Joseph Edwin Harju, petitioner, Appellant, vs. State of Minnesota, Respondent.

Joseph Edwin Harju, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-1151, Court of Appeals Unpublished, June 26, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1151

 

Joseph Edwin Harju, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed June 26, 2007

Affirmed

Peterson, Judge

 

St. Louis County District Court

File No. K3-00-600363

 

Joseph E. Harju, OID #205468, 7525 Fourth Avenue, Lino Lakes, MN  55014-1099 (pro se appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Melanie S. Ford, St. Louis County Attorney, John E. De Santo, Assistant County Attorney, St. Louis County Attorney's Office, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802-1298 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            In this appeal from an order denying a petition for postconviction relief, appellant argues that (1) his guilty plea was involuntary, (2) his sentence was not authorized by law, and (3) the district court's failure to comply with Minn. Stat. § 244.101, subd. 2 (1998), when sentencing appellant deprived the district court of jurisdiction to sentence appellant.  We affirm.

FACTS

            In March 2000, appellant Joseph Edwin Harju was charged with two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1998).  The charges were based on two separate incidents of criminal sexual conduct with the same victim.  In May 2000, appellant pleaded guilty to both counts.  Appellant's plea petition states:

In exchange for my plea of guilty to 2 counts of criminal sexual conduct in the 3rd degree amended from 609.344, subd. 1(d) to subd. 1(b) [which reduces the severity level from level VII to level V],[1] the parties agree to a guideline sentence (with the state asking for consecutive and [appellant] for concurrent).

 

Appellant moved to disallow an Arizona felony conviction when calculating his criminal-history score.  The district court ordered that the conviction be used when computing appellant's criminal-history score.

            In July 2000, the district court imposed two 36-month sentences, to be served consecutively, and a ten-year conditional-release period.  In August 2001, appellant moved to withdraw his guilty plea, alleging newly discovered evidence and ineffective assistance of counsel.  The motion was denied.  In January 2005, appellant moved to modify his conditional-release period, and in February 2005, the district court ordered that appellant's ten-year conditional-release period be modified to a five-year period.  In August 2005, appellant filed a petition for postconviction relief in which he asked to be allowed to withdraw his guilty plea, or, alternatively, that his sentence be vacated and that he be resentenced to concurrent sentences or that his sentence and conditional-release period be modified to time served.  Following a hearing, the district court denied the petition.  This appeal followed.

D E C I S I O N

            "A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside."  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  "The decisions of a postconviction court will not be disturbed unless the court abused its discretion."  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

1.         Withdrawal of Plea

            To be valid, a guilty plea "must be accurate, voluntary and intelligent (i.e., knowingly and understandingly made)."  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  The district court may allow a defendant to withdraw a plea of guilty upon "proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15 .05, subd. 1; see also Alanis v. State, 583 N.W.2d 573, 577-79 (Minn. 1998) (applying manifest-injustice standard).  Manifest injustice results when a defendant's plea is not entered accurately, voluntarily, and intelligently.  Alanis, 583 N.W.2d at 577.  The decision whether to permit withdrawal of a guilty plea is committed to the district court's discretion and will not be reversed absent an abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).      

            Appellant argues that his guilty plea was involuntary[2] because, when he entered the plea, he was not aware that a conditional-release period would be included in his sentence.  "The requirement that the plea be knowingly and understandingly made is designed to insure that the defendant understands the charges, the rights being waived and the consequences of the guilty plea."  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  Appellant contends that the passing reference to the conditional-release period that was made during the plea hearing was insufficient to apprise him of all the consequences of his guilty plea. 

            At the plea hearing, the prosecutor said:

I would also state for the record that it will be our position that Minnesota Statute 609.109, Subdivision 2 is applicable here.  That calls for a minimum sentence of three years.

 

            . . . .

 

            . . . And there will also be, of course, applicable of Subdivision 7, a conditional-release period for sexual offenders.  But that's a mandatory circumstance as well.   

