State v. Petschl, A031803.

• Decision Date: 23 November 2004
• Docket Number: No. A031803.,A031803.
• Citation: 692 N.W.2d 463
• Parties: STATE of Minnesota, Respondent, v. Shane Michael PETSCHL, Appellant.
• Court: Minnesota Court of Appeals

692 N.W.2d 463

STATE of Minnesota, Respondent, v. Shane Michael PETSCHL, Appellant.

No. A031803.

Court of Appeals of Minnesota.

November 23, 2004.

Mike Hatch, Attorney General, St. Paul.

Donald F. Ryan, Crow Wing County Attorney, John Sausen, Assistant County Attorney, Brainerd, for respondent.

Rachael Goldberger, Strauss & Goldberger, Minneapolis, for appellant.

Considered and decided by KLAPHAKE, Presiding Judge; PETERSON, Judge; and HUDSON, Judge.

OPINION

HUDSON, J.

Appellant argues that (1) his counsel was ineffective for not clearly explaining to appellant that the district court could impose an upward departure regardless of the state's agreement not to seek an upward departure; (2) the district court erred in sentencing appellant without considering the results from a court-ordered neuropsychological examination; (3) the district court abused its discretion in granting a double upward departure; and (4) he was denied due process. The postconviction court rejected appellant's claims. At oral argument, the parties were granted leave, at appellant's counsel's request, to file supplemental briefs addressing the impact of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and specifically whether Blakely applies retroactively to appellant's conviction. Because Blakely does not apply retroactively in this case, and because the postconviction court did not abuse its discretion in denying appellant's postconviction petition, we affirm.

FACTS

Appellant Shane Michael Petschl was charged with first-degree assault for putting a blanket over his three-week old son's head and punching him. Petschl pleaded guilty to first-degree assault in exchange for the state's agreement not to seek an upward departure. At the plea hearing, the district court judge asked appellant if he understood that the district court could still depart upward from the sentencing guidelines, even though the state had agreed not to seek an upward departure. Appellant acknowledged that the decision to upwardly depart was the district court's sole prerogative.

The district court ordered a presentence investigation and a psychological evaluation, and the presentence investigation recommended an upward departure. On July 21, 1997, the district court sent a notice to the county attorney and appellant's counsel informing them that it was considering a departure from the sentencing guidelines. Appellant contends, however, that his counsel never informed him of the court's notice. After receiving the results of the psychological exam on October 30, 1997, the district court ordered an additional independent neuropsychological examination to determine whether a 1991 head injury suffered by Petschl had resulted in his diminished capacity. The order stated that the examination was to be completed within 30 days. The examination was performed on November 17, and December 5, 1997, but the results were not filed with the district court until December 18, 1997, a week after sentencing. The district court sentenced appellant without reviewing the examination report. Appellant's attorney did not object to the district court's decision to proceed with sentencing without reviewing the report.

On December 11, 1997, the district court sentenced appellant to a 196-month commitment; a double upward departure from the presumptive 98-month sentence. In support of the departure, the district court discussed philosophical reasons for sending people to prison, stating that someone should be incarcerated for criminal conduct: as a deterrent to others, to punish the offender, for rehabilitation of the offender, and for public safety. The district court stated that all of these factors applied to appellant. Further, the district court noted that appellant had a prior record and that the victim was vulnerable. The district court concluded by stating that it accepted the rationale and recommendations of the presentence investigation.

On January 24, 2003, appellant filed a petition for postconviction relief. At the postconviction evidentiary hearing, appellant's trial attorney, Charles Halverson, testified that he did not believe it was likely that appellant would get an upward departure, and that this was his only case where the judge indicated that he was considering a departure, and then actually departed. Halverson testified that he did not remember if the judge ordered a neuropsychological examination. After the hearing, Halverson submitted an affidavit stating that after he listened to the entire postconviction hearing, he recalled that the sentencing judge had ordered an independent neuropsychological examination. Halverson also stated in the affidavit that he should have objected when the judge decided to proceed with sentencing without the report and that his failure to object constituted ineffective assistance of counsel.

Appellant testified at the postconviction hearing that he believed he was going to get the presumptive sentence of 98 months or maybe a downward departure with a "slight possibility" of an upward departure. Appellant further testified that he gave up his right to trial in order to avoid an upward departure; he knew an upward departure was possible, but his counsel led him to believe that the court would not upwardly depart. Appellant testified that he did not see the notice from the judge stating that he was considering seeking an upward departure.

The district court denied appellant's petition for postconviction relief. This appeal follows.

ISSUES

I. Was appellant denied effective assistance of counsel?

II. Does Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) apply retroactively on collateral review of appellant's conviction?

III. Did the district court abuse its discretion in granting a double upward departure from the presumptive sentencing guidelines?

IV. Was appellant denied due process?

ANALYSIS

I

First, appellant argues that his counsel was ineffective because his counsel advised him to enter into the plea agreement without a guarantee that the district court would not upwardly depart at sentencing. Appellant argues that his counsel "should have made it part of the deal that there would not be an upward departure or appellant could withdraw the plea." Additionally, appellant contends that his counsel's failure to object to the district court's decision to sentence without the results of the neuropsychological report constitutes ineffective assistance of counsel. We conclude that neither of appellant's claims constitute ineffective assistance of counsel.

Appellate courts "review a postconviction court's findings to determine whether there is sufficient evidentiary support in the record." Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Appellate courts "afford great deference to a district court's findings of fact and will not reverse the findings unless they are clearly erroneous. The decisions of a postconviction court will not be disturbed unless the court abused its discretion." Id. (citation omitted).

In determining whether to grant a defendant a new trial on the ground of ineffective assistance of counsel, the Minnesota Supreme Court adopted the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gates v. State, 398 N.W.2d 558, 561 (Minn.1987). First, the burden is on the petitioner to affirmatively prove that counsel's representation fell below an objective standard of reasonableness. Id. at 561. "[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances." State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (quotation omitted). "There is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance." Pierson v. State, 637 N.W.2d 571, 579 (Minn.2002) (quotation omitted).

Second, for a claim of ineffective assistance of counsel to stand under Strickland, the defendant must show that counsel's errors actually had an adverse effect and that but for the errors, there is a reasonable probability that the result of the proceeding would have been different. Gates, 398 N.W.2d at 561. This court may dispose of an ineffective-assistance claim when the appellant fails to prove that there was a reasonable probability the outcome would have been different. Id. at 563; see also Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70.

The postconviction court concluded that appellant was aware at the time of his plea that the plea agreement did not bind the district court at sentencing and, therefore, the district court could upwardly depart from the guidelines. Further, the district court concluded that its July 21, 1997 notice that it may depart upward did not contain any new information. Thus, as the postconviction court correctly noted, even if appellant's counsel failed to show him the notice, it "was not an omission outside the wide range of professionally competent assistance, since [appellant] was already aware that the Court could consider an upward departure."

Moreover, at the guilty-plea hearing, the district court asked appellant: "[a]lthough the agreement has been that the State would not ask for an upward departure, you still realize that a court can upward depart from the Sentencing Guidelines?" Appellant replied affirmatively. The court asked appellant three follow-up questions, ensuring that he understood the court could depart. Appellant again replied affirmatively, and the court accepted appellant's guilty plea. Appellant testified at the postconviction hearing, and argues to this court, that had he known the district court would upwardly depart, he would not have pleaded guilty. But the exchange appellant had with the court directly contradicts that testimony. Further,...