Louis Ambrose, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0537

Louis Ambrose, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 10, 2018
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CR-11-6509

Louis Ambrose, Fairbault, Minnesota (pro se appellant)

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

John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant, pro se, challenges the district court’s denial of his motion to correct his
sentence and for postconviction relief arguing that: (1) he was convicted under the wrong

2
statute; (2) he received an illegal sentence which violated double jeopardy; (3) his criminal-
history sco re was improperly calculated; (4) the restitution order should be reversed
because payment of restitution was not part of his plea agreement; (5) his trial and appellate
counsel were ineffective; and (6 ) the sentencing judge had a conflict of in terest that
invalidated his conviction . Because there was no abuse of discretion in the denial of
appellant’s motion, we affirm.
FACTS
In August 2011, appellant Louis Ambrose and his girlfriend had an argument at her
home. Later that day, appellant started a fire inside the home and intentionally prevented
her from leaving the home by blocking her access to the front door. Appellant pleaded
guilty to attempted second-degree intentional murder in violation of Minn. Stat. §§ 609.17,
subd. 1, .19, subd. 1(1) (2010), and in exchange the state dismissed a charge of arson. The
underlying facts for the conviction are set forth in State v. Ambrose, No. A17-0568, 2017
WL 3974323 (Minn. App. Sept. 11, 2017), review denied (Minn. Nov. 28, 2017).
The district court sentenced appellant to 173 months in prison and ordered
restitution in an amount to be determined. After receiving evidence of the damage caused,
the district court ordered appellant to pay $1,111.41 in restitution to the building owner .
Appellant did not pursue a direct appeal from his conviction or sentence.
Between June and August 2015, appellant filed multiple pro se motions to correct
his sentence. See Minn. R. Crim. P. 27.03, subd. 9. The district court denied the motions,
and appellant appealed, pro se. We reversed and remanded because the record was unclear

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regarding whether appellant had been informed of his right to counsel. Ambrose v. State,
No. A15-1972 (Minn. App. July 20, 2016) (order opinion).
In October 2016, appellant, with the assistance of counsel, filed a motion to correct
his sentence. Appellant also filed additional pro se motions to correct his sentence between
January 2016 and January 2017. In February 2017, the district court issued an order
denying appellant’s counseled motion and his pro se motions. We affirmed the district
court’s order. Ambrose, 2017 WL 3974323, at *5.
In December 2017, appellant filed a pro se motion challenging his criminal-history
score, contending that he was sentenced under the wrong criminal statute, and requesting
a sentence reduction to one year and one day. Appellant failed to properly file the motion
or serve it on the state. After being informed of the motion by the district court, the state
opposed it on the grounds of improper service.
On January 2, 2018, appellant filed an additional pro se motion again challeng ing
his criminal -history score . He failed to serve this motion on the state as well . On
January 18, appellant filed a document labeled “Addendum” and “Notice of Motion
590.2,” which again requested resentencing on the grounds asserted in the motion and also
raised claims of ineffective assistance of counsel and a conflict of interest of the judge.
The addendum was served on the state. The district court denied appellant’s motion on its
merits rather than on grounds of improper service. This appeal follows.
D E C I S I O N
First, appellant argues that the district court erred by sentencing him under the
wrong statutes and that his sentence was a violation of double -jeopardy protections. The

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district court denied appellant’s motion to correct his sentence. We review the denial of a
motion to correct a sentence for an abuse of discretion. Evans v. State, 880 N.W.2d 357,
359 (Minn. 2016). Minnesota Rule of Criminal Procedure 27.03, subdivision 9, provides
“that the district court may at any time correct a sentence not authorized by law.” Id. “For
a sentence to be unauthorized, it must be contrary to law or applicable statutes.” Id.
Appellant argues that he should have been sentenced under Minn. Stat. § 609.11,
subd. 4 (2010):
Any defendant convicted of an offense listed in
subdivision 9 in which the defendant . . . used . . . a dangerous
weapon other than a firearm, shall be committed to the
commissioner of corrections for not less than one year plus one
day, nor more than the maximum sentence provided by law.

