Michael Stanley Hecimovich, Petitioner, Appellant, vs. State of Minnesota, Respondent.

Michael Stanley Hecimovich, Petitioner, Appellant, vs. State of Minnesota, Respondent. A06-2046, Court of Appeals Unpublished Decision, November 13, 2007.

This opinion will be unpublished and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
A06-2046
 

 

Michael Stanley Hecimovich,
Petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed November 13, 2007

Affirmed

Harten , Judge*

 

St. Louis County District Court

File No. K9-05-300295

 

 

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

 

Melanie S. Ford, St. Louis County Attorney, John E. DeSanto, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Harten, Judge.
 

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellant challenges the district court's denial of his postconviction petition to withdraw his guilty plea.  Because we see no abuse of discretion in the denial, we affirm.

FACTS

 

            In March 2005, appellant Michael Hecimovich was arrested and charged with two counts of making terroristic threats.  The court set bail at $100,000.  While in jail, appellant did not have access to the prescription medication he takes for his mental health condition.

            In April 2005, appellant, pro se, demanded a speedy trial.  Later, when represented by counsel, his attorney informed him by letter that he must choose either to represent himself or to let his attorney handle all communication with the court.

            In May 2005, appellant's attorney faxed appellant's physician saying that appellant needed his prescribed mental health medication if he was to participate intelligently in his defense.  The physician faxed a letter identifying the medication that had been prescribed for appellant and stating that he should receive the medication while he was incarcerated. 

            At the omnibus hearing, appellant's attorney asked the court to consider pretrial release and electronic home monitoring because attempts to get appellant his medication had not been successful.  The district court denied the request to release appellant but agreed to direct the jail to provide appellant with his medication.  After the omnibus hearing, appellant asked his attorney to do what was necessary to get appellant out of jail. 

            The presumptive sentence that appellant faced was 15 months' incarceration.  After his attorney negotiated a guilty plea to count two of the complaint in exchange for a stayed sentence of a year and a day, supervised probation for five years, and dismissal of count one, appellant pleaded guilty to count two on 31 May 2005.  Despite the district court's order, appellant had not received his medication while in jail, but he was released immediately after the sentencing hearing on 24 June 2005, had his prescriptions filled, and resumed taking the medication.

            In March 2006, appellant filed a petition for postconviction relief, seeking to withdraw his guilty plea on the ground that it was not made knowingly, intelligently, and voluntarily.  Following a hearing, the postconviction court denied the petition.  Appellant challenges the denial, arguing that the postconviction court abused its discretion by not permitting appellant to withdraw his guilty plea.[1]

D E C I S I O N

            To withdraw a petition to plead guilty after sentencing, a petitioner must show that "withdrawal [of the plea] is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  A reviewing court will reverse the district court's determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).    The scope of review is limited to whether there is sufficient evidence to sustain the findings of the postconviction court.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). 

            Appellant argues that his guilty plea should be withdrawn because, at the time he made the plea, he was deprived of his mental health medication and he pleaded guilty to get out of jail and have access to his medication.  The district court noted that "even though this situation [not receiving his medication] caused [appellant] undue discomfort and anxiety, the Court believes that his plea was knowing, voluntary and intelligent."    A review of the record provides ample evidence to sustain this finding.[2]   Throughout the proceedings, appellant's own statements demonstrate that his plea was knowing, voluntary, and intelligent.

            On his written petition to plead guilty, appellant indicated that he did not "make the claim that the fact that [he had] been held in jail since [his] arrest and could not post bail caused [him] to decide to plead guilty in order to get the thing over with rather than waiting for [his] turn at trial."  He said that his attorney and the prosecutor had agreed (1) to dismissal of count one; (2) that he would be sentenced to a year and a day, stayed; (3) that he would be on supervised probation for five years; (4) that he would enter an Alford plea on count two; and (5) that he would provide a factual basis for the plea at the sentencing hearing.  He did not mention being deprived of his medication.

            At the hearing on his petition, appellant was asked how he pleaded and he said, "I plead guilty pursuant to Alford versus North Carolina."  His attorney then explained what an Alford plea was on the record.  In response to questions from his attorney, he said that no one had promised him anything or made any threats to him, his friends, or members of his family to induce him to plead guilty, that he was given an opportunity to have his attorney answer his questions about the petition, and that he signed the petition because he wanted to.   He said nothing about not having received his medication.

            At the sentencing hearing, appellant admitted that he had told his mother he would burn the house down if she put it up for sale and that he did this to terrorize her and cause her anxiety.  He also told the district court he understood the conditions of his probation and did not think he would have any trouble complying with them.   Again, he made no reference to not having received his medication.

            At the hearing on his postconviction petition, appellant was asked repeatedly if he found any injustice in his sentence.  He answered that he knew the presumptive sentence would be 15 months, that he asked his attorney to negotiate a deal, and that the attorney had the sentence reduced to a year and a day with five years of probation, and that he was satisfied with this sentence.  His only objection was that the conditions of his probation should have been written on the petition to plead guilty.  But, when he was asked if he had been on probation before and if he knew that the probation office had set up specific conditions of his probation, he answered, "Yes."   He also agreed that the conditions of his probation were normal and reasonable, with two exceptions: he was required to drive to Virginia to report to his probation officer because the local probation officer was one of the persons he had threatened, and he was required to stay away from the home of his mother and his brother because they had been the victims of his terroristic threats.  When asked what injustice was being done to him as a result of his plea agreement, he said only that he thought the conditions of his probation should have been incorporated into his plea agreement. 

We conclude that evidence supports the postconviction court's findings, and appellant did not show that withdrawal of his plea was necessary to correct a manifest injustice.  See Minn. R. Crim. P. 15.05, subd. 1.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant also argues eight other issues in his pro se brief.  All are defective substantively or procedurally:  (1) Appellant argues that his rights to due process and free speech were violated by a letter from his attorney telling him that either he should represent himself or he should let his attorney communicate with the court for him.  Appellant testified that, despite the letter, he wanted that attorney to represent him and the attorney did so adequately.  (2) Appellant argues that he was denied his right to allocution; the transcript shows that the district court asked him before sentencing if he had questions or comments.  (3) Appellant appears to argue that the district court erred in accepting his Alford plea because the factual basis was inadequate.  The transcript shows that appellant was asked whether he argued with his mother, told her he would burn the house down, and did this to terrorize her and cause her anxiety; he answered all three questions in the affirmative, and his attorney said, "I think I've got enough factual basis."   (4) Appellant argues that his plea was not intelligent because he was not adequately advised about an Alford plea; again, the transcript shows he had been advised and knew what an Alford plea was.  (5) Appellant argues that his plea was not intelligent because he was not advised at the time as to the amount of the fine that would be imposed as a condition of probation.  He testified that he knew a fine was likely to be a condition of probation and that imposing a fine was not unfair.  (6) Appellant appears to argue that he was deprived of his right to liberty by the conditions of his probation; he offers no support for his bare assertion that probation is unconstitutional.  (7) Appellant argues that the probation conditions were a breach of the plea agreement; again, this is appellant's unsupported assertion.  (8)  Finally, appellant alleges prosecutorial misconduct and forgery because of discrepancies in two signatures of an assistant county attorney.  This is solely an allegation; moreover, appellant does not explain how he was prejudiced.  See State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (new trial on the basis of prosecutorial misconduct granted only if defendant's constitutional right to a fair trial was impaired).

[2]The record is not entirely clear on the point, but it appears that at least part of the problem with appellant's medications was the fact that his prescriptions had expired.