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Rutgers' appeal denied by appellate court

WORTHINGTON -- A Worthington man who threatened two women and spit on a jailer is going to finish out his prison sentence, according to an appellate court decision filed this week.

Joshua David Rutgers, 27, was charged in April 2009 with terroristic threats and harassment in Jackson County.

A month later, he was charged in Nobles County with terroristic threats, property damage, assault and disorderly conduct.

While still on probation for burglary theft and fraud convictions in Pipestone County, Rutgers threatened two women, telling them he was a Latin King.

He left several voicemail messages on their phones, referring to himself as a Latin King killer and stating he would kill them.

During an interview with law enforcement officials, Rutgers stated he was not a member of the Latin Kings, but was an associate of theirs, having spent time in prison, and found it offensive when the girls "disrespected" the Kings.

He later pleaded guilty to the terroristic threat charge in both counties, and the property damage charge in Nobles County.

The two cases were sentenced together, for 26 months incarceration.

After his arrest, however, and before he left for prison, Rutgers was also charged with fourth-degree assault on a peace officer after spitting on one of the correctional officers at the Nobles County Jail.

Allegedly, Rutgers was not getting along with jail staff, and even asked to be sentenced at the same time as his guilty plea so he could be transported to prison as soon as possible.

He then entered into a second plea agreement on the assault charge that provided for an additional 12 months in prison, consecutive to his 26 months for terroristic threats.

Two months later, he filed a postconviction relief petition to withdraw his guilty plea for the assault, arguing his plea was not voluntary due to ineffective assistance of counsel.

In his petition, Rutgers alleged his counsel had incorrectly informed him the additional consecutive sentence was mandatory, when in fact it was permissive.

An affidavit from Rutger's counsel stated he had told Rutgers the charge was a permissible offense, and that the judge would probably give him a consecutive sentence.

He explained that at the time of the plea, Rutger's most important concern "seemed to be to get his case concluded and get transported to prison as soon as possible."

The district court denied Rutger's postconviction petition, reasoning it was clear from the conversation at the plea hearing that Rutger's counsel knew the consecutive sentencing was permissive and that Rutgers was present at the hearing and could have said something.

Rutgers appealed the decision, which then went to the Minnesota Court of Appeals.

According to the opinion filed this week by that court, Rutgers failed to show that representation fell below an objective standard of reasonableness -- there was no factual support to his claim.

At no time in his argument did Rutgers show any factual evidence that he would not have pleaded guilty had he known the consecutive sentence was permissive.

"The district court did not abuse its discretion by denying his petition without an evidentiary hearing," the opinion states, affirming the court's denial of the petition.