                          This opinion will be unpublished and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
                                     A15-1841

                           Ignacio Olalde-Hernandez, petitioner,
                                        Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed March 28, 2016
                                        Affirmed
                                      Larkin, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-18864


Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, 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 Hooten, Presiding Judge; Larkin, Judge; and Rodenberg,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges the district court’s denial of his motion for sentence correction,

arguing that his sentence must be reduced because he received a 59-month prison term

even though he pleaded guilty in exchange for the state’s unconditional promise of a 48-

month prison term. Because the record contains no evidence of such a promise by the state,

we affirm.

                                          FACTS

       In May 2014, appellant Ignacio Olalde-Hernandez pleaded guilty to first-degree

controlled-substance crime and endangerment of a child.           At the plea hearing, the

prosecutor told the district court that Olalde-Hernandez “will be entering” a straight plea

and that “[w]henever sentencing is to occur, the State would like to be heard on the matter.”

Olalde-Hernandez’s plea petition similarly indicated that he would enter a “STRAIGHT

PLEA.” Neither Olalde-Hernandez nor the prosecutor informed the district court that the

plea was tendered pursuant to a plea agreement or a sentencing promise by the state. After

Olalde-Hernandez pleaded guilty, the district court ordered a presentence investigation.

       In August 2014, Olalde-Hernandez failed to appear for sentencing as scheduled.

When he appeared for sentencing at a later date, the prosecutor informed the district court

that although “[t]he state’s original offer . . . was 59 months,” the state recommended the

presumptive 86-month sentence because Olalde-Hernandez failed to recognize the

seriousness of his charges and failed to appear for sentencing. Olalde-Hernandez’s counsel

asked the district court to “stick with the original indication of 48 months.” The district


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court sentenced Olalde-Hernandez to 59 months, explaining that that sentence was “the

original plea negotiation in this matter.”

       Olalde-Hernandez moved the district court to correct his sentence, asking that it be

reduced to 48 months. Olalde-Hernandez argued that he was entitled to the reduction

because “[t]he state and Olalde Hernandez entered an agreement whereby Olalde

Hernandez would plead guilty to first-degree controlled substance crime and child

endangerment in exchange for no more than a 48-month prison term.” He further argued

that the 59-month sentence breached that agreement. The district court denied the motion,

reasoning that Olalde-Hernandez did not meet his burden to prove that the state had agreed

to or promised a 48-month sentence. Olalde-Hernandez appeals.

                                       DECISION

       The district court treated Olalde-Hernandez’s sentence-correction motion as a

postconviction petition under Minn. Stat. § 590.01, subd. 1(1) (2014). See State v. Schnagl,

859 N.W.2d 297, 301 (Minn. 2015) (stating that a motion to correct sentence is proper only

when the sentence was illegal); Washington v. State, 845 N.W.2d 205, 211 (Minn. App.

2014) (recognizing the district court’s authority to treat a motion to correct sentence as a

postconviction petition). A person convicted of a crime may request postconviction relief

“to vacate and set aside the judgment . . . or grant a new trial . . . or make other disposition

as may be appropriate.” Minn. Stat. § 590.01, subd. 1 (2014). A petitioner seeking

postconviction relief has the burden of establishing by “a fair preponderance of the

evidence” the facts alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2014); Schleicher

v. State, 718 N.W.2d 440, 444 (Minn. 2006). “To meet that burden, a petitioner’s


                                               3
allegations must be supported by more than mere argumentative assertions that lack factual

support.” Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005) (citation omitted).

       Appellate courts review “a denial of a petition for postconviction relief . . . for an

abuse of discretion. A postconviction court abuses its discretion when its decision is based

on an erroneous view of the law or is against logic and the facts in the record.” Riley v.

State, 819 N.W.2d 162, 167 (Minn. 2012) (citations and quotation omitted).

       If a plea agreement is breached, the defendant’s guilty plea is invalid and the court

“may allow withdrawal of the plea, order specific performance, or alter the sentence if

appropriate.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). However, “[w]hile the

government must be held to the promises it made, it will not be bound to those it did not

make.” Id. (quotation omitted). “[A] solemn plea of guilty should not be set aside merely

because the accused has not achieved an unwarranted hope.” Schwerm v. State, 288 Minn.

488, 491, 181 N.W.2d 867, 868 (1970).

       Olalde-Hernandez argues that he pleaded guilty under a plea agreement in which

the state promised him a 48-month sentence. He relies on his exchange with his attorney

at the plea hearing as follows:

              Q: Do you understand that after my speaking with the Judge,
              that we expect the sentence to be 48 months, do you understand
              that?
              A: Yes.
              Q: Do you understand that you are going to do what is called
              a presentence investigation?
              A: Yes.
              Q. And do you understand I’m hoping this will come back and
              maybe convince the Judge to give you even less, but we are not
              counting on that, do you understand that, there’s no promises?
              A: Yes.


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       He also relies on his plea petition, which contains the following preprinted text, “I

am entering my plea of guilty based on the following plea agreement with the prosecutor,”

followed by a handwritten notation stating, “STRAIGHT PLEA (48 MOS).” The use of

the term “straight plea” in the plea petition connotes the absence of a plea agreement. See

United States v. Kriz, 621 F.2d 306, 309 (8th Cir. 1980) (explaining that the defendant and

government could not come to an agreement so a straight plea was entered with no

assurances). Consistent with that connotation, at the plea hearing, the prosecutor indicated

that Olalde-Hernandez would enter a straight plea and did not commit the state to any

particular sentence.

       Although the prosecutor indicated that the state had originally offered “59 months,”

there is no evidence that the parties agreed to a 59-month sentence, much less a 48-month

sentence.   Instead, the record suggests that Olalde-Hernandez expected a 48-month

sentence based on conversations between his attorney and the district court judge. But

Olalde-Hernandez does not argue that the district court promised him a particular sentence

in exchange for his plea. See State v. Anyanwu, 681 N.W.2d 411, 414 (Minn. App. 2004)

(“It is improper for a district court to promise a particular sentence in advance.”).

       In sum, the record does not show that Olalde-Hernandez pleaded guilty in exchange

for the state’s promise of a 48-month sentence. Thus, there is inadequate factual support

for his assertion that he is entitled to a sentence reduction. The district court therefore did

not abuse its discretion by refusing to grant relief.

       Affirmed.




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