This opinion will be unpublished and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
                                     A15-0237

                             James Darnell Posey, petitioner,
                                      Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed September 8, 2015
                                       Affirmed
                                     Hooten, Judge

                            Ramsey County District Court
             File Nos. 62-CR-13-6209, 62-CR-13-983, 62-DA-FA-14-1295

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

       Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and

Hooten, Judge.

                        UNPUBLISHED OPINION

HOOTEN, Judge

       Appellant argues that the postconviction court erred by denying his postconviction

petition seeking plea withdrawal or modification of his sentence because the district court
failed to sentence him in accordance with his plea agreements. Because the district court

sentenced appellant in accordance with his plea agreements, we affirm.

                                         FACTS

      On February 7, 2013, respondent State of Minnesota charged appellant James

Darnell Posey with felony violation of an order for protection (OFP) and domestic assault

by strangulation. The complaint alleged that, on February 4, Posey had punched, thrown,

and choked the mother of one of his children, in violation of an OFP the victim had

previously obtained against him. Posey was arrested on February 5, but later posted a

bond and was released as prosecution was pending on these charges.1 The state then filed

another complaint against Posey on August 21, 2013. This second complaint charged

Posey with felony domestic assault and domestic assault by strangulation, alleging that

Posey had severely assaulted a different female victim at the Dorothy Day Center on

August 20.

      On August 28, Posey entered into separate plea agreements with the state

regarding each case. The plea agreements provided that Posey would plead guilty to the

first charge of each complaint—felony violation of an OFP and felony domestic assault—

and the state would dismiss both counts of domestic assault by strangulation. The state

also agreed that Posey’s sentence for the OFP violation be at the “low end of [the]

guidelines” and that his sentence for the felony domestic assault offense would be

“concurrent [to] and of equal time as” his sentence for the OFP violation.

1
  The presentence investigation report (PSI) indicates that Posey was released on
February 23, 2013, but then served time in custody in both Ramsey and Washington
county jails from March 2013 until early May 2013.

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       A PSI, conducted for both cases, recommended that Posey not be sentenced in

accordance with these plea agreements and should instead receive a 30-month executed

sentence for the OFP violation offense and a 33-month executed sentence for the felony

domestic assault offense. The PSI noted Posey’s extensive criminal record, including

prior felonies involving violence against women, and that his current offenses involved

different female victims, neither of whom was the victim of Posey’s past domestic

violence offenses. The PSI further indicated that Posey had 111 days of custody credit

for the OFP violation offense and 38 days of custody credit for the felony domestic

assault offense.

       At sentencing, the prosecutor noted that the PSI had incorrectly calculated custody

credit and that Posey should actually receive 118 days of custody credit for the OFP

violation charge and 45 days of custody credit for the felony domestic assault charge.

The district court then asked the prosecutor if it was true that the PSI “didn’t accurately

reflect the plea agreement, as far as length of sentence.” The prosecutor agreed, noting

that the plea agreements provided that Posey “would not have additional time on that

second count” and that “it would be low end of the box.” Posey’s counsel indicated to

the district court that his client understood this discussion. The district court ultimately

dismissed the two counts of domestic assault by strangulation and sentenced Posey to

concurrent 26-month executed sentences for the two remaining offenses. The district

court noted that 26 months was the low end of the presumptive guidelines range for the

OFP violation offense and was a downward departure from the guidelines for the felony

domestic assault offense. The district court further ordered that Posey receive 118 days


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of custody credit on the OFP violation sentence and 45 days of credit on the felony

domestic assault sentence.

         On August 27, 2014, Posey filed a postconviction petition asserting that he was

entitled to modification of his sentences or withdrawal of his plea because the sentence

imposed for his conviction of felony domestic assault violated the terms of his plea

agreements. Posey argued that, due to the “unequal” jail credit he received for each of

his sentences, he was not given the “equal” sentences promised in his plea agreements.

The postconviction court denied his petition, and this appeal followed.

                                     DECISION

         Posey argues that the postconviction court abused its discretion by denying his

postconviction petition because he was not sentenced in accordance with his plea

agreements. This court reviews the denial of a postconviction petition for an abuse of

discretion.    Riley v. State, 

 (Minn. 2012).          We review the

postconviction court’s findings of fact for clear error and its legal conclusions de novo,

and only reverse if the postconviction court’s “decision is based on an erroneous view of

the law or is against logic and the facts in the record.” 

 (quotation omitted). We

review the interpretation and enforcement of plea agreements de novo, but “[d]etermining

what the parties agreed to in a plea bargain is a factual inquiry for the postconviction

court to resolve.”     James v. State, 

 (Minn. 2005) (quotation

omitted).

         A guilty plea must be accurate, voluntary, and intelligent to be constitutionally

valid.    State v. Raleigh, 

 (Minn. 2010).           “The voluntariness


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requirement insures that a guilty plea is not entered because of any improper pressures or

inducements.” State v. Brown, 

 (Minn. 2000) (quotation omitted).

