Johnson v. State, A06-1102.

• Decision Date: 03 July 2007
• Docket Number: No. A06-1102.,A06-1102.
• Citation: 733 N.W.2d 834
• Parties: Marvin Orlando JOHNSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Court of Appeals

733 N.W.2d 834

Marvin Orlando JOHNSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A06-1102.

Court of Appeals of Minnesota.

July 3, 2007.

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, Minneapolis, MN, for appellant.

Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.

Considered and decided by PETERSON, Presiding Judge; SHUMAKER, Judge; and ROSS, Judge.

OPINION

SHUMAKER, Judge.

Appealing from a postconviction resentencing on a multi-count sentence, appellant Marvin Johnson argues that although the postconviction court had the authority to reduce the erroneous portion of the sentence for one aggravated-robbery conviction, the court abused its discretion when it increased the duration of his sentence for the second aggravated-robbery conviction. Since Johnson expressly negotiated his original sentence through a plea agreement and received the benefit of that plea, and since his total sentence remained unchanged in either duration or disposition, we find that he is not entitled to a reduction of his overall sentence.

FACTS

The state charged appellant Marvin Orlando Johnson with three separate aggravated robberies in 2004. When one of the cases came on for trial, he pleaded guilty to the charge. He later moved to withdraw his plea, but, before the court ruled on the motion, Johnson and the state entered a plea agreement by which he would plead guilty to one additional charge of aggravated robbery, the state would dismiss the third charge, and Johnson's aggregate sentence for two convictions would be 128 months, executed.

The aggregate sentence was composed of 98 months on the first conviction— which, based on the only record on file, the court and parties believed to be the presumptive sentence—and 30 months on the second conviction, which was a downward-durational departure from the presumptive sentence of 48 months.

The 98-month sentence was premised on a criminal-history score that included one custody-status point for probation from convictions in 2002. Without that custody-status point, the presumptive sentence for Johnson's first aggravated-robbery conviction would have been 88 months.

In 2006, Johnson petitioned for postconviction relief on the ground that the custody-status point was erroneously included in his criminal-history score because his 2002 probationary sentence had been executed before the 2004 crimes. Johnson sought resentencing and a reduction of his aggregate sentence by ten months.

The postconviction court ruled that the 98-month sentence had been erroneously calculated; resentenced Johnson to the presumptive sentence of 88 months; but increased his 30-month sentence on the second aggravated-robbery conviction to 40 months and thereby declined any overall reduction in the 128-month aggregate sentence. The court's reasoning was that Johnson "voluntarily entered into a favorable plea agreement with the State for a total sentence of 128 months. In return, a third aggravated robbery was dismissed. [Johnson] is not entitled to a reduction of his overall sentence." Johnson contends on appeal that the court's denial of a reduction of his overall sentence was error.

ISSUE

A plea bargain for a sentence of 128 months was composed of a 98-month presumptive sentence on the first charge and a 30-month downward departure from the 48-month presumptive sentence on the second. In a postconviction proceeding, appellant established that the presumptive sentence for the first charge was 88 months and requested correction. The court corrected that sentence but increased the second to 40 months so as to comport with the plea agreement.

Did the court have authority to increase the second sentence?

ANALYSIS

We note first that Johnson did not move to withdraw his pleas of guilty nor did he ask the court to vacate any plea. His challenge on appeal is solely to the court's ruling that the overall sentence to which he agreed should not be reduced. He contends that the postconviction court lacked authority to adjust the 30-month sentence upward to 40 months for his second conviction.

Appellate courts "afford great deference to a district court's findings of fact and will not reverse the findings unless they are clearly erroneous." Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). "The decisions of a postconviction court will not be disturbed unless the court abused its discretion." Id. The court abuses its discretion if it misinterprets or misapplies the law. State v. Babcock, 685 N.W.2d 36, 40 (Minn.App.2004), review denied (Minn. Oct. 20, 2004). A postconviction court's factual findings will be sustained if they are supported by sufficient evidence, Dukes, 621 N.W.2d at 251, but we independently determine the law as it applies to the facts, Townsend v. State, 723 N.W.2d 14, 18 (Minn.2006).

The only factual finding that the postconviction court made was that Johnson voluntarily entered a plea agreement that, in return for the dismissal of a charge, required a sentence of 128 months. Not only is this finding fully supported by the record, but also Johnson does not argue to the contrary.

Although we were not provided with the sentencing transcript on appeal, the postconviction-hearing transcript contains a thorough review of the plea agreement, the basis for the agreement, the parties' discussions, Johnson's statements, and the observations of the sentencing judge, who was also the...