Jeffrey Carl Hoheisel, petitioner, Appellant, vs. State of Minnesota, Respondent.

Jeffrey Carl Hoheisel, petitioner, Appellant, vs. State of Minnesota, Respondent. A05-2447, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and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

A05-2447

 

Jeffrey Carl Hoheisel, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 19,  2006

Affirmed Worke, Judge

 

Morrison County District Court

File Nos. K7-02-465, K7-03-1495

 

Mark D. Kelly, 2295 Waters Drive, St. Paul, MN 55120 (for appellant)

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Conrad Freeberg, Morrison County Attorney, Morrison County Courthouse, 213 First Avenue S.E., Little Falls, MN  56345 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the denial of his petition for postconviction relief challenging convictions of first-degree controlled-substance crime and felon in possession of a firearm, appellant argues that the district court erred by not permitting him to withdraw his guilty pleas, that the district court forced him to be represented by an attorney whom he discharged, and that his attorney was ineffective by agreeing to a greater sentence than was negotiated and by failing to inform him that he would not be accepted into boot camp.  We affirm.

FACTS

            In February 2004, appellant Jeffrey Carl Hoheisel pleaded guilty to first-degree controlled-substance crime and ineligible person in possession of a firearm arising out of an incident that occurred in 2002.  Appellant planned to apply to boot camp, a prison program that can reduce the time an offender serves in prison.  The district court explained that the Department of Corrections (DOC) would determine whether appellant qualified and warned appellant that if the DOC did not accept his application, he could not request that the court vacate his guilty pleas. 

            In May 2004, appellant pleaded guilty to first-degree controlled-substance crime arising out of an incident that occurred in 2003.  Prior to the plea, the district court addressed a written request for a continuance from an attorney who did not represent appellant.  Despite the fact that this attorney failed to appear, the attorney who did represent appellant moved for a continuance in order for appellant to determine whether he wanted to retain a different attorney.  The district court denied the motion, and appellant agreed that he wanted his then-present attorney to represent him. 

            The parties again discussed appellant's interest in applying to boot camp.  The state explained that in considering appellant's application, the DOC would take into account the offenses to which he pleaded guilty and his criminal-history score.  The state clarified that there was no agreement concerning boot camp and asked appellant if he wanted to plead guilty knowing that it was likely that his application would be denied.  Appellant indicated that he wanted to plead guilty and that he understood that he could not request to withdraw his guilty pleas if the DOC denied his boot-camp application.  Appellant also agreed that his counsel had not promised acceptance into boot camp and that officials had told appellant's counsel that appellant was not automatically excluded.   

            The district court sentenced appellant according to the agreement.  Appellant was sentenced to 98 months in prison for the 2003 offense; he was then sentenced to 122 months for the 2002 controlled-substance offense and 51 months for the firearm offense.  The agreement was designed to lessen the impact of appellant's criminal-history score; if appellant had been sentenced in chronological order, the presumptive sentence for the 2003 offense would have been 146 months in prison.  The state also agreed not to move for an upward departure.  Appellant indicated that he understood that although he was told at the February hearing that he would receive 103 months for the 2002 controlled-substance offense, he would instead receive 122 months because the agreement included the 2003 offense.  In September 2005, appellant filed a postconviction petition requesting to withdraw his guilty pleas.  The district court denied the petition, and this appeal follows.  

 D E C I S I O N

            Appellant argues that the district court erred by denying his petition for postconviction relief.  A person convicted of a crime may seek postconviction relief in order "to vacate and set aside the judgment . . . or grant a new trial . . . or make other disposition as may be appropriate."  Minn. Stat. § 590.01, subd. 1 (Supp. 2005).   On factual matters, "[r]eview of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion."   Zenanko v. State, 688 N.W.2d 861, 864 (Minn. 2004) (quotation omitted).  This court reviews legal issues de novo.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).  A party seeking postconviction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.  Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005). 

Timeliness

            Appellant argues that the district court abused its discretion in considering the untimeliness of his petition.  Untimeliness, alone, is not sufficient reason to deny a petition for postconviction relief.  Sykes v. State,578 N.W.2d 807, 814 (Minn. App. 1998), review denied (Minn. July 16, 1998).  But timeliness is a factor that a district court may consider.  Fox v. State,474 N.W.2d 821, 826 (Minn. 1991).  Under Minn. R. Crim. P. 15.05, subd. 1, a district court will permit plea withdrawal "upon a timely motion" in order to correct a manifest injustice.  Because appellant requested to withdraw his guilty pleas, the district court appropriately considered the timeliness of the petition.  See James v. State, 699 N.W.2d 723, 728 (Minn. 2005) (stating that timeliness of a request to withdraw a guilty plea is relevant in determining whether postconviction relief should be granted). 

            Appellant waited approximately 16 months to petition for postconviction relief.  See Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) (holding that a 22-month delay raised a question of the legitimacy of the claims), review denied (Minn. Oct. 16, 1984).  While appellant contends that the delay should not be fatal because he was incarcerated and did not have funds to file a petition, he could have filed a pro se petition.  Additionally, although noting the untimeliness of appellant's petition, the district court considered the merits of appellant's request.  Thus, the district court did not abuse its discretion in considering the untimeliness of appellant's petition. 

