State of Minnesota, Respondent, vs. Lawrence Ogris, Appellant.

This opinion will be unpublished and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

C7-03-225

 

State of Minnesota,

Respondent,

 

vs.

 

Lawrence Ogris,

Appellant.

 

Filed June 15, 2004

Affirmed

Lansing, Judge

 

Ramsey County District Court

File No. K801774

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Philip C. Carruthers, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102-1657 (for respondent)

 

John Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from conviction and sentence, Lawrence Ogris challenges the district court's denial of his motion to withdraw his guilty plea and the imposition of a double durational sentencing departure under the career-offender statute.  The record supports the district court's determination that Ogris knowingly and intelligently entered a guilty plea to two offenses that were committed as part of a pattern of criminal conduct.  The pro se brief provides no separate basis for reversal, and we affirm. 

F A C T S

            Lawrence Ogris pleaded guilty to attempted aggravated robbery in violation of  Minn. Stat. § 609.245, subd. 1 (2000), and theft of a motor vehicle in violation of Minn. Stat. § 609.52, subds. 2(1) and 3(3)(d)(v) (2000).  Both the attempted aggravated robbery and the motor-vehicle theft occurred at the Sun Ray Shopping Center in St. Paul.

Ogris persuaded an acquaintance to give him a ride to the J.C. Penney store located in the shopping center.  He explained that he needed to talk to his girlfriend, who worked in the store.  Ogris went into J.C. Penney while the acquaintance waited outside.  Ogris returned with an armful of clothing, jumped into the car, and yelled at the acquaintance to "Go, go, go!"  When she refused, Ogris hit and pushed her, trying to reach the accelerator.  He pushed her out of the car, continuing to hit her head and face.  He then ran to another retail store a few doors away.  Ogris took a car that had been left with its engine running in front of that store and later abandoned it in a snow bank.  Police traced footprints from the car to a nearby van where they apprehended Ogris.

            Ramsey County charged Ogris with first-degree attempted aggravated robbery and theft of a motor vehicle.  Ogris attempted to negotiate a plea agreement on both counts, but the state would only agree to a concurrent guidelines sentence on count two, the motor-vehicle theft, with no agreement on count one, the attempted aggravated robbery.  In the plea petition, signed by Ogris and reviewed at the plea hearing, his attorney specifically wrote, "count one NO agreement."  Consistent with that notation, his attorney advised the district court at the beginning of the plea hearing that Ogris was pleading guilty to both counts in exchange for concurrent sentencing and a guidelines sentence on count two, but the state and the defendant had reached no agreement on count one.  In response to questioning by his attorney and by the court, Ogris waived his trial rights; admitted his guilt on both counts; and specifically stated that he understood that there was no agreement on sentencing on the attempted-aggravated-robbery charge.  The district court advised Ogris that the maximum sentence on that charge was ten years in prison.

            Before sentencing, the state notified Ogris of its intention to seek an upward durational departure for the attempted aggravated robbery from the presumptive 54-month sentence to 108 months.  The notice stated that the request for departure was based on the career-offender statute and Ogris's fourteen prior felony convictions, ten of which qualified as previous convictions for purposes of the career-offender statute.  The pre-sentence investigation computed Ogris's presumptive sentence for the attempted aggravated robbery as 54 months, but recommended that he receive 108 months under the career-offender statute.

            The district court sentenced Ogris to 108 months on the attempted-aggravated-robbery charge and to 30 months for the motor-vehicle theft, to be served concurrently.  The court stated that the double durational departure was justified because Ogris met the requirements for sentencing under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002).  The court found that Ogris had more than five prior felony convictions and that his current offenses were part of a pattern of criminal conduct involving theft, with an increasing level of violence against individuals as a part of the theft. 

            At the sentencing hearing, Ogris did not protest that the sentence violated his understanding of the plea agreement, but about a month later he submitted a petition requesting withdrawal of his plea because his sentence on the attempted aggravated robbery exceeded the guidelines sentence.  Following a hearing, the district court found that the plea petition, the transcript of the plea, and the affidavit of Ogris's attorney all established that Ogris and the state had no plea agreement on the attempted-aggravated-robbery charge, that the maximum penalty was ten years, and that the transcript established that Ogris was clear-headed and understood what was going on at the plea hearing.  Ogris appeals the denial of his postconviction motion for plea withdrawal and his sentencing under the career-offender statute.

D E C I S I O N

I

            A defendant has no absolute right to withdraw a guilty plea to a criminal charge once it has been entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But withdrawal of a plea will be allowed if the defendant establishes that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Alanis, 583 N.W.2d at 577.  Manifest injustice exists when a defendant can show that a guilty plea was not "accurate, voluntary, and intelligent (i.e., knowingly and understandingly made)."  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (citation omitted).  A plea is intelligent if the defendant knows and understands the charges, the rights waived by pleading guilty, and the consequences of the plea.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  The existence and terms of a plea agreement are factual issues, to be resolved by the district court.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). 

