Ronald Edward Hott, petitioner, Appellant, vs. State of Minnesota, Respondent.

Ronald Edward Hott, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-1280, Court of Appeals Unpublished, May 29, 2007.

This opinion will be unpublished and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

A06-1280

 

Ronald Edward Hott, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed ­­­May 29, 2007

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 05063208

 

John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court's denial of his motion for sentence correction following his conviction of theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(1), arguing that the state failed to establish that he intended to permanently deprive the owner of the vehicle.  We affirm.

FACTS

In July 2005, the police received a report that a Chevy Caprice was stolen in Brooklyn Center, and that a cell phone, toolbox, and tools were stolen from a Pontiac Grand Am in Minnetonka.  Subsequently, the police observed the Caprice in Golden Valley.  Following a foot chase, appellant was arrested, and the Caprice and the stolen goods from the Grand Am were recovered.  Later that month, appellant was charged with theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(17) (2004), and felony receipt of stolen property under Minn. Stat. § 609.53, subd. 1 (2004). 

In September 2005, the police received a report that an Oldsmobile Cutlass was stolen.  A few days later the police observed the Cutlass and identified appellant as the driver.  Appellant was later charged with theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(17).

In October 2005, police received a report that a Chevy Suburban had been stolen from a parking lot in Minneapolis the previous night.  Later that day, the police observed appellant driving the Suburban and signaled him to stop.  Appellant attempted to evade the police by accelerating down an alley for two blocks, jumping out of the vehicle, and hiding from the police.  Appellant was located by the police and arrested.  Appellant was charged with theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(17), and fleeing a police officer in a motor vehicle under Minn. Stat. § 609.487, subd. 2 (2004). 

            In November 2005, appellant pleaded guilty to an amended count of theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(1) (2004), which, unlike the original theft charges, includes a requirement of intent to permanently deprive the owner of the property.  In exchange, the state agreed to dismiss the charges related to the July and September incidents and to not charge appellant for other theft of motor vehicle matters that occurred prior to October 1, 2005.  Based on appellant's agreed-upon criminal history score of five, the amended charge carried a presumptive sentence of 27 months with a range of 23 to 32 months.  The district court accepted the guilty plea and appellant agreed to a sentence of 30 months.

            In February 2006, appellant filed a pro se motion for sentence correction under Minn. R. Crim. P. 27.03, subd. 9, with a request for appointment of counsel.  Appellant requested that he be resentenced to the presumptive sentence on the original charge, arguing that his admission did not supply a sufficient basis for the amended charge of theft of a motor vehicle with intent to permanently deprive the owner of the vehicle.  Following arguments, the district court denied appellant's motion, concluding that the evidence in the record supported the conclusion that appellant intended to permanently deprive the owner of the vehicle.  This appeal followed.

D E C I S I O N

I.

            Appellant contends that the district court abused its discretion by denying his motion for sentence correction, arguing that there was no adequate factual basis to support the conviction. Minn. R. Crim. P. 27.03, subd. 9, provides that a court "at any time may correct a sentence not authorized by law."  On appeal from a district court's denial of a rule 27.03 motion, this court "will not reevaluate a sentence if the trial court's discretion has been properly exercised and the sentence is authorized by law."  State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (quoting Fritz v. State, 284 N.W.2d 377, 386 (Minn. 1979)). 

            Here, appellant seeks a sentence correction on the ground that the facts elicited at the guilty plea hearing do not provide an adequate factual basis for a conviction.  Essentially, appellant argues that the facts elicited at the guilty plea hearing do not establish intent to permanently deprive the owner of the vehicle and, therefore, he should be resentenced under the original charge, which carries a presumptive sentence of 21 months, instead of the 30 months to which he was sentenced.  Thus, appellant seeks to keep his deal with the state that all other charges against him be dismissed in exchange for his guilty plea to the amended charge, but argues that the facts elicited at the hearing are not sufficient to support a conviction.

            But a motion for sentence correction under rule 27 does not provide a basis for the relief appellant seeks.  Specifically, rule 27.03 contemplates correction only of unauthorized sentences; it does not address the validity of the underlying conviction.  See Minn. R. Crim. P. 27.03, subd. 9.  Because appellant's sentence of 30 months comports with the presumptive sentence for his conviction of the amended charge under Minn. Stat. § 609.52, subd. 2(1) (2004), his sentence is authorized by law and rule 27.03 offers appellant no relief.

