James Spencer, Jr. v. State of Minnesota ( 2015 )


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  •                         This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2014).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A14-1309
    James Spencer, Jr., petitioner,
    Appellant,
    vs.
    State of Minnesota,
    Respondent.
    Filed March 23, 2015
    Affirmed
    Halbrooks, Judge
    Hennepin County District Court
    File No. 27-CR-12-19949
    Julie Loftus Nelson, Nelson Criminal Defense & Appeals, PLLC, Minneapolis,
    Minnesota (for appellant)
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
    County Attorney, Minneapolis, Minnesota (for respondent)
    Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and
    Larkin, Judge.
    UNPUBLISHED OPINION
    HALBROOKS, Judge
    On appeal from the denial of his petition for postconviction relief, appellant argues
    that the postconviction court erred by determining that his petition was time-barred and
    by denying his petition on the merits. We affirm.
    FACTS
    Appellant James Spencer, Jr. was charged with third-degree criminal sexual
    conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2010), based on an incident that
    occurred in the bathroom of his barbershop. In a three-day jury trial, the state presented
    evidence that immediately after Spencer’s co-defendant vaginally penetrated L.O. by
    force, Spencer entered the bathroom, picked up the crying, shaking woman, pushed her
    over the toilet and vaginally penetrated her. Spencer was arrested the same day. His
    defense at trial was that the sex was consensual, the woman was a prostitute, and he
    thought his co-defendant was paying her. The jury found Spencer guilty as charged.
    At sentencing in January 2013, Spencer’s counsel orally requested a downward
    departure but asked for the “the low range of 131 months as opposed to the 153 months”
    if the district court declined to depart from the presumptive sentence. The prosecutor
    argued for “at a minimum, the presumptive sentence, if not the top of the box.” Spencer
    also spoke, apologizing to his wife and family for “acting so irresponsible” by “having
    sex in my place of business.” The district court expressed concern about the particularly
    serious nature of the offense and Spencer’s lack of amenability to probation, lack of
    remorse, and dishonesty. The district court sentenced Spencer to 180 months in prison,
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    which is the top of the presumptive sentencing range based on Spencer’s criminal-history
    score of five. This sentence is also the statutory maximum sentence for this offense.
    Minn. Stat. § 609.344, subd. 2 (2010). Spencer did not pursue a direct appeal.
    In May 2014, Spencer filed a petition for postconviction relief that did not include
    a request for an evidentiary hearing. The identified ground for relief was that his 180-
    month sentence is “excessive, unreasonable, and inappropriately exaggerates Spencer’s
    criminality.” Spencer requested that he be resentenced to “a term at the lower end [of]
    the presumptive range, or to the specific presumptive sentence of 153 months.”
    The postconviction court denied Spencer’s petition because it was (1) time-barred
    and (2) unpersuasive on the merits. It noted the sentencing court’s determination “that
    [Spencer] was unamenable to probation as indicated by his history of violating the
    conditions of his parole . . . and that [Spencer’s] statements about the role he played in
    the offense were incredible.” The postconviction court ruled that Spencer’s 180-month
    sentence is “accurate, reasonable, and appropriate as it is within the presumptive range
    for the severity level of the offense and his criminal history score” and denied his
    petition. Spencer now appeals.
    DECISION
    I.
    Spencer argues that the postconviction court erred in ruling that his petition was
    time-barred. The state concedes that Spencer’s postconviction petition was timely. “No
    petition for postconviction relief may be filed more than two years after . . . the entry of
    judgment of conviction or sentence if no direct appeal is filed.” Minn. Stat. § 590.01,
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    subd. 4(a)(1) (2014). Spencer was sentenced on January 14, 2013, did not pursue a direct
    appeal, and filed his postconviction petition less than two years after sentencing, on May
    9, 2014. The postconviction court therefore erred in determining that Spencer’s “claims
    are time-barred pursuant to Minn. Stat. § 590.01, subd. 4.”             But because the
    postconviction court also denied the petition on the merits, this error does not by itself
    require reversal.
    II.
    Spencer challenges the postconviction court’s denial of his postconviction petition
    on the merits, arguing that the sentencing court abused its discretion by imposing the top-
    of-the-box sentence, which is also the statutory maximum sentence, rather than the
    middle-of-the-box guidelines sentence.      Spencer contends that his “sentence was
    excessive and exaggerated [his] criminality.” Appellate courts review a summary denial
    of postconviction relief for an abuse of discretion. Powers v. State, 
    695 N.W.2d 371
    , 374
    (Minn. 2005).
    Under the sentencing guidelines, the presumptive sentence for Spencer’s offense
    with his criminal-history score falls within a range of 130 to 180 months. Minn. Sent.
    Guidelines IV (2010) (sex-offender grid). Sentence ranges in the sentencing guidelines
    are presumed to be appropriate for the crimes to which they apply.            Minn. Sent.
    Guidelines II.D (2010).     “All three numbers in any given cell [on the sentencing
    guidelines grid] constitute an acceptable sentence . . . .” State v. Jackson, 
    749 N.W.2d 353
    , 359 n.2 (Minn. 2008).      “[A]ny sentence within the presumptive range for the
    convicted offense constitutes a presumptive sentence.” State v. Delk, 
    781 N.W.2d 426
    ,
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    428 (Minn. App. 2010), review denied (Minn. July 20, 2010). Spencer points to no
    authority that modifies these principles of law when the maximum presumptive sentence
    is also the statutory maximum sentence. Rather, the cases he relies on involve upward
    departures from the sentencing guidelines.       But the district court did not impose a
    sentence that is a departure from the guidelines. The district court imposed the longest
    permitted sentence within the presumptive range for the offense committed, given
    Spencer’s criminal-history score.
    Spencer also argues that his 180-month sentence is excessive and exaggerates his
    criminality because there are published cases in which defendants convicted of third-
    degree criminal sexual conduct received significantly shorter sentences.           But the
    presumptive sentencing range here is largely driven by Spencer’s criminal-history score,
    which is undisputed. Had Spencer’s criminal-history score been zero, the presumptive
    sentencing range for his offense would have been 41 to 58 months.              Minn. Sent.
    Guidelines IV (2010) (sex-offender grid).
    Absent “identifiable, substantial, and compelling circumstances to support a
    sentence outside the range on the grid,” the district court must impose a presumptive
    guidelines sentence. Minn. Sent. Guidelines II.D. A district court is not required to
    explain its reasons for imposing a presumptive sentence, and this court does not interfere
    with the district court’s exercise of discretion so long as “the record shows the sentencing
    court carefully evaluated all the testimony and information presented before making a
    determination.” State v. Van Ruler, 
    378 N.W.2d 77
    , 80-81 (Minn. App. 1985). Here, the
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    district court heard from both attorneys and Spencer personally before stating its concerns
    and imposing the top-of-the-box presumptive sentence.
    We conclude that this is not the rare case that warrants reversal of a presumptive
    guidelines sentence. We therefore conclude that the postconviction court did not abuse
    its discretion when it denied Spencer’s petition on the merits.
    III.
    In his pro se supplemental brief, Spencer raises a number of claims on appeal that
    are not included in his petition for postconviction relief. Because Spencer did not raise
    these claims in his postconviction petition and the postconviction court made no findings
    on the issues, there are no postconviction rulings to review. We therefore conclude that
    the issues raised in Spencer’s pro se supplemental brief are waived for purposes of this
    appeal. Azure v. State, 
    700 N.W.2d 443
    , 447 (Minn. 2005) (“It is well settled that a party
    may not raise issues for the first time on appeal from denial of postconviction relief.”
    (quotation omitted)).
    Affirmed.
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