Opinion
No. A05-1522.
Filed December 11, 2007.
Appeal from the District Court, Hennepin County, File No. 04073135.
Lori Swanson, Attorney General, and Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, (for appellant)
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant Dedrick D. Jiles challenges the denial of his petition for postconviction relief and his underlying conviction of second-degree murder, arguing that the district court erred by not appointing substitute counsel and that the postconviction court abused its discretion when it denied his petition to withdraw his guilty plea. The error in not appointing substitute counsel was harmless. The postconviction court did not abuse its discretion. We affirm.
FACTS
In October 2004 appellant was driving on a Minneapolis street when a passenger in his vehicle fired several shots. One of the shots hit a woman, who later died of her wounds. Based on his involvement in the incident, appellant was charged with second-degree murder for aiding in causing the death of a human being while committing a drive-by shooting. Minn. Stat. §§ 609.05 (2004); 609.19, subd. 1 (2004).
At a pretrial conference, appellant's trial counsel informed the court and the prosecutor that his client intended to enter a "straight plea" of guilty to the charged offense. The prosecutor indicated that the state would consider making a lenient sentencing recommendation to the court if the appellant provided the state with detailed information regarding the shooting. The judge indicated that he would seriously consider reducing appellant's sentence if appellant provided the state with satisfactory information. This information, the prosecutor stated in a confirmatory letter, must "include the details of the crime, including the identity of the other person in the car at the time of the shooting and the disposition of both the gun and the car." The letter further indicated that this information would be considered, but that "we have no agreement with regard to sentencing."
Defense counsel, understanding the state's representation to constitute a "promise," advised his client to cooperate with the police. Appellant was interviewed by police investigators on two occasions, but did not provide satisfactory information. Prior to the first interview, appellant was informed of the conditions expressed in the prosecutor's letter to defense counsel, and indicated that he understood there was no "deal" or agreement with regard to sentencing. Following the interviews, the prosecutor informed defense counsel that appellant had provided no useful, verifiable information regarding the crime or the disposition of the car or the gun. Accordingly, the prosecutor stated that the state would seek a guidelines sentence.
Appellant pleaded guilty to the charge of second-degree murder in February 2005. A few weeks after entry of his plea, and before sentencing, appellant sent an ex parte letter to the district court, indicating that the testimony he had given at the plea hearing was false and that he had offered the false testimony because his attorney had "put [him] up to it." The court forwarded copies of the letter to defense counsel and the prosecutor.
The court then sentenced appellant to 299 months imprisonment — the low end of the presumptive sentence — in May 2005. Appellant appealed his conviction, and moved this court to stay the appeal and remand to the district court for postconviction proceedings. This court granted appellant's motion. Appellant then filed a petition for postconviction relief in the district court, requesting that he be allowed to withdraw his guilty plea and proceed to trial. Following an evidentiary hearing, the postconviction court denied appellant's petition. This appeal follows.
DECISION
Appellant presents overlapping contentions that essentially raise three arguments. First, appellant argues that the district court erred when it failed to appoint substitute trial counsel. Second, appellant argues that the postconviction court abused its discretion when it denied his petition to withdraw his guilty plea. Finally, appellant argues that his plea must be reversed because the factual basis does not support a finding that he acted with the intent to cause the death of another.
I.
Appellant contends that the district court erred when it failed to appoint substitute defense counsel following receipt of appellant's March 2005 letter. We review a district court's decision not to appoint substitute counsel for an abuse of discretion. State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998); State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). A district court's failure to appoint substitute counsel is subject to harmless-error analysis. State v. Lamar, 474 N.W.2d 1, 3 (Minn.App. 1991) review denied (Minn. Sept. 13, 1991).
An accused has the right to the assistance of counsel under both the Minnesota and United States Constitutions. Minn. Const. art. I, § 6; U.S. Const. amend. VI. If he is indigent, the accused has the right to appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963). But "an indigent defendant does not have the unbridled right to be represented by the attorney of his choice." Worthy, 583 N.W.2d at 278. "He must accept the attorney appointed by the court." State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993). A request for substitute appointed counsel will be granted "only if exceptional circumstances exist and the demand is timely and reasonably made." Vance, 254 N.W.2d at 358.
Appellant argues that the ex parte letter he sent to the district court was a reasonable and timely request for substitute counsel. But the letter does not contain such a request. Nowhere in the twelve-page document does appellant indicate that he would like a new attorney appointed. At appellant's next appearance before the district court a few weeks later, in early April 2005, the court inquired directly as to how he wanted to proceed. Appellant asked for "time to talk with my lawyer." Appellant again appeared before the district court on April 11 and May 3, 2005. In neither of those appearances did he express any desire to have a new attorney appointed.
