is without authority to depart upward).  Implicitly, this means that a plea agreement alone is insufficient, even though a plea agreement was not involved in that case.  The supreme court has held that a plea agreement by itself "is not a sufficient basis to depart from the sentencing guidelines." State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002).  Every departure, therefore, must be supported by substantial and compelling circumstances.  Id. 

            But the Misquadace court also held that retroactive application of this holding was not required.  Id.  Instead, the court limited "application of the ruling to this case and to pending and future cases."  Id.  Subsequently, in considering whether a case was pending, the supreme court held that a case that was on appeal when Misquadace was released will be considered "not yet final and [therefore] ‘pending,' in the sense that we have generally used that term."  State v. Lewis, 656 N.W.2d 535, 538 (Minn. 2003); see also State v. Sanchez-Sanchez, 654 N.W.2d 690, 693 (Minn. App. 2002) (holding that Misquadace applied where time to file direct appeal had not expired when Misquadace was released and defendant timely filed her appeal thereafter).  Here, appellant was sentenced March 16, 1998, and his case was not "pending" because there were no active proceedings in existence when Misquadace was released.  As a result, reliance on Misquadace is not appropriate.

            Under the pre-Misquadace case law applicable here, the plea agreement itself could support a departure.  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  The district court in this case specifically noted that the sentencing was a departure pursuant to a plea bargain.  Based on the law in effect at the time of sentencing, the district court did not abuse its discretion by sentencing appellant to the prison term his plea agreement specified.

Finally, appellant argues that the state public defender's office rendered ineffective postconviction assistance by reviewing the pro se petition without conducting any investigation or interviewing appellant.  Minnesota law requires that when a postconviction petitioner is without counsel, the court administrator is to send the public defender a copy of the petition.  Minn. Stat. § 590.02, subd. 1(4) (2002).  In a letter to the district court dated February 6, 2003, the public defender's office acknowledged receipt of a copy of appellant's pro se postconviction petition in which he asked for appointment of counsel.  On February 25, 2003, appellant received a letter from the public defender indicating that his petition had been reviewed and that the matter had been submitted to the district court for a decision.  As such, appellant's claim lacks substance.

            In order to show ineffective assistance of counsel, an appellant must show that counsel's performance fell below an objective standard of reasonable assistance and that there is a reasonable probability that but for the error(s) the outcome would have been different.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  Appellant has not shown what new claims postconviction counsel should have raised or how counsel should have further developed appellant's pro se claims.  And he has not shown that any of those claims, if raised or further developed, would have prevailed.  Therefore, appellant has not met either prong of the two-prong test for ineffective assistance.

Affirmed.

 

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