Norman Lee Davis, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-545

 

 

Norman Lee Davis, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 21, 2004

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 92097762

    Norman Lee Davis, OID # 128790, MCF-Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 and;

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

            On appeal from the denial of his postconviction petition, appellant seeks modification of the upward departure in his sentence imposed as part of his plea agreement to second-degree murder.  Because the postconviction court correctly determined that appellant was not entitled to notice from the court of the upward departure agreed to in the plea agreement, and the sentencing court made adequate findings, we affirm.

D E C I S I O N

            "A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside."  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  The decisions of a postconviction court will not be disturbed absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). 

            Appellant concedes that the "evidence in this case is overwhelming," but argues that the district court improperly imposed an upward durational departure in sentencing when it accepted his guilty plea to second-degree murder (1) without the required notice to him
regarding departure and (2) despite his objection to the departure.[1]  Appellant seeks modification of the sentence he received for second-degree murder; he does not seek withdrawal of his guilty plea and trial on the original charge of first-degree murder.

            We note preliminarily that the postconviction court properly considered the merits of this appeal.  Appellant filed a direct appeal from his conviction in 1994, but this court dismissed it, upon appellant's request, on August 12, 1994.  Merely filing a direct appeal without receiving "actual appellate review" is not a proper basis for waiver.  Rairdon v. State, 557 N.W.2d 318, 322 (Minn. 1996).  Similarly, even a nine-year delay in petitioning for postconviction relief is not a sufficient basis for denying the petition.  Id.  This delay in seeking postconviction relief, however, is properly considered when determining whether relief should be granted.  See Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991)(four-year delay); State v. Larson, 409 N.W.2d 63, 64-65 (Minn. App. 1987)(16-year delay), review denied (Minn. Sept. 23, 1987).

            Appellant argues that he was entitled to notice of the upward departure in his sentence even if it was part of the plea agreement.

            Fifteen months after appellant was indicted for the first-degree murder of his wife and faced a life sentence, he pleaded guilty to second-degree murder and a sentence of 450 months, 300 to be actually served.  In the state's outline of the agreement in court, with appellant and his attorney present, the prosecutor expressly stated that 450 months "would be an upward departure.  And the basis for the upward departure would be the victim's vulnerability and that the offense occurred in his own home in his own privacy and the extreme cruelty to the victim."  When the district court accepted the plea agreement later that day and sentenced appellant, the court stated that the 450-month sentence was an upward durational departure of 64 months.  The court also set out the bases for departure more specifically:  unusual cruelty; multiple stab wounds; violation of zone of safety, the home; vulnerability of the victim, who was under the influence of cocaine at the time; and appellant's prior felony involving injury to a person.  The district court stated that the agreed-upon sentence was less than the statutory maximum, which was 40 years, and confirmed that the sentence was imposed in accordance with the plea agreement.

            A plain reading of Minn. R. Crim. P. 27.03, subd. 1 (A)(4) indicates that the court should notify defendant's counsel if the court's consideration of the facts suggests a departure in sentencing.  Here, appellant himself, by his plea agreement, proposed departure.  There are no facts suggesting that the court was considering an upward departure independently.  The court simply agreed to accept the appellant's request for a plea.

            Allegations in a postconviction petition must be supported by facts.  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).  The record does not support appellant's claim that he objected to the departure or lack of notice there of or that he "reluctantly pled guilty."  To the contrary, the postconviction court correctly determined that appellant knew and understood that the plea agreement included an upward departure.

            Affirmed.

[1]  Appellant also moved for supplemental briefing on the application of Blakely v. Washington, 124 S. Ct. 2531 (2004), on this appeal.  Because appellant did not address whether Blakely, if applicable, would be retroactively applicable to his 1994 sentence, his motion was denied.