State of Minnesota, Respondent, vs. Tyrone Rosales, Appellant.

State of Minnesota, Respondent, vs. Tyrone Rosales, Appellant. A04-1026, Court of Appeals Unpublished, June 13, 2006.

This opinion will be unpublished and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

A04-1026

 

State of Minnesota,

Respondent,

 

vs.

 

Tyrone Rosales,

Appellant.

 

Filed June 13, 2006

Affirmed

Shumaker, Judge

 

Wilkin County District Court

File No. KX-02-237

 

 

Mike Hatch, Attorney General, Amy V. Kvalseth, John G. Galus, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Timothy E. J. Fox, Wilkin County Attorney, City Hall, P.O. Box 214, Breckenridge, MN 56520 (for respondent)

 

Daniel B. Mohs, Daniel Mohs & Associates, 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges his first-degree controlled-substance conviction and sentence, arguing he was denied the effective assistance of counsel and that the trial court abused its discretion by denying his request for a downward dispositional departure.  Because appellant's counsel's tactical choice did not amount to ineffective assistance of counsel and the trial court did not abuse its discretion in sentencing, we affirm.

FACTS

A jury found Tyrone Rosales guilty of first-degree controlled-substance crimes involving methamphetamine.  The district court imposed the presumptive executed sentence, denying Rosales's motion for a dispositional departure.  Rosales then petitioned for postconviction relief on the ground of ineffective assistance of counsel.  The court held an evidentiary hearing and denied the petition.  Rosales appeals that denial and the court's denial of his departure motion.

The issue of ineffective assistance of counsel pertains to Rosales's contention that his trial attorney failed to advise him of his right not to testify, failed to prepare him for cross-examination, and failed to warn him that his post-arrest statements to the police could be used against him if he testified.

The trial evidence showed that the police executed a search warrant at a home owned or rented and occupied by Dennis and Dean Krause.  During the search, the police encountered Rosales and Anna Kvidera lying on a mattress in a bedroom.  The bedroom also contained, in plain view, a plexiglass tray with clear plastic bags containing a powder that later proved to be methamphetamine; a razor blade; a digital scale; vials, gel caps; tubes; straws; plastic baggies; and butane cans and torches.  Inside a cardboard box in the closet, the police found two large chunks of a substance later determined to be methamphetamine.  The police also noticed in the living room of the house stereo speakers with tinfoil nameplates reading "Tyrone" and "Anna," and they found a pair of pants containing $613 in cash and Rosales's driver's license in the bedroom.

The police arrested Rosales, and he agreed to give a statement to them.  He said he had just moved into the house and knew only Dennis Krause.  He denied being a drug user, but admitted that he had tried drugs, and he denied that the narcotics and paraphernalia the police found in the bedroom belonged to him or to Kvidera.  He told the police that he had just begun to bring his own possessions into the house, and he noted that the house was not very private because people were always coming and going.  He was unable to explain how the drugs and the paraphernalia came to be in his bedroom, but he reiterated that he knew nothing about the narcotics and that he neither sold nor assisted with the sale of drugs.

When the police asked him if he had anything in the pockets of the pants they found in the bedroom, he said: "I had some money in there that was, I had to deposit for my mom for paying for my vehicle."  He stated he had "$500 or something like that," and that he was going to give $300 or $400 to his mother.

Later in the interrogation, the police again asked about the money in Rosales's pants pocket and where it came from.  He stated: "I've had that money . . . .  We went to California . . . .  And I worked . . . .  My uncle is a software engineer there and I was actually going to stay there for the summer and I was go[ing] to work for him . . . and he gives me money . . . ."  He also said, "Well, that's not all my uncle's money."  As the police pursued the subject, Rosales said that he did not earn the money in California but rather went to California with the money and was going to use it for living expenses.  He also indicated that his uncle was going to give him a check, but, when Rosales arrived in California, he learned that his uncle had gone to the Philippines for a month.  As Rosales continued to answer questions about the money, he again referred to giving money to his mother for the vehicle that she allowed him to use.

On direct examination, Rosales testified that he received about $400 from his mother to use in California and that he returned with most of the money and had intended to deposit it.

Portions of the cross-examination and recross-examination focused on Rosales's statements to the police about where the money had come from.  The prosecutor stated, "So, the story that you told law enforcement your uncle had given you the money was a lie, wasn't it?"  And the prosecutor asked, "You were the one that was making the profit because the profit was in your pocket from the sale of methamphetamine, weren't you?"  Rosales testified that he was not selling methamphetamine and that the police had a misconception about the source of Rosales's money.  The prosecutor asked Rosales about several other items in his post-arrest statement, but the subject of the money was the most contradictory.

Rosales claims that he was totally unprepared to respond to questions about his post-arrest statement and that, had he known the prosecutor would ask him about it, he would have exercised his right not to testify, a right that he claims his attorney also failed to discuss with him.

