Opinion
No. C6-97-559.
Filed September 9, 1997.
Appeal from the District Court, Ramsey County, File No. K895831.
Hubert H. Humphrey III, Attorney General, (for respondent).
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, (for respondent).
Lorenzo Johnson, (pro se appellant).
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
By postconviction petition, appellant sought to have his convictions and sentences for second-degree felony murder and first-degree assault vacated, alleging that the restitution order breached the plea agreement and that he was denied effective assistance of postconviction counsel in an earlier proceeding. We affirm the postconviction court's summary denial of appellant's petition.
FACTS
In March 1995, appellant Lorenzo Johnson stabbed two men, killing one and seriously wounding the other. Johnson pleaded guilty to second-degree felony murder and first-degree assault. He was sentenced to executed consecutive terms of 150 and 86 months (a total of 19 years, 8 months) and ordered to pay restitution totaling $4,956.90.
In October 1995, Johnson, with the assistance of counsel, petitioned for postconviction relief, seeking to withdraw his plea on the basis of ineffective assistance of trial counsel. He also challenged the consecutive sentences on the ground that they unfairly exaggerated the criminality of his conduct. Following an evidentiary hearing, the postconviction court denied relief on both grounds. This court affirmed that order. Johnson v. State , C6-96-597 (Minn.App. Sept. 3, 1996), review denied (Minn. Oct. 15, 1996).
In December 1996, Johnson, now pro se, brought a second petition for postconviction relief in which he requested that his convictions and sentences be vacated on the grounds that (1) he had, in the first postconviction proceeding, been denied effective assistance of counsel and (2) restitution was not part of the plea agreement. The district court summarily denied relief and Johnson now appeals.
DECISION
This court's review of a postconviction proceeding is limited to determining whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State , 484 N.W.2d 21, 25 (Minn. 1992). A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash , 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968). Absent an abuse of discretion, a postconviction court's decision will not be disturbed on appeal. McMaster v. State , 551 N.W.2d 218, 218 (Minn. 1996).
A postconviction court is not required to hold an evidentiary hearing on a petition for postconviction relief unless the petitioner alleges facts that, "if proved by a fair preponderance of the evidence, would entitle [the petitioner] to the requested relief." Roby v. State , 547 N.W.2d 354, 356 (Minn. 1996).
I. Ineffective Assistance of Appellate Counsel
When a postconviction petitioner claims ineffective assistance of counsel, the petitioner must allege facts affirmatively proving that counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Gates v. State , 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2068 (1984)).
Johnson alleges that his postconviction counsel was ineffective in that she failed to: (1) address the issue of coercion of his guilty pleas, subpoena witnesses, and obtain an affidavit from trial counsel's co-counsel; and (2) address the restitution order, which Johnson claims breached the plea agreement.
The alleged coercion of pleas was, in fact, raised as part of the ineffective assistance of trial counsel assertion in Johnson's first postconviction petition. The first postconviction court concluded that Johnson "was adequately represented at all times." This court has already affirmed that conclusion. Johnson , unpub. op. at 4.
As to the postconviction counsel's failure to obtain the testimony of trial co-counsel on the adequacy of counsel issue, the record indicates that it was the postconviction counsel's "professional opinion that [co-counsel's] testimony would do more harm than good for Mr. Johnson's case" and that she "made [a] tactical decision not to call [trial co-counsel]." The choice of what witnesses to call lies "within the proper discretion of * * * counsel." State v. Jones , 392 N.W.2d 224, 236 (Minn. 1986).
In evaluating the counsel's performance, we note that there is no evidence in the record that restitution was then of concern to Johnson. Nor does Johnson explain in what respect the restitution order needed to be addressed or how the outcome of the first postconviction proceeding would have been different had his postconviction counsel addressed this issue. Petitioner's allegations "must be `more than argumentative assertions without factual support.'" Roby , 547 N.W.2d at 356 (quoting Beltowski v. State , 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).
In his first postconviction petition, Johnson sought to withdraw his plea. The court shall allow a defendant to withdraw a guilty plea after sentencing only upon a showing that it is necessary to correct a manifest injustice. Minn.R.Crim.P. 15.05, subd. 1. Johnson alleges no facts showing that, absent the alleged errors of his postconviction counsel, the first postconviction court would have allowed withdrawal of the guilty plea.
The second postconviction court did not abuse its discretion in concluding that Johnson had effective assistance from his initial postconviction counsel.
II. Restitution
Johnson now argues that the restitution order must be vacated because it breached the plea agreement.
Restitution was ordered to cover funeral expenses and a headstone. See Minn. Stat. § 611A.04, subd. 1 ("A request for restitution may include * * * any out-of-pocket losses resulting from the crime, including * * * funeral expenses.").
A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge * * * against the offender if the offender is convicted * * *.
Minn. Stat. § 611A.04, subd. 1(a) (1996). Upon conviction of a felony, the sentencing court may sentence the defendant "to payment of court-ordered restitution in addition to * * * imprisonment." Minn. Stat. § 609.10 (1996); see also State v. Wallace , 545 N.W.2d 674, 677 (Minn.App. 1996) (restitution is statutorily authorized and may be imposed in addition to imprisonment), review denied (Minn. May 21, 1996). "The trial court has broad discretion in imposing restitution." State v. Olson , 381 N.W.2d 899, 900 (Minn.App. 1986). A sentencing judge may impose restitution even though it is not part of the plea agreement. State v. Anderson , 507 N.W.2d 245, 247 (Minn.App. 1993), review denied (Minn. Dec. 22, 1993).
Johnson appears to be arguing that, had he known about the restitution, he would not have entered a plea. But the restitution amounts and the reason for restitution were explained at the sentencing hearing. At that time, Johnson's trial counsel was given an opportunity to respond, which he expressly declined to do. See Anderson , 507 N.W.2d at 247 (defendant's failure to object to restitution constitutes waiver of argument that restitution violates terms of plea agreement).
Johnson's reliance on State v. Noreen , 354 N.W.2d 77 (Minn.App. 1984), and State v. Chapman , 362 N.W.2d 401 (Minn.App. 1985), review denied (Minn. May 1, 1985), is misplaced. In neither case was the defendant challenging restitution in its entirety, only whether he had to pay for certain items that were not normally compensable through restitution. Noreen , 354 N.W.2d at 78-79; Chapman , 362 N.W.2d at 404.
Johnson also argues that the restitution order must be vacated because some expenses were not documented. The record shows, however, that documentation for the funeral expenses and headstone were available at the sentencing hearing. Documentation for some medical bills was not available, but those amounts were not included in the restitution order.
The second postconviction court did not abuse its discretion in upholding the restitution order.