Randy L. Peterson, 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This opinion will be unpublished and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

A04-432

 

Randy L. Peterson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed November 9, 2004

Affirmed Randall, Judge

 

 

Hennepin County District Court

File No. 02-08-7096

 

 

John M. Stuart, State Public Defender, Philip Marron, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

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

 

 

            Considered and decided by Minge, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge,

On appeal from the district court's denial of his postconviction petition for relief without an evidentiary hearing, appellant argues that he is entitled to an evidentiary hearing to make a proper determination of whether his guilty plea was knowingly entered.  In his petition for postconviction relief, appellant argued that he was entitled to withdraw his guilty plea because imposition of the mandatory five-year conditional-release term made his sentence more severe than what he was promised.  We find the district court did not abuse its discretion by denying the petition without an evidentiary hearing.  We affirm.

FACTS

            Appellant was charged with felony driving while intoxicated in October 2002.  Appellant had three prior driving-while-intoxicated convictions from 1993, 2000, and 2002.  On December 19, 2002, appellant, represented by counsel and on the record, tendered a straight plea to the court.  At the time of sentencing, the court accepted the straight plea and downwardly departed to a stayed sentence of 75 months.  Though the court had reservations about a downward departure, given appellant's failure in previous attempts at treatment, ultimately it followed the recommendations of appellant's probation officer and gave appellant another chance at treatment.

            During the plea and sentencing hearing appellant was notified of the mandatory five-year conditionalrelease term. 

THE COURT:

I also need to notify you that in the event you violate your probation on this case and your prison sentence is executed, there is a five-year period of conditional release that would be imposed by the statutes once you are released from the institution.

 

THE DEFENDANT:

Okay.

 

            On April 2, 2003, the report of an arrest and detention order was filed by appellant's probation officer, alleging failure to return from a work furlough and an arrest for felony terroristic threats, gross misdemeanor interfering with an emergency telephone call, and misdemeanor obstructing legal process or arrest.  On April 23, 2003, appellant appeared in court, represented by counsel.  Appellant waived his right to a contested hearing and admitted the violations.  The state and appellant's probation officer requested that appellant's sentence be executed.  The court executed appellant's sentence and again informed appellant of the five-year conditional-release term:  "As I told you at the time of sentence, there is also a five-year conditional release once you complete the supervised release period that the Department of Corrections does supervise you once you have completed your term in the institution."

            On September 15, 2003, appellant filed a pro se Petition for Post Conviction Relief alleging:  (a) ineffective assistance of both trial counsel and counsel present at the probation-revocation hearing; (b) no basis for the revocation; and (c) a variety of other sentencing violations.  In addition, he requested that he be allowed to withdraw his guilty plea, that his sentence be reduced to comply with the guidelines, that the state public defender be appointed to represent him, and that the matter be heard by the Chief Judge of Hennepin County.  Appellant subsequently obtained the services of the State Public Defender's office.  On December 17, 2003, appellant, through counsel, submitted a supplemental brief.  The supplemental brief stated that appellant wished to pursue only the request to modify his sentence and to withdraw his plea, and that appellant no longer wished to pursue any of the remaining claims stated in the pro se petition.

            On January 13, 2004, the district court issued its Order and Memorandum on the Petition for Post Conviction Relief.  The district court denied appellant's request to withdraw his plea, but did grant appellant's request to modify his sentence.[1]  The district court found that the record included sufficient evidentiary basis for its conclusion and that no evidentiary hearing was required. 

D E C I S I O N

            A petitioner who seeks postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts alleged in the petition.  Minn. Stat. § 590.04, subd. 3 (2002).  Review of postconviction proceedings is limited to determining whether the record contains sufficient evidence to sustain the findings of the postconviction court.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Absent an abuse of discretion, a postconviction court's decision will not be disturbed.  Id.  But interpretation and
enforcement of plea agreements involve issues of law, which appellate courts review de novo.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

Appellant argues that he is entitled to an evidentiary hearing to determine whether he was properly informed of the statutorily mandated five-year conditional-release period before entering his guilty plea. 

A postconviction court is not required to hold an evidentiary hearing unless there are material facts in dispute that must be resolved in order to determine the postconviction claim on the merits.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  An evidentiary hearing is "not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief."  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  On review of a postconviction court's denial of a petition for postconviction relief, without an evidentiary hearing, any doubts about whether a hearing is required are resolved in favor of the petitioner.  Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003).  An evidentiary hearing is not required "if the petition, files, and record conclusively show that the petitioner is entitled to no relief."  Id.  The petitioner's allegations must be "more than argumentative assertions without factual support." Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). 

Appellant relies on both his postconviction affidavit and the record to support his argument.  Appellant argues that he has met the minimal standard entitling him to an evidentiary hearing. See Opsahl v. State, 677 N.W.2d 414 (Minn. 2004).  But Opsahl is distinguishable.  In Opsahl, the appellant brought forth new evidence.  In that case the court found that an evidentiary hearing was required to determine the credibility of recanting witnesses.  The verdict was based entirely on circumstantial evidence, including the testimony of five of seven recanting witnesses who originally testified that they had heard defendant make incriminating statements about a murder. 

Appellant argues that he is entitled to an evidentiary hearing to determine whether he was properly informed of the statutorily mandated five-year conditional-release period after imprisonment. Specifically, appellant asserted in his affidavit that he would not have pleaded guilty had he been advised of this conditional-release period. Appellant asserts that his plea was not knowingly entered, but offers no proof to support this assertion.  The postconviction court concluded that appellant's claim that he did not know he would be subject to a conditional-release term when he pleaded guilty, lacked merit.  The postconviction court cited as support for its conclusion the fact that the court specifically advised appellant of the five-year conditional-release period, as the transcripts from both the plea and sentencing and probation-revocation hearing confirmed.  During plea and sentencing the following discussion ensued:

THE COURT:

 

I also need to notify you that in the event you violate your probation on this case and your prison sentence is executed, there is a five-year period of conditional release that would be imposed by the statutes once you are released from the institution.

 

[APPELLANT]:

 

Okay.

 

After appellant had violated the terms of the downward departure and was brought in for imposition of the sentence, the court, again, addressed the conditional-release period:

THE COURT:

As I told you at the time of your sentence, there is also a five-year period of conditional release once you complete the supervised release period that the Department of Corrections does supervise you once have completed your term in the institution.

 

Appellant concedes that a credibility determination based upon his postconviction affidavit is necessary and that appellate courts defer to the trier of fact on credibility assessments, and reverse only if the trier has committed clear error.  See State v. Doren, 654 N.W.2d 137, 141 (Minn. App. 2002).  The postconviction court made a credibility determination based upon a review of the record and appellant's postconviction affidavit.  The court concluded that the sentencing transcript provided sufficient evidentiary basis for its determination that the plea was freely and voluntarily entered.  The court stated:

The record reveals a thorough review of Petitioner's trial rights, his charge, and the consequences of his guilty plea.  Petitioner's trial counsel went over a petition to plead guilty before and during the hearing.  Petitioner stated he understood all of the rights he was waiving.  When asked whether he felt that he had enough time to talk to his lawyer about the case, Petitioner responded "yes".  Trial counsel then elicited a complete factual basis for the charge.  Petitioner was then questioned by the court regarding his trial rights and his waiver of those rights. 

 

Based on the record, the district court did not abuse its discretion in denying an evidentiary hearing.

Affirmed.

[1]  Appellant's sentence was amended from 75 months to 69 months in the custody of the Commissioner of Corrections.