Jose Armando Padilla v. State of Minnesota ( 2015 )

This opinion will be unpublished and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
A15-0573
Jose Armando Padilla, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed November 23, 2015
Affirmed
Hooten, Judge
Kandiyohi County District Court
File No. 34-CR-05-1276
Jose Padilla, Stillwater, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)
Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges the correction of his sentences for multiple convictions,
arguing that the district court erred by improperly imposing a more severe penalty on one
of the convictions than his original sentence and that he received ineffective assistance of
counsel. We affirm.
FACTS
After a jury trial, appellant Jose Armando Padilla was found guilty of two counts
of attempted second-degree murder by drive-by shooting and separate counts of receiving
stolen property, first-degree assault, drive-by shooting of an unoccupied building, and
drive-by shooting of an occupied building. The district court imposed consecutive
sentences for the two convictions of attempted second-degree murder by drive-by
shooting and a concurrent sentence for receiving stolen property.
Padilla appealed his convictions of attempted second-degree murder by drive-by
shooting, and this court reversed, holding that “because a person cannot specifically
intend to cause the death of another by recklessly discharging a firearm at or toward [the
victims], one cannot commit attempted second-degree murder [a specific intent crime] by
drive-by shooting.” State v. Padilla, No. A06-446, 2007 WL 1746746, at *2 (Minn. App.
June 19, 2007). This court remanded the case to the district court for vacation of the
attempted second-degree murder convictions by drive-by shooting and for sentencing on
the remaining convictions.
On remand, the district court imposed the following sentences in the following
order: (1) 27 months for the receiving stolen property conviction; (2) 36 months for the
drive-by shooting of an unoccupied building conviction; (3) 166 months for the first-
degree assault conviction; and (4) 52 months for the drive-by shooting of an occupied
building conviction. The first three sentences were to run concurrently, but the drive-by
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shooting of an occupied building conviction was to run consecutively to the other
sentences.
Padilla filed a second appeal with this court, alleging that the district court erred
by imposing consecutive sentences for the assault conviction and the drive-by shooting of
an occupied building conviction. This court affirmed the imposition of the consecutive
sentences, holding that the consecutive sentences were permissive under the multiple
victim exception to the rule that only one sentence may be imposed for multiple crimes
committed in the same behavioral incident. State v. Padilla, No. A08-0224, 2009 WL
749171, at *1 (Minn. App. Mar. 24, 2009), review denied (Minn. May 27, 2009).
On October 31, 2014, Padilla’s legal counsel filed a motion to correct his sentence
under Minn. R. Crim. P. 27.03, subd. 9. The applicable Minnesota Sentencing
Guidelines provide that “the date of offense determines the order of sentencing with
multiple convictions.” Minn. Sent. Guidelines cmt. II.A.02 (2004); see also Minn. Sent.
Guidelines cmt. II.B.101 (2004) (providing that “[w]hen multiple current offenses are
sentenced on the same day before the same judge, sentencing shall occur in the order in
which the offenses occurred”). Padilla’s counsel argued that because the drive-by
shooting of the occupied building occurred before the assault, the drive-by shooting
conviction should have been sentenced first, and that the district court should have first
sentenced Padilla to 115 months for the drive-by shooting of an occupied building
conviction and then sentenced him to 91 months for the first-degree assault conviction.
Padilla filed a pro se supplemental brief, agreeing with his counsel that his sentence
should be corrected because the convictions were sentenced in the wrong order, but also
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arguing that the district court, upon correcting the sentence, was limited to the sentence
originally imposed for each individual offense.
The district court held that Padilla had been sentenced in the wrong order because
the elements of the drive-by shooting of an occupied building were necessarily completed
before the elements of the first-degree assault. In so ruling, the district court relied on
this court’s holding in State v. Patterson, where this court reasoned that a drive-by
shooting necessarily occurred before the resulting murder because the elements of the
drive-by shooting offense were complete upon firing the shots. 796 N.W.2d 516, 532
(Minn. App. 2011), aff’d, 812 N.W.2d 106 (Minn. 2012). The district court held that
because the drive-by shooting offense was necessarily completed before the assault,
Padilla’s original sentence was unauthorized by law.
Consistent with these holdings, the district court corrected Padilla’s original
sentence by sentencing him in the following order: (1) 27 months for receiving stolen
property; (2) 36 months for drive-by shooting of an unoccupied building; (3) 115 months
for drive-by shooting of an occupied building; and (4) 91 months for first-degree assault.
