State of Minnesota v. Omar Taha Yaseen

This opinion will be unpublished and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
A15-0200
State of Minnesota,
Respondent,
vs.
Omar Taha Yaseen,
Appellant.
Filed July 5, 2016
Affirmed
Rodenberg, Judge
Clay County District Court
File Nos. 14-CR-14-1684, 14-CR-14-2658
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney,
Moorhead, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
In this consolidated appeal from his separate convictions for second-degree
controlled-substance distribution and fourth-degree assault, appellant Omar Taha Yaseen
argues that the district court abused its discretion by denying his motion to withdraw his
guilty plea to the controlled-substance charge, and that both sentences were erroneously
based on an incorrect criminal-history score. We affirm.
FACTS
On May 27, 2014, appellant was charged with one count of second-degree
controlled-substance sale under Minn. Stat. § 152.022, subd. 1(5) (2012), and one count
of fourth-degree criminal sexual conduct under Minn. Stat. § 609.345, subd. 1(b) (2012),
resulting from an incident involving a 15-year-old female. He remained in jail awaiting
trial on those charges when, in August 2014, he was charged with fourth-degree assault
under Minn. Stat. § 609.2231, subd. 3(2) (2014), for spitting on a corrections officer.
That same month, appellant pleaded guilty to the second-degree-controlled-
substance charge in the first file. Appellant, who is from Iraq and whose first language is
Arabic, indicated that he did not need an interpreter for his plea, and confirmed that he
could read, speak, and understand the English language. Appellant stated under oath that
he understood the plea petition, had been fully advised by his attorney, understood his
rights, was waiving his trial rights, and was pleading guilty because he was guilty. The
criminal-sexual-conduct charge in that file was dismissed.
A pre-sentence investigation report was prepared, during which appellant admitted
that the May incident involved him having sexual contact with the 15-year-old female.
At a hearing after his controlled-substance plea, appellant asked to be sentenced
immediately. Appellant’s counsel advised against this course of action because counsel
wanted to argue concerning the statutory requirement that appellant register as a
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predatory offender despite the state having dismissed the criminal-sexual-conduct charge.
The district court granted appellant’s counsel a continuance to accommodate arguments
concerning the constitutionality of the registration requirement.
In September 2014, appellant pleaded guilty to the fourth-degree-assault charge.
Once again, appellant stated under oath at his plea hearing that he understood the plea
petition, had been fully advised by his attorney, understood his rights, and was waiving
his trial rights to plead guilty because he was guilty.
Using a criminal-history score of five, the district court sentenced appellant to 98
months in prison for the second-degree controlled-substance conviction, a severity level
eight offense. See Minn. Sent. Guidelines 5.A (2014). The district court determined that
appellant was statutorily required to register as a predatory offender, and noted that
appellant had not challenged “probable cause for the criminal-sexual-conduct charge at
any time during the proceedings.” Appellant was advised that he would be required to
register as a predatory offender for a minimum of 10 years.
The district court then sentenced appellant on the fourth-degree-assault conviction,
a severity level one offense. Id. The district court used a criminal-history score of seven
to sentence appellant to 22 months in prison, concurrent with his second-degree-
controlled-substance sentence. Appellant did not object at sentencing to the
criminal-history scores used by the district court.
In January 2015, appellant filed a notice of appeal in both cases. We consolidated
the appeals, and granted appellant’s motion to stay the consolidated appeal to allow
appellant to pursue postconviction proceedings in the district court. Appellant filed his
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petition for postconviction relief in both files in July 2015, and a hearing was held that
September.
In December 2015, the district court issued an order denying appellant
postconviction relief. The district court first rejected appellant’s argument that the
United States Supreme Court’s decision in Padilla v. Kentucky applied to situations that
do not implicate immigration consequences. 559 U.S. 356, 365, 130 S. Ct. 1473, 1481
(2010). The district court also determined that no manifest injustice resulted from
appellant’s pleas, despite his lack of knowledge concerning the consequences while in
prison resulting from his being a registered predatory offender under Department of
Corrections (DOC) rules. Turning to appellant’s sentencing arguments, the district court
agreed that an erroneous criminal-history score had been used at sentencing. The
reported score of five-and-one-half for the second-degree-controlled-substance
conviction should have been five. But the district court determined that the one-half
point difference did not change appellant’s presumptive sentence of 98 months, and it
determined that the difference in criminal-history score from seven to six-and-one-half in
the fourth-degree-assault conviction was immaterial, because the discretionary range for
appellant’s sentence using either score was 17-22 months, and appellant was sentenced to
serve 22 months in prison concurrent with the other sentence.
This reinstated appeal followed.
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DECISION
I. Postconviction relief
“When a defendant initially files a direct appeal and then moves for a stay to
pursue postconviction relief, we review the postconviction court’s decisions using the
same standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836
(Minn. 2012); State v. Petersen, 799 N.W.2d 653, 656 (Minn. App. 2011), review denied
(Minn. Sept. 28, 2011). We review the validity of a guilty plea de novo. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
There is no absolute right to withdraw a guilty plea. State v. Theis, 742 N.W.2d
643, 646 (Minn. 2007). After sentencing, a defendant may only withdraw a guilty plea
by establishing that withdrawal is necessary “to correct a manifest injustice.” Minn. R.
