This opinion will be unpublished and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
State of Minnesota,
Derek Lamar Burgin,
Ramsey County District Court
File No. K6961552
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Derek Lamar Burgin appeals from an order denying his motion to withdraw his guilty plea. We affirm.
On June 25, 1996, pursuant to plea negotiations, Burgin pleaded guilty to one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (1994). Under the plea agreement, Burgin was to receive a guidelines sentence. The agreement did not specifically mention the five-year conditional-release period required under Minn. Stat. § 609.346, subd. 5 (1994).
At the plea hearing, the mandatory conditional-release period was not referred to by the judge, the prosecutor, or Burgin’s attorney. The parties believed that Burgin had two criminal-history points and that the guidelines sentence would be 68 months. The presentence investigation revealed that Burgin had four criminal-history points and the guidelines sentence was 84 to 92 months. On July 30, 1996, the court sentenced Burgin to 84 months. The court also stated:
Following expiration of the sentence that I have just pronounced, the Commissioner shall place you on a period of conditional release for 60 months, or five years, less any time that you may have served while on supervised release.
No objection to the conditional-release period was made at sentencing.
On February 14, 2000, Burgin moved to withdraw his guilty plea pursuant to Minn. R. Crim. P. 15.05, subd. 1, claiming that he did not know about the mandatory conditional-release period when he pleaded guilty. He also alleged that his attorney did not tell him about the possibility of a conditional-release period and failed to object when the conditional-release period was imposed. In an affidavit, Burgin stated that the meaning and consequences of the mandatory conditional-release period were not explained to him until he got to prison. The district court denied Burgin’s motion.
D E C I S I O N
An appeal from the denial of a motion to withdraw a guilty plea made after sentencing and after the time for direct appeal has expired is treated as an appeal from the denial of postconviction relief. State v. Saliterman, 431 N.W.2d 590, 591 (Minn. App. 1988). When seeking postconviction relief, a petitioner “has the burden of establishing, by a fair preponderance of the evidence, facts [that] warrant a reopening of the case.” State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993) (citation omitted). Review of postconviction proceedings is limited to whether there is sufficient evidence in the record to sustain the findings of the postconviction court. Id. Absent an abuse of discretion, a postconviction court’s decision will not be disturbed. Id.
Burgin argues that because he was not told about the mandatory conditional-release period and did not understand what it was until he was in prison, his guilty plea was not knowingly and understandingly made, and he should be allowed to withdraw his plea. He also argues that he should be allowed to withdraw his plea because he did not receive effective assistance of counsel when his attorney failed to advise him about the conditional-release period and failed to object when the conditional-release period was imposed. The state argues that Burgin’s motion to withdraw his guilty plea is untimely.
There is no absolute right to withdraw a guilty plea after it is entered. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). A district court has broad discretion in deciding whether to grant a defendant’s motion to withdraw a guilty plea, and a reviewing court will not reverse a district court’s denial of such a motion absent a clear abuse of discretion. Id. A district court “shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1.
A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.
Chapman v. State, 282 Minn. 13, 17 162 N.W.2d 698, 701 (1968) (quoting American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (tentative draft), § 2.1).
This court has found a motion to withdraw a guilty plea brought as soon as eight months after a guilty plea and two months after sentencing to be untimely. State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984); see also State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991) (17 months after sentencing was untimely), review denied (Oct. 11, 1991); State v Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (11 months after sentencing was untimely), review denied (Minn. Feb. 14, 1986); Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) (22-month delay after plea raised question of legitimacy of motion to withdraw plea), review denied (Minn. Oct. 16, 1984).
Burgin moved to withdraw his guilty plea 43 months after he pleaded guilty and 42 months after he was sentenced. Although Burgin was not told about the mandatory conditional-release period before pleading guilty or at sentencing, he admits that he was specifically informed about the consequences of the conditional-release term when he got to prison. Even after learning about the conditional-release term, however, he waited more than three years before moving to withdraw his guilty plea. We conclude that because Burgin waited more than three years to make his motion, the motion was not made with due diligence, and it was, therefore, untimely.