This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1742

 

Shantanu Subrata Dutt, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed May 8, 2001

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 971224

 

Thomas A. Rothstein, Allan Hart Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

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

 

Jay M. Heffern, Minneapolis City Attorney, Gretchen A. Zettler, Assistant City Attorney, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Shantanu Subrata Dutt challenges the district court’s denial of his motion to withdraw his guilty plea.  We affirm. 

D E C I S I O N

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.  The right to withdraw a guilty plea is not absolute.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  The district court’s decision on whether to permit withdrawal of a guilty plea will not be reversed absent a clear abuse of discretion.  Kim, 434 N.W.2d at 266.  A defendant 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).  We limit our review to determining whether sufficient evidence exists to sustain the district court’s findings.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).

The district court found that appellant’s motion to withdraw his guilty plea, which was made 43 months after sentencing, was untimely.  We agree.  Prior caselaw has considered a motion to withdraw a plea timely if it is

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) (quotation omitted).  This court has held two months after sentencing to be untimely.  State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984); see also State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (holding that 11 months was untimely when defendant waited until after deportation proceedings began before attempting to withdraw his plea), review denied (Minn. Feb. 14, 1986).  Because appellant waited 43 months before moving to withdraw his guilty plea, we conclude the district court did not abuse its discretion in denying appellant’s motion based on timeliness.

            Notwithstanding the district court’s determination regarding the timeliness of his motion, appellant contends he is entitled to withdraw his plea because it was not accurate.  We disagree.  A manifest injustice occurs when a defendant’s guilty plea is not accurate.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  For a guilty plea to be accurate, it must be supported by a proper factual basis.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  Generally, this requires “questioning the defendant and asking the defendant to explain in his or her own words the circumstances surrounding the crime.”  Id.(citation omitted).  An accurate plea protects the defendant from pleading guilty to an offense more serious than the defendant could be properly convicted of at trial.  Alanis, 583 N.W.2d at 577.

Appellant was charged with domestic assault pursuant to Minn. Stat. § 609.2242, subd. 1 (1996).  A person is guilty of domestic assault if he or she:  commits an act with intent to cause fear or intentionally inflicts or attempts to inflict bodily harm, on a family or household member.  Minn. Stat. § 609.2242, subd. 1.  Appellant admitted, when questioned by the district court, that he slapped his wife because she accidentally dropped a lamp on his foot.  Appellant argues that his explanation for slapping his wife shows that he did not intentionally slap her.  We disagree.  Appellant’s explanation for the slap does not transform his behavior into a nonintentional act.

            Finally, we note that the district court properly found that withdrawal of appellant’s plea would unduly prejudice the state’s ability to prosecute the case.  By waiting more than 3˝ years to attempt to withdraw his plea, appellant has made it difficult for the state to locate appellant’s wife and, if located, negatively affected her ability to accurately testify to the assault.  See Chapman, 282 Minn. at 16-17, 162 N.W.2d at 700-01 (suggesting that withdrawal of a plea should almost never be allowed if it will prejudice the state’s ability to reprosecute the charge).

            We conclude that the district court properly determined that appellant failed to meet his burden of proof to allow withdrawal of his guilty plea. 

            Affirmed.