D E C I S I O N

Ineffective Assistance of Counsel

      Rosales contends that his trial attorney did not explain his right not to testify, did not adequately prepare him to testify, and failed to tell him that his post-arrest statement would likely be used against him if he testified.  He contends that, had his attorney properly advised him, he would have elected not to testify and the statements he made to the police would not have been admissible.  The prejudice he alleges is that his testimony was "attacked point by point on cross-examination with the details he had given in his post-arrest statement."

To prevail on a claim of ineffective assistance of counsel, Rosales must show "that his counsel's representation ‘fell below an objective standard of reasonableness' and ‘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)).

After an evidentiary hearing, the district court concluded that Rosales had failed to show that he had not been adequately advised before testifying or that his attorney's tactical choices amounted to ineffective assistance of counsel.  Courts give deference to trial strategy.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," courts view with some deference "the reasonableness of counsel's challenged conduct on the facts of the particular case."  State v. Rhodes, 657 N.W.2d 823, 844 (Minn. 2003) (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066).

The district court found that it was objectively reasonable for Rosales's trial attorney to have him testify because he could then tell the jury about his work as a computer consultant, his college attendance, his high-school athletics, his college athletic scholarship, his abstinence from drugs and alcohol, and why he had so much cash when he was arrested.  The court further observed that Rosales "was an articulate, objectively well-prepared witness."  The court did note, however, that Rosales's credibility was impaired when he was impeached on cross-examination.

We agree with the district court that it was a reasonable trial tactic to have Rosales testify so that the jury could hear several positive facts about him that otherwise would not have been disclosed.  There is always a risk that any witness's credibility might be impeached.  But unless that risk is so clear and so substantial that a reasonable defense attorney would forgo it, the assumption of that risk is not tantamount to ineffective legal assistance. This is not a case in which a reasonable attorney would forgo the risk by not calling his client to testify.

Even if the trial strategy to have Rosales testify was a serious trial error, it is nearly certain that it did not affect the outcome of the case.  All the trappings of a drug-sales enterprise were on the floor in the middle of Rosales's bedroom while Rosales and Kvidera occupied it. The other residents testified that Rosales lived in the house where the search occurred and that he occupied the bedroom where the police found drugs and paraphernalia.  They testified that the drugs and paraphernalia did not belong to them and that they did not know these things were in the house, although one resident testified that Rosales sometimes used methamphetamine in the house.

Even without the impeachment of Rosales, the evidence against him was very strong.  And although the prosecutor did not offer evidence of Rosales's post-arrest interview during his case-in-chief, he could have done so.  Rosales is incorrect in his argument that his post-arrest statements were admissible only if he testified.  That is true if the statements were offered solely to impeach Rosales's credibility, but they were admissible even if he did not testify as party-opponent admissions, which is substantive evidence, under Minn. R. Evid. 801(d)(2)(A).

The district court did not err in denying Rosales's petition for postconviction relief.

Denial of Departure Motion

            Rosales moved for a dispositional departure from the presumptive executed sentence. The district court denied the motion.  Rosales claims that there were substantial and compelling mitigating factors that the court failed to consider.

            The sentencing guidelines are mandatory and the district court must impose the presumptive sentence unless substantial and compelling circumstances show that a departure is warranted.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  But departures are discretionary, and it is the rare case that the appellate court will reverse for the district court's refusal to depart.  Id.

Rosales argues that the court failed to properly consider several factors that show he is amenable to probation and may be rehabilitated in a nonprison setting.  He contends the court did not consider that this is his first felony, that he had refrained from any criminal involvement since his arrest, that he was 22 years old at the time of arrest, and that he had maintained steady employment, attended college for several years, and had plans to return to school.  

Contrary to Rosales's contentions, the court did consider all pertinent factors.  Respecting Rosales's age and background, the court stated that age "does not have anything to do . . . with a person's maturity and . . . a person's ability to make good and sound decisions and to . . . be able to tell right from wrong."  The court stated that the record shows that Rosales is "intelligent" and that his age alone is not a compelling mitigating factor.  In regard to this being Rosales's first felony arrest and conviction, the court stated that this has been taken into consideration by the sentencing guidelines, and it is because he does not have any criminal-history points that he is being sentenced to the particular amount of time prescribed by the guidelines. 

Although a district court may rely on a person's strong rehabilitative effort as an indication that the person is amenable to probation, the court has the obligation to weigh that fact against other factors that relate to dispositional departures.  See State v. Anderson, 463 N.W.2d 551, 555 (Minn. App 1990) (stating that, when factors both for and against granting downward departure exist, decision is committed to discretion of district court), review denied (Minn. Jan. 14, 1991).  With this in mind, the district court indicated that there was sufficient evidence to sentence at "the top of the box" but that the "middle of the box" 86-month sentence was reasonable.  The court did not abuse its discretion in denying Rosales's departure motion.

            Affirmed.