Appellant appears to argue that, because he was convicted of second-degree murder (which
is one of the offenses listed in subdivision 9) and he used fire (a dangerous weapon), he
should have been given the mandatory minimum sentence of one year plus one day.
Appellant also argues that his sentence was il legal and a violation of double -jeopardy
protections because it was “from two statute[s] out of one count.”
Appellant’s arguments fail. Appellant’s conviction is proper for the two statutes to
which he plead ed guilty. Appellant pleaded guilty to attempted second -degree murder
under Minn. Stat. § 609.17 (2010) (criminal statute for attempt) and Minn. Stat. § 609.19
(2010) (criminal statute for murder in the second degree), which carries a maximum term
of 240 months imprisonment under Minn. Stat. § 609.17, subd. 4(1). Pursuant to a
negotiated plea agreement, appellant was sentenced to a presumptive sentencing guidelines
low-end of the box term of 173 months in prison. Because the sentence is not contrary to

5
law or applicable statutes, the district court did not abuse its discretion in denying
appellant’s motion to correct his sentence.
Next, appellant challenges his criminal-history score arguing that (1) he was not
convicted of two of the four misdemeanors that contributed to this criminal-history score;
and (2) his 1999 conviction for third-degree burglary was changed from a felony to a gross
misdemeanor. We review the district court’s determination of a defendant’s criminal-
history score for an abuse of discretion. State v. Drljic, 876 N.W.2d 350, 353 (Minn. App.
2016). A defendant’s criminal -history score is the sum of points from eligible prior
felonies, his custody status at the time of the offense, prior misdemeanors and gross
misdemeanors, and prior juvenile adjudications. Minn. Sent. Guidelines 2.B. (2018 ).
Appellant’s criminal-history score was determined to be five : one custody-status point;
one point for a third -degree burglary conviction in 1999; one and one -half points for a
third-degree controlled -substance crime in 1999; one-half point for a fifth -degree
controlled-substance crime in 2007; and one point from four misdemeanor units, which
include a domestic assault and a violation of an order for protection in 2003.
The only evidence appellant submitted to support his claim is a sentencing
worksheet on which he circled the two 2003 misdemeanor convictions, noting that he was
not convicted , and the 1999 felony conviction , noting that it was turned into a gross
misdemeanor. We agree with the district court’s determination that appellant failed to set
forth any grounds to change his criminal-history score.
Nevertheless, to address the merits of appellant’s claim, we reviewed all three
offenses in his criminal record. Despite his assertion, appellant was convicted of a

6
misdemeanor for domestic assault and a misdemeanor for violation of a protective order in
2003 and his 1999 conviction for burglary in the third degree is correctly characterized as
a felony. Consequently, the district court did not abuse its discretion in determining that
appellant’s criminal-history score was five.
Next, appellant challenges his order to pay restitution because “paying restitution
wasn’t part of [his plea] deal.” We previously concluded that the restitution ordered was
lawfully imposed. Ambrose, 2017 WL 3974323, at *2-3. Accordingly, w e construe
appellant’s argument as challenging the validity of his guilty plea. “To be constitutionally
valid, a guilty plea must be accurate, voluntary, and intelligent. A defendant bears the
burden of showing his plea was invalid. Assessing the validity of a plea presents a question
of law that [an appellate court] review[s] de no vo.” State v. Raleigh, 778 N.W.2d 90, 94
(Minn. 2010) (citations omitted).
District courts have “wide discretion in ordering restitution and determining the
appropriate amount of restitution.” State v. Anderson, 507 N.W.2d 245, 246 (Minn. App.
1993), review denied (Minn. Dec. 22, 1993). Because a plea agreement is considered
analogous to a contract between the state and a defendant, alteration of one term may alter
the nature of the entire agreement. State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App.
2008). Accordingly, this severely limits the district court’s otherwise broad discretion to
modify restitution after the district court accepts a plea agreement that expressly calls for
a specific, bargained -for restitution amount. Id. “[A] district court generally should not
alter the terms of a restitution obligation negotiated as part of a plea agreement if it
materially changes the expectations of the parties to the bargain.” Id. at 604.

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Appellant’s plea petition did not call for a specific, bargained-for restitution amount
because it did not address restitution. On December 16, 2011, the district court sentenced
appellant and left the issue of restitution open for 90 days. At the sentencing hearing, after
appellant expressed confusion about restitution, the district court explained:
THE COURT: And I’m also going to order restitution in an
amount to be determined by probation within 90 days from
today’s date. If you have an objection to the amount you could
ask [your lawyer] to bring the matter back before me for a
restitution hearing.
APPELLANT: Okay.
THE COURT: Mr. Ambrose, do you have any questions?
APPELLANT: Nope.