            Ogris claims that his plea was unintelligent because he believed that he would receive a guidelines sentence of 54 months on the attempted-aggravated-robbery charge.  The record, however, provides no basis for that belief and provides substantial evidence that he was repeatedly advised to the contrary.  Ogris's plea-hearing counsel submitted an affidavit stating that Ogris was consistently reminded that there was no plea agreement on the attempted-aggravated-robbery charge.  The district court, in denying the motion for plea withdrawal, found that the plea petition, the plea transcript, and the affidavit of Ogris's attorney all established that Ogris and the state had no plea agreement on the attempted-aggravated-robbery charge and that Ogris was told at the time that he entered the plea that the maximum sentence on that charge was ten years.  The record fully supports this finding.  Ogris's disappointment at receiving a longer-than-expected sentence does not provide a viable reason for withdrawing his guilty plea.  Schwerm v. State, 288 Minn. 488, 491, 181 N.W.2d 867, 868 (1970).

            At the hearing on the motion to withdraw his plea, Ogris also argued that he did not comprehend what was taking place at the plea hearing because he was affected by medication.  Although this issue was not raised in Ogris's pro se petition for plea withdrawal or in the subsequent petition filed by an attorney, the district court addressed and rejected Ogris's claim that he was impaired by medication.

            At the plea hearing, Ogris stated that he took prescription drugs for heart ailments.  But he stated that he was clear-headed and understood fully what was going on at the plea hearing.  At the plea-withdrawal hearing, he indicated that he was taking twelve different types of medication and that he did not "fully understand what was going on."  He stated, however, that he was taking the same medication at the time of the plea-withdrawal hearing that he had been taking at the plea hearing and that he knew and understood what he was doing at the plea-withdrawal hearing.  The inferences from Ogris's own testimony weigh against his claim that he did not comprehend the proceedings at the plea hearing.  The judge at the postconviction hearing, who was also the judge who accepted Ogris's guilty plea, found that Ogris had understood what was going on and was clear-headed at the time he entered the plea.  The record supports that finding.

            Ogris has failed to demonstrate that his plea of guilty to attempted aggravated robbery was unintelligent.  The district court did not abuse its discretion in denying Ogris's petition to withdraw his guilty plea.

II

            The decision to depart from the sentencing guidelines is within the sound discretion of the district court and will not be reversed absent an abuse of that discretion.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  When a district court departs from the sentencing guidelines, it must provide substantial and compelling reasons for that departure.  Id.; Minn. Sent. Guidelines II.D.  The career-offender statute is a legislatively created ground for departure.  State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993). 

Under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2000), the sentencing court may depart from the presumptive sentence up to the statutory maximum "if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct."   Sentencing under the career-offender statute requires five sequential felony offenses and convictions to permit "five full postconviction opportunities for reform."  State v. Huston, 616 N.W.2d 282, 284 (Minn. App. 2000) (quotation omitted).  A pattern of criminal conduct may be demonstrated by "criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics."  State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996).  The sentencing court may consider prior felony and gross-misdemeanor convictions as well as uncharged acts of criminal conduct proved by clear and convincing evidence to determine whether a criminal pattern exists.  Id.

Ogris's criminal history before this robbery and theft included five prior sequential felony offenses and convictions, including convictions for felony theft, burglary, and terroristic threats.  These prior convictions satisfy the Huston test for sequential convictions.  See Huston, 616 N.W.2d at 284 (construing statutory requirement of five or more prior felony convictions).  Based on Ogris's pattern of convictions, the probation department recommended in its presentence-investigation report that Ogris receive a double durational departure on both the attempted aggravated robbery and the motor-vehicle theft.

The district court departed on the robbery but not on the theft.  The district court found that Ogris's history of convictions formed a pattern of criminal conduct involving theft, with an increasing level of the threat of violence as part of the thefts.  Ogris argues that these convictions do not present a pattern of conduct because he did not use force in committing his past offenses.  But his criminal history shows a pattern of sequential property offenses, starting with misdemeanor and gross-misdemeanor offenses and escalating to felony convictions, that extended for more than fifteen years.  The district court did not abuse its discretion in sentencing Ogris to a double durational departure under the career-offender statute. 

In a pro se brief, Ogris raises the same arguments raised by his attorney.  Although Ogris makes additional factual arguments, those arguments are unsupported by the record and do not provide a basis for reversal.

            Affirmed.

 

 

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