Opinion
No. C1-01-1303.
Filed March 5, 2002.
Appeal from the District Court, Hennepin County, File No. 91051612.
Travis Earl Stringer Jr., (pro se appellant)
Mike Hatch, Attorney General, and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, (for respondent)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Pro se appellant argues that the postconviction court abused its discretion by failing to reduce his sentence in the interests of justice because of the "closeness of the issue" on his intent to kill and because of his passive role in the crime. Because we conclude that the postconviction court did not abuse its discretion, we affirm.
FACTS
In March 1992, pro se appellant Travis Earl Stringer, Jr., and two co-defendants, Cordell Burton and Freddi Burton, were charged with the murder of John Tidwell. In August 1992, appellant pleaded guilty to intentional second-degree murder in connection with Tidwell's death.
At his plea hearing, appellant acknowledged the following factual basis for his guilty plea: (1) the Burtons and appellant believed that Tidwell had shot and injured their mother the previous night; (2) appellant had identified Tidwell on the street for the Burtons; (3) Cordell Burton, Freddi Burton, and appellant all pulled guns on Tidwell near the intersection of Broadway and James Avenue North in Minneapolis; (4) a witness saw appellant shoot at Tidwell; (5) Tidwell was killed; (6) Tidwell's killing was intentional; and (7) appellant was "with the guys" who killed Tidwell. Appellant also acknowledged that he was "voluntarily and freely" entering the plea and that he understood that intentional second-degree murder carries a term of 353 months.
In October 1992, appellant was sentenced to 353 months on the charge of intentional murder in the second degree. In March 2001, appellant petitioned for postconviction relief, which was denied. This appeal follows.
DECISION
The court will not reverse a postconviction court's decision absent an abuse of discretion and will consider only whether sufficient evidence supports the court's conclusions. Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted).
Sentencing decisions rest within the broad discretion of the district court and will not be reversed absent a clear abuse of that discretion. State v. Larson, 473 N.W.2d 907, 908 (Minn.App. 1991). This court will not substitute its own judgment for that of the district court on sentencing matters. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn.App. 1994), review denied (Minn. Apr. 22, 1994). The presumptive sentences in the sentencing guidelines are presumed appropriate for every case, but the district court may depart if the "individual case involves substantial and compelling circumstances." Minn. Sent. Guidelines II.D. "Only in a `rare' case will a reviewing court reverse a district court's imposition of the presumptive sentence." State v. Evenson, 554 N.W.2d 409, 412 (Minn.App. 1996) (citing State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981)).
Appellant argues that the postconviction court abused its discretion by failing to reduce his sentence in the interests of justice because of the "closeness of the issue" on his intent to kill, citing State v. Gilbert, 448 N.W.2d 875, 876 (Minn. 1989) (holding that concerns regarding the evidence establishing the appellant's intent to kill merited a reduction in sentence in interests of justice).
Appellant also relies on the supreme court case involving his co-defendant, Freddi Burton, where the court, citing Gilbert, reduced Burton's sentence because, although the evidence of intent to kill was legally sufficient to allow a jury to convict, the "closeness of the issue" merited a sentence reduction. State v. Burton, 507 N.W.2d 842, 842 (Minn. 1993). Appellant contends that the evidence of his intent was no greater than that of Burton's intent. Therefore, appellant argues, like Burton, his sentence must be reduced in the interest of justice.
"A defendant is not entitled to a reduction in his sentence merely because a co-defendant or accomplice * * * received a lesser sentence." State v. Krebsbach, 524 N.W.2d 17, 19 (Minn.App. 1994) (quotation omitted), review denied (Minn. Jan. 13, 1995). And, while Burton pleaded not guilty and had a jury trial, appellant pleaded guilty to intentional second-degree murder and, in doing so, made admissions to establish a factual basis for the plea, including acknowledgement that Tidwell's murder was intentional. Therefore, there is no "closeness" on the intent issue here, and Burton is inapposite.
Appellant also claims that the postconviction court erroneously noted in its memorandum that appellant acknowledged that there was an eyewitness who would testify that he saw appellant shoot the victim. Rather, the plea transcript shows that appellant acknowledged that a witness would testify that he saw appellant shoot at Tidwell. Appellant does not explain why this error would lead us to determine that the postconviction court abused its discretion. But to the extent that it is appellant's unarticulated claim that this error goes to his intent to commit the crime, the error is harmless because he admitted at the plea hearing that he participated in intentional murder. The postconviction court did not abuse its discretion by failing to reduce appellant's sentence in the interests of justice.
Appellant also alleges that the district court abused its discretion by failing to reduce his sentence because of the passive nature of appellant's role in the crime, an issue he did not raise in his petition for postconviction relief. Generally, this court will not decide an issue that was not raised in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). An appellate court may, however, address the issue even though it was not raised at the district court level if (1) the interests of justice require consideration of the issue and (2) consideration would not unfairly surprise a party to the appeal. State v. Clow, 600 N.W.2d 724, 726 (Minn.App. 1999), review denied (Minn. Oct. 21, 1999). But we conclude that, here, the interests of justice do not require that we consider the issue.