After the Ramsey County Community Corrections filed a request for restitution on behalf
of the building owner , the district court ordered appellant to pay him $1,111.41 in
restitution. Appellant made restitution payments on July 24, 2013, October 11, 2013,
January 17, 2014, and April 30, 2014. Appellant first challenged his restitution obligation
on May 15, 2015, “because this was not what [he pleaded] to.”
State v. Chapman, 362 N.W.2d 401 (Minn. App. 1985) discusses plea agreements
accepted with no mention of restitution.
While the condition of restitution of a small amount
might be acceptable because it would not necessarily
materially alter the expectations of the parties to the bargain,
restitution of a large amount should have been part of the plea
bargain or the possibility of its inclusion as a condition of
probation made known and agreed to by the bargainers.

Chapman, 362 N.W.2d at 404 (quoting United States v. Runck, 601 F.2d 968, 970 (8th Cir.
1979)). In Chapman, the amount of the contested restitution was about $31,000, which the

8
court characterized as “substantial.” Id. Here, the amount of restitut ion is much smaller
than the amount in Chapman and unlikely to materially alter the expectations of the parties.
In State v. Anderson , the defendant was ordered to pay $10,227.12 in restitution
when restitution had not been contemplated during plea negotiations. 507 N.W.2d at 246.
We affirmed, noting that the record suggested that the defendant “should have been aware
that the victim might seek and the court might order restitution.” Id. at 247. As in
Anderson, appellant should have been aware that the district court might order restitution
because it told him during sentencing that restitution might be ordered, and when asked if
he had any questions, he responded, “Nope.” Despite this warning during his December
2011 hearing, appellant did not object to the restitution until May 2015. We conclude that
the district court did not abuse its discretion in ordering restitution because the order did
not materially change the expectations of the parties to the bargain and appellant did not
object to it for more than three years.
Additionally, appellant argues that the state violated the plea deal by asking him
about the arson and using it to convict him. This argument fails. Although the state agreed
to dismiss the charge of arson, the plea agreement does not stop the state from eliciting
information regarding the underlying facts of the attempted second -degree murder. The
attorney was asking questions of appellant to establish proof of guilt of the attempted
second-degree murder, not the dismissed charge of arson.
Next, appellant seeks postconviction relief claiming his sentencing judge had a
conflict of interest and his trial and appellate counsel were ineffective, all of which
invalidate his conviction . A cr iminal offender may file a post conviction petiti on to

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challenge his criminal conviction. Minn. Stat. § 590.01, subd. 1 (2018). A postconviction
petition “shall contain . . . a statement of the facts and the grounds upon which the petition
is based and the relief desired.” Minn. Stat. § 590.02, subd. 1(1) (2018). “All grounds for
relief must be stated in the petition or any amendment thereof unless they could not
reasonably have been set forth therein.” Id. “[T]he burden of proof of the facts alleged in
the petition shall be upon the petitioner to establish the facts by a fair preponderance of the
evidence.” Minn. Stat. § 590.04, subd. 3 (2018). A district court may deny a petition for
postconviction reli ef without an evidentiary hearing if “the petition and the files and
records of the proceeding conclusively show that the petitioner is entitled to no relief.” Id.,
subd. 1 (2018). As a general rule, we apply an abuse-of-discretion standard of review to a
postconviction court’s denial of relief. Sanchez v. State, 890 N.W.2d 716, 719-20 (Minn.
2017).
Appellant raises these challenges about six years after his conviction. Although it
addressed the merits of his claims, the district court noted that any petition for
postconviction relief is time-barred. Minn. Stat. § 590.01, subd. 4(a) (2018) prohibits the
filing of a petition “more than two years after the later of: (1) the entry of judgment of
conviction or sentence if no direct appeal is filed; or (2) an appellate court’s disposition of
petitioner’s direct appeal.” But there are several exceptions to the statutory time limitation,
such as for newly discovered evidence, a change in the law, or the filing was precluded by
a physical disability. Minn. Stat. § 590.01, subd. 4(b) (2018). “A lengthy delay in filing a
petition for postconviction relief may in itself provide a sufficient basis for affirming the

