Roger F. Schmitz, petitioner, Appellant, vs. State of Minnesota, Respondent.

Roger F. Schmitz, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-141, Court of Appeals Unpublished, November 21, 2006.

This opinion will be unpublished and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

A06-141

 

Roger F. Schmitz, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed November 21, 2006

Affirmed

Wright, Judge

 

Morrison County District Court

File No. 49-K6-04-736

 

 

Roger F. Schmitz, 1101 Linden Lane, Faribault, MN  55021 (pro se appellant)

 

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

 

Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 First Avenue Southeast, Little Falls, MN  56345 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from an order denying a postconviction petition, appellant challenges his 2005 sentence for first-degree controlled substance crime (attempted methamphetamine manufacture), arguing that (1) the district court imposed a sentence for an offense with which he was not charged; (2) his Alford-Goulette plea was not knowing and voluntary; and (3) the evidence on which his conviction is based does not satisfy the elements of the offense.  Appellant also alleges three constitutional violations for the first time on appeal.  We affirm.

FACTS

 

            On June 16, 2004, appellant Roger Schmitz was arrested and subsequently charged with three controlled-substance offenses: first-degree controlled-substance crime (methamphetamine manufacture), a violation of Minn. Stat. § 152.021, subd. 2a(a) (Supp. 2003); first-degree attempted manufacture of methamphetamine (possession of methamphetamine precursor ingredients), a violation of Minn. Stat. § 152.021, subd. 2a(b) (Supp. 2003); and fifth-degree possession of methamphetamine, a violation of Minn. Stat. § 152.025, subd. 2(1) (2002). 

Under a plea agreement, the state amended count one of the complaint to allege attempted first-degree controlled substance crime (methamphetamine manufacture), a violation of Minn. Stat. §§ 152.021, subd. 2a(a), 609.17, subd. 1 (2002), and dismissed counts two and three in exchange for Schmitz's Alford-Goulette[1] guilty plea to count one as amended.  By pleading guilty to count one as amended, Schmitz, who had a criminal history score of 12, faced a presumptive guidelines sentence of 73 months' imprisonment, rather than 146 months' imprisonment under the original charge. 

            On June 20, 2005, Schmitz filed a petition for postconviction relief, arguing that he should have received a maximum sentence of 24 months' imprisonment because he had pleaded guilty to attempted manufacture of methamphetamine (possession of methamphetamine precursor ingredients), Minn. Stat. § 152.021, subd. 2a(b) (a level-three offense), rather than attempted first-degree controlled substance crime (attempted methamphetamine manufacture), Minn. Stat. §§ 152.021, subd. 2a(a), 609.17, subd. 1 (a level-nine offense).  The district court denied the petition without a hearing. 

            On November 10, 2005, Schmitz moved to correct clerical mistakes and to correct his sentence, again arguing that he was sentenced under the wrong statute.  First, he sought reissuance of the postconviction order because he did not receive notice of its filing.  The district court granted this aspect of the motion and ordered the court administrator to re-file the order.  Second, Schmitz sought to reduce his sentence, arguing that the level-nine first-degree controlled-substance crime (attempted methamphetamine manufacture), Minn. Stat. §§ 152.021, subd. 2a(a), 609.17, subd. 1, was the same offense as the level-three first-degree controlled-substance crime (possession of methamphetamine precursors), Minn. Stat. § 152.021, subd. 2a(b), because "both statutes describe the same offense with the exception that one has a substantial increase in the duration of its sentence."  The district court denied this aspect of the motion.  This appeal followed.

D E C I S I O N

 

A petition for postconviction relief is a collateral attack on the judgment, which carries a presumption of regularity.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  We will not disturb the decision of the postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But a postconviction court's determination of a question of law is reviewed de novo.  Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).

I.

 

Schmitz contends that he was sentenced for the wrong offense because first-degree controlled substance crime, Minn. Stat. § 152.021, subd. 2a(a) (Supp. 2003), cannot be charged in conjunction with the attempt statute, Minn. Stat. § 609.17, subd. 1 (2002), to result in a charge of attempted first-degree controlled substance crime (methamphetamine manufacture).  The crux of the issue before us is the distinction between two offenses: attempted first-degree controlled substance crime (methamphetamine manufacture), Minn. Stat. §§ 152.021, subd. 2a(a), 609.17, subd. 1, and attempted first-degree controlled substance crime (possession of methamphetamine precursor ingredients), Minn. Stat. § 152.021, subd. 2a(b) (Supp. 2003), and their respective penalties.  A comparison of the offenses at issue establishes that Schmitz's argument is without merit.