“When a guilty plea is induced by unfulfilled or unfulfillable promises, the voluntariness

of the plea is drawn into question.” State v. Wukawitz, 

 (Minn.

2003). Upon demonstration that a plea agreement has been breached, a defendant may be

entitled to withdraw his or her plea or have the pronounced sentence modified to conform

to the plea agreement. Brown, 

. However, there is no basis for plea

withdrawal if the defendant is sentenced in accordance with the plea agreement. State v.

Hamacher, 

 (Minn. App. 1994).

       Posey claims that he did not receive “equal time” for his sentences, as

contemplated by the parties in the plea agreements. Posey argues that this inequality

exists because the district court applied differing amounts of custody credit to his two

sentences: 118 days for the OFP violation offense and 45 days for the felony domestic

assault offense, a difference of 73 days. As further support for his argument, he cites to

the prosecutor’s statement at sentencing that “[t]he agreement was actually that [Posey]

. . . would not have additional time on” his conviction of felony domestic assault. The

postconviction court rejected these arguments because Posey’s “concurrent 26[-]month

sentences are in accord with the plea agreement and provide no basis for withdrawal of

the pleas of guilt.”

       Posey’s argument is unpersuasive because, as found by the postconviction court,

his interpretation of the plea agreements is wholly unsupported by the record. Here, the

plea agreements signed by Posey indicated several benefits he would receive as the result


                                            5
of pleading guilty: the dismissal of two separate counts of domestic assault by

strangulation, a sentence at the low end of the guidelines range for his OFP violation, and

a sentence for felony domestic assault “concurrent [to] and of equal time as” his sentence

for the OFP violation. The portion of the sentencing hearing quoted by Posey, in which

the prosecutor represented that Posey “would not have additional time” on his felony

domestic assault conviction, is consistent with these plea agreements. The plea hearing

record makes no mention of any agreement as to custody credit, and Posey did not object

to the custody-credit calculations proffered by the prosecutor at sentencing.

       The district court’s sentences contained all of the benefits promised by the state.

The district court dismissed the separate counts of domestic assault by strangulation and

sentenced Posey to concurrent 26-month sentences for his convictions. Not only did the

district court pronounce a sentence at the low end of the presumptive range under the

sentencing guidelines for his OFP violation, the district court then downwardly departed

for his felony domestic assault sentence in order to match the two sentences. Posey did

not receive “additional time” for his domestic assault sentence; rather, he had less time

removed as custody credit because the offense occurred six months after his OFP

violation. Given the absence of an agreement between the parties that the equality of

these sentences would include consideration of the custody credit applicable to each

sentence, Posey received what he bargained for when the district court sentenced him to

concurrent 26-month sentences for his convictions.

       Furthermore, Posey’s requested remedy would violate the terms of the plea

agreements. Posey argues that his sentences could be corrected by reducing his sentence


                                             6
for his felony domestic assault offense by three months. If the proper remedy for these

“unequal” sentences is to reduce his 26-month sentence for felony domestic assault by

three months, his sentences would then be facially unequal: 26 months for the OFP

violation offense and 23 months for the felony domestic assault offense. Moreover, this

would not equalize his sentences even under his proposed interpretation of the plea

agreement, as there is only a 73-day difference in custody credit between the two

offenses.

      To the extent that Posey argues2 that he should have been awarded additional

custody credit for his felony domestic assault sentence in order to equalize the two

sentences, his argument must fail. A defendant is entitled to credit for time spent in

custody in connection with an offense after

             (1) the [s]tate has completed its investigation in a manner that
             does not suggest manipulation by the [s]tate, and (2) the
             [s]tate has probable cause and sufficient evidence to
             prosecute its case against the defendant with a reasonable
             likelihood of actually convicting the defendant of the offense
             for which he is charged.

State v. Clarkin, 

 (Minn. 2012). The district court has no discretion

in making an award of custody credit; rather, “the court must determine the

circumstances of the custody the defendant seeks credit for, and then apply the rules to

those circumstances.” State v. Johnson, 

 (Minn. 2008); see also

Minn. R. Crim. P. 27.03, subd. 4(B) (providing that the district court at sentencing

“must” indicate “the number of days spent in custody in connection with the offense or

2
 Posey asked the postconviction court for an award of additional custody credit for his
domestic assault sentence, but does not appear to have continued this request on appeal.

                                              7
behavioral incident being sentenced” and “must” deduct those days from the term of

imprisonment).

      Here, as found by the postconviction court, Posey committed felony domestic

assault on August 20, 2013, was arrested that same day, was charged two days later, and

remained in custody until he was sentenced on October 3, resulting in 45 days of custody

credit. Clearly, under the Clarkin standard, Posey is not entitled to additional custody

credit for any time he spent in custody prior to the commission of this offense, and the

district court would have erred by making such an award.

      Posey received the sentence he agreed to in his plea agreement. Therefore, there

was no basis upon which the postconviction court could have modified his sentence or

allowed him to withdraw his plea. We conclude that Posey has failed to show that the

postconviction court abused its discretion by denying his postconviction petition.

      Affirmed.




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