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dismissal of the petition when there has already been a direct appeal.” Sutherlin v. State,
574 N.W.2d 428, 432 (Minn. 1998).
Appellant claims he was not able to ask the court to review his case in 2013 -2014
because he had at least two strokes and a blood clot in his head. He submits medical
documentation to support his claim. It appears appellant’s initial visit for these concerns
was in August 2013. Even if appellant’s claim of physical disability during 2013 -2014
were a sufficient exception to the statutory time limitation, it does not explain why he failed
to file for postconviction relief when he began filing pro se motions to correct his sentence
in June 2015. Although appellant’s claims appear to be time -barred, we will evaluate the
merits of the issues raised . See id. at 433 (deciding to evaluate the merits of pet itioner’s
claims although his ten-year delay “alone may be sufficient grounds” for dismissing his
petition).
The district court did not have an evidentiary hearing or make any factual findings
regarding appellant’s claims of conflict of interest or ineffective assistance of counsel. The
district court concluded that although appellant’s filing referenced claims of conflict of
interest and ineffective assistance of counsel , the only relief sought was a sentence
reduction, and “none of these claims entitle [appellant] to a reduction of sentence.”
Appellant argues that his sentencing judge had a conflict of interest because he had
presided over appellant’s fifth -degree controlled -substance case. “Criminal defendan ts
have a constitutional right to be tried before a fair and impartial judge.” Cuypers v. State,
711 N.W.2d 100, 104 (Minn. 2006). There is a presumption that a judge has discharged
his or her judicial duties properly. McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998).

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The fact that the sentencing judge presided over another proceeding in itself does not show
that he was not fair. Cf. Johnson v. State, 486 N.W.2d 825, 828 (Minn. App. 1992) (“The
mere fact a judge presided at trial is not cause for re moval in a postconviction
proceeding.”). Here, there was no trial, and the judge gave appellant a low-end-of-the-box
guidelines sentence for a crime to which appellant pleaded guilty. Appellant fails to make
any argument or cite to any facts that show the sentencing judge was biased or acted
improperly. Furthermore, appellant’s counsel never objected to the judge presiding or
requested his recusal. Appellant’s claim that his sentencing judge had a conflict of interest
fails on the merits.
Appellant claims both his trial counsel and appellate counsel were constitutionally
ineffective. “To prevail on a claim that his counsel was ineffective, appellant must
demonstrate that (1) the attorney’s performance fell below an objective standard of
reasonableness; and (2) a reasonable probability exists that, but for the attorney’s
unprofessional error, the outcome would have been different.” State v. Vang, 847 N.W.2d
248, 266 (Minn. 2014). Appellant claims his trial counsel was ineffective because “she let
everything happen to [him].” Appellant provides no other facts or evidence to support his
claim and fails to explain what his trial counsel did that was unreasonable. Appellant’s
allegation is nothing more than an argumentative assertion without factual suppo rt. See
Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (“The petitioner’s allegations must
be more than argumentative assertions without factual support.”) (quotation omitted).
Appellant also claims his appellate counsel was ineffective because he told appellant
that State v. Moyer, 298 N.W.2d 768 (Minn. 1980) was too old to be helpful to his case .

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Appellant appears to mistakenly believe that Moyer entitles him to a mandatory minimum
sentence of one year plus one day. See Moyer, 298 N.W.2d at 770. The district court
correctly stated that “ Moyer is a pre -guidelines case and does not therefore apply to
[appellant’s] sentence.” See Minn. Sent. Guidelines 2 (“The presumptive sentence for any
offender convicted of a felony committed on or after May 1, 1980, is determined by the
Sentencing Guidelines in effect on the date of the conviction offense . . . .”). Appellant’s
appellate counsel appears to have correctly advised him of this. Appellant fails to make
any other arguments about how his appellate counsel’s performance was unreasonable.
Because appellant makes only argumentative assertions without factual support and
the facts that he alleges would not entitle him to the requested relief, no evidentiary hearing
on his postconviction petition was required. See Sutherlin, 574 N.W.2d at 436. The district
court did not abuse its discretion in denying appellant’s postconviction challenges because
his petition and the files and records of the proceeding conclusively show that he is entitled
to no relief.
Affirmed.