Nevertheless, appellant contends that even in the absence of an explicit request for substitute counsel, circumstances in this case were such that the district court was required to act sua sponte. Appellant further contends that the district court's failure to do so requires reversal. Relying on federal caselaw from the second, third, and eighth circuits, appellant argues that when the district court became aware of conflicts between appellant and his attorney, the court had a responsibility to make a formal inquiry into these concerns and issue a ruling on whether to appoint substitute counsel. Appellant cites United States v. Blum, 65 F.3d 1436 (8th Cir. 1995) cert. denied 516 U.S. 1097 (1996); Gilbert v. Lockhart, 930 F.2d 1356 (8th Cir. 1991); United States v. Welty, 674 F.2d 185 (3d Cir. 1982); McKee v. Harris, 649 F.2d 927 (2d Cir 1981) cert. denied 456 U.S. 917 (1982); and United States v. Morrissey, 461 F.2d 666 (2d Cir. 1972).
Appellant's authorities are inapposite. In each of these cases the trial court was presented with an explicit request from the defendant for the appointment of substitute counsel. Blum, 65 F.3d at 1439 (defendant "requested substitute counsel" at his arraignment); Gilbert, 930 F.2d at 1357 (defendant "requested new counsel" before trial); Welty, 674 F.2d at 187 (defendant "made a motion" for the appointment of substitute counsel on the third day of trial); Morrissey, 461 F.2d at 667 (defendant "request[ed] that new counsel be assigned"); McKee, 649 F.2d at 929 (defendant asked court to "assign [him] another lawyer"). Here, appellant made no such request. Appellant presents no authority from any jurisdiction supporting the proposition that a district court has an obligation to investigate and issue a ruling on whether to appoint substitute counsel absent a request from the defendant to do so.
Even if the district court was under an obligation to act in these circumstances — either because of a sua sponte obligation or because appellant's letter is deemed a pro se motion — appellant ignores the fact that the authority upon which he relies establishes a harmless error standard. See McKee, 649 F.2d at 933 ("while [the trial court] should have conducted a formal inquiry, the failure to do so in this case was harmless"); Morrissey, 461 F.2d at 670 (holding that reversal for failure to fully inquire not required where the record "discloses that defendant's most serious contentions were either incorrect or cured by subsequent actions of the trial judge"). This is the law in Minnesota. See Lamar, 474 N.W.2d at 3 (holding that appellant not entitled to new trial if the district court's failure to ascertain whether good cause exists for substitution of appointed counsel causes no harm) (citing McKee, 649 F.2d at 933).
Thus, even if the district court erred by not conducting an inquiry, appellant is not entitled to a reversal if the district court's error was harmless. This determination hinges on whether exceptional circumstances existed requiring the appointment of substitute counsel.
"[Minnesota] case law does not specifically define what constitutes an exceptional circumstance." State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001). Personal tensions, including yelling and belittling remarks, do not rise to the level of "exceptional circumstances" that would justify the appointment of substitute counsel. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Nor does the accused enjoy the right to a "meaningful relationship" with appointed counsel. Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617 (1983). "But our cases do indicate that exceptional circumstances are those that affect a court-appointed attorney's ability or competence to represent the client." Gillam, 629 N.W.2d at 449.
Here appellant's letter indicated that his attorney was "sneaky and con[n]iving" and had told appellant that it did not matter "if we win or lose[,] I'll still go home to a t-bone steak." These claims, "if true" (no evidence in the record) only amount to personal tensions which could interfere with a relationship, but do not constitute "exceptional circumstances." See Voorhees, 596 N.W.2d at 255.
Appellant's letter claimed that, during the recess of his February 2005 plea hearing, his attorney assisted him in fabricating false testimony and that appellant lied during his testimony because his attorney "put [him] up to it." Suborning perjury would raise questions about an attorney's "ability or competence" to represent his client. Gillam, 629 N.W.2d at 449. But appellant no longer asserts that these events did, in fact, happen. In an affidavit attached to his postconviction petition, appellant's recounting of the events no longer contains any claim that his attorney fabricated the false testimony. Instead, appellant now claims that the false testimony was his own invention. Appellant's trial counsel submitted an affidavit in the postconviction proceedings, which contains no indication that counsel influenced appellant to provide false testimony.
Where the postconviction record "discloses that [appellant]'s most serious contention [was] incorrect," any error in failing to hold a formal inquiry into appellant's complaints is harmless. Morrissey, 461 F.2d at 670. And where there is "no explicit request for a change in counsel and no showing of improper representation" the appellant is not entitled to reversal on appeal. Lamar, 474 N.W.2d at 3.
In sum, even if the district court was required to conduct a sua sponte inquiry, or if appellant's letter is deemed a pro se motion, "the record as a whole indicates that [appellant]'s reasons for a change of counsel were insubstantial." Morrissey, 461 F.2d at 670. Accordingly, any error the district court may have committed in failing to inquire into the matter was harmless, and the appellant is not entitled to a new trial. Lamar, 474 N.W.2d at 3.