 

Immediately after the prosecutor referred to the conditional-release period, the district court asked appellant if it was his intent to accept the agreement and plead guilty to the amended complaint and whether he understood that the amendment reduced the severity level of the offense.  Appellant answered, "Yes, [y]our honor."

            In State v. Rhodes, the defendant pleaded guilty with the understanding that he would receive a maximum executed sentence of 105 months.  675 N.W.2d 323 (Minn. 2004).  The plea petition did not refer to the mandatory conditional-release term, and the conditional-release term was not discussed at the plea hearing.  Id. The presentence investigation report stated that the defendant was subject to a five-year conditional-release term, and at the sentencing hearing, the state specifically stated to the court that the defendant would be sentenced to a five-year conditional-release term.  Id.   When appellant and his counsel were given an opportunity to speak at the sentencing hearing, neither said anything about the conditional-release term.  Id.  While sentencing the defendant, the district court stated that the defendant was subject to the five-year conditional-release term.  Id.  The court then asked the defendant if there were any questions, and his counsel answered, "No, your honor."  Id.  Three years later, the defendant petitioned for postconviction relief, requesting that he be allowed to withdraw his guilty plea or that the conditional-release term be reduced, and his petition was denied.  Id.

            Like appellant, the defendant in Rhodes argued on appeal that his guilty plea was not intelligent because he was not informed about the mandatory conditional-release period at the time that he entered his plea.  Id. at 327.  The supreme court concluded that the postconviction court could infer from the defendant's failure to object to the presentence investigation's recommendation, the prosecutor's statement at the sentencing hearing, and the court's imposition of the sentence that the defendant understood from the beginning that the conditional-release term would be a mandatory addition to his plea bargain.  Id. at 327.

            The circumstances under which the conditional-release term was included in appellant's sentence provide less reason to conclude that appellant's plea was not intelligent than was present in Rhodes because the state referred to the mandatory conditional-release term in appellant's presence at the plea hearing before appellant pleaded guilty.    Therefore, appellant received notice of the conditional-release term before he entered his plea, and neither he nor his counsel objected. 

            The postconviction court could infer from appellant's failure to object at the plea hearing or the sentencing hearing that appellant understood at the time he entered his plea that the conditional-release term would be imposed.  The district court did not abuse its discretion in denying appellant's request to withdraw his plea.

2.         Sentence not authorized by law

            Appellant argues that under his plea agreement, he was promised a sentence in accordance with the sentencing guidelines in exchange for his guilty plea on two counts, and the district court failed to impose a presumptive guidelines sentence.  Appellant contends that the sentence he received is not a presumptive guidelines sentence because the consecutive sentences imposed are not authorized by law when both offenses were committed against the same person and were part of the same course of conduct. 

Citing Spann v. State, 704 N.W.2d 486, 488 n.1 (Minn. 2005), and O'Meara v. State, 679 N.W.2d 334, 341 n.6 (Minn. 2004), appellant argues that consecutive sentences for multiple offenses committed against the same person are not authorized by law.  Those cases involved sentences for offenses committed against separate individuals, and in O'Meara, the supreme court stated, "Consecutive sentences are permissive for multiple current felony convictions of crimes against separate individuals, and consecutive sentencing under these circumstances is not a departure from the sentencing guidelines."[3]  679 N.W.2d at 341.  Appellant incorrectly reads this sentence to mean that consecutive sentences are permissive only when crimes are against separate individuals.  But the supreme court's reference to separate individuals simply reflects the fact that the sentence in O'Meara was for offenses against separate individuals; the supreme court did not create a rule that limited consecutive sentences to offenses against separate individuals.  Under the sentencing guidelines, consecutive sentences are permissive for multiple third-degree criminal-sexual-conduct offenses even when the offenses involve a single victim and a single course of conduct.  Minn. Sent. Guidelines II.F.2, cmt. II.F.04 (1998); see also Minn. Sent. Guidelines V (1998) (offense severity reference table).  Permissive consecutive sentences may be imposed without citing reasons for departure.  Minn. Sent. Guidelines cmt. II.F.04. 