            But even if we were to consider the validity of appellant's conviction, appellant's argument lacks merit.  Once a guilty plea is entered and the defendant is sentenced, there is "no absolute right" to withdraw the plea.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  A defendant may, however, withdraw the plea if the withdrawal is necessary to "correct a manifest injustice."[1]  Minn. R. Crim. P. 15.05, subd. 1; State v. Ecker, 524 N.W.2d 712, 715-16 (Minn. 1994).  Manifest injustice occurs when a guilty plea is not "accurate, voluntary, and intelligent (i.e., knowingly and understandingly made)."  Id. at 716. 

Appellant does not question that the guilty plea was knowingly and voluntarily made.  Here, the district court observed that "[appellant] knew every detail of the negotiation, was given time to consider the offer and proceeded knowingly and voluntarily."  But appellant does argue that the plea was "inaccurate."

To be "accurate," a proper factual basis for the guilty plea must be established.  Id.  A factual basis is sufficient when the record shows that there is "credible evidence available which would support a jury verdict that defendant is guilty of at least as great a crime as that to which he pled guilty."  State v. Genereux, 272 N.W.2d 33, 34 (Minn. 1978).  Credible evidence consists of admissions or statements of the defendant, witness statements, or other evidence in the record.  Id.at 34 n.2 (admissions and statements of the defendant); State v. Schroeder, 401 N.W.2d 671, 675 (Minn. App. 1987) (witness statements and other evidence), review denied (Minn. Apr. 23, 1987). 

Minn. Stat. § 609.52, subd. 2(1), provides that anyone who "intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property" may be convicted of theft.  (Emphasis added.)  Intent to permanently deprive may be inferred from the facts and circumstances of the offense.  See State v. Duea, 414 N.W.2d 513, 515 (Minn. App. 1987) (concluding that possession of stolen property shortly after the theft and refusal to talk to police when asked about the property was sufficient to support intent to permanently deprive).  "[I]t is well established that unexplained possession of stolen property within a reasonable time after a burglary or theft will in and of itself be sufficient to sustain a conviction."  Id.  (quoting State v. Bagley, 286 Minn. 180, 188, 175 N.W.2d 448, 454 (1970)).  

Appellant argues that his failure to admit that he intended to permanently deprive the owner of the vehicle precluded a finding of the requisite intent.  The district court rejected appellant's argument, concluding his admission that he didn't know the vehicle's owner and that he drove the vehicle without permission, coupled with fleeing from the police, "mitigate against any conclusion that [appellant] intended to return the vehicle to its rightful owner."

            We agree.  Appellant's unauthorized use of the vehicle and use of the vehicle to flee the police is sufficient to prove the requisite intent.  Further, appellant's possession of the car the day after it was stolen supports a conclusion that he had the intent to permanently deprive the owner.  Cf. Duea, 414 N.W.2d at 515 (concluding that possession of tools shortly after their disappearance by person who stuffed tools into his pockets, avoided speaking with police, and gave inadequate explanation for his possession of tools supported inference that appellant had requisite intent to support conviction under Minn. Stat. § 609.52, subd. 2(1)).

Appellant argues that he was merely "joy riding" and compares his situation to several cases involving car thefts, but those cases are factually and legal distinguishable and do not compel the result he seeks.  Here, the conviction is supported by a sufficient factual basis in the record.  Therefore, the plea is accurate, and the district court did not abuse its discretion by denying appellant's motion.

II.

            Appellant has filed a supplemental pro se brief, in which he argues that he did not know that the amended charge required an intent to permanently deprive the owner as an element, and that he "would have never pled guilty to this as this was not [his] intention."  But even without an admission on intent, there is ample evidence on the record "which would support a jury verdict that [appellant] is guilty of at least as great a crime as that to which he pled guilty."  Genereux, 272 N.W.2d at 34. 

            Appellant also argues that his attorney lied to him and told him that his fiancée needed to leave the state to see her father who had a stroke in order to manipulate him into pleading guilty that day.  There is no evidence to support appellant's accusation against his defense attorney.

            Further, appellant argues that the district court was biased in favor of the prosecuting attorney based on the timing of various correspondences, the district court's grant of a continuance to the prosecution, and the district court's alleged failure to rule on his motion in 90 days.  These arguments likewise lack merit. 

            Affirmed.      

[1] We should note that appellant does not seek to withdraw his plea.  Rather, he has argued that "he should be allowed to not withdraw his plea" and instead receive a lower sentence on the basis of his plea.  But if appellant's plea truly were without factual basis, the only suitable remedy would be plea withdrawal under Minn. R. Crim. P. 15.05, subd. 1, because reducing the sentence would change the terms of the negotiated plea bargain.  Cf. State v. Misquadace, 629 N.W.2d 487, 491 (Minn. App. 2001), aff'd, 644 N.W.2d 65 (Minn. 2002) (declining to modify appellant's sentence without remand because the sentence was part of a negotiated package involving other charges).