            Section 152.021, subdivision 2a(a), proscribes the "manufacture [of] any amount of methamphetamine."  The attempt statute, section 609.17, subdivision 1, applies to a person with an "intent to commit a crime" who "does an act which is a substantial step toward, and more than preparation for, the commission of the crime."  Section 609.015, subdivision 2, provides that, "[u]nless expressly stated otherwise, or the context otherwise requires, the provisions of [Chapter 609] apply to crimes" in other chapters of the Minnesota Statutes.  Application of the attempt statute with controlled substance crimes codified in chapter 152 is commonplace.  See, e.g., State v. Houston, 702 N.W.2d 268, 269 (Minn. 2005) (conviction of attempted first-degree controlled substance crime, Minn. Stat. §§ 152.021, subd. 2a, 609.17, subd. 1, challenged); State v. Johnson, 511 N.W.2d 753, 754 (Minn. App. 1994) (conviction of attempted fifth-degree controlled substance crime, Minn. Stat. §§ 152.025, subds. 2(1), 3(a), 609.17, subd. 1, challenged), review denied (Minn. Apr. 19, 1994).  Indeed, as discussed below, the language of subdivision 2a(b) contemplates the use of subdivision 2a(a) with section 609.17.  Because neither the express language of the statutes at issue here nor the context in which they are employed provides otherwise, the attempt statute, section 609.17, subdivision 1, may be used in conjunction with section 152.021, subdivision 2a(a).  

Schmitz also contends that, because the two attempt offenses proscribe the same behavior, he should be sentenced under section 152.021, subdivision 2a(b), which carries a more lenient penalty.  But it is evident from the language of subdivision 2a(b) that it is an offense that is distinct from subdivision 2a(a).  Subdivision 2a(b) provides, in relevant part: "Notwithstanding [subdivision 2a](a) and section 609.17, a person is guilty of attempted manufacture of methamphetamine if the person possesses any chemical reagents or precursors with the intent to manufacture methamphetamine."[2]  (Emphasis added.)  This language demonstrates that the legislature created two distinct attempted methamphetamine manufacture offenses.  The elements of the two attempt offenses criminalize different conduct, rather than reducing a penalty for the same conduct.  A conviction under sections 152.021, subdivision 2a(a), and 609.17, subdivision 1, requires proof that the accused possessed an intent to manufacture methamphetamine and took a "substantial step" toward its manufacture.  In contrast, a conviction under section 152.021, subdivision 2a(b), merely requires proof that the accused possessed precursor materials with the intent to manufacture methamphetamine.  For the latter offense, which carries a lower presumptive guidelines sentence, a substantial step toward manufacturing methamphetamine is not required.

Schmitz's contention that he was sentenced for an uncharged offense is not supported by the record.  Under the plea agreement, count one of the complaint, charging Schmitz with first-degree controlled substance crime (methamphetamine manufacture), was amended to charge an attempt.  After being advised of his rights on the record, as well as the applicable presumptive guidelines sentence, Schmitz entered an Alford-Goulette guilty plea to this offense.  Because Schmitz did not plead guilty to Minn. Stat. § 152.021, subd. 2a(b), he is not entitled to the presumptive guidelines sentence for that offense.  Accordingly, the district court did not err in sentencing Schmitz pursuant to the statutes under which he was charged and convicted.

II.

             A district court may accept a guilty plea from an accused even though the accused claims innocence if "the court, on the basis of its interrogation of the accused and its analysis of the factual basis offered in support of the plea, reasonably concludes that there is evidence which would support a jury verdict of guilty and that the plea is voluntarily, knowingly, and understandingly entered."  State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977).  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). 

            Schmitz argues that his guilty plea was not knowingly and voluntarily entered.  Our review of the record establishes, however, that this contention is unfounded.  At the guilty-plea hearing, the district court questioned Schmitz extensively.  The transcript establishes that, under oath, Schmitz indicated that he understood the offense to which he pleaded guilty; understood that he entered an Alford-Goulette guilty plea, thereby maintaining his innocence while receiving the sentencing benefits of the plea agreement; and understood the maximum penalty and the presumptive guidelines sentence for the offense to which he entered a guilty plea.  Schmitz also advised the district court that he had had enough time to consult with his attorney before pleading guilty.  On this record, Schmitz's Alford-Goulette guilty plea was knowingly and voluntarily entered. 

III.

Schmitz next challenges the sufficiency of the evidence.  A valid Alford-Goulette guilty plea, by itself, removes the issue of whether the evidence was sufficient for a conviction and bars its later assertion.  State v. Jenson, 312 N.W.2d 673, 675 (Minn. 1981) (holding that defendant entering Alford-Goulette guilty plea explicitly waived his right to later raise issue of sufficiency of evidence and removed the issue of factual guilt from the case).  Because he entered a valid, knowing and voluntary Alford-Goulette guilty plea, Schmitz's challenge to the sufficiency of the evidence fails. 

IV.

For the first time on appeal, Schmitz raises three constitutional challenges to his conviction.  First, he challenges the constitutionality of Minn. Stat. §§ 152.021, subd. 2a(a), 609.17, subd. 1, because, when employed together, they embrace more than one subject.  Next, he claims that he was denied effective assistance of counsel.  Finally, Schmitz maintains that, under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), he is entitled to a jury determination of whether sentencing under Minn. Stat. §§ 152.021, subd. 2a(a), 609.17, subd. 1, or under Minn. Stat. § 152.021, subd. 2a(b), is appropriate.  In a postconviction proceeding, we ordinarily review only matters presented to and decided by the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Because Schmitz has not presented a basis for departing from this general rule, we decline to address these arguments.

The district court properly denied Schmitz's petition for postconviction relief.

         

Affirmed.

[1] North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970); State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977).

[2] Section 152.021, subdivision 2a(b), lists 22 "chemical reagents or precursors," including pseudoephedrine and anhydrous ammonia, the precursors at issue at here.