State v. Ward, A15-0684

State of Minnesota, Respondent, v. Earl Lionell Ward, Appellant.

A15-0684

STATE OF MINNESOTA IN COURT OF APPEALS

December 27, 2016

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed

Bratvold, Judge

Ramsey County District Court

File Nos. 62-CR-14-3922 62-CR-14-4920

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold, Judge.

UNPUBLISHED OPINION

BRATVOLD, Judge

Appellant challenges the district court's denial of his petition for postconviction relief, which sought to overturn his convictions for criminal vehicular operation and the sentence imposed. Appellant argues that his guilty plea was unintelligent, his trial counsel was ineffective, and the district court improperly imposed a sentence that was an upward durational departure from the sentencing guidelines. Because Ward's plea was intelligent, he failed to demonstrate that his trial counsel's performance was objectively unreasonable, and the district court did not abuse its discretion in sentencing him under the career offender statute, we affirm.

FACTS

In the early morning hours on July 1, 2014, appellant Earl Lionell Ward drove his van down a city street at high speed, crashing into a hole in the street and causing severe injuries to his eight-year-old son and fourteen-year-old daughter who were riding without seat belts. After the accident, Ward's son's leg was "visibly twisted unnaturally with a bone protruding" and he sustained a displaced femur fracture, requiring surgical repair. Ward's daughter was "barely conscious and not moving" after the accident, her spine was almost severed, and her injuries left her quadriplegic. Ward knew at the time that his son's leg was broken and that his daughter was injured, but he did not help them and instead fled the scene of the accident before law enforcement authorities or medical assistance arrived.

The state charged Ward with two counts of criminal vehicular operation resulting in great bodily injury (fleeing the scene) under Minn. Stat. § 609.21, subd. 1(7) (2012).¹ Before the plea hearing, the state filed three notices of its intent to seek an aggravated sentence. The state also sent Ward's trial counsel an e-mail stating that it would seek the statutory-maximum sentence regardless of whether Ward pleaded guilty or was found guilty.

According to the plea hearing transcript, Ward pleaded guilty.² There was no agreement on sentencing. Ward stated that he understood that the state was seeking an aggravated sentence, and he waived his right to have a jury decide whether aggravating factors supported an upward durational sentencing departure, leaving that decision to the district court. Ward provided a factual basis for the plea, answered questions from his lawyer, the prosecution, and the district court, and submitted his signed plea petition. The plea petition was lost from the record and is unavailable for review on appeal.

The district court accepted Ward's plea and, later, held a two-day Blakely court-trial to determine whether aggravating factors supported an upward durational sentencing departure. The state argued for an upward durational departure based on two factors: (1) Ward is a "career offender" under Minn. Stat. § 609.1095, subd. 4 (2014)³; and (2) Ward committed the crimes with particular cruelty by failing to render aid. Minn. Sent. Guidelines II.D.3.b.(2) (2012); Tucker v. State, 799 N.W.2d 583, 586-87 (Minn. 2011).

On the first day of the Blakely trial, the state called Ward's daughter and son to testify about the accident. On the second day, the state offered evidence of Ward's fourteen prior felony convictions to establish that he is a career offender. Three of these prior convictions involved second-degree assault causing bodily harm, from which the state argued that Ward engaged in a "pattern of criminal conduct." The state's theory was that Ward's current and prior conduct formed a pattern of causing bodily injury. On January 26, 2015, the district court sentenced Ward to two consecutive statutory-maximum, 60-month sentences, expressly relying on the two factors identified by the state for the upward durational departure from the sentencing guidelines.

Ward timely appealed the district court's sentencing order. This court stayed the appeal pending postconviction proceedings. In his postconviction petition, Ward requested that the district court either allow him to withdraw his plea or resentence him because: (1) the state wrongfully induced him into involuntarily pleading guilty by making a false promise that his children would not be called to testify; (2) his plea was unintelligent because he did not know the maximum possible sentence before pleading guilty; (3) the district court improperly applied the career offender statute; and (4) the district court's more-than-double durational departure from the sentencing guidelines was unsupported by severe aggravating factors.

The district court held an evidentiary hearing on Ward's plea-withdrawal claims. Ward's trial counsel, the trial prosecutor, and Ward testified. Ward testified that he did not know the maximum possible sentence before pleading guilty and that he was induced into pleading guilty by the state's promise that his children would not be called to testify.

Counsel and the prosecutor testified that neither of them promised Ward that his children would not be called to testify if he pleaded guilty. Counsel stated that, before the plea, she advised Ward of the maximum possible sentence and that the state was seeking an aggravated sentence. Additionally, counsel explained that sometime after pleading guilty but before sentencing, Ward asked her if he could withdraw his plea. She told Ward that they would need to request a continuance so that conflict counsel could be appointed to assist him. Counsel testified that she believed conflict counsel was necessary because Ward's plea-withdrawal claim was based on the advice she provided Ward about the plea.

The district court allowed the parties to submit memoranda and took the motion under advisement. In the district court's written order denying Ward's motion, the district court specifically credited counsel's testimony and discredited Ward's testimony. The district court concluded that the state made no promise that Ward's children would not be called to testify, Ward's plea was intelligent, the evidence sufficiently supported a finding that Ward had engaged in a pattern of criminal conduct under the career offender statute, and the district court properly relied on particular cruelty as an aggravated sentencing factor based on Ward's failure to render aid to his children. After the district court issued its order, this court dissolved the stay and reinstated this appeal.

DECISION

I. Validity of the Guilty Plea

"When a defendant initially files a direct appeal and then moves for a stay to pursue postconviction relief, we review the postconviction court's decisions using the same standard that we apply on direct appeal." State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012). "We review legal issues de novo, but on factual issues our review is limited to whether there is sufficient evidence in the record to sustain the postconviction court's findings." Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015) (citation and quotation omitted). When "credibility determinations are crucial, a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court." State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997).

The validity of a guilty plea is a legal issue that this court reviews de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). "A defendant does not have an automatic right to withdraw a valid guilty plea." Weitzel v. State, 883 N.W.2d 553, 556 (Minn. 2016). After sentencing, a defendant may withdraw a guilty plea upon a timely motion and by establishing that withdrawal is necessary "to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. The defendant bears the burden of establishing manifest injustice. Weitzel, 883 N.W.2d at 556.

A manifest injustice is shown when a guilty plea is not valid. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). To be valid, a guilty plea must be accurate, voluntary, and intelligent. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). A plea is intelligent if "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). The maximum sentence that may be imposed is a direct consequence of a guilty plea. Raleigh, 778 N.W.2d at 96. "Thus, if a defendant has been advised incorrectly about the sentence flowing from a plea, the plea may not be accurate, voluntary, and intelligent." State v. Crump, 826 N.W.2d 838, 842 (Minn. App. 2013), review denied (Minn. May 21, 2013).

Ward first asserts that his plea is invalid because it was unintelligent. He contends that, "because the district court failed to inquire at the time of the plea, there is no assurance that Ward understood that the district court could impose two, consecutive, statutory-maximum, 60-month sentences." Ward does not argue that he was unaware of the possibility of receiving two consecutive sentences. See State v. Ferguson, 808 N.W.2d 586, 590 (Minn. 2012) (holding that consecutive sentencing is permissible in cases involving multiple victims); see also Minn. Stat. § 609.15, subd. 1(a) (2012). Rather, Ward asserts that he did not know that he could receive the statutory-maximum on each sentence.

Ward and his...