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State v. Tubbs

Court of Appeals of Minnesota

June 24, 2013

State of Minnesota, Respondent,
v.
Jeremy Scot Crockett Tubbs, Appellant.

UNPUBLISHED OPINION

Blue Earth County District Court File No. 07-CR-11-3384

Lori Swanson, Attorney General, St. Paul, Minnesota; and Ross E. Arneson, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Jeremy Scot Crockett Tubbs, North Mankato, Minnesota (pro se appellant)

Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Toussaint, Judge. [*]

PETERSON, Judge

In this appeal from his conviction of first-degree driving while impaired (DWI), pro se appellant argues that because a prior implied-consent license revocation was caused by the ineffective assistance of counsel, the revocation could not be used to enhance the current DWI offense to a felony. Therefore, appellant contends, because he never made a factual admission to a felony-level DWI, his guilty plea lacked an adequate factual basis and the district court erred by denying his motion to withdraw the plea before sentencing. We affirm.

FACTS

Following an incident on September 18, 2011, appellant Jeremy Tubbs was charged with first-degree DWI, in violation of Minn. Stat. §§ 169A.20, subd. 1(1); 169A.24, subd. 1(1) (2010) (drives, operates, or is in physical control of motor vehicle when under the influence of alcohol and commits violation within ten years of first of three or more qualified prior impaired-driving incidents). The three prior impaired-driving incidents that provided the basis for the first-degree charge occurred in 2003, 2006, and 2010.

There is no dispute about the incidents that occurred in 2003 and 2006, which resulted in appellant being convicted of misdemeanor and gross-misdemeanor DWI offenses. But appellant disputes whether the 2010 impaired-driving incident may be used as a basis for charging him with first-degree DWI for the current offense. To understand appellant's claim, it is necessary to understand some facts about the 2010 incident.

In June 2010, appellant was involved in a one-car rollover accident, and, because appellant's alcohol concentration was .08 or more, his driver's license was revoked. Notice of the revocation was mailed to appellant on June 23, 2010. The notice stated that the revocation became effective on July 3, 2010. On July 22, appellant notified his attorney that his driver's license was suspended as of July 3. The attorney filed a petition for judicial review of the revocation within 30 days after July 3. But, because the implied-consent law requires that a petition for judicial review be filed within 30 days after receiving notice of revocation, rather than 30 days after the revocation becomes effective, the petition for judicial review was untimely and, therefore, it was dismissed. See Minn. Stat. § 169A.53, subd. 2(a) (2012) (permitting person to petition for judicial review within "30 days following receipt of a notice and order of revocation"). In a September 17, 2010 letter, appellant's attorney explained to appellant that he could seek administrative review of his license revocation, but appellant did not do so. The state did not pursue a criminal prosecution following the June 2010 incident, and appellant was not convicted of DWI for that incident.

After he was charged with first-degree DWI for the current offense, appellant moved to dismiss the felony charge, arguing that the 2010 license revocation is not a qualified prior impaired-driving incident that can be used to support a first-degree charge. Appellant contended in his motion that there was no evidence that he was driving at the time of the 2010 incident, which is why he was not criminally prosecuted, and that he should not now be convicted of a felony because his attorney incompetently filed the petition for judicial review one day late.

Before the district court ruled on appellant's motion to dismiss, appellant reached a plea agreement with the state, and in January 2012, he pleaded guilty to first-degree DWI. At the plea hearing, appellant testified that he understood that the DWI was a felony-level offense because he had three prior impaired-driving incidents: the 2003 DWI conviction, the 2006 DWI conviction, and the 2010 license revocation. Appellant also testified that he signed a petition to plead guilty after going over the petition paragraph by paragraph with his lawyer.

At the sentencing hearing on March 26, 2012, appellant asked the district court to delay sentencing in light of a recent decision of the United States Supreme Court. The district court delayed sentencing for three weeks. On ...


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