Continuance

            Appellant next argues that the district court abused its discretion by refusing to continue the May 2004 proceedings to permit a new attorney to appear on his behalf.  Whether to grant a continuance to permit substitution of counsel is within the discretion of the district court, whose "decision is to be based on the facts and circumstances surrounding the request."  State v. Fagerstrom,286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  A motion for a continuance in order to substitute counsel has been found to be unreasonable when the defendant has not been diligent in procuring counsel.  State v. Courtney, 696 N.W.2d 73, 82 (Minn. 2005); see also State v. Worthy,583 N.W.2d 270, 278 (Minn. 1998) (stating that a continuance is unreasonable when the defendant fails to demonstrate the ability to secure an alternative attorney);  State v. Vance,254 N.W.2d 353, 358 (Minn. 1977) (stating that a continuance is unreasonable when the continuance is for the purpose of delay). 

            Before the proceedings began, the district court noted that an attorney who did not represent appellant had submitted a written request for a continuance.  Despite the fact that this attorney failed to appear, appellant's attorney moved for a continuance.  The district court denied the motion, but later asked appellant if he still wished to proceed with his request for a continuance; appellant withdrew the motion and indicated that he wanted his present attorney to represent him.  The record does not support appellant's argument that the district court forced his attorney to represent him.  The district court did not abuse its discretion in denying appellant's motion for a continuance. 

Withdrawal of Guilty Pleas

            Appellant argues that he should have been permitted to withdraw his guilty pleas.  Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  But a district court may allow plea withdrawal upon proof "that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  Manifest injustice occurs when a defendant can show that a guilty plea was not accurate, voluntary, and intelligent.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  The decision whether to permit a defendant to withdraw a guilty plea is generally left to the sound discretion of the district court.  See Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  

            Appellant argues that his guilty pleas were invalid because he was denied the effective assistance of counsel.  The Sixth Amendment to the United States Constitution guarantees the right to a fair trial, and the right to effective assistance of counsel is an integral part of that right.  State v. Powell, 578 N.W.2d 727, 731 (Minn. 1998).  A party alleging ineffective assistance of counsel must show that counsel's performance "‘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, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  This court presumes that counsel's conduct fell within a wide range of reasonable professional assistance.  Strickland,466 U.S. at 694-95, 104 S. Ct. at 2068.

            Appellant argues that his attorney was ineffective because he knew that appellant would not be accepted into boot camp.  Although appellant concedes that he was told that his participation in boot camp was not guaranteed, he contends that the plea agreement precluded his acceptance because it included his admission that he possessed a firearm at the time of the offense.  Appellant's argument fails for several reasons.  First, there is no factual support to indicate that appellant's counsel knew that appellant would not be accepted into boot camp.  The record does show that officials told appellant's attorney that appellant was not automatically excluded.  Second, the state explained that there was no agreement concerning boot camp and that the DOC would consider the offenses to which he pleaded guilty.  And the district court and the state warned appellant that if his application was denied he could not ask to vacate his guilty pleas.  Finally, appellant pleaded guilty knowing that it was likely that his application would be denied; thus, even if appellant's attorney erred, the result of the proceedings would not have been any different. 

            Appellant also argues that his attorney was ineffective because he agreed to a greater sentence on the 2002 controlled-substance offense than was negotiated at the February hearing.  Again, appellant's argument fails for several reasons.  First, the plea agreement that appellant signed indicated that he was being sentenced to 122 months on the first-degree controlled-substance offense.  Second, the plea transcripts show that appellant understood that he would receive the benefit of being sentenced in reverse chronological order in order to lessen the impact of his criminal-history score.  Additionally, at both hearings, when questioned about the plea agreement, appellant indicated that he understood the agreement; had had enough time to review it with his attorney; was satisfied with his attorney's representation and did not want substitute counsel; understood his legal rights; and was pleading guilty voluntarily.  Appellant indicated that he was pleading guilty to take advantage of the negotiation and to avoid a longer sentence on the 2003 offense.  Appellant also indicated that he understood that the original sentence for the 2002 controlled-substance offense would increase because an agreement had been reached on the 2003 offense.  Finally, the state agreed not to request an upward departure in sentencing if appellant accepted the plea agreement.  Appellant has failed to show that he was denied the effective assistance of counsel.  The district court did not abuse its discretion in denying appellant's petition for postconviction relief. 

Evidentiary Hearing

 Appellant argues that the district court abused its discretion by denying his petition without conducting an evidentiary hearing.  An evidentiary hearing on a postconviction petition "is not required unless there are material facts in dispute that must be resolved to determine the postconviction claim on its merits."  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).  Generally, a hearing is not necessary when the "petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief . . . ."  Minn. Stat. § 590.04, subd. 1 (2004). 

            Appellant offers no facts to support his petition; rather, he suggests that a hearing will develop the record.  But allegations in a postconviction petition must be "more than argumentative assertions without factual support."  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (citing Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).  Appellant fails to meet his burden of establishing facts that warrant withdrawal of his guilty plea.  See Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005) (stating that the party seeking postconviction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief).  The district court did not abuse its discretion in denying appellant's petition without an evidentiary hearing.

            Affirmed.