Crim. P. 15.05, subd. 1; Theis, 742 N.W.2d at 646. A manifest injustice is shown when a
guilty plea is not valid. Id. To be valid, a guilty plea “must be accurate, voluntary and
intelligent (i.e., knowingly and understandingly made).” State v. Ecker, 524 N.W.2d 712,
716 (Minn. 1994).
Appellant argues that his plea was not knowingly or intelligently made because he
was not convicted of any sex offense, he denied that the second-degree-controlled-
substance offense had a sexual component, and he was not informed that, as a result of
his predatory-offender registration, (1) he would be labeled a sex offender by the DOC,
(2) he would be required to attend sex-offender treatment, (3) he would be subject to
sex-offender-specific conditions of release, (4) he would be subject to the
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community-notification process, and (5) he could potentially be referred for civil
commitment.
The state argues, and the district court ruled, that the consequences of
predatory-offender registration are collateral consequences of the conviction, and
therefore appellant may not, because of those consequences, withdraw his plea, even if
they were unknown to him at the time.
“The purpose of the requirement that the plea be intelligent is to insure that the
defendant understands the charges, understands the rights he is waiving by pleading
guilty, and understands the consequences of his plea.” State v. Trott, 338 N.W.2d 248,
251 (Minn. 1983). “‘Consequences’ refers to a plea’s direct consequences.” Raleigh,
778 N.W.2d at 96 (emphasis added). Conversely, “collateral consequences ‘are not
punishment’ but are ‘civil and regulatory in nature and are imposed in the interest of
public safety.’” State v. Crump, 826 N.W.2d 838, 842 (Minn. App. 2013) (quoting
Kaiser v. State, 641 N.W.2d 900, 905-07 (Minn. 2002)), review denied (Minn. May 21,
2013).
Appellant argues that we should reject the direct- or collateral-consequence
distinction because that distinction rests on “shakier ground” post-Padilla. 559 U.S. at
365, 130 S. Ct. at 1481. Appellant argues that Padilla changes the analysis and renders a
plea unintelligent if a defendant is unaware of a consequence that is closely connected to
the criminal process. See id. (“We . . . have never applied a distinction between direct
and collateral consequences . . . . Whether that distinction is appropriate is a question we
need not consider in this case because of the unique nature of deportation.”); but see
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Sames v. State, 805 N.W.2d 565, 570 (Minn. App. 2011) (declining to extend Padilla
beyond deportation into the context of firearm possession, a collateral consequence);
Crump, 826 N.W.2d at 843 (declining to extend Padilla into the context of potential
future driving-while-intoxicated pleas).
Here, there is no need to reach the question of whether Padilla applies to cases
beyond the context of immigration consequences. Appellant has failed to show that his
trial counsel was ineffective. See Padilla, 559 U.S. at 366-69, 130 S. Ct. at 1482-84(applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), to Padilla’s
ineffective-assistance-of-counsel claim). Appellant was fully informed that he would be
required to register as a predatory offender because of the original charges in the
complaint. He was not only fully advised of the consequences of this requirement, Minn.
Stat. § 243.166, subd. 1b(a)(iii) (2014), but his attorney obtained a continuance to dispute
the registration requirement specifically because of these consequences. Moreover, as
part of his plea, appellant initialed a “Predatory Offender Notification Form.” That form
advised appellant of his duty to register for a minimum of 10 years, that he could have
stricter requirements if he was assigned a Level 2 or Level 3 classification pursuant to
Minn. Stat. § 244.052 (2014), and that he would have to disclose his registration status to
law-enforcement and other agencies that provided care for elderly and/or disabled
individuals. Appellant initialed next to the line stating “I understand that if I am civilly
committed pursuant to [Minn. Stat. § 253B.185] or a similar law of another state, I am
required to return four Verification Forms each year.” Therefore, appellant’s claims that
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he was unaware of the level-assignment, community-notification requirements, and the
possibility of civil commitment simply have no merit.
This leaves only appellant’s arguments concerning the DOC’s treatment of him as
a sex offender and the requirement that he participate in an appropriate treatment
program as potential bases of relief. But the commissioner of corrections is specifically
authorized to order appellant to participate in the treatment program because appellant
meets the DOC’s definition of a sex offender. See Minn. Stat. § 241.67, subds. 1(1), 3
(2014); Roth v. Comm’r of Corrections, 759 N.W.2d 224, 228 (Minn. App. 2008) (citing
DOC Div. Directive 203.013, which defines a “sex offender” as “an offender who is
subject to predatory offender registration, or has a prior charge or conviction for an
offense that was sex related”).
Appellant provides no statute or caselaw suggesting that an attorney has a duty to
describe all of the particulars of how the DOC will administer and require programming
while a client is in prison. Nor has appellant provided any expert opinion or other
evidence concerning the standard of care of an attorney regarding programming
requirements while the attorney’s client is in prison. Here, and regardless of whether the
DOC-programming implications are considered a “direct” or a “collateral” consequence
of his conviction, appellant has failed to demonstrate on this record that his attorney’s
performance was ineffective. Even if we apply the Strickland test to appellant’s lawyer’s
performance, there is no showing of ineffective assistance. Our review of the record
reveals that appellant’s trial counsel very thoroughly and competently represented
appellant.