            Appellant also argues that his consecutive sentences are unlawful because the state's over-use and over-counting of his single Arizona conviction constitutes double punishment in violation of his constitutional rights.  Under Minn. Stat. § 609.109, subd. 2 (1998), "if a person is convicted under sections 609.342 to 609.345, within 15 years of a previous sex offense conviction, the court shall commit the defendant to the commissioner of corrections for not less than three years."  The presumptive duration of the sentence is "the mandatory minimum sentence according to statute or the duration of prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer."  Minn. Sent. Guidelines II.E (1998). 

            Appellant was convicted of two counts of third-degree criminal sexual conduct within 15 years of his Arizona conviction, and the Arizona conviction was for a sex offense.  Appellant acknowledges that Minn. Stat. § 609.109, subd. 2, explains the mandatory minimum 36-month sentence for one of his offenses, but he contends that it does not explain the 36-month sentence for his other offense.  Appellant fails to recognize that because both of his convictions under Minn. Stat. § 609.344 occurred within 15 years of his Arizona conviction, the 36-month sentence required under Minn. Stat. § 609.109, subd. 2, applies to each offense.  Appellant's sentence does not impose double punishment for one of his offenses; it imposes the same punishment for each of his two offenses.  Appellant has not shown that his sentence was not authorized by law.

3.         Failure to comply with Minn.  Stat. § 244.101

            Appellant argues that because the district court failed to adhere to the requirements of Minn. Stat. § 244.101, subd. 2 (1998), when sentencing appellant, the district court did not have jurisdiction to sentence him.  That statute states:

            When a court pronounces an executed sentence under this section, it shall explain:  (1) the total length of the executed sentence;  (2) the amount of time the defendant will serve in prison;  and (3) the amount of time the defendant will serve on supervised release, assuming the defendant commits no disciplinary offense in prison that results in the imposition of a disciplinary confinement period.  The court shall also explain that the amount of time the defendant actually serves in prison may be extended by the commissioner if the defendant commits any disciplinary offenses in prison and that this extension could result in the defendant's serving the entire executed sentence in prison.  The court's explanation shall be included in a written summary of the sentence.

 

Minn. Stat. § 244.101, subd. 2 (emphasis added).

            Appellant correctly states that under the canons of statutory construction, "shall" is mandatory.  See Minn. Stat. § 645.44, subd. 16 (2006) (stating, "‘Shall' is mandatory.").  But appellant has not identified any authority for his claim that failing to comply with the mandatory requirements of Minn. Stat. § 244.101, subd. 2, deprived the district court of jurisdiction to sentence appellant.

            When a statute does not explicitly declare the consequences of a failure to comply with the statute, we construe the language as directory only.  Carl Bolander & Sons Co. v. City of Minneapolis, 488 N.W.2d 804, 809-10 (Minn. App. 1992), aff'd, 502 N.W.2d 203 (Minn. 1993).  "Violation of a directory statute does not result in the invalidity of the action taken."  Id. at 810 (quotation omitted).  Because Minn. Stat. § 244.101, subd. 2, does not declare the consequences of a sentencing court's failure to comply with the statute, there is no basis to conclude that failing to comply with the statute deprived the district court of jurisdiction to sentence appellant.

            Affirmed.

[1] The statement in brackets is in the original plea petition.

 

[2] A plea is voluntary if it is not made in response to improper pressures or inducements.  Alanis,583 N.W.2d at 577.  Appellant does not identify any improper pressures or inducements that prompted his guilty plea.  However, the gist of appellant's argument is that he did not know the consequences of his plea when he pleaded guilty. Therefore, although appellant claims that his plea was involuntary, we will analyze the claim as if appellant had claimed that his plea was not knowingly and understandingly made.    

 

[3] This statement is quoted in part in Spann.  704 N.W.2d at 488 n.1.