The district court ordered that the first three sentences were to run concurrently, and the
first-degree assault sentence was to run consecutively to the other sentences. Originally,
Padilla would have served combined consecutive sentences of 218 months. Following
the correction of his sentence, Padilla was to serve a total of 206 months, resulting in an
overall sentence reduction of 12 months. However, Padilla’s corrected sentence for the
drive-by shooting of an occupied building increased from 52 months to 115 months.
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Claiming that the district court erred by imposing a longer term for the drive-by shooting
of an occupied building conviction, Padilla appeals.
DECISION
I.
Padilla argues that the district court erred in resentencing him to a longer sentence
on his drive-by shooting of an occupied building conviction than was originally imposed.
Padilla contends that the district court was limited to the original 52-month sentence on
the drive-by shooting count, and that his 115-month sentence on that count must be
vacated.
This court reviews the district court’s sentencing decision for an abuse of
discretion. State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.
July 20, 2010). The district court “may at any time correct a sentence not authorized by
law.” Minn. R. Crim. P. 27.03, subd. 9. On resentencing, a district court “may not
impose a more severe penalty than the sentence which it previously imposed.” State v.
Wallace, 327 N.W.2d 85, 88 (Minn. 1982). Allowing a court to impose a more severe
sentence would effectively punish the defendant for exercising his right to appeal.
Wallace, 327 N.W.2d at 88.
Padilla, however, did not receive a more severe sentence upon resentencing. The
Minnesota Supreme Court in State v. Prudhomme indicated that a district court may not
impose a sentence on resentencing that exceeds the length of the original sentence for that
particular crime. 303 Minn. 376, 380, 228 N.W.2d 243, 246 (Minn. 1975). But, the
supreme court later clarified that, on resentencing, the imposition of the total sentence
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cannot be in excess of that originally imposed. State v. Rohda, 358 N.W.2d 39, 41
(Minn. 1984).
In Rohda, the defendant was sentenced to 76 months, consecutive to a previously
imposed sentence of 15 months, totaling 91 months. Id. at 40. However, because the
guidelines did not permit consecutive sentences in that case, the court remanded for
resentencing and authorized the district court to depart by imposing a sentence up to, but
no more than, 91 months. Id. at 41. Rohda held that, in evaluating whether a more
severe penalty was imposed, consecutive sentences are combined and the aggregate total
is what is evaluated. Id.; see also State v. Nunn, 411 N.W.2d 214, 216 (Minn. App. 1987)
(stating that the district court was “free to resentence . . . so long as the newly imposed
sentences were authorized by law and did not exceed the original . . . sentence”).
In this case, upon Padilla’s motion to correct his sentence, the district court
imposed a 115-month sentence on the drive-by shooting of an occupied building
conviction, which is a 63-month increase from his original 52-month sentence on that
individual count. Although the sentence for the drive-by shooting offense increased,
Padilla’s total sentence after the correction was 12 months shorter than his original
sentence. Padilla originally would have served 218 months, but was sentenced to receive
only 206 months after sentence correction. Because the district court did not increase
Padilla’s total sentence, it did not err by imposing a longer sentence for the drive-by
shooting of an occupied building offense.
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II.
Padilla argues that he was denied effective assistance of counsel in conjunction
with his motion to correct his sentence and on appeal. Padilla advances four reasons why
his counsel at the sentencing correction hearing provided ineffective assistance of
counsel: (1) she did not argue the arguments he made in his pro se brief; (2) she refused
to represent him on appeal; (3) she failed to address the incorrectly calculated criminal-
history score that was utilized at his 2007 sentence; and (4) she failed to challenge the
lack of sentencing worksheets at his sentencing hearings.
This court reviews ineffective assistance of counsel claims de novo. Opsahl v.
State, 677 N.W.2d 414, 420 (Minn. 2004). An appellant seeking to establish a claim of
ineffective assistance of counsel “bears the burden of proof on that claim.” State v.
Jackson, 726 N.W.2d 454, 463 (Minn. 2007). To satisfy that burden, the appellant “must
do more than offer conclusory, argumentative assertions, without factual support.” See
State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007) (explaining the burden of
petitioners seeking postconviction relief).
“To prevail on a claim that counsel is ineffective, [appellant] must demonstrate
that (1) counsel’s performance fell below an objective standard of reasonableness, and (2)
a reasonable probability exists that, but for his counsel’s unprofessional error, the
outcome would have been different.” Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009)
(citing Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064–65
(1984)). To establish an ineffective assistance of counsel claim, the appellant “must
overcome the presumption that counsel’s performance fell within a wide range of
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reasonable representation.” Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009) (quotation
omitted).
