This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-13

 

 

State of Minnesota,

Respondent,

 

vs.

 

Walter Edward Lubinski,

Appellant.

 

 

Filed August 29, 2000

Affirmed

Schumacher, Judge

 

Ramsey County District Court

File No. K099600672

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

John Michael Miller, Shoreview City Attorney, 50 East Fifth Street, Suite 300, St. Paul, MN 55101 (for respondent)

 

Stanley H. Nathanson, 6417 Penn Avenue South, Suite 4, Richfield, MN 55423 (for appellant)

 

 

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Walter Edward Lubinski pleaded guilty to one count of gross misdemeanor indecent exposure. After his sentencing, he filed a motion to vacate his guilty plea, which the district court denied. He appeals from the denial of the motion. We affirm.

FACTS

Lubinski was charged with two counts of gross misdemeanor indecent exposure and one count of misdemeanor disorderly conduct for allegedly repeatedly exposing himself to children at a public swimming pool. At the omnibus hearing, Lubinski's public defender informed the court that the parties had agreed to a plea agreement in which Lubinski would plead guilty to one count of gross misdemeanor indecent exposure; in return, the state would dismiss the other counts. The public defender further informed the court that Lubinski's plea would be entered under the authority of State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)), which under certain circumstances allows a court to accept a defendant's guilty plea even when the defendant maintains his or her innocence. The public defender elicited from Lubinski that he understood the nature of the offense to which he was pleading guilty, understood the meaning and implications of a Alford/Goulette plea, had had adequate representation and time to consider his decision, understood he was waiving his right to trial, and understood the maximum penalties that could be imposed against him. The prosecutor explained the facts the state believed would prove that Lubinski was guilty of the offense. The district court elicited from Lubinski testimony that he understood that he was pleading guilty because he believed the state could prove its case. The court then accepted Lubinski's plea and found him guilty of the offense.

After sentencing, now represented by a private attorney, Lubinski brought a motion to vacate the guilty plea on the ground that he was suffering from major depression and did not understand the nature and elements of the offense and the consequences of his plea. The district court denied the motion to vacate the plea.

D E C I S I O N

A criminal defendant does not have an absolute right to withdraw a guilty plea. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). However, a defendant has a right to withdraw a guilty plea at any time after sentencing, upon timely motion, if the defendant establishes that withdrawal is necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1; State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). Manifest injustice exists when a defendant can show the guilty plea was not accurate, voluntary, and intelligent. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The decision whether to permit withdrawal of a guilty plea will be reversed only if the district court clearly abused its discretion. Kim, 434 N.W.2d at 266. The appellant bears the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea. Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988).

On appeal, Lubinski makes two arguments why the district court abused its discretion in refusing to allow him to withdraw his guilty plea: (1) the court erred by accepting Lubinski's plea even though he "neither admitted guilt nor took responsibility for the criminal conduct," and (2) because Lubinski suffered from major depression, he did not understand the nature and elements of the offense and the consequences of his plea.

We need not consider Lubinski's first argument because did not raise it in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (appeals court will not address matters not argued and considered in court below). But even if we were to consider the argument on its merits, we would reject it. Lubinski entered an Alford/Goulette plea, pleading guilty although he maintained his actual innocence. It would be inconsistent with Lubinski's right to enter such a plea to require the district court to force him to admit guilt or take responsibility for the criminal conduct before the court accepted the plea.

Lubinski's second contention is that the district court abused its discretion by refusing to allow Lubinski to withdraw his plea in the face of evidence that Lubinski was suffering from major depression and thus did not understand the nature and elements of the offense and the consequences of his plea. But the only evidence Lubinski offers in support of that contention is a letter from a licensed psychologist stating that he met with Lubinski on four occasions during the period of October through December 1999 and giving a diagnosis of "Major Depressive Disorder, Single Episode, Mild," and an affidavit from Lubinski's appellate counsel stating that the attorney believes that Lubinski's depression prevented him from understanding the charges he was facing and influenced his decision to plead guilty.

But Lubinski pleaded guilty on August 17, 1999. The psychologist saw Lubinski for the first time on October 6, 1999, almost two months later. Nothing in the psychologist's half-page letter to Lubinski's appellate attorney addresses whether Lubinski had the ability to voluntarily and intelligently waive his rights and plead guilty on August 17, 1999. Neither can Lubinski's appellate attorney, who first consulted with Lubinski on November 4, 1999, provide any useful evidence about Lubinski's mental condition on the date he was sentenced.

Lubinski has the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea. Lundin, 430 N.W.2d at 679. He has, however, provided no meaningful evidence to demonstrate that a manifest injustice occurred. He therefore has not carried his burden of demonstrating that the district court abused its discretion in refusing to allow him to withdraw his guilty plea. We affirm.

Affirmed.