II.
Appellant contends that the postconviction court erred when it refused to allow him to withdraw his guilty plea and proceed to trial. Appellant essentially argues that his plea was not voluntary and intelligent and was the product of ineffective assistance of his trial counsel because (1) he did not understand that he was pleading guilty to second-degree murder, (2) he did not understand that he could be sentenced for up to 306 months, and (3) his attorney failed to inform him that there was no plea-bargain arrangement in place and that he could be sentenced to as much as 306 months.
On a postconviction petition, the petitioner has the burden of establishing, by a fair preponderance of the evidence, facts which warrant relief. State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999). We review the record to determine whether there are sufficient facts to sustain the postconviction court's findings, and will not disturb these findings absent an abuse of discretion. Id. at 449-50. The postconviction court found that appellant's guilty plea was a knowing, voluntary, and intelligent waiver of rights, and that appellant received effective assistance of counsel.
Once a plea of guilty has been entered, a defendant does not have an absolute right to withdraw that plea. Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002). "Public policy favors the finality of judgments and courts are not disposed to encourage accused persons to play games with the courts by setting aside judgments of conviction based upon pleas made with deliberation and accepted by the court with caution." Id. (Quotation Omitted).
At the plea hearing, appellant testified to the following under questioning by his attorney:
Q. First of all, you're pleading guilty to aiding and abetting and second degree murder; you understand that?
A. Yeah.
. . . .
Q. And you realize that a person who aids, abets, counsels or conspires with another individual in an event like [this] is guilty just as if they had done the shooting themselves; do you understand that?
A. Yeah.
. . . .
Q. You understand that we're doing a straight plea to the Court, and that means that the Court has absolute discretion to sentence you to anything it wants to. You understand that?
A. Yeah.
Q. That means, if the Court wants to, the presumptive sentence could be as much as 306 months in prison; you understand that?
A. Yeah.
This testimony supports the postconviction court's conclusion that appellant understood he was pleading guilty to second-degree murder and was subject to as much as a 306-month sentence at the sole discretion of the court. His attorney unambiguously explained these facts to him on the record, and he indicated that he understood. The postconviction court's conclusions that appellant's guilty plea was voluntary and intelligent and not the product of ineffective assistance of counsel are supported by the record; the court did not abuse its discretion in denying appellant's petition.
The focal point of appellant's argument is that the affidavits submitted with his petition for postconviction relief show that a manifest injustice has occurred. Boiled down to its essence, the controlling issue is whether appellant was promised a "deal" or agreement with regard to sentencing. If the record showed such a promise, and if it was not forthcoming, appellant would have the right to withdraw his plea and stand trial. Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979). An examination of the record shows the contrary. Counsel's affidavit indicates that the district court promised it would "seriously consider" any cooperation appellant provided to the state. This promise was made and fulfilled: the court considered appellant's cooperation, and sentenced him to the low-end of the presumptive range. Appellant was told at the plea hearing that there was no agreement with regard to sentencing and indicated that he understood the court could sentence him to as much as 306 months if it wanted to.
Appellant's argument today is that he was told a promise was made. The record is clear that there was no promise as to a particular sentence, but there was a promise "to seriously consider" appellant's expected cooperation with the state. This bargain was made — and fulfilled. Somehow, appellant argues that his perception that he had a deal for a particular sentence, and did not get the deal he thought he had, trumps the written affidavits and trial court record, including appellant's own statements on the trial court record. As a court of appellate review we cannot find that there is an "unwritten perceived record" that transcends the written record.
III.
In his pro se supplemental brief, appellant essentially argues that his conviction should be reversed because the record of the plea hearing does not contain an adequate factual basis indicating that he participated in the shooting "with intent to effect the death of" a person, as required for a conviction of second-degree murder under Minn. Stat. § 609.19, subd. 1(1) (2004). Minn. Stat. § 609.19, subd. 1(2) (2004) also allows a conviction of second-degree murder when the defendant "causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e." And section 609.66, subdivision 1e states in pertinent part that "[w]hoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle . . . is guilty of a felony." Minn. Stat. § 609.66, subd. 1e(a) (2004).
Read together, these statutes provide that a person is guilty of second-degree murder arising from a drive-by shooting if he "cause[d] the death of a human being" while "in . . . a motor vehicle" by "recklessly discharg[ing] a firearm at . . . another motor vehicle." Minn. Stat. §§ 609.19, subd. 1(2); 609.66, subd. 1e(a). The record of the plea hearing does contain an adequate factual basis to support a conviction of second-degree murder arising from a drive-by shooting under Minn. Stat. § 609.19, subd. 1(2).