Claims Regarding Rule 27.03, subd. 9, Hearing
Padilla alleges that his counsel erred by failing to argue his pro se arguments at the
hearing for his motion to correct his sentence and by “fail[ing] to properly investigate
proper [law]” when challenging his 2007 sentence. But, “[c]ounsel appealing a criminal
conviction has no duty to raise all possible issues . . . [and] has no duty to include claims
which would detract from other more meritorious issues.” Dent v. State, 441 N.W.2d
497, 500 (Minn. 1989) (quotation omitted). Padilla’s counsel was not required to argue
his pro se arguments and chose to argue that the district court had imposed an invalid
sentence because Padilla had been sentenced in the wrong order. Furthermore, Padilla
himself briefed his pro se arguments and argued them to the district court. The district
court found no merit to Padilla’s pro se arguments, but ruled in favor of Padilla on the
grounds for correction of his sentence as argued by his counsel. Because the district
court accepted his counsel’s arguments and rejected his pro se arguments as being
without merit, and we are affirming the district court’s correction of his sentence, Padilla
has failed to demonstrate that his counsel’s performance at the hearing fell below an
objective standard of reasonableness or that there was a reasonable probability that, but
for his counsel’s unprofessional error, the outcome would have been different.
Claim for Failure of Representation on Appeal
Padilla further alleges that he was denied effective assistance of counsel because
he is unrepresented in the current appeal. Padilla was not, however, entitled to a public
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defender under Minn. Stat. § 590.05 (2014), because he had already been represented
when he directly appealed his convictions. Therefore, this claim of ineffective assistance
of counsel is without merit.
Claim for Failure to Argue Ineffective Assistance of Trial Counsel
Padilla alleges that he received ineffective assistance of counsel at the sentencing
correction hearing because counsel failed to argue the ineffective assistance of his trial
counsel at his 2007 sentencing. Padilla claims that his 2007 sentence was based upon an
incorrectly calculated criminal-history score and that the state failed to provide a
criminal-history worksheet at the 2007 sentencing hearing. Padilla fails to explain how
his criminal-history score was miscalculated or why the state’s alleged failure to provide
a criminal-history worksheet affects our review in this appeal of his corrected sentence.1
Padilla’s argument is also unsupported by legal analysis or citation. See Ganguli v. Univ.
of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (noting that a court may decline to
consider arguments that are not supported by analysis or citation).
In any event, Padilla’s claims of ineffective assistance of trial counsel are barred.
It is well settled that after a direct appeal has been taken, all claims raised in that appeal
or known at the time of that appeal will not be considered upon a subsequent appeal or
petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737,
741 (1976). Padilla’s present claims, including his alleged incorrect criminal-history
score and the state’s failure to provide a criminal-history worksheet, were known at the
1
Contrary to Padilla’s contention, the record indicates that a criminal-history worksheet
was provided by the state prior to Padilla’s 2007 sentencing.
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time he appealed from his 2007 sentence. Likewise, as we noted in Padilla’s second
appeal to this court in 2009, his claims of ineffective assistance of trial counsel are
similarly barred. Padilla, 2009 WL 749171, at *3. And even if his claims were not
barred under Knaffla, we would decline to review them because these claims were not
raised before the district court at the sentencing correction hearing. Roby v. State, 547
N.W.2d 354, 357 (Minn. 1996).
Padilla also alleges that he was deprived of effective assistance of counsel because
his counsel at the sentencing correction hearing failed to challenge the fact that the state
failed to prepare a criminal-history worksheet. But the state provided sentencing
worksheets before the 2007 sentencing hearing which were part of the record at the 2015
hearing.
Cumulative Effect
Padilla argues that even if the individual errors were insufficient to establish
ineffective assistance of counsel, the cumulative effect of the errors require this court to
correct his sentence. But, in order to prevail on his ineffective assistance of counsel
claims, Padilla must establish both that his attorney’s representation was unreasonable
and that, but for the attorney’s conduct, the result would have been different.
Although he has alleged a number of reasons why his counsel was ineffective,
Padilla has not explained how any of his allegations establishes that his counsel’s
performance fell below an objective standard of reasonableness. Instead, Padilla merely
asserts that “[t]he court record, and [r]e-sentencing transcripts and facts produced in
[a]ppellant’s brief [s]upport his [i]neffective [a]ssistance of [a]ppellate [c]ounsel claims.”
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Padilla’s allegations are vague as to what his counsel did incorrectly, what should have
been done, and how the result would have been any different but for any errors she
allegedly committed when representing him at his rule 27 hearing. Padilla’s generalized
allegations of ineffective assistance of counsel fail to demonstrate how his counsel’s
performance fell below an objective standard of reasonableness and therefore fail to
demonstrate that he received ineffective assistance of counsel.
Affirmed.
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