Hennepin County District Court File No. 27-CR-09-26871
David W. Merchant, Chief Appellate Public Defender, Cathryn Young Middlebrook, Kathryn J. Lockwood, Assistant Public Defenders, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Kirk, Judge.
Appellant challenges his 120-month sentence, a double-durational departure, for eight counts of theft by swindle, arguing that his guilty plea was involuntary because of ineffective assistance of counsel and improper inducement from counsel and that the district court abused its discretion in imposing the upward departure because the conduct underlying appellant's last offense did not support it. Because there is no basis to allow appellant to withdraw his guilty plea and because the district court did not abuse its discretion by the upward departure, we affirm.
Appellant Joel Pourier was the financial and executive director of Oh Day Aki Heart of the Earth Charter School (HECS), which closed in July 2008. Between August 2003 and July 2008, appellant was alleged to have embezzled $1, 380, 000 from HECS.
He pleaded guilty to eight counts of theft by swindle, stating at the plea hearing that he understood the state was seeking an aggravated sentence of up to 136 months. Appellant received the presumptive sentences of 21 months, 27 months, 45 months, 51 months, 60 months, 60 months, and 60 months on the first seven counts and, on count eight, a double departure of 120 months, all concurrent.
His petition for postconviction relief was denied. He challenges the denial, arguing that he is entitled to withdraw his guilty plea because he received ineffective assistance of counsel and because counsel improperly pressured him to plead guilty and that the double upward departure on count eight was an abuse of discretion.
1. Ineffective Assistance of Counsel
In reviewing a postconviction court's decision to grant or deny relief, issues of law are reviewed de novo and issues of fact are reviewed for sufficiency of the evidence. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007). A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).
The defendant must affirmatively prove that his 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation and citation omitted). When a defendant is represented by counsel during the plea process, "the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (quotation omitted).
Appellant argues that his counsel should have known and advised appellant that the state requested an upward departure and that, if appellant pleaded guilty, the court could order a departure. The transcript shows that appellant's counsel did tell appellant about the state's motion and that the district court could order the departure.
Appellant answered "Yes" when asked by counsel if they had reviewed "the State's paperwork moving for an aggravated sentence?" and when asked by the district court if he understood that "by entering a straight plea, you're leaving to my discretion any sentence in this matter . . . ." Thus, appellant knew that the state had sought an aggravated sentence and that sentencing would be at the court's discretion.
Appellant's counsel questioned him about the prospective sentence.
Q. [Appellant], I'd like to direct your attention to what we call aggravating factors. We've had quite a bit of an opportunity to discuss what aggravating factors are, correct?
Q. And you know that the State is moving to seek an upward sentence, sentencing departure based on aggravating factors in this specific case, correct?
Q. And you know they're alleging and you're prepared to admit to aggravating factors as they relate to each individual count of the complaint that you just pled guilty to, correct?
Q. Sir, would you agree with me that each of the eight counts that you just pled guilty to is a major economic offense, correct?
Q. You'd also agree that there were – for each of the eight counts, there were multiple incidents of theft from the victim, where the victim would be the school, correct?
Q. And that applies to each of the eight counts, correct?
Q. And that for each of the eight counts there was a substantial monetary loss greater than the minimum loss specified by ...