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The district court did not err in denying appellant’s petition to withdraw his plea.
II. Criminal-history-score issues
Under the Minnesota Sentencing Guidelines, a district court is to sentence an
offender based on a presumptive sentencing range determined by the severity level of the
offense and the offender’s criminal-history score. Minn. Sent. Guidelines 4 (2014); State
v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008). The offender’s criminal-history
score is calculated, in part, by assigning a point value to the offender’s prior felony
convictions. Minn. Sent. Guidelines 2.B.1 (2014).
When a district court calculates an offender’s criminal-history score, it must
consider convictions from other states. Minn. Sent. Guidelines 2.B.5 & cmt. 2.B.502
(2014). The effect of an out-of-state conviction on an offender’s criminal-history score
generally depends on how the conviction would have been treated if the offense had
occurred in Minnesota. Id.; State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001). When a
monetary threshold determines the out-of-state offense classification, the equivalent
Minnesota offense is determined based on the monetary threshold in effect in Minnesota
when the out-of-state offense was committed. See Minn. Sent. Guidelines cmt. 2.B.502.
An out-of-state conviction may be treated as a felony for Minnesota
criminal-history-score purposes only if the offense would be defined as a felony under
Minnesota law and the offender received a sentence that in Minnesota would constitute a
felony-level sentence. Minn. Sent. Guidelines 2.B.5.b. (2014). The state has the burden
of proving sufficient facts concerning an offender’s out-of-state conviction to warrant the
assigned points. State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006). “The state
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must establish by a fair preponderance of the evidence that the prior conviction was valid,
the defendant was the person involved, and the crime would constitute a felony in
Minnesota.” Id. In determining whether an out-of-state conviction may be treated as a
felony in Minnesota, the district court may consider factors including the definition of the
offense and the sentence received. State v. Combs, 504 N.W.2d 248, 250 (Minn. App.
1993), review denied (Minn. Sept. 21, 1993).
Here, the district court determined that the pre-sentence investigation report, upon
which the district court had relied at sentencing, erroneously assigned appellant a full
criminal-history point for a North Dakota felony. The conviction should not have been
assigned one point, because the offense would have been a gross misdemeanor had the
conviction been in Minnesota. The amount involved in the fraudulent transaction was
less than $150. Compare N.D. Cent. Code § 12.1-23-11 (2012) (providing that it is a
felony to use an individual’s debt card to take goods and services not in excess of $1,000
without authorization from that individual), with Minn. Stat. § 609.821, subds. 1, 2(1),
3(a)(1)(v) (2012) (providing that a similar offense is only a gross-misdemeanor if the
amount is less than $250). However, the district court concluded that this error had no
impact on appellant’s second-degree-controlled-substance sentence. Although appellant
was erroneously assigned a criminal-history score of five-and-one-half, he was sentenced
using a criminal-history score of five. See Minn. Sent. Guidelines cmt 2.B.102 (2014)
(stating that “an offender with less than a full point is not given that point.”)
Concerning appellant’s challenge to his fourth-degree-assault sentence, the district
court determined that appellant’s criminal-history score should have been six-and-one-
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half instead of seven. The district court noted that the sentencing guidelines call for a
presumptive sentence of 19 months, with a discretionary range of 17 to 22 months, for a
fourth-degree-assault conviction and a criminal-history score of six or more. Minn. Sent.
Guidelines 4.A & 5.A. The district court concluded that appellant was not entitled to be
resentenced because his 22-month sentence was within the discretionary range using a
criminal-history score of either six-and-one-half or seven. Because the same sentencing
range would apply regardless of the half-point in question, appellant’s sentence would
not have been any different even if the correct criminal-history score had been used.
On appeal, appellant agrees that the controlled-substance sentence is proper, but
argues that his assault sentence should be reduced to 19 months pursuant to the guidelines
because he only agreed to the plea based on his understanding that he would receive the
presumptive sentence.
Despite the error in the initial computation of his criminal-history score, appellant
was given a presumptive sentence under the guidelines for both offenses. A presumptive
sentence is one that falls anywhere within the sentencing range provided by the
guidelines. See Jackson, 749 N.W.2d at 359 n.2. Using appellant’s correct
criminal-history score at the designated severity level for his offense of fourth-degree
assault, the presumptive range is 17-22 months under the guidelines, with 19 months
being the suggested “middle-of-the-box” sentence. See Minn. Sent. Guidelines 4.A
(2014). Regardless of whether appellant’s criminal-history score was six-and-one-half or
seven, the presumptive-sentence range remained the same. Id. The district court
imposed a sentence at the top of that range. The 22-month prison term is a presumptive
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sentence, as called for by appellant’s plea agreement. The district court acted within its
discretion in concluding that appellant is not entitled to postconviction relief.
Affirmed.
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